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.

United States v. Thompkins, No. 02-0186/AR

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.
information to A1C Smallwood.

Airman Griffin relayed this

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

United States v. Thompkins, No. 02-0186/AR

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 Appellants 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.

United States v. Thompkins, No. 02-0186/AR

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

drivers 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

United States v. Thompkins, No. 02-0186/AR

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 counsels 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

counsels 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

United States v. Thompkins, No. 02-0186/AR

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 judges 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

wasnt 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 counsels 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.

United States v. Thompkins, No. 02-0186/AR

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 courts rulings or
defense counsels objections, assistant trial counsels 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 courts view to assistant trial counsels 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

United States v. Thompkins, No. 02-0186/AR

conducted a surveillance of Appellants dormitory building, and
videotaped Appellants actions.
how he videotaped Appellant.

Trial counsel asked SA Adair

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 Fultons 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 judges
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

United States v. Thompkins, No. 02-0186/AR

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
witnesss 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 counsels 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

judges 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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United States v. Thompkins, No. 02-0186/AR

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

United

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 counsels conduct on the trial, and

not counsels personal blameworthiness.

Id. at 220.

In

stressing assistant trial counsels inexperience and

nervousness, as well as the unintentional nature of the
assistant trial counsels 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.
States v. Rushatz, 31 M.J. 450, 456 (C.M.A. 1990).

United

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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United States v. Thompkins, No. 02-0186/AR

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 counsels arguments
from true evidence, emphasized the merely descriptive role of
opening statements, and directed the members to disregard
counsels mention of withdrawn exhibits.

Absent evidence to the

contrary, court members are presumed to comply with the military

judges 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 counsels

conduct in this case, the military judges timely remedial
actions prevented the manifest injustice that would necessitate
a mistrial.

In the clear absence of manifest injustice, the

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United States v. Thompkins, No. 02-0186/AR

military judge did not abuse his discretion by denying the
defenses motion for mistrial.
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.

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