United States v. Hill , 62 M.J. 271 ( 2006 )

UNITED STATES, Appellee
v.
James H. HILL, First Lieutenant
U.S. Army, Appellant
No. 04-0470
Crim. App. No. 20000208
United States Court of Appeals for the Armed Forces
Argued October 12, 2005
Decided January 6, 2006
EFFRON, J., delivered the opinion of the Court, in which GIERKE,
C.J., and CRAWFORD, BAKER, and ERDMANN, JJ., joined.
Counsel
For Appellant: Captain Eric D. Noble (argued); Colonel Mark
Cremin, Lieutenant Colonel Mark Tellitocci, Major Allyson G.
Lambert, and Captain Charles L. Pritchard Jr. (on brief);
Colonel John T. Phelps II.
For Appellee: Captain Isaac C. Spragg (argued); Colonel Steven
T. Salata, Lieutenant Colonel Mark L. Johnson, and Major Natalie
A. Kolb (on brief); Captain Janine Felsman.
Military Judges: Kenneth D. Pangburn and James L. Pohl
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Hill, No. 04-0470/AR
Judge EFFRON delivered the opinion of the Court.
At a general court-martial composed of a military judge
sitting alone, Appellant was convicted, pursuant to his pleas,
of seven specifications each of dereliction of duty and conduct
unbecoming an officer, in violation of Articles 92 and 133,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 892, 933
(2000). He was sentenced to dismissal, a reprimand, a $2,500.00
fine, and contingent confinement for ninety days if the fine was
not paid. The record indicates timely payment of the fine.
Prior to taking action, the convening authority ordered a post-
trial session under Article 39(a), 10 U.S.C. § 839(a) (2000), to
consider matters pertinent to the present appeal. A military
judge who did not preside at trial conducted the post-trial
Article 39(a) session.∗ Following the post-trial Article 39(a)
session, the convening authority approved the results of trial.
The Court of Criminal Appeals affirmed in an unpublished
opinion. United States v. Hill, No. ARMY 20000208 (A. Ct. Crim.
App. Apr. 12, 2004).
On Appellant’s petition, we granted review of the following
issues:
I. WHETHER THE MILITARY JUDGE ERRED WHEN
HE CONSIDERED APPELLANT’S BATTALION
∗
For purposes of this opinion, we shall refer to the military judge who
presided during the trial as the “trial judge.” We shall refer to the
military judge who presided at the post-trial Article 39(a) session as the
“post-trial judge.”
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COMMANDER’S IMPROPER SENTENCING
TESTIMONY, “IF I WAS SITTING IN THAT
PANEL OVER THERE AS A JUROR WOULD I
ALLOW HIM [APPELLANT] TO REMAIN IN THE
ARMY? NO --”
II. WHETHER THE MILITARY JUDGE AND THE ARMY
COURT OF CRIMINAL APPEALS ERRED IN
HOLDING THAT MILITARY RULE OF EVIDENCE
606(b) PRECLUDES CONSIDERATION OF THE
MILITARY JUDGE’S POST-TRIAL STATEMENT,
“I WAS CONSIDERING KEEPING [APPELLANT]
UNTIL HIS COMMANDER SAID HE DID NOT
WANT HIM BACK.”
For the reasons discussed below, we affirm.
I. BACKGROUND
A. CONSIDERATION OF REHABILITATIVE POTENTIAL
DURING SENTENCING
During a sentencing proceeding, it is appropriate to
consider the rehabilitative potential of an accused. See United
States v. Griggs, 61 M.J. 402, 407 (C.A.A.F. 2005). Under Rule
for Courts-Martial (R.C.M.) 1001(b)(5), the prosecution may
present opinion testimony during sentencing as to potential of
an accused to be “restored . . . to a useful and constructive
place in society,” with certain restrictions. Such testimony
“is limited to whether the accused has rehabilitative potential
and to the magnitude or quality of any such potential.” R.C.M.
