United States v. Bartlett

DECISION

PER CURIAM:

The accused raises an issue concerning the proper interpretation of Mil.R.Evid. 608(b) as to cross-examination of an accused regarding specific instances of misconduct.

The accused was charged with theft and forgery. Prior to its case-in-chief, the prosecution sought the military judge’s ruling on the admissibility of two records of nonjudicial punishment for larceny; the prosecution wished to use the documents in cross-examining the accused, should he take the stand. The military judge ruled that he would not admit the two documents, but that he would allow the prosecution to cross-examine the accused on the two alleged larcenies upon which the nonjudicial punishments were based. The accused elected not to testify on the merits; trial defense counsel emphasized to the judge that “but for your ruling, the accused would have taken the stand and denied his complicity.”

The Court of Military Appeals recently held it would have been prejudicial error to admit an accused’s counselless summary court-martial conviction for impeachment purposes. United States v. Cofield, 11 M.J. 422 (C.M.A.1981). Seeking to apply Cofield, the accused here argues the ruling of the military judge was erroneous.

*881We find Cofield inapposite. The military judge indicated he would not admit the underlying documents, but he stated that he would permit cross-examination on the two earlier larcenies which formed the basis for the Article 15 punishments. In this trial for larceny and forgery, those earlier specific larcenies would have been probative as to untruthfulness, if the accused testified. United States v. Berthiaume, 5 U.S.C.M.A. 669, 18 C.M.R. 293, 302-303 (1955). We do not read Mil.R.Evid. 608(b) as shielding an accused who testifies from the issue of credibility, which he himself has put in dispute. Brown v. United States, 356 U.S. 148, 156, 78 S.Ct. 622, 627, 2 L.Ed.2d 589 (1958); United States v. Kindler, 14 U.S.C.M.A. 394, 34 C.M.R. 174, 177, 179 (1964). See, United States v. Wilson, 12 M.J. 652 (A.C.M.R.1981). Accordingly, we find the military judge’s ruling was within his discretion. See, Analysis, Appendix 18, A18-88, Manual for Courts-Martial, 1969 (Rev.).

The accused also claims that the court-martial was without jurisdiction to try him. At trial, Captain D defended the accused, rather than Captain F, the originally detailed counsel, who was excused by the accused. The accused now contends that, because Captain D was really “detailed” rather than “requested,” the failure to prepare a written amending order so stating was a jurisdictional defect.

We disagree. The record of trial indicates some confusion as to whether Captain D was actually appointed or was requested by the accused. We find that Captain D was, in fact, the individually requested counsel, and that he performed ably. Yet, even if he were detailed counsel, we would find no prejudice to the accused’s rights. The convening authority’s affidavit makes it clear that Captain D participated in the trial with the convening authority’s knowledge and consent, and by virtue of his oral appointment. Furthermore, the military judge gave the accused the benefit of any doubt by advising him that he could have another counsel, if he wished, along with Captain D. Testing for prejudice, we perceive no possibility of harm to the accused. See, Wright v. United States, 2 M.J. 9 (C.M.A.1976).

We have considered the other matters raised by the accused at trial and on review, and resolve them adversely to him. Accordingly, the findings of guilty and the sentence are

AFFIRMED.