United States v. Hardison , 2007 CAAF LEXIS 64 ( 2007 )

UNITED STATES, Appellee
v.
Vangle S. HARDISON, Seaman
U.S. Navy, Appellant
No. 06-0064
Crim. App. No. 200200753
United States Court of Appeals for the Armed Forces
Argued October 16, 2006
Decided January 25, 2007
BAKER, J., delivered the opinion of the Court, in which EFFRON,
C.J., and ERDMANN, J., joined.
STUCKY and RYAN, JJ., did not participate.
Counsel
For Appellant: Captain Rolando R. Sanchez, USMC (argued).
For Appellee: Lieutenant Justin E. Dunlap, JAGC, USN (argued);
Commander Charles N. Purnell II, JAGC, USN, and Major Wilbur
Lee, USMC (on brief).
Military Judge: J. V. Garaffa
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Hardison, No. 06-0064/NA
Judge BAKER delivered the opinion of the Court.
Appellant was a seaman assigned to the Funeral and Honor
Guard detail, Naval Submarine Base, Kings Bay, Georgia. Before
a special court-martial composed of officer members Appellant
pleaded not guilty to a single specification of using marijuana
in violation of Article 112a, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 912a (2000). Appellant was convicted and
sentenced to a bad-conduct discharge. The convening authority
approved the sentence and the United States Navy-Marine Corps
Court of Criminal Appeals affirmed. United States v. Hardison,
No. 200200753, 2005 CCA LEXIS 258, at *6, 2005 WL 2105409, at *3
(N-M. Ct. Crim. App. Aug. 29, 2005) (unpublished). Upon
Appellant’s petition we granted review of the following issue:
WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS
ERRED BY CONCLUDING THAT THE MILITARY JUDGE HAD NOT
COMMITTED PLAIN ERROR BY ADMITTING EVIDENCE OF APPELLANT’S
PRESERVICE DRUG USE AND A SERVICE WAIVER FOR THAT DRUG USE.
We hold that the Navy-Marine Corps Court of Criminal
Appeals erred in concluding that the military judge had not
committed plain error in admitting the evidence. Admissible
evidence in aggravation must be “directly related” to the
convicted crime. There was no such nexus here and the resulting
admission prejudiced Appellant’s substantial rights.
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BACKGROUND
Appellant joined the Navy pursuant to a drug waiver,
permitting her to enlist despite admission of preservice drug
use. Specifically, at the time of enlistment, she admitted to
having used marijuana in the six months prior to entering the
Navy. On April 30, 2001, approximately three years into her
service commitment, Appellant was administered a random
urinalysis test. The test revealed evidence of recent marijuana
use.
Appellant was court-martialed before members and convicted.
At sentencing the Government’s brief sentencing argument focused
on the various enlistment documents in which Appellant had both
admitted to past drug use and had pledged not to use drugs in
the Navy.1 Trial counsel’s specific argument to the members was
that in assessing her sentence they should consider the fact
1
The three enlistment documents were:
DD Form 1966/2: In response to Question 26 which inquired if
Appellant had “ever tried or used or possessed . . . cannabis
([including marijuana]),” Appellant answered in the affirmative.
DD Form 1966 Annex: In answering Question 8 in Section Three of
the form in the affirmative, Appellant admitted to having
“experimentally/casually used marijuana within the past six
months.”
Enlistment Statement of Understanding: Appellant confirmed that
she understood that “DRUG USAGE IN THE NAVY IS PROHIBITED AND
WILL NOT BE TOLERATED!”
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that Appellant “knew better. She came in on a drug waiver. She
knew the Navy’s drug policy and she violated it anyway.”
Defense counsel did not object to this argument. The
military judge did not address trial counsel’s argument and did
not give a curative or limiting instruction to the jury in
response to the Government’s statements. The military judge
instructed members to “consider all matters . . . offered in
aggravation” including the enlistment documents concerning
Appellant’s preservice drug use. (Emphasis added).
Before the Navy-Marine Corps Court of Criminal Appeals
Appellant argued that the military judge committed plain error
in admitting her preservice drug use during sentencing.
Hardison, 2005 CCA LEXIS 258, at *1, 2005 WL 2105409, at *1.
