

   
   
   
   U.S. v. Williams



IN THE CASE OF
UNITED STATES, Appellee
v.
Michael T. WILLIAMS, Airman Basic
U.S. Air Force, Appellant
 
No. 98-0208
Crim. App. No. S29431
 
United States Court of Appeals for the Armed
Forces
Argued November 18, 1998
Decided May 28, 1999
 
SULLIVAN, J., delivered the opinion of
the Court, in which COX, C.J., and CRAWFORD, GIERKE, and EFFRON, JJ., joined.
 
Counsel
For Appellant: Captain Thomas R. Uiselt
(argued); Colonel Douglas H. Kohrt (on brief); Lieutenant Colonel
Ray T. Blank, Jr.
For Appellee: Major J. Robert Cantrall
(argued); Colonel Brenda J. Hollis and Lieutenant Colonel Michael
J. Breslin (on brief); Major Ronald A. Rodgers and Captain
Steven D. Dubriske.
Military Judge: Dennis E. Kansala
 


This opinion is subject
to editorial correction before publication.
 
 

Judge SULLIVAN delivered the opinion of the Court.
On June 6, 1997, appellant was tried by a military
judge sitting alone as a special court-martial at Lackland Air Force Base
(AFB), Texas. In accordance with his pleas, he was found guilty of wrongfully
using marijuana and breaking restriction, in violation of Articles 112a
and 134, Uniform Code of Military Justice, 10 USC §§ 912a and
934, respectively. He was sentenced to a bad-conduct discharge, confinement
for 4 months, and forfeiture of $600 pay per month for 4 months. On July
28, 1997, the convening authority approved the findings of guilty, but
only so much of the sentence as provided for a bad-conduct discharge, 3
months confinement, and forfeiture of $600 pay per month for 4 months.
On November 14, 1997, the Court of Criminal Appeals affirmed.
This Court, on February 12, 1998, granted review
on the following issue assigned by appellant:



WHETHER THE MILITARY JUDGE COMMITTED PLAIN
ERROR BY CONSIDERING CAPTAIN BRAUERS TESTIMONY WHICH ELABORATED ON APPELLANTS
REHABILITATIVE POTENTIAL AND AMOUNTED TO AN OPINION THAT HE SHOULD BE DISCHARGED.



We hold that portions of the testimony of Captain
Brauer were inadmissible under United States v. Ohrt, 28 MJ 301
(CMA 1989), and RCM 1001(b)(5)(D), Manual for Courts-Martial, United States
(1995 ed.). Nevertheless, no plain error occurred in this case because
this testimony did not materially prejudice appellants substantial rights.
See United States v. Powell, 49 MJ 460 (1998); see
also United States v. Hampton, 40 MJ 457 (CMA 1994).
The record of trial in this case shows that
appellant was a 23-year-old, divorced airman with approximately 21 months
of active service. During this period of service, he compiled two Article
15s 1 (both for writing bad
checks) and six letters of reprimand. On May 4, 1997, appellant received
a written order from his first sergeant which restricted him to the confines
of Lackland AFB. He violated that order by going off base with friends
to a club. He also had some friends over to his dormitory room where he
took two or three puffs from a marijuana cigarette.
Appellants commander, Captain Kathryn Brauer,
was called as a government witness on sentencing. She testified:



