United States v. Pompey

OPINION OF THE COURT O’BRIEN, Chief Judge: This is another sad case of an outstanding performer, caught in a unit “sweep” urinalysis. He pleaded guilty to a one-time use of cocaine, was convicted, and was sentenced to a bad conduct discharge, total forfeitures, and confinement for one month. Two issues concern us today. First, piercing through the confusion in the proper application of various labels of “command directed” and “inspection,” we find the process through which appellant’s sample was collected to have been a lawful inspection. Second, we hold that the commander was not relieved of the requirements of United States v. Horner, 22 M.J. 294 (C.M.A.1986); and United States v. Ohrt, 28 M.J. 301 (C.M.A.1989), merely because he testified as a rebuttal witness. We set aside the sentence. I Appellant’s plea was conditional, preserving his challenge to the military judge’s finding that the collection of his urine was a valid inspection under Mil.R. Evid. 313(b). Appellant contends that it was a “command directed” urinalysis contemplated by Air Force Regulation (A.F.R.) 30-2, Social Actions Program, para. 5-8.1 When a member of appellant’s squadron twice tested positive for cocaine in urinalysis tests, the commander acceded to the first sergeant’s suggestion that they conduct a unit “sweep.” Every member of the unit was to be tested, but no individual was suspected, least of all the appellant, an administrative specialist, who had an excellent reputation in the squadron. Although the f commander did not believe he had a drug problem in the unit, he believed that the positive urinalysis result of the one airman had created a cloud over his squad [549] ron. To quote the military judge’s essential findings, the sweep was ordered: “to clear the air and ensure not only military fitness in the Civil Engineering Squadron, but also a drug-free atmosphere in the squadron.” Much to the surprise of all, appellant’s sample tested positive for cocaine. This assertion of error was begotten out of the confusion shared by the commander, the first sergeant, and other staff agencies as to what label to attach to this “sweep.” Although the commander thought the proper label was “commander directed” and that it could not be used in a court-martial, the evidence is “clear and convincing”2 that what he did was to order an inspection, and the detailed findings by the military judge support this conclusion. United States v. Parker, 27 M.J. 522 (A.F.C.M.R.1988). The results of this inspection are clearly admissible. United States v. Daskam, 31 M.J. 77 (C.M.A.1990); United States v. Bickel, 30 M.J. 277 (C.M.A.1990). II During the pre-sentencing case, the prosecution called appellant’s commander, a Major Rhye, to testify not only as to appellant’s lack of rehabilitation potential, but also that it would not be his desire “to have Senior Airman Pompey return to the unit and work for [Major Rhye] in the future.”3 Appellate defense counsel complain that this testimony is prejudicial because it is based solely upon the gravity of appellant’s offense. United States v. Horner, United States v. Ohrt, both supra. It could not be more clear that Major Rhye’s opinion was based solely on the nature of the offense. In his letter transmitting the court-martial charges, Major Rhye wrote: “Since his arrival at Maxwell Air Force Base, Senior Airman Pompey’s performance and military bearing have been satisfactory. Although no derogatory data can be found at this time, drug use is not compatible with military service and rehabilitation is not recommended.” (emphasis added). In his testimony, Major Rhye admitted that appellant was “a top five percent airman, ... a super star, super troop,” and that he really had nothing negative to say about appellant aside from this urinalysis. Because Debra Banker, appellant’s immediate supervisor, had stated, “I would not hesitate to have David [appellant] work for me again and feel that he is certainly capable of rehabilitation,” the prosecution argued that they should be able to use Major Rhye’s testimony in rebuttal. The military judge permitted the testimony believing that since it was direct rebuttal, it was outside the rules laid down by R.C.M. 1001(b)(5)4 and the strictures of both Horner and Ohrt. Clearly to rebut Ms Banker’s statement, Major Rhye had the right to testify, as he did, that he did not desire to have appellant return to his unit and work for him in the future. When the door is thus opened by the defense “by bringing witnesses before the court who testify that they want him or her back in the unit, the government is permitted to prove that that is not a