Petition for Writ of Certiorari — Trimper v. United States

ro — Supreme Court, U.S,

| 89-6 22)| vrLee

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' gct 1B 389

No. JOSEPH F. SPANIOL, JR.

eT ee

TO, ee me

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

GLEN A. TRIMPER,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

RICHARD F. O’HAIR

Colonel, Office of The Judge

Advocate General

United States Air Force

HQ USAF/JAJD

Bldg 5683

Bolling AFB DC 20332-6128

(202) 767-1562

Counsel of Record

PAUL M. DANKOVICH

Captain, Office of The Judge

Advocate General a

United States Air Force

OCOBER 1989 Counsel for Petitioner

—

~~

QUESTION PRESENTED

Whether due process of law mandates the exclusion of

evidence that was previously requested by the defense,

but not disclosed by the prosecution until late in the

defense portion of the trial.

(i)

TABLE OF CONTENTS

Page

cc onsnsiensesisncosamoscsnncadbeses 1

I saesemicciaumennnasies 1

CONSTITUTIONAL PROVISION INVOLVED Fae 2

STATEMENT OF THE CASE ........................200..........- 2

REASONS FOR GRANTING THE WRIT ..................... 4

CONCLUSION .......................... ENE ee 9

a lninciatinciabinietionn la

EET A I oR ce ea 9a

TABLE OF AUTHORITIES

Cases:

Brady v. Maryland, 373 U.S. 88 (1968) ............... 4,5, 7,8

Strickland v. Washington, 466 U.S. 668 (1984)... 6

United States v. Agurs, 427 U.S. 97 (1976) ........... 5

United States v. Bagley, 473 U.S. 667 (1985) ........ 6,8

United States v. Trimper, 26 M.J. 534 (A.F.C.M.R.

i IRREERTE S ERT LAL ee Bee 1,8

United States v. Trimper, 28 M.J. 460 (C.M.A.

1989) ANE SES ODS OL NO 1, 4, 7

Constitutional Provision:

United States Constitution Amendment V ............. 2

Statutory Authorities:

10 U.S.C. § 867(h) (Supp ITI 1985) .......0....0.... 2

28 US.C. § 1259(3) (Supp ITI 1985) —._........... 1

(iii)

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

No.——__—_-

GLEN A. TRIMPER,

Petitioner, .

Vv.

UNITED STATES OF AMERICA,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

The petitioner, Glen A. Trimper, respectfully prays

that a writ of certiorari issue to review the judgment of

the United States Court of Military Appeals entered in

his case on August 23, 1989.

OPINIONS BELOW

The opinion of the United States Air Force Court

of Military Review is reported at 26 M.J. 534 (A.F.C.M.R.

1988) (Appendix A). The opinion of the United States

Court of Military Appeals is reported at 28 M.J. 460

(C.M.A. 1989) (Appendix B).

JURISDICTION

The final order of the United States Court of Military

Appeals was entered on August 23, 1989. The jurisdic-

tion of this Court is invoked under 28 U.S.C. § 1259(3)

2

(Supp III 1985) and 10 U.S.C. §867(h) (Supp III

1985).

CONSTITUTIONAL PROVISION INVOLVED

The Fifth Amendment to the United States Constitu-

tion provides, in pertinent part, as follows:

No person shall be . . . deprived of life, liberty, or

property without due process of law....

STATEMENT OF THE CASE

The petitioner, an Air Force captain (0-3), was tried

by a general court-martial in February 1987, at Elmen-

dorf Air Force Base, Alaska. Contrary to his pleas, he

was convicted of wrongfully using marijuana and cocaine.

The petitioner was sentenced to a dismissal, confinement

for 7 years, and total forfeitures. The convening author-

ity approved these results, however, the confinement was

reduced to 5 years. The United States Air Force Court

of Military Review affirmed the findings of guilty and

modified the sentence to a dismissal, confinement for 3

years, and total forfertures.

