United States v. Turner

5 C.M.A. 445, 5 USCMA 445, 18 C.M.R. 69, 1955 CMA LEXIS 455, 1955 WL 3284
CourtUnited States Court of Military Appeals
DecidedJanuary 28, 1955
DocketNo. 5549
StatusPublished
Cited by6 cases

This text of 5 C.M.A. 445 (United States v. Turner) 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. Turner, 5 C.M.A. 445, 5 USCMA 445, 18 C.M.R. 69, 1955 CMA LEXIS 455, 1955 WL 3284 (cma 1955).

Opinion

Opinion of the Court

Paul W. Brosman, Judge:

Private Turner, the accused in this case, was tried and found guilty by a general court-martial under a charge alleging unpremeditated murder, in violation of the Uniform Code of Military Justice, Article 118, 50 USC § 712. The findings and the sentence to dishonorable discharge, total forfeitures, and confinement at hard labor for thirty years were approved by the convening authority, and subsequently affirmed by a board of review in the office of The Judge Advocate General, United States Army. Thereafter we granted review limited to the issue of whether the testimony by prosecution witnesses as to their personal opinions of the veracity of the accused — as contrasted with his reputation — was admissible.

II

The evidence adduced at the trial left no doubt that, while stationed with an ordnance company in Korea, the accused had slain one Private Landrum, a fellow member of his unit. However, in his sworn testimony the former sought to excuse or justify this homicide. According to his account of relevant events, he was awakened at approximately 2:00 a.m. on February 28, 1954, to discover Landrum lying atop him and engaged in the attempted perpetration of an act of sodomy. Turner resisted this aggression and, after a brief struggle, Landrum departed from the accused’s tent. The latter subsequently armed himself with a carbine and proceeded to Landrum’s quarters some hundred yards away. Turner explained that his purpose was to apprehend his erstwhile assailant, and to surrender him to proper military authorities — but that, as he entered the tent, Landrum approached him menacingly carrying á poker. Thereupon — to frighten and so halt Landrum — Turner fired “up towards the ceiling.” Despite a claimed intention not to inflict injury, the bullet tore through Landrum’s heart and killed him instantly. The accused told the court that he had not known at the time whether he had struck his victim, but that he had gone from the tent at once —thus abandoning his assigned effort to apprehend Landrum.

In addition to various inconsistent statements on the part of the accused, on which the Government relied to impeach his credibility, its lawyers called as witnesses a corporal Colbert, and one Sergeant Mack — both of whom were members of the accused’s company, and had known him for some eight months. Each stated that he had enjoyed ample opportunity to form an opinion of the accused’s character as regards truthfulness, and that it was his opinion that the word of Private Turner was not to be accepted or relied on. Further, each stated that he would not believe Turner under oath. Defense counsel inquired of Colbert and Mack why they were not inclined to believe the accused, whereupon they recounted specific incidents which they thought to demonstrate the' assigned want of veracity.

[447]*447III

Appellate defense counsel have urged that in a court-martial — as in most civilian courts — a witness Headnote 1 may only be permitted to testify to another’s reputation, and not to the witness’ own opinion of that other’s character. Our rejection of that suggestion here is implicit in the following passage from United States v. Haimson, 5 USCMA 208, 17 CMR 208, decided by us some weeks after the grant of review in the present case:

“The current Manual for Courts-Martial permits proof of character not only by means of reputation evidence, but also through reliance on the opinions of witnesses first shown to have enjoyed a sufficiently close acquaintance or relationship with the person in question to justify the formation of a reliable judgment. Manual, supra, paragraph 138/(1). This provision represents a clear departure from the antecedent military rule — as well as the prevailing civilian principle — under which character may only be established by evidence of reputation in the community. See Manual for Courts-Martial, U. S. Army, 1949, paragraphs 1256, 1396; Legal and Legislative Basis, Manual for Courts-Martial, United States, 1951, page 213; United States v. Michelson, 335 US 469, 93 L ed 168, 69 S Ct 213; Wigmore, Evidence, 3d ed, §§ 1608-1622, 1980-6.”

As recognized in Haimson, the conclusion that opinion, as well as reputation, character testimony is admissible is compelled by the words of the current Manual for Courts-Martial:

. . Whenever the character of a person is admissible in a case, the opinion of a witness as to that person’s character may be received in evidence if it is first shown that the witness' has such acquaintance or relationship with the person in question as to qualify him to form a reliable opinion in this respect. Another mode of proving character is by adducing evidence of reputation for the kind of character involved.” [Manual for Courts-Martial, United States, 1951, paragraph 138/(1). Emphasis supplied.]
. . For the purpose of impeachment it may be shown that a witness has a bad character as to truth and veracity. ... A witness who gives competent testimony concerning the character (or reputation) of the person in question as to truth and veracity may be asked whether he would believe the person on oath. See 138/(1) as to ways of proving character.” [Manual, supra, paragraph 1536 (2) (a). Emphasis supplied.]

The intent of the present Manual’s draftsmen is made even clearer by a comparison of the foregoing language with the phrasing of the now-deleted statement from the 1949 Manual for Courts-Martial that “Personal opinion as to character is not admissible.” Paragraph 1396, page 186. The aim of the 1951 change was, we are sure, to adopt for the military establishment Dean Wigmore’s position to the effect that it is absurd to receive in evidence the composite hearsay' — that product of “multiplied guesses and gossip” — which we designate reputation, while simultaneously excluding the opinions of another’s character entertained by persons who would be in such a position as to know that character, and whose evaluations may readily be subjected to cross-examination. See Legal and Legislative Basis, Manual for Courts-Martial, United States, 1951, page 213; Wigmore, Evidence, 3d ed, § 1986. Cf. Ladd, Techniques and Theory of Character Testimony,' 24 Iowa LR 498, 511 (1939) ; Ladd, Credibility Tests — Current Trends, 89 U Pa LR 166, 173 (1940).

Indeed, Wigmore has concluded that the early common law rule clearly permitted a witness to voice his own opinion of another’s character. Wigmore, supra, §§ 1980-86. Moreover, as a practical matter, it is extremely difficult for either a witness, or the trier of fact, to maintain a rigid distinction between opinion, on the one hand, and reputation, on the other. Especially is this true with respect to the utilization of the generally-permitted question ad[448]*448dressed to a “reputation-character” witness, “would you believe X [the challenged witness] on oath?” It is indeed probable that but few witnesses, when asked this question, frame their answers solely in terms of the general reputation of the subject of impeachment — as divorced, that is, from the witness’ own opinion of the former’s veracity. Equally dubious is it that a juror or court member would fail to infer that the testimony with respect to veracity did to an appreciable extent mirror the witness’ own experience with the person in question. Cf. Wig-more, supra, § 1985.

IV

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Bluebook (online)
5 C.M.A. 445, 5 USCMA 445, 18 C.M.R. 69, 1955 CMA LEXIS 455, 1955 WL 3284, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-turner-cma-1955.