35 M.J. 812

UNITED STATES v. Sergeant Phillip A. WILLIAMS, FR462-33-0482, United States Air Force.

ACM 28579 (recon).

U.S. Air Force Court of Military Review.

Sentence Adjudged 9 Feb. 1990.

Decided 7 July 1992.

*813Appellate Counsel for the Appellant: Captain David D. Jividen (argued), Colonel Richard F. O’Hair, Colonel Jeffrey R. Owens, Major Ronald G. Morgan, and Major Bernard E. Doyle, Jr.

Appellate Counsel for the United States: Captain Thomas E. Wand (argued), Colonel Joe R. Lamport, Lieutenant Colonel Brenda J. Hollis, and Major Paul H. Blackwell, Jr.

Before LEONARD, RIVES, and JAMES, Appellate Military Judges.

OPINION OF THE COURT

JAMES, Judge:

Sergeant Williams was convicted by a general court-martial of three rapes, a robbery, sodomy, and an aggravated assault.1 On appeal he contests the propriety of identifications resulting from a photographic line-up, identification of his automobile, admissibility of testimony about blood type analysis by the investigators, the sufficiency of the evidence to sustain the convictions, “future dangerousness” testimony in sentencing, the severity of the resulting sentence, and the convening authority’s qualifications to act on the sentence.

After we first decided this appeal, appellate government counsel moved for reconsideration, bringing to our attention United States v. Stinson, 34 M.J. 233 (C.M.A. 1992).2 Recognizing our responsibility to consider Stinson and to address it, we granted the government’s motion and withdrew our prior decision. On reconsideration we find no merit in the evidentiary issues on the merits, we find the evidence to be sufficient, and we affirm the convictions. We dispose of those issues first. Then we turn to the sentencing evidence, which was the more troubling issue in our earlier decision and which remains troubling. We find error but no prejudice. Finally, we find the sentence not to be inappropriate, and we find no error in the convening authority’s post-trial action.

I. Issues of Evidence on the Merits

Sergeant Williams contested the admissibility and the reliability of the identifications of him by the several victims. To summarize the facts, several women were given rides by an assailant who then forced them at knife-point to submit to the assailant’s sexual demands, took their money, and left them. The assailant deliberately struck one of them with his car. As the investigation came to focus on Williams, Air Force security police investigators had two photographers take black-and-white photographs of the torsos of several men, all dressed the same, and all posed before the same concrete block wall. Regrettably, one photographer shot only the suspect, *814Williams, and the other shot all the other models, who were not suspects. Inevitably the resulting sets of photographs were slightly different in focus, image size, and in shadowing. The victims were separately shown the photographs by police investigators. Each victim picked Williams as the assailant. Each also identified Williams at trial, and each said in various ways that she was certain of her identification. Williams sought to show that the victims (some of whom were prostitutes) had consulted while in jail and on the streets, thus perhaps pooling information. Nonetheless, the military judge overruled his timely objection to admission of the identification testimony and the in-court identifications that followed.3

Line-ups have had a significant constitutional history, but the law on such evidence, including photographic line-ups, now seems settled.4 It is summarized by Mil.R.Evid. 321, which draws no distinctions pertinent in this case between “[a] lineup or other identification process.” In brief, a military accused may suppress an “unlawful” identification. Mil.R.Evid. 321(a)(2). For purposes of this case, an identification is “unlawful” if it results from “a lineup or other identification process” which is “so suggestive as to create a substantial likelihood of misidentification.” Mil.R.Evid. 321(b)(1); see Manson v. Braithwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977) (reliability under totality of circumstances, no per se rule); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). Biggers and Braithwaite supply factors for that decision. When the military judge at trial applied those factors to her findings of fact and stated her “essential findings,” see Mil. R.Evid. 321(f), she concluded that “the photographic lineup was not suggestive.” Addressing the effect of the process, she further concluded that “there did not exist a substantial likelihood of irreparable misidentification.” Her findings of fact are supported by the record, and we adopt them.

