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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.
On September 4, 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. Owens 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. § 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. § 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.
Was Owen improperly impeached to his substantial prejudice by questions concerning omissions from his application for warrant officer candidate?
The court held that it was proper for trial counsel to attempt to impeach Owens by eliciting on cross-examination his admission to a prior act of intentional falsehood. However, in asking these questions for this purpose, he was prohibited from suggesting evidence to the members which was inadmissible. The court found the evidence was admissible and the probative value outweighed the danger of unfair prejudice. However, it was an error for the military judge to allow the United States to suggest that Owens had previously been arrested for assault and battery on his ex-wife. The court held that the error did not prejudice Owens. The court affirmed the judgement against Owens.