United States v. Arevalo

11 C.M.A. 417, 11 USCMA 417, 29 C.M.R. 233, 1960 CMA LEXIS 305, 1960 WL 4485

• Court: United States Court of Military Appeals
• Decided: April 22, 1960
• Docket: No. 13,613
• Status: Published

Opinions

Opinion of the Court

ROBERT E. Quinn, Chief Judge:

The accused was convicted of four specifications alleging violations of the Uniform Code, and sentenced to a dishonorable discharge, total forfeitures, reduction to private, and confinement at hard labor for two years. On review, the convening authority affirmed, but a board of review • set aside and dismissed one of the charges because of failure of proof, and modified the sentence by reducing the period of confinement to eighteen months. We granted review to consider the effect of the admission, over defense counsel’s objection, of testimony by prosecution witnesses which purported to show other acts of misconduct by the accused.

Testifying in his own behalf, the accused was cross-examined by the prosecution about many of the other alleged incidents of misconduct. He specifically denied any criminality. The prosecution was bound by his denials. United States v Russell, 3 USCMA 696, 14 CMR 114. Moreover, a great deal of the prosecution’s testimony merely creates suspicion that a wrongful act was committed; it does not establish the commission of an offense. United States v Kelley, 7 USCMA 584, 23 CMR 48. The challenged testimony is replete with impermissible innuen-does and insinuations. See United States v Long, 2 USCMA 60, 6 CMR 60. For example, one witness was permitted to testify that when stationed in Japan he met the accused and one day accompanied him “on liberty.” Toward the end of the evening, the accused allegedly invited the witness to share a hotel room with him and “suggested . . . [they] go to bed.” The witness “declined and said that . . . [he] had other plans for the evening.” Considering the record as a whole, we are left with the conviction that the challenged testimony was inadmissible and prejudicial to the accused. United States v Warren, 6 USCMA 419, 20 CMR 135.

The decision of the board of review is reversed. The findings of guilty and the sentence are set aside. A rehearing may be ordered.

Judge FERGUSON concurs.