Lead Opinion
Opinion
On Aрril 8, 1987, the accused pleaded guilty without benefit of a pretrial agreement to one specification each of destruction of military property, use of marijuana, larceny, and housebreaking, in violation of Articles 108, 112a, 121, and 130, Uniform Code of Military Justice, 10 USC §§ 908, 912a, 921, and 930, respectively. A general court-mаrtial consisting of officer members, sitting at Coast Guard Group, Corpus Christi, Texas, sentenced the accused to a bad-conduct discharge, confinement for 2}k years, and reduction to E-l. The convening authority approved the sentence.
On September 30, 1989, the Court of Military Review approved the findings but set asidе the sentence and authorized a rehearing on sentence.
I
WHETHER THE COURT OF MILITARY REVIEW ERRED AS A MATTER OF LAW BY HOLDING THAT A COMMANDING OFFICER’S TESTIMONY ON THE REHABILITATIVE POTENTIAL OF THE ACCUSED IS LIMITED TO REBUTTAL EVIDENCE ONLY BY THE DECISION OF UNITED STATES v. OHRT,28 M.J. 301 (CMA 1989).
II
WHETHER THE COURT OF MILITARY REVIEW ERRED AS A MATTER OF LAW BY FAILING TO APPLY MIL.R.EVID. 103(a) WHERE THE DEFENSE DID NOT OBJECT AT TRIAL, DID NOT RAISE THE ISSUE ON APPEAL AND THE COAST GUARD COURT OF MILITARY REVIEW DID NOT MAKE A FINDING OF PLAIN ERROR.
III
WHETHER THE COURT OF MILITARY REVIEW ERRED AS A MATTER OF LAW BY HOLDING THAT THE MILITARY JUDGE ERRED IN HIS RULING THAT THE DEFENSE HAD “OPENED THE DOOR” AND THEREFORE, PERMITTED THE TRIAL COUNSEL TO CROSS-EXAMINE THE ACCUSED ON HIS STATEMENT REGARDING THE USE OF AMPHETAMINES, BECAUSE THE COURT OF*161 MILITARY REVIEW HELD THAT IT CONSTITUTED UNCHARGED MISCONDUCT.
IV
WHETHER THE COURT OF MILITARY REVIEW ERRED AS A MATTER OF LAW IN DETERMINING THAT THE MILITARY JUDGE ERRED IN ADMITTING EVIDENCE OF SUBSEQUENT MISCONDUCT OF THE ACCUSED AFTER HE RULED THAT THE DEFENSE HAD CREATED A FALSE IMPRESSION REGARDING HIS PRETRIAL CONFINEMENT, THEREBY PERMITTING REBUTTAL EVIDENCE IN ACCORDANCE WITH UNITED STATES v. STRONG,17 M.J. 263 (CMA 1984).
V
WHETHER THE COURT OF MILITARY REVIEW ERRED AS A MATTER OF LAW BY SUA SPONTE CONJECTURING ON THE JURISDICTIONAL SIGNIFICANCE OF PRETRIAL CONFINEMENT IN THIS CASE, WHICH WAS NOT CHALLENGED AT TRIAL OR ON APPEAL, AND BY INVITING LITIGATION OF SAID THEORY AT A REHEARING ON SENTENCING.
The gist of the accused’s misconduct was allegedly initiated by his use of marijuana. A few days after this alleged use, the accused and his unit were subjected to a mandatory urinalysis. Mil.R.Evid. 313(b), Manual for Courts-Martial, United States, 1984. Fearing detection, the accused abused his position as Officer of the Day by breaking into the facility where the samples were being stored. He removed to a hiding place a quantity of samples; and he tampered with some of them, including his own. Shortly thereafter, the evidence was inadvertently discovered by another servicemember. The investigation that ensued led to the accused’s confession of the foregoing.
Lack of Rehabilitative Potential Testimony
During the sentencing hearing, the accused’s commander, а Captain in the Coast Guard, was called as a prosecution witness. He testified that he had known the accused for “[approximately two and a half years.” Asked about his observation of the accused’s duty performance, the Captain testified merely that he had “seen him on the hangar deck and аlso signed off on his performance ratings.”
