United States v. Trimper

28 M.J. 460, 1989 CMA LEXIS 3490, 1989 WL 95562
CourtUnited States Court of Military Appeals
DecidedAugust 23, 1989
DocketNo. 60,399; ACM 26211
StatusPublished
Cited by53 cases

This text of 28 M.J. 460 (United States v. Trimper) 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. Trimper, 28 M.J. 460, 1989 CMA LEXIS 3490, 1989 WL 95562 (cma 1989).

Opinion

Opinion of the Court

EVERETT, Chief Judge:

At his genera] court-martial in February 1987, Captain Trimper, an Air Force judge advocate, contested specifications alleging wrongful use of cocaine and marijuana on divers occasions between May 1, 1985, and August 1, 1986, in violation of Article 112a, Uniform Code of Military Justice, 10 USC § 912a. Nonetheless, the members found him guilty and sentenced him to dismissal, confinement for 7 years, and total forfeitures. The convening authority approved these results, except for reducing the confinement to 5 years. On review below, the Court of Military Review affirmed the findings and most of the sentence — cutting the confinement even further, to 3 years. 26 MJ 534 (1988).

Through various issues, appellant complains in this Court about use of evidence of a private urinalysis allegedly commissioned by himself and of admissions concerning the urinalysis report that allegedly were made by him to an office co-worker. 27 MJ 463. Specifically, he complains that trial counsel did not disclose this evidence to the defense until just before the prosecutor used it during the trial; and he urges that, as a result, the evidence should have been suppressed. Instead, the challenged evidence not only served as a basis for trial counsel’s cross-examination of appellant but also was admitted directly against him.

In our view, Trimper, by his own testimony, opened the way for the prosecution to use the contested evidence, even though it otherwise would have been inadmissible. Although we agree that trial counsel should have disclosed this evidence to the defense, see RCM 701(a)(2)(B) and Mil.R. Evid. 304(d)(1), Manual for Courts-Martial, United States, 1984, we conclude that the [462]*462military judge acted within his discretion in fashioning an appropriate remedy for this prosecutorial delict, see RCM 701(g)(3) and MiLR.Evid. 304(d)(2)(B).

I

As noted earlier, the time period in which Trimper allegedly used marijuana and cocaine was from May 1, 1985, to August 1, 1986. His wife and several of his close friends, many of whom themselves had been drug users and were testifying under grants of immunity, revealed various occasions when they had observed such use within that time frame.

During extensive direct and cross-examination, appellant asserted that all of the witnesses against him had lied and that all had compelling motives for their perjury. The steadfastness of his position in this regard can best be seen from the following limited colloquy with assistant trial counsel during cross-examination:

Q. I’d like to move on to talk about each of these witnesses’ testimony, the testimony of the witnesses against you. Now, your ex-wife Kim has said that you used drugs over a period of time, and that you used cocaine on one occasion within the charged time frame. I take it you are denying those allegations?
A. Of course I’m denying them. They’re not true. I have to deny them. Q. And, essentially, you believe she’s being untrue?
A. I know she’s being untrue.
Q. How about Gary Nelson. He’s made some allegations, not precisely the same time frame, but generally so?
A. He’s a bold faced liar and a cheat and a thief.
Q. And Linda Dale, how about the allegations at Wasilla?
A. Lies.
Q. And Mike Dale?
A. Lies.

Subsequent to this exchange, appellant was questioned about incidents involving an unusually fast heartbeat rate. First, he was asked about an occasion when his girlfriend had mentioned to him, one night while lying in bed together, that his heart was pounding at a fast rate — an incident that appellant denied had ever happened. Then he was questioned about an occasion on which he reported to the emergency room because he feared he was having a heart attack; indeed, on that occasion his heart rate at the hospital was recorded in his medical file as 100 beats per minute. The relevance of this questioning became apparent in this colloquy:

Q. Are you aware that tachycardia or accelerated heart rate is a symptom of cocaine use?
A. I have heard that.
Q. Did you use cocaine at anytime the night before [the feared heart attack]?
A. I have never used cocaine.

(Emphasis added.)

Appellant repeated his expansive denial of drug involvement a short time later when he was discussing with assistant trial counsel his investigative interviews with OSI agents:

Q. Now, the time that you talked to them [OSI] initially, you were not aware that Linda Dale and Mike Dale were going to come forward with any testimony against you?
A. No, I was in, I had no idea who was going to lie about me.
Q. So, you denied some of the things that the other three people had said? A. I denied everything anybody had ever said about any wrongdoing from the git-go, because it’s not true about any drug involvement.
Q. What I’m getting at is, were you being cagey with them by not addressing these other instances?
A. What do you mean?
Q. If they asked you about these three individuals, were you denying and not giving them information about possible use on these other occasions?
A. There is no use, there is no use, there’s no use, there’s no use to talk [463]*463about. How could I be cagey about something that’s not there?
* * * * * *
Q. Mr. Lazar [civilian defense counsel] asked you the question if between 1 May ’85 and 1 August ’86, you had used drugs, and your answer was, I believe
A. Of course, it was no.
Q. You understand that there’s been some testimony about a couple of later dates? Are you being cagey with us? We’re talking specifically about Mike Dale and the other incidents up in Wasilla?
A. Oh, you’re talking about the ones that are outside the spec that was still brought in. They’re false too, I’m not being cagey. I have not used drugs. These five people who have come in here today, not today, the last few days, have lied, period.
Q. So, you just deny outright that you have used drugs?
A. Yes, yes.

Defense counsel objected to the last query, insisting that the prosecutor should have to restrain his questioning to events within the time frame charged. Civilian defense counsel acknowledged that the judge had ruled that the alleged incident at Wasilla, later in August, “falls within the parameters of the specification, those allegations.” Defense counsel clarified his objection that the questioning seemed to go beyond that, as well.

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Cite This Page — Counsel Stack

Bluebook (online)
28 M.J. 460, 1989 CMA LEXIS 3490, 1989 WL 95562, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-trimper-cma-1989.