United States v. Gee

39 M.J. 311, 1994 CMA LEXIS 37, 1994 WL 264042
CourtUnited States Court of Military Appeals
DecidedJune 17, 1994
DocketNo. 93-0282; CMR No. 29075
StatusPublished
Cited by12 cases

This text of 39 M.J. 311 (United States v. Gee) 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. Gee, 39 M.J. 311, 1994 CMA LEXIS 37, 1994 WL 264042 (cma 1994).

Opinion

Opinion of the Court

COX, Judge:

In this case we are called upon to determine whether the rule enunciated in Luce v. United States, 469 U.S. 38, 105-S.Ct. 460, 83 L.Ed.2d 443 (1984), made applicable to courts-martial in United States v. Sutton, 31 MJ 11 (CMA 1990), encompasses in limine rulings on impeachment that do not involve Mil.R.Evid. 609(a), Manual for Courts-Martial, United States, 1984 (impeachment of witness by evidence of conviction of crime). Upon consideration of that question, we hold that the Luce rule is not limited to Mil. R.Evid. 609(a); accordingly, we affirm.1

Pursuant to a surprise inspection, appellant submitted a urine sample which tested positive for marijuana and cocaine. The defense originally planned to call appellant to present an innocent-ingestion defense and various other witnesses to attest to appellant’s good military character. However, the defense strategy changed following a session under Article 39(a), Uniform Code of Military Justice, 10 USC § 839(a), in which the military judge denied the defense’s motion in limine to prevent the prosecution from asking character witnesses whether they knew of an allegation that appellant had possessed cocaine in the past. The basis for such questioning was a report by the Office of Special [312]*312Investigations (OSI) documenting a confidential source’s claim he had knowledge appellant possessed cocaine in 1981 while in basic training.

The Government’s contention was that questions regarding appellant’s alleged prior drug involvement were proper to explore the basis and foundation of the witnesses’ opinions. The defense argued that the OSI report was “inherently unreliable” and more prejudicial than probative and that the members would conclude that, if appellant had been involved with drugs in the past, he was probably involved with drugs again. The military judge expressed his concern about the age of the information, but ultimately allowed the prosecution to use it. He explained his ruling as follows:

Counsel, I’m going to refuse to limit the prosecution on the use of such questions as a general matter. I will, of course, entertain any relevant objection that you might have at the time but I’m not going to issue at this point a prophylactic rule in limine as to the use of those questions. I’m inclined to think that these are proper questions, and although we are at the limits of chronological relevancy, they are still proper questions[2]

Appellant did not call any character witnesses at trial and was convicted of using marijuana and cocaine. He asks this Court to review the military judge’s ruling on his motion to preclude the Government from inquiring about his alleged cocaine possession in 1981. The Government, however, contends appellant’s failure to call any character witnesses at trial bars review of the military judge’s ruling on appellant’s motion in limine. See Luce v. United States and United States v. Sutton, both supra. We agree.

In Luce, the defendant made a motion in limine the prevent the Government from using the defendant’s prior conviction to impeach him if he chose to testify. The District Court denied Luce’s motion, holding the pri- or conviction was proper impeachment evidence pursuant to Fed.R.Evid. 609(a).3 On appeal, the Supreme Court held that, to preserve the issue of improper impeachment for review, the defendant was required to testify. The Court recognized the difficulty appellate courts have reviewing rulings where pertinent facts are not developed in the record. Any harm resulting from the in limine ruling allowing impeachment of a defendant is speculative if the defendant does not testify. The appellate court is left to conjecture whether the district judge would have altered his in limine ruling or the Government would have actually tried to use the prior conviction for impeachment. The Supreme Court observed:

Were in limine rulings under Rule 609(a) reviewable on appeal, almost any error would result in the windfall of automatic reversal; the appellate court could not logically term “harmless” an error that presumptively kept the defendant from testifying. Requiring that a defendant testify in order to preserve Rule 609(a) claims will enable the reviewing court to determine the impact any erroneous impeachment may .have had in light of the record as a whole; it will also tend to discourage making such motions solely to “plant” reversible error in the event of conviction.

469 U.S. at 42, 105 S.Ct. at 463-64. The rationale of Luce is applicable to courts-martial. United States v. Sutton, 31 MJ 11 (CMA 1990).

Justice Brennan, joined by Justice Marshall in his concurring opinion, believed the holding in Luce to be a narrow one. He [313]*313stated, “I do not understand the Court to be deciding broader questions of appealability vel non of in limine rulings that do not involve Rule 609(a).” 469 U.S. at 44, 105 S.Ct. at 464. However, Courts of Appeals have found the reasoning of Luce applicable to other evidentiary rulings. See United States v. Sanderson, 966 F.2d 184 (6th Cir. 1992) (holding there could be no review of the district court’s ruling that defendant’s credibility could be impeached with evidence of prior theft, pursuant to Fed.R.Evid. 608(b), where defendant did not testify); United States v. DiPaolo, 804 F.2d 225 (2d Cir.1986) (holding trial court’s denial of motion in limine to prevent impeachment of alibi witness with prior conviction, pursuant to Fed.R.Evid. 608(b), not preserved for review because witness never took the stand); United States v. Weichert, 783 F.2d 23 (2d Cir.1986) (judge’s ruling that former attorney’s disbarment could be used to impeach him pursuant to Fed.R.Evid. 609(b), not preserved for review because accused failed to take the stand), cert. denied, 479 U.S. 831, 107 S.Ct. 117, 93 L.Ed.2d 64 (1986); United States v. Studnicka, 777 F.2d 652 (11th Cir. 1985) (judge’s in limine ruling that prosecution could question defendant about his failure to appear at trial not reviewable because defendant did not testify); United States v. Dimatteo, 759 F.2d 831 (11th Cir.) (applying Luce to ruling in limine allowing extrinsic evidence to impeach defense witness pursuant to Fed.R.Evid.

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Cite This Page — Counsel Stack

Bluebook (online)
39 M.J. 311, 1994 CMA LEXIS 37, 1994 WL 264042, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-gee-cma-1994.