                       UNITED STATES, Appellee

                                    V.

                     Robert HURSEY, Jr., Airman
                      U.S. Air Force, Appellant


                              No. 00-0642


                         Crim. App. No. 33295



      United States Court of Appeals for the Armed Forces

                       Argued February 6, 2001

                         Decided May 21, 2001

    GIERKE, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., and SULLIVAN and BAKER, JJ., joined. EFFRON, J.,
   filed an opinion concurring in part and dissenting in part.

                                 Counsel
For Appellant: Captain Kyle R. Jacobson (argued); Colonel James
   R. Wise (on brief).

For Appellee: Captain Linette Romer (argued); Colonel Anthony P.
   Dattilo and Major Lance B. Sigmon (on brief); Lieutenant
   Colonel Ronald A. Rodgers,.

Military Judge:   Edward M. Starr


    This opinion is subject to editorial correction before publication.
United States v. Hursey, No. 00-0642/AF


      Judge GIERKE delivered the opinion of the Court.

      A general court-martial composed of officer members

convicted appellant, pursuant to his pleas, of wrongful use of

cocaine, in violation of Article 112a, Uniform Code of Military

Justice, 10 USC § 912a.       The court-martial sentenced appellant to

a bad-conduct discharge, confinement for 179 days, forfeiture of

$366.00 pay per month for 5 months, and reduction to the lowest

enlisted grade.     Pursuant to a pretrial agreement, the convening

authority reduced the confinement to 5 months; he also reduced

the monthly forfeitures to $249.00 but otherwise approved the

sentence.    The Court of Criminal Appeals affirmed the findings

and the approved sentence in an unpublished opinion.

      This Court granted review of the following issue:

      WHETHER THE MILITARY JUDGE ERRED BY PERMITTING REBUTTAL
      TESTIMONY OF A MILITARY JUSTICE PARALEGAL SPECULATING THAT
      APPELLANT HAD BEEN LATE FOR HIS COURT-MARTIAL.

For the reasons set out below, we affirm.

      During the sentencing hearing, the prosecution presented

documentary evidence from appellant’s personnel records, showing

the following infractions and derelictions:

            (1) A Record of Counseling dated November 22, 1995, for
            missing a dental appointment. (Prosecution Exhibit 4)

            (2) A Record of Counseling dated April 11, 1996, for
            failing to comply with Air Force shaving and grooming
            standards. (Prosecution Exhibit 5)

            (3) A Record of Counseling dated May 5, 1996, for
            missing appointments, being late for duty, failing to
            comply with personal appearance standards, spending too
            much time making personal telephone calls on duty,
            being slothful, and sleeping on duty. (Prosecution
            Exhibit 6)

            (4) A Letter of Reprimand dated May 28, 1996, for
            writing a bad check. (Prosecution Exhibit 7)



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United States v. Hursey, No. 00-0642/AF


            (5) A civilian conviction on September 1, 1996, for
            disorderly conduct, menacing, and criminal mischief by
            breaking the window of a police car. (Prosecution
            Exhibit 8)

            (6) A Record of Counseling dated February 7, 1997, for
            being late for work. (Prosecution Exhibit 9)

            (7) A Record of Counseling dated May 29, 1997, for
            failing to maintain his dormitory room in an acceptable
            condition. (Prosecution Exhibit 10)

            (8) A Record of Nonjudicial Punishment for dereliction
            of duty by failing to answer his pager while on standby
            duty. A suspended reduction in grade and a forfeiture
            were imposed on August 8, 1997. (Prosecution Exhibit
            11)

            (9) A Letter of Reprimand dated December 4, 1997, for
            failing to report for duty or notify his supervisor.
            (Prosecution Exhibit 12) This same misconduct and
            another similar incident were the basis for vacating
            the suspension of appellant’s reduction in grade.
            (Prosecution Exhibit 13)

            (10) A Letter of Admonishment dated January 20, 1998,
            for failing to report for duty and improper grooming.
            (Prosecution Exhibit 14)


      Appellant introduced several documents, including letters of

appreciation and a memorandum from a civilian co-worker.     The co-

worker described appellant as “quiet,” “low-key,” and a

“dependable sort of person that one could rely on to do his job.”

The co-worker believed “anyone can be rehabilitated” and stated

that he would be willing to have appellant work with him.