We agree with her result and her conclusion that there was no substantial likelihood of misidentification. The defense argument that differences in the photographs were at least subconsciously suggestive does not carry the point because suggestiveness alone is not fatal. Mil.R.Evid. 321(b)(1). Instead, one must examine the extent and effect of the suggestiveness, as the military judge did. Id. We note that Mil.R.Evid. 321(b)(1) does not test for an “irreparable” misidentification, and it is possible that the judge’s test was less favorable to the defense than the test in Mil.R.Evid. 321(b)(1).5 However, when we *815apply the seemingly more favorable test of Mil.R.Evid. 321(b)(1), we remain confident that the evidence was correctly admitted. See United States v. Quick, 3 M.J. 70 (C.M.A.1977).

Williams also contends that the methods used to identify his vehicle as the one involved in the offenses were suggestive and that the resulting testimony should have been excluded. The police investigators, having narrowed the investigation to Williams, photographed his vehicle and later showed those photographs alone to the victims. Of course, trucks and cars have no constitutional rights, and no special line-up rights are extended to them by Mil.R.Evid. 321. However, the idea that such methods could be suggestive and thereby detract from the reliability of the identification is plausible. Such a result might even be so likely that the resulting testimony is without probative value, or that its probative value is offset by the hazard that it might present. Accordingly, a military judge might exclude it under MiLR.Evid. 402 or 403. The military judge in this case overruled timely objections and admitted the testimony. Her ruling is reviewable only for abuse of discretion, see, e.g., United States v. Jenkins, 27 M.J. 209, 211 (C.M.A.1988), and we find no such abuse. The assignment of error is without merit.6

We reach the same result on Williams’ invitation to review admission of the blood type testimony. The rules give the military judge the discretion to determine whether to admit expert opinions. Mil.R.Evid. 702. We review that decision only for abuse of discretion. United States v. Stark, 30 M.J. 328, 330 (C.M.A. 1990); United States v. Mustafa, 22 M.J. 165, 168 (C.M.A.1986), cert. denied, 479 U.S. 953, 107 S.Ct. 444, 93 L.Ed.2d 392 (1986); United States v. Sawyer, 32 M.J. 917 (A.F.C.M.R.1991). See generally United States v. Gipson, 24 M.J. 246 (C.M.A. 1987) (“the judge has considerable room to exercise ‘judgment’ ”). We find no abuse here, either. Even if we had found error, we note that the defense counsel’s commendable skills were applied here as throughout the trial to limit the value of the evidence to exactly that which it deserved. This evidence was so limited by his efforts that its admission, in the context of the other evidence in the case, was not prejudicial. Article 59(a), UCMJ, 10 U.S.C. § 859(a) (1988).

Having disposed of the appellate issues affecting the evidence on the merits,7 we may now examine the sufficiency of the evidence to convict and to sustain the convictions on appeal. “The test for [legal sufficiency] is whether, considering the evidence in the light most favorable to the prosecution, a reasonable fact-finder could *816have found all the essential elements beyond a reasonable doubt.” United States v. Turner, 25 M.J. 324, 324 (C.M.A.1987) (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). The test for factual sufficiency is “whether, [we] are [ourselves] convinced of the accused’s guilt beyond a reasonable doubt.” Turner, 25 M.J. at 325. We apply both in this case, as always. We find no lack of evidence, and we are ourselves convinced of the appellant’s guilt of the charges and specifications of which he was found guilty. Having found no error affecting the findings,8 we now turn to Sergeant Williams’ assignment of error affecting the evidence during sentencing.

II. Sentencing Evidence

During sentencing the prosecution produced a forensic psychiatrist, Colonel William Grant. The military judge found him to be an expert without objection. Colonel Grant testified briefly about the extent of the impact of the offenses upon the victims, and then turned to a lengthy briefing 9 on recidivism. As anyone acquainted with criminal law would expect, the substance was not encouraging. To make matters worse, Colonel Grant described his view that past violent behavior is likely a predictor of futuré violent behavior. With that background, trial counsel asked—

Based on your knowledge, your training, your experience in the field of forensic psychiatry together with the knowledge, information and understanding that you have concerning this case, concerning the evidence, do you have an opinion as to how dangerous this accused is?

