United States v. Wilson

31 M.J. 91, 1990 CMA LEXIS 1049, 1990 WL 134814
CourtUnited States Court of Military Appeals
DecidedSeptember 20, 1990
DocketNo. 63,104; CM 8801174
StatusPublished
Cited by24 cases

This text of 31 M.J. 91 (United States v. Wilson) 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. Wilson, 31 M.J. 91, 1990 CMA LEXIS 1049, 1990 WL 134814 (cma 1990).

Opinions

Opinion of the Court

COX, Judge:

Appellant was charged with being absent without leave for 141 days and unlawfully using cocaine, in violation of Articles 86 and 112a, Uniform Code of Military Justice, 10 USC §§ 886 and 912a, respectively. He was tried at Fort Hood, Texas, by a special court-martial with officer and enlisted members.

At trial, the military judge ruled that the urinalysis evidence was inadmissible. Having relied on that data to support the cocaine charge, the Government then elected not to proceed with prosecution of that count. In accordance with his pleas, however, appellant was convicted of the absence-without-leave charge.

Notwithstanding 15 years of honorable military service and a good duty record, appellant was sentenced to be reduced to the lowest enlisted pay grade and discharged from the Army with a bad-conduct discharge. He appeals this sentence, contending that the military judge erred by permitting his first sergeant to express an opinion about his potential for rehabilitation. We granted review of the following issues:

I
WHETHER THE MILITARY JUDGE ERRED IN ALLOWING, OVER DEFENSE OBJECTION, OPINION EVIDENCE ON APPELLANT’S LACK OF REHABILITATIVE POTENTIAL THAT WAS BASED PARTLY, IF NOT EXCLUSIVELY, ON “LIMITED-USE EVIDENCE.”
II
WHETHER THE MILITARY JUDGE COMMITTED PREJUDICIAL ERROR IN CONSIDERING TESTIMONY GIVEN BY APPELLANT’S CHAIN OF COMMAND REGARDING APPELLANT’S LACK OF POTENTIAL FOR CONTINUED SERVICE IN THE UNITED STATES ARMY.

The following testimony by the first sergeant gives rise to both issues:

Q. Now based on your evaluations of his duties, both as a S-4 NCO and as a Platoon Sergeant, the counseling you’ve done of him, and the circumstances surrounding the offense today, have you developed an opinion as to his rehabilitative potential as a soldier?
A. Yes, sir.
Q. And what is that opinion?
A. I don’t believe that he got — that he would be able to function as a senior NCO in the United States Army.
Q. Would you want him back in your unit?
A. No, sir.
Q. Do you believe he can fulfill a role anywhere in the Army?
A. Not really, sir.

Addressing issue I first, appellant contends that, in large part, the first sergeant’s conclusions were based on the fact that he was a cocaine user who had enrolled in a substance-abuse program and had not enjoyed much success in the recovery process.1 He further asserts that [93]*93when an individual voluntarily enters such a program, there is supposed to be limited access to, and use of, information that he or she necessarily reveals during treatment. See Chapter 6, Army Regulation (AR) 600-85, “Personnel — General: Alcohol and Drug Abuse Prevention and Control Program” (November 3, 1986). He contends that, when a witness uses knowledge gained — either directly or indirectly— through a substance-abuse program as the basis for views about someone’s potential for rehabilitation, that person is “using” such information in violation of the spirit and purpose of the limited-use rule.

In United States v. Ohrt, 28 MJ 301 (CMA 1989), we held that a witness could not express an opinion about an accused’s potential for rehabilitation under RCM 1001(b)(5), Manual for Courts-Martial, United States, 1984,2 unless “the opinion ... [is] expressed by a witness who has a rational basis for his conclusions, founded upon the accused’s service performance and character.” 28 MJ at 304. In the case at bar, the witness in question had a substantial basis upon which to form an opinion of appellant. See also United States v. Hefner, 29 MJ 1022 (ACMR 1990). The witness’ opinion clearly was a reflection of his actual knowledge of appellant’s work, personal life, and character for more than 2 years; it was not an expression of personal opinion concerning what punishment would be appropriate for the offense. Thus, the requirements laid down in United States v. Horner, 22 MJ 294 (CMA 1986), were also satisfied.

Although there is nothing specific in the record to indicate that the witness based his opinion about appellant on information gained as a result of appellant’s drug and alcohol use and abuse, we can infer that the witness knew of appellant’s substance abuse problem and that his opinion was based, at least in part, on that knowledge.3 Nevertheless, we are cited to nothing in the regulation which places such a broad prohibition on this indirect use of derogatory information, and we decline to extend the regulation to this extreme. Therefore, the fact that the witness’ testimony may have been based in part on his knowledge of appellant’s continuing failure to rehabilitate himself from a drug problem did not disqualify him from expressing his opinion.

We are left to decide whether the witness’ opinion was per se inadmissible. See United States v. Antonitis, 29 MJ 217 (CMA 1989); United States v. Brown, 28 MJ 470 (CMA 1989). Unlike the witness in Brown, the witness here did not testify about uncharged misconduct, and the prosecutor did not make improper use of such evidence. The witness’ opinion and testimony focused ostensibly on appellant’s rehabilitative potential. Thus, uncharged misconduct did not slip into the record for consideration by the court-martial members.

[94]*94The purpose of permitting opinion testimony under RCM 1001(b)(5) is to allow a witness to express an opinion without revealing uncharged misconduct. United States v. Brown, 28 MJ at 474 and at 475 (Cox, J., dissenting). In other words, a witness can consider all relevant information in arriving at an opinion about rehabilitative potential, but the information itself is not admissible unless there is an “inquiry ... into relevant and specific instances of conduct” during cross-examination. RCM 1001(b)(5). This aspect of the rule’s prescription was met in this case.

In United States v. Horner, supra, we held that a person’s rehabilitative potential is based upon his entire character, morality, and determination to succeed. In forming an opinion about rehabilitative potential, knowledge of a person’s success or failure in previous efforts to recover is extremely helpful. Thus, when a witness is asked for an opinion about an individual’s “rehabilitative potential,” the fact that the accused has failed to recover during past periods of treatment is an extremely important and rational basis upon which to form a conclusion. United States v. Gunter, 29 MJ 140 (CMA 1989). The caveat remains, however, that the opinion must be focused on the accused’s rehabilitative potential and not on a witness’ view of the severity of the offense or the appropriate punishment. United States v. Ohrt and United States v. Horner, both supra. The improper use of such information is not permitted. United States v. Brown, supra. No violation of these principles occurred in this case.

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Bluebook (online)
31 M.J. 91, 1990 CMA LEXIS 1049, 1990 WL 134814, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-wilson-cma-1990.