United States v. Smith

OPINION OF THE COURT

SMITH, Judge:

Appellant was convicted, contrary to his pleas, of an indecent act upon another in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934 (1982). The members sentenced appellant to a bad-conduct discharge and confinement for six months. The convening authority approved the sentence.

During the government’s case in aggravation, appellant’s first sergeant testified in pertinent part as follows:

Q: Thank you. First Sergeant Wilson, how long have you been the first sergeant of Delta Company?
A: Since the 13th of January of ’86, this year, sir.
Q: And has Sergeant Smith been a member of your unit since that time?
A: Until he was relieved the first part of March, sir.
Q: In the time that he was a member of your unit, did you have an opportunity to observe his duty performance and also to receive reports regarding his duty performance from other members of the unit?
A: Yes, sir.
*716Q: Have you formed an opinion as to how he performs his duty as an E6 in the United States Army?
A: He was an outstanding platoon sergeant, sir.
Q: Thank you. Now, first sergeant, the accused has just been convicted by this court-martial of an indecent act upon another, Private [H], and also violation of Fort McClellan Regulation 632-1. Based upon that is it your belief that the accused has some rehabilitative potential in the service, or should he be discharged?
A: He should be discharged, sir.

Record at 177 (emphasis added).

Moments later, appellant’s company commander similarly testified:

Q: Captain Harter, how long have you been the company commander of Delta Company?
A: Sir, I took command on 10 January 1986.
Q: And was Sergeant Smith a member of your unit at that time?
A: Yes, sir. He was.
Q: What was his duty position at that time?
A: Sir, he was a platoon sergeant.
Q: In the time that you’ve been a company commander and Sergeant Smith has been in your unit, have you had an opportunity to evaluate his performance of duty as an E6?
A: Yes, sir. I did not officially evaluate him as far as EER, but I did on a duty performance. Yes, sir.
Q: In terms of observation and reports?
A: Yes, sir.
Q: How would you characterize his performance of duties?
A: Sir, performance of duties as a platoon sergeant were excellent, sir.
Q: Now, as you know, Sergeant Smith has been standing trial today. The jury, or court members, have convicted him of an indecent act upon another, in this case, Private [H]. Knowing that, do you feel that Sergeant Smith has any rehabilitative potential in the Army?
A: No, sir.

Record at 179 (emphasis added).

Trial defense counsel did not object to either the form of trial counsel’s questions soliciting opinion testimony or the responses by the witnesses. Appellant now contends that this testimony concerning his rehabilitative potential was improper. We agree. See United States v. Horner, 22 M.J. 294, 296 (C.M.A.1986) (it is improper for a witness to testify upon his assessment of an accused’s rehabilitative potential based solely on the witness’s view of the severity of the offense). We find that in direct response to counsel’s question, it was understood that the appellant’s first sergeant and company commander were testifying that appellant lacked rehabilitative potential and should be discharged based solely on the fact that he had committed an indecent act upon another. Indeed, it appears that the military judge understood the evidence in that light. In instructions on sentencing he stated in part:

First Sergeant Wilson stated that the accused was an outstanding platoon sergeant, however, he testified he should be discharged from the service because of the seriousness of the offense. You should consider the testimony of Captain Harter, the company commander since 10 January 1986; that the accused’s performance of duty as platoon sergeant was excellent. However, he stated that he does not have rehabilitative potential.

There was also no defense objection to the instruction. The court is satisfied that “plain error” did not occur within the meaning of the Manual for Courts-Martial, United States, 1984, Mil.R.Evid. 103(d). Accordingly, trial defense counsel’s failure to object waived this issue on appeal. Manual for Courts-Martial, United States, 1984, Rules for Courts-Martial 801(g) and 1005(f).

We have considered the error personally raised by appellant and find it to be without merit.

The findings of guilty and the sentence are affirmed.

Judge LYMBURNER concurs.