UNITED STATES, Appellee

v.

Tomal R. THOMPKINS, Airman First Class

U.S. Air Force, Appellant

No. 02-0186

Crim. App. No. 33630

United States Court of Appeals for the Armed Forces

 Argued October 16, 2002

 Decided January 28, 2003

CRAWFORD, C.J., delivered the opinion of the Court, in

which GIERKE, EFFRON, BAKER, and ERDMANN, JJ., joined.

Counsel

For Appellant: Major Natasha V. Wrobel (argued); Colonel

Beverly B. Knott, Major Patricia A. McHugh, and Major Jeffrey A.

Vires, (on brief).

For Appellee: Major Linette I. Romer (argued); Lieutenant

Colonel Lance B. Sigmon (on brief).

Military Judge: Gregory E. Pavlik.

THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
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Chief Judge CRAWFORD delivered the opinion of the Court.

Appellant was tried by a general court-martial consisting

of a panel of officer members at Sheppard Air Force Base (AFB),

Texas. Appellant was found guilty of willful disobedience of a

superior commissioned officer and assault with a loaded firearm,

in violation of Articles 90 and 128, Uniform Code of Military

Justice [hereinafter UCMJ], 10 U.S.C. §§ 890 and 928 (2002), and

sentenced to a bad-conduct discharge, confinement for 15 months,

forfeiture of all pay and allowances, and reduction to the grade

of airman basic. The United States Air Force Court of Criminal

Appeals affirmed the findings and sentence.

We granted review of the following two issues:

I. WHETHER THE EVIDENCE IS LEGALLY SUFFICIENT TO

SUPPORT THE CONVICTION FOR THE ADDITIONAL

CHARGE OF WILLFUL DISOBEDIENCE OF HIS SUPERIOR

COMMISSIONED OFFICER BY VIOLATING A NO-CONTACT

ORDER WITH A1C DOUGLAS SMALLWOOD.

II. WHETHER THE MILITARY JUDGE ERRED TO THE

SUBSTANTIAL PREJUDICE OF APPELLANT WHEN HE

FAILED TO GRANT THE DEFENSE MOTION FOR MISTRIAL

ON THE GROUNDS OF PROSECUTORIAL MISCONDUCT.

For the reasons set forth below, we affirm.

I. WILLFUL DISOBEDIENCE OF THE NO-CONTACT ORDER

A heated dispute between Army and Air Force personnel,

including Appellant, led to an off-post altercation in which a

civilian bystander was wounded by gunfire. During the course of

the subsequent investigation, Appellant received an order from
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his commander, Colonel Timothy Lillard, that included the

following:

Effective immediately, you will not have any contact

(verbal, written, or physical) with [6 named persons,

including A1C Douglas Smallwood]. . . . If any of these

individuals attempts to contact you through verbal or

written communication, either directly or indirectly,

you will terminate the contact immediately and report

the attempt to me or your First Sergeant immediately.

Colonel Lillard testified that the purpose of the order was

to ensure that Appellant did not discuss the investigation

with any of the individuals listed in the order.

While under this order, Appellant approached Airman Regina

Griffin, the girlfriend of A1C Smallwood, and said, “I need my

[compact disk],” referring to a compact disk then in the

possession of A1C Smallwood. Airman Griffin relayed this

information to A1C Smallwood. Several days later, A1C Smallwood

approached Appellant and gave him a compact disk. This contact

was videotaped by personnel from the Air Force Office of Special

Investigations (AFOSI). The record does not indicate whether

the disk contained commercially recorded music, or whether it

contained writings or other information entered by an

individual.

Prior to trial on the merits, the military judge rejected a

defense challenge to the legality of the order. Appellant has

not challenged the validity of that ruling in the present

appeal. The granted issue addresses the legal sufficiency of
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the evidence. The test for legal sufficiency of the evidence

“is whether, considering the evidence in the light most

favorable to the prosecution, a reasonable factfinder could have

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, 319 (1979)).

Article 90 of the UCMJ punishes one who “willfully disobeys

a lawful command of his superior commissioned officer.”

“‘Willful disobedience’ is an intentional defiance of

authority,” and not “[f]ailure to comply with an order through

heedlessness, remissness, or forgetfulness . . . .” Manual for

Courts-Martial, United States (2002 ed.) Part IV, para.

14.c.(2)(f). In the present case, there is evidence that

Appellant initiated contact with A1C Smallwood through Airman

Griffin, that Airman Griffin contacted A1C Smallwood, and that

there was subsequent contact between A1C Smallwood and

Appellant. In addition to the evidence of events leading up to

the prohibited contact, the AFOSI videotape provided the members

with evidence of Appellant’s demeanor in connection with the

exchange of the compact disk. Under these circumstances, the

members of the court-martial could reasonably find beyond a

reasonable doubt that Appellant willfully disobeyed the order by

taking action to initiate and engage in contact prohibited by

the order.
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Public policy supports a strict reading of this no-contact

order. A military commander who has a legitimate interest in

deterring contact between a service member and another person is

not required to sort through every contact to determine, after

the fact, whether there was a nefarious purpose. A service

member, like Appellant, who initiates contact contrary to the

terms of such an order, is subject to punishment under either

Article 90 or Article 92, 10 U.S.C. § 892 (2002), without the

necessity of proof that the contact was undertaken for an

improper purpose.