1001(b)(5)(D). The prosecution’s witness “may not offer an
opinion regarding the appropriateness of a punitive discharge or
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whether the accused should be returned to the accused’s unit.”
Id.The defense, which has broad latitude to present evidence
in extenuation and mitigation under R.C.M. 1001(c), is not
subject to the limitations of R.C.M. 1001(b)(5). See Griggs, 61
M.J. at 410. If the defense, however, elicits evidence that
could not be introduced by the prosecution under R.C.M.
1001(b)(5), the door may be opened for the prosecution to
present such evidence in rebuttal. See id.B. EVIDENCE PRESENTED DURING SENTENCING
Appellant, a thirty-nine-year-old physician’s assistant,
committed various improprieties of a sexual nature during his
examination of seven young enlisted females during their sick
call visits to the medical clinic. During sentencing, the
defense called several witnesses who testified to Appellant’s
rehabilitative potential, including Appellant’s battalion
commander. In addition to asking the battalion commander
general questions about rehabilitative potential, defense
counsel directly raised the question of whether the battalion
commander thought Appellant should be returned to the unit:
Q. Sir, there’s been testimony in this case by people
in the medical community, professionals, that believe
that Lieutenant Hill can be rehabilitated due to the
fact that he came in here, pled guilty, was
forthcoming and contrite. . . . Based on the
Lieutenant Hill that you know, that you’ve described
to us, do you agree that he could be rehabilitated?
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A. I know that the testimony of those experts is
important, but even without that, I would have thought
that he certainly is rehabilitatable.
. . . .
Q. Do you think he can be a productive member of
society?
A. Absolutely.
Q. Now, sir, the Judge has to make several decisions
today. One of them is whether or not [Appellant]
should remain in the Army, and I’m not going to ask
you whether you think he should remain [in] the Army,
but if the decision is made for him to remain in the
Army, do you believe he could be a –- would you take
him back into the battalion?
A. I’d have no qualms with that.
Q. What do you base that answer on, sir?
A. Based on the potential that he’s shown me. Let me
caveat that and say I would not want him back as a
clinician, but as an officer, a platoon leader, I feel
that he would succeed.
During cross-examination, trial counsel probed the
battalion commander’s stated willingness to “take [Appellant]
back into [his] battalion as a platoon leader”:
Q. If you had a platoon leader who sexually assaulted
one of his subordinates, would you expect that person
to stay in your battalion?
A. The question was, if the Judge’s decision was to
retain him in the Army, and he chose my battalion,
would I accept that, and I said yes. If I was sitting
in that panel over there as a juror, would I allow him
to remain in the Army, no --
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The trial judge, on his own motion, promptly interrupted the
witness in mid-sentence, noting: “The response was not
responsive to the question. It was also one that a witness is
not allowed to make.” Trial counsel then resumed his cross-
examination of the battalion commander:
Q. The question, sir, was whether you would take a
platoon leader back into your unit, who has done one
of these sexual assaults, not whether you would kick
Lieutenant Hill out of the Army.
A. I think you need to clarify your question.
Q. You’ve got a platoon leader, he has one soldier
under his care, and he fondles her breasts. Would you
take that lieutenant back into your battalion?
A. I would prefer charges on that lieutenant and let
the justice take its course.
. . . .
Q. What kind of message do you think it would send to
your female soldiers if you let someone who’s done
this type of action to junior enlisted soldiers back
into the battalion --
DC. Objection, Your Honor. He’s also getting into .
. . [.]
MJ. Objection sustained.
ATC. No further questions, Your Honor.
C. POST-TRIAL PROCEEDINGS
After the court-martial was completed, the trial judge
conducted an informal, mentoring discussion with counsel for
both parties, commonly known as a “Bridge the Gap” session.
According to a stipulation of fact subsequently entered into by
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United States v. Hill, No. 04-0470/AR
the parties, the trial judge made the following comment at that
time: “I was thinking of keeping him in until his commander
said he didn’t want him back,” or words to that effect. Defense
counsel subsequently referred to the trial judge’s Bridge the
Gap statement in his post-trial submission to the convening
authority. Based on this submission, the convening authority,
upon advice of the staff judge advocate, ordered a post-trial
session held under Article 39(a), UCMJ.
