United States v. Midkiff

15 M.J. 1043, 1983 CMR LEXIS 922
CourtU.S. Navy-Marine Corps Court of Military Review
DecidedApril 19, 1983
DocketNMCM 82 0758
StatusPublished
Cited by4 cases

This text of 15 M.J. 1043 (United States v. Midkiff) is published on Counsel Stack Legal Research, covering U.S. Navy-Marine Corps 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. Midkiff, 15 M.J. 1043, 1983 CMR LEXIS 922 (usnmcmilrev 1983).

Opinion

MALONE, Judge:

Contrary to his pleas, appellant was convicted by a general court-martial composed of members of the offense of stealing mail matters in violation of Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934.1 He was sentenced to forfeit $1,000.00 pay per month for one month and to be dismissed from the United States Marine Corps.2 Appellant, among [1045]*1045other assignments of error, complains that the cassette tapes alleged as the contents of the package he was charged with stealing from the mails were erroneously admitted into evidence, having been found in appellant’s room as the result of an illegal search and seizure.

There is no merit to this assignment of error. We find the voluntariness of appellant’s consent conditioned upon the totality of the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L. Ed.2d 854 (1973). Clear and convincing, unrebutted evidence discloses appellant to have voluntarily consented to the search of his room, albeit a consent which limited the scope of the search to the subject cassette tapes. United States v. Castro, 23 U.S.C. M. A. 167, 48 C.M.R. 782 (1974); Mil.R.Evid. 314(e). See United States v. Dutil, 14 M.J. 707 (N.M.C.M.R.1982), reconsideration denied 16 September 1982 (where evidence of the voluntariness of an accused’s conversation with police interrogators is easily rebuttable by that accused, the fact it is not most reasonably infers its voluntariness). Although appellant’s voluntary consent to the search of his room was given initially without restriction to its scope, the subsequent withdrawal of the consent was for the purpose of limiting the scope of the search so as to exclude from the object of the search certain photographs. Compare Castro, supra, and United States v. Cady, 22 U.S.C.M.A. 408, 47 C.M.R. 345 (1973).

Appellant did not withdraw his consent to the search for the contraband cassette tapes. The search for and seizure of the tapes was lawful, notwithstanding a lack of probable cause to believe a crime had been committed by the appellant’s possession of the photographs which nevertheless prompted the issuance of a search warrant for appellant’s room for the photographs.3 Compare Schneckloth, supra, and Castro, supra, with Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969). Therefore, the illegality of the search for the photographs does not taint the legality of the search for the cassette tapes so long as no evidence derived from the former was instrumental in securing the appellant’s conviction. Cf. Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441, 455 (1963); United States v. Schultz, 19 U.S.C.M.A. 311, 41 C.M.R. 311 (1970).

A question of closer resolve posed by appellant derives from his complaint that prejudicial error occurred during the case in chief when trial counsel was permitted over defense objection to cross-examine three defense character witnesses, Staff Sergeant (SSgt) D,4 Mr. D, and Mr. P, regarding their knowledge of specific instances of misconduct alleged to have been committed by appellant. The foundation for their opinions derived from their association with appellant in their professional relations as air traffic controllers and their commonly shared off-duty activities over a period of the preceding one and a half years. These three witnesses each testified that in his opinion appellant possessed the virtuous character traits of honesty and trustworthiness. Since appellant stood charged with an offense of stealing mail matters while acting as a mail orderly, opinion evidence of these pertinent character traits offered by appellant was admissible. Mil.R.Evid. 404(a)(1); Mil.R.Evid. 405(a).

The questions posed by trial counsel to these three character witnesses were:

1) Have you heard the accused was charged with stealing two drinks from the Jacksonville Country Club?
2) Have you heard the accused falsified a registration record in order to obtain a room in the BOQ by stating he was single when he was, in fact, married?
[1046]*10463) Have you heard the accused asked a potential trial witness to lie for him to his defense counsel?5

The first question concerned an incident that was the basis for a charge against appellant at this same trial, although it had since been dismissed by the military judge. That incident occurred subsequent to the mail larceny offense of which appellant now stands convicted. The second question concerned an incident that had been investigated for possible trial by the Article 326 investigating officer, but which had not been referred to trial by the convening authority. It antedated the mail larceny offense. The time frame of the incident upon which the third question is based is self-evident.

It is significant that three of the five sitting members had read a newspaper account of the pending court-martial, although none of the three reported recalling a discussion of these particular incidents in the article. Two of the members excused from the court after being challenged had recalled reading a news account of the court-martial which included discussion of the country club incident. It is therefore plausible that the sitting members, once having read the article, later may have recalled other details of the article regarding appellant after having their memories .jogged by the questions of the trial counsel. Nevertheless, defense counsel requested no additional voir dire of the members in order to make this determination after these questions had been asked.

Criminal courts deriving their rules of evidence from the common-law tradition, as do our courts-martial, ordinarily deny to the prosecution the opportunity to resort to evidence of an accused’s evil character, disposition, or reputation, no matter how probative that evidence may be, in order to establish the accused’s guilt. Michelson v. United States, 335 U.S. 469, 475, 69 S.Ct. 213, 218, 93 L.Ed. 168,173 (1948); United States v. Sellers, 12 U.S.C.M.A. 262, 30 C.M.R. 262 (1961); Mil.R.Evid. 404. Having denied this line of evidence to the prosecution so as to avoid it being overly weighted by the fact finder and resulting in undue prejudice, unfair surprise, and a confusion of the issues, we nevertheless open it to the accused where it is relevant to showing him less likely to have committed the offenses charged. Michelson, 335 U.S. at 476, 69 S.Ct. at 219, 93 L.Ed. at 174; United States v. Lewis, 482 F.2d 632 (D.C.Cir.1973); Shimon v. United States, 352 F.2d 449

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Bluebook (online)
15 M.J. 1043, 1983 CMR LEXIS 922, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-midkiff-usnmcmilrev-1983.