The Government’s case-in-chief rested upon the testi-

mony of various eye witnesses. Namely, the Government

called the petitioner’s former wife, a former girlfriend,

a neighbor, and others who were familiar with the peti-

tioner. These witnesses testified to seeing the petitioner

use marijuana and cocaine on a number of occasions.

On direct examination, the petitioner denied any drug

use during the charged period. Moreover, he testified

that the Government witnesses had perscnal motives to

commit perjury. On cross-examination, the petitioner

was questioned on a variety of subjects. Ultimately, he

stated that he “never” used cocaine.

The prosecutor subsequently called for a session out

of the presence of the jury. The prosecutor sought per-

mission to question the petitioner about a urinalysis that

3

was allegedly performed on the petitioner’s urine.’ The

Government contended the petitioner had obtained a

private urinalysis at a local civilian hospital. The de-

fense objected to the urinalysis evidence.? In particular,

the defense asserted that the Government failed to dis-

close this evidence. The defense maintained that their

pretrial discovery request encompassed such evidence.

Hence, the defense argued that this evidence should

be excluded. Without ever addressing the Government’s

failure to provide this evidence, the judge merely offered

the defense a continuance. He based this remedy on the

fact that the defense appeared to be “somewhat sur-

prised” by the prosecution’s “late notification”. At a later

point in the trial the defense declined the continuance.

The prosecution cross-examined the petitioner on this

private urinalysis. In response, the petitioner denied any

connection to it. On rebuttal the prosecution offered ex-

trinsic evidence of this urinalysis. The prosecution also

called witnesses for the purpose of linking the petitioner

to the urinalysis in question.

The Air Force Court of Military Review characterized

this case as one of “first impression”. United States

States v. Trimper, 26 M.J. 534, 537-538 (A.F.C.M.R.

1988). The Court held that the prosecution was not

required to disclose rebuttal evidence unless it was ex-

culpatory in nature or material to punishment. Id. at

587. The Court found neither existed. Jd. at 536-537.

1 This urinalysis was positive for cocaine and negative for mari-

juana (THC).

2 The defense objected on the basis that the specimen was sub-

mitted outside the charged time period, that the reliability of the

test was unknown, that there was no showing that the petitioner

actually provided the specimen, and that the Government failed to

disclose this evidence pursuant to a defense request for all labora-

tory reports.

4

Accordingly, the Court found “no basis to overturn” the

judge’s rulings. Jd. at 538.

The United States Court of Military Appeals affirmed

the petitioner’s conviction, but not for the reasons ex-

pressed by the Air Force Court of Military Review. In

contrast, the Court of Military Appeals found the prose-

cution should have disclosed the laboratory report and

the statement of Mrs. Dale.* United States v. Trimper,

28 M.J. 460, 468-469 (C.M.A. 1989). The Court reasoned

this evidence was “material to the preparation of the de-

fense”. Id. at 468. However, the Court rejected the

argument that the “exclusion of the evidence was neces-

sary to remedy the situation.” Jd. Instead, the Court

deferred to the discretion of the judge in fashioning a

remedy that served the “interests of justice”. Jd. at

468-469. Moreover, the Court found this remedy was

adequate because of its belief that the petitioner had

“lied”. Id. at 469.

REASONS FOR GRANTING THE WRIT

This Court has long held that “the suppression by the

prosecution of evidence favorable to an accused upon

request violates due process where the evidence is ma-

terial either to guilt or to punishment, irrespective of the

good faith or bad faith of the prosecution.” Brady v.

Maryland, 373 U.S. 83, 87 (1963). The rationale for this

rule lies in the realization that a prosecutor should not

be the “architect of a proceeding”. Jd. at 88. These

same concerns are equally applicable to the instant case.

Hence, the petitioner’s case offers this Court a rare

opportunity to further develop this Constitutional safe-

guard.

% The Government sought to link the petitioner to the urinalysis

via the testimony of Mrs. Dale. Mrs. Dale provided a pretrial state-

ment wherein she claimed the petitioner admitted, to her, that he

hed obtained a private urinalysis. She ultimately testified about

these matters.

