United States v. Bowling

16 M.J. 848, 1983 CMR LEXIS 823
CourtUnited States Court of Military Appeals
DecidedJuly 29, 1983
DocketNMCM 83 0854
StatusPublished
Cited by6 cases

This text of 16 M.J. 848 (United States v. Bowling) is published on Counsel Stack Legal Research, covering United States Court of Military Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Bowling, 16 M.J. 848, 1983 CMR LEXIS 823 (cma 1983).

Opinion

GORMLEY, Judge:

Contrary to his pleas before a special court-martial composed of military judge alone, appellant was found guilty of the possession, sale, and transfer of 7.54 grams of marijuana in violation of Article 92, Uniform Code of Military Justice, 10 U.S.C. § 892. Appellant’s sentence included confinement at hard labor for three months, forfeiture of $365.00 pay per month for [850]*850three months, reduction to the lowest enlisted pay grade (E-l), and a bad conduct discharge. Appellant posits two assignments of error before this Court, but only the first warrants discussion. We find no error prejudicial to the appellant and affirm.

I
GOVERNMENT COUNSEL WAS PERMITTED, OVER DEFENSE OBJECTION, TO QUERY APPELLANT AS TO PRIOR ACTS OF UNCHARGED MISCONDUCT NOT RELATING TO TRUTHFULNESS, IN VIOLATION OF MIL.R.EVID. 608.

Appellant complains specifically that prejudicial error occurred when the trial counsel was allowed to question him about his prior nonjudicial punishment for possession and use of marijuana in these words:

Q: Have you learned your lesson about marijuana?
A: Sir?
Q: It’s before this court that you were on restriction during this period of time for possession and use of marijuana, is that correct?

The trial counsel subsequently questioned appellant about Prosecution Exhibit 2 for identification which was the record of a nonjudicial punishment of appellant for use and possession of marijuana. Appellant asserts that this information was not before the court since Prosecution Exhibit 2 for identification, which had been offered by the government to prove appellant was on restriction, was not accepted into evidence on the merits.

Appellant has overlooked, however, his defense counsel’s previous cross-examination of the government informant as follows:

Q: You knew Fireman Bowling had smoked marijuana, didn’t you?
A: Yes.
Q: In fact, he’d come up positive on a urinalysis, that was the reason he was in restriction, was he not?
A: I believe it was seized in his room.
Q: And that’s why he’d lost his Third Class Crow?
A: Yes, Ma’am.
Q: You thought he’d be a pretty easy target, didn’t you?
A: No, not really.

Although it was clearly improper for the trial counsel to attempt to impeach appellant by asking about his prior nonjudicial punishment, United States v. Cofield, 11 M.J. 422 (C.M.A.1981); United States v. Wilson, 12 M.J. 652 (A.C.M.R.1981); Mil.R. Evid. 608(b), we are unable to see how this prejudiced appellant when the information was already before the court, albeit in a different form. In determining whether prejudice occurred, we also consider the obvious perceptions of the defense counsel as evinced by her lack of a timely objection. Mil.R.Evid. 103.

We believe that the issue raised by appellant is more properly directed towards the trial counsel’s introduction, in rebuttal, of extrinsic evidence of appellant’s admissions of selling marijuana from his BEQ room. This evidence was offered to contradict appellant’s prior assertion during cross-examination that he had never brought any marijuana on board the Naval Amphibious Base:

Q: You used marijuana, but didn’t possess it?
A: Yes, sir.
Q: How did you do that?
A: Sir, I didn’t bring no marijuana on the base.
DC: Objection, Your Honor. Again, this inquiry is leading into uncharged misconduct. I believe that—
MJ: Overruled.
Q: How did you use it without possessing it?
A: Well, I go down to I.B., Imperial Beach, and I’ve got friends down there. I don’t bring nothing on the base.
[851]*851Q: I didn’t say possess it on board the base. Can you use it without possessing it?
A: No, sir.
Q: So, you did possess it?
A: Yes, sir.
Q: But not at noon on 7 June 1982?
A: No, sir.
Q: 6th, maybe?
A: As I stated before, I never brought marijuana on the Naval Amphibious Base.

In rebuttal, the following testimony was given by an agent from the Naval Investigative Service:

Q: Mr. Hamilton, did you have a conversation with the accused on the 14th of July 1982?
A: Yes, sir.
Q: Did the accused — In the course of that conversation, did the accused discuss sales of marijuana on board NAB?
A: Yes, sir.
Q: What did he tell you?
A: He stated that in the past he had been involved with the trafficking of marijuana on board the base. He indicated that during the time period of approximately April 1982 to approximately a month prior to interview, he had sold marijuana on approximately 16 occasions.
Q: A month prior to the interview, when would that have been?
A: Would have been in June — middle of June 1982.
Q: Did he say what amounts he would sell?
A: One-fourth ounce for $25.00.
Q: Where did most of these transactions occur? Did he tell you that?
A: Yes, sir. In his BEQ room.

Read literally, appellant’s denials of ever bringing any marijuana onto the base are not specifically contradicted by his admissions of selling marijuana from his BEQ room. When appellant’s broad denials are read in the context of the entire examination, however, it is clear that he was implying that his involvement with marijuana was strictly limited to his off-base, off-duty time with his friends. Taken in that context, appellant’s prior denials are clearly contradicted by his admissions of marijuana trafficking on base.

In United States v. Banker, 15 M.J. 207 (C.M.A.1988), the Court of Military Appeals addressed a factual situation very closely on point to that in the case sub judice. In Banker the following colloquy occurred during the defense counsel’s cross-examination of the government informant:

Q: Have you used drugs since March when you went to the OSI?
A: No, I have not.
Q: Have you bought any?
A: Just from [the accused].
Q: Have you bought any from anybody else?
A: No.

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Bluebook (online)
16 M.J. 848, 1983 CMR LEXIS 823, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-bowling-cma-1983.