United States v. Weeks

17 M.J. 613, 1983 CMR LEXIS 771
CourtU.S. Navy-Marine Corps Court of Military Review
DecidedSeptember 30, 1983
DocketNMCM 82 5652
StatusPublished
Cited by9 cases

This text of 17 M.J. 613 (United States v. Weeks) is published on Counsel Stack Legal Research, covering U.S. Navy-Marine Corps 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. Weeks, 17 M.J. 613, 1983 CMR LEXIS 771 (usnmcmilrev 1983).

Opinion

PER CURIAM:

Contrary to his pleas, appellant was convicted by a general court-martial composed of officer members of nine specifications of possession, transfer, and sale of marijuana in violation of Article 92, Uniform Code of Military Justice, 10 U.S.C. § 892. Appellant was sentenced to a dishonorable discharge, forfeiture of all pay and allowances, confinement at hard labor for six years, and reduction to E-l. The convening authority approved the sentence as adjudged.

On 27 January 1982, 29 January 1982, and 4 February 1982, appellant sold 27.9, 29.6, and 215.4 grams of marijuana, 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 ear. 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 marijuana use on a urinalysis screening. Appellant theorized that Sergeant H must have hidden the marijuana 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 marijuana from its hiding place to the agents waiting in the parked car.

Appellant attempted at trial to introduce evidence, through both cross-examination and independent testimony, that Sergeant H had extensively used “speed”, cocaine, and marijuana, and that he had sold these drugs to civilian and military personnel for nearly a year leading up to the time of the alleged offenses. Appellant contended that this evidence was admissible under Mil.R.Evid. 608(b) to impeach Sergeant H’s credibility and also admissible under Mil.R. Evid. 608(c) to show Sergeant H’s motive for testifying. The military judge would not allow appellant to introduce this evidence, and we see no reason to overturn his ruling. The key precondition for admissibility of specific instances of conduct to impeach credibility under Rule 608(b) is that the specific instances inquired into must be probative of truthfulness. It- is well settled that incidents of past drug us[615]*615age or sale do not necessarily demonstrate, absent unique circumstances, character for truthfulness. See United States v. Pierce, 14 M.J. 738 (A.F.C.M.R.1982) and cases cited therein at 740. Quite simply, since appellant cannot show any propensity for dishonesty on the part of Sergeant H through his past drug use, these specific instances of conduct can have no probative value as to his truthfulness. The evidence is, therefore, inadmissible under Rule 608(b).

As far as appellant’s “motive” or “bias” theory under Rule 608(c) is concernéd, we agree with the military judge that only drug incidents that Sergeant H believed the military authorities were aware of would be relevant, and hence admissible, to the issue of whether he was telling the truth. The right to confrontation and cross-examination is not without bounds or limits; rather, it is limited to that which is material, relevant, and probative. See Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) and its progeny. Obviously, if Sergeant H was not aware that the military authorities suspected him of some drug crime, then he would have no reason to attempt to protect himself by working for NIS in exchange for favors regarding these crimes. Only those drug offenses which Sergeant H believed military authorities were aware of would cause him to have a recognizable motive to testify, in that if he cooperated and produced evidence on others, then charges against him would be dismissed. Absent such a recognizable motive, evidence of these specific instances of conduct was neither relevant nor probative to the issue of bias, but was rather mere speculation on the part of defense counsel. Thus, Rule 608(c) does not come into play. This assignment of error, therefore, is dismissed.

Appellant also argues that he should have been allowed at trial to introduce evidence of his good, law-abiding, military character. Prior to the change in the

Military Rules of Evidence in 1980, such evidence was admissible. See paragraph 138f(2), Manual for Courts-Martial, 1969 (Rev.) (MCM). With the 1980 change, however, only “evidence of a pertinent trait of the character of the accused” is now admissible. Mil.R.Evid. 404(a)(1). The Drafter’s Analysis to the rule makes clear that “under the new rule, evidence of a specific trait is acceptable.” Analysis of the Military Rules of Evidence, Appendix 18-61, MCM. The pertinent or specific trait requirement, however, can include general military character under the limited circumstances wherein it evidences a pertinent trait of the character of the accused in light of the principal theory of the defense case. United States v. Clemons, 16 M.J. 44, 47 (C.M.A.1983). In Clemons the accused was charged with larceny; although he admitted the taking of the items, he proclaimed that he did so (1) while in a duty status and (2) in order to teach the owners a lesson about securing their property. We agree with Judge Fletcher that, under the unique circumstances presented in Clemons, the good military character and character for lawfulness were pertinent traits of the accused in light of the defense theory of the case. The case under consideration is readily distinguishable from the unique circumstances of Clemons. The thrust of appellant’s case at trial was that he was telling the truth and Sergeant H was lying. At trial, defense counsel sought to introduce evidence of appellant’s good military character simply to bolster his client’s standing before the members in the “credibility contest” with the government’s chief witness (R. 44-45, 197-198). It is precisely this type of defense character evidence that the 1980 change to the Military Rules of Evidence was designed to bar from admissibility at trial. Good character evidence does not demonstrate that an accused would have been less likely to commit the offense charged.1 We certainly see nothing to indi[616]*616cate that appellant’s good military character would establish that he would have been less likely to have sold marijuana. See e.g. United States v. Belz, 14 M.J. 601 (A.F.C.M.R.1982); United States v. Cooper, 11 M.J. 815 (A.F.C.M.R.1981). Unless a trial is limited in the manner envisioned by the 1980 change to Rule 404(a)(1) — and as interpreted by the majority of the Court of Military Appeals in Clemons — the ultimate issue regarding the operative facts determining guilt or innocence will be lost in a myriad of distracting and irrelevant side-issues of the accused’s past life. Appellant’s evidence of his good military character would not have added to the theory of his defense in any meaningful manner; accordingly, we find that the military judge ruled correctly in disallowing the evidence.

The final issue on this appeal arises from appellant’s pretrial confinement. Appellant had been initially confined on 16 February 1983, but was then released by a magistrate two days later.

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Bluebook (online)
17 M.J. 613, 1983 CMR LEXIS 771, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-weeks-usnmcmilrev-1983.