5

In Brady v. Maryland, 373 U.S. 83 (1963), the peti-

tioner was charged with murder. At trial the petitioner

admitted his participation in the crime, but denied that

he had done the actual killing. Nevertheless, the peti-

tioner was convicted. After trial it was discovered that

the prosecution failed to disclose a requested statement.

This statement concerned a companion who admitted to

doing the actual killing. This Court found the nondis-

closure amounted to a denial of due process. Hence, the

case was returned for a rehearing on sentencing. This

result was grounded in the principle that “our system

. . . suffers when any accused is treated unfairly.” Id.

at 87.

In United States v. Agurs, 427 U.S. 97 (1976), the

respondent was convicted of second-degree murder. On

appeal, the respondent attacked her conviction on the

basis that the prosecution had withheld information on

the victim’s background. The respondent asserted that

the suppressed information (victim’s violent character)

would have supported her argument of self-defense.

In resolving this issue, this Court observed that the

Brady rule was applicable to three different situations.

Id. at 103. That is, in cases where the undisclosed evi-

dence indicated the prosecution’s case was based upon

perjured evidence, in cases where the undisclosed evi-

dence was material and specifically requested, and in

cases where the undisclosed evidence was generally re-

quested. Jd. at 103-107. Hence, this Court recognized

the continuing development of the Brady rule.

In Agurs this Court was called upon to decide when a

nondisclosure rises to the level of constitutional error.

Accordingly, this Court announced a standard of “ma-

teriality”. Jd. at 112. Specifically, a new trial will be

ordered in cases where the omitted evidence creates a

reasonable doubt that did not otherwise exist. Id.

6

In United States v. Bagley, 473 U.S. 667 (1985), the

respondent was convicted of various narcotics charges.

Prior to trial the defense made a motior for the dis-

closure of any inducements to the prosecution witnesses

in exchange for their testimony. The Government’s re-

sponse did not disclose any such inducements. After trial

the respondent filed requests pursuant to the Freedom

of Information Act and the Privacy Act. The subse-

quent responses indicated that some of the Government

witnesses were compensated for their information and

testimony.

This Court reformulated the “materiality” standard

which was enunciated in Agurs. The new standard

became the one that was announced in Strickland v. Wash-

ington, 466 U.S. 668 (1984). Namely, “[t]he evidence is

material only if there is a reasonable probability that,

had the evidence been disclosed to the defense, the result

of the proceeding would have been different.” Bagley,

473 U.S. at 682. This Court noted that the new test

would permit reviewing courts to “consider directly any

adverse ‘effect that the prosecutor’s failure to respond

might have had on the preparation or presentation of the

defendant’s case.” Id. at 683.

The above-noted cases indicate that the Brady rule has

been evolving over time. First, this Court has expanded

the types of nondisclosures that are now covered by

Brady. Second, the “materiality” standard has been re-

laxed. Consequently, more nondisclosure errors are ris-

ing to the level of constitutional error.

A narrow reading of the Brady progeny would sug-

gest that they are distinguishable from the petitioner’s

case. The Brady cases involved the nondisclosure of ex-

culpatory evidence which was discovered after trial.

Whereas, the petitioner’s case involves the late disclosure

of apparent inculpatory evidence. However, these are

merely narrow distinctions.

—

7

The petitioner’s case rests in the central focus of —

Brady. The Brady rule stands for the proposition that

it is fundamentally unfair for a prosecutor to be the

“architect of a proceeding.” Brady v. Maryland, 373

U.S. 83, 88 (1963). The nondisclosure or late disclosure

of evidence—whether exculpatory or not— inevitably per-

mits a prosecutor to unfairly control the parameters

of a trial. Hence, the Brady rule seeks to eradicate this

unfair result. Jd. at 87. The focus has never been on

the motives for the nondisclosure. Jd. Curiously, the

Court of Military Appeals placed inordinate emphasis

on the prosecutor’s apparent lack of bad faith. United

States v. Trimper, 28 M.J. 460, 4638-469 (C.M.A. 1989).

