United States v. McGill

COOK, Judge

(concurring with reservations):

I fully agree with the majority that the “evidence is insufficient to show that the agent had personal knowledge that appellant was awarded nonjudicial punishment and all the legal requirements for its imposition were met”; that there is insufficient evidence to show that “this agent had firsthand knowledge that appellant engaged in illicit sexual conduct”; and that “the Government failed to establish an adequate foundation, for admission of the challenged testimony.” 15 M.J. at 245. However, I do not agree that the evidentiary requirements of paragraphs 75d and e, Manual for Courts-Martial, United States, 1969 (Revised edition), are the same, and, hence, must disassociate myself from that part of the majority opinion.

The language of the aforementioned paragraphs, in effect at the time of the accused’s trial (Change 3, September 1, 1980), is essentially similar to that in preceding versions of the Manual. Paragraph 75d, Manual, supra, provides that the trial counsel, in accordance with regulations promulgated by the Secretary concerned, may introduce personnel records pertaining to accused. This is permitted without regard to any evidence offered by the accused in mitigation or extenuation of the offense(s) of which he has been convicted. These personnel records must be “made or maintained in accordance with departmental *246regulations which reflect the past conduct and performance of the accused.” In addition to the restrictions imposed by such regulations, this Court has judicially set requirements for certain types of records, such as Article 15(s) and performance evaluations. See United States v. Morgan, 15 M.J. 128 (C.M.A.1983); United States v. Mack, 9 M.J. 300 (C.M.A.1980); United States v. Booker, 5 M.J. 238 (C.M.A.1977), vacated in part, 5 M.J. 246 (C.M.A.1978). Consequently, both as to subject and form, there are limitations on the evidence which may be introduced under the authority of subparagraph d.

However, the situation is different under paragraph 75e, Manual, supra, which provides that

[ajfter matter in aggravation, extenuation, or mitigation has been introduced, the prosecution or defense has the right to cross-examine any witnesses and to offer evidence in rebuttal.

Subparagraph e is indicative of the adversary character of the sentencing portion of the trial, in that it limits evidence to that in “rebuttal” of evidence submitted by the opposing side. See United States v. Morgan, supra at 138 (Cook, J., concurring in the result). The purpose of such rebuttal evidence is to explain, clarify, or contradict the opponent’s evidence. See United States v. Shaw, 9 U.S.C.M.A. 267, 271, 26 C.M.R. 47, 51 (1958) (Ferguson, J., dissenting). Since the defense is given wide latitude in the nature of the evidence it is permitted to offer, see para, 75c(l), Manual, supra, some latitude must likewise be accorded to the Government or only a one-sided picture is presented to the sentencing authority. See para. 75c(2), Manual, supra. Thus, paragraph 75e of the Manual is not subject to the same evidentiary limitation as paragraph 75d of the Manual.

Here the accused made an unsworn statement, see para. 75c(2), Manual, supra, in which he stated that he had a good career and had never been convicted of a crime in the military. While this statement might be technically correct in a legal sense, trial counsel certainly had the obligation to correct any misapprehensions engendered by this statement by referring to the accused’s record of nonjudicial punishments for past offenses. I agree with the majority that evidence of the accused’s nonjudicial punishment for sodomy “was a relevant matter for consideration by the members on sentencing.” 15 M.J. at 244. However, since the manner of presenting.such evidence was inadequate to establish a foundation for the witnesses’ knowledge of the Article 15, the military judge should have sustained defense counsel’s objection.