United States v. Rivera

Opinion of the Court

EVERETT, Chief Judge:

Tried by a general court-martial consisting of officer and enlisted members, appellant was convicted, despite his pleas, of indecent assault and attempted forcible sodomy, in violation of Articles 134 and 80, Uniform Code of Military Justice, 10 U.S.C. §§ 934 and 880, respectively. Appellant was sentenced to a dishonorable discharge, confinement for 3 years, and reduction to the lowest enlisted grade. Except for reducing the confinement to 2 years, the convening authority approved these results. The Court of Military Review affirmed.1

At a session under Article 39(a), UCMJ, 10 U.S.C. § 839(a), immediately prior to *157trial, the military judge considered a number of evidentiary matters. Among them was an objection, made by trial counsel through a bench memorandum, to anticipated defense evidence on the merits of the case which would address appellant’s good military character. The matter arose at trial in this context:

DC: Your Honor, I assume that trial counsel, by providing me with the bench memorandum, also in dealing with military character evidence, I might as well address that at this time. It would be the position of the defense that military good character is an appropriate defense and character evidence of that type is appropriate when the charges that several of the lesser included offenses also involve a violation of Article 134 in the sense that it requires conduct such as to
bring discredit upon the military, if known, or essentially military offenses. Normally Article 134 offenses are offenses that are not necessarily crimes in the civilian world but only rise to the level of criminal conduct within the context of the military environment. As such, the military character evidence of the accused in this case will be necessary to show that he would tend not to commit those types of crimes.

At this point, trial counsel handed up a short bench memorandum on military character evidence.2 After a brief discussion, the memorandum came to the conclusion that “[a]n offer of good military character evidence should not be accepted.” Trial counsel did not supplement this memorandum with oral argument. Defense counsel responded that he had just seen “an advance sheet ... on a recent Court of Military Appeals case” holding “that military character evidence was appropriate” in a trial for “off-post use of marijuana.” On the basis of this precedent, he contended that Rivera’s good military character was admissible.

Thereupon, the military judge ruled, “I don’t believe that it is; the objection to military character will be sustained.” After the judge had satisfied himself that the parties had no further matters to be addressed, trial before the members began.

Defense counsel was correct in his contention that evidence of good military character was admissible. See United States v. Vandelinder, 20 M.J. 41 (C.M.A. 1985); United States v. Weeks, 20 M.J. 22 (C.M.A. 1985); United States v. Piatt, 17 M.J. 442 (C.M.A. 1984). However, the Government relies on Mil.R.Evid. 103(a)(2), Manual for Courts-Martial, United States, 1984, to support its contention that this objection was waived by defense failure to make an offer of proof.

Mil.R.Evid. 103(a)(2) allows appellate assignment of error to be predicated upon a trial ruling which excludes evidence only if “the substance of the evidence was made known to the military judge by offer or was apparent from the context within which questions were asked.” This provision was intended to assure that, in ruling on offers of evidence, a military judge would know what he was excluding, and appellate judges would be similarly informed for purposes of review. Here the “substance” of the excluded evidence was known to the military judge and “was apparent” from the context. He was quite content with the information that he had been provided: He did not ask trial counsel to be more specific as to the scope of his motion in limine; and he did not request defense counsel to specify what evidence of good military character might be available. There is no indication whatsoever that the military judge was misled.

Furthermore, the record in this case provides an appellate court an adequate basis not only to determine that the judge’s ruling on the motion in limine was in error but also to decide whether appellant was prejudiced. We need not speculate what the evidence of good military character *158might have been because the defense offered such evidence later in mitigation and extenuation. Under the circumstances of this case, it can be fairly assumed that this evidence was substantially the same as that which would have been offered prior to findings, if the motion in limine had been denied.

Moreover, Mil.R.Evid 103(a) was intended primarily to deal with a situation where a proponent party has unsuccessfully offered evidence. When, instead, the opposing party chooses to use a motion in limine in a preemptive strike to prevent an anticipated future offer of evidence, the movant has the responsibility for delineating the evidence which he wishes excluded. If he paints with too broad a brush and the military judge fails to limit him in this regard, then the movant is not entitled to have his adversary penalized for the failure to specify what evidence might have been offered if the motion had not been granted.

In determining whether appellant was prejudiced by the military judge’s error, the issue is whether the character evidence that was considered by the court-martial for sentencing purposes might have changed the outcome if it had been received on the issue of guilt and innocence. The Court of Military Review did not consider this issue because it concluded that, under Mil.R.Evid. 103(a), any error in the military judge’s ruling had not been properly preserved. Because we now rule otherwise, that court should have the opportunity to decide, under the test prescribed in United States v. Weeks, supra at 25, whether appellant was prejudiced by the military judge’s ruling on the motion in limine. Cf. United States v. Court, 24 M.J. 11 (C.M.A. 1987).

The decision of the United States Army Court of Military Review is set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for reconsideration in light of Weeks.

Judge SULLIVAN concurs.

. We granted review of this specified issue:

WHETHER UNDER THE PARTICULAR FACTS OF THIS CASE, DEFENSE COUNSEL SATISFIED THE REQUIREMENT OF MIL.R. EVID. 103(a)(2) THAT THE NATURE OF THE EVIDENCE BE BLADE KNOWN TO THE MILITARY JUDGE.

. This appellate exhibit stated as the issue: "May defense use evidence of good military character on charges unrelated to a specific military duty.”