United States v. Sergeant First Class PAUL E. THOMAS
ARMY 20150269
| A.C.C.A. | Oct 24, 2016Background
- Appellant (SFC Paul E. Thomas) pleaded guilty at a general court-martial to willful disobedience, violations of lawful general regulations (including improper relationships with two subordinates), false official statement, and two assaults; sentenced to BCD, 6 months confinement, and reduction to E-1 (convening authority approved BCD, 120 days confinement, reduction to E-4 under a PTA).
- At sentencing the defense called nine witnesses (five testified) including five who said they would serve with appellant again (mitigation/retention evidence).
- In rebuttal the government called four witnesses (PVT AP and SGT AC—victims who had immunity; MAJ JT—the original investigator; CPT JA—company commander) who testified they would not want to serve with appellant.
- Appellant contended the rebuttal was improper under United States v. Griggs because the government witnesses were not representative of a “consensus view of the command,” and some had not been identified by defense witnesses as wanting to serve with appellant.
- The military judge admitted the rebuttal testimony; appellant appealed alleging misinterpretation of Griggs and improper rebuttal evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether government may rebut defense retention testimony with witnesses who say they would not serve with accused | Rebuttal witnesses (including victims/immunized witnesses and original investigator) were not shown to represent the command consensus and thus improper under Griggs | Griggs allows government rebuttal to prove defense view is not command consensus; rebuttal witnesses were familiar with appellant and proper foundation was laid | Court affirmed: rebuttal testimony was proper; military judge did not abuse discretion |
| Whether use of victims who testified under immunity as rebuttal witnesses was impermissible | Victims/immunized witnesses cannot be treated as command-representative rebuttal evidence | A witness need only have proper foundation and personal knowledge; being a victim or immunized does not automatically preclude rebuttal value | Court held their testimony could properly rebut defense retention evidence |
| Whether rebuttal impermissibly raised specter of command influence by presenting command views | Defense argued government’s rebuttal could improperly imply command pressure or influence | Court cited precedent limiting command parade; rebuttal must not amount to presenting a unified command endorsement, only show lack of consensus | Court found no specter of command influence here; testimony simply showed not every member supported retention |
| Whether foundation for lay opinion on willingness to serve was adequate | Defense argued no defense witness had previously claimed those specific rebuttal witnesses wanted to serve with appellant, so foundation lacking | Government established that rebuttal witnesses knew appellant and could opine on whether they would serve with him; Griggs does not require precise mirroring of defense witness identities | Court held proper foundation was laid and admission was within judge’s discretion |
Key Cases Cited
- United States v. Griggs, 61 M.J. 402 (C.A.A.F. 2005) (government may rebut defense witnesses’ retention testimony to show it is not the command consensus)
- United States v. Eslinger, 70 M.J. 193 (C.A.A.F. 2011) (trial evidence-rule and foundation limits on lay opinion at sentencing; rebuttal allowed but must not raise command-influence concerns)
- United States v. Aurich, 31 M.J. 95 (C.M.A. 1990) (early articulation that government may rebut defense retention testimony to show lack of command consensus)