United States v. Clemons

16 M.J. 44, 1983 CMA LEXIS 19842

Opinions

Opinion of the Court

FLETCHER, Judge:

Appellant’s conviction by court members at a general court-martial

Footnotes

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* is now before us by way of a grant of review. We are asked to determine whether he was prejudiced by the military judge’s failure to admit evidence of his good military character and his character for lawfulness under Mil. R.Evid. 404(a)(1). We hold that the ruling was erroneous, and we are unable to conclude that this error was harmless. Article 59(a), Uniform Code of Military Justice, 10 U.S.C. § 859(a); see United States v. Hewitt, 634 F.2d 277 (5th Cir.1981). Our examination proceeds first to the facts of this case that demonstrate the contested evidence was pertinent to a proper resolution of the charges against appellant.

The findings in this case included conviction of unlawfully entering a barracks room, wrongfully appropriating a television set found therein, and stealing a cassette player. Appellant did not deny entering the unlocked barracks room or taking the television and the cassette player. Rather he asserted that, in order to secure the television and teach the room’s occupants a lesson about securing property, it was taken from the room and placed in his office. Also to secure property the cassette player found in a latrine was placed in his office, and later inadvertently placed in his duffle bag following the termination of his duty. During all of these events appellant was on duty as Charge of Quarters the night of February 6 and 7, 1981.

Before defense counsel proceeded to his case-in-chief, trial counsel moved, in limine, to prevent introduction of evidence of appellant’s general good character. Acknowledging that he intended to introduce evidence of appellant’s good military character and character for lawfulness, defense counsel cited as authority for its production, Mil. R.Evid. 404(a)(1), which states:

Rule 404. Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes (a) Character evidence generally. Evidence of a person’s character or a trait of a person’s character is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion, except:

(1) Character of the accused. Evidence of a pertinent trait of the character of the accused offered by an accused, or by the prosecution to rebut the same.

(Emphasis in last sentence added.) Nevertheless, the military judge, granting the Government’s motion, forbade testimony regarding appellant’s good military character and his character for lawfulness, and permitted only evidence of his character for trustworthiness. The military judge stated:

All right. Before I get to that, as to the case you cited [United States v. Hewitt, 634 F.2d 277 (5th Cir.1981), discussed herein], I have read it, and I find that although they do say — state in there that “the character for lawfulness is admissible under the Rule 404,” I do not find that that case is binding upon me, and I find that the finding of that appellate court is contrary to what I have been taught and my interpretation of the current rule, Military Rule 404, and in fact contrary to what the law should even be under the Federal Rules of Evidence. And since that is not an appellate court that is senior to this court, I find that although it is interesting and I found it enlightening to read the article, I do not find it binding in any way upon this court, and in fact I find it contrary to what our law is.

The military judge erred both in his misguided view of the applicability of federal precedent, and in his substantive rulings regarding Mil.R.Evid. 404(a)(1).

Dealing briefly first with the question of Federal precedent, we note that Mil.R.Evid. 101 states:

Rule 101. Scope

(a) Applicability. These rules are applicable in courts-martial ... to the extent and with the exceptions stated in rule 1101.

(b) Secondary sources. If not otherwise prescribed in this manual or these rules, and insofar as practicable and not inconsistent with or contrary to the Uniform Code of Military Justice or this Manual, courts-martial shall apply:

(1) First, the rules of evidence generally recognized in the trial of criminal cases in the United States district courts; and

(2) Second, when not inconsistent with subdivision (b)(1), the rules of evidence at common law.

(Emphasis in (b)(1) added.) The drafters of these rules have stated with respect to section (a) of the above rule:

The decisions of the United States Court of Military Appeals and of the Courts of Military Review must be utilized in interpreting these Rules. While specific decisions of the Article III courts involving rules which are common both to the Military Rules and the Federal Rules should be considered very persuasive, they are not binding; see Article 36 of the Uniform Code of Military Justice. It should be noted, however, that a significant policy consideration in adopting the Federal Rules of Evidence was to ensure, where possible, common evidentiary law.

(Emphasis added.) Analysis of the Military Rules of Evidence, Appendix 18, Manual for Courts-Martial, United States, 1969 (Revised edition), Mil.R.Evid. 101(a). Commentary from the drafters, respecting provision (b) of the above rule indicates:

(b) Secondary Sources. Rule 101(b) is taken from paragraph 137 of the present Manual which has its origins in Article 36 of the Uniform Code of Military Justice. Rule 101(a) makes it clear that the Military Rules of Evidence are the primary source of evidentiary law for military practice. Notwithstanding their wide scope, however, Rule 101(b) recognizes that recourse to secondary sources may occasionally be necessary. Rule (b) prescribes the sequence in which such sources shall be utilized.

