United States v. Rehberg

15 M.J. 691, 1983 CMR LEXIS 993
CourtU S Air Force Court of Military Review
DecidedFebruary 4, 1983
DocketACM 23628
StatusPublished
Cited by12 cases

This text of 15 M.J. 691 (United States v. Rehberg) 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. Rehberg, 15 M.J. 691, 1983 CMR LEXIS 993 (usafctmilrev 1983).

Opinion

DECISION

RAICHLE, Judge:

Tried by general court-martial, military judge sitting alone, the accused pled guilty to use of hashish, in violation of Article 134, U.C.M.J., 10 U.S.C. § 934, and not guilty to use, possession, and transfer of lysergic acid diethylamide (LSD), in violation of Article 92, U.C.M.J., 10 U.S.C. § 892. He was found guilty of all charges and specifications. The approved sentence extends to a bad conduct discharge, confinement at hard labor for ten months, forfeiture of $367.00 per month for ten months, and reduction to airman basic.

Appellate defense counsel have called our attention to the error raised by the trial defense counsel in his brief submitted pursuant to Article 38(c), U.C.M.J., 10 U.S.C. § 838(c). Specifically, counsel argue there is insufficient evidence to support the findings of guilt as to Charge II and its specifications, the LSD offenses. The defense urges that the convictions cannot stand because they are based solely on the uncorroborated testimony of three accomplices which was self-contradictory and uncertain. We disagree.

Airmen R, S, and T all testified regarding a party at Airman R’s house where they and the accused used LSD supplied by Airman R. Airman T also testified that the accused transferred some LSD to him and that he saw the accused in possession of LSD on base at various times. Airman R testified that he had seen LSD in the possession of the accused at various times both on and off base. All of the witnesses had given prior statements to the Office of Special Investigations and had testified at various Article 32 investigations. All of their statements differed to some degree from the testimony that they gave in court. However, each offered a plausible explanation for the inconsistencies.

A witness may be considered to be an accomplice if he was culpably involved in the commission of the offense with the accused. United States v. Scoles, 14 U.S.C.M.A. 14, 33 C.M.R. 226 (1963). For pur[693]*693poses of this case, we will assume, without deciding, that these witnesses were, in fact, accomplices of the accused.

The law on accomplice testimony is well established. A conviction cannot be based upon uncorroborated testimony given by an accomplice in a trial for any offense if the testimony is self-contradictory, uncertain, or improbable. Even if apparently corroborated and apparently credible, the testimony of an accomplice which is adverse to the accused is of questionable integrity and is to be considered with great caution. M.C.M., 1969 (Rev.), para. 74a (2). The testimony of one accomplice cannot serve to corroborate the testimony of another. United States v. Williamson, 2 M.J. 597 (A.F.C.M.R.1976).

Since there was no independent evidence to corroborate the testimony of these witnesses, the conviction must be set aside if the testimony is found to be self-contradictory, uncertain, or improbable. Citing United States v. Baker, 2 M.J. 360 (A.F.C. M.R.1977), the accused argues that the prior inconsistent statements of the accomplices make their testimony self-contradictory. That case appears to hold that prior inconsistent statements of accomplice witnesses are admissible as relating to the court’s determination of whether the accomplices’ testimony was self-contradictory. We believe such holding to be contrary to the weight of authority. See United States v. Diaz, 22 U.S.C.M.A. 52, 46 C.M.R. 52 (1972); United States v. Copeland, 21 C.M.R. 838, 859 (A.F.B.R.), pet. denied, 4 U.S.C.M.A. 733, 22 C.M.R. 331 (1956); United States v. Jones, 15 C.M.R. 664, 671 (A.F.B.R.), pet. denied, 4 U.S.C.M.A. 733, 15 C.M.R. 431 (1954). We find the better-reasoned rule to be that set forth in United States v. McPherson, 12 M.J. 789 (A.C.M.R.1982). There, the Army Court of Military Review viewed the self-contradictory aspect of the accomplice rule as relating solely to the testimony of the witnesses during trial. Since the testimony was internally consistent, there was no requirement for corroboration. Thus, we hold that the prior inconsistent statements of the accomplice witnesses did not, per se, make their testimony at trial self-contradictory. To the extent that the holding of United States v. Baker, supra, stands for a different principle of law, we decline to follow that precedent. Viewing the evidence in this light, we find the testimony of the accomplice witnesses to be internally consistent, certain, and probable.

We note that civilian jurisdictions have adopted varying rules for weighing accomplice testimony. See 30 Am.Jur.2nd Evidence, see. 1151. These rules generally fall into one of three categories. On one end of the spectrum are those jurisdictions which require corroboration of accomplice testimony before it can be considered at all. At the other extreme are jurisdictions, including the Federal courts, which allow consideration of accomplice testimony, with or without corroboration, and permit the jury to believe or disbelieve the testimony as measured by the normal guidelines as to witness credibility. See generally Annot., 17 A.L.R.Fed. 249. In the middle of these two extremes is the common law rule, currently followed in the military, which allows the jury to consider accomplice testimony, but requires that the testimony not be self-contradictory, uncertain, or improbable, if uncorroborated. M.C.M., 1969 (Rev.), para. 74b(2).

We strongly recommend that the rule followed by the Federal courts be adopted for military practice. In point of fact, the Federal rule was the rule prevailing in the military during the first half of this century. The rule regarding accomplice testimony set forth in A Manual for Courts-Martial, U.S. Army, 1921, was as follows:

While in Federal courts and courts-martial corroboration of the testimony of an accomplice need not be required, yet from the character of the associations formed the uncorroborated testimony of an accomplice should be received with great caution. M.C.M., 1921, para. 224.

This rule continued in effect through the Manual for Courts-martial, U.S. Army, 1928:

A conviction may be based on the uncorroborated testimony of an accomplice, but [694]*694such testimony is of doubtful integrity and is to be considered with great caution. M.C.M., 1928, para. 124a.

It was not until 1949 that the current rule regarding accomplice testimony appeared in principle in the M.C.M. It stated:

.. . [A] conviction should not be based on the contradictory, uncertain or improbable testimony of but one witness if the contradiction or other fault is not explained. A conviction may be based upon the uncorroborated testimony of an accomplice, but such testimony, even though apparently credible, is of doubtful integrity and is to be considered with great caution. M.C.M., U.S. Air Forces, 1949, para. 139a.

This language was paraphrased in the 1951 M.C.M. See Legal and Legislative Basis, Manual for Courts-Martial, United States, 1951, at page 241. Based on Army Board of Review cases, a provision requiring corroboration of the testimony of victims of sexual offenses was also added.

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Bluebook (online)
15 M.J. 691, 1983 CMR LEXIS 993, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-rehberg-usafctmilrev-1983.