United States v. Gorence

61 M.J. 171, 2005 CAAF LEXIS 626, 2005 WL 1459106
CourtCourt of Appeals for the Armed Forces
DecidedJune 21, 2005
Docket04-0607/AF
StatusPublished
Cited by5 cases

This text of 61 M.J. 171 (United States v. Gorence) is published on Counsel Stack Legal Research, covering Court of Appeals for the Armed Forces primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Gorence, 61 M.J. 171, 2005 CAAF LEXIS 626, 2005 WL 1459106 (Ark. 2005).

Opinions

Judge CRAWFORD

delivered the opinion of the Court.

At a special court-martial, a military judge alone convicted Appellant, pursuant to his pleas, of a single use of cocaine in violation of Article 112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 912a (2000). The convening authority approved the sentence of a bad-conduct discharge, three months of confinement, and reduction to the lowest enlisted grade. The Court of Criminal Appeals affirmed the findings and sentence. We granted review of the following issues on November 18, 2004:

I. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS IMPROPERLY CONDUCTED ITS APPELLATE REVIEW UNDER ARTICLE 66(c), UCMJ, BY CON[172]*172SIDERING EVIDENCE OUTSIDE THE RECORD IN VIOLATION OF UNITED STATES v. HOLT, 58 M.J. 227 (C.A.A.F.2003).
II. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY PERMITTING THE TRIAL COUNSEL TO ELICIT INFORMATION CONCERNING THE APPELLANT’S PRE-SERVICE DRUG USE FROM THE APPELLANT’S MOTHER TO “REBUT” MATTERS TO WHICH THE MILITARY JUDGE HIMSELF “OPENED THE DOOR.”

For the reasons set forth below, we affirm the decision of the United States Air Force Court of Criminal Appeals. If there was error, it was harmless.

FACTS

During sentencing, the prosecutor offered evidence from Appellant’s personnel record reflecting three disciplinary infractions during his seventeen months of military service: (1) consumption of alcoholic beverages while under the age of twenty-one on August 18, 2002; (2) failure to obtain a medical evaluation on July 8, 2002; and (3) failure to report to duty on August 7, 2002. The prosecutor also offered a detailed confession to the use of cocaine that occurred between August 14 and August 22, 2002, and called the interrogator, who discussed the circumstances of Appellant’s confession.

In addition to his unsworn statement, Appellant offered several documents from family friends, coworkers, and supervisors attesting to his rehabilitative potential. His mother also testified as to Appellant’s interests and upbringing. When asked by defense counsel about rehabilitative potential, she replied that her son was not a malicious person and that his cocaine use was an “error in judgment” from which he could learn. “[H]e has a lot of integrity ... and he is honest____ But ... he’s 19, and teenagers make — have some poor judgments [sic] in things because they feel that they — they have their whole life, that they are really invincible and that it won’t really matter this time.” She also recognized that her son had made mistakes. Defense counsel inquired further, “But with your son, does he learn from his mistakes?” She responded, “[H]e always has learned from his mistakes.”

At the conclusion of her direct examination, there was no cross-examination by the prosecutor. However, the military judge began the following colloquy:

Q: [Y]ou had no concerns about the people he was hanging around with?
A: Not normally, no. Every once in a while, you know, somebody would do something stupid, and I would say, you know, guys, get it together, because I’ll call you on it. Right?
Q: Right. I’m trying to figure out—
A: He didn’t hang out with the jocks, and he didn’t hang out with the computer geeks. He’s always been somewhat of a loner....
Q: Okay. Because at least from the evidence I’ve got so far, it appears the folks that he was hanging out here with ... weren’t doing him any favors.
A: No. And that was—
Q: And that’s one concern I have if [he] comes back to you. I mean, did he have a history of kind of hanging out with those folks, or maybe it was just because he was here in San Antonio and didn’t really know anybody else?
A: I have a feeling that was probably the case.
Q: And did you have any concerns from his prior history of any sort of substance problems as far as alcohol beyond I guess what you would normally expect of high school kids?
A: Nothing beyond what normal high school kids get involved with, no.

Upon completion of the military judge’s questioning, the trial counsel posed the following question:

Q: Do you know if your son ever used marijuana while he was in high school?
A: He probably—
[173]*173DC [Defense Counsel]: Objection, Your Honor. This is going into uncharged misconduct.
MJ [Military Judge]: Well, the problem is you’ve got the judge asking questions and I — you know, I was mostly thinking about alcohol as much as anything else. I didn’t realize I was wandering into uncharged misconduct territory. Probably that would have been the better place for you to object there when I said, you know — .
I tell you what, I’m going to overrule the objection, but only to the extent — and you can rest assured, I’m not going to consider it for any uncharged misconduct purposes. But to the extent it would only weigh to rebut the question I asked. Okay. So I asked — I asked the question about did you have any — have any reason to suspect the history of any sort of substance abuse. And, you know, there wasn’t any objection to that. I certainly had no reason to know what the answer was going to be____
[M]y suspicion is the witness is going to say no, because that’s what she told me, but I’ll go ahead and allow you to ask the question. But, it’s a bench trial, you don’t have to worry about non 403-type [sic] uses. I’m only going to use — if I consider it at all, and it will depend on the answer, it will be for a very limited purpose which I’ll put on the record.
Go ahead.
[Trial Counsel (TC)]: Ma’am, again, do you know or are you aware that your son ever used marijuana?
A: I believe he tried it at some point because he’s a normal high school kid. You know, but as far as continual use or— no. No. Would he have at a party? Let me just put it this way: At every single high school party that I have known of in the last 20, 30 years, it has been there.

Emphasis added.

On redirect examination, defense counsel asked:

Q: Just one clarification.
A: Uh-huh.
Q: You just said you’ve been to parties, too?
A: Uh-huh.
Q: Is this any time soon or is this back when you were in high school?
A: Oh. High school, college. Yeah, there is — not recently. Actually, I don’t go to too many parties anymore. But it is — it is part of the culture. It’s there. Whether or not your intention is to use when you go to a party, there is always the possibility that it is there, you know. And I’d be silly to say, no, it’s not.
DC: Nothing further.

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Cite This Page — Counsel Stack

Bluebook (online)
61 M.J. 171, 2005 CAAF LEXIS 626, 2005 WL 1459106, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-gorence-armfor-2005.