The lower court noted that Appellant had not raised her prior
use of marijuana in mitigation or extenuation. 2005 CCA LEXIS
258, at *3, 2005 WL 2105409, at *1. However, the court
concluded that “[g]iven the confusion in our case law, we cannot
hold that the military judge committed clear and obvious error
in admitting” the exhibits in question. 2005 CCA LEXIS 258, at
*4, 2005 WL 2105409, at *2. In particular, the lower court
noted that in United States v. Martin, 5 M.J. 888, 889 (N.C.M.R.
1978), the court stated, “‘Once a member qualifies for entry,
his past misdeeds should not be held against him and he should
be able to start off with a clean slate.’” 2005 CCA LEXIS 258,
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at *4, 2005 WL 2105409, at *2. However, the lower court also
noted that in United States v. Honeycutt, 6 M.J. 751, 753
(N.C.M.R. 1978), “[t]he majority held that evidence of
preservice drug use was admissible as it ‘better define[d] the
enormity of the crimes for which Appellant was sentenced.” 2005
CCA LEXIS 258, at *5; 2005 WL 2105409, at *2.
Before this Court, Appellant again argues that her
sentencing was prejudiced by the admission of her preservice
drug use. Appellant asserts that precedent has clearly held
that there must be a “direct relation” between the use of which
she was convicted and the uncharged preservice drug use.
Appellant further contends that there was no such link here, and
that admission of the records was to her prejudice.
The Government argues that Appellant’s preservice drug use
demonstrated that “Appellant’s wrongful use of marijuana was not
an isolated occurrence. The evidence of Appellant’s pre-service
drug use was, therefore, directly related to the offense for
which she was convicted . . . .”
DISCUSSION
In the absence of a defense objection we review a claim of
erroneous admission of evidence for plain error under the test
set forth in United States v. Powell, 49 M.J. 460, 463-65
(C.A.A.F. 1998); United States v. Hays, 62 M.J. 158, 166
(C.A.A.F. 2005). Plain error is established when: (1) an error
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was committed; (2) the error was plain, or clear, or obvious;
and (3) the error resulted in material prejudice to substantial
rights. Powell, 49 M.J. at 463-65. Appellant has the burden of
persuading the court that the three prongs of the plain error
test are satisfied. United States v. Scalo, 60 M.J. 435, 436
(C.A.A.F. 2005).
In this case, Appellant’s admitted preservice drug use was
offered in aggravation. Rule for Courts-Martial (R.C.M.)
1001(b)(4) sets forth the general contours of permissible
evidence of aggravation at sentencing:
(4) Evidence in aggravation.
The trial counsel may present evidence as to any
aggravating circumstances directly relating to or
resulting from the offenses of which the accused has
been found guilty. Evidence in aggravation includes,
but is not limited to, evidence of financial, social,
psychological, and medical impact on or cost to any
person or entity who was the victim of an offense
committed by the accused and evidence of significant
adverse impact on the mission, discipline, or
efficiency of the command directly and immediately
resulting from the accused’s offense.
There are two primary limitations on the admission of
aggravation evidence. First, such evidence must be “directly
relating” to the offenses of which the accused has been found
guilty. This rule does “‘not authorize introduction in general
of evidence of . . . uncharged misconduct,’” United States v.
Nourse, 55 M.J. 229, 231 (C.A.A.F. 2001), and is a “‘higher
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standard’ than ‘mere relevance.’” United States v. Rust, 41
M.J. 472, 478 (C.A.A.F. 1995).
The second limitation is that any evidence that qualifies
under R.C.M. 1001(b)(4) must also pass the test of Military Rule
of Evidence (M.R.E.) 403, which requires balancing between the
probative value of any evidence against its likely prejudicial
impact. See United States v. Wilson, 35 M.J. 473, 476 n.5
(C.M.A. 1992).
I. “Directly Related” Evidence
The meaning of “directly related” under R.C.M. 1001(b)(4)
is a function of both what evidence can be considered and how
strong a connection that evidence must have to the offenses of
which the accused has been convicted.
Regarding the strength of the connection required between
admitted aggravation evidence and the charged offense, this
Court has consistently held that the link between the R.C.M.
1001(b)(4) evidence of uncharged misconduct and the crime for
which the accused has been convicted must be direct as the rule
states, and closely related in time, type, and/or often outcome,
to the convicted crime.
