United States v. Pope

                      UNITED STATES, Appellee

                                      v.

              Audrey M. POPE, Airman First Class
                   U.S. Air Force, Appellant

                               No. 10-0447
                       Crim. App. No. S31578

    United States Court of Appeals for the Armed Forces

                      Argued November 9, 2010

                     Decided January 31, 2011

RYAN, J., delivered the opinion of the Court, in which
EFFRON, C.J., and BAKER and ERDMANN, JJ., joined. STUCKY,
J., filed a separate opinion concurring in the result.


                                  Counsel

For Appellant: Captain Andrew J. Unsicker (argued); Major
Darrin K. Johns (on brief); Major Shannon A. Bennett.

For Appellee: Major Nicole P. Wishart (argued); Captain
Naomi N. Porterfield and Gerald R. Bruce, Esq. (on brief);
Colonel Don M. Christensen and Lieutenant Colonel Jeremy S.
Weber.


Military Judge:     William M. Burd



         THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Pope, No. 10-0447/AF


     Judge RYAN delivered the opinion of the Court.

     Contrary to Appellant’s pleas, a panel of officers

sitting as a special court-martial convicted her of

wrongful use of cocaine, in violation of Article 112a,

Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 912a

(2006).   The panel sentenced Appellant to a bad-conduct

discharge, confinement for three months, forfeiture of $450

of pay per month for three months, and reduction to E-1.

The findings and sentence were approved by the convening

authority and affirmed by the United States Air Force Court

of Criminal Appeals.   United States v. Pope, No. ACM

S31578, 

2010 CCA LEXIS 152

, at *20, 

2010 WL 4068930

, at *7

(A.F. Ct. Crim. App. Mar. 8, 2010) (unpublished).

     We granted review of four issues in this case:

     WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION
     BY ADMITTING A GREEN DETOXIFICATION DRINK UNDER
     THE DOCTRINE OF SIMILAR PHYSICAL EVIDENCE.

     WHETHER THE MILITARY JUDGE COMMITTED PLAIN ERROR
     WHEN HE FAILED TO GIVE A LIMITING INSTRUCTION
     THAT AN EXHIBIT WAS BEING ENTERED INTO EVIDENCE
     FOR ILLUSTRATIVE PURPOSES ONLY.

     WHETHER IT WAS PLAIN ERROR FOR THE MILITARY JUDGE
     TO ALLOW TRIAL COUNSEL TO ELICIT TESTIMONY ON
     APPELLANT’S RIGHT TO REMAIN SILENT AND TO ALLOW
     TRIAL COUNSEL TO COMMENT ON THIS DURING HIS
     FINDINGS ARGUMENT.

     WHETHER THE CONTESTED FINDINGS AND SENTENCE IN
     THE PRESENT CASE SHOULD BE SET ASIDE UNDER THE
     CUMULATIVE ERROR DOCTRINE.



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United States v. Pope, No. 10-0447/AF


United States v. Pope, 

69 M.J. 178

 (C.A.A.F. 2010) (order

granting review).   We agree with Appellant that it was an

abuse of discretion to admit the “green detoxification

drink” as demonstrative evidence.       We further hold that it

was error -- but not prejudicial plain error -- to fail to

give a limiting instruction.    Given the overwhelming

evidence of Appellant’s guilt, however, we are convinced

that these errors had no substantial impact on the verdict,

and thus did not materially prejudice Appellant’s

substantial rights.   See Article 59(a), UCMJ, 

10 U.S.C. § 859

(a) (2006).   Finding no other error, the findings and

sentence are affirmed.

                           I.   FACTS

     The charged specification stemmed from Appellant’s

positive urinalysis result in a random drug test.

Appellant reported to the drug testing center on March 24,

2008 at 3:09 pm.    Appellant “appeared nervous” at the site.

She stayed until about 4:30 pm but failed to produce a

sample in a quantity sufficient for testing.      Appellant was

instructed to return the next morning at 6:30 am to provide

a specimen, but she did not report back to the testing

center until 2:39 pm on March 25, 2008.      According to

testimony by Government witnesses who worked at the site,

this time Appellant “was really antsy because she had to go


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United States v. Pope, No. 10-0447/AF


really, really, really bad” and she produced a sample

almost immediately, signing out at 2:46 pm.   That sample

subsequently tested positive for cocaine at nearly ten

times the Department of Defense cutoff level.

