United States v. Gillette

35 M.J. 468, 1992 CMA LEXIS 1033, 1992 WL 295214
CourtUnited States Court of Military Appeals
DecidedSeptember 30, 1992
DocketNo. 66,870; ACM 28265
StatusPublished
Cited by15 cases

This text of 35 M.J. 468 (United States v. Gillette) 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. Gillette, 35 M.J. 468, 1992 CMA LEXIS 1033, 1992 WL 295214 (cma 1992).

Opinion

Opinion of the Court

COX, Judge:

We have been asked to determine whether the military judge erred to the substantial prejudice of an accused by refusing to rule that two prosecution witnesses were accomplices as a matter of law. After consideration of the record of trial, appellate briefs, and oral argument1, we hold [469]*469that he did not. Art. 59(a), Uniform Code of Military Justice, 10 USC § 859(a).

At appellant’s contested court-martial2, three civilian witnesses, Mr. C, Ms. R, and Ms. H, testified under grants of immunity that they had either used cocaine with appellant or observed him use it.3

The three also testified about their personal knowledge of appellant’s drug involvement. C testified appellant had accompanied him on a cocaine buy in September of 1988 and that they had used cocaine together on divers occasions from September 1988 to April 1989. R testified that she had met appellant through C and had observed him use what she thought was cocaine (the same substance she later used and identified as cocaine). She also testified that, between October 1988 and April 1989, she had observed appellant use cocaine on divers occasions; delivered cocaine to him; and once saw appellant and C “free-base” cocaine. H testified that she had dated appellant during this time and saw him use cocaine three times.

At the conclusion of the presentation of the evidence on the merits, defense counsel asked the military judge to give an accomplice instruction covering the three witnesses (C, R, and H), stating that the three were accomplices as a matter of law. In response, the military judge did instruct the members that C was an accomplice as a matter of law. As to witnesses R and H, the judge balked at giving such an instruction, noting that there was some discrepancy as to whether R and H observed appellant’s cocaine use or participated in that use, as had C. With this in mind, and after sifting through numerous suggested instructions, the military judge left the question of whether R and H were accomplices to the members for their determination as a question of fact.4

The Court of Military Review, on May 23, 1991, held that the military judge committed error by instructing the members that they were to decide whether R and H were accomplices. The court found that, while the record established that both R and H were accomplices as a matter of law, failure to instruct as such by the military judge did not prejudice appellant, unpub.op. at 2, so the court affirmed the findings and sentence.

Before this Court, appellant again challenges the correctness of the military judge’s accomplice instruction regarding R and H, asserting that the finding of no prejudice by the Court of Military Review was error. We disagree.

[470]*470Historically, accomplice testimony has been viewed with suspicion and with a grain of skepticism so as to maintain the fair administration of justice. 7 Wigmore, Evidence § 2057 at 417 (Chadboum rev. 1978); Phelps v. United States, 252 F.2d 49, 52 (5th Cir.1958). See also United States v. Leonard, 494 F.2d 955, 974 (D.C.Cir.1974) (Bazelon, C.J., concurring in part and dissenting in part). Courts have sought to highlight these suspicions by warning factfinders about such testimony through use of an accomplice instruction. Indeed, questions about the credibility of witnesses who are considered accomplices has spurred the need for “careful instructions” on how to interpret such testimony. On Lee v. United States, 343 U.S. 747, 755, 72 S.Ct. 967, 972-73, 96 L.Ed. 1270 (1952); See Cool v. United States, 409 U.S. 100, 103, 93 S.Ct. 354, 356-57, 34 L.Ed.2d 335 (1972); Washington v. Texas, 388 U.S. 14, 22, 87 S.Ct. 1920, 1925, 18 L.Ed.2d 1019 (1967).

This Court has often acknowledged the concern and suspicion accomplice testimony carries with it. United States v. McKinnie, 32 MJ 141 (CMA 1991); United States v. Lett, 16 USCMA 161, 36 CMR 317 (1966). However, we are likewise concerned about the way a judge should instruct regarding accomplice testimony. After careful consideration of the various briefs and the legal authorities relied upon by the parties, we conclude that the position urged by the amicus brief of the University of Dayton School of Law represents the fairest resolution of the case.

Thus we hold that, whenever the evidence raises a reasonable inference that a witness may have been an accomplice or claims to have been an accomplice of the accused, and upon request of either the Government or defense, the military judge shall give the members a cautionary instruction regarding accomplice testimony. First, the members shall be instructed how to determine whether a witness is an accomplice. Second, they shall be given the standard instruction regarding the suspect credibility of accomplice testimony.

We reject the notion that the military judge should “label” a witness an accomplice as a matter of law. There are inherent dangers in such action. After all, the witness who has testified and has been labeled as an accomplice is implicating the accused. Moreover, attaching a label to the testimony implies to the members that the judge believes the witness and that the accused committed a crime. By its very nature, a judge’s instruction labeling a witness an accomplice as a matter of law is spurred by testimony achieving some threshold of believability forcing the judge to warn members.

Members, rather than collating the testimony along with that of other witnesses, then become focused upon the accomplice testimony as highlighted by the judge. The quagmire deepens when the judge instructs that, although the testimony of the witness is believable or credible to the point where an accomplice instruction is necessary, the judge then back-tracks and warns the members that the same testimony must also be considered with great caution. The designation of, or determination that a witness is, an accomplice is unnecessary as a matter of law. Gordon v. United States, 353 F.2d 9 (5th Cir.1965); Phelps v. United States, supra.

We turn to the instructions given in this case. As previously noted, the military judge, at the accused’s request, determined that C was an accomplice as a matter of law and so advised the members. Any error in instructing that C was an accomplice as a matter of law was induced by appellant and therefore waived. As to the two remaining witnesses, R and H, he gave the members the option of determining whether the two were indeed accomplices.5 We find no error in the instructions as to R and H. See n.4, supra. The funda[471]*471mental principle that accomplice testimony should be viewed with caution and skepticism was clearly made known to the court members as to all three witnesses.

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Cite This Page — Counsel Stack

Bluebook (online)
35 M.J. 468, 1992 CMA LEXIS 1033, 1992 WL 295214, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-gillette-cma-1992.