II. FAILURE TO GRANT A MISTRIAL FOR PROSECUTORIAL MISCONDUCT

At the start of trial, defense counsel made a motion in

limine seeking the exclusion of certain evidence. The military

judge ruled that the issue of whether Appellant had a valid

driver’s license at the time of the offense was inadmissible.

The military judge also barred mention of Airman Tabois, and

instructed the prosecution to “preclude the special agent, or

whoever is going to testify about the videotape from talking

about Airman Tabois.”

The prosecution also sought rulings on several exhibits.

Prosecution Exhibit 5 was a two-page exhibit consisting of two

pictures of the shooting victim. The first picture was taken on

the night of the shooting, and the second picture was taken a

few weeks after the shooting. Defense counsel objected to both
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photographs based on foundation, and objected to the second

photograph as to relevance in findings. The military judge

admitted the first page or picture, but not the second,

instructing the prosecution that they could “separate them and

offer the second page as another exhibit at a later point.”

During assistant trial counsel’s opening statement, the

military judge sustained two objections from defense counsel

based on the argumentative nature of the comments. On two other

occasions, the military judge sua sponte interrupted assistant

trial counsel and instructed him not to make “conclusions” or

“characterize” the evidence. After the fourth time, the

military judge instructed the court members that arguments and

opening statements are not evidence, and that the opening

statement is designed to tell the members what is going to be

presented and is not a second argument. The military judge

asked the members to listen very carefully to the evidence,

explaining that much of what had been said thus far had been

impermissible argument.

The prosecution called the shooting victim, Mr. Keith

Stevenson, as its first witness. During assistant trial

counsel’s questioning, he asked Mr. Stevenson about how having a

bullet surgically removed from his arm had impacted him.

Defense counsel objected, and the assistant trial counsel

promptly withdrew the question. Assistant trial counsel asked
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Mr. Stevenson questions about Prosecution Exhibit 5. He then

asked Mr. Stevenson if he recognized Prosecution Exhibit 10, the

previously excluded page two of Prosecution Exhibit 5. The

military judge immediately called for a session under Article

39(a), UCMJ, 10 U.S.C. § 839(a)(2002).

In response to the military judge’s questioning, assistant

trial counsel stated that he thought the military judge excluded

the photograph “[b]ecause there was no time frame set as to when

the photo was taken.” The military judge reminded assistant

trial counsel that he excluded the photograph “[b]ecause it

wasn’t connected to findings.” Assistant trial counsel

apologized and noted that the members had not seen the exhibit.

The military judge admonished assistant trial counsel for

“overstep[ping] [his] bounds,” but noted that he did not believe

there was “any malice intended at all.” The military judge then

instructed trial counsel to monitor his assistant counsel.

Defense counsel moved for a mistrial under Rule for CourtsMartial 915. The prosecution opposed the motion, stating that

the assistant trial counsel’s actions were “due to inexperience

and probably a lack of guidance” but were not deliberate.

Defense counsel argued that the issue on the motion for mistrial

was prejudice, rather than whether the actions were innocent or

willful.
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In denying the motion, the military judge noted that counsel

had Prosecution Exhibit 10 for Identification, which was

formerly page 2 of Prosecution Exhibit 5 for Identification,

facing away from the court members. The military judge added

that he did not “find anything even close to a standard for a

mistrial,” and that he intended to give a further instruction

reminding the members that Prosecution Exhibit 10 for

Identification was not relevant and would be withdrawn.

With respect to the challenged opening statement, the

military judge stated that typically in opening statements there

is some argument that is elicited from each side, and that as

opposed to a deliberate disregard for the court’s rulings or

defense counsel’s objections, assistant trial counsel’s actions

were the result of inexperience. The military judge concluded

that his prior instruction to the court members, as well as an

additional instruction when they returned, were more than

adequate to give the court members the accurate perception of

the court’s view to assistant trial counsel’s actions, and that

nothing had occurred to cast substantial doubt upon the fairness

of the proceeding. The military judge then instructed the court

members to disregard any mention of Prosecution Exhibit 10, as

it was not relevant and was withdrawn.

The prosecution presented testimony from Special Agent (SA)

Alan Adair concerning the investigation. On October 1, 1998, he
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conducted a surveillance of Appellant’s dormitory building, and

videotaped Appellant’s actions. Trial counsel asked SA Adair

how he videotaped Appellant. Special Agent Adair testified that

he was in the Security Police building and was filming through

the window blinds. He explained that the building he was

observing contained Airman Fulton’s old dormitory room, and then

stated that Airman Tabois also lived in that area. The military

judge called an Article 39(a) session, and chastised trial

counsel for not adequately instructing his witness to avoid

mentioning Airman Tabois in accordance with the military judge’s

previous evidentiary rulings. The military judge additionally

required the prosecution to change Prosecution Exhibit 8 by

redacting all names other than A1C Smallwood.