Thus their approval of the continuance is traceable, in

part, to this misapplication of Brady.

The petitioner’s case provides a vivid illustration of

why due process mandates the exclusion of the evidence

at issue. The Brady remedy is a new trial. Brady v.

Maryland, 373 U.S. 83, 88 (1963). Obviously, a new

trial is the only remedy which completely eliminates the

effects of a nondisclosure. However, when the nondis-

closure is identified during the trial—during the defense

portion of a trial—exclusion must be the logical remedy.

Once the defense begins to present evidence, it is log-

ically committed to the expounded theory. Accordingly,

the defense cannot reverse directions in midstream. Yet

ironically that is the only “cure” a continuance offers.‘

Again, this traces back to the fact that the prosecutor

has become the “architect of a proceeding.” Id. at 88.

Hence, a continuance becomes nothing more than a

soiled band aid.

The Court of Military Appeals found the late disclosure

was prosecutorial error. United States v. Trimper, 28

4It may be inferred that the defense’s rejection of the continu-

ance was an expression of their dissatisfaction with the adequacy

of such a remedy.

8

M.J. 460, 468 (C.M.A. 1989). In addition, the Court

held the evidence was “material to the preparation of the

defense.” Id.°

Prior to the appearance of the private urinalysis evi-

dence, the trial was merely a battle of credibility. How-

ever, the late disclosure transformed the focus to matters

far beyond credibility. Accordingly, no ccntinuance—

regardless of length—could accommodate this shift in

focus. Thus the late disclosure became the functional

equivalent of a material nondisclosure. That is, the late

disclosure created the “reasonable probability” that “the

result of the proceeding would have been different.”

United States v. Bagley, 473 U.S. 667, 682 (1985). As

such, only the exclusion of this evidence would ensure a

result consistent with due process of law. - Otherwise,

any other remedy would permit the prosecution to be the

“architect of the proceeding.” Brady v. Maryland, 373

U.S. 83, 88 (1963).

The petitioner’s case provides an excellent opportunity

for Supreme Court comment on the issue of correcting—

at trial—constitutional errors that arise from late dis-

closures. Late disclosures are the functional equivalent

of nondisclosures. Yet, no judicial authority exists on

how to remedy the former. Hence, this case provides a

powerful vehicle for addressing a legal void through a

new application of the Brady rule.

5 This is another example of the inadequacies of a continuance.

Namely, if the defense theory required knowledge of this evidence,

no continuance could adjust for the absence of such foundational

matters.

9

CONCLUSION

The petitioner submits that he has suffered a denial of

due process of law. Therefore, this petition for a writ of

certiorari should be granted.

Respectfully submitted,

RICHARD F. O’HAIR

Colonel, Office of The Judge

Advocate General

United States Air Force

HQ USAF/JAJD

Bldg 5683

Bolling AFB DC 20332-6128

(202) 767-1562

Counsel of Record

PAUL M. DANKOVICH

Captain, Office of The Judge

Advocate General

United States Air Force

OCOBER 1989 Counsel for Petitioner

APPENDICES

la

APPENDIX A

U.S. AIR FORCE COURT OF MILITARY REVIEW

ACM 26211

UNITED STATES

v.

CAPTAIN GLEN A. TRIMPER, 153-56-9975 FV

United States Air Force

Sentence Adjudged 26 Feb. 1987

Decided 23 March 1988

Appellate Counsel for the Appellant: Linda MacLean,

Anchorage, Alaska, Michael L. Sandul, Odenton, Mary-

land, Colonel Leo L. Sergi and Major William J.

Reichart.

Appellate Counsel for the United States: Colonel Joe

R. Lamport, Lieutenant Colonel Robert E. Giovagnoni,

Lieutenant Colonel Morris A. Tanner, Jr. and Major

Carole W. Hanson.

Before HODGSON, FORAY and HOLTE, Appellate

Military Judges.