The defense objected, “he’s being asked to predict the future and speculate.” The military judge overruled the objection.

Colonel Grant then continued, first pointing out attributes of the offenses of which Sergeant Williams had been convicted that help establish how dangerous Williams might have been at the time, then, and might be in the future. Trial counsel closed by asking the recidivism rates among persons who had participated in rehabilitative programs, and, once again, the reply was not encouraging. Before closing his direct examination, trial counsel offered as exhibits copies of the slides used by Colonel Grant during his briefing on recidivism. The defense asked the military judge to defer the ruling and then cross-examined.

Having been unable to persuade the military judge to exclude the testimony as speculative, the defense sought to diminish its weight. Trial counsel had only one question on redirect:

TC: Once again, Doctor Grant, you would agree that the best predictor of future violence is his past violence?
A: I would.

Trial counsel renewed the offer of the slides about recidivism, the defense objected to them on the basis that the predictions were unreliable and not accepted by the scientific community, but the military judge overruled the objection and admitted the slides.10

*817When we are confronted with new prosecution strategies on sentencing we look first to R.C.M. 1001(b) to determine whether there is a procedural rule governing them, about which a body of interpretative decisions has already developed. Only two possibilities exist for admission of the “future dangerousness” evidence: R.C.M. 1001(b)(4) (aggravation) and (5) (rehabilitative potential).

The “rehabilitation potential” theory is plausible at first glance, and some might say that it gains persuasiveness from United States v. Stinson, 34 M.J. 233 (C.M.A. 1992), to which the government brought our attention upon reconsideration, but we still find it unpersuasive.

A. R.C.M. 1001(b)(5), “Evidence of rehabilitation potential”

The rule seems facially clear: “The trial counsel may present ... evidence, in the form of opinions concerning the accused’s ... potential for rehabilitation.” However, the rule has been amplified by the decisions of the Court of Military Appeals about testimony of commanders and similar authorities in euphemisms that an accused should not be retained in the service, that the court-martial should include a punitive discharge in the sentence.11

In the decisions on “euphemism testimony” there are several themes: that such testimony sometimes too closely resembles command influence, that it often should be excluded because the opinion lacks a rational basis, and that such testimony is excludable as irrelevant. Today’s parallel with the relevance theme becomes immediately apparent in this excerpt from a footnote:

Having rehabilitative potential is a mitigating factor. Lacking rehabilitative potential is not an aggravating factor. [A]n accused should not receive a more severe sentence than otherwise generally warranted by the offense, the circumstances surrounding the offense, his acceptance or lack of acceptance of responsibility for his offense, and his prior record.

United States v. Aurich, 31 M.J. 95, 96-97 n. * (C.M.A.1990) (Cox, J. concurring) (emphasis added). The same thought echoes anew in United States v. Claxton, 32 M.J. 159, 164-65 (C.M.A.1991) (Everett, S.J., concurring), and we emphasized it in United States v. St. Romain, 33 M J. 689, 692 (A.F.C.M.R.1991). We conclude through the same approach that evidence relating to an accused’s likelihood to commit future acts is not relevant unless it shows the accused unlikely to do so. To paraphrase Aurich, a low likelihood of future dangerousness is mitigating, but a high likelihood is not an aggravating factor. Otherwise the risk is that the accused will be sentenced not for his actual crimes but for his possible future badness. While psychiatric assessments of a prisoner’s future dangerousness might be vital to those in corrections who consider parole and similar questions of early release, we hold that “future dangerousness” testimony is not relevant to rehabilitative potential under R.C.M. 1001(b)(5).

In its motion for reconsideration, the government accurately points out that the quoted passage from Aurich is dicta.12 Yet, the quoted passage seemed to us to synthesize the relevance aspect from the decisions about “evidence of rehabilitative potential” and its relationship to sentencing. The reappearance of the theme in Claxton reassures us that the synthesis was intended—at least by the two judges involved—as we have taken it.

