United States v. Britt

16 M.J. 971, 1983 CMR LEXIS 779
CourtUnited States Court of Military Appeals
DecidedSeptember 2, 1983
DocketACM 23885
StatusPublished
Cited by3 cases

This text of 16 M.J. 971 (United States v. Britt) 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. Britt, 16 M.J. 971, 1983 CMR LEXIS 779 (cma 1983).

Opinion

DECISION

KASTL, Senior Judge:

Whether the military judge erred by admitting improper rebuttal evidence during sentencing is the issue facing us. Finding no error, we affirm.

The accused was convicted, in accordance with his pleas, of divers drug involvements with marijuana and cocaine, in violation of Article 134, U.C.M.J., 10 U.S.C. § 934. His sentence, as approved, is a dishonorable discharge, confinement at hard labor for five years, total forfeitures, and reduction to airman basic. One previous conviction, also involving drugs, was considered.

During his trial, the accused made an unsworn statement. Pertinent portions are at Appendix A. As we read it, the statement seeks to portray a relatively unsullied accused, involved with a false friend named Sergeant Anderson, who repeatedly tempted him into distributing drugs as a favor.

During a subsequent Article 39(a), 10 U.S.C. § 839(a) session, trial counsel sought permission to rebut the accused’s statement. Specifically, the prosecution offered to present three matters: (1) the accused was an active participant, not a passive one— sometimes the accused suggested drug involvements, not Anderson; (2) the accused was dealing in drugs, not merely doing a favor for a friend — Anderson observed the accused supply cocaine to one Airman Stokes on another, uncharged occasion; and (3) when the accused was apprehended, the names of individuals (including Stokes) and dollar figures next to the names were found in the accused’s wallet. Such evidence, the prosecution maintained, would rebut the accused’s unsworn statement, which was “clearly intended to create the inference” of limited drug involvement with Anderson, a close acquaintance and supposedly the accused’s only purchaser.

The military judge permitted the prosecution, over objection, to present such evidence. That decision is now before us on appeal.

We hold that the military judge — who was in the best position to evaluate the tenor and thrust of the unsworn statement — did not err in permitting such prosecution rebuttal material. We are convinced that, the accused generally sought to paint himself as the pawn of an antagonist who enticed him into wrong. The unsworn statement suggests the overall impression that the transfers occurred solely between the accused and Anderson; we hold that the prosecution properly was permitted to advance evidence to cure that impression. United States v. Jeffries, 47 C.M.R. 699, 700 (A.F.C.M.R.1973) (evidence of uncharged misconduct admissible to rebut accused’s testimony that he desired to complete his enlistment and was “trying harder”); United States v. Clark, 49 C.M.R. 192 (A.C.M.R.1974) (rebuttal testimony properly admissible where accused conveyed the impression of a much more limited conspiracy than that actually occurring); see also, United [973]*973States v. Jones, 4 M.J. 545 (A.C.M.R.1977) (accused asserted during sentencing proceeding that he had learned to control his temper; prosecution permitted to cross-examine him to show that his temper contributed to disciplinary segregation while awaiting trial). See generally United States v. Blau, 5 U.S.C.M.A. 232,17 C.M.R. 232, 241, 244 (1954); United States v. Pawlyschyn, 9 M.J. 590 (A.F.C.M.R.1980).

United States v. Gambini, 13 M.J. 423, 429 (C.M.R.1982), cited by the accused, is at once distinguishable; as the Court of Military Appeals noted in Gambini, “[t]he record of trial simply does not support the stated premise of the Government’s argument” that the testimony in question was proper matter in rebuttal. Such is not the case here.

In sum, the accused cannot be heard to complain when he introduces Dr. Jekyll and the prosecution, offering a more complete portrait, presents Mr. Hyde. See generally, M.C.M., 1969 (Rev.), para. 75d.

II

The accused also argues that he improperly received a discharge because his counsel, against the accused’s desires, conceded the appropriateness of such punishment; there was no inquiry into this matter by the military judge. We find no error. Factually, we note that the accused was facing his second conviction by court-martial on drug-related matters; he conceded in the unsworn statement that he could not remain in the service. There was no reasonable likelihood that the members would consider retention as an alternative to a punitive discharge; therefore, the defense sentencing argument — which did not specifically ask for a discharge but recognized the reality of the situation — did not constitute a deprivation of the right to effective counsel. United States v. Volmar, 15 M.J. 339 (C.M.A.1983). See also United States v. Dominski, 15 M.J. 1081 (A.F.C.M.R.1983); United States v. Boyce, 12 M.J. 981 (A.F.C.M.R.1982).

IH

The other matters raised by the accused are resolved adversely to him. See M.C.M., para. 62f(10).

The findings of guilty and sentence are

AFFIRMED.

SNYDER, Judge, concurs. RAICHLE, Judge, absent.

APPENDIX A

While still in high school I smoked marijuana for the first time and used it occasionally thereafter at parties. I continued to use it occasionally after entering the Air Force and I used cocaine for the first time while at Lackland Air Force Base. After arriving at Seymour Johnson Air Force Base I continued to use marijuana occasionally until in 1980 I was charged with possession of marijuana. A joint was found in the coat I was wearing while I was on duty. I was not offered punishment by Article 15. I was court-martialed.

After my court-martial I was assigned to the 4th Supply Squadron as a warehouseman and I have worked there up until the 21st of November 1982, which I was charged in this case.

In July 1980 I moved into the 4th Supply Squadron barracks and I met Sergeant Rufus Anderson. When he learned I was from New York, he told me he had family in New York and that since I had a car, he would like to go home with me sometimes to see his cousin. I told him that would be okay as I was going home as often as I could to see my family.

I played basketball for the base basketball team, starting in September 1980 and the scheduled games would not permit me to go home very often. When the season ended in March 1981 as Sergeant Anderson was married and living off base, we did not see each other very often. My fiancee came to Goldsboro in the summer of 1981 and we were married in July 1981. We lived off base, so still I did not see Sergeant Anderson often except on the job. My [974]*974wife could not find a good job in Goldsboro, so in January 1982 we decided that it would be better if she went back home to the job she had before we were married and that I would move back into the barracks so that we could save some money.

I moved back into the dorm and lived in room 306. A friend of mine lived in room 309 and he had a telephone in his room that I often used to receive and make telephone calls to my wife. Once I was using the phone in his room and Sgt Rufus Anderson was also there. He said that he was moving back into the barracks because him and his wife was having problems and he was being separated.

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Related

United States v. Willis
43 M.J. 889 (Air Force Court of Criminal Appeals, 1996)
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32 M.J. 580 (U S Air Force Court of Military Review, 1990)
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31 M.J. 791 (U S Air Force Court of Military Review, 1990)

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16 M.J. 971, 1983 CMR LEXIS 779, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-britt-cma-1983.