United States v. Brewer , 1995 CAAF LEXIS 113 ( 1995 )

Opinion of the Court

WISS, Judge:

1. After a contested trial, general court-martial members convicted appellant of making a false official statement and of conduct unbecoming an officer concerning his personal relationship with a female enlisted person, in violation of Articles 107 and 133, Uniform Code of Military Justice, 10 USC §§ 907 and 933, respectively. Thereafter, the members sentenced appellant to a dismissal from the service and a fine of $1,000. The general court-martial convening authority approved these results; and, with minor modifications of the false-statement specification, the Court of Military Review¹ affirmed.

2. On appellant’s petition, we granted review of the following issue as modified by this Court:

WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANT BY ALLOWING TRIAL COUNSEL TO CROSS-EXAMINE DEFENSE CHARACTER WITNESSES ABOUT MATTERS WHICH OCCURRED OUTSIDE THE TIME FRAME WHERE THEY COULD VOUCH FOR APPELLANT’S GOOD MILITARY CHARACTER.

Now, on the reasoning that follows, we hold that the military judge did not abuse her discretion in making the complained-of ruling.

I

3. The charges of which appellant was convicted arose from his sexual relationship with a female airman and the steps that he allegedly took to cover it up. Appellant did not contest that he had such a relationship— one apparently that began in late November or early December 1990, turned sexual in character in mid-January 1991, and ended on January 22, 1991, when an anonymous “hotline” caller complained of appellant’s “dating an enlisted member” of another squadron. Rather, the trial was a credibility battle between appellant and prosecution witnesses regarding whether he had lied about it earlier, whether he had impeded an investigation into his conduct (the subject of two specifications of obstructing justice of which appellant was acquitted), and whether he had told a subordinate in his unit about his relationship and about his steps to keep it secret.

4. The defense tactic was to pit appellant’s denial of having lied and deceived against the prosecution’s evidence to the contrary. To this end, the defense called three witnesses who testified glowingly about appellant’s exceptional professional performance and character: Colonel Warner, who knew appellant from 1982 through 1984; Colonel Malik, who knew him from 1985 through 1987; and Lieutenant Colonel Carrier, who knew appellant from 1987 through 1988. The eye of the tempest in this appeal is the last witness.

5. Lt.Col. Carrier was a 19-year veteran who had been appellant’s immediate supervisor for one year in Korea. He testified on direct examination that he had had daily contact with appellant during that time. Then, defense counsel and Carrier had the following exchange:

Q. And how did he perform his duties during that period?

A He did a superb job.

Q. Weren’t there any problems at all noted in his duty performance?

A None whatsoever.

Q. During the contact — during the time that you knew him, did you form an opinion as to his character for telling the truth?

A I felt he was extremely honest and of high moral character.

After establishing that Carrier had “read the charges” against appellant and so was aware of the charged misconduct, defense counsel turned the witness over to the prosecution for cross-examination.

6. In response to trial counsel’s questions, Lt.Col. Carrier indicated that he “had not had any contact with” appellant since their duty together ended in 1988 — he was unaware that appellant was a squadron commander and that his wife had divorced him. Carrier acknowledged that it had been “quite a shock for [him] to read the charge sheet” the previous day. At this point, the following exchange occurred that reflects a prosecution effort to test the quality and accuracy of Lt.Col. Carrier’s favorable character testimony and the defense’s attempt to block that effort:

Q. And your opinion concerns his officership and truthfulness and good military character, is that right?

A. That’s right.

Q. Were you aware, or did you know that Major Brewer was faced with similar problems when Colonel Peterson was the wing commander—

DC: I am going to object, Your Honor, this goes clearly beyond anything brought out in direct examination.

TC: That’s the basis for the opinion, Your Honor, they opened the door to good military character.-

DC: We opened the door for the period in which this witness knew him. This witness has already—

MJ: Well, Captain Bartlemay, if we are going to limit his testimony to that period, it’s not relevant, unless you are trying to connect it to him today.

DC: Your Honor, the witness has further already testified he hadn’t had any contact with the accused during the time frame that the trial counsel is going into.

MJ: I will overrule the objection.

TC: Did you know that Major Brewer was faced with a similar situation last summer when Colonel Peterson was the wing commander?

WIT: No. I stated that I have had no contact with Major Brewer since I left Korea in 1988.

Q. Are you aware of the difficulties that he had concerning excessive socializing with enlisted members and a subordinate officer since removal from his squadron last summer, were you aware of that?

A No.

Q. If you knew that that went on, would that change your opinion about his good military character?

A I would have to know that that’s a fact.