Q. Okay. Well, based on your experience as
a supervisor, and your experience as a commander for a year, do you feel
like you have an adequate basis to provide an opinion on the accuseds
rehabilitation potential?
A. Yes.
Q. And what would that opinion be?
DC: I would object, Your Honor, in that I believe
a foundation has to be provided as to what kind of interaction she has
had with the accused beyond just what others may tell her about the accused.
MJ: Foundation?
DC: Excuse me, sir?
MJ: Inadequate foundation?
DC: Yes, sir, thats what Im saying, the foundational
requirement here.
MJ: Response?
ATC: Your Honor, there has been testimony that
she has been the accuseds commander since March of this year, that there
has been plenty of personal contact with the accused due to the misconduct
that hes been engaging in, and the question asked her was to base an opinion
on her experience as a commander and supervisory experience.
MJ: Yes, the objection is overruled.
Continued Questions by ATC:
Q. Again, Captain Brauer, based on your experience
as a commander, and supervisory experience, you stated that you do have
an opinion as to whether the accused is capable of rehabilitation. And
what is your answer to that?
A. No.
Q. Tell me why.
A. We have tried. We have spent numerous hours
counseling him. We have tried verbal counselings, letter of counselings,
letter of reprimand, Article 15s, and they wont work. Base restriction
didnt work. I just wanted to administratively discharge him. He
wasnt able to conform to military life. He wasnt able to live up to the
standards. And I just wanted to administratively discharge him.
He could not stay out of trouble long enough
so that we could finish up the disciplinary actions and discharge him.
We have -- he has had a problem with alcohol that gets him into an enormous
amount of trouble. We have had him over to the Alcohol Rehabilitation Treatment
Center, and weve had a meeting over there, and he states that he wants
-- he wants to get over --
DC: Your Honor, I would object to this. If
she, again, is hearing what Airman Williams may have stated to someone,
and then she is now relaying it to the court, I would object to that as,
again, being hearsay.
MJ: I also dont want to get into alcohol rehabilitation
at all.
ATC: Yes, Your Honor.
MJ: In fact, let me note for the record, Im
not going to consider anything about alcohol rehabilitation at all.
Continued Questions by ATC:
Q. Without responding about alcohol rehabilitation
and that subject, please continue telling us why you think the accused
is not rehabilitative?
A. Because weve given him opportunities, and
he verbally says that yes, he wants to do better, and he doesnt want to
cause trouble, but his actions dont match his word. And weve given him
several months and his record speaks for itself. When you look at his military
records, and his personnel information file, he has been in trouble over
the past year an uncountable number of times. Weve given him an opportunity
and hes failed.



(Emphasis added.)
___ ___ ___
Appellant asserted for the first time on appeal
before the Court of Criminal Appeals that it was plain error to admit certain
portions of Captain Brauers testimony at his court-martial. He argued
that her testimony concerning her prior desire to administratively discharge
him was opinion testimony suggesting to the military judge that a punitive
discharge would be appropriate punishment at this court-martial. The Government
opposed this reading of Captain Brauers testimony, arguing that her testimony
on this matter was relevant to "demonstrate that [she] had the requisite
knowledge of Appellant to provide testimony concerning his potential for
rehabilitation." The lower appellate court found no plain error.
This Court has held that testimony from a commander
recommending a punitive discharge to a court-martial sentencing authority
is error. Ohrt, 28 MJ at 307. We have also prohibited command witnesses
from employing "euphemisms, such as No potential for continued service;
He should be separated; or the like [which] are just other ways of saying,
Give the accused a punitive discharge." Id. at 305. We have not
attempted to delineate every single euphemism which might be used for this
impermissible purpose. Instead, in United States v. Hampton, we
generally said that "an inferred assertion that [an accused] doesnt deserve
to remain in the Army can be rationally construed as an impermissible
recommendation for a punitive discharge." 40 MJ at 459.
RCM 1001(b)(5), Manual, supra (1994
ed.), did not contain an Ohrt-type prohibition which limited the
scope of "rehabilitative potential" testimony. The 1995 version of this
rule, which is identical to the current version, did. It defines "rehabilitative
potential" as follows:



(5) Evidence of rehabilitative potential.
Rehabilitative potential refers to the accuseds potential to be restored,
through vocational, correctional, or therapeutic training or other corrective
measures to a useful and constructive place in society.



It also requires an evidentiary foundation before
opinions of this type could be given. It states:



(B) Foundation for opinion. The witness
or deponent providing opinion evidence regarding the accuseds rehabilitative
potential must possess sufficient information and knowledge about the accused
to offer a rationally-based opinion that is helpful to the sentencing authority.
Relevant information and knowledge include, but are not limited to, information
and knowledge about the accuseds character, performance of duty, moral
fiber, determination to be rehabilitated, and nature and severity of the
offense or offenses.