At the Article 39(a) session, the post-trial judge
considered whether the trial judge had relied upon inadmissible
testimony when imposing the adjudged sentence and, if so, what
curative action should follow. See R.C.M. 1102(a), (b)(2). The
post-trial judge accepted the stipulation of fact regarding the
Bridge the Gap statement. The remainder of the Article 39(a)
session included consideration of whether it was permissible
under Military Rule of Evidence (M.R.E.) 606 to impeach the
sentence by considering the trial judge’s informal Bridge the
Gap remarks; what the trial judge had meant by the stipulated
remark; and whether the stipulated remark indicated that the
trial judge had considered improper testimony in adjudging a
dismissal as part of the sentence. Defense counsel contended
that the remark on its face showed that the trial judge had
considered improper testimony -- the battalion commander’s
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United States v. Hill, No. 04-0470/AR
remark that he would not have retained Appellant if he had been
on the court-martial panel. Trial counsel disagreed.
Although the parties briefly discussed whether the trial
judge should be called to testify in the post-trial Article
39(a) session, he was not called as a witness or otherwise asked
to explain his Bridge the Gap remark. Subsequently, the post-
trial judge issued written Findings of Fact and Conclusions of
Law. The post-trial judge concluded that the trial judge’s
informal Bridge the Gap remark constituted incompetent evidence
that could not be used to impeach the sentence under M.R.E.
606(b). In the alternative, the post-trial judge concluded that
even if the trial judge’s comments could be considered, there
was no evidence that the battalion commander who testified at
trial “ever opined, either directly or euphemistically, that the
accused should be discharged.” In that regard, the post-trial
judge made the following findings of fact concerning the context
of the Bridge the Gap remarks:
[The] remarks [during the informal Bridge the Gap
discussion] are not evidence that he considered
extraneous information. [The trial judge’s] comment
that the commander said he didn’t want him back is
consistent with [the commander’s] admitted testimony
that he didn’t want him back as a clinician. Most
importantly, [the commander] never testified the
accused should be discharged. He was not permitted to
complete his answer to the question the defense
identifies as resulting in the impermissible opinion.
A fair reading of the record supports the conclusion
that [the trial judge] cut off [the commander’s]
answer once it became clear that [the commander] was
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giving his opinion as a juror not as the accused’s
commander. [The trial judge, during the sentencing
proceeding,] appropriately cut off the answer since
the witness was improperly invading the province of
the sentencing authority.
The post-trial judge added:
In the context of his entire testimony as a defense
witness, [the commander] clearly indicated his support
for the accused’s continued service in the Army.
D. CONSIDERATION OF POST-TRIAL, NON-RECORD STATEMENTS
Both the post-trial judge and the Court of Criminal Appeals
cited M.R.E. 606(b) as a basis for not considering the Bridge
the Gap remarks by the trial judge. M.R.E. 606(b) applies
expressly to limit testimony by a “member of a court-martial.”
Subsequent to Appellant’s trial and the decision of the Court of
Criminal Appeals, we held in United States v. McNutt, 62 M.J. 16(C.A.A.F. 2005), that M.R.E. 606(b) does not apply to military
judges. We also held that an extra-judicial statement by a
military judge may be given appropriate consideration on appeal,
subject to qualifications not applicable in the present case.
Id. at 22-23.
In the present case, citation of M.R.E. 606(b) by the post-
trial judge and the Court of Criminal Appeals was not
prejudicial. Neither the post-trial judge nor the court below
relied exclusively on M.R.E. 606(b). Both proceeded on the
alternative theory that the Bridge the Gap statement was
admissible in the post-trial session. Accordingly, the
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following discussion shall proceed on the basis that it was
appropriate for the post-trial judge to consider the Bridge the
Gap statement as reflected in the stipulation of fact.