consensus view of the command.” United States v. Aurich, 31 M.J. 95, 97 (C.M.A.1990). The stickier wicket is whether or not Major Rhye’s testimony that appellant had no rehabilitation potential within the [550] civil engineering squadron is error, because it clearly relied solely on this one offense. We find that the military judge erred when he ruled that Horner and Ohrt did not apply to rebuttal evidence. One of the evils that these cases and their progeny seek to avoid is the communication of a policy statement to the sentencing authority that the offense of which the accused has just been convicted, in and of itself, destroys any potential the accused might have for rehabilitation or further service. The Court of Military Appeals has made it clear: that “rehabilitative potential” refers to the accused. It is based upon an “assessment of ... [the accused’s] character and potential.” Horner 22 M.J. at 296. Thus, a witness whose opinion is based upon factors other than an assessment of the accused’s service performance, character, and potential does not possess a rational basis for expressing an opinion.” Ohrt, 28 M.J. at 304; United States v. Horner, supra; United States v. Cherry, 31 M.J. 1 (C.M.A.1990). Whether the commander is testifying pursuant to R.C.M. 1001(b)(5), or in direct rebuttal, when he addresses potential for rehabilitation, he is talking about the accused and not the offense, and his opinion must therefore be based upon something in addition to the seriousness of the offense that has occasioned the court-martial. Ms. Banker testified that appellant had rehabilitation potential and that she would welcome him back into the unit. She based this opinion upon her observations of his duty performance, his eagerness, conscientiousness and work with the honor guard. The commander was certainly entitled to state for the record that Ms. Banker’s desire to have appellant back in the unit “was not the consensus view of the command.” However, when he ventured into the area of potential for rehabilitation, the rules of rebuttal did not relieve him from the requirement to have a logical predicate for his conclusion, other than solely the gravity of the offense. United States v. Kirk, 31 M.J. 84 (C.M.A.1990). Judge James is concerned that we are extending Horner and Ohrt past their present bounds. To the extent that we are applying these principles for the first time to rebuttal evidence, he is correct. Whether or not we are engaged in an “extension” of Horner, Ohrt, Aurich, Kirk, and all the rest, is immaterial. The law requires that rehabilitation potential testimony focus on the individual, and not solely the offense that occasioned his court-martial. The prosecution’s failure to follow that principle in this case was error. We concur with Judge James’ recommendation in Part III of his separate opinion, that the time has come to reassess the wisdom of R.C.M. 1001(b)(5). The present rule has created a litigation load which may well outweigh its usefulness. The approved findings of guilty are affirmed. The sentence is set aside and the record is returned to The Judge Advocate General. A rehearing on sentence may be ordered. If a rehearing on sentence is not ordered, a sentence of no punishment is hereby affirmed. Senior Judge PRATT concurs. Senior Judge O’HAIR did not participate. Footnotes [1] Paragraph 5-8 of AFR 30-2, empowers a commander to refer a military member for a "command directed” examination, to determine, among other things, “a member's competency for duty and the need for counselling, rehabilitation, or other medical treatment.” Because this referral is based upon "reasonable suspicion” and not probable cause, "Results may not be used against the member in any disciplinary action under the UCMJ...." [2] In determining that this was an inspection and not a command directed urinalysis, the military judge correctly employed the "clear and convincing” standard of proof since the inspection had not been previously scheduled, and it was employed immediately after another member of the unit had a positive urinalysis. Mil.R.Evid. 313(b). [3] Appellant’s commander was asked: Q. Major Rhye, considering everything that you know about Senior Airman David Pompey, do you feel that he has rehabilitation potential within the Civil Engineering Squadron? A. I do not. Q. Would it be your desire to have Senior Airman Pompey return to the unit and work for you in the future? A. No; I would not. [4] R.C.M. 1001(b)(5) provides: “The trial counsel may present ... evidence, in the form of opinions concerning the accused’s previous performance as a servicemember and potential for rehabilitation....’’