     Appellant stipulated to the following facts:      (1) the

urine specimen tested was Appellant’s urine, (2) the urine

specimen “was properly handled and processed” by the drug

testing laboratory, and (3) the test results “accurately

reported the presence of the cocaine metabolite

Benzoylecgonine” in Appellant’s urine sample.   The only

issue at trial was whether Appellant’s cocaine usage was

knowing and therefore “wrongful.”   Article 112a, UCMJ.

     Appellant’s roommate at the time of the urinalysis,

Airman First Class Krystal Elaine Sweeney, testified that

Appellant admitted that she had “gotten messed up” with her

brother, a former drug dealer who bought Appellant “green

drinks” that “cost around $50.00” to “clean out [her]

system” when “she would get messed up.”   Each drink

consisted of a green liquid in a clear glass bottle with no

label.   Sweeney testified that she saw bottles of these

green drinks in their shared refrigerator -- and saw

Appellant drink them -- “[a] few times. . . . maybe three

or four times” during the three-to-four-month period they

were roommates.   However, Sweeney and Appellant did not


                              4
United States v. Pope, No. 10-0447/AF


become roommates until March 24, 2008 -- the date Appellant

first reported to the drug testing center.   Sweeney

testified that she did not remember seeing any green drinks

on that day; she could not recall the first time she saw

such a bottle.   Trial counsel conceded to the military

judge that Sweeney did not see Appellant with a green drink

prior to her urinalysis.

     Immediately before Sweeney’s testimony, trial counsel

requested an Article 39(a), UCMJ, 

10 U.S.C. § 839

(a)

(2006), session.   The Government sought to introduce a

representative example of a green detoxification drink --

purchased by a Government investigator -- as a prop or

replica under the doctrine of similar physical evidence.

Trial counsel specifically noted that “the court members

would be instructed that the evidence is not actually

connected with the case, but is being admitted for

illustrative purposes only.”   Defense counsel objected on

relevance, noting that “there is no tie to my client with

regard to that bottle” and that Appellant’s roommate did

not see Appellant with any such drink prior to her

urinalysis.   The military judge overruled the objection and

admitted the green detoxification drink.   When asked if the

bottle appeared to be “substantially the same type of

bottle, the same type of liquid” that she saw in


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United States v. Pope, No. 10-0447/AF


Appellant’s possession, Sweeney responded in the

affirmative, with the exception that the exhibit had a

label indicating it was a detoxification drink whereas

Appellant’s bottles did not.     The members were never

instructed that this bottle was for demonstrative purposes

only.

        The Government also introduced expert testimony that

delay, consuming large volumes of water, and drinking

detoxification agents can cause “the concentration [of the

cocaine metabolite] to decrease over time.”

                         II.   DISCUSSION

        This Court will not reverse a conviction for an error

of law unless that error materially prejudiced an accused’s

substantial rights.    Article 59(a), UCMJ; United States v.

Powell, 

49 M.J. 460, 465

 (C.A.A.F. 1998).       We review de

novo whether the Government has met its burden of

establishing that the error did not have a substantial

influence on the findings in the context of the entire

case.    United States v. Yammine, 

69 M.J. 70, 78

 (C.A.A.F.

2010).

                                A.

        Appellant alleges that there were two errors related

to the demonstrative evidence:       (1) the military judge

abused his discretion in admitting it; and (2) it was error


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United States v. Pope, No. 10-0447/AF


for the military judge to fail to give a limiting

instruction on the use of the demonstrative evidence.     We

agree.

                               1.

     Demonstrative evidence -- also called illustrative

evidence -- “illustrates or clarifies the testimony of a

witness.”   United States v. Heatherly, 

21 M.J. 113

, 115 n.2

(C.M.A. 1985).    Demonstrative evidence is admitted solely

to help witnesses explain their testimony.   Carson v.

