United States v. Harris

PER CURIAM:

In accordance with his pleas, appellant was convicted at special court-martial of two specifications of assault, violations of Article 128, 10 U.S.C. § 928, Uniform Code of Military Justice (UCMJ); of one specification of unauthorized absence, a violation of Article 86, 10 U.S.C. § 886, UCMJ; and of one specification of breaking restriction, a violation of Article 134, 10 U.S.C. § 934, UCMJ. Appellant was sentenced by members to confinement of six months; forfeitures of $334.00 per month for six months; reduction in pay-grade from E-2 to E-1; and a bad-conduct discharge. The duration of both confinement and forfeitures was reduced to three months by the supervisory authority upon the staff judge advocate’s advice that the military judge had erred to appellant’s prejudice in permitting a prosecution rebuttal witness to testify as to appellant’s veracity following appellant’s unsworn statement.

Appellant has assigned for our consideration one bipartite question:

Whether it was prejudicial error for the military judge to permit rebuttal testimony as to appellant’s character for truth and veracity after he has made an unsworn statement and, if so, whether a rehearing on sentence is required?

The substance of appellant’s unsworn statement was in three parts: first, that he had pled guilty and been so found at a prior special court-martial; second, that while he had “done a lot of bad things,” he had also *654“made a lot of positive contributions” to his ship and wanted to “be a part of it for the rest of [his] enlistment,” (R. 39.); and third, that the reason he turned himself in after having unlawfully absented himself from his ship in the instant case was his desire to “face all the charges, ... and be a man, stop running like a little boy.” (R. 40.).

Following appellant’s unsworn testimony and over trial defense counsel’s strong and continuing objection, the military judge permitted appellant’s division officer to testify for the prosecution as to that officer’s opinion of appellant’s truthfulness. The opinion given was that appellant was “not truthful” and that the officer would not believe him under oath. (R. 43.)

The sentence imposed on appellant by the members was approved by the convening authority. As we have noted above, however, upon his staff judge advocate’s advice, the supervisory authority cut in half the duration of the confinement and forfeitures.

We agree with appellant that the first part of the question he raises must be answered, as the staff judge advocate and supervisory authority recognized, in the affirmative. It was prejudicial error here for the military judge to permit appellant’s division officer to testify as to his opinion of appellant’s truthfulness after appellant made an unsworn statement. United States v. Shewmake, 6 M.J. 710 (N.C.M.R.1978).

The second part of appellant’s question merits a negative answer. Although in Shewmake, we ordered a rehearing on sentence to remedy such an error, we did not rule out other remedies in appropriate cases. Under the circumstances of this case we find that the supervisory authority’s reduction of the adjudged confinement and forfeitures purged the error. See United States v. Bashaw, 6 M.J. 179 (C.M.A.1979).

Accordingly, the findings of guilty and sentence as approved on review below are affirmed.