United States v. Zone

7 M.J. 21, 1979 CMA LEXIS 10814

• Court: United States Court of Military Appeals
• Decided: May 7, 1979
• Docket: No. 34,534; CM 434385
• Status: Published

Opinions

Opinion of the Court

PER CURIAM:

We granted the appellant’s petition for review to consider two of his assignments of error. Because of our disposition of one, the other need not be addressed.

In the course of testimony as to the drug transaction of which the appellant stood accused and now stands convicted,¹ a government witness stated that he had been informed before the transactions that the appellant was “a heroin dealer” and had sold heroin to the informant “on from twenty to thirty occasions.” No objection was interposed by civilian defense counsel.

The testimony noted was hearsay evidence ² which was not subject to any of the exceptions to its exclusion from trial.³ It is of no moment that the civilian defense counsel failed to object thereto, for paragraph 139a, Manual for Courts-Martial, United States, 1969 (Revised edition), provides: ⁴

Hearsay may not be recited or otherwise introduced in evidence, and it does not become competent evidence by reason of a mere failure to object to its reception in evidence.

Explaining the military’s position in this matter, the Army’s evidence text observes: ⁵

The majority, civilian rule is that if hearsay is admitted without objection, the finder of fact may give the hearsay its natural probative value. The Manual adopts the minority view that incompetent hearsay is absolutely inadmissible and that even if it is admitted without objection, the finder of fact may not give the evidence any probative value. If the only basis for a finding of fact is incompetent hearsay, the finding of fact cannot be sustained.

Hence, according to military evidence law, testimony concerning the informant’s having told the witness that the appellant was “a heroin dealer” and had sold heroin to the informant “on from twenty to thirty occasions” was improperly admitted in this trial, with or without objection by the defense. Naturally, this evidentiary misstep by the military judge must be tested for prejudice to the appellant, but in this trial for possession and sale of heroin, prejudice from material of this content is manifest.

The decision of the United States Army Court of Military Review is reversed. The findings and sentence are set aside. The record of trial is returned to the Judge Advocate General of the Army. A rehearing may be ordered.

1 . Possession and sale of heroin, in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934. His sentence, approved by the convening authority and affirmed by the United States Army Court of Military Review, extends to a dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for 8 years.

2 . Para. 139a, Manual for Courts-Martial, United States, 1969 (Revised edition).

3 . Id. at paras. 140-146.

4 . This being an evidentiary provision, it has the force and effect of law, see Article 36, UCMJ, 10 U.S.C. § 836, unless contrary to higher authority — such as the Constitution of the United States — which it is not.

5 . Criminal Law Materials (The Judge Advocate General’s School, United States Army), Vol. II, Evidence, Chapter 31, para. I.D.