Polley, 

689 F.2d 562, 579

 (5th Cir. 1982).    “[I]f the

evidence is used to prove a complex, central, or difficult

to understand point, [then] it may have a place in the

court-martial.”   Stephen A. Saltzburg et al., Military

Rules of Evidence Manual § 403.02[9], at 4-33 (6th ed.

2006).

     However, “[d]emonstrative exhibits are inadmissible

where they do not illustrate or make clearer some issue in

the case; that is, where they are irrelevant, or where the

exhibit’s character is such that its probative value is

substantially outweighed by the danger of unfair

prejudice.”   Benzel v. Keller Indus., Inc., 

567 N.W.2d 552, 558

 (Neb. 1997); see also United States v. Aldaco, 

201 F.3d 979, 986

 (7th Cir. 2000); Tritek Techs., Inc. v. United

States, 

67 Fed. Cl. 727, 729-30

 (Fed. Cl. 2005).


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United States v. Pope, No. 10-0447/AF


     “The decision to permit or deny the use of

demonstrative evidence generally has been held to be within

the sound discretion of the trial judge.”   Heatherly, 

21 M.J. at 115

 n.2.   Thus, this Court has found no abuse of

discretion under Military Rule of Evidence (M.R.E.) 403

when the challenged demonstrative evidence was “relevant,

highly probative of critical issues, and not unfairly

prejudicial.”    United States v. White, 

23 M.J. 84, 88

(C.M.A. 1986).

     But there are several problems with the demonstrative

evidence in this case.1   First, there was no evidence that


1
  We agree that admissible underlying testimony is a
necessary predicate for the introduction of otherwise
relevant and material demonstrative evidence. United
States v. Pope, __ M.J. __ (2) (C.A.A.F. 2011) (Stucky, J.,
concurring in the result). This does not change our view,
consistent with case law from other jurisdictions, that
admission of the demonstrative evidence in this case was an
abuse of discretion under the facts of this case for the
reasons identified in this opinion. See, e.g., Aldaco, 

201 F.3d at 986

 (applying the Fed. R. Evid. 403 balancing test
to determine that the probative value of a replica shotgun
outweighed the prejudice to a criminal defendant); Finley
v. Marathon Oil Co., 

75 F.3d 1225, 1231

 (7th Cir. 1996)
(noting that judges should require “firm foundations”
because demonstrative evidence can be “in some cases too
powerful” a form of evidence, as it can lead a jury “to
resolve its doubts on the basis of a simple, tangible,
visible, everyday object of reassuring familiarity”)
(citations omitted); Tritek Techs., 

67 Fed. Cl. at 729-30

(noting that for demonstrative evidence to be admitted, it
must comply with the Federal Rules of Evidence, including
relevance and the Fed. R. Evid. 403 balancing test);
Overstreet v. State, 

877 N.E.2d 144, 168

 (Ind. 2007) (“To
be admissible, [demonstrative] evidence must be

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United States v. Pope, No. 10-0447/AF


Appellant consumed detoxification drinks before learning

she had tested positive for cocaine on the urinalysis test

underlying the charged offense.      Thus, the drinks had

minimal to no probative value with respect to the only

material issue in the case -- whether Appellant’s drug

usage was knowing and therefore wrongful.

     Second, the demonstrative evidence was not helpful;

the members could have easily comprehended Sweeney’s

testimony about the green detoxification drinks without the

aid of a physical example purchased by the Government.      See

Benzel, 

567 N.W.2d at 557-58

.       A bottle is neither complex

nor difficult for a member to envision; thus, the purported

replica was not sufficiently explanatory or illustrative of

Sweeney’s testimony to either outweigh its potential

prejudicial effect or be of help to the members in

determining a fact at issue.    See Overstreet, 

877 N.E.2d at 168

; Saltzburg et al., supra, at 4-33.

     Third, the bottle purchased by the Government and

introduced as a Government exhibit had a label identifying



sufficiently explanatory or illustrative of relevant
testimony to be of potential help to the trier of fact.”);
Benzel, 

567 N.W.2d at 559-60

 (allowing the use of exemplar
ladders as demonstrative exhibits because they “aided in
clarifying certain issues” in the case and “were more
probative than prejudicial”).




