United States v. McConnell

MITCHELL, Judge:

The above-styled case was originally reviewed and the findings and sentence affirmed by this Court on 10 August 1984, the appellant having originally waived appellate representation. Thereafter, the appellant notified the Court of his retention of civilian counsel and moved for reconsideration. We granted the motion for reconsideration.

At trial, the appellant sought to admit two Enlisted Performance Reports, one for the period 15 April 1980 — 30 June 1980 and the other for the period 15 March 1982 — 31 January 1983, solely to establish the appellant’s military character. At general issue was the appellant’s guilt of cocaine use (Article 134, Uniform Code of Military Justice, 10 U.S.C.A. § 934) proved solely by the results of a urinalysis. The appellant denied ever using cocaine and relied upon character evidence and some facts to prove his denial. The military judge sustained an objection by trial counsel to the admission of the performance evaluations. On appeal, the appellant asserts error because the military judge should have admitted the reports or, at least, the written comment sections thereof.

We note that in this case the appellant sought to introduce the Enlisted Performance Reports at trial solely as evidence of military character and not as evidence of his character for law abidingness. In this respect, the case at bar differs from United States v. Clemons, 16 M.J. 44 (C.M.A. 1983), which held that in a proper case evidence of character for law abidingness was pertinent and admissible under Mil.R. Evid. 404(a)(1). Clemons also set forth the proposition that evidence of military character may be a pertinent character trait within the meaning of the Rule, depending upon the extent to which miltiary duty is circumstantially involved in either the offense or the facts relied upon to defend the case. See also, United States v. Kahakauwila, 19 M.J. 60 (C.M.A.1984) (military character pertinent and admissible in case involving violation of specific regulations); United States v. McNeill, 17 M.J. 451 (C.M. A.1984) (military character pertinent and admissible in sodomy case involving on-duty superior-subordinate relationship); United States v. Piatt, 17 M.J. 442 (C.M.A. 1984) (military character pertinent and admissible in aggravated assault/maltreatment case involving superior-subordinate relationship). While we are aware of the holdings in United States v. Vandelinder, 17 M.J. 710 (N.M.C.M.R.1983), and United States v. Weeks, 17 M.J. 613 (N.M.C.M.R. 1983), we note that they were decided before the McNeill, Piatt and Kahakauwila cases and do not follow the dictates of Clemons in the light of those cases.

The case at bar does not involve a peculiarly military offense, violation of specific orders, specific military duties or a defense sounding in the performance of or neglect of any specific duty, or any other theory to which soldierly virtue is directly relevant. We reject the argument that the last element of Article 134, UCMJ, offenses (prejudice to good order/service discredit) brings the instant offense within the parameters of Clemons. This element, common to all general article offenses, has nothing to do with whether or not the appellant committed the offense; rather, it is solely related to the factual character of the misconduct alleged, whether or not committed by the appellant. Though not so stated in the statutes, virtually every offense covered by a specific article of the UCMJ involves one or both of the prongs of the pertinent Article 134 element. Consequently, it is not the sort of element to which military character can logically relate within the meaning of Clemons and cannot, therefore, provide a basis for ad*579mitting evidence of military character under Mil.R.Evid. 404(a)(1).

We also reject the argument that policy pronouncements emanating from the Chief of Naval Operations regarding the impact of disposition of any acts of misconduct, whether a drug, bad check, larceny or other offense, can change the character of any such offense to one involving military duties, or necessarily involving a defense sounding in military duties, or so change the character of performance evaluations as to provide a basis for admitting evidence of military character under Mil.R.Evid. 404(a)(1). To this extent, we do not agree with the rationale of the learned Senior Judge Gladis in his dissenting opinion in United States v. Vandelinder, supra at 712. Rather, we read Clemons as holding that Mil.R.Evid. 404(a)(1) restricts to the most relevant the character evidence to be used at trial, and contemplates only those traits directly pertinent to the issues of the case. Thus, in the case at bar, while evidence of law abidingness1 or of abstinence from drug use (if indeed these are specific character traits at all) may have been pertinent, the questioned performance reports proffered solely to show military character were not pertinent. In this respect, it is the proponent of evidence who bears the responsibility for identifying the proper grounds for the admissibility of evidence. We will not permit the appellant at this late stage to justify the admissibility of excluded evidence on grounds other than those urged at trial.2

