

   
   
   
   U.S. v. Armon



IN THE CASE OF
UNITED STATES, Appellee
v.
Derek C. ARMON, Staff Sergeant
U.S. Army, Appellant
 
No. 98-0388
Crim. App. No. 9601892
 
United States Court of Appeals for
the Armed Forces
Argued January 21, 1999
Decided July 21, 1999
GIERKE, J., delivered the opinion
of the Court, in which COX, C.J., and SULLIVAN and CRAWFORD, JJ., joined.
EFFRON, J., filed an opinion concurring in part and in the result.

Counsel
For Appellant: Captain Marc D.A.
Cipriano (argued); Colonel John T. Phelps, II, Lieutenant
Colonel Adele H. Odegard, and Major Leslie A. Nepper (on brief);
Lieutenant Colonel Michael L. Walters and Captain Mary J. Bradley.
For Appellee: Captain Arthur J.
Coulter (argued); Lieutenant Colonel Eugene R. Milhizer and
Major Patricia A. Ham (on brief); Colonel Russell S. Estey
and Captain Chris A. Wendelbo.
Military Judge: Alfred F. Arquilla


THIS OPINION IS
SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.

Judge GIERKE delivered the opinion
of the Court.
A general court-martial composed of
officer members convicted appellant, pursuant to his pleas, of 3 specifications
of making false official statements and 4 specifications of wrongfully
wearing unauthorized military accouterments, in violation of Articles 107
and 134, Uniform Code of Military Justice, 10 USC §§ 907 and
934, respectively. The offenses arose when appellant wore a Special Forces
tab; a Special Forces combat patch, signifying that he had served with
a Special Forces unit in a combat zone; the Combat Infantrymans Badge
(CIB); and a parachutist badge with a bronze star, signifying a parachute
jump under combat conditions. The false official statements arose from
appellants representations that he was entitled to wear the above-described
accouterments. The adjudged and approved sentence provides for a bad-conduct
discharge, confinement for 30 days, and reduction to the lowest enlisted
grade.
This Court granted review of the following
issue:

WHETHER THE MILITARY JUDGE COMMITTED
PLAIN ERROR WHEN ALLOWING THREE GOVERNMENT WITNESSES TO OFFER THEIR OPINIONS
DURING PRESENTENCING TESTIMONY BEFORE PANEL MEMBERS REGARDING WHETHER APPELLANT
SHOULD RETURN TO SERVE IN HIS UNIT.

We affirm, for the reasons set out below.
During the sentencing hearing, the
prosecution presented the testimony of four witnesses: Colonel (COL) Newman,
Captain (CPT Estok, Master Sergeant (MSG) Falaniko, and Sergeant First
Class (SFC) Hutchinson. The granted issue pertains only to the testimony
of COL Newman, MSG Falaniko, and SFC Hutchinson.
The thrust of the prosecutions aggravation
evidence was to show the adverse impact of appellants offenses on the
soldiers serving with him. During voir dire of the members, trial
counsel told them that there was no "traditional victim" who had been injured
and no lost property, and then asked the members if they would agree that
there are "crimes under the Code that have no traditional victim." He followed
with questions asking if the members agreed that "there are offenses that
undermine the morale of the unit," "the good order and discipline of the
unit," and "the image of the Army as a whole."
COL Clyde Newman, commander of the
3d Brigade, 82d Airborne Division, testified that he had commanded Company
B, 1st Ranger Battalion, during the invasion of Grenada. COL Newman had
a CIB and combat jump stars for his participation in military operations
in Grenada. He also wore the combat patch of the lst Ranger Battalion,
having served with that unit in Grenada. He testified that these combat
awards were "important and distinctive," for other infantryman and paratroopers
and for him personally. COL Newman felt a special bond with other soldiers
wearing the same combat patch. Asked how he reacts when he sees other soldiers
wearing the same decorations, he responded, "I usually want to go hug them."
Appellant claimed to have participated
in a combat jump with the lst Ranger Battalion during the operation in
Grenada. COL Newman testified that he had spoken with appellant about the
jump, and that appellant had lied about participating in it.
COL Newman testified that the combat
jump into Grenada was a "significant emotional event." He explained, "Some
things you remember what you do. If you jump at day or night, with reserve
or not." In response to questioning by trial counsel, he testified further
as follows:



