joins (dissenting):
In my view, the military judge did not abuse her discretion by enforcing Mil.R.Evid. 615.
At the outset, I disagree with the majority’s implication that the Supreme Court’s decision in Michigan v. Lucas, 500 U.S. 145, 111 S.Ct. 1743, 114 L.Ed.2d 205 (1991), supports its decision. In Lucas, the trial court had excluded evidence of the victim’s past sexual conduct because the defense had failed to give the notice required by the state’s “rape-shield” statute. The Michigan Court of Appeals held that the notice-and-hearing requirement in the state’s “rape-shield” statute was unconstitutional. The Supreme Court overturned the Michigan court’s decision. It explained:
The sole question presented for our review is whether the legitimate interests served by a notice requirement can ever justify precluding evidence of a prior sexual relationship between a rape victim and a criminal defendant. The answer from the Michigan Court of Appeals was no; it adopted a per se rule prohibiting preclusion of this kind of evidence. This ruling cannot be squared with our cases.
500 U.S. at 151, 111 S.Ct. 1743.
In its opinion, the Supreme Court recognized the authority of a trial judge to exclude a witness as a sanction for violating a notice requirement. It reviewed several cases where the exclusion of a defense witness was upheld. Id. at 149-52, 111 S.Ct. 1743. The Supreme Court “express[ed] no opinion as to whether or not preclusion was justified in this case.” Id. at 153, 111 S.Ct. 1743.
In my view, the military judge’s decision in the case before us was justified, for the following reasons:
First, the primary issue on sentencing was the sensitive nature of the night vision goggles and the danger of their falling into the “wrong hands.” See RCM 1001(b)(4) (permitting evidence of “aggravating circumstances directly relating to or resulting from the offenses”). Whether appellant was a member of a gang was a secondary, collateral issue.
Second, the defense first raised the issue of appellant’s connection with gangs during cross-examination of Special Agent (SA) Barnes.
Third, the defense elicited testimony from SA Barnes that the Leahy Housing Area manager did not believe that there were gangs in the housing area. Thus, Mr. Rosario’s testimony would have merely repeated the point already acknowledged by SA Barnes: that Mr. Rosario did not believe that there were gangs in the housing area.
Fourth, the defense improperly permitted Mr. Rosario to remain in the courtroom while they questioned SA Barnes about what Mr. Rosario would say.
Fifth, the military judge was consistent and even-handed in excluding Mr. Rosario. The military judge previously had sanctioned the prosecution by excluding a prosecution witness who was not sequestered. Knowing that the military judge had previously sanctioned the prosecution by excluding a prosecution witness who was not sequestered, the defense nevertheless jeopardized its ability to present the testimony of Mr. Rosario by not sequestering him.
Finally, if there was any error in this case, it was harmless. As noted above, Mr. Rosario would have merely repeated the point already made by SA Barnes regarding a collateral issue. In my view, it was appellant’s abuse of trust and the sensitive nature of the stolen property, not the oblique references to appellant’s supposed gang membership, that caused the court-martial to sentence him to a punitive discharge and a lengthy period of confinement.