                                9
United States v. Pope, No. 10-0447/AF

the drink as a detoxification drink that can “[c]leanse the

[b]ody” and eliminate toxins.    In contrast, the bottles

seen by Sweeney in Appellant’s possession had no labels at

all.   Thus, the Government exhibit was not in fact a

replica, demonstrative of the bottles allegedly seen by

Sweeney in Appellant’s possession.

       Fourth, the demonstrative evidence fails the M.R.E.

403 balancing test.   See White, 

23 M.J. at 88

.   While we

afford substantial discretion to a military judge’s

evidentiary rulings, where, as here, an objection invokes

the M.R.E. 403 balancing test but the military judge fails

to conduct the test on the record, less deference is due.

United States v. Collier, 

67 M.J. 347, 353

 (C.A.A.F. 2009);

see also United States v. Lebovitz, 

669 F.2d 894, 901

 (3d

Cir. 1982).

       Relevant evidence may be excluded when its probative

value is “substantially outweighed by the danger of unfair

prejudice . . . or misleading the members.”   M.R.E. 403.

Given that the demonstrative evidence in this case was not

relevant, had minimal to no probative value, and was not

even an accurate representation of the bottles described by

Sweeney, it was an abuse of discretion for the military

judge to admit it.    See United States v. Perry, 

37 M.J. 363, 364-65

 (C.M.A. 1993).


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United States v. Pope, No. 10-0447/AF

     However, we are convinced that the use of the green

bottle as a demonstrative exhibit had no substantial impact

on the findings.    The offense of wrongful use of cocaine

has two elements:   (1) that the accused used cocaine; and

(2) that the use by the accused was wrongful.    Manual for

Courts-Martial, United States pt. IV, para. 37.b(2) (2008

ed.) (MCM).   Because Appellant stipulated to the validity

of the positive urinalysis test, only the second element --

wrongfulness -- was contested at trial.   Cocaine usage is

not wrongful if the usage occurs “without knowledge of the

contraband nature of the substance.”    MCM pt. IV, para.

37.c(5)(C).   Drug use “may be inferred to be wrongful in

the absence of evidence to the contrary.”   MCM pt. IV,

para. 37.c(5).   In this case, the defense did not produce

any evidence showing that Appellant’s use of cocaine was

without knowledge, and thus not wrongful.

     Moreover, the Government presented evidence of

Appellant’s admission to Sweeney that she had “messed up.”

The Government also presented circumstantial evidence of

Appellant’s consciousness of guilt, including:   her nervous

behavior at the testing site, her initial failure to

provide a sufficient sample, and her eight-hour delay in

reporting to the drug testing center the following day.




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United States v. Pope, No. 10-0447/AF

                               2.

       Whether a jury was properly instructed is a question

of law reviewed de novo.    United States v. Schroder, 

65 M.J. 49, 54

 (C.A.A.F. 2007).   Failure to object to an

instruction given or omitted waives the objection absent

plain error.   Rule for Courts-Martial (R.C.M.) 920(f).

“The plain error standard is met when:   (1) an error was

committed; (2) the error was plain, or clear, or obvious;

and (3) the error resulted in material prejudice to

substantial rights.”    United States v. Maynard, 

66 M.J. 242, 244

 (C.A.A.F. 2008) (citation and quotation marks

omitted).

       When demonstrative evidence is admitted, the military

judge is required to properly instruct the members that the

evidence is for illustrative purposes only.   David A.

Schlueter et al., Military Evidentiary Foundations § 4-

13[4] (3d ed. 2007); see also Finley, 

75 F.3d at 1231

 (“The

trial judge must make sure that the jury is not misled

concerning the actual meaning of the object in the context

of the litigation.”).   Here, the military judge failed to

give such an instruction.   However, because the error did

not materially prejudice Appellant’s rights, it does not

constitute prejudicial plain error.   Maynard, 

66 M.J. at 244

.


