UNITED STATES, Appellee
V.
Robert HURSEY, Jr., Airman
U.S. Air Force, Appellant
No. 00-0642
Crim. App. No. 33295
United States Court of Appeals for the Armed Forces
Argued February 6, 2001
Decided May 21, 2001
GIERKE, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., and SULLIVAN and BAKER, JJ., joined. EFFRON, J.,
filed an opinion concurring in part and dissenting in part.
Counsel
For Appellant: Captain Kyle R. Jacobson (argued); Colonel James
R. Wise (on brief).
For Appellee: Captain Linette Romer (argued); Colonel Anthony P.
Dattilo and Major Lance B. Sigmon (on brief); Lieutenant
Colonel Ronald A. Rodgers,.
Military Judge: Edward M. Starr
This opinion is subject to editorial correction before publication.
United States v. Hursey, No. 00-0642/AF
Judge GIERKE delivered the opinion of the Court.
A general court-martial composed of officer members
convicted appellant, pursuant to his pleas, of wrongful use of
cocaine, in violation of Article 112a, Uniform Code of Military
Justice, 10 USC § 912a. The court-martial sentenced appellant to
a bad-conduct discharge, confinement for 179 days, forfeiture of
$366.00 pay per month for 5 months, and reduction to the lowest
enlisted grade. Pursuant to a pretrial agreement, the convening
authority reduced the confinement to 5 months; he also reduced
the monthly forfeitures to $249.00 but otherwise approved the
sentence. The Court of Criminal Appeals affirmed the findings
and the approved sentence in an unpublished opinion.
This Court granted review of the following issue:
WHETHER THE MILITARY JUDGE ERRED BY PERMITTING REBUTTAL
TESTIMONY OF A MILITARY JUSTICE PARALEGAL SPECULATING THAT
APPELLANT HAD BEEN LATE FOR HIS COURT-MARTIAL.
For the reasons set out below, we affirm.
During the sentencing hearing, the prosecution presented
documentary evidence from appellant’s personnel records, showing
the following infractions and derelictions:
(1) A Record of Counseling dated November 22, 1995, for
missing a dental appointment. (Prosecution Exhibit 4)
(2) A Record of Counseling dated April 11, 1996, for
failing to comply with Air Force shaving and grooming
standards. (Prosecution Exhibit 5)
(3) A Record of Counseling dated May 5, 1996, for
missing appointments, being late for duty, failing to
comply with personal appearance standards, spending too
much time making personal telephone calls on duty,
being slothful, and sleeping on duty. (Prosecution
Exhibit 6)
(4) A Letter of Reprimand dated May 28, 1996, for
writing a bad check. (Prosecution Exhibit 7)
2
United States v. Hursey, No. 00-0642/AF
(5) A civilian conviction on September 1, 1996, for
disorderly conduct, menacing, and criminal mischief by
breaking the window of a police car. (Prosecution
Exhibit 8)
(6) A Record of Counseling dated February 7, 1997, for
being late for work. (Prosecution Exhibit 9)
(7) A Record of Counseling dated May 29, 1997, for
failing to maintain his dormitory room in an acceptable
condition. (Prosecution Exhibit 10)
(8) A Record of Nonjudicial Punishment for dereliction
of duty by failing to answer his pager while on standby
duty. A suspended reduction in grade and a forfeiture
were imposed on August 8, 1997. (Prosecution Exhibit
11)
(9) A Letter of Reprimand dated December 4, 1997, for
failing to report for duty or notify his supervisor.
(Prosecution Exhibit 12) This same misconduct and
another similar incident were the basis for vacating
the suspension of appellant’s reduction in grade.
(Prosecution Exhibit 13)
(10) A Letter of Admonishment dated January 20, 1998,
for failing to report for duty and improper grooming.
(Prosecution Exhibit 14)
Appellant introduced several documents, including letters of
appreciation and a memorandum from a civilian co-worker. The co-
worker described appellant as “quiet,” “low-key,” and a
“dependable sort of person that one could rely on to do his job.”
The co-worker believed “anyone can be rehabilitated” and stated
that he would be willing to have appellant work with him.
(Defense Exhibit J)
Over defense objection, the military judge permitted the
command’s noncommissioned-officer-in-charge (NCOIC) of the base
Military Justice Division to testify in rebuttal that appellant’s
court-martial was scheduled to commence at 9:00 a.m. but was
delayed until 11:00 a.m. because he “was under the assumption
that the accused was not available.” Before overruling the
3
United States v. Hursey, No. 00-0642/AF
defense objection, the military judge stated that “in balancing
under [Mil. R. Evid.] 403, I do not find that the prejudicial
impact substantially outweighs the probative value.” The
military judge did not further articulate his reasoning.
