United States v. Starr

Cook, Judge

(concurring in part and dissenting in part):

I concur with the majority’s conclusion that reversible error was committed, but I disagree with its disposition of the case. As the majority acknowledges, there was an eyewitness to the accused’s possession of the prohibited drug. That the eyewitness was the person who informed Government officials of accused’s possession does not make his testimony unbelievable as a matter of law. The sequence of events is such that, in my opinion, a court-martial can find that the *588substance possessed by the accused when he was seen by the informant was the same substance found in the search. I would, therefore, remand the record of trial to the convening authority to determine, in his discretion, whether a rehearing is appropriate. United States v Schnell, 23 USCMA 464, 50 CMR 483 (1975); cf United States v Crow, 19 USCMA 384, 387, 41 CMR 384, 387 (1970).