Q: Sir, is this the first soldier
youve run into thats made this claim?
A: No.
Q: So youve had an opportunity to
form an opinion about the character of soldiers who lie about service in
Grenada?
A: Yes.
Q: And what would that opinion be?
A: Poor.
Q: Sir, when the accused came into
your office that day and lied to you about combat in Grenada, did you form
an opinion about his character?
A: I know it was something less than
outstanding.
Q: Sir, do you find it offensive when
an NCO claims that they [sic] were a part of your company in Grenada when
he wasnt?
A: Yes.
Q: And finally, sir, as a two-time
combat veteran, based upon what youve seen of the accused, if you were
jumping into combat tomorrow, would you want him around?
A: Nope.



On cross-examination, COL Newman testified
that he did not know appellant and was not familiar with his service record.
CPT Estok, appellants company commander,
testified that he relied on appellants misrepresentation that he had served
in a Special Forces unit to conclude that appellant was "a subject matter
expert" in demolition training. He testified that soldiers lives were
endangered during the training, because appellant "did not appear to really
understand what was going on at the range."
Appellants former first sergeant,
MSG Falaniko, testified at some length concerning his investigation of
appellants representations and his own duties as an instructor at the
Engineer School. MSG Falaniko was appellants first sergeant from October
of 1995 until August of 1996. As first sergeant, he assessed appellants
duty performance on a regular basis. He knew appellant well enough to select
him to be the next platoon sergeant. MSG Falaniko testified that appellant,
as a squad leader in an engineer company, would "deal with live demolition
and live mines." If appellant had not received the training in demolitions
that he said he had received, he could kill or injure his soldiers. MSG
Falaniko testified that "as a result of whats transpired lately," appellant
could not effectively train and lead troops.
Finally, SFC Hutchinson, a member of
another unit in the 82d Airborne Division, testified he was entitled to
wear the CIB, as well as a combat star on his jump wings for the jump into
Grenada. He testified that the CIB and combat star are important to soldiers
and to him. He explained, "It shows my soldiers and my officers, the platoon
leaders that I have come in and that Im required to help train, it shows
them that I have done something, that I do know what Im doing in my job."
He testified that appellants wearing
of the jump wings and CIB made him a "blatant liar." He testified that
appellants misrepresentations hurt him personally, because he "jumped
into Grenada and there are only a few of us left in the Army that have
done that." He explained that "there is a bond that we did jump onto an
airfield while under fire." Finally, SFC Hutchinson testified that appellant
"is not capable of leading troops because he lied about his service."
On cross-examination, SFC Hutchinson
admitted that he did not know appellant personally, had not served with
him in a unit, and had not observed his duty performance. On redirect,
SFC Hutchinson was asked, "[B]ased upon what youve heard today, would
you want to serve with Sergeant Armon in an [sic] unit?" He responded,
"Absolutely not, sir." Trial counsel asked, "So it was just enough whats
happened in here today?" SFC Hutchinson explained:



Yes, sir, because the Army is built
on integrity and trust; and, if youre not honest about what youve done
in your past, then how can an officer or a soldier for that matter look
to you for guidance and leadership in making a decision, if you have to
make, you know, a split second decisions [sic], especially when youre
in combat. How can a soldier look at you like that? Like you got some trust
and honesty about yourself.



