United States v. Cannon

33 M.J. 376, 1991 CMA LEXIS 1323, 1991 WL 205183
CourtUnited States Court of Military Appeals
DecidedSeptember 30, 1991
DocketNo. 64,743; ACM 28017
StatusPublished
Cited by12 cases

This text of 33 M.J. 376 (United States v. Cannon) 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. Cannon, 33 M.J. 376, 1991 CMA LEXIS 1323, 1991 WL 205183 (cma 1991).

Opinions

Opinion of the Court

EVERETT, Senior Judge:

In June of 1989, at Little Rock Air Force Base, Arkansas, Captain Kevin H. Cannon was tried by a general court-martial consisting of members. An extramarital liaison between appellant (a C-130 pilot) and Rebecca Long, the dependent wife of a maintenance crew chief, precipitated his general court-martial for conduct unbecoming an officer (adultery and sodomy “on divers occasions”) and for willful disobedience of his commander’s order to stay away from Mrs. Long, in violation of Articles 133 and 90, Uniform Code of Military Justice, 10 USC §§ 933 and 890, respectively. Captain Cannon was acquitted of the disobedience offense and the Article 133 offense based on sodomy but was found guilty of conduct unbecoming an officer by committing adultery on different occasions. He was sentenced to dismissal from the Air Force, which the convening authority later approved.

The Court of Military Review, after consideration of several assigned errors, affirmed his conviction and sentence. 30 MJ 886 (1990). We then granted review of these two issues:

I

WHETHER THE TRIAL JUDGE IMPROPERLY DEFERRED RULING ON APPELLANT’S MOTION IN LIMINE TO EXCLUDE UNCHARGED MISCONDUCT.

II

WHETHER THE ERRONEOUS ADMISSION OF UNCHARGED MISCONDUCT AND HEARSAY STATEMENTS PREJUDICED APPELLANT DURING FINDINGS.

A

Before his trial began, appellant submitted this motion in limine:

The accused respectfully moves, pursuant to Rules [for Courts-Martial] 403 and 404(b), to prohibit any discussion of the AFOSI investigation in Germany concerning allegations of misconduct against Capt Kevin Cannon. Said allegations pertain to a thirteen year old and a fourteen year old. The accused was never charged, and the investigation was suspended; and, therefore, it is not evidence of conviction or evidence of guilt. The prosecutor should be admonished not to mention said investigation.

The defense also moved to suppress testimony by Cassandra Stabila “that she either had an affair with the Accused, or had some sexual contact with the Accused, or had some suggestive contact with the Ac[378]*378cused on one or more occasions, which is conduct not charged in these proceedings.”

Replying to the defense motions, the Government asserted:

The prosecution does not intend to offer this evidence in our case-in-chief. We do, however, intend to present this evidence in rebuttal to defense evidence of good military character or to sweeping denials by the accused.

According to the prosecution:

M[il] R E[vid.] 404(a)(1) allows the prosecution to rebut character evidence offered by the accused. The defense is entitled to present evidence of a relevant character trait of the accused. In this case, good military character would be relevant, but would open the door to inquiry into specific misconduct which reflects on that character. See U.S. v. Donnelly, 13 MJ 79 (CMA 1982); U.S. v. Strong, 17 MJ 263 (CMA 1984). The prosecution is not required to reveal the nature of evidence in rebuttal, but in this case, we do so to put the defense on notice of our intent. See U.S. v. Trimper, 26 MJ 534 (AFCMR 1988). Because the law is clear that “officers may be held to a higher standard,” such evidence of philandering is proper rebuttal. U.S. v. Guaglione, 27 MJ 268 (CMA 1988); U.S. v. Taylor, 23 MJ 314 (CMA 1987).

When appellant’s trial commenced, the military judge considered the defense motions concerning possible prosecution use of evidence of prior uncharged misconduct; and this discussion ensued:

MJ: It is my understanding the Government does not intend to use this evidence in their case-in-chief at all, correct?
TC: That is correct, ma’am.
MJ: And it would become an issue then only if possibly on rebuttal, should the Defense raise a defense of good military character?
TC: Yes, Ma’am. If the Defense raises good military character, we will have no choice but to rebut that with the evidence we have.
MJ: Does the Defense plan to raise that defense?
CIV DC: Your Honor, the accused has a good military character and we certainly intend to avail ourselves of that character. I would point out that there is no competent evidence of any misconduct in the affairs in Germany whatsoever. There is no way he can defend against that. We have a report that says he was cleared and then goes on to list all the gory details of what he was cleared of. That is not like being cleared. It also says it is not going to be in his personnel file, but apparently it is in some file somewhere because it is here.
TC: I have to disagree with Mr. Welch [civilian counsel]. There is nothing in the report indicating the accused was cleared of anything. The allegations were made. They were substantiated. A decision to take some action was taken. Apparently, the action that was chosen to be taken in Rhein Main was to do nothing at all. That doesn’t mean that what he was accused of did not happen.
MJ: In what form is this evidence?
TC: We have one of the witnesses here on Little Rock Air Force Base. If necessary, we would call her. She is a sixteen-year old child who is available to testify in person as to what happened. We also have the OSI report with sworn affidavits from the other girls, as well as married women, who allege the accused engaged in improprieties with them. We have the affidavits. We have one of the witnesses who is prepared to testify.
CIV DC: Your Honor, as to the sixteen-year old girl who was not disclosed to us until this moment, if it is the one that I think it is because there is only one member on this base that was involved in that and I presume that is his child, that sixteen-year old girl gave evidence that she had no personal knowledge and had heard about the allegations against the accused from other girls, the two other girls who [379]*379were interviewed. There is no way to defend against it and I dispute Major Sarver [trial counsel] when he says there was anything substantiated. The SJA at Rhein Main decided not to prosecute for insufficient evidence. A finding of insufficient evidence is not a substantiation of charges.

Deferring her ruling on admissibility of any of the uncharged misconduct, the military judge stated:

Well, at this time, since it really has not matured into a real issue at this point, I would defer ruling on the admissibility or inadmissibility until such time as it becomes an issue and allow time to do a little research in the meantime.

(Emphasis added.)

Cannon’s civilian defense counsel then requested:

CIV DC: We would ask also that the Government advise us if they have got — and be admonished to advise us in advance of bringing in any other uncharged conduct we haven’t heard about before it gets before the members or any other reference to any other incident or related incident or alleged related incident having to do with the two we do know about.

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Bluebook (online)
33 M.J. 376, 1991 CMA LEXIS 1323, 1991 WL 205183, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-cannon-cma-1991.