United States v. Powell

4 M.J. 551, 1977 CMR LEXIS 667
CourtU S Air Force Court of Military Review
DecidedOctober 7, 1977
DocketACM 22249
StatusPublished
Cited by2 cases

This text of 4 M.J. 551 (United States v. Powell) is published on Counsel Stack Legal Research, covering U S Air Force 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. Powell, 4 M.J. 551, 1977 CMR LEXIS 667 (usafctmilrev 1977).

Opinion

DECISION

ORSER, Judge:

Tried by a general court-martial with members on 15, 16, 17 and 18 March 1977, the accused was convicted, despite his not guilty pleas, of one offense each of wrongful transfer of marihuana (Specification 2 of the Additional Charge), wrongful sale of marihuana and wrongful possession of that drug (Specifications 1 and 2 of the [552]*552Charge),1 in violation of Article 134, 10 U.S.C. § 934 of the Uniform Code of Military Justice. The approved sentence is confinement at hard labor for eighteen months and reduction to the grade of airman basic.

In the only assertion of error meriting discussion, appellate defense counsel contend the military judge abused his discretion by failing to order the appearance of certain requested defense witnesses. Upon careful examination of the record, we agree.

Although appellate defense counsel chiefly complain about the military judge’s denial of the defense request for two military witnesses, a First Lieutenant Bradley and an Army Sergeant Jackson, in fact, the military judge denied the personal appearance of a total of five requested defense witnesses. Our discussion will embrace the propriety of the military judge’s rulings as to all the requested witnesses.

The defense initially requested the five witnesses prior to trial by letters and messages submitted to the trial counsel pursuant to paragraph 115a of the Manual for Courts-Martial, 1969 (Rev.). The request was denied by the government. At trial, the accused’s counsel renewed his request. He made it clear that four of the five requested witnesses (the other being the accused’s mother) were to be utilized to demonstrate the accused’s good character for truth and veracity in direct support of his testimonial denial of the charges against him. As a secondary consideration, the defense wanted all requested individuals present so that, in the event of a conviction, they could be witnesses in mitigation and extenuation of the offenses.

The defense represented that one of the requested witnesses, Lieutenant Bradley, would testify he had been the player-coach of a military basketball team on which the accused played some two years prior to the date of the charged offenses; that in that capacity he closely associated with the accused for a period of seven to eight months; that the accused’s military bearing, appearance and off-duty behavior had been excellent; that the accused’s general reputation at the military base had been good; that accused’s reputation for truth and veracity was excellent; and that he would believe the accused under oath.

Sergeant Jackson, the other requested military witness, was represented by defense counsel as ready, able and willing to testify that for a period of about three months early in 1974 he was in close contact with the accused as his instructor in the patrol dog course at Lackland Air Force Base; that the accused performed his duties in a truly outstanding manner; had superior leadership qualities; set a high standard of conduct and morals; possessed superior military bearing and exhibited a good cooperative attitude that earned him the respect of his superiors, contemporaries and subordinates; and, that the accused’s reputation for truthfulness and trustworthiness was beyond question.

The three remaining defense requested witnesses were the accused’s mother and two Washington, D. C., policemen for whom the accused worked as a police trainee from June 1972 until August 1973, a short time before he entered the Air Force.

As indicated, the accused’s mother was requested as a potential mitigation and extenuation witness. The defense averred she was prepared to testify concerning the accused’s upbringing, accomplishments, religious background, family strife, good moral character, and excellent reputation in his home town.

The accused’s counsel further represented that one of the policemen, a Sergeant Kirk, would testify that he had daily contact with the accused during the specified time period; that the accused was responsible for the care, distribution and control of police equipment worth over 150 thousand dollars; that the accused was highly regarded in the department and had a good demeanor toward his fellow trainees and officers; that the accused’s attitude toward his moral responsibilities was good; that the accused’s character was that of a well conducted, law [553]*553abiding citizen; that the accused’s reputation in the police department for truthfulness was excellent; and, that he would believe anything the accused would say under oath. The defense promised that the expected testimony of the other policeman, an Officer Bailey, would be similar in nature to that which would be given by Sergeant Kirk.

The military judge deferred his ruling on the defense request for witnesses until the parties had presented their evidence on the merits. In that connection, the major government witness in support of all charges against the accused was a Senior Airman Jones, an informer for the Air Force Office of Special Investigations (OSI). He was the sole witness who implicated the accused on the hashish transfer offense.

With regard to the hashish sale and possession charges, which, the evidence showed, occurred some twenty days after the transfer, Jones testified that the accused offered to sell him a kilo of the drug. Jones reported the offer to an OSI contact, and agents of the Air Force investigatory agency immediately set to work on a controlled purchase plan designed to ensnare the accused. Pursuant to the plan, the sale was made by the accused to Jones while OSI agents and a security police sergeant covertly observed the proceedings. Shortly thereafter, the accused was apprehended, and he and his vehicle were searched. The search produced an additional quantity of hashish.

Testifying in his own defense, the accused denied culpability as to all charges. His counsel called seven witnesses in support of the accused’s position. Five of the seven were military peers and acquaintances of both the accused and government witness Jones. Their testimony amounted, in essence, to an attack on the credibility of Jones by showing he was biased and prejudiced against the accused and others of his race. The other two defense witnesses testified in more direct support of the accused’s denial of guilt. One was a passenger in the accused’s vehicle at the time of his apprehension and search. The other, a staff sergeant, testified he had been a passenger in the accused’s vehicle a short time before the hashish sale. The two testified they had not seen the hashish which was found in the accused’s automobile at the time he was apprehended.

The defense counsel chose not to ask any of the seven defense witnesses questions concerning the accused’s character in spite of the fact the military judge lent his “assistance” to the defense in an effort to establish that some, or all, were qualified in that area. In that regard, after each of the first two witnesses had testified in open court, the judge temporarily released the court members and questioned them concerning their knowledge of the accused’s character. Each testified that the accused’s local reputation for truth and veracity was good. In consequence of the military judge’s efforts, the accused’s counsel eventually felt obliged to concede that most, if not all, of of his available witnesses could testify about his client’s good character.

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Related

United States v. Powell
8 M.J. 260 (United States Court of Military Appeals, 1980)
United States v. Mercier
5 M.J. 860 (U S Air Force Court of Military Review, 1978)

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Bluebook (online)
4 M.J. 551, 1977 CMR LEXIS 667, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-powell-usafctmilrev-1977.