Finally, if character evidence is to be admitted simply because it is stated to be somehow relevant to a defense theory without there being a relevance in fact, as urged by the appellant, then military character evidence would be admissible in virtually every court-martial. In such circumstances, Mil.R.Evid. 404(a)(1) is extinguished insofar as military character is concerned. The Court of Military Appeals, in general, and Judge Fletcher in particular, have not heretofore been bashful about pronouncing such a sweeping rule. If that Court so viewed the Clemons case, the mental gymnastics involved in that and subsequent eases were wholly unnecessary.3

We hold that, in the circumstances of this case, enlisted performance records offered solely to show military character were irrelevant under Mil.R.Evid. 404(a)(1) where the offense involved was not a peculiarly military offense, did not directly involve the appellant’s military duties, and where the proffered defense theory did not assert that the misconduct occurred in furtherance of a lawful objective related to the appellant’s specific military duties.

The appellant also asserts military judge error for the exclusion of an endorsement on a hardship discharge request of the appellant’s where a theory of the defense was that the appellant was motivated to stay out of disciplinary problems. There was already ample and uncontested evidence of record concerning the condition of *580the appellant’s mother. The proffered exhibit was the first endorsement on the appellant’s request and contained virtually no useful information, being suitable only for substantiating the uncontested fact that such a request had been filed and forwarded. Furthermore, the endorsement indicates that the request was filed about eight months prior to the commission of the instant offense and some fourteen months before trial. On these facts, we hold that the military judge did not err in excluding the document, even if considered relevant under Mil.R.Evid. 401, 403 and assuming, arguendo, that the proffered endorsement was a proper method of proving the matter.

The appellant challenges the validity of his conviction on the grounds that proof of a mere cocaine-positive urinalysis is insufficient to establish beyond reasonable doubt that the conduct was service discrediting or prejudicial to good service order. We do not read Murray v. Haldeman, 16 M.J. 74 (C.M.A.1983), to compel such a conclusion or to rebut the commentary of the Court of Military Appeals regarding drug abuse contained in United States v. Trottier, 9 M.J. 337 (C.M.A.1980). The assignment of error is rejected.

The appellant lastly challenges the appropriateness of the approved punitive discharge in light of ten years of service, favorable record and personal hardships. We have carefully considered the facts of this ease, including the eloquent sentence argument of trial defense counsel, but find the unsuspended punitive discharge to be nonetheless appropriate.

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

Senior Judge GREGORY concurs.

. We note that the appellant offered and the military judge admitted evidence of the appellant’s character for law abidingness and veracity. We avoid, for purposes of deciding this case, opening the Pandora’s Box manifest in the general or specific character of general moral character, military character, character for lawabidingness, and other more absurd things often referred to as character traits for purposes of admitting character evidence of whatever sort.

. We do not reach the question of whether the performance reports are a proper vehicle for establishing a relevant character trait.

. Neither is this a case in which an accused, confronted by a paper or lab report case, was denuded of a defense and forced to rely solely upon character evidence of whatever sort that could be marshalled. The appellant offered his own sworn denial, evidence of his truthfulness, evidence of his law abiding character, evidence of a motive to avoid misconduct, knowledge that he was subject to urinalysis, evidence that he voluntarily submitted to the fateful test, and evidence of the opportunity, albeit not particularly detailed, for the innocent ingestion of the cocaine. In any event, we do not see the issue in this case being elevated to the Constitutional dimensions envisioned by the concurring opinion of Chief Judge Everett in Clemons. See Edgington v. United States, 164 U.S. 361, 17 S.Ct. 72, 41 L.Ed. 467 (1896); Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948).