United States v. Sitton

39 M.J. 307, 1994 CMA LEXIS 35, 1994 WL 263914
CourtUnited States Court of Military Appeals
DecidedJune 17, 1994
DocketNo. 93-0058. CMR No. 92 0419
StatusPublished
Cited by7 cases

This text of 39 M.J. 307 (United States v. Sitton) 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. Sitton, 39 M.J. 307, 1994 CMA LEXIS 35, 1994 WL 263914 (cma 1994).

Opinion

Opinion of the Court

COX, Judge:

Appellant was tried by a special court-martial composed of officer and enlisted members at the Naval Base, Charleston, South Carolina. Pursuant to his pleas, he was convicted of being absent without leave (86 days) and missing movement through neglect, in violation of Articles 86 and 87, Uniform Code of Military Justice, 10 USC §§ 886 and 887, respectively. Contrary to his pleas, he was convicted of a consolidated specification of larceny, in violation of Article 121, UCMJ, 10 USC § 921. Appellant was sentenced to a bad-conduct discharge, confinement and forfeiture of $502.00 pay per month for 6 months, and reduction to pay grade E-l. The convening authority approved the sentence, and the Court of Military Review affirmed in an unpublished opinion dated September 18, 1992.

[308]*308This Court granted review of the following issue:1

WHETHER THE MILITARY JUDGE ERRED IN DENYING THE DEFENSE MOTION TO SUPPRESS EVIDENCE OF THE PRIOR CONVICTIONS OF A DEFENSE WITNESS.

On April 18, 1991, Petty Officer Third Class Jensen ate dinner at the Naval Station Galley. He placed his wallet in the chair beside him, under his cover (hat). The wallet contained.$261.00, his identification card, and his teller machine card. When Jensen left the galley, he accidentally left the wallet behind. Ms. McDaniel, a civilian employee of the galley, contends that appellant sat at the same table used by Jensen and, when she asked to whom the wallet belonged, appellant claimed it.

At trial, the Government planned to present Ms. McDaniel’s testimony and appellant’s signed confession. Appellant was to testify that he had never been approached by Ms. McDaniel and had never possessed the wallet. In corroboration, the defense planned to present the testimony of Seaman Recruit Bryant who was with appellant at the galley on the night in question and would also testify that appellant did not receive a wallet from Ms. McDaniel.

Realizing the Government would use Bryant’s prior convictions of wrongful use of cocaine and unauthorized absence of over 10 years for impeachment, defense counsel made a motion in limine to prevent the prosecution from presenting that evidence. The military judge denied the defense motion, and the convictions were admitted at trial to impeach Bryant.

Fed.R.Evid. 609(a)(1), as amended in 1990 and made applicable to the military by Mil. R.Evid. 11022, provides in pertinent part: For the purpose of attacking the credibility of a witness,

(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted....

Mil.R.Evid. 403, Manual for Courts-Martial, United States, 1984, virtually identical to Fed.R.Evid. 403, establishes the balancing test to be performed by the military judge:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the members, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Appellant argues that the Mil.R.Evid. 403 balancing test does not allow admission of Bryant’s convictions. He contends that the probative value of the convictions is slight and that they do not assist in resolving the issue of Bryant’s credibility. Appellant also argues that he is prejudiced from a guilt-by-association inference. We disagree.

In United States v. Brenizer, 20 MJ 78 (CMA 1985), we addressed factors to be considered in determining admissibility of an accused’s prior convictions for the purpose of impeaching his trial testimony under Mil. R.Evid. 609(a), Manual for Courts-Martial, United States, 1969 (Revised edition). The factors we considered relevant to the balancing of probative value and prejudicial impact under the former Mil.R.Evid. 609 were:

(1) The impeachment value of the prior crime.
(2) The point in time of the conviction and the witness’ subsequent history.
(3) The similarity between the past crime and the charged crime.
(4) The importance of the defendant’s testimony.

[309]*309(5) The centrality of the credibility issue.

20 MJ at 80, citing United States v. Hawley, 554 F.2d 50, 53 n. 5 (2d Cir.1977); United States v. Mahone, 537 F.2d 922, 929 (7th Cir.), cert. denied, 429 U.S. 1025, 97 S.Ct. 646, 50 L.Ed.2d 627 (1976). The same factors, though certainly not the only factors, are also helpful in performing the balancing test to determine admissibility of prior convictions of a witness other than the accused pursuant to Fed.R.Evid. 609(a)(1) as amended, effective December 1, 1990.3

Regarding the impeachment value of Seaman Recruit Bryant’s prior convictions, we agree with the military judge who found that “the impeachment value of the conviction for unauthorized absence ... is relatively low,” but exists, and there is a greater impeachment value for the conviction of wrongful use of cocaine. 20 MJ at 81, citing United States v. Johnson, 1 MJ 152, 154 (CMA 1975); United States v. Weaver, 1 MJ 111, 118 n. 6 (CMA 1975); United States v. Nicholson, 8 USCMA 499, 502-03, 25 CMR 3, 6-7 (1957). Under proper instructions, it was for the court members to determine whether Bryant, as a convicted felon [see MiLR.Evid. 609(a) — last sentence], was a trustworthy person.

The next factor is the recency of Seaman Bryant’s convictions which were approximately 3 months before appellant’s court-martial. Recent convictions obviously show more about the present veracity of the witness than older, remote ones.

The third factor, the similarity between the charged offense and the past crime has little, if any, relevance where the witness is not the accused. See 20 MJ at 81. Under the circumstances, the difference between the crimes of the witness (unauthorized absence and wrongful use of cocaine) and the offense with which appellant is charged (larceny) rebuts appellant’s guilt-by-association argument for the exclusion of the impeachment evidence.

Turning to the fourth factor, the importance of the witness’ testimony should be considered to “militate[] against permitting impeachment if it is thought likely to deprive the factfinder of important testimony.” Id. Seaman Recruit Bryant’s testimony was central to the defense; he and appellant were the only defense witnesses and were both at the galley at the time of the alleged offense. Seaman Recruit Bryant’s testimony basically echoed that of appellant, and its significance was as corroboration of appellant’s story.

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

Related

United States v. Diffoot
54 M.J. 149 (Court of Appeals for the Armed Forces, 2000)
United States v. Cobia
53 M.J. 305 (Court of Appeals for the Armed Forces, 2000)
United States v. Miller
48 M.J. 49 (Court of Appeals for the Armed Forces, 1998)
United States v. Ross
44 M.J. 534 (Air Force Court of Criminal Appeals, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
39 M.J. 307, 1994 CMA LEXIS 35, 1994 WL 263914, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-sitton-cma-1994.