United States v. Privette

31 M.J. 791, 1990 CMR LEXIS 1338, 1990 WL 175949
CourtU S Air Force Court of Military Review
DecidedOctober 4, 1990
DocketACM S28321
StatusPublished
Cited by4 cases

This text of 31 M.J. 791 (United States v. Privette) 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. Privette, 31 M.J. 791, 1990 CMR LEXIS 1338, 1990 WL 175949 (usafctmilrev 1990).

Opinion

DECISION

KASTL, Senior Judge:

Based upon United States v. Partyka, 30 M.J. 242 (C.M.A.1990), we hold today that the prosecution introduced improper matters in rebuttal during a sentencing proceeding. We find error and reassess.

I

Staff Sergeant Privette was convicted in accordance with his pleas of wrongful use of marijuana, in violation of Article 112a, UCMJ, 10 U.S.C. § 912a. His sentence is a bad conduct discharge, confinement for four months, and reduction to airman.

He now argues that the military judge erred when he permitted trial counsel to bootleg improper rebuttal into a presentencing proceeding, over defense objection.

During presentencing, Privette made an unsworn statement. He expressed chagrin at the damage his drug abuse had caused his family and squadron; he also expressed remorse over his alcohol problem. He continued:

I am presently attending three [Alcoholics Anonymous] meetings a week. / will never use marijuana again as long as I live. I urge you to give me the chance to work out my alcohol problem and to support my family. I urge you not to make it impossible to receive Veteran’s Administration alcohol counseling. Please do not label my entire eight year career with a bad conduct label. Thank you.

(Emphasis added).

In rebuttal, the prosecution then called Captain P, Chief of Social Actions, to challenge Privette’s statement that he would not use marijuana again. The judge overruled defense objections, and Captain P was accepted as an expert in assessing rehabilitation potential of substance abusers. The following colloquy then occurred:

TC: Captain [P], in your expert opinion — -what is your expert opinion as to the accused’s potential to rehabilitate himself and stay off of marijuana?
Wit: Poor.

We hold that the military judge erred in permitting such testimony. R.C.M. 1001(c)(2)(C) explains that the prosecution may rebut any statements of facts in an unsworn statement. Here, simply stated, we see no statement of “facts” to rebut. See Partyka, 30 M.J. at 246-247; United States v. Cleveland, 29 M.J. 361 (C.M.A.1990).

Privette’s vow to avoid drugs in the future was a simple assertion in the nature of: “I’m sorry; I promise I won’t do it again.” What was there to rebut in this declaration? Consider a penitent who confesses to a priest and pledges to lead a new life. One would reject as clairvoyance any [793]*793authoritative assertion that the penitent would return to the confessional next week burdened with the same “sin.” So too, we regard as pure prophecy- — and hardly helpful to the triers of fact — Captain P’s opinion that the appellant would not keep his anti-drug pledge.

The Court of Military Appeals laid to rest in Partyka much of the possible confusion in this area. However, Partyka does not overturn a venerable line of precedent

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Komorous
33 M.J. 907 (U S Air Force Court of Military Review, 1991)
United States v. Acevedo
32 M.J. 692 (U S Air Force Court of Military Review, 1991)
United States v. Pompey
32 M.J. 547 (U S Air Force Court of Military Review, 1990)
United States v. Campbell
32 M.J. 580 (U S Air Force Court of Military Review, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
31 M.J. 791, 1990 CMR LEXIS 1338, 1990 WL 175949, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-privette-usafctmilrev-1990.