concurring:
I fully concur with my brethren’s determination that the military judge did not abuse his discretion when he determined that this was not an extraordinary ease when a stipulation of fact would be an insufficient substitute for Chaplain (Major General) Zimmerman’s personal appearance. I write only to detail why I also conclude that the judge’s decision is reasonable and rational.
Rule for Courtr-Martial 1001(e) establishes that during the presentence proceedings there shall be much greater latitude than on the merits to receive information by means other than testimony presented through the personal appearance of witnesses. Accordingly, once it has been determined that testimony is material on sentencing, the military judge has the discretion to decide whether there is an adequate substitute for the live testimony which would still enable the court-martial to determine an appropriate sentence. Generally, a stipulation of fact may be a sufficient substitute for live testimony where the content and credibility of the testimony is uncontested. See United States v. Combs, 20 M.J. 441 (C.M.A.1985) (stipulating to mother’s testimony).
There is no doubt that use of the stipulation in this case deprived the appellant of the personal appearance of a witness who could be “very persuasive,” “can get people to believe in him,” and “has a way of winning people over.” Moreover, the mere presence of such a high ranking officer in uniform promised to project vicariously a positive impression of the appellant.
On the other hand, the stipulation of fact amply depicted Chaplain Zimmerman as a uniquely gifted and extremely capable military officer with vast experience in assessing rehabilitative potential for military service. It perfected compelling testimony describing the appellant as an excellent soldier who, during a period of great personal stress, got caught up in episodal misconduct that was neither characteristic of her nature nor reflective of her potential for continuation on active duty. Finally, it captured his strongly held professional opinion that the appellant ought to be retained in the Army.
Most importantly, this powerful stipulation of fact was not challenged by the government. There was no opportunity to cross-examine Chaplain Zimmerman on any weaknesses in his basis of knowledge, or to otherwise diminish the power of his opinion by calling on him to defend it in light of the appellant’s fairly gross departure from the standards of conduct expected from a non-commissioned officer charged with administering the unit’s drug control program. Thus, neither the content nor credibility of Chaplain Zimmerman’s testimony was ever controverted. At the time of the military judge’s ruling, there was no indication whatsoever that the government intended to capitalize on Chaplain Zimmerman’s absence by presenting any rebuttal evidence on the issue of rehabilitative potential.* Moreover, the government never did present such rebuttal or otherwise vigorously attack the stipulation. The government’s case on sentencing focused on the seriousness of the offenses to which the appellant pled guilty, and on their adverse impact on innocent people.
Inasmuch as there was no challenge to the witnesses rank, position, expertise, basis of knowledge, or to the content or the credibility of his testimony, there is little reason to believe that his personal appearance would have significantly enhanced either his probity or the probativeness of his testimony. Thus, *517this is not the “extraordinary case” referred to in R.C.M. 1001(e)(2)(C) “when such a stipulation of fact would be an insufficient substitute for the testimony.” It was, therefore, reasonable for the military judge to conclude that Chaplain Zimmerman’s personal appearanee was not significant to the determination of an appropriate sentence,
Where the government intends to take advantage of the stipulated testimony of a powerful defense witness by calling a live rebuttal witness from the chain of command, or by otherwise vigorously attacking the stipulated testimony, an "extraordinary case when such a stipulation of fact would be an insufficient substitute for the testimony” may be made out.