United States v. Shields

20 M.J. 174, 19 Fed. R. Serv. 1070, 1985 CMA LEXIS 17019

• Court: United States Court of Military Appeals
• Decided: July 1, 1985
• Docket: No. 47,136; SPCM 18197
• Status: Published

Opinions

Opinion

COX, Judge:

Despite his pleas, the accused was convicted by a special court-martial of wrongfully destroying private property, assault with a means likely to produce grievous bodily harm, and wrongfully communicating a threat on two occasions, in violation of Articles 109,128, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 909, 928, and 934, respectively. The approved sentence extends to a bad-conduct discharge, confinement at hard labor for 6 months, and forfeiture of $367.00 per month for 6 months. The Court of Military Review affirmed in a short-form opinion.

We granted review of the following issue:

DID THE MILITARY JUDGE ERR TO THE SUBSTANTIAL PREJUDICE OF THE APPELLANT BY ALLOWING THE GOVERNMENT TO INTRODUCE EVIDENCE OF HIS REPUTATION AS A BULLY WHEN HE HAD NOT PLACED HIS CHARACTER FOR PEACEFULNESS INTO ISSUE?

Finding no errors, we affirm.¹

The offenses charged in this case arose during an extended birthday party given by the accused for himself. Several times during the party, Shields and some of his friends engaged in pushing and shoving, and cutting the trousers of a barracks mate, Private Jeffrey Mooney. Three specifications of aggravated assault and one of robbery were among the charges brought against the accused. Possibly due to the varying states of intoxication of the participants, there were several conflicting stories of what occurred. In support of these allegations, the victim and others testified as to three separate assaults by the accused on the victim.

In response the accused and other witnesses testified that Mooney had become intoxicated and initiated the affrays, and they also implicated a Private Donald Cioffi, who had earlier testified for the Government, in some of the assaults on Mooney. Throughout, the accused pictured himself as trying to calm things down and maintain peaceful relations with Mooney and the others.² He denied threatening Mooney with a knife or cutting off his trousers. Without going into details it may be fairly said that the conflicting testimony indicates that the roles of aggressor and victim were exchanged at various times during the afternoon and evening between the accused, Mooney, and Cioffi.

In rebuttal, trial counsel called a witness to testify as to the accused’s reputation in the barracks for “[b]eing a bully.” Defense counsel objected and asked for a mistrial on the ground that the accused had not placed his character in evidence. The military judge, citing Mil.R.Evid. 608, overruled the objection.

The military judge viewed the issue as being “whether or not the testimony of the accused in this particular case ... [was] sufficient to raise it to the thresholds that the government ... [could] offer rebuttal testimony on character in the sense of the opinion of this witness as to the character of the accused.” Defense counsel argued that “the only way ... [he could] put on character evidence as to peacefulness ... [was] by asking someone how long they ... [had] known the accused and what contact they ... [had] with him and if they ... [had] an opinion or if they ... [knew] his reputation.” The military judge later explained:

But, for the fact of rebuttal, the government cannot rebut the character of the accused unless that has been placed in issue. My ruling wasn’t just the accused’s testimony that placed peacefulness in issue, but the character of the accused’s testimony — that is his statements on the stand, his testimony as to what happened, what he intended to do and what he did, in fact, do. Although that does not fall into the area of opinion and reputation, my ruling [is] that the character for peacefulness could be raised through a means other than just character opinion.

The military judge based his ruling on Mil.R.Evid. 608(a).³ However that rule limits attacks on credibility to evidence for truth and veracity. While the testimony here, if believed, would controvert the accused’s professed trait of being a “peaceful person,” it would appear to be more cogently directed, in the context of this case, toward showing “a pertinent trait of the character of the accused” under Mil.R. Evid. 404(a)(1).⁴ That rule limits the introduction of such evidence “by the prosecution to” rebuttal of such evidence offered by the accused.⁵ Since the accused did not directly offer evidence of his character and reputation for peacefulness, the only rebut-table evidence of this trait could have come from his own descriptions of his motives and acts which could, inferentially or otherwise, be said to show that trait. The military judge characterized “the testimony of the accused ... to his peaceable character ...” as a basis for his ruling apparently in the belief that the accused had placed his character into evidence by his own assertions of his peaceful intentions.

We have held elsewhere that the defense must assume responsibility not only for the specific evidence it introduces but also for the reasonable inferences which may be drawn from such evidence. See United States v. Strong, 17 M.J. 263 (C.M.A.1984). The determination as to whether the defense “opened the door” is for the trial judge. In addition, under Mil.R.Evid. 403, the military judge is given wide discretion in balancing the probative value of evidence with its “danger of unfair prejudice.” See S. Saltzburg, L. Schinasi, and D. Schlueter, Military Rules of Evidence Manual 176-77 (1981). Examination of the record of trial of this case illustrates the wisdom of leaving these matters to the sound discretion of the military judge. Our appellate review is properly addressed to whether an abuse of that discretion occurred. While we might have ruled otherwise had we been at the trial, we cannot say that, on the record before us, there was an abuse of discretion in- admitting this testimony.

The decision of the United States Army Court of Military Review is affirmed.

Judge FLETCHER did not participate.

1 . The issue as stated can lead to only one conclusion. We treat only that part of it which relates to whether the accused had placed his reputation for peacefulness into issue.

2 . The general tenor of the accused’s testimony may be seen from these excerpts:

And my basic intention was to go up there and, you know, as a — as a peace making bond

... I asked Mooney, I said, "Look, now, are you okay? Is everything all right? Let’s go on back downstairs and sit down and have a couple of drinks and get your head together a little bit.” There again, he was belligerent and out of hand and pushed here and pushed there ____

... I said, “Look, let’s go outside and get some fresh air. Let’s talk about this. Let’s get everything ironed out. I don’t want no hard feelings or anything like that.” ...

3 . In pertinent part Mil.R.Evid. 608(a) provides: The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

4 . Mil.R.Evid. 404 provides in pertinent part:

(a) ... Evidence of a person’s character or a trait of a person’s character is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion, except:

(1) Character of the accused. Evidence of a pertinent trait of the character of the accused offered by an accused, or by the prosecution to rebut the same; ____

5 . Both Mil.R.Evid. 404 and 608 give the option to the accused to initially introduce character evidence. See S. Saltzburg, L. Schinasi, and D. Schlueter, Military Rules of Evidence Manual 181-82 (1981). This is consistent with the longstanding practice under the common law which forbids the prosecution’s introduction of evidence of the bad character of an accused unless and until the accused places his own good character into evidence. See 1A Wigmore, Evidence §§ 55 and 57 (Tillers rev. 1983). This restriction is designed to prevent the conviction of an accused for a specific crime because he has the reputation for being a "bad man." McCormick’s Handbook of the Law of Evidence 447 (E. Cleary 2d ed. 1972); see also Mil.R.Evid. 404(b). The premise is not that such evidence is irrelevant, but rather that, in the context of a jury trial, the danger of prejudice outweighs its probative value. See Mil.R.Evid. 403.