UNITED STATES, Appellee
v.
Thomas M. GORENCE, Airman
No. 04-0607
Crim. App. No.
S30296
Argued
Decided
CRAWFORD, J., delivered
the opinion
of the Court, in which GIERKE, C.J., and EFFRON and BAKER, JJ., joined. ERDMANN, J., filed a separate opinion
concurring in the result.
Counsel
For Appellant:
Captain David P. Bennett (argued); Colonel
Carlos L. McDade, Major Terry L. McElyea, and Major
James M.
Winner (on brief).
For Appellee:
Major Michelle M. Lindo (argued);
Lieutenant Colonel Gary F. Spencer and Lieutenant Colonel
Robert V.
Combs (on brief).
Military
Judge: Patrick M. Rosenow
THIS OPINION IS SUBJECT TO
REVISION BEFORE FINAL
PUBLICATION.
Judge CRAWFORD delivered the opinion of the Court.
At
a special court-martial, a military judge alone convicted Appellant,
pursuant
to his pleas, of a single use of cocaine in violation of Article 112a,
Uniform
Code of Military Justice (UCMJ), 10 U.S.C. § 912a (2000).
The convening authority approved the sentence
of a bad-conduct discharge, three months of confinement, and reduction
to the
lowest enlisted grade. The Court of
Criminal Appeals affirmed the findings and sentence.
We granted review of the following issues on
I. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS IMPROPERLY CONDUCTED ITS APPELLATE REVIEW UNDER ARTICLE 66(c), UCMJ, BY CONSIDERING EVIDENCE OUTSIDE THE RECORD IN VIOLATION OF UNITED STATES v. HOLT, 58 M.J. 227 (C.A.A.F. 2003).
II. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY PERMITTING THE TRIAL COUNSEL TO ELICIT INFORMATION CONCERNING THE APPELLANT’S PRE-SERVICE DRUG USE FROM THE APPELLANT’S MOTHER TO “REBUT” MATTERS TO WHICH THE MILITARY JUDGE HIMSELF “OPENED THE DOOR.”
For the reasons set forth below, we affirm the decision of the United States Air Force Court of Criminal Appeals. If there was error, it was harmless.
FACTS
During
sentencing, the prosecutor offered evidence from Appellant’s personnel
record
reflecting three disciplinary infractions during his seventeen months
of
military service: (1) consumption of
alcoholic beverages while under the age of twenty-one on
In addition to his unsworn statement, Appellant offered several documents from family friends, coworkers, and supervisors attesting to his rehabilitative potential. His mother also testified as to Appellant’s interests and upbringing. When asked by defense counsel about rehabilitative potential, she replied that her son was not a malicious person and that his cocaine use was an “error in judgment” from which he could learn. “[H]e has a lot of integrity . . . and he is honest . . . . But . . . he’s 19, and teenagers make –- have some poor judgments [sic] in things because they feel that they –- they have their whole life, that they are really invincible and that it won’t really matter this time.” She also recognized that her son had made mistakes. Defense counsel inquired further, “But with your son, does he learn from his mistakes?” She responded, “[H]e always has learned from his mistakes.”
At the conclusion of her direct examination, there was no cross-examination by the prosecutor. However, the military judge began the following colloquy:
Q:
[Y]ou had no concerns about the people he was hanging around with?
A:
Not normally, no. Every once in a while,
you know, somebody would do something stupid, and I would say, you
know, guys,
get it together, because I’ll call you on it. Right?
Q:
Right. I’m trying to figure out –
A:
He didn’t hang out with the jocks, and he didn’t hang out with the
computer
geeks. He’s always been somewhat of a
loner . . . .
Q:
Okay. Because at least from the evidence
I’ve got so far, it appears the folks that he was hanging out here with
. . .
weren’t doing him any favors.
A:
No. And that was –
Q:
And that’s one concern I have if [he] comes back to you. I
mean, did he have a history of kind of
hanging out with those folks, or maybe it was just because he was here
in
A:
I have a feeling that was probably the case.
Q:
And did you have any concerns from his prior history of any sort of
substance
problems as far as alcohol beyond I guess what you would normally
expect of
high school kids?
A:
Nothing beyond what normal high school kids get involved with, no.
Upon completion of the military
judge’s questioning, the trial counsel posed the following question:
Q:
Do you know if your son ever used marijuana while he was in high school?
A:
He probably –
DC
[Defense Counsel]: Objection, Your Honor. This
is going into uncharged misconduct.
MJ
[Military Judge]: Well, the problem is you’ve got the judge asking
questions
and I -- you know, I was mostly thinking about alcohol as much as
anything
else. I didn’t realize I was wandering
into uncharged misconduct territory. Probably
that would have been the better place for you to object there when I
said, you
know --.
I
tell you what, I’m going to overrule the objection, but only to the
extent --
and you can rest assured, I’m not going to consider it for any
uncharged
misconduct purposes. But to the
extent it would only weigh to rebut the question I asked. Okay. So
I asked -- I asked the question about did you have any -- have any
reason to
suspect the history of any sort of substance abuse. And,
you know, there wasn’t any objection to
that. I certainly had no reason to know
what the answer was going to be . . . .
[M]y
suspicion is the witness is going to say no, because that’s what she
told me,
but I’ll go ahead and allow you to ask the question. But,
it’s a bench trial, you don’t
have to worry about non 403-type [sic] uses. I’m
only going to use -- if I consider it
at all, and it will depend on the answer, it will be for a very
limited
purpose which I’ll put on the record.
