United States v. Malhiot

60 M.J. 695, 2004 CCA LEXIS 222, 2004 WL 2191264
CourtUnited States Air Force Court of Criminal Appeals
DecidedSeptember 21, 2004
DocketACM 35339
StatusPublished

This text of 60 M.J. 695 (United States v. Malhiot) is published on Counsel Stack Legal Research, covering United States Air Force Court of Criminal Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Malhiot, 60 M.J. 695, 2004 CCA LEXIS 222, 2004 WL 2191264 (afcca 2004).

Opinion

OPINION OF THE COURT

STONE, Senior Judge:

The military justice sentencing scheme operates within a narrow range of admissible evidence. Evidence that is logically relevant to the determination of an appropriate sentence is often excluded, reflecting the “systemic costs of having court members determine sentences” in an adversarial proceeding. United States v. Brogan, 33 M.J. 588, 592 (N.M.C.M.R.1991) (citing United States v. Charley, 28 M.J. 903, 908 (A.C.M.R.1989)). This case illustrates the difficulty of distinguishing logical relevance from legal relevance.

The appellant pled guilty to three drug specifications. Article 112a, UCMJ, 10 U.S.C. § 912a. He admitted to using marijuana and ecstasy three times each. He also admitted to distributing small amounts of ecstasy to a confidential informant on two occasions. A panel of officer members sentenced the appellant to a bad-conduct discharge, confinement for 1 year, and reduction to the grade of E-l. The convening authority approved the sentence as adjudged. The appellant assigns six errors. We discuss only three: (1) Whether the military judge erred when he admitted, over defense objection, a videotape showing the underlying facts of the appellant’s prior civilian conviction; (2) Whether the military judge plainly erred when he allowed trial counsel to elicit testimony from an arresting officer regarding the underlying facts surrounding this civilian conviction; and (3) Whether the military judge erred in allowing the appellant’s first sergeant to testify, over defense objection, about specific instances of uncharged misconduct. We discuss Issues (1) and (2) together. Finding prejudicial error as to all three issues we address, we reassess the sentence and affirm the findings.1

STANDARD OF REVIEW

This Court reviews a military judge’s ruling on the admissibility of sentencing evidence for a clear abuse of discretion. United States v. Zakaria, 38 M.J. 280, 283 (C.M.A.1993). Military judges abuse their discretion if their findings of fact are clearly erroneous or their conclusions of law are incorrect. United States v. Ayala, 43 M.J. 296, 298 (C.A.A.F.1995). For rulings based on Mil. R. Evid. 403, we exercise “great restraint” if the military judge articulated his or her reasoning on the record. United States v. Harris, 46 M.J. 221, 225 (C.A.A.F.1997). If an appellant fails to object to evidence at trial, we review the record for plain error. United States v. Powell, 49 M.J. 460, 464 (C.A.A.F.1998).

CIVILIAN CONVICTION

Background

After accepting the appellant’s guilty pleas, the military judge held a session pursuant to Article 39(a), UCMJ,. 10 U.S.C. § 839(a), to review sentencing evidence. Trial counsel offered evidence of a civilian conviction the appellant received from a state court in Lowndes County, Georgia. Consistent with his pleas, the state court convicted the appellant of four offenses: “attempting to elude,” “reckless driving,” “driving under the influence,” and “failing to have proof of insurance.” These offenses occurred around midnight on 13 March 2002—a few weeks after an investigation began into the appellant’s drug activities, but several months before his court-martial. Trial counsel offered [697]*697two prosecution exhibits relating to this civilian conviction.

The first exhibit was a certified copy of the state court conviction. In addition to the appellant’s pleas and the findings, the documents revealed that the appellant was sentenced to confinement for a period of 48 months, but after 30 days of confinement, the balance was to be probated. Additionally, the appellant was ordered to pay a $1,625 fine, pay restitution in the amount of $11,000, perform 40 hours of community service, and submit to drug and alcohol testing.

The second document was a letter of reprimand from the appellant’s personnel files. His commander apparently issued the reprimand to document the state court convictions in the appellant’s official records. The reprimand stated that the appellant’s actions “resulted in damage to multiple [residences] in the local area as well as damage to the good name of the Air Force and Moody [Air Force Base].” Defense counsel voiced no objection to these two documents, and they were admitted. See Rule for Courts-Martial (R.C.M.) 1001(b)(2) and (3).

But defense counsel did object to the admission of a videotape taken from a camera in the arresting officer’s police cruiser. The videotape recorded the appellant’s erratic driving while the police officer followed in hot pursuit on the night of his arrest. It also recorded events occurring after the appellant crashed his vehicle in a residential neighborhood. Soon after the crash, numerous police officers arrived on the scene and repeatedly demanded that the appellant get out of his vehicle. The videotape also showed the appellant being advised of Georgia’s law on implied consent and the appellant’s refusal to consent. In making his objection, the defense counsel advised the military judge that the videotape was inadmissible because it was: (1) outside the scope of R.C.M. 1001(b); (2) cumulative to the record of conviction and the letter of reprimand; and (3) more prejudicial than probative under the balancing analysis of Mil. R. Evid. 403. Additionally, he argued that the trial counsel had failed to establish a proper foundation for admission of the videotape.

The government’s theory of admissibility was twofold. Trial counsel argued that the videotape not only demonstrated the appellant’s lack of rehabilitation potential, but also fully explained the events surrounding the civilian conviction. Defense counsel countered this argument by inviting the court’s attention to R.C.M. 1001(b)(5) and highlighting the portion of the rule that limits evidence of rehabilitation potential to opinion.

After conducting an in-camera review, the military judge admitted the videotape, subject to the police officer establishing a proper foundation. In doing so, the military judge stated the videotape was not cumulative to the previously admitted documents because it “fully explains the events and circumstances that occurred that evening.” As to the objection based on Mil. R. Evid. 403, the military judge concluded that even though the video was “real, real, real bad for the defense,” it had “significant probative value with respect to the rehabilitative potential of the accused” because the incident came so close upon the heels of the appellant’s drug investigation. In making his ruling, however, the military judge did not specifically address the defense counsel’s objection as to the form of the evidence, i.e., whether the videotape was improper rehabilitation evidence because it was not in the form of an opinion.

During the government’s sentencing casein-chief, the arresting officer testified and established the foundational requirements for admitting the videotape. But his testimony went well beyond the requirements for establishing a proper foundation and included numerous details about the aggravated nature of the car chase. Defense counsel did not specifically object to the testimony concerning the underlying details.

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60 M.J. 695, 2004 CCA LEXIS 222, 2004 WL 2191264, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-malhiot-afcca-2004.