The NCOIC testified that he called appellant’s unit in an
effort to find appellant, but he did not know why appellant did
not arrive at the appointed time. On cross-examination, he was
unable to say whether appellant was at fault or whether the delay
was unavoidable or justified.
In his final sentencing argument, trial counsel reviewed
appellant’s long record of infractions and derelictions. He then
commented on appellant’s tardiness for the court-martial by
arguing that a court-martial is “the ultimate wake-up call,” but
that appellant “doesn’t even show up on time on the day of his
court-martial.” The military judge informed the members that he
had taken judicial notice of the fact that the court-martial was
scheduled to commence at 9:00 a.m. but was delayed until 11:00
a.m. at a judicially approved defense request.
We review evidentiary rulings for abuse of discretion. Mil.
R. Evid. 403, Manual for Courts-Martial, United States (1998
ed.), applies to sentencing evidence. United States v. Rust, 41
MJ 472, 478 (1995). When a military judge conducts a proper
balancing test under Mil. R. Evid. 403, the evidentiary ruling
will not be overturned unless there is a “clear abuse of
discretion.” United States v. Ruppel, 49 MJ 247, 250 (1998).
Military judges receive “less deference” if, as in this case,
“they fail to articulate their balancing analysis on the record.”
United States v. Manns, 54 MJ 164, 166 (2000).
4
United States v. Hursey, No. 00-0642/AF
We hold that the military judge abused his discretion. The
NCOIC’s testimony had virtually no probative value, because he
had no knowledge of the reason for appellant’s absence. His
testimony had the potential for wasting time by provoking a mini-
trial on the reason for appellant’s absence. It had the
potential of misleading the court members by suggesting, in a
prejudicial manner and without basis, that appellant was so
unreliable that he was absent without authority from his own
court-martial.
We are satisfied, however, that the error was harmless.
Art. 59(a), UCMJ, 10 USC § 859(a). Appellant pleaded guilty to a
serious offense, punishable by a dishonorable discharge,
confinement for 5 years, total forfeitures, and reduction to
Airman Basic. The court members imposed only a bad-conduct
discharge, confinement for 179 days, partial forfeitures for 5
months, and reduction to Airman Basic. Appellant’s personnel
record was replete with admissible evidence of misconduct and
derelictions, including frequent tardiness. Even if the members
concluded from the NCOIC’s testimony that on the day of his
court-martial appellant had been tardy one more time, we can
easily “say, with fair assurance, . . . that the judgment was not
substantially swayed by the error.” Kotteakos v. United States,
328 U.S. 750, 765 (1946).
Decision
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
5
United States v. Hursey, No. 00-0642/AF
EFFRON, Judge (concurring in part and dissenting in part):
I concur with the majority’s conclusion that the military judge
erred in permitting speculative testimony creating the implication
that appellant’s unexplained absence was due to misconduct. I do not
agree that the error was harmless.
The majority opinion makes two important observations, with
which I agree, concerning the erroneously admitted testimony: (1)
the NCOIC’s testimony should have been excluded because it provided
negligible information of probative value under the circumstances of
this case; and (2) the testimony “had the potential of misleading
the court members by suggesting, in a prejudicial manner and without
basis, that appellant was so unreliable that he was absent without
authority from his own court-martial.” ___ MJ at (5). In effect,
the testimony created the possibility that the members would view
appellant as so contemptuous of military life that he did not take
seriously the purpose of his court-martial or the impact of any
delay on the members of the panel.
The majority opinion relies upon the relatively light sentence
as an indication that the error was harmless. Under the
circumstances of this case, the light sentence underscored the
prejudicial impact of the error. It is noteworthy that even though
the prosecution presented a sentencing case that included evidence
of ten disciplinary infractions, the members opted to impose a
United States v. Hursey, No. 00-0642/AF
sentence that was significantly less severe than the maximum
allowable punishment. This indicates that the members carefully
weighed all the positive and negative evidence, including the
erroneously admitted testimony, and that they did not view the
prosecution’s sentencing case as particularly overwhelming.
Under these circumstances, I cannot say with fair assurance
that the sentencing result was reliable. Accordingly, I
respectfully dissent on the issue of prejudice.
2