United States v. Hefner

29 M.J. 1022, 1990 CMR LEXIS 42, 1990 WL 8224
CourtU.S. Army Court of Military Review
DecidedJanuary 26, 1990
DocketACMR 8901337
StatusPublished
Cited by2 cases

This text of 29 M.J. 1022 (United States v. Hefner) is published on Counsel Stack Legal Research, covering U.S. Army Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Hefner, 29 M.J. 1022, 1990 CMR LEXIS 42, 1990 WL 8224 (usarmymilrev 1990).

Opinion

OPINION OF THE COURT

DeFORD, Senior Judge:

Pursuant to his pleas, the appellant was convicted by a military judge sitting as a general court-martial of absence without leave, disobedience of a superior commissioned officer, attempting to resist apprehension, driving while intoxicated, and wrongful use of marijuana in violation of Articles 86, 90, 95, 111, and 112a of the Uniform Code of Military Justice, 10 U.S.C. §§ 886, 890, 895, 911, and 912a (1982 & Supp. III) [hereinafter UCMJ]. He was sentenced to a bad-conduct discharge, confinement for three years, and forfeiture of all pay and allowances. In accordance with a pretrial agreement, the convening authority approved only so much of the sentence as provided for a bad-conduct discharge, confinement for fifteen months, and forfeiture of all pay and allowances.

On appeal, the appellant contends that the military judge erred in denying the appellant’s motion to strike the testimony of two witnesses who offered opinions on the appellant’s potential for rehabilitation. We disagree.

I

The offenses for which the appellant was convicted were committed at divers times between 23 January and 12 March 1989. During the sentencing proceedings, the Government introduced the testimony of two witnesses in aggravation, First Lieutenant (1LT) Todd Wood and Sergeant First Class (SFC) Jimmy Williams.

First Lieutenant Wood testified that he had been the appellant’s platoon leader from November 1987 through January 1989. He rated the appellant as “very average” on duty performance but stated that the appellant’s off duty performance “ruined his on duty performance.” First Lieutenant Wood alluded to a number of [1024]*1024incidents involving alcohol abuse and described in general terms the efforts the command had made to rehabilitate the appellant. Overall, 1LT Wood testified that the appellant was “not effective” as a soldier. The trial counsel then elicited 1LT Wood’s opinion — without objection — whether the appellant had “potential for further productive service in the military.” First Lieutenant Wood testified that he did not because the appellant had not responded to efforts to rehabilitate him and had made no personal effort to reform his ways.1 On cross-examination, the appellant elicited testimony that 1LT Wood did not “particularly care” for the “types of offenses [the appellant] committed” and that 1LT Wood would not approve of the continued service of any individual with “those types of offenses” even if that individual demonstrated excellent duty performance.

Sergeant First Class Williams testified that he had been the appellant’s platoon sergeant since December 1988.2 SFC Williams likewise testified that the appellant was average in his duty performance. With respect to his off-duty behavior, SFC Williams testified that the appellant had been reassigned to his platoon at a time when the appellant was already enrolled in a drug and alcohol abuse program, was already on probation with “the state detectives,” and was recently released from the stockade. The appellant’s reassignment to SFC William’s platoon was a rehabilitative transfer. The trial counsel again asked without objection whether the appellant had "potential for further productive service in the military.” SFC Williams responded that he did not because:

I just found out today that he’s got another DWI, making his fourth. He’s come up positive on the urinalysis twice, he’s gone AWOL on me once, he’s — he’s —to be quite honest, he’s more trouble than he’s worth.

On cross-examination, SFC Williams testified that he would not recommend discharge based solely on the appellant’s duty performance. Asked if his opinion were based on the offenses for which the appellant was being sentenced, SFC Williams responded:

Not just with those, sir. No, sir. Not only with those, but with his past record as well. Like I say, up to this point, the man has got four DWIs.

Trial defense counsel then elicited testimony that SFC Williams did not “particularly care for those types of offenses.” SFC Williams further testified that, even in the case of an individual with an excellent performance record, he would adhere to his opinion of “no potential” based on the nature of the offenses.

On the basis of his cross-examination of these witnesses, the appellant, citing United States v. Horner, 22 M.J. 294 (C.M.A.1986), moved to strike their testimony on grounds that these witnesses would discharge anyone with the appellant’s “record” regardless of duty performance. The military judge denied both of these motions.

The stipulation of fact introduced into evidence details a chronology of extensive misconduct by the appellant. On 15 March 1988, the appellant received punishment pursuant to Article 15, UCMJ, for the offense of wrongful use of marijuana. On 27 March 1988, the appellant was arrested by civilian authorities for driving while intoxicated; the installation commander administered a letter of reprimand and revoked the appellant’s on-post driving privileges for this offense. On 11 October 1988, the appellant was again punished pursuant to Article 15, UCMJ, for failing to repair to his appointed place of duty on 1 September 1988. That same night, the appellant was apprehended by military authorities for drunk driving at a time when his on-post driving privileges were yet suspended by prior order. The appellant was convicted by summary court-martial for this offense. [1025]*1025On 19 April 1989, the appellant was again apprehended for drunk driving; the suspension of appellant’s driving privileges was still in effect at that time.

II

Even assuming that the testimony of these witnesses was admitted without adequate foundation in violation of United States v. Horner or amounted to the expression of an opinion that the court should impose a punitive discharge in violation of United States v. Ohrt, 28 M.J. 301 (C.M.A.1989), we find no prejudice to the appellant. See United States v. Ohrt, 28 M.J. at 307; United States v. Horner, 22 M.J. at 296. Any impact the testimony on the appellant’s rehabilitation potential may have had on the sentence adjudged paled to insignificance in light of other evidence admitted in aggravation.

The stipulation of fact in the case at bar notified the sentencing authority of other delicts by the appellant identical in nature to the offenses for which the appellant was convicted: a prior use of marijuana, one subsequent and two prior incidents of drunk driving, and two incidents of driving while his driving privileges had been revoked. These acts of uncharged misconduct, admitted pursuant to stipulation as permitted by United States v. Glazier, 26 M.J. 268 (C.M.A.1988), established the appellant’s character as a repeat offender.

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Related

United States v. Sylvester
38 M.J. 720 (U.S. Army Court of Military Review, 1994)
United States v. Wilson
31 M.J. 91 (United States Court of Military Appeals, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
29 M.J. 1022, 1990 CMR LEXIS 42, 1990 WL 8224, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-hefner-usarmymilrev-1990.