United States v. Aycock

39 M.J. 727, 1993 CMR LEXIS 665, 1993 WL 582120
CourtU.S. Navy-Marine Corps Court of Military Review
DecidedDecember 30, 1993
DocketNMCM 90 01782
StatusPublished

This text of 39 M.J. 727 (United States v. Aycock) is published on Counsel Stack Legal Research, covering U.S. Navy-Marine Corps Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Aycock, 39 M.J. 727, 1993 CMR LEXIS 665, 1993 WL 582120 (usnmcmilrev 1993).

Opinion

PER CURIAM:

Contrary to his pleas, appellant was convicted by a general court-martial composed of members of two specifications of conspiracy to distribute methamphetamine, two specifications of distribution of methamphetamine, and one specification of possession with intent to distribute methamphetamine, in violation of Articles 81 and 112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 881 and 912a. Appellant was also convicted in accordance with his pleas of two specifications of unauthorized absence, in violation of Article 86, UCMJ, 10 U.S.C. § 886. The members adjudged a sentence of confinement for 4 years, total forfeiture of all pay and allowances, reduction to pay grade E-l, and a bad-conduct discharge. The convening authority approved the sentence.

I.

In his second assignment of error,1 appellant asserts that the military judge committed prejudicial error in refusing to permit the defense to present extrinsic evidence of alleged bias and motive to lie by a government witness. We review this assigned error to determine whether the military judge abused his discretion in making his ruling.

Lance Corporal (LCpl) S was the sole witness called by the government in support of Charge I and Specification 2 of Charge II of the Additional Additional Charges. He testified under a grant of immunity and was an admitted drug dealer. He further testified that he bought drugs from appellant. During cross-examination, trial defense counsel asked about a pool game in which LCpl S allegedly lost a $195 wager to appellant. The thrust of defense counsel’s inquiry was to show that the witness lost the money, left the pool room, and then returned demanding his money back. Defense counsel asked LCpl S whether he returned to the pool room and requested another two persons present to make appellant return the money to him but that they told him “tough luck.” LCpl S denied the entire incident and said that if the two persons came into court and testified as defense counsel suggested he would “call them a bald-faced liar.” Record at 202. Thus, trial defense counsel was granted a fair opportunity to raise through cross-examination this basis for the witness’' bias against appellant and motive to testify falsely. This opportunity meets the accused’s Sixth Amendment right to confront and cross-ex[729]*729amine the witness against him. See Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986).

The defense called one of the persons who allegedly was present during the pool game and asked this witness to describe the incident. Upon trial counsel’s objection, the military judge excluded this testimony on the ground that such evidence “really would not be very germane to anything before the court.” Record at 381.

The U.S. Supreme Court has said that a witness’ bias is “always relevant as discrediting the witness and affecting the weight of his testimony.” Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974) (quoting 3A J. Wigmore, Evidence § 940 p. 775 (Chadbourn rev. 1970)). In most jurisdictions, the rule is that bias is not a collateral issue. Although certain methods of impeachment may not be supported by extrinsic evidence, see Rule for Courts-Martial (R.C.M.) 608(b), Manual for Courts-Martial, United States, 1984, “[bjias, prejudice, or any motive to misrepresent may be shown to impeach the witness either by examination of the witness or by evidence otherwise adduced,” R.C.M. 608(e) (emphasis added); see United States v. Owen, 24 M.J. 390 (C.M.A. 1987), cert. denied, 484 U.S. 1026, 108 S.Ct. 750, 98 L.Ed.2d 763 (1988).

Proof of bias is perhaps the most effective attack on an adult witness who steadfastly testifies to certain events under circumstances in which perception and memory are realistically unassailable. Evidence of bias is especially critical in cases wherein the government’s case relies exclusively or primarily on the testimony of a single witness. In this case, the witness’ credibility was in part impeached by his receipt of a grant of immunity and his status as a drug dealer. The fact of governmental immunity evidences a more specific inducement to testify falsely, that is, to obtain the favor of the government in order to reduce criminal liability. In this case, trial defense counsel sought to show an additional, independent compelling motivation to lie — anger or resentment towards the accused. Certainly, the loss of money through gambling may result in animosity in the loser towards the one who benefits. See, e.g., United States v. Hudson, 970 F.2d 948 (1st Cir.1992) (discussing bias based in part on allegation appellant won $5000 in a card game from a government witness). Moreover, if believed, the extrinsic evidence would have had the collateral consequence of showing the witness’ willingness to lie under oath.

A trial judge may, however, limit inquiries into potential bias regarding subjects of slight or marginal relevance or if the bias can be developed by other evidence. United States v. Burns, 25 M.J. 817 (A.F.C.M.R.), petition denied, 27 M.J. 1 (C.M.A.1988).

The test for abuse of discretion where the trial judge has limited testimony on bias is whether the factfinder had sufficient other information, without the excluded evidence, to make a discriminating appraisal of the possible biases and motivations of the witnesses. In other words, has a reasonably complete picture of the witness’ apparent prejudices been developed?

Id. at 819 (citing United States v. Tracey, 675 F.2d 433 (1st Cir.1982); United States v. Fortes, 619 F.2d 108 (1st Cir.1980)).

LCpl S steadfastly denied that the incident took place, and the members had no evidence before them by which they could conclude that the witness was untruthful in his denial and therefore was biased against appellant and thus had a motive to testify falsely against him. Although the members had other reasons to disbelieve LCpl S, the military judge’s exclusion of this evidence resulted in an incomplete picture of the witness’ reasons and motive to lie and left the members to speculate as to his possible bias against the accused.

Thus, we conclude that the military judge abused his discretion in excluding extrinsic evidence of the witness’ bias and motive to testify falsely. We conclude that the error was prejudicial as to those convictions in which LCpl S’s credibility and testimony were substantial factors in the conviction. His testimony was “the heart of the Government’s case,” United States v. Bahr, 33 M.J. 228, 234 (C.M.A.1991), as to Charge I and its Specification and specification 2 of the Additional Additional Charge II.

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Related

Davis v. Alaska
415 U.S. 308 (Supreme Court, 1974)
Delaware v. Van Arsdall
475 U.S. 673 (Supreme Court, 1986)
United States v. Francis P. Tracey
675 F.2d 433 (First Circuit, 1982)
United States v. Richard B. Hudson, Sr.
970 F.2d 948 (First Circuit, 1992)
United States v. Fisher
21 M.J. 327 (United States Court of Military Appeals, 1986)
United States v. Sales
22 M.J. 305 (United States Court of Military Appeals, 1986)
United States v. Rivera
23 M.J. 89 (United States Court of Military Appeals, 1986)
United States v. Smith
23 M.J. 118 (United States Court of Military Appeals, 1986)
United States v. Owen
24 M.J. 390 (United States Court of Military Appeals, 1987)
United States v. Burns
25 M.J. 817 (U S Air Force Court of Military Review, 1988)
United States v. Davis
26 M.J. 445 (United States Court of Military Appeals, 1988)
United States v. Peoples
29 M.J. 426 (United States Court of Military Appeals, 1990)
United States v. Davis
32 M.J. 166 (United States Court of Military Appeals, 1991)
United States v. Bahr
33 M.J. 228 (United States Court of Military Appeals, 1991)

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Bluebook (online)
39 M.J. 727, 1993 CMR LEXIS 665, 1993 WL 582120, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-aycock-usnmcmilrev-1993.