Lead Opinion
Opinion of the Court
During January and February 1990, appellant was tried by a military judge sitting alone as a general court-martial at Bergstrom Air Force Base, Texas. Contrary to his pleas, he was found guilty of rape (2 specifications), robbery (2 specifications), sodomy, and aggravated assault, in violation of Articles 120, 122, 125, and 128, Uniform Code of Military Justice, 10 USC §§ 920, 922, 925, and 928, respectively. He was sentenced to a dishonorable discharge, confinement for 20 years, total forfeitures, and reduction to airman basic. On May 3,1990, the convening authority approved the sentence. On July 31, 1991, the Court of Military Review denied appellant’s petition for a new trial, and on May 27, 1992, that court affirmed the findings and sentence. The court then granted appellee’s motion for reconsideration and withdrew its prior deсision.
On June 22,1993, this Court granted appellant’s petition for grant of review on the following issues:
I
WHETHER THE AIR FORCE COURT OF MILITARY REVIEW ERRED WHEN FINDING NO PREJUDICE IN THE MILITARY JUDGE’S ADMISSION OF INADMISSIBLE EXPERT OPINION IN SENTENCING ON THE FUTURE DANGEROUSNESS OF APPELLANT.
II
WHETHER THE AIR FORCE COURT OF MILITARY REVIEW ERRED BY NOT SETTING ASIDE THE FINDINGS AND SENTENCE OR REMANDING THE CASE BACK FOR A NEW CONVENING AUTHORITY ACTION DUE TO APPELLANT’S CONVENING AUTHORITYS SEXUAL MISCONDUCT; MISCONDUCT WHICH LED THE AIR FORCE COURT OF MILITARY REVIEW TO REMAND OTHER CASES IN THE SAME TIME FRAME BACK FOR NEW CONVENING AUTHORITY ACTION.
We agree with the lower court’s no-prejudice analysis, but we also hold that it erred in concluding in the first instance that the expert testimony on appellant’s future dangerousness was inadmissible.
The evidence of record shows that, from the spring of 1988 through the summer of 1989, appellant had perpetrated violent acts against four women (S.K., M.A, J.W., and D.W.) in the area of South Austin, Texas. In early 1988, S.K. agreed to sexual intercourse with appellant in exchange for $45.00. In a
On July 12, 1989, J.W. accepted a ride from appellant. He began fondling her leg and breasts, and, after stopping the car on the outskirts of town, he grabbed her purse as he pushed her out of the car. As she stood along side appellant’s car, he “jerked” the car to the left, knocking her down, and drove off. Then appellant turned around, drove towards J.W., and hit her. He stopped the car, looked back at her and saw her lying on the ground with blood flowing from her head, and put the car in reverse as if to hit her again. A motorcycle and another car approached the scene, prompting appellant to drive away. J.W. was hospitalized for 1 week. Finally, on August 2, 1989, D.W. accepted appellant’s offer to ride in his ear. At some point, аppellant stopped the car, pulled out a knife, and forced her to perform fellatio on him and engage in nonconsensual sexual intercourse. As she attempted to put her clothes on, appellant pushed her out of the car. He took $28.00 from her pocket, tossed her pants out of the ear, and drove away.
Appellant was found guilty of two spеcifications each of rape (involving D.W. and M.A.) and of robbery
During the sentencing portion of appellant’s court-martial, the Government called only one witness — Colonel William Grant. Without defense objection, the military judge accepted Col. Grant “as an expert in the area of forensic psychiatry.” Based on interviews with each victim, Col. Grant first testified as to the impact of appellant’s misconduct on each of the victims. Next, Col. Grant delivered what amounted to a detailed lecture on “the predictability of recidivism rates, and violence[.]” At the conclusion of Col. Grant’s discussion of statistical recidivism, the factors contributing tо reoffense, and an assessment of appellant’s misconduct in terms of these factors, the following colloquy ensued:
TC: ... Have you been provided the OSI investigative report concerning this case?
A: Yes, I have.
Q: Have you been privy to the basic testimony that has gone on in this court-martial?
A: Yes, sir.
Q: Based upon your knowledge, your training, your experience in the field of forensic psychiatry together with the knowledge, information and understanding that you have concerning this case, concerning the evidence, do you have an opinion as to how dangerous this accused is?
ADC: Your Honor, I would object to him giving an opinion on this. That calls for total speculation. He has no data base. He’s never interviewed the accused, and he’s being asked to predict the future and speculate. No person can do that. I would objeсt to any testimony along that line.
MJ: What is your response?
TC: Your Honor, we believe that question is an appropriate question for an expert witness in the field of forensic psychiatry who has become familiar with the facts and circumstances of this case. He is certainly familiar with the underlying statistics in the research in this area.
MJ: I will overrule the objection. You may answer it.
*137 A: Well, let’s look at the data that we all have. He robs [S.K.] at knife point. Does this make him dangerous? It might. With just the use of the knife, you cross the line somehow when you use a weapon. It indicates a willingness to cause harm and a means to cause harm. So, even that one incident might indicate that he was dangerous.
He robs, rapes, and sodomizes [D.W.]. Again, there’s a knife involved. Once it’s an incident. Twice is a series. I’m getting worried that he is dangerous and violent.
He rapes [M.A.]. Again, with a knife. When she tries to run away, he chases her down and tries to drag her back to the car. Is this enough to call him dangerous?
He runs down [J.W.]. Breaks her leg in three places. He is intent as he does it, on causing grievous bodily harm. I see a pattern. Once is an incident, twice is a series, four times is clearly a pattern. And, it’s a very disturbing pattern involving sex, knives, and violence. I think I would have no choice but to conclude that this is a dangerous man.
(Emphasis added).
