United States v. Owens

COX, J.

Appellant was tried by a general court-martial composed of officer members and a military judge during November and December, 1981, at Fort Campbell, Kentucky. Pursuant to his pleas, he was found guilty of violating a general regulation by possessing an unregistered firearm, in violation of Article 92, Uniform Code of Military Justice, 10 U.S.C. Sec. 892. Contrary to his pleas, he was found guilty of intentionally murdering his wife, Mary Owens, without premeditation, in violation of Article 118(2), UCMJ, 10 U.S.C. Sec. 918(2). The members sentenced appellant to a dishonorable discharge, confinement at hard labor for 25 years, and total forfeitures. The convening authority approved the sentence and the Court of Military Review affirmed.

The circumstances surrounding appellant's conviction for unpremeditated murder were summarized by the court below as follows:

On 4 September 1981, Gari Owens was apprehended for the murder of his wife, Mary Owens. She died in the early morning hours of 4 September as a result of a single gunshot which entered her back causing a large laceration of the liver and perforation of the breathing muscle. Death was due to excessive bleeding. At the time Mary Owens had been driving the couple's Volkswagen Rabbit down the street from their quarters at Fort Campbell, Kentucky. Gari Owens held the 30.06 rifle mounted with a "Bushnell 4" telescopic sight which fired the fatal bullet.

At the trial the government introduced evidence to show that Gari Owens fired the weapon in anger following a domestic quarrel and that Owens intended his wife's death or grievous bodily harm. In defense Owens took the stand. An experienced hunter and marksman, Owens claimed that he had been standing in front of his house examining his rifle and that he had chambered a round and cleared the weapon by pulling the trigger. He maintained that his wife's death was a tragic accident.

Before this court-martial, defense counsel filed several motions to exclude prosecution evidence of appellant's prior convictions and arrest for criminal conduct in civilian jurisdictions. These motions, based on Mil.R.Evid. 404 and 609, were raised again at trial, but the military judge deferred his rulings until the prosecution attempted to introduce such evidence.

Later, after appellant testified on direct examination, the military judge held an Article 39(a), UCMJ, 10 U.S.C. Sec. 839(a), session. The judge discussed with counsel the probability that matters referred to in the earlier defense motions would be brought up during cross-examination of appellant. Trial counsel indicated that he would question appellant concerning omission of these matters from his warrant-officer application and accompanying statement of personal history but would not go into the details of these omissions.

Appellant denied that he had ever lied under oath or affirmation. He initially stated that his affirmative answers to these questions were truthful. He later admitted that he had lied under oath or affirmation by omitting the complete answers to these two questions on the application. He explained, however, that he did not realize that he was lying or that the complete answers were not on the forms. During this cross-examination, no mention was made as to the nature or details of these omissions.

At this point in the trial, a second session was held by the military judge outside the presence of the members. Trial counsel indicated his intention to cross-examine appellant using the questions which are challenged on appeal. He asserted that they were permissible under Mil.R.Evid. 608(b). Defense counsel objected on the basis of Mil.R.Evid. 609. The trial judge permitted the questions, and substantially negative answers were provided by appellant.

It is important to identify the questions of trial counsel which form the basis for this appeal. Appellant was cross-examined as follows:

Questions by assistant trial counsel:

Q. Mr. Owens, isn't it a fact that as to your application for appointment as a Warrant Officer in the United States Army and the statement of personal history attached to it, that you knowingly omitted the fact from questions 19 and 18, that you had been convicted in Daleville, Alabama, for the possession of marihuana and marihuana paraphernalia in 1976?

A. No, sir.

Q. Is it not a fact that you intentionally omitted from both of these documents the fact that you had been arrested in 1976 in Daleville, Alabama, for assault and battery on your second wife, Mrs. Jennifer Conant Braun?

A. No, sir.

Q. Is it not a fact that you omitted from both of these documents, the fact that you had been convicted in Enterprise, Alabama, for carrying a .22 caliber pistol in your automobile without a permit in 1976?

A. It was admitted -- it was omitted, rather. I did not knowingly omit it.

Q. You did not knowingly omit it?

A. I did not omit it.

Q. Mr. Owens, isn't it a fact that you knowingly omitted all three of these matters from those two documents because you realized that if you put them in there, you likely would not become the Warrant Officer that you wanted so badly to become?

A. No, Sir. That's not true.

After this cross-examination, defense counsel questioned appellant in detail about these omissions. He admitted to two prior convictions and provided explanations for the underlying conduct. He further explained the omission of this information from these forms. He testified that he informed the personnel specialists processing his application that he had a local marijuana offense and pistol offense. He asserted that he relied on these personnel specialists to properly process his application and signed the final papers without reading them. He made no admission concerning his prior arrest for assault or any claim that he disclosed this matter to them.