Go
ahead.
[Trial
Counsel (TC)]: Ma’am, again, do you know or are you aware that
your son
ever used marijuana?
A:
I believe he tried it at some point because he’s a normal high school
kid. You know, but as far as continual use
or --
no. No.
Would he have at a party? Let me
just put it this way: At every single
high school party that I have known of in the last 20, 30 years, it has
been
there.
Emphasis
added.
On
redirect examination, defense counsel asked:
Q: Just one
clarification.
A: Uh-huh.
Q: You just said you’ve been
to parties, too?
A: Uh-huh.
Q: Is this any time soon or is this back when
you were in high school?
A: Oh. High school, college.
Yeah, there is -– not recently.
Actually, I don’t go to too many parties anymore.
But it is -– it is part of the culture. It’s
there.
Whether or not your intention is to use when you go to a party,
there is
always the possibility that it is there, you know.
And I’d be silly to say, no, it’s not.
DC: Nothing further.
MJ: Just so the record is clear, my ruling is that
the defense objection is overruled. I
opened the door with my question. But
what I’m taking it as that you’re telling me is that it was
experimentation at
a party-type environment in high school and that’s it.
[Witness]: I would assume. I
would assume, based on where we are today.
MJ: That’s fine. And,
clearly, I’m not going to impose any
other punishment for an experimental use in high school.
But I will consider it in the context of
everything else.
Emphasis
added.
After announcing his sentence, the
military judge noted that Appellant was an “ideal” candidate for the
Air Force
Return-to-Duty Program, a rehabilitation program that allows convicted
airmen
to return to duty upon successful completion of its rigorous
requirements. He recommended that the
convening authority
approve such a course of action.
The lower court opined that once the
door was opened during discussion of rehabilitative potential, the
prosecutor’s
solicitation of the information was proper.
Thus, trial counsel’s question properly clarified the
foundational basis
for Appellant’s mother’s opinion testimony.
On appeal, the defense did not
contest the accuracy of Appellant’s mother’s statement or the propriety
of the military
judge’s question to his mother about “any substance abuse problems as
far as alcohol.” The Court of Criminal
Appeals stated that,
assuming the military judge did not open the door with that question,
“other
aspects of [Appellant’s mother’s testimony] brought out by the
defense
did make the Appellant’s pre-service marijuana use proper rebuttal.” United States v. Gorence,
No. ACM S30296, 2004 CCA LEXIS 132, at *8,
2004 WL
1239172, at *3 (A.F. Ct. Crim. App. May 18, 2004).
When the defense counsel asked Appellant’s
mother whether “appellant learned from his mistakes and whether he had
rehabilitative potential,” this “opened the door to other information
challenging the foundation of her opinion.”
DISCUSSION
As
to Issue I, we hold that Holt is
distinguishable. In Holt, the
military judge had
admitted into evidence certain sentencing exhibits and clearly ruled
that the
jury could not consider them for the truth of the matter asserted in
the
exhibits. 58 M.J. at
232. But, the Court of Criminal
Appeals considered these exhibits as substantive evidence.
In remanding Holt, the Court held that
a court of criminal appeals “may not resurrect excluded evidence during
appellate review under Article 66(c).” 58 M.J. at 232-33. In
Holt, the Air Force court’s consideration of the exhibits as
substantive
evidence impermissibly changed the evidentiary nature of the exhibits.
As to Issue II, we hold that, if there was error, it was harmless. This was a trial by a military judge alone in which Appellant’s mother testified that her son had “a lot of integrity” but had “learned from his mistakes.” Following this testimony, the military judge asked questions concerning Appellant’s future life, his dreams, and what would happen if he left the Air Force. After the colloquy between the military judge and Appellant’s mother, the trial counsel asked the questions that were the subject of the defense counsel’s objection. While overruling the defense counsel’s objection, the military judge responded, “[C]learly, I’m not going to impose any other punishment for experimental use in high school, but I will consider it in the context of everything else.” Admittedly, this was not a clear statement as to how the military judge would use this evidence. In any event, any error was harmless because this was a trial by military judge alone, and from the statements made by the judge on the record, we may infer that he did not give significant weight to Appellant’s mother’s speculative testimony that Appellant used drugs in high school. For example, the military judge stated, “it was experimentation in a party-type environment in high school and that’s it . . . . I am not going to impose any other punishment for experimental use in high school.” Additionally, Appellant gave a detailed confession as to his use of cocaine, and the military judge recommended that Appellant be returned to duty.
Based
on all of these facts, we affirm the decision of the United States Air
Force
Court of Criminal Appeals.
ERDMANN, J. (concurring in the
result):
I agree that any error made by the
military judge in admitting Gorence’s mother’s speculative testimony
about her
son’s pre-service drug use was harmless.
As to Issue I, in light of the lack of clarity in the military
judge’s
ruling, I cannot be certain how he considered the mother’s testimony,
if at
all. Consequently I cannot join in the
majority’s conclusion that the Court of Criminal Appeals “found an
alternative
foundational basis for the rebuttal evidence considered by the military
judge.” __ M.J. at __
(8). However, in light of the fact
that the Court
of Criminal Appeals found no prejudice “even if we were to assume there
was
error,” I would affirm the decision below on that basis.