The Court of Military Review considered admissibility of Col. Grant’s testimony and held “that ‘future dangerousness’ testimony is not relevant to rehabilitative potential under RCM 1001(b) (5).”
I
The lower court concluded that the military judge was not influenced by Col. Grant’s predictions of appellant’s future dangerousness.
Nevertheless, we do not accept the broad conclusion made by the Court of Military Review regarding admissibility of expert opinions or predictions about future dangerousness under RCM 1001(b) (5). It provides:
Evidence of rehabilitative potential. The trial counsel may present, by testimony or oral deposition in accordance with RCM 702(g) (1), evidence, in the form of opinion, concerning the accused’s previous performance as a servieemember and potential for rehabilitation. On cross-examination, inquiry is allowable into relevant and specific instances of conduct.
In United States v. Horner,
In reaching its conclusion, the Court of Military Review relied on two separate opinions — one in United States v. Aurich, supra at 96-97 n.* (Cox, J., concurring); and the other in United States v. Claxton, supra at 164-65 (Everett, S.J., concurring) — for the proposition that “psychiatric assessments of a prisoner’s future dangerousness” are irrelevant to determining rehabilitative potential.
In Stinson, this Court held that a family advocacy therapist, Ms. McIntyre, could opine about an accused’s “prognosis for rehabilitation.”
Likewise, in Gunter, this Court held that a qualified expert, having “‘a rational basis’ upon which to form an opinion[,]” may provide testimony about the “chances” of overcoming drug addiction.
Admittedly, this Court’s focus in Stinson was on the рarticular evidentiary question whether Ms. McIntyre’s opinion was based on a sufficient factual basis, see Mil.R.Evid. 703. However, there is absolutely nothing in the opinion that suggests that this Court generally considered predictions of future dangerousness irrelevant under RCM 1001(b) (5), Evidence of rehabilitative potential. Cf. United States v. Mays,
Moreover, this Court cited with approval a Supreme Court decision upholding admissibility of “predictions of future dangerousness” during sentencing.
II
Appellant next argues that the Air Force Court’s decision in United States v. Gregg, ACM 28848,
The convening authority here was accused of having abused his military position by acts of sexual misconduct. Appellant Gregg is convicted of predatory sexual misconduct, taking advаntage of a teenage girl as to whom he had, at the father’s request, established a relationship that was supervisory and approximated parental. Appellant Kroop is convicted of conduct unbecoming an officer by engaging in adulterous affairs with an officer under his supervision and an enlisted woman. Appellant Moore is convicted of several aсts involving sexual misconduct, including many offenses charged as conduct unbecoming an officer. The issue we now face is that at the time he acted on these eases, this convening authority came under suspicion of sexual misconduct himself. At what appears to have been the end of the investigation, the convening authority retired, leaving the allegations unsubstantiated but unresolved.
Congress, acquainted with the military profession’s long history of honorable service in this country, must have assumed that the convening authority would always be an honorable person whose integrity was not seriously questioned. When, as here, reports broadcast that a convening authority has been suspected of a kind of predatory sexual misconduct that is similar to that of which an accused has been convicted, and when, unvindicated, he and the Air Force leave the suspicion unresolved in our community, the esteem for the military justice system in that command inevitably sours. The effectiveness of law depends on the esteem in which it is held by those who are governed. To maintain that respect, we find in these cases that the interests of justice require that each appellant have his case reviewed by a different convening authority. See, e.g., United States v. Claxton,32 MJ 159 (CMA 1991) (Article 66 is “a carte blanche to do justice”).
Unpub. op. at 4 (emphasis added).
The lower court refused to grant relief on this issue based on a qualitative difference between the offenses committed by appellant and “the misconduct of which the commander was suspected[.]”
The decision of the United States Air Force Court of Military Review on reconsideration is affirmed.
Notes
. Judge Royce C. Lamberth of the United States District Court for the District of Columbia, sitting by designation pursuant to Article 142(f), Uniform Code of Military Justice, 10 USC § 942(f).
. Although the Judge Advocate General has not certified for this Court's review the holding of the Court of Military Review that Colonel Grant's expert opinion testimony of appellant’s future dangerousness was inadmissible, see Art. 67(a) (2), UCMJ, 10 USC § 867(a) (2) (1989), this Court may rule on this issue. But cf. United States v. Sales,
. The court below erroneously stated that appellant was convicted of three rapes and one robbery.
. There were two unrelated companion cases similarly decided in the same opinion. United States v. Kroop, ACM 28424,
Concurrence Opinion
(concurring in part and in the result):
The Court of Military Review held that the military judge erred in permitting Dr. Grant to testify as he did,
Then, however, the majority gratuitously visits the ungranted question whether thе Court of Military Review was correct in its underlying holding in appellant’s favor that the testimony was improper. In footnote 2 of its opinion, the majority explains its willingness to do so, even though this Court has not been asked forthrightly to review the correctness of that ruling via a certification from the Judge Advocate General. See Art. 67(a) (2), Uniform Code of Military Justice, 10 USC § 867(a) (2) (1989).
Since we dispose of the granted issue concerning prejudice as we do, no possible “manifest injustice” could be worked by our declining to expand the ambit of our review in this way. See Arizona v. California,
Accordingly, without deciding whether Dr. Grant’s testimony was admissible, I accept as the law of the case that it was not; and so, as to Part I of the majority opinion, I join only the first paragraph, which holds that the testimony did not unfairly prejudice appellant.
Concurrence in Part
(concurring in part and in the result):
The first granted issue asks only whether the court below erred in finding no prejudice. I agree with the majority that the expert testimony did not prejudice appellant. I see no reason to tender an advisory opinion on the merits of the decision below that the testimony was inadmissible. Accordingly, I concur in the majority’s holding that there was no prejudice, and I concur in the result.
I agree with the resolution of Issue II.