For instance, in United States v. Wingart, 27 M.J. 128, 135
(C.M.A. 1988), the Court held that uncharged misconduct could be
admitted in aggravation at sentencing if it was directly
preparatory to the crime for which Appellant was convicted. In
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Nourse, this Court concluded that testimony about uncharged
robberies was properly admitted in aggravation when it
illustrated that the uncharged misconduct was part of the same
course of conduct which the accused had committed against the
same victim, in the same place, several times prior to the
charged offense. 55 M.J. at 232. See also United States v.
Metz, 34 M.J. 349, 351-52 (C.M.A. 1992) (holding that uncharged
conduct was admissible because it was “interwoven” in the res
gestae of the crime and provided information to determine the
identity of the murderer and his intent when committing the
crime); United States v. Ross, 34 M.J. 183, 187 (C.M.A. 1992)
(concluding that it was permissible to show that the appellant
altered twenty to thirty enlistment aptitude tests, even though
he pleaded guilty only to altering four as it showed a wider
course of conduct); United States v. Mullens, 29 M.J. 398, 400
(C.M.A. 1990) (stating that uncharged misconduct consisted of “a
continuous course of conduct involving the same or similar
crimes, the same victims, and a similar situs”); United States
v. Silva, 21 M.J. 336, 337 (C.M.A. 1986) (holding that uncharged
misconduct was admissible because it was an “integral part of
[the appellant’s] criminal course of conduct”).
In regard to the strength of the connection needed, it is
important to note that judicial discretion to admit uncharged
misconduct under R.C.M. 1001(b)(4) was limited when the
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President promulgated the 1984 edition of the Manual for Courts-
Martial, United States (1984 MCM), replacing the 1969 edition.
The 1984 MCM replaced the original rule for the admission of
evidence at sentencing, which allowed “any aggravating
circumstances” with the requirement that the evidence in
aggravation be “directly related.” See Manual for Courts-
Martial, United States (1969 rev. ed.); see also Wingart 27 M.J.
at 136.
In this case, the Government argues that Appellant’s use of
drugs after enlistment was “[d]espite [her] knowledge [of the
Navy’s policies], and despite the fact that a drug waiver was
required in order for her to enlist in the U.S. Navy . . . . In
light of this evidence, Appellant’s wrongful use of marijuana
was not an isolated occurrence.” The Government concludes
therefore that Appellant’s preservice drug use was “directly
related to the offense for which she was convicted.”
There are three problems with this argument. First, it is
not clear how the drug use of which Appellant was convicted was
not an isolated event, especially when compared with the cases
cited above in which this Court has found the requisite
relationship between the charged crime and uncharged misconduct.
The only apparent link is that Appellant was convicted of using
the same drug that she admitted to using prior to her service.
More than three years separated the incidents, however, and
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there was no evidence that the uses were connected in a manner
this Court has recognized. In terms of how “isolated” the
events were, this Court in United States v. Shupe, 36 M.J. 431(C.M.A. 1993), faced a similar question. In Shupe, this Court
was presented with five specifications of drug distribution and
explicitly found that they were “not isolated” from five
uncharged instances of drug distribution that were admitted in
aggravation. Id. at 436. This Court found that they were
associated in that they were both part of a single “extensive
and continuing scheme to introduce and sell [drugs].” Id. at
436. The “continuous nature of the charged conduct” was
important to our conclusion. Id. at 436 (quoting United States
v. Mullen, 29 M.J. 398, 400 (C.M.A. 1990)). There was no
similar connection here.
Second, even assuming that the events were not isolated,
this does not necessarily mean that they were “directly
related.” The correct standard for admission is not whether
some prior instance is or is not isolated from a subsequent
incident, but whether the former is directly related to the
crime for which Appellant was convicted. In this case, it is
not evident why the prior use or the pledge to refrain from drug
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use is “directly related” to the offense for which Appellant was
convicted.2
Third, as an alternative the Government suggests that the
“directly related” aggravation derives not from the preservice
drug use itself, but from the fact that the military provided
Appellant with a second chance, a second chance that she
proceeded to squander. According to this argument, it was not
that Appellant’s convicted behavior was associated with her
prior drug usage, but that it was linked with her admission of
preservice drug use and acknowledgment of the Navy’s drug
policy. However, this argument would appear to negate the
meaning of the words “directly related.”
First, all recruits are apparently required to sign the
statement and thus there would be nothing “aggravating” about
Appellant’s case. Logically, for something to “aggravate” it
must “make worse, more serious, or more severe” than it would
otherwise have been. Webster's Ninth New Collegiate Dictionary
64 (9th ed. 1991). There is no other position for a
servicemember to be in than to have signed the drug policy
statement, and thus no way that that alone could be aggravating.