DECISION

HODGSON, Chief Judge:

The paramount issue before us is one of first im-

pression: Is the prosecution required to disclose to the

defense under R.C.M. 701 the nature and extent of its

2a

rebuttal evidence? Appellate defense counsel argue that

R.C.M. 701 should be broadly interpreted to include all

evidence within the government’s possession so as to

preclude “trial by ambush.” With surprising candor,

they argue that such a disclosure requirement would

permit “... an accused to be more circumspect in [his]

testimony, limit it to the matters at hand and not make

broad statements which may be subject to collateral

attack.” On the other hand, appellate government counsel

maintain that the prosecution is not required “. . . to

assist the accused in structuring his testimony so that

it may not be contradicted.”

The appellant was charged with wrongfully using

cocaine and marijuana on divers occasions between 1

May 1985 and 1 August 1986. The evidence of the alleged

drug use came from witnesses who included his former

wife and several close friends who themselves were drug

users and who, for the most part, testified under some

form of immunity. These individuals all stated they saw

the appellant use cocaine and marijuana at various times

and places during the period alleged.

The appellant attempted to undercut this testimony

by establishing on cross-examination that each had a

motive to lie because of a past relationship with him. For

example, the appellant suggested that since his former

wife came from a family with strong religious beliefs,

she falsely testified about him using drugs to justify her

divorcee. Additionally, the appellant contends that Gary

Nelson, a neighbor and former close friend, also lied

when he stated he saw him use drugs. The defense main-

tained that Nelson’s testimony was in retaliation for

the appellant having told the authorities about the for-

mer’s pension fraud activities. The defense also urged

that Nelson’s subsequent marriage to the appellant’s for-

mer wife implied an unsavory relationship between the

two prior to her divorce and gave each a reason to

falsely claim the appellant used drugs.

3a

Senior Airman Natividad Hunt became romantically

involved with the appellant in April 1986, after his wife

left him. The two lived together for about six weeks.

Hunt stated that during this time, she saw the appellant

use cocaine approximately 20 times in addition to mari-

juana on numerous occasions. On one occasion after the

appellant had snorted cocaine she had her head on his

chest and could hear his heart pounding erratically.’

The appellant suggested that Hunt’s account of his

alleged drug use was in revenge for him asking her to

move out. He described their relationship as “. . . friends

to lovers to I couldn’t stand to be around her, she’s just

a space cadet.” Hunt admitted she had told a former

boyfriend she was pregnant when she was not, so he

would not leave her.

Linda Dale is a civilian employee assigned to the base

legal office and has daily contact with the appellant who

is also assigned there. Both Mrs. Dale and her husband,

Staff Sergeant Michael Dale, were close friends of the

appellant and were familiar with the odor and appear-

ance of marijuana. Both testified that they had seen

the appellant use marijuana at parties and social gath-

erings. Additionally, Mrs. Dale indieated that the ap-

pellant had admitted to her his use of cocaine. The ap-

pellant intimated that Mrs. Dale was biased toward

him because he had rejected her overtures for a sexual

liaison.

On direct examination the appellant categorically de-

nied any drug involvement during the period alleged.

On cross-examination the prosecution questioned him

about the time related by Senior Airman Hunt where

his heartbeat increased rapidly following his cocaine use.

The appellant testified the incident never occurred and

that Hunt was lying. When asked specifically if he had

1 Tachycardia, or accelerated heart rate, is a symptom of cocaine

use.

4a

used “. . . cocaine at any time the night [of the inci-

dent]?”, the appellant replied, “J have never used co-

caine.” (Emphasis added.) The government argues,

both at trial and on appeal, that this sweeping denial of

cocaine use by the appellant entitles it to introduce ex-

trinsic evidence in rebuttal to contradict that claim. We

agree. United States v. Garcia-Garcia, 25 M.J. 652

(A.F.C.M.R.1987); pet. denied, 26 M.J. 85 (C.M.A.

1988) ; cf. United States v. Strong, 17 M.J. 263 (C.M.A.

1984).

The evidence the prosecution sought to present was

an admission by the appellant to Mrs. Dale that he had

been “partying” heavily and had obtained a private uri-

naiysis which established-he had cocaine in his system.

