In United States v. Eslinger, __ M.J. ___ (A. Ct. Crim. App. 14 May 2010), the court has set out a useful reminder in two areas: a military judge’s duty to instruct on all issues and the potential problem of defense waiver of instructions, and how to handle testimony that an accused does or doesn’t have rehabilitative potential.
A military judge has a sua sponte duty to give certain instructions when reasonably raised by the evidence, even in the absence of a request by the parties. United States v. McDonald, 57 M.J. 18, 20 (C.A.A.F. 2002) (citing R.C.M. 920(e)). Mistake of fact is a special defense that a military judge must instruct court members on sua sponte if reasonably raised by evidence. R.C.M. 916(j); R.C.M. 920(e)(3). Waiver does not apply based on the mere failure to request the affirmative defense instruction or to object to its omission. United States v. Taylor, 26 M.J. 127, 128-29 (C.M.A. 1988). However, the defense can make a knowing waiver of a reasonably raised affirmative defense. United States v. Guitterez, 64 M.J. 374, 376 (C.A.A.F. 2007) (citing United States v. Barnes, 39 M.J. 230, 233 (C.M.A. 1994)). For a waiver to be effective, it must be clearly established that appellant intentionally relinquished a known right. See United States v. Harcrow, 66 M.J. 154, 157 (C.A.A.F. 2008) (citations and quotations omitted).
2. Sentencing. After the defense called witnesses on sentencing to testify as to the accused rehabilitative potential, the prosecution without objection put on a rebuttal case. The issue is to what extent and with what foundation can rebuttal witnesses testify to their disagreement on retention.
a. The court first made the standard “plain error” analysis before getting to the merits of the issue because the defense had not objected at trial.
Based on the foregoing analysis, we find clear and obvious error in the admission of evidence which both lacked foundation and raised command influence concerns, without proper limiting instruction. The evidence conflicted with the guidance set forth in Griggs related to permissible government rebuttal to so-called retention evidence. Griggs, 61 M.J. at 410.
b. This case deals with the situation where the prosecution is seeking to offer rebuttal testimony to testimony that the accused has rehabilitative potential and that a witness would serve with the accused again.
Here, we examine the scope of government sentencing evidence offered in rebuttal to so-called “retention” evidence.
This is different than when the prosecution is first offering rehabilitation evidence.
First, with regard to admission of the testimony of several government rebuttal witnesses, we find the military judge committed error by permitting government rebuttal testimony essentially calling for the panel to discharge appellant without imposing a meaningful foundation requirement or providing a necessary limiting instruction.
A common problem with trial counsel is wanting to offer testimony where the witnesses only basis is that the person has been convicted of the charges. So keep this in mind whenever the prosecution wants to offer testimony as to lack of rehabilitation.
. “Simply stated, the opinion envisioned by R.C.M. 1001(b)(5) can only be expressed by a witness who has a rational basis for his conclusions, founded upon the accused’s service, performance and character.” United States v. Ohrt, 28 M.J. 301, 304 (C.M.A. 1989). See also United States v. Armon, 51 M.J. 83, 86-87 (C.A.A.F. 1999). Logically, that opinion cannot be based principally upon the offense. Horner 22 M.J. at 296 (Testimony was “plainly based not upon any assessment of appellant’s character and potential, but upon the commander’s view of the severity of the offense. Such testimony is simply not helpful to the sentencing authority.”). See also Ohrt, 28 M.J. at 307 (testimony lacked a proper foundation to demonstrate opinion was personalized and based upon the accused’s character and potential).
3. Instructions on sentencing. The court has recommended to COL Henley, the proponent of the Army Benchbook that the following guidance be added.
For evidence offered in extenuation or mitigation
You have heard the testimony of [a] witness[es] indicating an opinion regarding [a desire to continue to serve with the accused] [a desire to deploy with the accused] [the accused’s rehabilitative potential]. The opinion of a fellow service member indicating [a desire to continue to serve with] [a desire to deploy with] [the positive rehabilitative potential of] an accused is a matter pertaining to the accused’s character which may mitigate the range of permissible punishments you adjudge.
For evidence offered in aggravation or rebuttal
The opinion of a witness [that he or she does not wish to continue to serve with the accused] [that the accused should not [deploy with] [or] [return to] the unit] [that the accused has limited rehabilitative potential] is not an aggravating factor and you cannot use that evidence to increase the severity of the accused’s sentence.
You may not consider such testimony as a recommendation regarding the appropriateness of a punitive discharge or any other specific sentence in the accused’s case. Whether or not the accused should receive the severe punishment of a punitive discharge or any other punishment is a matter for you alone to decide in the exercise of your independent discretion based on your consideration of all the evidence you have heard. No witness may suggest a specific element of punishment or sentence. [This rule does not apply to testimony by the accused regarding personal requests he/she may make in relation to specific punishments.]
In evaluating the ability of a witness to comment on the accused’s character, you should consider how well the witness knows the accused, and the nature, quality, and history of contacts the witness has had in determining the value of any opinion the witness may render with regard to the accused.