                         UNITED STATES, Appellee

                                         v.

                   James H. HILL, First Lieutenant
                         U.S. Army, Appellant

                                  No. 04-0470
                         Crim. App. No. 20000208

       United States Court of Appeals for the Armed Forces

                         Argued October 12, 2005

                         Decided January 6, 2006

EFFRON, J., delivered the opinion of the Court, in which GIERKE,
C.J., and CRAWFORD, BAKER, and ERDMANN, JJ., joined.


                                     Counsel


For Appellant: Captain Eric D. Noble (argued); Colonel Mark
Cremin, Lieutenant Colonel Mark Tellitocci, Major Allyson G.
Lambert, and Captain Charles L. Pritchard Jr. (on brief);
Colonel John T. Phelps II.


For Appellee: Captain Isaac C. Spragg (argued); Colonel Steven
T. Salata, Lieutenant Colonel Mark L. Johnson, and Major Natalie
A. Kolb (on brief); Captain Janine Felsman.




Military Judges:    Kenneth D. Pangburn and James L. Pohl



            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Hill, No. 04-0470/AR


    Judge EFFRON delivered the opinion of the Court.

    At a general court-martial composed of a military judge

sitting alone, Appellant was convicted, pursuant to his pleas,

of seven specifications each of dereliction of duty and conduct

unbecoming an officer, in violation of Articles 92 and 133,

Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 892, 933

(2000).    He was sentenced to dismissal, a reprimand, a $2,500.00

fine, and contingent confinement for ninety days if the fine was

not paid.    The record indicates timely payment of the fine.

Prior to taking action, the convening authority ordered a post-

trial session under Article 39(a), 10 U.S.C. § 839(a) (2000), to

consider matters pertinent to the present appeal.            A military

judge who did not preside at trial conducted the post-trial

Article 39(a) session.∗      Following the post-trial Article 39(a)

session, the convening authority approved the results of trial.

The Court of Criminal Appeals affirmed in an unpublished

opinion.    United States v. Hill, No. ARMY 20000208 (A. Ct. Crim.

App. Apr. 12, 2004).

      On Appellant’s petition, we granted review of the following

issues:

            I.    WHETHER THE MILITARY JUDGE ERRED WHEN
                  HE CONSIDERED APPELLANT’S BATTALION

∗
  For purposes of this opinion, we shall refer to the military judge who
presided during the trial as the “trial judge.” We shall refer to the
military judge who presided at the post-trial Article 39(a) session as the
“post-trial judge.”


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United States v. Hill, No. 04-0470/AR


                  COMMANDER’S IMPROPER SENTENCING
                  TESTIMONY, “IF I WAS SITTING IN THAT
                  PANEL OVER THERE AS A JUROR WOULD I
                  ALLOW HIM [APPELLANT] TO REMAIN IN THE
                  ARMY? NO --”

          II.     WHETHER THE MILITARY JUDGE AND THE ARMY
                  COURT OF CRIMINAL APPEALS ERRED IN
                  HOLDING THAT MILITARY RULE OF EVIDENCE
                  606(b) PRECLUDES CONSIDERATION OF THE
                  MILITARY JUDGE’S POST-TRIAL STATEMENT,
                  “I WAS CONSIDERING KEEPING [APPELLANT]
                  UNTIL HIS COMMANDER SAID HE DID NOT
                  WANT HIM BACK.”

For the reasons discussed below, we affirm.



                            I.   BACKGROUND

          A.     CONSIDERATION OF REHABILITATIVE POTENTIAL
                           DURING SENTENCING

     During a sentencing proceeding, it is appropriate to

consider the rehabilitative potential of an accused.       See United

States v. Griggs, 61 M.J. 402, 407 (C.A.A.F. 2005).     Under Rule

for Courts-Martial (R.C.M.) 1001(b)(5), the prosecution may

present opinion testimony during sentencing as to potential of

an accused to be “restored . . . to a useful and constructive

place in society,” with certain restrictions.    Such testimony

“is limited to whether the accused has rehabilitative potential

and to the magnitude or quality of any such potential.”      R.C.M.

1001(b)(5)(D).    The prosecution’s witness “may not offer an

opinion regarding the appropriateness of a punitive discharge or




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United States v. Hill, No. 04-0470/AR


whether the accused should be returned to the accused’s unit.”

