United States v. Honeycutt

BAUM, Senior Judge

(concurring in part/dissenting in part):

I concur with all in the majority opinion save that portion dealing with admission in evidence of Prosecution Exhibit 1, a document reflecting preservice use of marijuana and a categorical rejection of future drug abuse. Although United States v. Martin, 5 M.J. 888 (N.C.M.R.1978) and United States v. Galloway, No. 76 1677 (N.C.M.R. 14 September 1976) both contemplate instances when the conditions of enlistment or preservice conduct would be admissible in evidence, such as proper matter in rebuttal or as evidence bearing on the validity of an enlistment for jurisdictional purposes, such evidence is, as a general rule, inadmissible. This is particularly so when the purpose is to bring the accused’s past conduct to bear on the question of an appropriate sentence. That was the prosecution’s objective in this case, as brought out in cross-examination of defense witnesses and in argument on the sentence, when in each instance he emphasized that the instant offenses were not the appellant’s first involvement in drug abuse. The use of Prosecution Exhibit 1 was clearly violative of the rule in United States v. Martin and United States v. Galloway, supra, and in my view, the judge’s limiting instruction was inadequate to cure the prejudicial effect of this error. I would reassess the sentence accordingly.