United States v. Donnelly

EVERETT, Chief Judge

(concurring in the result):

According to paragraph 138/(2) of the Manual for Courts-Martial, United States, 1969 (Revised edition), which was in effect at the time of appellant’s trial:

The prosecution may not, for the purpose of rebutting evidence of the accused’s good character, introduce evidence of other specific offenses or acts of misconduct of the accused unless that evi*84dence is in rebuttal of evidence introduced by the defense that other offenses or acts of misconduct were not committed (see the second paragraph of 153b (2)(b)) or is admissible under 138g. See also 75d.

In light of this provision, I doubt that the opinion evidence offered by appellant’s witness in extenuation opened the door, so that otherwise inadmissible evidence of specific misdeeds by appellant could be received in evidence.

Under the guise of cross-examining the witness about the basis of his opinion, the trial counsel sought to bring to the military judge’s attention acts of misconduct by appellant that probably were inadmissible in evidence. Thus, the military judge probably should have sustained the defense objection. However, as the majority opinion makes clear, there is no risk of prejudice to appellant. Therefore, I join in affirming the decision below.