United States v. Robertson

39 M.J. 211, 1994 CMA LEXIS 17, 1994 WL 228478
CourtUnited States Court of Military Appeals
DecidedMay 31, 1994
DocketNo. 68,330; CMR No. 28955
StatusPublished
Cited by21 cases

This text of 39 M.J. 211 (United States v. Robertson) 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. Robertson, 39 M.J. 211, 1994 CMA LEXIS 17, 1994 WL 228478 (cma 1994).

Opinion

Opinion of the Court

CRAWFORD, Judge:

Contrary to his pleas, appellant was found guilty, by a general court-martial with members, of using cocaine, in violation of Article 112a, Uniform Code of Military Justice, 10 USC § 912a. He was sentenced to a bad-conduct discharge, confinement for 6 months, total forfeitures, and reduction to the lowest enlisted grade. The convening authority approved the sentence, and the Court of Military Review affirmed the findings and sentence. 34 MJ 1206 (1992). We granted review on the following issues:

I
WHETHER THE AIR FORCE COURT OF MILITARY REVIEW ERRED IN HOLDING NO MATERIAL PREJUDICE RESULTED WHEN THE MILITARY JUDGE ALLOWED THE TRIAL COUNSEL, OVER OBJECTION, TO ATTACK THE CREDIBILITY OF MS. MINTER BASED ON HER ARREST FOR CONSPIRACY TO COMMIT FRAUD.
[213]*213II
WHETHER THE AIR FORCE COURT OF MILITARY REVIEW ERRED IN HOLDING NO MATERIAL PREJUDICE RESULTED WHEN THE MILITARY JUDGE DID NOT ALLOW A DEFENSE WITNESS TO TESTIFY THAT APPELLANT WAS LAW-ABIDING.
III
WHETHER THE AIR FORCE COURT OF MILITARY REVIEW ERRED IN HOLDING NO MATERIAL PREJUDICE RESULTED WHEN THE APPELLANT WAS DENIED POST-TRIAL EFFECTIVE ASSISTANCE OF COUNSEL.

For the reasons set forth herein, we affirm.

FACTS

Appellant tested positive for cocaine as the result of a lawful mandatory urinalysis drug test. His defense was innocent ingestion. His roommate, Ms. Minter, a recovering drug addict, testified that several days before appellant’s urinalysis test, she had visited a park where she drank beer and purchased almost a gram of cocaine. When the police started to close down the park, she put the cocaine in her beer to avoid being caught with it and drank about half of the beer on her way home. At home she placed the beer on the coffee table and went to the bathroom. When she returned, the beer was gone, and she assumed that appellant had taken it. Appellant testified that he drank the beer, not knowing that it was laced with cocaine.

Dr. Wallace, a government expert witness who testified as to the laboratory report, indicated that the accused’s urine showed 628 nanograms of cocaine. Dr. Wallace opined that, even if appellant had ingested the entire amount of cocaine purchased by Ms. Minter in the park and dumped into her can of beer, statistical projections indicate that only 50 to 150 nanograms of cocaine metabolite would be present in appellant’s urine 66 hours later. Dr. Wallace further opined that the accused would have had to ingest a “near fatal” amount of cocaine for 628 nanograms of the metabolite to have been present 66 hours later.

Issue I

At trial, trial counsel asked Ms. Minter on cross-examination:

Q. Now, you’ve had some problems with honesty before, haven’t you, Miss Minter?
A. No.
Q. Do you remember back in September of ’84, having some problems — you were arrested for conspiracy to commit fraud, and attempted burglary?
A. I’d rather — I plead the Fifth on that. I don’t want to have anything — answer anything about my past that doesn’t have anything to do with this case.

After a motion to strike her testimony, the military judge convened a session under Article 39(a), UCMJ, 10 USC § 839(a), without the members present. At this session the prosecutor argued that both conspiracy to commit fraud and attempted burglary were “directly [related] to her character for truthfulness.” He also indicated there was a “good-faith basis” for the question because it was based upon an FBI report, although he did not know the underlying facts.

Civilian defense counsel argued that a mere arrest not amounting to a conviction could not be used for impeachment purposes. Defense counsel also argued that the evidence was inadmissible under Mil.R.Evid. 404(b), Manual for Courts-Martial, United States, 1984.1 The judge overruled defense counsel’s objection.

When the court members reconvened, the prosecutor renewed and emphasized his question and asked Ms. Minter:

[214]*214I was asking a line of questions about, if you had problems in the past with honesty or truthfulness, and you said no. And I asked you if you didn’t think that having been arrested in September of 1984 for conspiracy to commit fraud would be something involving honesty and truthfulness. I ask you that again?

She replied, “No.” Trial counsel accepted this answer without follow-up questions.

The court below determined that “[a]n arrest is governmental conduct, not conduct of the witness.” Therefore, they found error in using an arrest for impeachment purposes but found the error to be harmless. 34 MJ at 1208. In United States v. Toro, 37 MJ 313, 315 (CMA 1993), we said, “There are three evidentiary stages which concern the credibility of witnesses at trial: bolstering, impeachment, and rehabilitation.”

Issue I concerns the impeachment stage. There are numerous methods of impeachment, including use of specific instances of misconduct, prior convictions, contradiction, inconsistent statements, inconsistent acts, bias, and deficiencies in the elements of competency. Id. at 315. The method at issue here is impeachment by specific instances of conduct — in this case an arrest for conspiracy to commit fraud and attempted burglary. Mil.R.Evid. 608(b), which is substantially the same as Fed.R.Evid. 608(b), provides:

Specific instances of conduct of a witness, for the purpose of attacking or supporting the credibility of the witness, other than conviction of crime as provided in Mil. R.Evid. 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the military judge, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning character of the witness for truthfulness or untruthfulness ....

(Emphasis added.) Impeachment under Mil. R.Evid. 608(b) and Fed.R.Evid. 608(b) may not be based merely upon any instance of misconduct but, rather, upon conduct that relates to untruthfulness.2

In order to have proper cross-examination as to misconduct relating to untruthfulness: (1) there must be a good-faith belief by the opponent that the conduct occurred; and (2) the conduct must relate to instances of untruthfulness. Cf. Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948). As to (1), a rap sheet from a law enforcement agency, in this case the FBI, can furnish the good-faith belief that conduct occurred if it details the underlying facts for the arrest. People v. Williams, 228 Cal.App.3d 146, 152, 278 Cal.Rptr. 801, 804 (1991). A prosecutor who is not using a detailed rap sheet or is not acting in good faith can be called to the witness stand at an Article 39(a) session to furnish the basis for his information. See United States v. Cardarella,

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Cite This Page — Counsel Stack

Bluebook (online)
39 M.J. 211, 1994 CMA LEXIS 17, 1994 WL 228478, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-robertson-cma-1994.