Id.

      The defense, which has broad latitude to present evidence

in extenuation and mitigation under R.C.M. 1001(c), is not

subject to the limitations of R.C.M. 1001(b)(5).    See Griggs, 61

M.J. at 410.   If the defense, however, elicits evidence that

could not be introduced by the prosecution under R.C.M.

1001(b)(5), the door may be opened for the prosecution to

present such evidence in rebuttal.     See id.

               B.   EVIDENCE PRESENTED DURING SENTENCING

      Appellant, a thirty-nine-year-old physician’s assistant,

committed various improprieties of a sexual nature during his

examination of seven young enlisted females during their sick

call visits to the medical clinic.     During sentencing, the

defense called several witnesses who testified to Appellant’s

rehabilitative potential, including Appellant’s battalion

commander.   In addition to asking the battalion commander

general questions about rehabilitative potential, defense

counsel directly raised the question of whether the battalion

commander thought Appellant should be returned to the unit:

      Q. Sir, there’s been testimony in this case by people
      in the medical community, professionals, that believe
      that Lieutenant Hill can be rehabilitated due to the
      fact that he came in here, pled guilty, was
      forthcoming and contrite. . . . Based on the
      Lieutenant Hill that you know, that you’ve described
      to us, do you agree that he could be rehabilitated?


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United States v. Hill, No. 04-0470/AR



     A. I know that the testimony of those experts is
     important, but even without that, I would have thought
     that he certainly is rehabilitatable.

     . . . .

     Q. Do you think he can be a productive member of
     society?

     A.   Absolutely.

     Q. Now, sir, the Judge has to make several decisions
     today. One of them is whether or not [Appellant]
     should remain in the Army, and I’m not going to ask
     you whether you think he should remain [in] the Army,
     but if the decision is made for him to remain in the
     Army, do you believe he could be a –- would you take
     him back into the battalion?

     A.   I’d have no qualms with that.

     Q.   What do you base that answer on, sir?

     A. Based on the potential that he’s shown me. Let me
     caveat that and say I would not want him back as a
     clinician, but as an officer, a platoon leader, I feel
     that he would succeed.

     During cross-examination, trial counsel probed the

battalion commander’s stated willingness to “take [Appellant]

back into [his] battalion as a platoon leader”:

     Q. If you had a platoon leader who sexually assaulted
     one of his subordinates, would you expect that person
     to stay in your battalion?

     A. The question was, if the Judge’s decision was to
     retain him in the Army, and he chose my battalion,
     would I accept that, and I said yes. If I was sitting
     in that panel over there as a juror, would I allow him
     to remain in the Army, no --




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The trial judge, on his own motion, promptly interrupted the

witness in mid-sentence, noting:       “The response was not

responsive to the question.    It was also one that a witness is

not allowed to make.”     Trial counsel then resumed his cross-

examination of the battalion commander:

     Q. The question, sir, was whether you would take a
     platoon leader back into your unit, who has done one
     of these sexual assaults, not whether you would kick
     Lieutenant Hill out of the Army.

     A.    I think you need to clarify your question.

     Q. You’ve got a platoon leader, he has one soldier
     under his care, and he fondles her breasts. Would you
     take that lieutenant back into your battalion?

     A. I would prefer charges on that lieutenant and let
     the justice take its course.

     . . . .

     Q. What kind of message do you think it would send to
     your female soldiers if you let someone who’s done
     this type of action to junior enlisted soldiers back
     into the battalion --

     DC. Objection, Your Honor.        He’s also getting into .
     . . [.]

     MJ.    Objection sustained.

     ATC.   No further questions, Your Honor.

                     C.   POST-TRIAL PROCEEDINGS

     After the court-martial was completed, the trial judge

conducted an informal, mentoring discussion with counsel for

both parties, commonly known as a “Bridge the Gap” session.

According to a stipulation of fact subsequently entered into by


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United States v. Hill, No. 04-0470/AR


the parties, the trial judge made the following comment at that

time:    “I was thinking of keeping him in until his commander

said he didn’t want him back,” or words to that effect.      Defense

counsel subsequently referred to the trial judge’s Bridge the

Gap statement in his post-trial submission to the convening

authority.    Based on this submission, the convening authority,

upon advice of the staff judge advocate, ordered a post-trial

session held under Article 39(a), UCMJ.