Regarding the accused’s “rehabilitative potential” (see RCM 1001(b)(5), Manual, supra ), the Captain opined, without defense objection:
I do not believe Petty Officer Claxton is rehabilitative as a member of my command and the Coast Guard because, when I gave him trust and confidence as a First Class Petty Officer as Officer of the Day, he failed to maintain that trust and confidence which I place in people of that rank and position.
(Emphasis added.)
The Court of Military Review, in its opinion of September 30, 1989, translated that language into the following:
[A]ny first class petty officer assigned as Officer of the Day, who, in that capacity, commits the offenses found by the Court, should be punitively discharged.
As early as Horner, we held that testimony concerning rehabilitative potential is to be an “assessment of ... [an accused’s] character and potential, ... [not] the commander’s view of the severity of the offense.”
We disagree, however, with the Court of Military Review that the Government can only introduce rehabilitative-potential evidence in rebuttal.
Waiver
As indicated, the dеfense did not object to the Captain’s testimony that the accused lacked rehabilitative potential due to the nature of his offense. Such lack of objection can amount to waiver. Mil.R. Evid 103(a)(1). However, the Court of Military Review (
It [the court] may affirm only such findings of guilty and the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved.
A clearer carte blanche to do justice would be difficult to express. See United States v. Evans,
Evidence of Uncharged Use of “Speed”
After the prosecution presented its sentencing case-in-chief, the defense presented its evidence. During the defense case, the accused testified under oath. He briefly described his confessed marijuana usage; his concerns about its impending discovery through urinalysis and the impact on his theretofore unblemished 16-year military career; as well as the actions he took in desperation to preserve his livelihood.
The Government took the view that the accused was suggesting to the court-martial that this had been an isolated episode of drug usage, and the Government believed this to be false. In particular, the Government had a witness who would testify that the accused admitted (at the time his pretrial confinement commenced) to being addicted to “speed.” On cross-examination of the accused, the Government sought to ask the accused whether he had made such an admission. The defense objected, but the military judge agreed with the Government’s view of the tenor of the accused’s testimony. The question was permitted; the accused denied having made such a statement.
At an Article 39(a), UCMJ, 10 USC § 839(a), examination of this government witness, the military judge concluded that any such statement was obtained in violation of Artiсle 31(b), UCMJ, 10 USC § 831(b). Accordingly, the witness was not permitted to testify; the judge ruled that the “speed”-addiction question should never have been asked; and the judge instructed the court members to disregard the entire subject.
The Court of Military Review agreed with the military judge’s reversal of his
The court’s lack of definitiveness on the issue is apparently explained by the relative unimportance it accorded the issue, for Chief Judge Baum stated:
[The accused] argues that the suggestion he was a habitual user of amphetamines is so totally contradictory to the evidence in extenuation and mitigation of a first class petty officer with 16 years of outstanding and unblemished military service that the members could not erase it from their minds at the judge’s request. While we tend to agree, we believe, nonetheless, that the judge’s instruction may have been adequate to expunge any prejudicial effect on the sentence, if that particular offending testimony had been the only reference to inadmissible uncharged misconduct. It was not.
The Government asks us to decide whether the Court of Military Review erred in concluding that the accused had not “opened the door” and to hold that the Government’s cross-examination sought proper rebuttal evidence. Assuming that to be the basis of the Court of Military Review’s holding, the entire question hinges on whether the accused’s direct testimоny implied that his confessed marijuana use was an isolated incident. The military judge obviously believed that it contained such implication; the Court of Military Review presumably believed that it did not.
We resolve the issue much as we did the preceding one. We are charged with resolving questions of law, Art. 67(c), but we are cоnfronted with two diametrically opposed interpretations of the same testimony. Such interpretations are primarily for factfinders. As a matter of law, a reasonable factfinder could fairly derive either implication from the accused’s testimony. As a matter of law, therefore, the Court of Military Review — a factfinder— was not wrong in concluding that the accused did not open the door and, therefore, that the rebuttal was improper. In this respect, the Court of Military Review’s interpretation governs.