The defense objected to MSG Falanikos
testimony about the danger posed by appellant conducting demolition training
without proper training, but the objection was on the ground that it was
"all speculation." The defense made no other objections to the testimony
of COL Newman, MSG Falaniko, and SFC Hutchinson.
In sentencing argument, trial counsel
continued the theme of emphasizing the impact of appellants offenses on
soldiers. He argued that appellant chose to wear awards that are the most
important to soldiers and the most meaningful, because "you cant go to
a school for them, you have to actually be there." He argued that appellants
"imaginary qualifications" caused his chain of command to give him dangerous
duties that he was not qualified to perform. He called attention to the
personal hurt inflicted on SFC Hutchinson. He asked the court members to
think about leadership, asking "[H]ow can soldiers and troops follow leaders
who lie to them, right out in the open, on their uniform; and, then lie
to their leader when theyre asked about it." Finally, he asked the court
members to send a message "to other soldiers who want to be PX Rangers,
who want to be PX Heroes." Trial counsel suggested that appellant be sentenced
to a dishonorable discharge, total forfeitures, and confinement for 30
months. The maximum punishment was a dishonorable discharge, total forfeitures,
confinement for 17 years, and reduction to the lowest enlisted grade.
The military judge instructed the members
that all of the evidence they had heard was relevant to sentencing. The
defense did not object to the instructions or request any additional instructions
regarding the testimony of the three witnesses at issue.
Appellant now asserts that it was plain
error for the three witnesses to testify that he lacked any rehabilitative
potential and to euphemistically state that he should be punitively discharged
from the Army. The Government argues that the testimony was proper aggravation
evidence showing the impact of appellants misconduct on military discpline.
Both sides cite United States v. Ohrt, 28 MJ 301 (CMA 1989), and
United States v. Horner, 22 MJ 294 (CMA 1986), in support of their
positions.
RCM 1001(b)(4), Manual for Courts-Martial,
United States (1995 ed.),*
authorizes a trial counsel to "present evidence as to any aggravating circumstances
directly relating to or resulting from the offenses of which the accused
has been found guilty." This evidence may include "evidence of significant
adverse impact on the mission, discipline, or efficiency of the command
directly and immediately resulting from the accuseds offense." Id.,
Discussion.
RCM 1001(b)(5)(A) authorizes a trial
counsel to introduce evidence "in the form of opinions concerning the accuseds
previous performance as a servicemember and potential for rehabilitation."
Regarding the foundation for such opinions, RCM 1001(b)(5)(B) provides
as follows:



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.