        At the Article 39(a) session, the post-trial judge

considered whether the trial judge had relied upon inadmissible

testimony when imposing the adjudged sentence and, if so, what

curative action should follow.    See R.C.M. 1102(a), (b)(2).      The

post-trial judge accepted the stipulation of fact regarding the

Bridge the Gap statement.    The remainder of the Article 39(a)

session included consideration of whether it was permissible

under Military Rule of Evidence (M.R.E.) 606 to impeach the

sentence by considering the trial judge’s informal Bridge the

Gap remarks; what the trial judge had meant by the stipulated

remark; and whether the stipulated remark indicated that the

trial judge had considered improper testimony in adjudging a

dismissal as part of the sentence.     Defense counsel contended

that the remark on its face showed that the trial judge had

considered improper testimony -- the battalion commander’s




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United States v. Hill, No. 04-0470/AR


remark that he would not have retained Appellant if he had been

on the court-martial panel.   Trial counsel disagreed.

       Although the parties briefly discussed whether the trial

judge should be called to testify in the post-trial Article

39(a) session, he was not called as a witness or otherwise asked

to explain his Bridge the Gap remark.    Subsequently, the post-

trial judge issued written Findings of Fact and Conclusions of

Law.   The post-trial judge concluded that the trial judge’s

informal Bridge the Gap remark constituted incompetent evidence

that could not be used to impeach the sentence under M.R.E.

606(b).   In the alternative, the post-trial judge concluded that

even if the trial judge’s comments could be considered, there

was no evidence that the battalion commander who testified at

trial “ever opined, either directly or euphemistically, that the

accused should be discharged.”   In that regard, the post-trial

judge made the following findings of fact concerning the context

of the Bridge the Gap remarks:

       [The] remarks [during the informal Bridge the Gap
       discussion] are not evidence that he considered
       extraneous information. [The trial judge’s] comment
       that the commander said he didn’t want him back is
       consistent with [the commander’s] admitted testimony
       that he didn’t want him back as a clinician. Most
       importantly, [the commander] never testified the
       accused should be discharged. He was not permitted to
       complete his answer to the question the defense
       identifies as resulting in the impermissible opinion.
       A fair reading of the record supports the conclusion
       that [the trial judge] cut off [the commander’s]
       answer once it became clear that [the commander] was


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United States v. Hill, No. 04-0470/AR


     giving his opinion as a juror not as the accused’s
     commander. [The trial judge, during the sentencing
     proceeding,] appropriately cut off the answer since
     the witness was improperly invading the province of
     the sentencing authority.

The post-trial judge added:

     In the context of his entire testimony as a defense
     witness, [the commander] clearly indicated his support
     for the accused’s continued service in the Army.

   D. CONSIDERATION OF POST-TRIAL, NON-RECORD STATEMENTS

     Both the post-trial judge and the Court of Criminal Appeals

cited M.R.E. 606(b) as a basis for not considering the Bridge

the Gap remarks by the trial judge.    M.R.E. 606(b) applies

expressly to limit testimony by a “member of a court-martial.”

Subsequent to Appellant’s trial and the decision of the Court of

Criminal Appeals, we held in United States v. McNutt, 62 M.J. 16

(C.A.A.F. 2005), that M.R.E. 606(b) does not apply to military

judges.   We also held that an extra-judicial statement by a

military judge may be given appropriate consideration on appeal,

subject to qualifications not applicable in the present case.

Id. at 22-23.

     In the present case, citation of M.R.E. 606(b) by the post-

trial judge and the Court of Criminal Appeals was not

prejudicial.    Neither the post-trial judge nor the court below

relied exclusively on M.R.E. 606(b).    Both proceeded on the

alternative theory that the Bridge the Gap statement was

admissible in the post-trial session.   Accordingly, the


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United States v. Hill, No. 04-0470/AR


following discussion shall proceed on the basis that it was

appropriate for the post-trial judge to consider the Bridge the

Gap statement as reflected in the stipulation of fact.



