United States v. Jones

30 M.J. 898, 1990 CMR LEXIS 494, 1990 WL 59597
U S Air Force Court of Military Review·Decided April 25, 1990·No. ACM S28166·Published·Cited by 14 cases

Opinion

[899] DECISION

LEONARD, Judge:

In a vigorously litigated trial, appellant was convicted of wrongful use of hashish on divers occasions and sentenced to a bad conduct discharge and reduction to airman basic.' On appeal, he asserts five errors— three dealing with the findings portion of his case and two concerning the presentencing case. We find merit in two of his assertions and order a rehearing on sentence. Because of our resolution of an error in the presentencing case, we will address errors concerning the findings first.

I

The first allegation of error is that the military judge improperly allowed the trial counsel to introduce, through a prosecution rebuttal witness, specific instances of dishonesty to attack a defense witness’ character for truthfulness.

The government’s case against appellant consisted of the testimony of two OSI informants who stated they had seen the appellant use hashish on a number of occasions. Both these individuals stated that a Mr. Gaylor was present and participated in some of the uses of hashish. To counter this evidence, the defense called Gaylor. He testified that he was a friend of the appellant, to his knowledge appellant was not involved with illegal drugs, and there had never been any hashish used at any time when he, the appellant, and either one of the informants had been together.

On cross-examination, the trial counsel questioned Gaylor thoroughly about his friendship with appellant, the fact he was fired from his government job and barred from the base because of allegations of drug use,'his poor work performance before being fired, and incidents of Gaylor’s use and possession of illegal drugs. The trial counsel also tried to demonstrate that Gaylor was a biased witness because he had been accused of drug abuse by the same witnesses who had testified against appellant. Gaylor denied drug use, poor work performance, and bias. He admitted he was a friend of appellant’s, but denied he was lying on appellant’s behalf. During the cross-examination concerning poor job performance, Gaylor was asked about a particular incident where he allegedly lied to his supervisor about taking a lunch break on a trip with a government vehicle to another base. He admitted taking the lunch break and denied lying about it.

In rebuttal, over defense objection, the trial counsel called a Lieutenant Burkel to testify that Gaylor lied about the incident of taking a lunch break on the trip to the other base. She testified that she had asked Gaylor if he had made any unscheduled stops and he replied that he had not. However, when she confronted him with the fact that he had an Army and Air Force Exchange Service (AAFES) bag in his possession, he admitted he had stopped for lunch. She also testified that this was his first trip of this type and she did not believe that anyone had told him he was not authorized to stop for lunch.

The appellant’s position is that Burkel’s testimony was evidence of a specific instance of conduct that could not be proved by extrinsic evidence under Mil.R. Evid. 608(b). In the government’s view, Burkel’s testimony was related to a supposed motive of Gaylor to get even with the government for unjustly firing him and therefore was evidence of bias permitted under Mil.R.Evid. 608(c). As an alternative theory, the government asserts that the testimony was admissible to rebut Gaylor’s general denial of poor job performance because it served to “explain, repel, counteract or disprove” evidence introduced by the opposing party. We find both the government theories wrong.

It is well settled that specific instances of conduct of a witness may not be proved by extrinsic evidence if the conduct is offered for the purpose of attacking the credibility of the witness. Mil.R.Evid. 608(b); Fed.R.Evid. 608(b); IIIA Wigmore, Evidence section 981 (Chadbourn rev. 1970). Although extrinsic evidence of bias may be introduced, the theory of bias that supports the introduction of the evidence must not be so tenuous as to be collateral [900] to the trial. United States v. Hunter, 21 M.J. 240 (C.M.A.1986); United States v. Gonzalez, 16 M.J. 423 (C.M.A.1983).

In appellant’s case, we are unable to find any relationship between the fact that Gaylor might have initially denied making a stop for lunch on one trip and bias on Gaylor’s part to testify falsely. It is clear from Burkel’s testimony that this was a very minor incident and probably more the result of a misunderstanding than a deliberate lie. There was no evidence that this incident had anything to do with Gaylor’s later dismissal from his job. As we read the record, it is clear that trial counsel introduced the evidence in an attempt to attack Gaylor’s credibility by trying to put before the members extrinsic evidence that Gaylor had lied about something.

Further, the government cannot avoid the prohibition of Mil.R.Evid. 608(b) by maintaining that the evidence was merely offered to “explain, repel, counteract or disprove” evidence introduced by the opposing party. First, the evidence the government was seeking to explain or disprove was not brought out by the defense on direct examination of Gaylor, but was elicited by the trial counsel on cross-examination. Second, the cases relied upon by the government all deal with the general theory of rebuttal evidence and do not apply to cases where the evidence in question is extrinsic evidence of misconduct by a witness that was inquired into on cross-examination.

Although we find that the military judge erred in allowing trial counsel to produce the testimony of Lieutenant Burkel, we find the error was not prejudicial under the circumstances of appellant’s case. At the worst, this testimony showed that Gaylor initially denied taking a lunch break and later admitted doing so. Further, Gaylor’s version of the incident was almost the same as Burkel’s. The only difference was a disagreement as to whether Gaylor had an AAFES bag in his hand when he returned. In view of the vigorous cross examination of Gaylor on his drug use and possession, his friendship with appellant, and his motives for getting even with the government; the erroneously admitted evidence from Burkel was insignificant and harmless to appellant. United States v. Barnes, 8 M.J. 115 (C.M.A.1979).

II

The second error we address is whether the military judge erroneously sustained trial counsel’s objection to the introduction by the defense of a negative result on a urinalysis test that appellant had taken on 14 March 1989. We find no error in the military judge’s ruling.

Appellant was charged and found guilty of wrongful use of hashish on divers occasions between on or about 1 February 1988 and 30 September 1988. A negative urinalysis result on a sample taken in March 1989 was not during the period of charged drug use and is not relevant to show a “tendency to cast doubt” on appellant’s hashish use during the charged period. United States v. Farrar, 25 M.J. 856 (A.F.C.M.R.1988); United States v. Johnson, 20 M.J. 610 (A.F.C.M.R.1985).

III

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United States v. Jones, 30 M.J. 898, 1990 CMR LEXIS 494, 1990 WL 59597 (usafctmilrev 1990).

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