United States v. Hallum

31 M.J. 254, 1990 CMA LEXIS 1075, 1990 WL 147033

• Court: United States Court of Military Appeals
• Decided: September 27, 1990
• Docket: No. 63,729; CM 8900822
• Status: Published

Opinions

Opinion of the Court

COX, Judge:

Private Hallum was tried before a military judge sitting alone as a special court-martial convened by the Commander, 2d Armored Division (Forward), at Lucius D. Clay Kaserne, Garlstedt, Federal Republic of Germany. Pursuant to his pleas, the accused was found guilty of “wrongfully distributing] approximately 1 gram of marijuana in the hashish form,” in violation of Article 112a, Uniform Code of Military Justice, 10 USC § 912a. He was sentenced to confinement and forfeiture of $446.00 pay per month for 4 months; reduction to E-l; and a bad-conduct discharge.

The convening authority approved the sentence. The Court of Military Review, in an unpublished opinion, set aside the sentence and ordered a rehearing. Pursuant to Article 67(b)(2), UCMJ, 10 USC § 867(b)(2), the Acting Judge Advocate General of the Army certified the following questions to this Court for resolution:

I

WHETHER THE ARMY COURT OF MILITARY REVIEW ERRED AS A MATTER OF LAW BY HOLDING THAT THE UNCHARGED MISCONDUCT WAS INADMISSIBLE TO REBUT DEFENSE EXHIBITS T, U, AND V.

II

WHETHER THE ARMY COURT OF MILITARY REVIEW ERRED AS A MATTER OF LAW BY HOLDING THAT THE UNCHARGED MISCONDUCT DID NOT RELATE TO OR RESULT FROM THE CHARGED OFFENSE.

Private Hallum entered pleas of guilty to one specification alleging wrongful distribution of hashish. On sentencing, defense counsel first offered several exhibits in extenuation and mitigation, all of which related to accused’s financial status. He then proffered three unsworn, handwritten statements from other servicemen who worked with the accused. None of these declarations mentioned anything about drug use or distribution, but went only to each man’s opinion of the accused as a medic in the Army. All three statements indicated that the men had known the accused for at least a year, and offered praising opinions such as:

PFC Hallum ... has demonstrated exceptional ability as a medic. He is well liked by both his line company ... and also by his fellow medics.

******

If we were to go to war PFC Hallum is the type of sold[ier] medic I would want by my side.

******

He has always had a take charge and accomplish the mission attitude[.] [T]o me he has the knowledge and what it takes to be a very effective Combat Medic that I would want by my side.

Trial counsel then offered as rebuttal to these statements the following testimony of Special Agent Donald A. Hayden of the Criminal Investigation Command (CID), to whom the accused had earlier confessed to the distribution of hashish:

Q: What substance did the accused tell you that he’d sold?

A: He admitted to selling hashish.

Q: Did he tell you how much he was selling it for?

A: No, sir, he did not.

Q: Did he tell you to whom he was selling it?

A: Sir, he admitted that he’d sold to his former roommate, Private Jones, and to other personnel when they would come to his room.

Q: Did he tell you how he’d made this deal?

A: Sir, he admitted that he would obtain an amount of hashish from another soldier on post and that he would just have it in his room; people would come by; and he would sell it to them.

Defense counsel objected to this testimony, arguing that it was irrelevant for sentencing purposes. The military judge ruled the testimony admissible as rebuttal to the statements offered by the defense, stating:

MJ: ... You’re picturing the accused as a glowing soldier and I think the Government has a right to present evidence that it believes may contradict that picture.

* * * * * *

MJ: I think the Government can also present this evidence to show the course of conduct of the accused and that it’s related. So, I’ll allow it under that also.

The Court of Military Review set aside the sentence, holding that, although the testimony was proffered as aggravation evidence,

[t]he uncharged misconduct in this case did not relate [to] or result from the offense for which appellant was convicted. Indeed it was intended to show only that ... [the accused] was predisposed to commit crime and was not proper rebuttal to evidence of general good character.

Unpub. op. at 2, citing United States v. Wingart, 27 MJ 128, 136 (CMA 1988).

We disagree with the court below. The uncharged misconduct was proper rebuttal evidence. As we said in United States v. Wirth, 18 MJ 214, 218 (CMA 1984), quoting United States v. Shaw, 9 USCMA 267, 271, 26 CMR 47, 51 (1958) (Ferguson, J., dissenting):

“It is well settled that the function of rebuttal evidence is to explain, repel, counteract or disprove the evidence introduced by the opposing party.”

We went on to say:

[R]ebuttal refers to the order of presenting evidence at trial and, within the discretion of the trial judge, it is normally restricted to the proponent’s presentation of “evidence ... made necessary by the opponent’s case in reply.” 6 Wigmore, Evidence § 1873 (Chadbourn rev.1976) (footnote omitted). Accordingly, the relevanee of the Government’s rebuttal evidence must be determined in light of evidence first introduced and issues initially raised by the defense at ... [the] court-martial.

18 MJ at 218. But cf. United States v. Cleveland, 29 MJ 361 (CMA 1990) (accused’s unsworn statement that he felt he had served well not statement of fact; thus, evidence of prior uncharged misconduct not admissible to rebut the claim); and United States v. Brown, 16 MJ 36 (CMA 1983) (records not maintained in accordance with departmental regulations inadmissible in aggravation of sentence; evidence of adverse entry in accused’s record did not really rebut anything offered by accused at trial and was inadmissible to rebut evidence submitted by acccused in extenuation and mitigation of sentence). As indicated, the military judge ruled that the accused’s evidence in mitigation portrayed him “as a glowing soldier,” and the Government was allowed to “repel” that portrayal.¹ In addition, had the individuals who submitted the statements been subject to cross-examination, they certainly could have been impeached both if they were aware or unaware of the uncharged misconduct, which apparently took place during the time they knew Hallum. See United States v. Wingart, supra.

Defense counsel chose to open the door regarding the accused’s good military character utilizing witnesses who could not be cross-examined about their opinions. The Government was properly afforded the opportunity to respond. Absent an abuse of discretion, the military judge’s ruling should be allowed to stand.²

The decision of the United States Army Court of Military Review setting aside the sentence is reversed. The record of trial is returned to the Judge Advocate General of the Army for resubmission to that court for further review under Article 66, UCMJ, 10 USC § 866.

Judge SULLIVAN concurs.

1 . The Court of Military Review characterized the statements as depicting appellant as "a good friend, a good person and a knowledgeable combat medic.” However, the language of the statements speaks for itself. The judge did not err in permitting rebuttal by evidence that appellant was less than might have been hoped for in a medic.

2 . Given this disposition, we need not decide if the testimony was properly received as "aggravation” evidence. RCM 1001(b)(4), Manual for Courts-Martial, United States, 1984.