RCM 1001(b)(5)(C) requires that the basis
for an opinion regarding an accuseds rehabilitative potential be based
on information and knowledge of "the accuseds personal circumstances."
Such an opinion may not be based principally on "the severity or nature
of the accuseds offense or offenses." RCM 1001(b)(5)(D) prohibits testimony
about the appropriateness of a punitive discharge or whether the accused
should be returned to the accuseds unit. RCM 1001(b)(5) is based on this
Courts decisions in United States v. Pompey, 33 MJ 266 (1991);
United States v. Claxton, 32 MJ 159 (1991); United States v.
Aurich, 31 MJ 95 (1990); United States v. Ohrt, supra;
and United States v. Horner, supra. See Drafters
Analysis of RCM 1001(b)(5), Manual, supra at A21-68.
Because the defense did not object
to any of the testimony covered in the granted issue, any error was waived,
unless it rises to the level of plain error. See United States
v. Powell, 49 MJ 460 (1998). We hold that there was no plain error.
Much of COL Newmans testimony dealt
with the close emotional bond among soldiers who have served together in
combat, and the fact that he was personally offended when he learned that
appellant had fabricated his combat record. COL Newman did not mention
rehabilitative potential. We hold that evidence of COL Newmans emotional
reaction to appellants misconduct was admissible under RCM 1001(b)(4).
However, COL Newman also testified
that he had a poor opinion of appellants character, that "it was something
less than outstanding." This testimony runs afoul of RCM 1001(b)(5)(C),
prohibiting opinion testimony based principally on the nature of the offenses.
Finally, COL Newman testified that
he would not "want [appellant] around" in a combat jump. This comment could
be construed as an indirect way of saying that COL Newman did not want
appellant in his brigade. If so construed, it would contravene RCM 1001(b)(5)(D).
Nevertheless, COL Newmans testimony was presented in the context of showing
how appellants misconduct had been personally offensive to other soldiers
and was detrimental to the trust and confidence required among soldiers
in combat. In this context, such testimony would be permissible under RCM
1001(b)(4). In any event, even if it was error to permit this comment by
COL Newman, we are satisfied that it did not rise to the level of plain
error.
MSG Falanikos description of the dangers
caused by appellants misrepresentation of his qualifications and experience
was admissible under RCM 1001(b)(4). Furthermore, unlike COL Newman and
SFC Hutchinson, he had been appellants first sergeant, supervised him,
and knew him well enough to recommend him for assignment as a platoon leader.
As such, he was qualified under RCM 1001(b)(5)(A) to express an opinion
about appellants potential for rehabilitation. Nevertheless, he limited
his opinion to appellants ability to lead troops. MSG Falaniko was not
asked for and did not express an opinion about appellants potential for
rehabilitation. Thus, we hold that MSG Falanikos testimony was permissible
under RCM 1001(b)(4) and (5).
SFC Hutchinsons description of the
special bond among soldiers who "jump onto an airfield while under fire,"
and his own emotional reaction to appellants offenses was admissible under
RCM 1001(b)(4). His testimony stopped short of suggesting that there was
no place for appellant in the Army. His comment about appellants ability
to lead troops was a reflection on appellants status as a noncommissioned
officer rather than his suitability for continued military service.
SFC Hutchinson further testified that
he would not want to serve in a unit with appellant. On its face, this
testimony runs afoul of the spirit, if not the letter, of RCM 1001(b)(5)(D).
Once again, however, this testimony was presented in the context of unit
morale and discipline. SFC Hutchinson explained that "the Army is built
on integrity and trust." Trial counsel referred to SFC Hutchinsons testimony
only in terms of the emotional pain inflicted on him by appellants misconduct.
Such testimony is admissible under RCM 1001(b)(4). Thus, even if it was
error, we are satisfied that the receipt of SFC Hutchinsons testimony
did not rise to the level of plain error.
The decision of the United States Army
Court of Criminal Appeals is affirmed.
FOOTNOTE:
* All Manual provisions
are cited to the version in effect at the time of trial. The 1998 version
is unchanged, unless otherwise indicated.
 
 
EFFRON, Judge (concurring in part and
in the result)
I disagree with that portion of the
majority opinion suggesting that the testimony of COL Newman and SFC Hutchinson
was not objectionable. With respect to each, the testimony did not reflect
that either possessed "sufficient information and knowledge about [appellant]
to offer a rationally-based opinion that [would be] helpful to the sentencing
authority," as required by RCM 1001(b)(5)(B). Neither of these witnesses
had a personal relationship with the appellant. Neither provided sentencing
testimony of a such a specialized nature that it would have been beyond
the type of knowledge possessed by any court member selected to serve as
"best qualified" by reason of training, experience, and the other factors
set forth in Article 25, UCMJ. The essence of the their testimony focused
on the impact on themselves and others of the fact that appellant committed
the charged offenses, which is the type of consideration that a court member
qualified under Article 25 would bring to a sentencing deliberation.
I agree that this questioning did not
constitute prejudicial plain error, particularly in view of defense counsel's
questioning of these witnesses about their personal knowledge of appellant.
In the absence of an objection, however, I do not agree that this case
provides an appropriate vehicle for considering the type of testimony that
may be provided on sentencing. Absent litigation about the nature of the
information, its admissibility under RCM 1001, and its relationship to
Article 25, the record before this Court does not permit appropriate consideration
of the parameters of permissible sentencing testimony.

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