United States v. Wolfe

29 M.J. 1018, 1990 CMR LEXIS 45, 1990 WL 8223
CourtU.S. Army Court of Military Review
DecidedJanuary 26, 1990
DocketACMR 8901700
StatusPublished
Cited by4 cases

This text of 29 M.J. 1018 (United States v. Wolfe) is published on Counsel Stack Legal Research, covering U.S. Army 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. Wolfe, 29 M.J. 1018, 1990 CMR LEXIS 45, 1990 WL 8223 (usarmymilrev 1990).

Opinion

OPINION OF THE COURT

DeFORD, Senior Judge:

The appellant, pursuant to his pleas, was convicted by a military judge sitting as a general court-martial of assault with a means and force likely to produce grievous bodily harm and of being drunk and disorderly in violation of Articles 128 and 134, respectively, Uniform Code of Military Justice, 10 U.S.C. §§ 928 and 934 (1982) [hereinafter UCMJ]. He received an approved sentence that included a bad-conduct discharge, confinement for two years, forfeiture of all pay and allowances, and reduction to the grade of Private E1.1 On appeal, appellant alleges that the military judge erred in considering testimony given by appellant’s platoon sergeant regarding appellant’s lack of potential for continued service in the United States Army and that the approved sentence is inappropriate for the offense committed. We find the appellant waived the error regarding his potential for further service by failing to object to the receipt of that testimony at the time of trial. We further find merit in appellant’s claim with regard to the appropriateness of his approved sentence for the reasons set forth below.

I

The appellant with other members of his unit, to include the unit officers, attended a unit “Dining In” in the company mess hall. During a portion of the evening, the appellant acted as a bar attendant and became inebriated. The appellant then became loud and rowdy. A Sergeant (SGT) Duncan, on his own initiative, assisted the appellant in leaving the party and going to his room. However, he returned to the party and SGT Duncan subsequently was directed by both the unit First Sergeant as well as the appellant’s platoon commander to take him to his room and leave him there. SGT Duncan did not fully comply with the instructions of his superiors and later that evening, a noncommissioned officer (NCO) observed the appellant stumbling towards the front gate of the Kaserne carrying two bottles of wine. The NCO, who was in uniform, identified himself by name and unit to the appellant and told him that he should turn around and go back to the barracks and go to sleep. He cautioned that should the appellant go out the gate in his current condition, he would either be picked up, get in a fight, or start trouble. The NCO then asked the appellant if he understood and he received an affirmative response. The NCO then turned away and the appellant then struck him behind the right ear with a full bottle of wine. The NCO received a severe laceration of the head which required more than fifteen stitches to close. At the time of trial, he still suffered severe headaches with a medical prognosis that the headaches would continue for some time.

During the sentencing portion of the trial, the trial counsel called the appellant’s platoon sergeant who had formerly been the appellant’s squad leader. He testified that he had observed the appellant’s performance of duty for some months and stated that the appellant required close supervision in order to insure that his work was performed, much less performed properly. He did not perceive the appellant as a motivated soldier and rated his duty per[1020]*1020formance as 0 on a scale of 1 to 10. He further testified that he and the appellant had a chance meeting with the victim in the barracks at which time the victim showed the appellant the wound he had received. The appellant did not apologize for his actions, but stated with what was described as a smirk on his face, “Yeah, it really is a good cut, ain’t it.”

The trial counsel asked the question, “Sergeant Wasson, given the accused’s duty performance, his conviction today for aggravated assault and drunk and disorderly conduct, his attitude toward his crimes, should the accused be returned to your unit?” The witness responded, “No sir.” The trial counsel then asked, “Would you like to see the accused retained in the United States Army?” and the witness again responded, “No sir.” No objection to these questions and answers was lodged by the appellant or his counsel.

As we have noted, the appellant alleges that the military judge committed prejudicial error in considering testimony given by appellant’s platoon sergeant in response to an improper question by the prosecutor whether he believed the appellant should be retained in the unit as well as the United States Army. See United States v. Ohrt, 28 M.J. 301, 305 (C.M.A.1989).

The Manual for Courts-Martial, United States, 1984, Rule for Courts-Martial 1001(b)(5) [hereinafter R.C.M.], authorizes the trial counsel to present evidence by testimony or oral deposition in the form of opinions concerning an accused’s previous performance as a soldier and potential for rehabilitation. Under this rule, “rehabilitative potential” has been interpreted to mean the action or process of restoring an individual to a useful or constructive place in society through some form of vocational, correctional, therapeutic retraining, or other reconstructive measures. Thus, rehabilitation can denote both a return to a particular status and a return to society generally. United States v. Horner, 22 M.J. 294, 296 (C.M.A.1986). That Court further stated it was inappropriate to receive opinion testimony with regard to rehabilitative potential when such testimony is based not on the witnesses’ insight into the personal circumstances of the accused, his character and potential, but is based solely upon the severity of the offenses committed and the witnesses’ view as to whether the court should adjudge a discharge or lengthy confinement. Id.

Subsequently, in United States v. Ohrt, 28 M.J. 301 (C.M.A.1989), the Court further clarified what foundation must be laid before a witness may express an opinion and what is the permissible scope of such opinion. In regard to these questions, the Court, in substance, stated that an appropriate witness is one who can be helpful to the trier of fact in making the determination of fact in issue, thus the witness’ testimony must be relevant under Mil.R.Evid. 701. To show that relevance, a foundation must be laid which demonstrates that the witness possesses sufficient information and knowledge with regard to the accused’s character, his performance of duty as a soldier, his moral fiber, and his determination to be rehabilitated which would afford a rational basis to form an opinion which will be of some value to the finder of fact. The Court further noted that witnesses will not be allowed to express an opinion as to whether an accused should be punitively discharged as such statements infringe on the court-martial’s responsibility to determine an appropriate sentence. Consequently, the use of euphemisms such as “no potential for continued service” or statements that a particular accused “should be separated” are the equivalent of expressing the view that the accused should receive a punitive discharge and are prohibited. Id. at 305.

This court recently considered a case involving the foregoing rules concerning rehabilitative potential. There it was stated:

As we understand Horner and Ohrt, a witness may weigh the nature, circumstances, and impact of the accused’s offenses, together with his knowledge of the accused’s character and duty performance, when deciding the question of rehabilitative potential.

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Cite This Page — Counsel Stack

Bluebook (online)
29 M.J. 1018, 1990 CMR LEXIS 45, 1990 WL 8223, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-wolfe-usarmymilrev-1990.