United States v. Powell

45 M.J. 637, 1997 CCA LEXIS 9, 1997 WL 42966
CourtNavy-Marine Corps Court of Criminal Appeals
DecidedJanuary 17, 1997
DocketNMCM 96 00698
StatusPublished
Cited by2 cases

This text of 45 M.J. 637 (United States v. Powell) is published on Counsel Stack Legal Research, covering Navy-Marine Corps 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. Powell, 45 M.J. 637, 1997 CCA LEXIS 9, 1997 WL 42966 (N.M. 1997).

Opinion

LUCAS, Judge:

Pursuant to his guilty pleas before a special court-martial, military judge alone, the appellant was found guilty of committing offenses relating to his failure to report to [639]*639work on time and travel and housing allowance fraud.

We have examined the record of trial, the single assignment of error,1 and the Government’s response thereto. We have concluded that the findings and the sentence are correct in law and fact and that no error materially prejudicial to the substantial rights of the appellant was committed.

The appellant contends that the trial judge committed plain error during the sentencing phase of the court-martial by allowing three prosecution witnesses to testify about the appellant’s limited potential for rehabilitation, contending that the trial counsel failed to establish the necessary foundation for those witnesses to provide such evidence. The appellant also contends that the trial judge committed plain error by permitting those same sentencing witnesses to provide evidence of inadmissible uncharged misconduct.

The trial counsel’s first sentencing witness was a Navy lieutenant. The appellant had worked indirectly for the witness for several months. In an apparent attempt to establish an adequate foundation for the witness to ultimately provide an opinion regarding the appellant’s limited rehabilitation potential, the trial counsel elicited several pages of testimony that included examples of specific conduct of the appellant. Some of that specific conduct could reasonably be construed as uncharged misconduct relating to the appellant’s financial irresponsibility. Other examples of specific conduct related to many ineffective counselling sessions between the appellant and the witness.

The trial counsel’s second sentencing witness was a Navy senior chief who also indirectly supervised the appellant for several months. As with the first witness, in an apparent attempt to satisfy the trial judge that this witness was qualified to ultimately render an opinion regarding the appellant’s limited potential for rehabilitation, the trial counsel elicited responses that included long and rambling narratives regarding specific instances of counselling of the appellant and the appellant’s unreceptive attitude regarding that counselling. The testimony also indicated that the appellant had been late for work and had financial problems.

The third prosecution witness, a Navy chief, was the appellant’s immediate supervisor for several months. During direct examination, the trial counsel asked a series of questions resulting in several pages of testimony referring to many counselling sessions with the appellant, and indicating that the appellant had been repeatedly late to work, had lost military property, was financially irresponsible, and may have passed worthless cheeks.

With respect to all three witnesses, there was no objection by the defense counsel that the trial counsel failed to establish a proper foundation for the witnesses to provide an opinion regarding the appellant’s rehabilitation potential, that on direct examination of those witnesses the trial counsel had improperly elicited examples of specific conduct of the appellant that established the basis for those opinions, or that some of the testimony constituted inadmissible uncharged misconduct.

Ordinarily, such a failure to object to testimony results in waiver. Rule for Courts-Martial 905(e), Manual for Courts-Martial, United States (1995 ed.)[hereinafter R.C.M.]; Mil. R. Evid. 103(a)(1). The appellant seeks to avoid waiver by contending now that the trial judge committed plain error by allowing such testimony.

During the sentencing phase of a court-martial, on direct examination of a witness, the trial counsel may elicit opinion testimony concerning an accused’s potential for rehabilitation. R.C.M. 1001(b)(5)(A). An adequate foundation for such opinion testimony is required by the rule, meaning that a prosecution witness offering such opinion evidence must possess sufficient information and knowledge about an accused so that his or her opinion is rationally-based and helpful to [640]*640the court-martial. United States v. Ohrt, 28 M.J. 301, 304 (C.M.A.1989); R.C.M. 1001(b)(5)(B).

Although the rule does not expressly require it, it is customary and logical for a trial counsel to establish such a foundation before asking for the opinion evidence. However, inquiry by the trial counsel into specific examples of an accused’s conduct establishing the reasons for the opinion is not permitted on direct examination. Instead, such initial inquiry into specific examples of conduct of an accused is limited to cross-examination to test or impeach the opinion testimony. United States v. Rhoads, 32 M.J. 114, 116 (C.M.A.1991); United States v. Aurich, 31 M.J. 95, 96 (C.M.A.1990); United States v. Gregory, 31 M.J. 236, 238 (C.M.A. 1990); R.C.M. 1001(b)(5)(D); R.C.M. 1001(b)(5)(E).

Additionally, during the sentencing phase of the court-martial, the trial counsel may present evidence as to any aggravating circumstances directly relating to or resulting from the offense(s) of which the accused has been found guilty. R.C.M. 1001(b)(4). Evidence of uncharged misconduct may be admissible for that purpose. However, that is not to say that evidence of uncharged misconduct that would be admissible on the merits in a contested ease under Mil. R. Evid. 404(b) is automatically admissible during sentencing as aggravation evidence. To the contrary, Mil. R. Evid. 404(b) does not determine the admissibility of evidence of uncharged misconduct during sentencing. Instead, admissibility of such evidence is determined solely by R.C.M. 1001(b)(4) and evidence of uncharged misconduct is not admissible during sentencing unless it constitutes aggravating circumstances directly relating to or resulting from the offense(s) of which the accused has been found guilty. United States v. Wingart, 27 M.J. 128, 136 (C.M.A.1988).

We conclude, first, that the trial counsel minimally established an adequate foundation for each witness to provide rehabilitative potential opinion evidence pursuant to R.C.M. 1001(b)(5)(B). That part of the appellant’s assigned error is therefore without merit.

We agree with the appellant that the trial counsel improperly elicited examples of specific conduct of the accused during direct examination of the witnesses. However, for those examples of specific conduct not amounting to uncharged misconduct, the conduct was so benign that the evidence could not have prejudiced the appellant at this judge-alone court-martial.

Next, even though we agree that two of the prosecution sentencing witnesses indicated that the appellant had been late for work several times, this was not evidence of uncharged misconduct. Instead, we conclude that the witnesses were referring to the offenses of which the appellant was charged and convicted.

The remaining issue is whether the trial judge committed plain error by permitting the witnesses to provide evidence of uncharged misconduct; that the appellant had lost Government property, was financially irresponsible, and passed worthless cheeks. The Government contends that the evidence of uncharged misconduct was admissible. We do not agree. We have closely examined the nature of the uncharged misconduct and find that none of that evidence constituted aggravating circumstances directly relating to or resulting from the appellant’s crimes. It was therefore not admissible under R.C.M. 1001(b)(4).

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Related

United States v. Powell
49 M.J. 460 (Court of Appeals for the Armed Forces, 1998)
United States v. Yerich
47 M.J. 615 (Army Court of Criminal Appeals, 1997)

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Bluebook (online)
45 M.J. 637, 1997 CCA LEXIS 9, 1997 WL 42966, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-powell-nmcca-1997.