                               12
United States v. Pope, No. 10-0447/AF

     In this case, there is little danger that the members

would have confused the demonstrative evidence for actual

evidence.   Testimony clearly established that the green

detoxification drink was bought by the Government as a

representative example of the types of drinks that

Appellant allegedly possessed.     When the drink was admitted

into evidence, an Air Force investigator testified that she

bought the drink at a store on “direction from legal to

. . . see if there was an item that pretty much matched up

to this description . . . and this was the closest that I

found.”   On cross-examination, defense counsel’s

questioning clarified that the investigator (1) had bought

the bottle at a store, and (2) never went to Appellant’s

room to see if she possessed similar bottles.    Under these

circumstances, the members would not have mistaken the

demonstrative evidence for substantive evidence.

Furthermore, given the overwhelming evidence of Appellant’s

guilt, we are convinced that the absence of a limiting

instruction had no substantial effect on the verdict.

                              B.

     Whether there has been improper reference to an

accused’s invocation of her constitutional right to remain

silent -- in testimony or argument -- is a question of law

that this Court reviews de novo.     United States v. Moran,


                              13
United States v. Pope, No. 10-0447/AF

65 M.J. 178, 181

 (C.A.A.F. 2007).   Where, as here, there

are no objections at trial, this Court reviews for plain

error.   United States v. Paige, 

67 M.J. 442, 449

 (C.A.A.F.

2009).

     Trial counsel elicited testimony that Pope was

“lackadaisical” and “didn’t care” when informed of her

positive drug test.   On direct examination, trial counsel

asked the Air Force investigator, “what was [Appellant’s]

reaction?” to being told of her urinalysis results.   The

investigator replied, “[v]ery lackadaisical, no response

whatsoever, just sat there as if she didn’t care.”    On

redirect, trial counsel revisited this line of inquiry.

When the investigator stated that “[a]gain, she acted as

though she didn’t care,” trial counsel asked, “[w]hat was

her demeanor like?”   The investigator responded, “[v]ery

lackadaisical.   I wouldn’t say she didn’t act surprised,

but I would just say maybe she just didn’t care.”

     In closing argument, trial counsel referenced this

testimony:   “You heard [the investigator] say that

[Appellant] actually appeared lackadaisical.   It didn’t

seem to faze her when she was notified that she tested

positive for cocaine because she had used cocaine.    She

wasn’t surprised that she had tested positive for cocaine.”




                              14
United States v. Pope, No. 10-0447/AF

     On the one hand, it is constitutional error to admit

evidence of -- or comment on in argument -- an accused’s

post-apprehension silence as evidence of guilt.    United

States v. Alameda, 

57 M.J. 190, 198-99

 (C.A.A.F. 2002);

M.R.E. 301(f)(3).   On the other hand, nontestimonial

demeanor evidence does not trigger Fifth Amendment

protections.   Pennsylvania v. Muniz, 

496 U.S. 582, 591-92

(1990); United States v. Cook, 

48 M.J. 64, 66

 (C.A.A.F.

1998).   Because the comments at issue could be viewed as

either nontestimonial demeanor evidence or as implicating

Appellant’s right to remain silent, it is not “plain, or

clear, or obvious” that they were comments on Appellant’s

constitutional right to remain silent.   See Paige, 

67 M.J. at 449

 (citation and quotation marks omitted).    While a

closer question, it is also not obvious that the comments

violated M.R.E. 304(h)(3) (stating that “[a] person’s

failure to deny an accusation of wrongdoing concerning an

offense for which at the time of the alleged failure the

person was under official investigation or was in

confinement, arrest, or custody does not support an

inference of an admission of the truth of the accusation”).

     But even if the comments constituted either

constitutional or evidentiary error, any such error was not

prejudicial under either a constitutional or


                              15
United States v. Pope, No. 10-0447/AF

nonconstitutional standard.   The three statements at issue

were minor comments in the context of the entire trial and

argument.   See Moran, 

65 M.J. at 187-88

.   The Government

presented overwhelming evidence of Appellant’s guilt,

including the uncontested urinalysis results, her admission

to Sweeney, and Appellant’s suspicious behavior at the

testing site.   Appellant’s theory of defense was unclear

and, therefore, not strong.   For these reasons, we are

convinced that the testimony and argument at issue were not

factors in obtaining Appellant’s conviction.

