25 M.J. 779 | U.S. Army Court of Military Review | 1988
Lead Opinion
OPINION OF THE COURT
The appellant was tried by a military judge sitting as a general court-martial at Fort Hood, Texas. Pursuant to his pleas, he was convicted of wrongful distribution of marijuana in violation of Article 112a, Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. § 912a (Supp II 1984). The appellant was sentenced to a bad-conduct discharge, confinement for ten months, forfeiture of all pay and allowances, and reduction to the grade of Private E-l. In consonance with the provisions of the pretrial agreement, the convening authority approved the sentence as adjudged but suspended confinement in excess of nine months for a period of six months.
The appellant asserts that the military judge erred by admitting, over his objection, the testimony of three government witnesses during the sentencing phase of his court-martial.
Evidence of uncharged misconduct admissible on findings in accordance with Manual for Courts-Martial, United States, 1984, Military Rule of Evidence [hereinafter M.C.M., 1984 and Mil.R.Evid., respectively] 404(b)
Manual for Courts-Martial, United States, 1984, Rule for Courts-Martial [hereinafter R.C.M.] 1001(b)(4) pertinently provides that “[t]he trial counsel may present evidence as to any aggravating circumstances directly relating to or resulting from ... the offenses of which the accused has been found guilty.” (emphasis added). We note that there would not have been occasion for the appellant’s threatening words and gestures absent the commission of the offense and the Article 32 investigation.
Further, an accused’s attitude toward the offense of which he has been convicted is directly related to that offense and relevant to fashioning a sentence appropriate to both the offense and the offender. United States v. Wright, 20 M.J. 518, 520 (A.C.M.R.), petition denied, 21 M.J. 309 (C.M.A.1985); United States v. Pooler, 18 M.J. 832, 833 (A.C.M.R.), petition denied, 19 M.J. 317 (C.M.A.1985). In this regard, we infer from the appellant’s menacing acts that his attitude as to the offense was both willful and remorseless. That is, if after the offense, he could seek to chill the testimony of the principal witnesses against
Since we view the evidence as having particular significance in judging the appellant’s potential for rehabilitation and the danger he represented to society, we resolve the Mil.R.Evid. 403 balancing test against the appellant and conclude that the evidence was properly admitted. Accordingly, we deem appellant’s claim of error to be without merit.
The findings of guilty and the sentence are affirmed.
. The appellant styled his assignment of error as follows:
THE IMPROPER AGGRAVATION TESTIMONY OVER APPELLANTS OBJECTION WAS*780 ERROR AS SUCH INFORMATION WAS BEYOND THE SCOPE OF R.C.M. 1001(b)(4) AND ACTED TO UNREASONABLY PREJUDICE APPELLANT.
. Mil.R.Evid. 404(b) pertinently provides that "[ejvidence of other crimes, wrongs, or acts ... may ... be admissible ... [to prove] motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”
. The complained of words and gestures would have been admissible on the merits, as evidence of consciousness of guilt under Mil.R.Evid. 404(b), United States v. Stark, 19 M.J. 519, 526 (A.C.M.R.1984), petition granted on other grounds, 21 M.J. 84 (C.M.A.1985), as well. Admissibility analysis, however, is in the alternative. In the instant case it proceeds under the pertinent sentencing rule — R.C.M. 1001(b)(4).
Concurrence Opinion
concurring:
I concur with the majority. Aggravation evidence is not limited to matters that flow directly from the perpetration of a crime, such as the nature and extent of injuries suffered by an assault victim. It also may include evidence that develops as a consequence of one being charged with the crime. It seems to me that since perjury by an accused, who testified at his trial, may be considered as a factor that reflects adversely on his repentance and potential for rehabilitation, United States v. Cabebe, 13 M.J. 303 (C.M.A.1982); United States v. Warren, 13 M.J. 278 (C.M.A.1982), then too should evidence of witness tampering be considered on sentencing for the same reasons. Obviously, appellant wanted to either terrify the witnesses so they would not testify or influence their testimony in his favor. In any event, like a perjurer, he intended to subvert the truth-finding function of the court.
Furthermore, the attempt to intimidate potential witnesses, who were to testify as to the guilt of appellant, is a matter directly related to and resulting from the referral of the charge against appellant. Therefore, when appellant was convicted of the charge pertinent to the witnesses’ testimony, evidence of threats against them qualified for admissibility pursuant to the Manual for Courts-Martial, United States, 1984, Rule for Courts-Martial 1001(b)(4).