*818We must consider Stinson against that background. The facts in Stinson are functionally equivalent to those in Sergeant Williams’ case. However, the issue addressed in Stinson is not admissibility based on relevance—the Aurich idea that we have followed—but is instead the admissibility of the opinion as that of an expert under Mil.R.Evid. 702. Stinson is about a different problem. It is apparently only coincidental that the introductory sentence of the discussion of the Stinson opinions states, seemingly without qualifications, “In a sentencing hearing, an accused’s potential for rehabilitation is a proper subject of testimony by qualified experts.” 34 M.J. at 238.

We are not prepared to read into that discussion any abandonment of the relevance theme from the Aurich note. It is true that the Court of Military Appeals did not choose to write about the introduction of evidence of a lack of rehabilitative potential, but we cannot find law in silence. This is not a simple matter: Reasonable persons can easily disagree on whether the ambiguous “fairly poor prognosis” and “high risk of reoffense” in Stinson and the generalized discussion of recidivism and violence in Sergeant Williams’ case contribute to an understanding of the offender’s present capacity to be rehabilitated, in contrast to that of the hypothetical average offender and in contrast to the need or lack of need to disable the offender. Those critical aspects are not considered in Stinson. Thus, we do not find Stinson to permit introduction of the evidence that was admitted against Sergeant Williams, over objection.

B. R.C.M. 1001(b)(4), “Evidence in aggravation”

Now we turn to the remaining possibility, that “future dangerousness” testimony is admissible as aggravation under R.C.M. 1001(b)(4). It would seem very unlikely to be so, for the rule and resulting decisions clearly limit aggravation to matters “directly relating to or resulting from the offenses of which the accused has been found guilty.” R.C.M. 1001(b)(4) (emphasis added); United States v. Bartoletti, 32 M.J. 419 (C.M.A.1991); United States v. Gordon, 31 M.J. 30 (C.M.A.1990).

However, there is some precedent that might seem to permit an enlargement of that limitation to include “state-of-mind/ depth-of-problem” evidence. See, e.g., United States v. Ciulla, 32 M.J. 186 (C.M.A.1991), cert. denied, — U.S. -, 112 S.Ct. 172, 116 L.Ed.2d 135 (1991); United States v. Mullens, 29 M.J. 398 (C.M.A.1990); United States v. Silva, 21 M.J. 336 (C.M.A.1986). But cf. United States v. Martin, 20 M.J. 227 (C.M.A.1985), cert. denied, 479 U.S. 917, 107 S.Ct. 323, 93 L.Ed.2d 295 (1986). It might be argued from a glance at those cases that an expert opinion establishing a propensity for violence, based on attributes of the established crimes, shows the depth of the accused’s recent propensity for violence and his willingness to inflict fear and pain. However, Ciulla, Mullens, and Silva all involved evidence that was somehow factually related by events in history to the established crimes. In Silva, it was statements during the crimes that the accused had committed prior such crimes, and in Ciulla it was a statement that the accused wanted to do similar crimes to a different victim, apparently made in both cases to induce the child victims to acquiesce. In Mullens, the acts were uncharged parts of the same course of behavior. Thus, in all three cases there is some demonstrable, concrete linkage between the convictions and the evidence showing the uncharged acts to be “directly relating” to the established crimes.

Despite the expert’s reliance on concrete attributes of the established crimes to analyze Sergeant Williams’ future dangerousness, the “future dangerousness” testimony lacks that directness required by R.C.M. 1001(b)(4) because there is no act yet which can be shown “directly relating” to the past crimes.13 That was apparently *819the point of the defense objection that the testimony was speculative: The future acts that would show continuing violent behavior have not yet occurred. There is no directness, and therefore the “future dangerousness” testimony has no connection with the crimes of which Sergeant Williams was convicted. Similarly, the witness’ general discussion of recidivism had no direct connection with Sergeant Williams. Colonel Grant’s testimony about recidivism and future dangerousness was not admissible under R.C.M. 1001(b)(4) or (5).