                              C.

     The cumulative effect of all plain errors and

preserved errors is reviewed de novo.     Cf. United States v.

Gray, 

51 M.J. 1, 61

 (C.A.A.F. 1999).    Under the cumulative-

error doctrine, “a number of errors, no one perhaps

sufficient to merit reversal, in combination necessitate

the disapproval of a finding.”     United States v. Banks, 

36 M.J. 150, 170-71

 (C.M.A. 1992) (citation and quotation

marks omitted).   This Court will reverse only if it finds

the cumulative errors denied Appellant a fair trial.    

Id. at 171

.

     In this case, there was overwhelming evidence of

Appellant’s guilt, and neither of the errors related to the

demonstrative evidence materially prejudiced Appellant’s


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United States v. Pope, No. 10-0447/AF

substantial rights.   Under these circumstances, Appellant

was not denied a fair trial.    See United States v.

Dollente, 

45 M.J. 234, 242

 (C.A.A.F. 1996) (“[C]ourts are

far less likely to find cumulative error . . . when a

record contains overwhelming evidence of a defendant’s

guilt.”).

                        III.    DECISION

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




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United States v. Pope, No. 10-0447/AF


       STUCKY, Judge (concurring in the result):

       I concur in affirming the judgment of the United States Air

Force Court of Criminal Appeals (CCA) but write separately

because (1) I disagree with the majority’s analysis of Issue I

-- whether the military judge abused his discretion by admitting

a bottle as demonstrative evidence -- and (2) I believe Issue

III -- whether it was plain error to allow trial counsel to

elicit testimony regarding and comment on Appellant’s right to

remain silent -- warrants some additional discussion.

                                  I.

       On March 24, 2008, Appellant was ordered to provide a

sample for a random urinalysis.    She reported, but the sample

she provided was of insufficient quantity and she was directed

to report again on the following day, March 25.    Rather than

doing so at 6:30 a.m. as directed, Appellant reported at 2:39

p.m.   The sample Appellant provided on March 25 tested positive

for cocaine metabolites.

       Airman First Class (A1C) Sweeney was assigned to the

Security Forces technical training school in the same training

squadron as Appellant.   On March 24, 2008, A1C Sweeney began

training and was assigned to room with Appellant.   They would be

roommates for the next three to four months.
United States v. Pope, No. 10-0447/AF


     Appellant told A1C Sweeney that, “when she would get messed

up, that her brother bought these drinks, these green drinks.”

Appellant said these drinks “clean out your system for a few

days.”   Appellant kept some of these drinks in the refrigerator.

A1C Sweeney testified that Appellant told her that, prior to

testing positive, Appellant had gone out with her brother and

“gotten messed up” or “messed up.”

     The testimony in the record provided that Appellant had the

drinks in her possession or would acquire them from her brother,

used them when she “messed up,” and that she “messed up” before

providing the sample in question.    While A1C Sweeney testified

that she did not remember seeing green bottles in the

refrigerator on March 24, and she could not remember whether she

had seen Appellant drink one before Appellant provided the March

25, 2008, sample, there was enough evidence for the panel to

infer that she had.   I believe this determination was a question

of fact and, as such, was for the panel to decide.

     More importantly, because the bottle is demonstrative --

not substantive or real -- evidence, if the underlying testimony

is admissible, the basis for the bottle’s admission for

illustrative purposes has been formed.   See United States v.

Humphrey, 

279 F.3d 372, 376-77

 (6th Cir. 2002) (upholding the

admission of 107 coin bags as demonstrative evidence used to

show what a large number of coin bags looks like); United States


                                 2
United States v. Pope, No. 10-0447/AF


v. McIntosh, 

23 F.3d 1454, 1456

 (8th Cir. 1994) (upholding the

admission of a firearm as demonstrative evidence when it was

used to illustrate the testimony of a witness that the witness

had seen the defendant carry a similar firearm); United States

v. Golden, 

671 F.2d 369, 371-72

 (10th Cir. 1982) (upholding the

admission of a flashlight as demonstrative evidence when a

witness testified that a similar flashlight was involved in the

case).