                      II.   DISCUSSION

     At the outset, we note that Appellant does not challenge

the admissibility of evidence or the rulings of the trial judge

during the sentencing proceeding.    Defense counsel sought and

obtained the battalion commander’s opinion as to Appellant’s

rehabilitative potential.   Under the latitude permitted to the

defense under R.C.M. 1001(c), defense counsel asked the

battalion commander whether he would accept Appellant back into

his battalion if a decision was made to retain Appellant in the

Army, and the witness gave an affirmative response.   The witness

responded that although he would not take him back as a

clinician, he would take him back as a platoon leader.

     Once the defense opened the door to the issue of whether

the battalion commander would want Appellant back in the unit,

the prosecution appropriately sought to explore the witness’s

response on cross-examination by addressing the desirability of

retaining in the unit a person who had committed the offenses of

which Appellant had been convicted.   When the witness extended

his answer to suggest what he might have done as a panel member,

the trial judge promptly cut him off and said that the witness


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United States v. Hill, No. 04-0470/AR


was not allowed to make such a comment.   The prompt and decisive

action by the trial judge reflected his awareness that the

defense had not opened the door to unlimited remarks about

retention of Appellant.

     The question raised by the granted issues is whether

Appellant has established that the trial judge -- having

expressly stated that the battalion commander could not testify

as to whether Appellant should be discharged -- nonetheless

proceeded to rely upon inadmissible testimony.   See United

States v. Davis, 44 M.J. 13 (C.A.A.F. 1996).

     During the post-trial Article 39(a) session, Appellant had

the opportunity to provide a complete account of the trial

judge’s remarks during the Bridge the Gap discussion so as to

establish both the content and the context.    Appellant chose not

to do so, but instead relied on a short stipulation of fact

which contained the following brief quotation from the trial

judge:   “I was thinking of keeping him in until his commander

said he didn’t want him back.”   Appellant contends that the

trial judge was referring to the battalion commander’s testimony

that if he was on the panel, he would not vote to retain

Appellant.

     We do not evaluate the informal Bridge the Gap comments of

the trial judge in isolation.    We view the trial judge’s remark

in the context of his actions during trial and in light of the


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United States v. Hill, No. 04-0470/AR


entire record.    The record does not establish definitively

whether the trial judge, in the Bridge the Gap session, was

referring to:    (1) the testimony of the battalion commander that

he would not want Appellant back in his unit as a clinician, or

(2) the battalion commander’s remarks about not retaining

Appellant in the Army if he was on the panel.     Under these

circumstances, the defense bears the burden of discounting the

first alternative explanation and demonstrating that the trial

judge relied upon the inadmissible testimony on non-retention,

as reflected in the second alternative.

        With respect to the first alternative, we note that at

trial, the defense counsel opened the door to the basis for the

battalion commander’s views as to retention of Appellant in the

unit.    In that context, the trial judge could properly consider

the battalion commander’s testimony that he would not want

Appellant back in the unit as a clinician, and could give that

testimony such weight as the trial judge deemed appropriate in

the sentencing proceeding, including how it might bear on the

question of a punitive discharge.      With respect to the second

alternative, we note that the trial judge expressly stated that

the battalion commander’s remarks were “not responsive” and

consisted of testimony “that a witness is not allowed to make.”

        As a general matter, we presume that a military judge knows

the rules of evidence and considers testimony only for


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United States v. Hill, No. 04-0470/AR


permissible purposes.   See United States v. Prevatte, 40 M.J.

396 (C.M.A. 1994).   In the present case, that presumption is

strengthened by the prompt action of the trial judge, which

expressly cut off and rejected questionable testimony.   Just as

we presume that the members follow the instructions of the

military judge, see, e.g., United States v. Holt, 33 M.J. 400,

408 (C.M.A. 1991), we also presume that a military judge adheres

to his own evidentiary rulings.    See Davis, 44 M.J. at 17 (“When

a judge indicates he will not consider inadmissible evidence, .

. . we presume that he will do as he says.”).   In light of that

presumption, and under the circumstances of this case, Appellant

has not demonstrated that the trial judge relied upon

inadmissible testimony in the course of adjudging the sentence.



                         III.   CONCLUSION

     The decision of the United States Army Court of Criminal

Appeals is affirmed.




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