United States v. Weeks

20 M.J. 22, 1985 CMA LEXIS 18072
CourtUnited States Court of Military Appeals
DecidedMay 13, 1985
DocketNo. 47,866; NMCM 82 5652
StatusPublished
Cited by119 cases

This text of 20 M.J. 22 (United States v. Weeks) 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. Weeks, 20 M.J. 22, 1985 CMA LEXIS 18072 (cma 1985).

Opinion

Opinion of the Court

COX, Judge:

On May 26-27, 1982, appellant was tried by a general court-martial composed of officer members. Despite his pleas, he was found guilty of possession, transfer, and sale of marihuana on three separate occasions, contrary to Article 1151, United States Navy Regulations (1973), in violation of Article 92, Uniform Code of Military Justice, 10 U.S.C. § 892. He was sentenced to a dishonorable discharge, confinement at hard labor for 6 years, total forfeitures, and reduction to pay grade E-l. The convening authority approved this sentence. On September 30, 1983, the United States Navy-Marine Corps Court of Military Review affirmed, ordering credit for 58 days of pretrial confinement. 17 M.J. 613.

This Court granted review on the following issue:

WHETHER THE MILITARY JUDGE ERRED BY GRANTING THE GOVERNMENT’S MOTION TO EXCLUDE EVIDENCE OF APPELLANT’S GOOD, LAW-ABIDING MILITARY CHARACTER DURING THE CASE IN CHIEF.

We have examined the record of trial and find no indication that the defense intended to introduce any evidence of appellant’s law-abiding character. Cf. United States v. Clemons, 16 M.J. 44, 45 (C.M.A. 1983). Accordingly, we will restrict our review to the propriety of the trial judge’s ruling [23]*23excluding evidence of appellant’s good military character. See Mil.R.Evid. 103.

Some background as to the circumstances of this case is necessary to understand the granted issue. The Court of Military Review said in this regard:

On 27 January 1982, 29 January 1982, and 4 February 1982, appellant sold 27.9, 29.6, and 215.4 grams of marihuana, respectively, to one Sergeant H, an undercover NIS informant at his off-base home in Triangle, Virginia. These three purchases by Sergeant H were “controlled buys”: Sergeant H was searched prior to entering appellant’s house and upon leaving the house. While he was inside the house NIS agents waited outside in a parked car. Appellant testified at trial, however, that he was not home on 27 January and that on the other two occasions Sergeant H merely visited him to pay him money that Sergeant H owed him for taped record albums. Appellant maintained that Sergeant H was lying in order to ingratiate himself with his command because he had come up positive for marihuana use on a urinalysis screening. Appellant theorized that Sergeant H must have hidden the marihuana either in the bushes in the front of appellant’s house or in the garden in the back of the house, and then he must have taken the marihuana from its hiding place to the agents waiting in the parked car.

17 M.J. at 614.

Turning to the record of trial, we note further the following circumstances surrounding the Government’s motion to limit the defense’s evidence of appellant’s good military character:

“TC: Yes, sir. The defense has indicated that they intend to present, or may intend to present — they didn’t specifically say, they said it was possible that they would present — evidence of the accused’s good military character on the merits. And it is the government’s position that such evidence should be precluded under the military rules of evidence. Specifically, we are talking about Rule 404 — a(l), I believe it is. We would say that the general military character of the accused is not an issue, and it is not a pertinent character trait which need be proved one way or another in this particular set of facts.
“MJ: All right. Does the defense intend to present such evidence on the merits?
“DC: Your Honor, the defense is aware and mindful—
“MJ: Excuse me, Major Lowder, because of the fan I am going to have to ask you to speak up a little more.
“DC: Aye, aye, sir. Sir, the defense is aware and mindful of the recent trend in military decisions disallowing evidence of military character heretofore deemed generally admissible in trials by courts-martial. The defense is also aware of a line of cases stating that in a uniquely military offense pertinent general military character can be admissible in those instances. Now, the offenses here are lodged under a violation of a general order or a Navy regulation which is a particularly military offense. We are also, however, mindful of a line of cases there that state that you look to the gravamen of the offense, and in this case we are dealing with simple possession, transfer and sale of drugs. We would just pray to the court here that the defense believes that in the final analysis, what we are going to get down to here is a credibility contest. Gunnery Sergeant Weeks’s 18-some-odd years of very, very fine military service would certainly be pertinent in the weighing of who these members are going to side up with for guilt or innocence. We would pray for the admissibility of such matters. Thank you.
“TC: If we may respond, sir, once again the good performance of duty or the proper performance of duty, good general military character, is not something which is indicative of the character trait of truthfulness or untruthfulness. There are a line of cases in that direction. The rule of evidence is very clear. The cases that have followed — the court may already be mindful of the U.S. v. Cooper case 11 MJ 815. That was an Air Force case where the [24]*24court said you should look to the military nature of the offense which is charged in determining whether or not the character trait is pertinent, and not the fact that it was charged under Article 134 of the Code. The defense position in that case was that because it is under Article 134 the government had to show prejudice to good order and discipline. Therefore the good military character of the accused was in issue. The Court of Military Review in that particular case disagreed. We would argue the rationale goes the same here with Article 92 offenses. It is not the mere fact that this is a violation of an order. The sale, possession and transfer of drugs is not something that is uniquely military. It is something which is prohibited, to our knowledge, throughout this country. The — we would also cite the Blanchard case, which is a COMA case, at 11 MJ 268. And specifically, it was different facts there, a different fact situation; but the holding of the court was that it was error to show the good performance of duty of a particular witness, because there is no relationship between his performance of duty and his credibility. We believe all of those things apply with regard to the good military character of the accused. And while the defense brings it up, your Honor, that would have been the second part of our motion. The motion in limine would also be not only to preclude the defense from putting in on the case on the merits evidence of good military character, we would also ask that they be precluded from putting evidence of opinion or reputation evidence as to the credibility or the character trait of the accused for truthfulness. First of all, until he testifies his credibility is not even in issue. And secondly, even if he does testify, it requires a specific attack by the government before they are permitted to bolster their credibility. We believe there is the significant possibility the defense will merely try to place evidence of the accused’s character trait for truthfulness, truth and veracity, without any attack on his credibility whatsoever.

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Cite This Page — Counsel Stack

Bluebook (online)
20 M.J. 22, 1985 CMA LEXIS 18072, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-weeks-cma-1985.