United States v. Richardson

15 M.J. 41, 1983 CMA LEXIS 23047
CourtUnited States Court of Military Appeals
DecidedFebruary 14, 1983
DocketNo. 41,938; SPCM 14941
StatusPublished
Cited by19 cases

This text of 15 M.J. 41 (United States v. Richardson) is published on Counsel Stack Legal Research, covering United States Court of Military 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. Richardson, 15 M.J. 41, 1983 CMA LEXIS 23047 (cma 1983).

Opinion

Opinion of the Court

EVERETT, Chief Judge:

On March 13,1980, appellant was tried at Schweinfurt, Federal Republic of Germany, [42]*42by a military judge sitting as a special court-martial. Contrary to his pleas, Richardson was found guilty of having wrongfully possessed and sold 2.39 grams of marihuana L» the hashish form on October 30, 1979, in violation of Article 134 of the Uniform Code of Military Justice, 10 U.S.C. § 934. His sentence to a bad-conduct discharge, confinement at hard labor for 5 months, and reduction to the grade of Private E-l, was approved by the convening authority. The United States Army Court of Military Review affirmed the approved findings and sentence without opinion and we granted review of this issue:

WHETHER THE TESTIMONY OF AN IMPORTANT DEFENSE WITNESS WAS IMPROPERLY STRUCK BY THE MILITARY JUDGE WHEN THE DEFENSE WITNESS INVOKED HIS FIFTH AMENDMENT RIGHTS ON A MATTER AFFECTING HIS GENERAL CREDIBILITY.

I

As is common in drug prosecutions, here the Government’s case rested primarily on the testimony of an informant who made a controlled buy and of the investigators who supervised the purchase. Specialist Four McKnight, the first witness for the prosecution, testified that towards the end of October 1979, he became “involved in a drug suppression operation” directed against appellant. On October 27, McKnight was told by appellant in a telephone conversation that he would soon be in possession of some drugs. Then, on October 30, “Specialist Richardson told me that he would have something later on.” After reporting this information to the Criminal Investigation Division (CID), McKnight was in further contact with Richardson and “told him I would be over in a half an hour.” McKnight was searched by the CID to determine that he was not already in possession of contraband and was furnished funds for the intended purchase; thereafter, he went to Richardson’s room, where appellant was present with PFC Torres and another soldier. Between Richardson and Torres on a bunk “was a big mirror or aluminum foil and approximately 80 pieces of hash.” McKnight purchased a piece of hash from Richardson for $25.00 and immediately proceeded from appellant’s room to the CID office, where the substance was field-tested.

On cross-examination, McKnight acknowledged that in September he had been in “trouble with the police” for breaking and entering a club; and soon thereafter he began working with the CID. Also, he described the details of his transaction with appellant on October 30. Then defense counsel asked whether McKnight had seen Richardson on November 9 and he replied in the affirmative. To another question McKnight responded that he had also seen Richardson in the latter’s room the next day.

Special Agent Roger MacFarland testified that he was assigned to the Wildflecken CID office and on October 30 had been “involved in a drug suppression operation against” appellant. This operation had been preceded by several meetings with McKnight, who on the afternoon of October 30 had advised MacFarland that appellant had some hashish in his room at the barracks. MacFarland had assisted in a strip search to assure that McKnight “had no contraband on him” and then had provided the informant $25.00 in bills with recorded serial numbers. He observed McKnight enter the barracks where appellant’s room was located and saw McKnight emerge, after being in the building for about three minutes, with “a tin foil wrapped packet containing a vegetable substance which was believed to be hash and which he stated he had bought from Richardson.” Shortly thereafter, MacFarland “conducted a field test,” which “was positive for marihuana,” and he took a written statement from McKnight. According to the witness, he had not apprehended appellant at this time because he did not want to compromise his informant, McKnight. MacFarland also described how he mailed to the laboratory the evidence which he had received from McKnight. Without objection, the Government then offered into evidence a laboratory test report and rested its case.

[43]*43The first defense witness was appellant’s First Sergeant, who described in detail where appellant’s room was located. This testimony apparently was adduced by defense counsel in order to demonstrate that the purchase of the hashish from appellant could not have been consummated during the short interval in which, according to MacFarland, McKnight had been in appellant’s barracks. The First Sergeant’s testimony also supported the defense theory that, instead of buying the hashish from appellant, McKnight previously had concealed it somewhere in the building where appellant’s room was located, had retrieved it while purportedly making a controlled buy, and thereafter had claimed falsely that he bought it from Richardson.

