United States v. Connor

SULLIVAN, Judge

(concurring in the result):

I must first note that this Court did not speak with a single voice in United States *392v. Arruza, 26 MJ 234 (CMA 1988). Accordingly, any support it might provide for the majority opinion’s evisceration of Mil. R. Evid. 804(b)(1) is questionable. This rule of evidence promulgated by the President in accordance with Article 36, Uniform Code of Military Justice, 10 USC § 836, requires “opportunity and similar motive” and should be so applied. See United States v. Carter, 25 MJ 471, 479 (CMA 1988) (Sullivan, J., concurring in the result). I have examined the record of trial and concluded the requirements of this rule have been satisfied in this case.

In any event, I conclude appellant’s conviction should be affirmed on harmless-error grounds. Art. 59(a), UCMJ, 10 USC § 859(a). Chief Master-at-Arms Whalen’s testimony concerning this controlled buy, the physical evidence of the drugs, and the marked money render any error in admission of Schultz’ testimony harmless. Mil. R.Evid. 103(a), Manual for Courts-Martial, United States, 1969 (Revised edition).