

   
   
   
   U.S. v. Clemente



United States, Appellee
v.
Rogelio P. CLEMENTE, Technical Sergeant
U.S. Air Force, Appellant
 
 
No. 97-0978
Crim. App. No. 32360
 
 
United States Court of Appeals for the Armed
Forces
Argued October 7, 1998
Decided February 3, 1999
 
 
CRAWFORD, J., delivered the opinion of the
Court, in which
COX, C.J., and SULLIVAN, GIERKE, and EFFRON,
JJ. joined.
 
 
Counsel
For Appellant: Major Margo Stone Newton
(argued); Colonel
Douglas H. Kohrt (on brief).
For Appellee: Major Kenneth A. Arnold
(argued); Lieutenant Colonel Michael J. Breslin and Captain Steven
D. Dubriske (on brief); Colonel Brenda J. Hollis, Lieutenant
Colonel Anthony P. Dattilo, and Major Ronald A. Rodgers.
 
Military Judge: Michael G. McCormack
 
 


THIS OPINION IS SUBJECT TO
EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
Opinion as amended Apr 9, 1999
 
 
Judge CRAWFORD delivered the opinion of the
Court:
Pursuant to his pleas, appellant was convicted
of attempted larceny (6 specifications), larceny (13 specifications), and
larceny of mail matter (1 specification), in violation of Articles 80,
121, and 134, Uniform Code of Military Justice,
10 USC §§ 880, 921, and 934. The
convening authority approved the sentence of the court members of a bad-conduct
discharge, confinement for one year, and reduction to the lowest enlisted
grade. The Air Force Court of Criminal Appeals amended five specifications
and dismissed nine specifications as multiplicious, and reassessed the
sentence. 46 MJ 715 (1997). We granted review of the following issue:



WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION
IN ADMITTING PROSECUTION EXHIBIT 6, AN UNFAVORABLE
INFORMATION FILE, OVER DEFENSE OBJECTION.



We hold that the military judge did not abuse
his discretion in admitting prosecution exhibit 6.

FACTS
The judge admitted, over defense objection,
prosecution exhibit 6, an unfavorable information file which contained
a letter of reprimand for child neglect and a letter of reprimand for spouse
abuse. Both letters were signed in September 1995, about a year before
appellants trial. The child neglect involved leaving three minor children
unattended; the spouse abuse may only be a simple assault, although it
is unclear. When the defense again objected, citing Mil.R.Evid. 403, Manual
for Courts-Martial, United States (1995 ed.), the judge ruled that the
probative value of the evidence outweighed the prejudicial effect.
The defense does not allege that the exhibit
is not properly maintained under Air Force Regulations, but argue the judge
"abused his discretion" in admitting the document. Final Brief at 6-7.
The Government responds that once appellant
adduced evidence of good character the prosecution could respond with this
exhibit. Answer to Final Brief at 5. Additionally, the Government argues
that this evidence rebuts the defense theory that appellants offenses
grew out of his interest in helping his family.

DISCUSSION
The standard of review is whether the "judge
clearly abused his discretion." United States v. Rust, 41 MJ 472,
478 (1995); United States v. Zakaria, 38 MJ 280, 283 (CMA 1993).
In 1984, the President amended the Manual for
Courts-Martial, adding the RCM 1001 rules. The intent of these rules is
to permit "presentation of much of the same information to the court-martial
as would be contained in a presentence report, but it does so within the
protections of an adversarial proceeding, to which rules of evidence apply,
. . . although they may be relaxed for some purposes." Drafters Analysis
of RCM 1001, Manual, supra at A21-67 (citation omitted). As this
Court has emphasized, admission of pre-sentencing evidence is limited by
the RCM 1001 rules and the Military Rules of Evidence, including Mil.R.Evid.
403. See, e.g., United States v. Prevatte, 40 MJ 396
(CMA 1994). The RCM 1001 rules permit a number of alternative means for
introducing evidence both by the prosecution and the defense. None of these
rules are mutually exclusive. See United States v. Ariail,
48 MJ 285 (1998). The key is whether the evidence fits within one of the
rules, and is relevant and reliable. Id. at 287. But "RCM 1001(b)(2)
[,like the other rules,] does not provide blanket authority to introduce
all information that happens to be maintained in the personnel records
of an accused. Personnel records may contain entries of questionable accuracy,
relevance, or completeness." Id.
RCM 1001(b)(2) permits introduction in evidence
of the "personnel records of the accused" maintained pursuant to service
regulations which "reflect the past military efficiency, conduct, performance,
and history of the accused...."
In Zakaria, we held that the judge erred
in admitting "explosive evidence of sexual perversion" in a case in which
the defendant was convicted primarily of theft of property totaling less
than $100.00. 38 MJ at 283. Based on this evidence, Zakaria was given a
sentence of 4 years confinement, where the maximum sentence was 5 1/2 years.
In contrast, here, appellant was sentenced
to 12 months confinement and the maximum sentence to confinement was 95
1/2 years. Additionally, the defense does not question the accuracy and
completeness of the records or imply that they were improperly maintained
pursuant to service regulations. The picture of concern for the welfare
of his family which was presented by appellant during sentencing was directly
rebutted by prosecution exhibit 6. Thus, we hold that the judge did not
abuse his discretion in overruling the defense objection on the basis that
any prejudice was outweighed by the probative value of the evidence.
The decision of the Air Force Court of Criminal
Appeals is affirmed.
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