(Defense Exhibit J)

      Over defense objection, the military judge permitted the

command’s noncommissioned-officer-in-charge (NCOIC) of the base

Military Justice Division to testify in rebuttal that appellant’s

court-martial was scheduled to commence at 9:00 a.m. but was

delayed until 11:00 a.m. because he “was under the assumption

that the accused was not available.”      Before overruling the


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United States v. Hursey, No. 00-0642/AF


defense objection, the military judge stated that “in balancing

under [Mil. R. Evid.] 403, I do not find that the prejudicial

impact substantially outweighs the probative value.”        The

military judge did not further articulate his reasoning.

      The NCOIC testified that he called appellant’s unit in an

effort to find appellant, but he did not know why appellant did

not arrive at the appointed time.         On cross-examination, he was

unable to say whether appellant was at fault or whether the delay

was unavoidable or justified.

      In his final sentencing argument, trial counsel reviewed

appellant’s long record of infractions and derelictions.          He then

commented on appellant’s tardiness for the court-martial by

arguing that a court-martial is “the ultimate wake-up call,” but

that appellant “doesn’t even show up on time on the day of his

court-martial.”     The military judge informed the members that he

had taken judicial notice of the fact that the court-martial was

scheduled to commence at 9:00 a.m. but was delayed until 11:00

a.m. at a judicially approved defense request.

      We review evidentiary rulings for abuse of discretion.        Mil.

R. Evid. 403, Manual for Courts-Martial, United States (1998

ed.), applies to sentencing evidence.        United States v. Rust, 41
MJ 472, 478 (1995).      When a military judge conducts a proper

balancing test under Mil. R. Evid. 403, the evidentiary ruling

will not be overturned unless there is a “clear abuse of

discretion.”    United States v. Ruppel, 49 MJ 247, 250 (1998).

Military judges receive “less deference” if, as in this case,

“they fail to articulate their balancing analysis on the record.”

United States v. Manns, 54 MJ 164, 166 (2000).


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United States v. Hursey, No. 00-0642/AF


      We hold that the military judge abused his discretion.            The

NCOIC’s testimony had virtually no probative value, because he

had no knowledge of the reason for appellant’s absence.           His

testimony had the potential for wasting time by provoking a mini-

trial on the reason for appellant’s absence.         It had the

potential of misleading the court members by suggesting, in a

prejudicial manner and without basis, that appellant was so

unreliable that he was absent without authority from his own

court-martial.

      We are satisfied, however, that the error was harmless.

Art. 59(a), UCMJ, 10 USC § 859(a).        Appellant pleaded guilty to a

serious offense, punishable by a dishonorable discharge,

confinement for 5 years, total forfeitures, and reduction to

Airman Basic.     The court members imposed only a bad-conduct

discharge, confinement for 179 days, partial forfeitures for 5

months, and reduction to Airman Basic.         Appellant’s personnel

record was replete with admissible evidence of misconduct and

derelictions, including frequent tardiness.         Even if the members

concluded from the NCOIC’s testimony that on the day of his

court-martial appellant had been tardy one more time, we can

easily “say, with fair assurance, . . . that the judgment was not

substantially swayed by the error.”          Kotteakos v. United States,
328 U.S. 750, 765 (1946).

                                  Decision

      The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




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United States v. Hursey, No. 00-0642/AF



EFFRON, Judge (concurring in part and dissenting in part):


     I concur with the majority’s conclusion that the military judge

erred in permitting speculative testimony creating the implication

that appellant’s unexplained absence was due to misconduct. I do not

agree that the error was harmless.

     The majority opinion makes two important observations, with

which I agree, concerning the erroneously admitted testimony: (1)

the NCOIC’s testimony should have been excluded because it provided

negligible information of probative value under the circumstances of

this case; and (2) the testimony “had the potential of misleading

the court members by suggesting, in a prejudicial manner and without

basis, that appellant was so unreliable that he was absent without

authority from his own court-martial.”    ___ MJ at (5). In effect,

the testimony created the possibility that the members would view

appellant as so contemptuous of military life that he did not take

seriously the purpose of his court-martial or the impact of any

delay on the members of the panel.

     The majority opinion relies upon the relatively light sentence

as an indication that the error was harmless.   Under the

circumstances of this case, the light sentence underscored the

prejudicial impact of the error.   It is noteworthy that even though

the prosecution presented a sentencing case that included evidence

of ten disciplinary infractions, the members opted to impose a
United States v. Hursey, No. 00-0642/AF


sentence that was significantly less severe than the maximum

allowable punishment.   This indicates that the members carefully

weighed all the positive and negative evidence, including the

erroneously admitted testimony, and that they did not view the

prosecution’s sentencing case as particularly overwhelming.

     Under these circumstances, I cannot say with fair assurance

that the sentencing result was reliable.   Accordingly, I

respectfully dissent on the issue of prejudice.




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