     A1C Sweeney did not see a label on the green drinks

Appellant acquired and occasionally used.   But A1C Sweeney was

able to provide detail as to the nature of the drink Appellant

used and a description of the bottles from which she drank.

They looked like “little banded milk bottles,” that were not

square-shaped.   They had “green twist cap[s],” and contained

green liquid that was “apple-flavored,” as A1C Sweeney

experienced when Appellant “broke the seal in front of [her]”

and offered her a drink.   Appellant told A1C Sweeney the drinks

were meant to “clean out your system” and “detox you.”   They

cost around fifty dollars.

     Having followed up on this description, Investigator West

was able to locate a product that was “right on target with the

description of the taste, the colors, everything.”   Trial

counsel showed this bottle to A1C Sweeney, and A1C Sweeney

testified that it looked “just the same minus the label.”


                                 3
United States v. Pope, No. 10-0447/AF


     Trial counsel sought to introduce a bottle of ProTox Xtreme

Strength as demonstrative evidence.   As this Court’s predecessor

explained, there is a “distinction . . . between the

admissibility of substantive evidence and that which is used

solely for demonstrative purposes.”   United States v. Heatherly,

21 M.J. 113, 115

 (C.M.A. 1985).   Demonstrative evidence is, by

definition, used to illustrate testimony rather than to “prove

or disprove a fact in issue.”   

Id.

 at 115 n.2; see also Triteck

Techs., Inc. v. United States, 

67 Fed. Cl. 727, 733-34

 (Fed. Cl.

2005); 2 McCormick on Evidence §§ 212-14 (6th ed. 2006).

     The majority correctly states that “‘[t]he decision to

permit or deny the use of demonstrative evidence generally has

been held to be within the sound discretion of the trial

judge,’” Heatherly, 

21 M.J. at 115

 n.2, but appears to apply a

tougher standard here.   United States v. Pope, __ M.J. __ (8)

(C.A.A.F. 2011).   I do not believe testimony must be “complex”

or “difficult . . . to envision,” in order for demonstrative

evidence to “be of help to the members in determining a fact at

issue.”   

Id.

 at ___ (9).   Demonstrative evidence is not rendered

inadmissible merely because a court believes the trier of fact

could have understood the testimony without a prop.1   See, e.g.,


1
  I note that this is not the only piece of demonstrative
evidence introduced in Appellant’s case. The Government was
also permitted to introduce a “sample collection cup,” of the
type that would have been used to collect the specimen. This

                                  4
United States v. Pope, No. 10-0447/AF


United States v. Aldaco, 

201 F.3d 979, 986

 (7th Cir. 2000)

(upholding the admissibility of a shotgun as demonstrative

evidence and listing cases).

     I would hold that, because the bottle illustrated the

testimony of A1C Sweeney and Investigator West, the military

judge did not abuse his discretion in admitting it as

demonstrative evidence.   If I had been the military judge in

this case, I probably would not have allowed the label in.     But

the label was not unduly prejudicial.   It was not overtly

incriminating and only provided that the drink’s purpose was

cleansing and detoxification of the system.   A1C Sweeney

testified that this was the exact purpose for which Appellant

used the green drinks.    The testimony also repeatedly made clear

to the panel that the bottles A1C Sweeney had seen in

Appellant’s possession did not have labels on them, so the

members would not have been confused.   On the basis of this

testimony, and because I disagree with the majority’s conclusion

that “the drinks had minimal to no probative value,” Pope, __

M.J. at ___ (10), I do not believe the bottle fails the Military




cup was used to illustrate the testimony of Staff Sergeant
Williams, a urinalysis observer. I cannot see why the panel
needed to see a sample cup, but I would not say the military
judge abused his discretion by allowing it in.

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United States v. Pope, No. 10-0447/AF


Rule of Evidence (M.R.E.) 403 balancing test.    Under the

circumstances, I cannot say admission of the bottle constituted

an abuse of discretion.