II. DISCUSSION
At the outset, we note that Appellant does not challenge
the admissibility of evidence or the rulings of the trial judge
during the sentencing proceeding. Defense counsel sought and
obtained the battalion commander’s opinion as to Appellant’s
rehabilitative potential. Under the latitude permitted to the
defense under R.C.M. 1001(c), defense counsel asked the
battalion commander whether he would accept Appellant back into
his battalion if a decision was made to retain Appellant in the
Army, and the witness gave an affirmative response. The witness
responded that although he would not take him back as a
clinician, he would take him back as a platoon leader.
Once the defense opened the door to the issue of whether
the battalion commander would want Appellant back in the unit,
the prosecution appropriately sought to explore the witness’s
response on cross-examination by addressing the desirability of
retaining in the unit a person who had committed the offenses of
which Appellant had been convicted. When the witness extended
his answer to suggest what he might have done as a panel member,
the trial judge promptly cut him off and said that the witness
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was not allowed to make such a comment. The prompt and decisive
action by the trial judge reflected his awareness that the
defense had not opened the door to unlimited remarks about
retention of Appellant.
The question raised by the granted issues is whether
Appellant has established that the trial judge -- having
expressly stated that the battalion commander could not testify
as to whether Appellant should be discharged -- nonetheless
proceeded to rely upon inadmissible testimony. See United
States v. Davis, 44 M.J. 13 (C.A.A.F. 1996).
During the post-trial Article 39(a) session, Appellant had
the opportunity to provide a complete account of the trial
judge’s remarks during the Bridge the Gap discussion so as to
establish both the content and the context. Appellant chose not
to do so, but instead relied on a short stipulation of fact
which contained the following brief quotation from the trial
judge: “I was thinking of keeping him in until his commander
said he didn’t want him back.” Appellant contends that the
trial judge was referring to the battalion commander’s testimony
that if he was on the panel, he would not vote to retain
Appellant.
We do not evaluate the informal Bridge the Gap comments of
the trial judge in isolation. We view the trial judge’s remark
in the context of his actions during trial and in light of the
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entire record. The record does not establish definitively
whether the trial judge, in the Bridge the Gap session, was
referring to: (1) the testimony of the battalion commander that
he would not want Appellant back in his unit as a clinician, or
(2) the battalion commander’s remarks about not retaining
Appellant in the Army if he was on the panel. Under these
circumstances, the defense bears the burden of discounting the
first alternative explanation and demonstrating that the trial
judge relied upon the inadmissible testimony on non-retention,
as reflected in the second alternative.
With respect to the first alternative, we note that at
trial, the defense counsel opened the door to the basis for the
battalion commander’s views as to retention of Appellant in the
unit. In that context, the trial judge could properly consider
the battalion commander’s testimony that he would not want
Appellant back in the unit as a clinician, and could give that
testimony such weight as the trial judge deemed appropriate in
the sentencing proceeding, including how it might bear on the
question of a punitive discharge. With respect to the second
alternative, we note that the trial judge expressly stated that
the battalion commander’s remarks were “not responsive” and
consisted of testimony “that a witness is not allowed to make.”
As a general matter, we presume that a military judge knows
the rules of evidence and considers testimony only for
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permissible purposes. See United States v. Prevatte, 40 M.J.
396 (C.M.A. 1994). In the present case, that presumption is
strengthened by the prompt action of the trial judge, which
expressly cut off and rejected questionable testimony. Just as
we presume that the members follow the instructions of the
military judge, see, e.g., United States v. Holt, 33 M.J. 400,
408 (C.M.A. 1991), we also presume that a military judge adheres
to his own evidentiary rulings. See Davis, 44 M.J. at 17 (“When
a judge indicates he will not consider inadmissible evidence, .
. . we presume that he will do as he says.”). In light of that
presumption, and under the circumstances of this case, Appellant
has not demonstrated that the trial judge relied upon
inadmissible testimony in the course of adjudging the sentence.
III. CONCLUSION
The decision of the United States Army Court of Criminal
Appeals is affirmed.
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