United States v. Baker

2 M.J. 360, 1977 CMR LEXIS 896
CourtU S Air Force Court of Military Review
DecidedJanuary 19, 1977
DocketACM 22116
StatusPublished
Cited by11 cases

This text of 2 M.J. 360 (United States v. Baker) is published on Counsel Stack Legal Research, covering U S Air Force 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. Baker, 2 M.J. 360, 1977 CMR LEXIS 896 (usafctmilrev 1977).

Opinion

DECISION

LeTARTE, Chief Judge:

Contrary to his pleas and Article 92, Uniform Code of Military Justice, 10 U.S.C. § 892, the accused was convicted of selling lysergic acid diethylamide (LSD), and of three specifications alleging sales of heroin, two specifications of using heroin and a single specification of transferring heroin, the latter offenses being alleged as violations of Article 134, 10 U.S.C. § 934. He was sentenced to dishonorable discharge, forfeiture of $300.00 per month for 18 months, confinement at hard labor for 18 months and reduction in grade to airman basic. The convening authority disapproved the findings of guilty of Specifications 4 and 5 of the Additional Charge (wrongful use and sale of heroin), and approved the sentence as adjudged.1

Appellate defense counsel have assigned 15 errors for our consideration, but we deem it unnecessary to discuss all of these. Some are without merit and others are rendered moot by our disposition of those remaining.

Except for the LSD sale offense (Charge I and its specification), which allegedly occurred on 1 March 1976, at Lompoc, California, all of the offenses were charged as continuing course of conduct over a period of several months in 1975 and 1976. For the most part, the Government’s evidence against the accused was furnished by three airmen, Tinley, Monhollen and Brannan, who testified under grants of immunity. According to their testimony, on divers occasions during the period from 1 July 1975 through 31 December 1975, the accused used and sold heroin at Yandenberg Air Force Base, California (Specifications 1 and 2, Additional Charge). Similarly, from 1 January 1976 until 11 May, on many occasions, the accused sold heroin at Lompoc, California (Specification 3, Additional Charge).2

Monhollen’s testimony related solely to the LSD sale on 1 March 1976, and to two sales of heroin which took place on the same day. At the time of these offenses, Monhollen was acting as an informant for the Air Force Office of Special Investigations (OSI), and his participation in the crimes was monitored by OSI special agents.3 The other witnesses, Tinley and Brannan, were accomplices in the crimes about which they testified. All three witnesses admitted considerable prior drug abuse. Further, Tinley revealed that he had “lied” in his pretrial statements given [363]*363under oath,4 and Brannan related on cross-examination that the OSI agents purposely refrained from advising him of his rights so that his pretrial statement, in which he initially implicated the accused, could not be used against him. Finally, Monhollen testified under the impression that, after trial, he might receive some payment under the OSI Incentive Program for his assistance in bringing the accused to trial.5

Prior to findings, the military judge instructed the court that Brannan, Tinley and Monhollen were accomplices,6 “in whole or in part,” and that their testimony was thus “of doubtful integrity” and should be considered with great caution, “even though apparently credible.” He did not, however, provide the ancillary instruction that “a conviction cannot be based upon uncorroborated testimony given by an accomplice in a trial for any offense, if . the testimony is self-contradictory, uncertain or improbable; ” nor did he caution the court that even if “apparently corroborated,” testimony of an accomplice which is adverse to the accused is of questionable integrity and is also to be considered “with great caution.” Manual for Courts-Martial, 1969 (Rev), paragraph 153a.

The military judge also advised the court of the general rules concerning the credibility of witnesses. He added that the three witnesses were informers under the law and that the testimony of an informer, “or any witness whose self-interest or attitude is shown to be such as might tend to prompt testimony unfavorable to the accused, should always be considered with great caution and weighed with great care.” Finally, the military judge instructed the court that any references to prior inconsistent statements made by the three witnesses were admitted solely for the purpose of impeaching their credibility and could not be considered for the purpose of establishing the truth of the matters asserted therein.7

At the conclusion of these instructions, the defense counsel indicated he had no objections thereto nor requests for additional instructions. He had, however, earlier requested, without success, that the following instruction be given:

The purpose of this advice [as to accomplice testimony] is to call to your attention a matter affecting the witness’ credibility, that is, his motive to falsify his testimony, in whole or in part, because of his obvious self interest under the circumstances. For example, an accomplice may be motivated to falsify his testimony because of his own self interest in obtaining immunity from prosecution and/or leniency for a prior prosecution.

Appellate defense counsel contend that the military judge erred in not giving this instruction. We disagree although certainly the instruction would have provided the court with a more precise yardstick by which to measure accomplice testimony. We are concerned, nevertheless, with the adequacy, in general, of the military judge’s instructions pertaining to accomplices.

[364]*364A conviction cannot be based upon an accomplice’s uncorroborated testimony if it is self-contradictory, uncertain or improbable; and even if apparently corroborated and apparently credible, the testimony of an accomplice which is adverse to the accused is of questionable integrity and is to be considered with great caution. Manual for Courts-Martial, supra, paragraph 153a; United States v. Moore, No. 22110, 2 M.J. 749 (A.F.C.M.R. 14 January 1977). When appropriate, this rule should, upon defense request, be included in the military judge’s general instructions. Manual for Courts-Martial, ibid.

Failure of the defense to request instructions on the weight to be given accomplice testimony may preclude assertion of the error on appeal unless the absence of the instruction has resulted in plain error or a miscarriage of justice.8 United States v. Diaz, 22 U.S.C.M.A. 52, 46 C.M.R. 52 (1972). Consequently, when such testimony is of “pivotal importance to the Government’s case” in that “the accomplice is the crucial prosecution witness on whose credibility the outcome of the case hinges,” the military judge is required to instruct the court sua sponte on its effect. United States v. Gilliam, 23 U.S.C.M.A. 4, 48 C.M.R. 260 (1974), citing United States v. Lell, 16 U.S.C.M.A. 161, 36 C.M.R. 317 (1966) and United States v. Stephen, 15 U.S.C.M.A. 314, 35 C.M.R. 286 (1965); United States v. Moore, supra.

As observed before, Tinley and Brannan’s testimony was uncorroborated except as to those offenses committed on 1 March 1976, and their testimony constituted the only Government evidence implicating the accused in the remaining crimes. It follows that the credibility

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2 M.J. 360, 1977 CMR LEXIS 896, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-baker-usafctmilrev-1977.