See United States v. Kirkpatrick, 33 M.J. 132, 133 (C.M.A. 1991)
(holding that “[w]e have long condemned any references to
2
This is not to say that such evidence is never admissible on
sentencing. In an appropriate case, such evidence may be
admitted as rebuttal to the defense presentation.
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departmental or command policies made before members charged
with sentencing responsibilities” and thus that an accused knew
of a service’s policy against drug use is not valid aggravation)
(citations and quotation marks omitted).
Second, although Appellant’s use of drugs following the
Navy’s offer of accommodation was, in common parlance, morally
“aggravating,” it does not logically or legally make her
admissions of priorservice use “directly related” to the charged
offense. “Evidence in aggravation” in the sense of R.C.M.
1001(b)(4) refers to a limited set of uncharged misconduct.
Otherwise, every waiver for every offense could be admitted
in aggravation for any offense occurring under the UCMJ, because
each waiver would recognize that the military gave the accused a
second chance that was abused. In the context of drug offenses,
the military’s policy on drug use, signed by all recruits, would
be equally admissible as aggravating evidence, demonstrating as
trial counsel argued in this case, aggravation on the ground
that the accused knew the Navy’s drug policy and violated it
anyway. Such an approach would make the President’s choice of
the words “directly related” devoid of meaning.
The net effect of this analysis is that in admitting
Appellant’s preservice admissions of drug use and her
understanding of the Navy’s zero tolerance drug policy at
sentencing, the military judge’s actions satisfied prongs one
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and two of the Powell test. In other words, this evidence was
not directly related to the offense of which Appellant was
convicted, and admitting the documents was clear and obvious
error in light of the language of R.C.M. 1001(b)(4).3 We turn
now to the final part of Powell to determine if the admission
materially prejudiced Appellant’s substantial rights.
II. Prejudice
This Court recognizes that even without the admission of
the uncharged misconduct there was properly admitted evidence
that cast Appellant in a negative light. On the one hand, there
were Appellant’s futile and furtive attempts to avoid taking the
drug test, and Appellant’s lack of full contrition in her
unsworn statement to the court.
On the other hand, Appellant’s trial and sentencing was
before members, rather than a military judge alone. While the
“‘experienced and professional military lawyers who find
themselves appointed as trial judges’” are assumed to be able to
appropriately consider only relevant material in assessing
sentencing, the same cannot be said for members. United States
v. McNutt, 62 M.J. 16, 26 (C.A.A.F. 2005) (quoting United States
v. Lacy, 50 M.J. 286, 288 (C.A.A.F. 1999)). Members are less
3
In light of our conclusion that the admitted evidence does not
qualify under R.C.M. 1001(b)(4), it is unnecessary to address
the second limitation on aggravation evidence, namely, its
admissibility under M.R.E. 403.
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likely to be able to separate relevant matters and make their
decisions based solely on admissible evidence. Wingart, 27 M.J.
at 136 (holding that relaxing the rules of admissibility at
sentencing hearings would generate difficulties “especially . .
. when sentencing is by court members instead of by the judge”);
see also United States v. Bungert, 62 M.J. 346, 348 (C.A.A.F.
2006) (holding that “particularly in light of the fact that the
sentencing was by a military judge sitting alone,” appellant
failed to show how impermissible evidence had prejudiced him).
That the military judge offered no curative instructions
and emphasized that “all matters . . . offered in aggravation,”
and specifically, the exhibits at issue here, should be
considered by the members in their sentencing analysis makes
this case problamatic. “Particularly in a criminal trial, the
judge’s last word is apt to be the decisive word.” United
States v. Quintanilla, 56 M.J. 37, 43 (C.A.A.F. 2001).
Based on Appellant’s four positive evaluations, absence of
any negative evaluations, no prior nonjudicial punishments or
convictions, her admission to having made a mistake, and a lack
of any other aggravating testimony, it is not evident that
Appellant so clearly deserved her bad-conduct discharge such
that the evidence of preservice drug use was irrelevant to the
members’ decision. It seems likely that the outcome in the
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sentencing portion of Appellant’s trial may have been different
had the evidence been properly excluded.
DECISION
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is affirmed as to the findings but reversed
as to the sentence. The sentence is set aside and the record of
trial is returned to the Judge Advocate General of the Navy. A
rehearing on sentence may be ordered.
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