United States v. Brenizer

20 M.J. 78, 1985 CMA LEXIS 17978
CourtUnited States Court of Military Appeals
DecidedMay 20, 1985
DocketNo. 45889; NMCM 82 4166
StatusPublished
Cited by13 cases

This text of 20 M.J. 78 (United States v. Brenizer) 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. Brenizer, 20 M.J. 78, 1985 CMA LEXIS 17978 (cma 1985).

Opinion

Opinion of the Court

COX, Judge:

A special court-martial convicted appellant, contrary to his pleas, of possession, sale, and transfer of marihuana, in violation of Article 92, Uniform Code of Military Justice, 10 U.S.C. § 892. The three specifi[79]*79cations arose out of a single transaction.1 The issue in this case concerns the military judge’s decision to permit the prosecution to introduce a prior conviction against appellant for the purpose of impeaching his trial testimony. 16 M.J. 98. We hold that the judge did not abuse his discretion, under the circumstances of this case, and we affirm.

I

A Naval Investigative Service (NIS) agent testified that, in conjunction with civilian law enforcement officials and through the use of an undercover informant, a controlled purchase of drugs was effected at appellant’s off-base trailer. The law enforcement officers strip-searched the informant beforehand; they maintained continuous observation over him until he was admitted into the trailer; they observed his return from the trailer a few minutes later; and they received a quantity of marihuana from the informant at that time. The officers did not personally see appellant that evening, and they did not have independent knowledge of what went on in the trailer. The informant, not himself of spotless character, testified that he was admitted into the trailer by appellant; that he purchased drugs from appellant; and that he turned over those drugs to the law-enforcement officials. Self-evidently, the prosecution’s case depended ultimately on the credibility of the informant.

Appellant testified that he did not sell drugs to the informant on that or any other occasion and that the informant was flatly lying. Several theories were advanced by the defense to account for this asserted falsification. Moreover, it was contended that a number of people had access to appellant’s trailer during the period in question, and any of them might have admitted the informant. The informant himself had been a frequent visitor to the trailer and vicinity (a fact confirmed by the informant), and it was suggested that he may have hidden drugs himself in or around the trailer. It was conjectured that, on the night in question, he merely retrieved his own stash and turned it over to the authorities. Hence, the defense case depended heavily on the credibility of appellant.

During cross-examination of appellant, trial counsel requested and was granted a hearing out of the presence of the members. There, he announced his intention to extract appellant’s admission that he had been convicted of unauthorized absence by a special court-martial 4 years earlier.2 The stated purpose was to impeach appellant’s trial testimony. Citing Mil.R.Evid. 609(a), defense counsel objected on the grounds that the probative value of the prior conviction did not outweigh its prejudicial effect. The conviction was for a 106-day unauthorized absence,3 and it had occurred during appellant’s prior enlistment. He was serving in his second enlistment at the time the instant charge arose. The military judge overruled the defense objection, without delineating his balancing process, and he permitted trial counsel to cross-examine appellant about the conviction.

Trial counsel simply asked appellant whether he had been convicted by a special court-martial in October 1977 for an unauthorized absence of approximately 8 months. Appellant acknowledged that he had. The matter was not again referred to during the testimony or argument on findings. The military judge gave the following limiting instruction on findings:

Now, gentlemen, the evidence has been introduced to show that the accused was convicted of an unauthorized ab[80]*80sence offense by a military court. Evidence of this conviction may be considered only for the limited purpose of its tendency, if any, to impeach the credibility of the accused, Petty Officer Brenizer, as a witness, that is, for its bearing, if any, on his worthiness of belief. I wish to emphasize that such evidence may be considered for no other purpose whatsoever. You may not infer from such evidence that the accused has an evil disposition or criminal propensity and that he, therefore, committed the offenses alleged.

II

Mil.R.Evid. 609 is “taken” from Fed.R. Evid. 609(a), with modifications insignificant here. See Drafters Analysis, Appendix 18, Manual for Courts-Martial, United States, 1969 (Revised edition). The rule provides:

(a) General rule. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record during cross-examination but only if the crime (1) was punishable by death, dishonorable discharge, or imprisonment in excess of one year under the law under which the witness was convicted, and the military judge determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused, or (2) involved dishonesty or false statement, regardless of the punishment. In determining whether a crime tried by court-martial was punishable by death, dishonorable discharge, or imprisonment in excess of one year, the maximum punishment prescribed by the President under Article 56 at the time of the conviction applies without regard to whether the case was tried by general, special, or summary court-martial.
(b) Time limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date ...

(Emphasis added.)

Several points about the prior conviction can be resolved at the outset. First, it was timely within the overall guidelines of Mil.R.Evid. 609(b). Also, although the charge was referred to a court-martial not empowered to impose a dishonorable discharge, the offense was “punishable” by a dishonorable discharge under the Table of Maximum Punishments, para. 127c, Manual, supra. Hence, it qualified for potential admissibility under Mil.R. Evid. 609(a)(1). Further, as unauthorized absence does not ordinarily involve dishonesty or false statement, the conviction was not admissible under Mil.R.Evid. 609(a)(2). See Drafters Analysis, supra. That leaves for consideration the balancing test of Mil. R.Evid. 609(a)(1).

We have not previously had occasion to consider this aspect of Mil.R.Evid. 609(a)(1), but the Federal courts have frequently done so in connection with their rule. See generally 3 J. Weinstein & M. Berger, Evidence, para. 609[04] (1982). Among the factors considered relevant to the balancing are:

(1) The impeachment value of the prior crime.
(2) The point in time of the conviction and the witness’ subsequent history.
(3) The similarity between the past crime and the charged crime.
(4) The importance of the defendant’s testimony.

(5) The centrality of the credibility issue.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Cobia
53 M.J. 305 (Court of Appeals for the Armed Forces, 2000)
United States v. Miller
48 M.J. 49 (Court of Appeals for the Armed Forces, 1998)
United States v. Bell
44 M.J. 403 (Court of Appeals for the Armed Forces, 1996)
United States v. Ross
44 M.J. 534 (Air Force Court of Criminal Appeals, 1996)
United States v. Sitton
39 M.J. 307 (United States Court of Military Appeals, 1994)
United States v. Robertson
34 M.J. 1206 (U S Air Force Court of Military Review, 1992)
United States v. Collier
29 M.J. 365 (United States Court of Military Appeals, 1990)
United States v. Clarke
27 M.J. 361 (United States Court of Military Appeals, 1989)
United States v. Collier
27 M.J. 806 (U.S. Army Court of Military Review, 1988)
United States v. Clarke
25 M.J. 631 (U.S. Army Court of Military Review, 1987)
United States v. Taylor
21 M.J. 810 (U.S. Army Court of Military Review, 1986)

Cite This Page — Counsel Stack

Bluebook (online)
20 M.J. 78, 1985 CMA LEXIS 17978, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-brenizer-cma-1985.