Evidence of Uncharged Subsequent Misconduct
During the defense case on sentencing, the accused’s wife testified. On direct examination by defense сounsel, she was asked this question and gave this response:
Q How has this — how has your husband’s court-martial affected you?
A It’s devastated me. I have no family and they terminated my husband’s pay. I couldn’t — I had no income. I couldn’t afford to stay in Corpus Christi. I’m living with my sister in a small house. She’s not financially secure, so, I’ve had to take my son, who is a patient at Bayview Psychiatric Hospital, out of the hosрital. He’s now living with relatives in Georgia when he should be in the hospital and I just, you know, have nothing left.
(Emphasis added.)
This response generated a question from a court member as to why the accused’s pay was stopped, and the military judge explained:
[B]asically, the Coast Guard Pay Regulations provide that, when a member is put into confinement, in this case, pretrial confinement, after his enlistment has expired, he does not receive pay and allowances.
The Government, nonetheless, took the view that this state of evidence permitted it to introduce evidence that the accused had subsequently been arrested by сivil authorities and ordered into pretrial confinement as a result. The military judge agreed that the defense had perpetrated
an erroneous impression as to why the accused is in pretrial confinement and I*164 think that erroneous impression must be clarified.
Accordingly, the judge permitted the Government to call a witness who testified about the aсcused’s subsequent arrest and confinement.
The Court of Military Review was clearly astounded by these extrapolations,
Conjecture and Invitation
In both of its opinions in this case, the Court of Military Review raised, in footnote, questions about the propriety of pretrial confinement of a servicmember in a “nо-pay” status.
The decision of the United Statеs Coast Guard Court of Military Review ordering a rehearing on sentence is affirmed.
Notes
The General Counsel of the Department of Transportation serves as the Judge Advocate General of the Coast Guard except in time of war. Art. 1(1), Uniform Code of Military Justice, 10 USC § 801(1).
Concurrence Opinion
(concurring in the result):
The Coast Guard Court of Military Review concluded from its reading of United States v. Ohrt,
The language of RCM 1001(b)(5) — which was promulgated by the President in the exercise of his powers under Article 36 of the Uniform Code of Military Justice, 10 USC § 836 — gives the Government the right to offer “evidence, in the form of opinions concerning the accused’s previous performance as a servicemember and potential for rehabilitation.” The location of this provision would seem to indicate that the offering of such evidence was not limited to purposes of rebuttal — which is treated separately in RCM 1001(d).
Although the Drafters’ Analysis of RCM 1001(b)(5) is meager, Manual, supra at A21-64 (Change 3), it is clear that referenсe of the rule to “potential for rehabilitation” should be translated to read “lack of potential for rehabilitation.” No one can imagine a prosecutor presenting testimony that the accused has an excellent potential for rehabilitation.
The difficulty that I have with testimony like that offered by the Government in this case is that it appears to me that, usually, potential for rehabilitation is not in issue until and unless the defense raises it during the sentencing proceedings. Conceivably, evidence offered on the merits might in some way suggest that an accused could be readily rehabilitated; such a situation, however, would be quite extraordinary. As we
Thus, I conclude that, on grounds of relevance and notwithstanding the relative location of RCM 1001(b)(5) mentioned earlier, testimony — whether from the commanding officer or anyone else — as to an accused’s lack of potential for rehabilitation should be excluded until rebuttal.
With respect to the other issues decided by this Court, I agree fully with the lead opinion. As to the concerns expressed by the Court of Military Review about Claxton’s “no pay” status, see
The only exception would be if the military judge allowed the Government to present such evidence initially as a matter of convenience for witnesses after ascertaining that the defense would be claiming that the accused has rehabilitation potential.
Concurrence Opinion
(concurring in part and in the result): I agree with my Brothers’ resolution of the uncharged-misconduct issue, but I disagree with their resolution of the waiver issue. See United States v. Evans,