United States v. Harris

DE FIORI, Chief Judge,

concurring in the result:

I join in the affirmance of the findings and sentence, but I disagree with the conclusion in Part II of the majority opinion that the military judge’s failure to give an uncharged misconduct instruction was error.

I recognize the general rule that evidence of uncharged misconduct requires the trial *761judge sua sponte to give an instruction limiting its use by the fact finder.1 I believe, however, that the majority have erred in their definition of the phrase “uncharged misconduct” and in their application of this instructional rule to the facts of this case.

The majority’s opinion relies heavily upon United States v. Infante, 3 M.J. 1075 (A.C. M.R.1977), a decision which I believe is erroneous. Infante held that “uncharged misconduct” need not amount to a violation of the criminal law in order to obligate the trial judge sua sponte to give a limiting instruction. The majority apparently recognize that the presence of a woman not the appellant’s wife in his BEQ room at 0800 hours on a duty day is not per se a criminal act, but they premise their requirement for a sua sponte limiting instruction upon a conclusion that these facts constitute “evidence of possible misconduct, or at least a violation of a moral code.”

United States v. James, 5 M.J. 382 (C.M.A.1978), defines uncharged misconduct as “evidence which [gives] rise to acts sufficient to support independent criminal charges of equal gravity as those charges for which [an accused is] on trial,” and tells us that the instruction is required when there is “[evidence of] uncharged crimes rebutting mistake or accident, or absence of plan or intent.” (Emphasis supplied, Id. at 383). Thus, it is apparent that United States v. Infante, supra, is of dubious precedential value. This result is as it should be, for a legal rule which requires trial and appellate judges to sift through “a bramble-bush of testimonial controversy” 2 for “inferences of misconduct” or to apply an unspecified or undefined moral code which may or may not be shared by the members of the court-martial or by reviewing authorities, provides little helpful guidance.

The majority also analyze the facts of this case in terms of the James rule. I disagree with their application of this rule because I do not believe that the evidence demonstrates that appellant’s conduct rose to the level of an uncharged crime, as required by James, nor do I share the majority’s belief that the evidence concerning the woman had any tendency to rebut an issue of mistake. Since the defense theory was that the first sergeant and the appellant did not meet and converse in the BEQ room, and appellant’s testimony that his wife was not present on post was wholly consistent with that theory, I do not believe that any issue of mistake exists in this record. Paragraph 154a, Manual for Courts-Martial, United States, 1969 (Revised edition).

Finally, I believe that the majority opinion has placed the trial judge in a nearly impossible position. The cases which they cite as authority for their holding all involve factual situations where “plain, clear and conclusive”3 evidence of uncharged criminal misconduct was before the court. In this case, however, that evidence gave rise, in my opinion, only to a suspicion of misconduct. For the trial judge to have instructed the members how an inference could be drawn,4 would have been devastating to the defense and might itself have constituted reversible error. See United States v. Gaiter, 1 M.J. 54 (C.M.A.1975). I do not believe that United States v. Grunden, 2 M.J. 116 (C.M.A.1977), requires an instruction under circumstances such as these.5

. Initially, I note that the trial judge did give an uncharged misconduct instruction in this case. Although the terms of that instruction were focused upon the use to be made by the members of appellant’s previous conviction, I believe that it was sufficient to orient the court members to the rule that appellant could not be found guilty merely because his other acts of misconduct gave him the appearance of having a criminal proclivity.

. Id. at 382.

. United States v. Janis, 1 M.J. 395 (C.M.A. 1976).

. The judge would have had to instruct that the first sergeant’s testimony about the presence of a woman (which appellant denied) and appellant’s statement about the absence of his wife (which was consistent with that denial) might be combined to give rise to an inference that appellant had committed adultery.

. See also United States v. DeFord, 5 M.J. 104 (C.M.A. 1978), where the Court of Military Ap*762peals held that in a case involving charges of possession, transfer and sale of marihuana, the use of a previous conviction for possession of marihuana solely to impeach the accused’s credibility as a witness does not require a sua sponte instruction.