Special Agent Adair also testified that he interviewed

Appellant for a second time on August 20, 1998, and that

Appellant changed his statement and said he was involved in the

situation at the Whataburger. Trial counsel asked SA Adair to

describe what Appellant said happened after the shooting.

Special Agent Adair testified that Appellant told him they went

back to the Normandy Apartments. Special Agent Adair then said

that Appellant moved to “the passenger side of the vehicle and

allowed Airman Fulton to drive, because he was not a licensed

driver in the State of Texas.” Defense counsel objected and
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asked for an Article 39(a) session. Trial defense counsel then

renewed his motion for a mistrial.

The military judge admonished trial counsel again for the

witness’s testimony about things he previously ruled

inadmissible. However, the military judge denied the motion for

a mistrial, noting the absence of manifest injustice and stating

that he would give a curative instruction, would allow

cross-examination of the witness and questions by court members,

and would not permit redirect examination. He further explained

that while counsel’s actions certainly amounted to gross

negligence, they failed to cast substantial doubt upon the

fairness of the proceeding. The military judge expressly said

that he did not find any intentional disregard for his prior

evidentiary rulings.

Our second task on appeal is to determine whether the

military judge erred in failing to grant a mistrial on the

grounds of prosecutorial misconduct. Relief for a military

judge’s failure to grant a mistrial is available only upon clear

evidence of abuse of discretion. United States v. Taylor, 53

M.J. 195, 198 (C.A.A.F. 2000) (citing United States v. Dancy, 38

M.J. 1, 6 (C.M.A. 1993)). The military judge in this case did

not abuse his discretion in failing to grant a mistrial for

prosecutorial misconduct.
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Prosecutorial misconduct is generally defined as “action or

inaction by a prosecutor in violation of some legal norm or

standard, e.g., a constitutional provision, a statute, a Manual

rule, or an applicable professional ethics canon.” United

States v. Meek, 44 M.J. 1, 5 (C.A.A.F. 1996). In Smith v.

Phillips, 455 U.S. 209, 219 (1982), the Court opined that “the

touchstone of due process analysis in cases of alleged

prosecutorial misconduct is the fairness of the trial, not the

culpability of the prosecutor.” Accordingly, courts should

gauge the overall effect of counsel’s conduct on the trial, and

not counsel’s personal blameworthiness. Id. at 220. In

stressing assistant trial counsel’s inexperience and

nervousness, as well as the unintentional nature of the

assistant trial counsel’s errors, the military judge in this

case misdirected some of his attention to the personal

culpability of the prosecutor.

Nevertheless, the judge ultimately reached the proper

result, correctly noting that a mistrial is a drastic remedy to

be used only sparingly to prevent manifest injustice. United

States v. Rushatz, 31 M.J. 450, 456 (C.M.A. 1990). A mistrial

is appropriate only “whenever circumstances arise that cast

substantial doubt upon the fairness or impartiality of the

trial.” United States v. Barron, 52 M.J. 1, 4 (C.A.A.F. 1999)

(quoting United States v. Waldron, 15 C.M.A. 628, 631, 36 C.M.R.
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126, 129 (1966)). In ruling on a mistrial motion, the military

judge should examine the timing of the incident, the identity of

the factfinder, the reasons for a mistrial, and potential

alternative remedies. United States v. Harris, 51 M.J. 191, 196

(C.A.A.F. 1999) (citing United States v. Donley, 33 M.J. 44, 47

(C.M.A. 1991)). Most importantly, the military judge should

consider the “desires of and the impact on the defendant.” Id.

The ameliorative actions of the military judge in the

present case secured the fairness and impartiality of the trial.

The military judge gave the members several curative

instructions that effectively distinguished counsel’s arguments

from true evidence, emphasized the merely descriptive role of

opening statements, and directed the members to disregard

counsel’s mention of withdrawn exhibits. Absent evidence to the

contrary, court members are presumed to comply with the military

judge’s instructions. Tennessee v. Street, 471 U.S. 409, 415

(1985); Lakeside v. Oregon, 435 U.S. 333, 340 n.11 (1978);

United States v. Holt, 33 M.J. 400, 403 (C.M.A. 1991); Rushatz,

31 M.J. at 456. While instructions alone may not cure all

instances of misconduct, given the overall effect of counsel’s

conduct in this case, the military judge’s timely remedial

actions prevented the manifest injustice that would necessitate

a mistrial. In the clear absence of manifest injustice, the
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military judge did not abuse his discretion by denying the

defense’s motion for mistrial.

The decision of the United States Air Force Court of

Criminal Appeals is affirmed.