                                 II.

     I agree with the majority that it is only nontestimonial

evidence of demeanor that “does not trigger Fifth Amendment

protections.”    Pope, ___ M.J. at ___ (15).   I write separately

because I believe Appellant’s response to being confronted with

evidence of her guilt was testimonial and therefore protected

under the Fifth Amendment and M.R.E. 304(h)(3) (“A person’s

failure to deny an accusation of wrongdoing . . . does not

support an inference of an admission of the truth of the

accusation.”).   To me, the question is whether the fair response

doctrine, an exception to the Fifth Amendment protection,

applies to permit the testimony or comment.

     Defense counsel, in an Article 39(a), Uniform Code of

Military Justice (UCMJ), 

10 U.S.C. § 839

(a) (2006), session,

expressed her intent to present evidence on Appellant’s state of

mind after being confronted to lay the foundation for an excited

utterance, under the mistaken impression that Appellant had been

handcuffed on the way to the Security Forces building.    The

military judge determined that the admissibility of this




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United States v. Pope, No. 10-0447/AF


evidence would be determined in an Article 39(a), UCMJ, session

rather than in the presence of the members.   The follow-up

Article 39(a) session never occurred.

     After the conclusion of the Article 39(a) session, on

direct examination before the court-martial panel, the trial

counsel elicited testimony from Investigator West regarding

Appellant’s “reaction” to and “demeanor” when being confronted

with evidence of her guilt by a law enforcement officer.

Investigator West testified that, after being informed that her

sample had come back positive for cocaine, Appellant was “[v]ery

lackadaisical,” and did not respond.

     During cross-examination, defense counsel asked

Investigator West whether Appellant had been handcuffed on the

way to the Security Forces building.    Upon hearing that she had

not, defense counsel apparently abandoned any attempt to lay the

foundation for an excited utterance.    As a result, defense

counsel rested the defense case without inquiring into

Appellant’s state of mind when being confronted with evidence of

her guilt.

     During closing arguments, trial counsel argued that the

panel should “consider the surrounding circumstances when . . .

thinking about [Appellant’s] knowledge [that she wrongfully

ingested cocaine],” and continued on to remind the panel that

“[s]he wasn’t surprised that she had tested positive for


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United States v. Pope, No. 10-0447/AF


cocaine,” that “[i]t didn’t seem to faze her . . . because she

had used cocaine.”   By commenting on Appellant’s failure to

respond, trial counsel was asking the members to infer guilt on

the basis that an innocent person would have denied the

accusation.

     Trial counsel may not do this if the accused has not opened

the door under a limited exception such as the fair response

doctrine.   See United States v. Robinson, 

485 U.S. 25, 32-34

(1988); Doyle v. Ohio, 

426 U.S. 610, 617-19

 (1976); Griffin v.

California, 

380 U.S. 609

, 612-14 (1965); United States v. Moran,

65 M.J. 178, 181-82

 (C.A.A.F. 2007); United States v. Alameda,

57 M.J. 190, 198-99

 (C.A.A.F. 2002); United States v. Cook, 

48 M.J. 236, 240

 (C.A.A.F. 1998); United States v. Toro, 

37 M.J. 313, 318

 (C.M.A. 1993); United States v. Fitzpatrick, 

14 M.J. 394, 398-99

 (C.M.A. 1983); see also United States v. Velarde-

Gomez, 

269 F.3d 1023, 1028-29

 (9th Cir. 2001); United States v.

Rivera, 

944 F.2d 1563, 1568-69

 (11th Cir. 1991).

     Had defense counsel actually inquired into Appellant’s

state of mind during the trial, trial counsel could have been

permitted under the fair response doctrine to make a limited

inquiry into her state of mind to counter a defense claim that

she was in an excited state.   But defense counsel, having

discovered that Appellant had not been handcuffed, abandoned

this idea and did not open the door.


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United States v. Pope, No. 10-0447/AF


     Moreover, trial counsel belied this purpose by later

arguing that Appellant’s lack of response went to her

consciousness of guilt.   However, I agree with the majority that

the comments were harmless beyond a reasonable doubt.




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