In the present case, trial counsel suggested the evidence of appellant's prior crimes for such a purpose. The Government was clearly authorized under Mil.R.Evid. 608(b) to impeach appellant by extracting on cross-examination his admission to a prior act of intentional falsehood under oath. In particular, he had a good-faith belief that appellant had previously failed to provide complete and truthful answers on his warrant-officer application. Since the prior convictions and arrests were the matters omitted in his answers, they were necessary and inseparable parts of this act of deceit. As such, they were clearly matters which were relevant within the meaning of Mil.R.Evid. 401 to establish appellant's prior act of falsehood. More importantly, the adverse nature of these omissions coupled with appellant's admitted interest in being selected reasonably tended to show these omissions were intentional. The relevance of the suggested evidence was not obviated simply because the omissions pertained to additional acts of prior misconduct which might unfavorably reflect on appellant's character.

The relevance of the suggested evidence to show a prior act of deceit by appellant does not per se dictate its admissibility under the Military Rules of Evidence. Under Mil.R.Evid. 403, evidence relevant for a permissible purpose may still be found inadmissible "if its probative value is substantially outweighed by the danger of unfair prejudice." This additional requirement for admissibility precludes admission of relevant evidence which would tend to "unduly" prejudice an accused under the circumstances of a particular case.

The military judge in making such a discretionary decision must first assess the need for this evidence. He must consider whether the evidence is relevant to a contested issue in the trial, whether other evidence is available to the prosecution and the strength of the challenged evidence.

The record of trial in this case provides a firm basis for the conclusion that the suggested evidence had substantial probative value. First, the issue of appellant's prior falsehood was clearly a matter contested by the parties. Although after some evasion appellant admitted there were some omissions on his application, he steadfastly denied that he consciously and intentionally omitted the complete answers. [Footnote 7] Second, other evidence to show appellant engaged in this act of deceit was not available to the Government. Under Mil.R.Evid. 608(b), the prosecution could not introduce extrinsic evidence of appellant's prior falsehood, by, for example, calling the personnel specialists who processed appellant's application. Finally, the strength of the suggested evidence to show appellant's prior falsehood was considerable. The number of omissions, their serious nature in terms of involvement with law enforcement authorities, and the potentially disqualifying character of the underlying offenses in terms of military promotion were substantial circumstances indicating deliberate deceit by appellant.

=====FOOTNOTE 7=====

Appellant admitted that complete and truthful answers to several questions on his warrant-officer application had been omitted. He asserted, however, that he did provide complete answers orally to the personnel specialists who processed his application; that they omitted the complete answers; and that he failed to read the completed forms before he signed them. In other words, he denied the impeaching fact sought to be proven by the Government, namely, that he knowingly and intentionally lied under oath or affirmation. See Mil.R.Evid. 608(b).

=====Footnote End=====

The military judge was also required to consider the tendency of the suggested evidence to unfairly prejudice appellant. He had to assess the suggested evidence in terms of its tendency to incite the members to irrational decision by its force on human emotion. . . . The prior convictions and the prior arrest could naturally have led the members to find the appellant guilty because he was a "bad man." . . . Also, the fact of prior involvement with drugs might have raised the enmity of the members in view of the strong policy of the military against such conduct. Finally, the fact of a prior assault and battery may have led the members to conclude that appellant was disposed to acts of violence such as the crime for which he was charged. However, these prejudicial tendencies were substantially reduced in the present case by the limiting instruction of the military judge which restricted the members' consideration of the suggested evidence to the issue of credibility. In these circumstances and in view of the considerable probative value of the suggested evidence for a proper purpose, we hold that the military judge did not abuse his discretion under Mil.R.Evid. 403.

This holding does not extend to all the suggested evidence to which trial counsel was permitted to refer. The victim of appellant's purported assault and battery was identified as his second wife, Mrs. Jennifer Conant Braun. It is highly doubtful that the questions on the warrant-officer application intended to elicit this information as an essential part of a truthful and complete answer. In any event, its probative value, if any, on the issue of deceit was marginal if in fact the arrest and the basic underlying offense, assault and battery, had been omitted. Of course, the potential for prejudice was great in view of the fact that appellant was on trial for the murder of his third wife. This conclusion is buttressed by the fact that the military judge in his closing instructions referred to the suggested evidence of assault and battery as occurring "on an individual." Therefore, acknowledging the broad discretion of the military judge under Mil.R.Evid. 403, we nonetheless hold that the suggested evidence in this limited regard was inadmissible.

We have concluded that it was error for the military judge to allow trial counsel to suggest to the members in his cross-examination questions that appellant had previously been arrested for assault and battery on his second wife. However, appellant was entitled to a fair trial, not "an error-free, perfect trial." After considering the trial record as a whole, we are convinced beyond a reasonable doubt that this error did not prejudice appellant. Accordingly, he is not entitled to relief.

The decision of the United States Army Court of Military Review is affirmed.