Rule 101(b)(1) requires that the first such source be the “rules of evidence generally recognized in the trial of criminal cases in the United States District courts.” To the extent that a Military Rule of Evidence reflects an express modification of a Federal Rule of Evidence or a federal evidentiary procedure, the President has determined that the unmodified Federal Rule or procedure is, within the meaning of Article 36(a), either not “practicable” or is “contrary to or inconsistent with” the Uniform Code of Military Justice. Consequently, to the extent to which the Military Rules do not dispose of an issue, the Article III federal practice when practicable and not inconsistent or contrary to the Military Rules shall be applied. In determining whether there is a rule of evidence “generally recognized,” it is anticipated that ordinary legal research shall be involved with primary emphasis being placed upon the published decisions of the three levels of the Article III courts.

(Emphasis in last sentence added.) Analysis, supra, Mil.R.Evid. 101(b). There is no inconsistency with military practice in the application of Federal precedent to the interpretation of Mil.R.Evid. 404(a)(1). Thus, we conclude that the military judge’s expressed, but unjustified, opinion flies in the face of the scope of the Military Rules of Evidence, and does not pay sufficient deference to the application of Article III Federal court precedent.

It is entirely clear that had this military judge applied Federal precedent, he would have acknowledged clear legal precedent for admission in this case of evidence of appellant’s character for lawfulness. United States v. Hewitt, supra. The common law made a distinction between general good character and particular traits of character. See McCormick’s Handbook of the Law of Evidence § 191 at 455 (E. Cleary 2d ed. 1972); J. Wigmore, A Treatise on the Anglo-American System of Evidence in Trials at Common Law §§ 59 and 458 (3d ed. 1940); Wright and Graham, Federal Practice and Procedure: Evidence § 5236 at 382 (1978) (hereafter cited as Wright). At common law, “the prevailing and more practical view” excludes proof of “general good character.” McCormick’s, supra at 453. United States v. Angelini, 678 F.2d 380 (1st Cir. 1982), published subsequent to trial of the instant case, addresses admissibility of evidence of law-abidingness in light of Fed.R. Evid. 404. It concluded that “Rule 404 permits evidence of traits only” and “that evidence of a defendant’s character as a law-abiding person is admissible.” Id. at 382. As Angelini states: “Thus, the basic issue is whether the character trait in question would make any fact ‘of consequence to the determination’ of the case more or less probable than it would be without evidence of the trait. See Fed.R.Evid. 401; United States v. Staggs, 553 F.2d 1073” (7th Cir.1977). Id. at 381.

In the instant case, it is clear that the traits of good military character and character for lawfulness each evidenced “a pertinent trait of the character of the accused” in light of the principal theory of the defense case. Mil.R.Evid. 404(a)(1). “The word ‘pertinent’ is read as synonymous with ‘relevant’. United States v. Staggs, ... [supra at] 1075; 22 Wright & Graham, Federal Practice and Procedure: Evidence § 5236, at 383 (1978).” United States v. Angelini, supra at 381. The “Drafters’ Analysis” to Mil.R.Evid. 404(a)(1) indicates that “[i]t is the intention of the Committee, however, to allow the defense to introduce evidence of good military character when that specific trait is pertinent.” Analysis, supra, Mil.R.Evid. 404(a)(1). United States v. Angelini and United States v. Hewitt, both supra, make clear the admissibility of the specific trait of law-abidingness.

In not denying entry into the barracks room or taking the television and cassette player, defense counsel posited the theory that appellant, functioning as Charge of Quarters, was teaching his subordinates a lesson in security and personally securing the property in accordance with military responsibilities. We conclude that, to this end, the excluded evidence was entirely relevant and should have been admitted. Mil. R.Evid. 404(a)(1); compare United States v. Angelini with United States v. Hewitt, both supra. In line with United States v. Hewitt, supra, we are unable to say that appellant was not prejudiced. Article 59(a), 10 U.S.C. § 859(a). Accordingly, the decision of the United States Army Court of Military Review is reversed. The findings and sentence are set aside. The record of trial is returned to the Judge Advocate General of the Army. A rehearing may be ordered.

Contrary to his pleas, appellant was found guilty of wrongful appropriation, larceny, and unlawful entry, in violation of Articles 121 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 921 and 934, respectively. He was sentenced to a bad-conduct discharge, confinement at hard labor for 6 months, forfeiture of $250.00 pay per month for 6 months, and reduction to E-l. The convening authority approved the sentence. [GCMO No. 31, dated October 26, 1981, erroneously reflects findings of Charge II as “Not Guilty of violation of Article 134, UCMJ.” The correct finding is: “Not Guilty, but Guilty of a violation of Article 134, UCMJ.” (R. 673.) ] The-Court of Military Review affirmed the approved sentence without opinion.