Finally, it expressly prohibits opinions on punishment,
either direct or indirect. It reads:



(D) Scope of opinion. An opinion offered
under this rule is limited to whether the accused has rehabilitative potential
and to the magnitude or quality of any such potential. A witness may not
offer an opinion regarding the appropriateness of a punitive discharge
or whether the accused should be returned to the accuseds unit.



In appellants case, Captain Brauer made clear
her past intention that appellant be administratively discharged. Under
Ohrt and its progeny, this termination-of-military-service testimony
could be rationally construed as expressing her opinion that appellant
should now be punitively discharged at this court-martial. See United
States v. Wilson, 31 MJ 91, 94 (CMA 1990) (commanders testimony that
he does not want accused back in unit was Ohrt euphemism). The Governments
argument that Captain Brauers testimony in this regard was purely foundational
(see RCM 1001(b)(5)(B)) is not well taken. This testimony was adduced
after the defenses objection on foundational grounds had been rejected
by the trial judge. Accordingly, Ohrt and RCM 1001(b)(5)(D) were
violated in this case.
Nonetheless, not all violations of Ohrt
and RCM 1001(b)(5)(D) require sentence relief. See United States
v. Hampton, supra (Ohrt error objected to at trial requires
a showing of substantial prejudice before appellate relief may be granted).
Here, appellant not only failed to object to Captain Brauers testimony
on the basis of these legal authorities (see RCM 801(g)), but the
objectionable aspects of her testimony were implied and immersed within
other adverse testimony from that commander which was admissible. See
United States v. Wilson, supra (euphemism for recommending
a punitive discharge found not to be plain error). Moreover, as noted recently
by a majority of this Court, another requirement of our plain error doctrine
is that "material prejudice to a substantial right" must be shown before
plain error can be noticed. See Powell, 49 MJ at 465; cf.
United States v. Olano, 507 U.S. 725 (1993).2
For several reasons, we find no such prejudice
in this case. First, we note that this was a trial before a military judge
alone, and we can presume the judge not only knew about United States
v. Ohrt and RCM 1001(b)(5)(D), but that he afforded appellant his rights
under them. See United States v. Prevatte, 40 MJ 396, 498
(CMA 1994). While an express disclaimer by a military judge of consideration
of such evidence is preferable, it is not required. Neither its absence
nor any other evidence in this case indicates that the trial judge considered
this inadmissible evidence.
Second, other evidence was properly admitted
in this case which amply demonstrated appellants abysmal disciplinary
record. See RCM 1001(b)(2) (permits evidence of accuseds prior
service). This evidence, in conjunction with his convictions, were the
obvious material considerations which made the punitive discharge an appropriate
punishment in this case. See Hampton, 40 MJ at 460 (Ohrt
euphemism error harmless where poor service record shows no substantial
possibility of prejudice). It also diminished the importance of appellants
right to preclude Ohrt euphemism evidence in his case.
Finally, as noted above, appellant did not
particularly object to his commanders testimony on his suitability for
administrative discharge. Such an omission was entirely consistent with
his readily apparent sentencing strategy of accepting a minimum amount
of confinement and forfeitures while trying to avoid a punitive discharge.
Appellant was entitled to forgo or forfeit his rights under Ohrt
and RCM 1001(b)(5)(D) in an effort to secure the sentence that he desired.
See Bordenkircher v. Hayes, 434 U.S. 357 (1978) (defendant
has difficult choices to make in the criminal justice system).
The decision of the United States Air Force
Court of Criminal Appeals is affirmed.
FOOTNOTES:
1 Uniform Code of Military
Justice, 10 USC § 815.
2 I disagreed
with the majoritys application of Article 59(a), UCMJ, 10 USC § 859(a),
in the plain error context in Powell. See 49 MJ at 466. I
have not persuaded my colleagues to adopt my views on this matter.
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