United States v. Sylvester

38 M.J. 720, 1994 CMR LEXIS 1, 1994 WL 1266
CourtU.S. Army Court of Military Review
DecidedJanuary 3, 1994
DocketACMR 9201249
StatusPublished
Cited by1 cases

This text of 38 M.J. 720 (United States v. Sylvester) is published on Counsel Stack Legal Research, covering U.S. Army 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. Sylvester, 38 M.J. 720, 1994 CMR LEXIS 1, 1994 WL 1266 (usarmymilrev 1994).

Opinions

OPINION OF THE COURT

RUSSELL, Judge:

A military judge sitting as a special court-martial convicted the appellant, pursuant to his pleas, of four specifications of larceny in violation of Article 121, Uniform Code of Military Justice, 10 U.S.C. § 921 [722]*722(1988) [hereinafter UCMJ]. A panel composed of officer and enlisted members sentenced the appellant to a bad-conduct discharge, confinement for three months, forfeiture of $262.00 pay per month for three months, and reduction to Private El. The convening authority approved the adjudged sentence.

This case is before the court for review pursuant to Article 66, UCMJ, 10 U.S.C. § 866.

The appellant contends that: 1) the trial counsel erred by referring in his sentencing argument to the appellant’s admissions made during the providence inquiry; 2) the military judge erred in allowing his commander’s testimony concerning rehabilitative potential; and 3) the court lacked jurisdiction because the military judge was not properly appointed. We have considered the foregoing contentions and conclude that only the second warrants further discussion.

I.

Opinion evidence offered pursuant to Rule for Court-Martial 1001(b)(5) [hereinafter R.C.M.] is admissible if it is relevant to rehabilitative potential, rationally based on an individual assessment of an accused’s character and potential, and not limited in scope to the question of whether the accused should be discharged from the military service. See United States v. Horner, 22 M.J. 294 (C.M.A.1986). However, even competent and probative R.C.M. 1001(b)(5) evidence must be excluded if presented, either directly or euphemistically, as a suggestion that an accused should be punitively discharged. United States v. Ohrt, 28 M.J. 301 (C.M.A.1989).

Captain Burrell testified in aggravation that he had known the appellant personally for approximately a year and a half, and had served as the appellant’s company commander over a period of fourteen months. Immediately following this description of his opportunity to observe the appellant’s personal characteristics, the trial counsel asked: “Based on your observations do you have an opinion as to Sylvester’s rehabilitative potential for future service, in the Army?”

The military judge then intervened, sua sponte, and instructed the trial counsel to omit the words “in the Army” from his question. Based on the military judge’s instruction, the following question and answer ensued:

Q: Captain Burrell, based on your observation, do you have an opinion as to Sylvester’s rehabilitative potential?
A: Yes, I have.

The trial defense counsel objected on the basis that he anticipated that Captain Burrell’s opinion would be based solely on his view of the appellant’s potential to be rehabilitated for service in the Army (notwithstanding the fact that the rephrased question called for only a generalized response.) The military judge overruled the objection, stating that trial counsel had asked the correct question. Captain Burrell responded, “My opinion is he has very little rehabilitative potential.”

On cross-examination, trial defense counsel asked, “Captain Burrell, isn’t it true, you believe that rehabilitative potential, your assessment of it, goes to military service, not for a productive citizen in the future?” Captain Burrell responded, “That’s true.”

Defense counsel then renewed his objection which the military judge again overruled.

II.

The narrow issue before us is whether R.C.M. 1001(b)(5) opinion evidence must be excluded, if, during cross-examination, it is shown to be limited in scope solely to the witness’s view of the accused’s rehabilitative potential to return to military service, as opposed to his potential to rehabilitate for a return to society generally. The appellant contends, in essence, that an opinion limited solely to potential for “military service” is objectionable on either of two grounds: (1) it is outside the scope of R.C.M. 1001(b)(5) “rehabilitative potential” evidence as defined in Horner; and (2) the witness’s admission on cross-examination [723]*723that his opinion was based solely on rehabilitative potential for “military service” breached the Ohrt rule against euphemisms. Reviewing for abuse of discretion by the military judge, we find no basis for relief.

A.

With regard to the appellant’s first contention, the Court of Military Appeals, interpreting the term “rehabilitative potential” from R.C.M. 1001(b)(5), adopted an expansive definition consistent with a return to a particular status and a return to society in general. Horner, 22 M.J. at 296. Though the Homer court could have held that its broad definition of rehabilitative potential effected a complete proscription of R.C.M. 1001(b)(5) opinions limited to the military context, they did not. Indeed, the Court of Military Appeals has had ample opportunity to establish a bright line rule of inadmissibility of R.C.M. 1001(b)(5) evidence based on military service, but has not done so. Moreover, in Ohrt, the court stated that the Homer definition of “rehabilitative potential” was consistent with an Air Force policy regarding sentenced service-members that focused solely on a return to military service. 28 M.J. at 304. That policy provided:

Air Force policy is to restore to duty prisoners] who are thought physically, mentally, or morally qualified to become useful members of the Air Force.

Finally, Judge Sullivan, concurring in United States v. Aurich, 31 M.J. 95, 100 (C.M.A.1990), said it clearly:

Homer recognized the broad meaning of “rehabilitative potential” as intended in [R.C.M. 1001(b)(5) ]. However, it did not purport to prohibit all comments on military “rehabilitative potential” as a component part of the bigger picture, assuming a proper basis for such an opinion had been established.

(Citations omitted.)

Inasmuch as opinions of rehabilitative potential limited to return to military status are within the scope of opinions contemplated by R.C.M. 1001(b)(5), they are not per se inadmissible. Their admissibility is a matter within the discretion of the trial judge and they may be admitted provided they are relevant and any prejudicial effect does not outweigh probative value. Military Rule of Evidence 403; see United States v. Hefner, 29 M.J. 1022 (A.C.M.R.1990) cited with approval in United States v. Wilson 31 M.J. 91, 93 (C.M.A.1990). Therefore, once a proper foundation has been established, whether an R.C.M. 1001(b)(5) opinion applies to military service goes to the weight to be given the evidence, not to its admissibility. In this case, given Captain Burrell’s substantial opportunity to observe the accused’s personal character, we find that the military judge did not abuse his discretion in allowing his opinion of appellant’s rehabilitative potential for military service to be considered by the court-martial.

Accordingly, we hold that R.C.M. 1001(b)(5) opinion evidence is not per se inadmissible merely because it is shown to be based solely on the witness’s view of the appellant’s potential for military service.

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47 M.J. 615 (Army Court of Criminal Appeals, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
38 M.J. 720, 1994 CMR LEXIS 1, 1994 WL 1266, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-sylvester-usarmymilrev-1994.