Specialist Four Esmele testified that on October 30 he had been on duty with Specialist Richardson at the Wildflecken Dispensary. Esmele had not seen McKnight and his account of the events on October 30 was somewhat inconsistent with McKnight’s version.

The defense also called PFC Joe Torres who, according to McKnight, had been in appellant’s room when the controlled buy was made. However, Torres claimed that he was not present in Richardson’s room on October 30 and had not even been in Wildflecken on that date. Torres also testified that in September 1979 McKnight, whom he knew slightly, “was busted downtown” and thereafter it was “pretty common knowledge” that McKnight was working for the CID. On cross-examination, the witness conceded that previously he had lied in statements to the CID about appellant’s involvement.

Sergeant Leadum, who was assigned to Wuerzburg, testified that he had known appellant since 1977 and would see him occasionally “[a]s a friend visiting.” About 7:30 or 8:00 p.m. on November 8, when Leadum “was on my way out,” appellant “was coming in to visit me from off of leave.” Since Leadum was “[gjoing to see my fiancee who is on the economy," he let appellant stay in his room. After that Thursday night Leadum did not see Richardson for about two weeks. Without objection from trial counsel, Leadum testified that his roommate told him that appellant left on Sunday afternoon, so it was this witness’ “belief” that Richardson had stayed there in Wuerzburg until that time.

In response to the trial counsel’s first question on cross-examination, Sergeant Leadum reiterated that he had known appellant since 1977. Then this colloquy ensued:

Q: How long have you known Specialist McKnight?
A: Specialist McKnight?
Q: McKnight, you don’t know Specialist McKnight?
A: No.
Q: Okay. Have you ever had any dealings with Specialist McKnight in Wuerzburg before?
A: McKnight?
Q: Let me ask you in a different way. Weren’t you a little surprised when you came up here to see McKnight testify against Richardson because you just made a sale of hash to him in Wuerzburg in the last month?

Immediately, defense counsel objected and told the judge that “the witness should be advised of any kind of rights before he answers that question.” To this, the trial counsel replied:

Your Honor, I’m impeaching this witness on prior misconduct.

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

Related

United States v. Specialist ERICK I. NUNO
Army Court of Criminal Appeals, 2020
United States v. Specialist CHISTOPHER J. MATTHEWS (2d Corrected Copy)
66 M.J. 645 (Army Court of Criminal Appeals, 2008)
United States v. Hayes
36 M.J. 361 (United States Court of Military Appeals, 1993)
United States v. Moore
36 M.J. 329 (United States Court of Military Appeals, 1993)
United States v. Evans
33 M.J. 309 (United States Court of Military Appeals, 1991)
United States v. Castillo
29 M.J. 145 (United States Court of Military Appeals, 1989)
United States v. Vanderlip
28 M.J. 1070 (U.S. Navy-Marine Corps Court of Military Review, 1989)
United States v. Antonitis
26 M.J. 856 (U.S. Army Court of Military Review, 1988)
United States v. Fisher
24 M.J. 358 (United States Court of Military Appeals, 1987)
United States v. Lucas
19 M.J. 773 (U S Air Force Court of Military Review, 1984)
United States v. Spencer
19 M.J. 677 (U S Air Force Court of Military Review, 1984)
United States v. Hill
18 M.J. 459 (United States Court of Military Appeals, 1984)
United States v. Alexander
17 M.J. 763 (U.S. Navy-Marine Corps Court of Military Review, 1983)
United States v. Hunter
17 M.J. 738 (U.S. Army Court of Military Review, 1983)
United States v. Gonzalez
16 M.J. 423 (United States Court of Military Appeals, 1983)
United States v. Fisher
17 M.J. 768 (U S Air Force Court of Military Review, 1983)
United States v. Williams
16 M.J. 333 (United States Court of Military Appeals, 1983)
United States v. Dennis
16 M.J. 957 (United States Court of Military Appeals, 1983)
United States v. Parker
15 M.J. 146 (United States Court of Military Appeals, 1983)

Cite This Page — Counsel Stack

Bluebook (online)
15 M.J. 41, 1983 CMA LEXIS 23047, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-richardson-cma-1983.