Q. And did you know — if you knew that he was in fact socializing with an enlisted woman, not in his squadron, that they worked out together regularly at the gym; that he met her for meals on base and off base; that he met her at parties where other enlisted members were present; that they hugged and kissed at these parties; that they had sexual intercourse at his house on several occasions; that he met her or encountered her at a bar one night; that they had sexual intercourse in his truck in a residential area; if you knew that, would that affect your opinion about his good military character?

DC: I’m going to object again, Your Hon- or. I only asked him concerning his duty performance during 1987 and 1988. I did not ask any general officership questions of this witness.

TC: His duty performance is only relevant to the issue of good military character and they have opened the door by that line of questioning.

MJ: Well, it is true that the direct was limited to duty performance and for truthfulness.

TC: The duty performance is not relevant to any charges before this court, except that it bears upon his good military character and officership, and by attempting to prove good military character and officership they have opened the door through questioning this witness about the basis of his opinion about Major Brewer’s character.

MJ: I will overrule the objection.

TC: Please answer the question.

WIT: Okay, I’ll tell you, the truth, it probably wouldn’t affect my opinion too much. Q. So, even if you knew all that, you’d still have the same opinion about his officership?

A For the time frame that he worked for me.

Q. That really doesn’t answer the question. Do you have an overall opinion of him or do you have an opinion or do you have an opinion that is separated into time frame?

A. Well, I have ... my opinion is based on the time period that I knew Jay Brewer.

Q. Okay. If you base your opinion on the time frame that you knew Jay Brewer and the additional matters that I have presented to you, then what would your opinion be?

A. It wouldn’t change much. I still think he is a fine man.

(Emphasis added.)

II

7. As is apparent from the granted issue and from the quoted colloquy at trial, this appeal concerns the proper scope of cross-examination that is fashioned to test the soundness of opinion testimony implying that the accused’s character is such that he is not the sort of person who would do the act with which he is charged. One common approach is to probe into the information base upon which a witness relies for his or her opinion through questions beginning with, “Do you know ...” or, “Are you aware that____” See Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948). To the extent that the cross-examiner can show that the witness is unaware of certain salient facts or events that logically bear upon the character trait in issue, the weight of the witness’ opinion obviously is diminished. Particularly this case causes us to focus: first, on admissibility of the witness’ direct testimony; and, second, given its admissibility in substance and form, on the appropriate range of the cross-examination designed to test the opinion testimony.

8. Mil.R.Evid. 404(a), Manual for Courts-Martial, United States, 1984, generally admonishes that “[e]vidence of a person’s character or a trait of a person’s character is not admissible for the purpose of proving that the person acted in conformity therewith____” Such evidence generally is inadmissible because it has “little probative value in determining the accused’s guilt” and “has the potential for reflecting court-members’ attention away from the operative facts and ... burying them ‘in a myriad of distracting and irrelevant [side-] issues of the accused’s past life.’ ” S. Saltzburg, L. Schinasi, and D. Schlueter, Military Rules of Evidence Manual [hereafter Saltzburg] 458 (3d ed. 1991), quoting United States v. Weeks, 17 MJ 613, 616 (NMCMR 1983).

9. One of the three specific exceptions to this rule of exclusion, however, is found in subsection (1), which permits “[e]vidence of a pertinent trait of the character of the accused [to be] offered by an accused____” Thus, an accused may offer evidence of a “relevant trait or traits that the judge believes relate to the charged conduct,” Saltzburg, supra at 458, in order to imply that the accused acted in conformance with that trait on the particular occasion in question. See generally Mil.R.Evid. 401 (defines “relevant evidence”) and 402 (relevant evidence admissible; evidence not relevant not admissible). Such evidence may be offered “by testimony as to reputation or by testimony in the form of an opinion.” Mil. R.Evid. 405.

10. On direct examination, defense counsel asked Lt.Col. Carrier about the quality of appellant’s duty performance, whether there had been “any problems at all” in that performance, and whether Carrier had formed an opinion as to appellant’s character for telling the truth. In response, the witness provided not only the answers to these questions (“superb,” “none whatsoever,” and “honest,” respectively) but also opined that appellant was “of high moral character.” Although defense counsel never articulated his theory or theories of relevance, the questions and testimony suggest these two:

11. First, appellant was a top-notch officer in 1987-1988, remained a top-notch officer thereafter, and top-notch officers do not lie and deceive. Cf. United States v. Benedict, 27 MJ 253, 262 (CMA 1988)(error to exclude “evidence of the specific character trait of ‘good conduct as an officer’ ” in prosecution for sexual molestation); United States v. Belz, 20 MJ 33 (CMA 1985)(evidence of good military character admissible under Mil.R.Evid. 404(a) in drug prosecutions under Articles 92, 112a, 133, and 134, UCMJ, 10 use §§ 892, 912a, 933, and 934). Second, appellant is truthful and moral, and truthful and moral people do not lie and deceive. Cf. United States v. Pearce, 27 MJ 121 (CMA 1988)(character trait of “honesty” admissible in larceny prosecution).

