United States v. Gilbert

25 M.J. 802, 1988 CMR LEXIS 91, 1988 WL 5261

• Court: U.S. Army Court of Military Review
• Decided: January 20, 1988
• Docket: ACMR 8700453
• Status: Published

Opinions

OPINION OF THE COURT

PER CURIAM:

Appellant was tried on 26 February 1987 by a military judge sitting as a special court-martial. Pursuant to appellant’s pleas, he was found guilty of wrongful distribution of Lysergic Acid Diethylamide (LSD). He was sentenced to a bad-conduct discharge, confinement for two months, forfeiture of $438.00 pay per month for four months, and reduction to Private E-l.

Appellant alleges that “the military judge erred to the substantial prejudice of appellant by forcing appellant, over objection, to answer cross-examination questions about unrelated uncharged misconduct, a matter clearly beyond the scope of direct examination and violative of his privilege against self-incrimination.” We agree. See United States v. Thomas, 16 M.J. 899 (A.C.M.R.1983) (trial counsel’s cross-examination improper because it exceeded scope of direct testimony).

During the sentencing phase of the trial, appellant gave direct testimony that he had successfully completed the Army’s Alcohol and Drug Abuse Prevention and Control Program (ADAPCP). He further testified that he had entered the ADAPCP primarily because of alcohol abuse, but, as a result of the program, had learned that neither alcohol nor drugs were the answer to his problems. Over the defense’s objection that cross-examination exceeded the scope of direct testimony, trial counsel was permitted to question appellant about his use of LSD on the night of the charged offense. Appellant answered that he had voluntarily told a noncommissioned officer that he had taken a “dose” of LSD that night.

Several facts are clear from the trial record. First, appellant entered the ADAPCP after the drug distribution charge of which he was convicted, not before. Second, the uncharged misconduct elicited on cross-examination — appellant’s use of LSD — also occurred before appellant’s participation in the program. Third, appellant’s prior use of LSD was not shown to be the reason that he entered the program. Appellant testified that the principal reason he was in the program was because of alcohol abuse. Fourth, trial counsel did not ask appellant why he entered the ADAPCP, but about a specific incident involving appellant’s use of LSD. Under these circumstances, we are unpersuaded that appellant’s direct testimony “opened the door” for inquiry into a specific act of uncharged misconduct. See Thomas, 16 M.J. at 900.

Considering the serious nature of the offense of which he was convicted,¹ the sentence limitation of the special court, the fact that, at best appellant was characterized as an average soldier, and that appellant’s sentence was within the confines of his pretrial agreement,² we find appellant suffered no prejudice as to sentence. Cf. United States v. Kinman, 25 M.J. 99, 101 (C.M.A.1987) (test for prejudice is whether adjudged sentence greater than sentence that would have been imposed absent error) (citations omitted).

In an abundance of caution, however, we will reassess the sentence. The findings of guilty are affirmed. Considering the error noted and the entire record, including the issues personally specified by appellant, only so much of the sentence is affirmed as provides for a bad-conduct discharge.

1 . "It has often been asserted, and as often acknowledged, that drug abuse in the military is a most serious problem." United States v. Trottier, 9 M.J. 337, 345 (C.M.A.1980) (footnote and citation omitted). Appellant pled guilty to wrongful distribution of hard drugs to another soldier.

2 . United States v. Hendon, 6 M.J. 171, 175 (C.M.A.1979) (“[A]ccused’s own sentence proposal is a reasonable indication of its probable fairness to him.") (citation omitted).