C. Is R.C.M. 1001(b) Exclusive?

We have exhausted the possibilities under R.C.M. 1001(b). Is it exclusive? Future dangerousness certainly has obvious logical appeal on the sentencing question, despite the analysis above. It is not unconstitutional, impossible, or even unusual for a state to provide that it will be or may be considered in sentencing, including capital sentencing. Barefoot v. Estelle, 463 U.S. 880, 896-903, 103 S.Ct. 3383, 3396-3400, 77 L.Ed.2d 1090 (1982); Estelle v. Smith, 451 U.S. 454, 472-73, 101 S.Ct. 1866, 1878, 68 L.Ed.2d 359 (1981); Jurek v. Texas, 428 U.S. 262, 274-76, 96 S.Ct. 2950, 2957-58, 49 L.Ed.2d 929 (1976). The maximum imposable confinement is set by statute and Executive prescription (subject to precedent on multiplicity). Article 56, UCMJ, 10 U.S.C. § 856 (1988); R.C.M. 1003(c). It makes sense that, within that period, one who is likely to be dangerous again should be disabled from public misconduct for a longer term than one who isn’t.14 The answer is simple: Rule-making in this area is an Executive prerogative, Articles 36(a) & 56, UCMJ, 10 U.S.C. § 836(a) & 856 (1988), into which we have no warrant to intrude in this case. Though the President provided for admission of some facts from which one might infer amenability to discipline and the likelihood of future misconduct, e.g. R.C.M. 1001(b)(l)-(3), he has not provided for consideration of future dangerousness testimony like that in this case. It should have been excluded.

D. Prejudice?

We must now determine whether the error resulted in any prejudice to Sergeant Williams. Once again, the defense did a commendable job at limiting the effectiveness of the evidence. During cross-examination, the defense probed the science underlying the witness’ testimony, the completeness of his inquiry into Sergeant Williams’ case, and other factors to diminish the impact of Colonel Grant’s briefing on recidivism. Having considered this carefully, we are persuaded that the resulting sentence in this case shows the military judge limited her consideration of this testimony to that which its diminished weight deserved. If Colonel Grant’s testimony is reflected in the sentence adjudged, it is because he pointed out the aspects of the criminal acts actually committed, and their actual impacts on the victims, not because of his statistical analysis and predictions from them.

E. Sentence Appropriateness

Finally, Sergeant Williams urges that the sentence is excessive. He was sentenced to be discharged from the service with a dishonorable discharge, to be confined for 20 years, forfeiture of all pay and allowances, and to be reduced to E-l. The convening authority approved the sentence as adjudged. We have considered the record and testimony relating to his good service and to his domestic life, and the other information in his behalf. However, considering the violence actually committed and that threatened in these offenses, we have no difficulty concluding that the sentence is not inappropriate.

*820III. Post-Trial Procedure

The results of a court-martial are examined by the commander who convened the court-martial, and that commander has the responsibility for acting on the sentence, approving it as adjudged, reducing it, or disapproving it altogether. Article 60, UCMJ, 10 U.S.C. § 860 (1988); R.C.M. 1107. The accused may submit “matters for consideration” to the convening authority, typically asking clemency. Article 60(b), UCMJ, 10 U.S.C. § 860(b) (1988); R.C.M. 1105. Sergeant Williams complains that the convening authority who acted on his case was himself suspected of sexual misconduct and was therefore disqualified. But see R.C.M. 1107(a) Discussion (examples of disqualifications). In an unrelated case involving the same commander, we set aside the convening authority’s action in an abundance of caution and remanded the case for a new action by a different convening authority. See generally United States v. Kroop, 34 M.J. 628 (A.F.C.M.R.1992). Sergeant Williams asks the same relief.

We fashioned relief in Kroop to recognize the effect of any “psychological baggage” that might have been borne by a convening authority whose own misconduct was similar to that involved in a case under his review. We have never been shown that the misconduct of which the commander was suspected included violent behavior like that of which Sergeant Williams is convicted, and so the cases are qualitatively different. We find no need for such relief in this case.15

The findings of guilty and the sentence are correct in law and fact and, on the basis of the entire record, are

AFFIRMED.

Senior Judge LEONARD and Judge RIYES concur.

United States v. Williams
35 M.J. 812

Case Details

Name
United States v. Williams
Decision Date
Jul 7, 1992
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35 M.J. 812

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United States

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