12. On cross-examination, trial counsel sought to challenge the bases of Lt.Col. Carrier’s opinions. Mil.R.Evid. 404(a) permits “the prosecution to rebut” an accused’s evidence of a pertinent character trait, and Mil. R.Evid. 405(a) specifically authorizes cross-examination “inquiry ... into relevant specific instances of conduct” in order to do so.

13. Defense counsel objected to the prosecution’s efforts here, however, apparently on grounds of relevance in comparison to the scope of the direct examination. The first objection, which expressly is within the four comers of the granted issue, questioned whether specific instances of conduct were relevant that were not within the time period upon which Carrier based his opinion. Although appellant correctly points out that such cross-examination is limited under Mil. R.Evid. 405(a) to relevant instances of conduct, his artificial limitation of relevance to the same time period as that which formed the basis of the opinion sometimes would be illogical.

14. This is such a case. The military judge had it right when she noted for defense counsel that the witness’ opinion itself was “not relevant, unless you are trying to connect it to him today.” See Saltzburg, supra at 496 (“Often overlooked under the Rule is the fact that the character with which the Rule is concerned is character at the time of the crime charged.”). That being so, instances of conduct in between the period that was the basis of the opinion and the time of the offense equally are relevant on the question whether, as the direct testimony would imply, appellant had the same character traits when the charged crime occurred as when the witness knew him. See United States v. Morgan, 554 F.2d 31 (2d Cir.), cert, denied, 434 U.S. 965, 98 S.Ct. 504, 54 L.Ed.2d 450 (1977).

15. In United States v. Pearce, 27 MJ at 124, this Court rebuffed a similar appellate complaint “that the cross-examination was impermissible because it concerned events which occurred at a time when the witness had no contact with appellant.” The Court noted that “the implication ... [of the direct testimony was] that appellant was an honest person several years ago; he is an honest person now; therefore, he was probably an honest person in between.” In that context, specific instances of conduct that occurred “in between” were relevant for purposes of Mil.R.Evid. 405(a). Equally so here.

16. The later objection of defense counsel, which apparently is not within the granted issue, questioned the relevance of the instances of misconduct as not within the substantive scope of the direct examination. Defense counsel argued that he had limited his questioning to duty performance and “did not ask any general officership questions of this witness.” Appellate counsel makes the same argument in his brief before us. Accordingly, while not within the granted issue, we will pause briefly to address it.

17. To be accurate, defense counsel asked the witness about the quality of appellant’s duty performance and his truthfulness. The witness responded to these questions and, as well, offered that appellant was of high moral character. As trial counsel appropriately argued in response to this latter defense objection, “duty performance is not relevant to any charges before this court, except that it bears upon his good military character and officership, and by attempting to prove good military character and officership, they have opened the door through questioning this witness about the basis of his opinion about Major Brewer’s character.”

18. In other words, given the charges being tried, the only relevance of appellant’s duty performance is the extent to which that translates into good military character, both generally and as an officer. Thus focused, it is relevant on cross-examination to ask the witness his awareness of any specific instances of conduct that logically would bear upon that character trait.²

III

The decision of the United States Air Force Court of Military Review is affirmed.

Chief Judge SULLIVAN and Judges COX and GIERKE concur.

1 . See 41 MJ 213, 229 n. * (1994).

2 . A word of admonition, however: The supposedly-hypothetical question asked by trial counsel that in fact incorporated the circumstances underlying the charge being tried is objectionable. United States v. Mason, 993 F.2d 406, 409 (4th Cir.1993). It is not permissible, in order to test the basis of a witness’ character opinion, in effect to ask the witness whether the charge then before the court-martial would affect the witness opinion. See United States v. Senak, 527 F.2d 129 (7th Cir.1975), cert, denied, 425 U.S. 907, 96 S.Ct. 1500, 47 L.Ed.2d 758 (1976); S. Saltzburg, L. Schinasi, and D. Schlueter, Military Rules of Evidence Manual 496 (3d ed. 1991). Defense counsel did not object on this ground, however, see Mil.R.Evid. 103(a)(1), Manual for Courts-Martial, United States, 1984, so appellate complaint was waived in the absence of plain error, see Mil.R.Evid. 103(d), which we do not find here.