United States v. Hornbrook

14 M.J. 663, 1982 CMR LEXIS 868
CourtU.S. Army Court of Military Review
DecidedSeptember 10, 1982
DocketSPCM 17189
StatusPublished
Cited by2 cases

This text of 14 M.J. 663 (United States v. Hornbrook) 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. Hornbrook, 14 M.J. 663, 1982 CMR LEXIS 868 (usarmymilrev 1982).

Opinion

OPINION OF THE COURT

NAUGHTON, Judge:

Tried by a military judge sitting alone as a special court-martial, the appellant was convicted, contrary to his pleas, of two specifications each of wrongful possession, transfer, and sale of marihuana in violation of Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934 (1976). He was sentenced to a bad-conduct discharge, confinement at hard labor for six months, forfeiture of $367.00 pay per month for six months, and reduction to the lowest enlisted grade. The convening authority approved the sentence but remitted the unserved portion of the sentence to confinement and deferred the unapplied forfeitures until execution of the sentence.

The appellant contends that his conviction should be reversed and a rehearing ordered because the military judge erred in denying trial defense counsel’s motion to strike the testimony of the Government’s primary witness when that witness invoked his Article 31, UCMJ, 10 U.S.C. § 831 (1976), rights during cross-examination.

The offenses in this case arose out of two alleged marihuana transactions between the appellant and Specialist Four Paul Jones on 4 September 1981 and 4 October 1981. Jones was a confidential informant working for the Fort Benning Drug Suppression Team, composed of special agents from the United States Army Criminal Investigation Command (usually referred to as CID agents) and military police investigators. Although the police attempted to control these transactions between the appellant and Jones, Jones was the only Government representative present when the marihuana transfers took place.

As to the first transaction, the Drug Suppression Team arranged with Jones to make a controlled purchase of marihuana from the appellant on 2 September. Jones met the appellant at the Law Enforcement Command mess hall and gave him some money supplied by the police. Jones was under surveillance during this transaction and the police photographed the transfer of funds from Jones to the appellant. No marihuana was transferred at this time so arrangements were made for the appellant and Jones to meet on 4 September. Mid-morning on 4 September Jones met the appellant at the Law Enforcement Command mess hall, but again no marihuana was transferred at that time. In the early afternoon of 4 September Jones was searched for contraband and provided with $20.00 by the police. Appellant later met [665]*665Jones at the stockade mess hall where Jones was working. They left the stockade and went to appellant’s car where both were photographed by the police. They got into the car which at the time was also occupied by the appellant’s wife. As the car was driven around the block by the appellant, Jones gave him the $20.00 and the appellant’s wife gave Jones a bag containing marihuana and 19 capsules of alleged amphetamines. They returned to the stockade where Jones exited the car and shortly thereafter gave the police investigators the marihuana and capsules, all of which he reported had been sold to him by the appellant.

As to the second transaction, Jones met with the appellant at the Law Enforcement Command mess hall on the morning of 4 October and arranged to purchase marihuana from the appellant that evening. Appellant told Jones to come to his home located in a trailer park outside of Fort Benning. Prior to going to the appellant’s home, Jones’ car and person were searched for contraband, but none was found. Jones was supplied with $20.00 in marked money. Surveillance points were established by military police investigators and a CID agent around the trailer so that Jones could not depart the trailer park without meeting them. Jones went to appellant’s trailer and upon entering was met by the appellant and a civilian. Appellant asked the civilian if he could accommodate Jones, whereupon the civilian handed appellant a paper sack containing several bags of marihuana. Appellant in turn handed the sack to Jones so he could choose the bag of marihuana he wanted. Jones made his selection, paid the appellant, and left the trailer and turned over a bag of marihuana to a military police investigator. Later that evening, the civilian was stopped by local police as he was driving his car a short distance from the trailer park. He was searched and found to have the marked money used in the marihuana purchase in his possession.

On cross-examination, Jones claimed his privilege against self-incrimination (U.S. Const, amend. V; Article 31, UCMJ, supra) in response to five of trial defense counsel’s questions. The material questions and Jones’ responses are as follows:

Q. Have you ever been in any trouble?
A. Yes, sir.
Q. What kind?
A. I’m under investigation.
Q. What for?
A. Larceny.
Q. Anything else?
A. (No answer)
Q. Anything else?
A. Soliciting and possession of marihuana.
Q. What time period is this alleged to have occurred?
A. I can’t recall what time period it was alleged to have occurred, sir.
Q. Did it occur here at Fort Benning?
A. Yes, sir.
Q. Did it arise out of your duties over— as a cook?
A. I can’t answer that on the grounds that it might incriminate me.
Q. Did it arise out of your duties over at the stockade?
A. I can’t answer that on the grounds that it might incriminate myself.
Q. Is this investigation still pending?
A. Yes, sir.
Q. When did you go to Fort Ord?
A. Somewhere in the vicinity of the middle of October, I believe.
Q. Does this investigation have anything to do with your dealings with prisoners at the stockade?
A. I can’t answer on the grounds that it might incriminate myself.
Q. And what specifically are you under investigation for, again?
A. Larceny and soliciting.
Q. Soliciting what?
A. Soliciting marihuana.
Q. You mean, you were trying to buy it?
A. Can’t answer on the grounds that it might incriminate myself.
Q. Or trying to sell it?
A. Can’t answer on the grounds that it might incriminate myself.
[666]*666DC. I have no further questions, Your Honor.

Again on recross-examination, the trial defense counsel asked Jones the dates of his alleged offenses and again Jones indicated that he could not recall.

Both appellant and his wife who was also present in the trailer on the evening of 4 October denied any transfer of marihuana to Jones.

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Related

United States v. Hunter
17 M.J. 738 (U.S. Army Court of Military Review, 1983)
United States v. Dennis
16 M.J. 957 (United States Court of Military Appeals, 1983)

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Bluebook (online)
14 M.J. 663, 1982 CMR LEXIS 868, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-hornbrook-usarmymilrev-1982.