Lead Opinion
OPINION OF THE COURT
Tried by special court-martial, the accused was convicted, pursuant to his pleas, of transferring and possessing marihuana and, despite his pleas, of transferring marihuana, in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934. The approved sentence extends to a bad-conduct discharge, confinement at hard labor for 4 months, forfeiture of $200.00 pay per month for 4 months, and reduction to airman basic. The United States Air Force Court of Military Review affirmed in a short-form opinion. We granted review on the following issue:
WHETHER THE STAFF JUDGE ADVOCATE VIOLATED THE RULE OF UNITED STATES V. GOODE,1 M.J. 3 (C.M.A.1975), WHEN HE ATTACHED AN ADDENDUM TO THE REVIEW DISCUSSING NEW MATTERS, AND FAILED TO ALLOW THE DEFENSE COUNSEL AN OPPORTUNITY TO REVIEW AND RESPOND TO THAT NEW MATERIAL.
We hold that he did and reverse.
The granted issue requires us to interpret the purpose of our mandate in United
The post-trial review of the staff judge advocate was prepared on December 4,1979. While the review was in the hands of defense counsel, the post-trial processing time passed 90 days. After defense counsel waived any Goode response, the staff judge advocate properly prepared “supplemental comments” to the review in which he discussed the delay in terms of United States v. Banks,
A similar issue was presented in United States v. Meyer,
Compliance with the Goode rule was not intended to generate an endless succession of defense challenges and staff judge advocate responses thereto in the manner suggested by appellate defense counsel’s assignment of error. Such a requirement could place an intolerable burden upon convening authorities to afford an accused the speedy post-trial disposition of his case. Furthermore, although corrective action would be necessary where the staff judge advocate’s response to a defense rebuttal introduces erroneous, inadequate or misleading matters which counsel for the accused is not thereafter permitted to challenge, clearly that situation did not arise in the case before us.
Later, in United States v. London,
Thus, in accordance with United States Air Force precedents, if the addendum contains matters that are “erroneous, inadequate or misleading,” United States v. Meyer, supra at 756 (this is the same language as in Goode), or that are “highly detrimental to the accused,” United States v. London, supra at 908, a second service of the review plus addendum must be made upon the defense counsel for his comments. Underlying these decisions is the assumption that the matters complained of are “new,” or else they could be considered “waived” by the terms of Goode itself. If the curative effects of Goode are to be maximized, the rule must be that if any new matter is contained in the supplemental portion of the staff judge advocate’s review produced after the defense counsel had his opportunity for comment, the supplemental material must be served on the defense counsel in the same manner as the original review.
We wish to make clear that we find no impropriety in the action of the staff judge advocate in supplementing his review in order to accommodate changes in law occasioned by a recent decision. It is simply that where new matter
The decision of the United States Air Force Court of Military Review is reversed. The action of the officer exercising general court-martial authority is set aside. The record of trial is returned to the Judge Advocate General of the Air Force for submission to a convening authority for a new action after trial defense counsel has an opportunity to examine and comment on the addendum to the review of the staff judge advocate.
Notes
. This request came during the presentencing portion of the trial. The military judge denied the request on the ground that the purported testimony pertained only to “a collateral matter” and was “not really germane to the issues before this court.” Even if such a witness were discovered and even if he would testify that he observed the informant smoking marijuana while he was working for the Office of Special Investigations, which the informant denied, such evidence would only go to the credibility of the informant, a matter which normally cannot be attacked by collateral evidence. United States v. Lyon,
. This same issue was raised before the Air Force court by appellate defense counsel in a Motion to Set Aside Action of the Supervisory Authority. In denying the Motion that court found that there was new material in the supplemental comments, but “[s]ince the issue was omitted from the staff judge advocate’s review, and the defense counsel had the opportunity to comment upon the omission, but declined to do so, we find that the omission, if error, was
. The discussion of the witness’ credibility in connection with the Barnes decision included for the first time an extensive discussion of the military judge’s denial of the motion.
Dissenting Opinion
(dissenting):
I fear my Brothers have allowed the procedure set forth in United States v. Goode,
In United States v. Barnes, supra at 116-17, the Court made the following statement:
Error not of constitutional dimension may be found harmless only upon the determination either that the finder of fact was not influenced by it, or that the error had but a slight effect on the resolution of the issues of the case. United States v. Quinto,582 F.2d 224 , 235 (2nd Cir. 1978). The result orientation of the harmless error doctrine is essential to its operation, particularly when the challenged error involves a right of the defendant which permits him to develop his defense to its maximum competence. United States v. Dougherty, 154 U.S.App. D.C. 76, 91-92,473 F.2d 1113 , 1127-28 (D.C.Cir.1972). Concomitant with the result orientation of the doctrine is consideration of the comparative strength of the government’s case. Wood v. United States,342 F.2d 708 (8th Cir. 1965).
As Barnes made clear, allowing introduction of extrinsic evidence contradicting denial of other acts of misconduct by a witness, in connection with the merits of the legal controversy, has been a long-standing evidentiary rule, and was explicitly examined in United States v. Lyon, 15 U.S.C. M.A. 307, 312,
If such misconduct be relevant and material, it is provable directly and quite without regard to whether the persons involved therein deny its commission.
This rule is in perfect accord with paragraph 138f(3), Manual for Courts-Martial, United States, 1969 (Revised edition), which states:
Evidence . . . [relating} to the character of persons other than the accused is admissible when it is relevant to an issue in the case.
In light of these authorities, I must determine whether the present error was prejudicial. In the instant case, defense counsel attempted to obtain a continuance in order to investigate the speculated testimony of a recently discovered witness, with a view toward establishing the meritorious nature of a motion to reopen the case after findings. Expressly, this testimony was foreseen as a direct challenge to the informant’s testimony that he had not “consumed” a controlled substance since high school. I conclude that even had this witness testified as speculated, the comparative strength of the Government’s case was such that the result would not have changed. Wood v. United States, supra. I am unable to conclude that the maximum potential of this accused’s case was impaired to his prejudice.
Turning to the original review, I observe that its discussion of Airman Martin’s credibility was of a generalized nature without any reference to the motion for continuance. In contrast the supplemental discus
The question of the incorrect ruling was known to the defense counsel at the conclusion of the trial. He could have afforded himself the opportunity to proceed with a brief under Article 38(c), Uniform Code of Military Justice, 10 U.S.C. § 838(c). See United States v. Babcock, Dkt. No. 40,148 (C.M.A.1982), (Fletcher J., concurring in the result).