Additionally, the prosecution offered evidence. that on 4

September 1986, the Humana Hospital Alaska laboratory

performed a drug screen test on the urine of “Glen

Trimper, male, age 30” which was positive for cocaine.

The doctor who took the urine testified that it was pro-

vided by an individual wearing an Air Force officer’s

uniform-who was approximately six feet one inch tall,

average build, with “sandish, dark blond” hair, who

stated he was a lawyer. The physical description and oc-

cupation of the individual seeking the drug test fits the

appellant.

The defense moved to suppress this rebuttal evidence

and to preclude cross-examination of the appellant in this

area because the prosecution had not complied with

R.C.M. 701 by disclosing the existence of such evidence.

The government contends that the disclosure of the

laboratory test was not required as it was not “. . . in-

tended for use by the trial counsel as evidence in the

prosecution case-in-chief at trial.” (Emphasis added.)

Conversely, the appellant argues that the test was sub-

ject to disclosure as it was “. . . material to the prepa-

ration of the defense...” (Emphasis added.) See R.C.M.

701(a) (2) (B). Further, that the laboratory report was

\ 5a

discovered just prior to trial was unimportant as the

prosecution has a “continuing duty to disclose” additional

evidence it has uncovered which is subject to discovery.

See R.C.M. 701(d). After the trial judge declined to sup-

press the rebuttal evidence or to preclude cross-examina-

tion in this area, the appellant denied submitting a urine

sample to the hospital laboratory for drug testing.

Military law provides a direct means of discovery that

is broader than that normally available to an accused

in a civilian criminal prosecution. United States v.

Eshalomi, 23 M.J. 12 (C.M.A.1986). R.C.M. 701 is a

melding of Brady v. Maryland, 373 U.S. 838, 83 S.Ct.

1194, 10 L.Ed.2d 215 (1963), which holds that due proc-

ess requires the prosecution to disclose to the defense any

exculpatory evidence it has in its possession, with Article

46 of the Code which requires the defense to have an

equal opportunity to obtain witnesses and evidence. Its

stated purpose is to provide for a legitimate need for

nondisclosure and to eliminate “gamesmanship” from the

discovery process. See analysis to R.C.M. 701, M.C.M.

1984, App. 21, A21-29. The rule generally parallels the

disclosure practice followed by the federal district courts.

See Fed. R. Crim. P. 16. For this reason the federal de-

cisions in this area may be profitably examined for guid-

ance.

Brady v. Maryland, supra, did not create a federal

right of pretrial discovery, United States v. Ball, 547

F. Supp. 929 (E.D. Tenn. 1981), and the discovery prac-

tice is governed by the criminal procedure rule involved,

ie, R.C.M. 701. Cf. United States v. Clevenger, 458

F. Supp. 354 (E.D. Tenn. 1978). We interpret R.C.M.

701(a) (2) (A) & (B) as requiring the trial counsel to

disclose to the defense: 1) any exculpatory evidence it

possesses as mandated by Brady v. Maryland, supra; and

2) the evidence it intends to offer in its case-in-chief.

This latter requirement does not require the prosecution

to disclose the manutiae of its evidence, its trial strategy

6a

or legal theories. United States v. Elam, 678 F.2d 1234

(5th Cir. 1982); United States v. Peifer, 474 F. Supp.

498 (E.D. Penn. 1979). There is no constitutional right

to the discovery of evidence that is not exculpatory. Grif-

fin v. Commonwealth, 606 F. Supp. 941 (E.D. Va. 1985) ;

-affd, 780 F.2d 1018 (4th Cir. 1985); cert. denied, 476

U.S. 1120, 106 S.Ct. 1982, 90 L.Ed.2d 665 (1986); see

also United States v. Krauth, 769 F.2d 473 (8th Cir.

1985).

The defense does not claim that the prosecution de-

liberately suppressed material evidence that was favor-

able to the appellant, see United States v. Kern, 22 M.J.

49 (C.M.A. 1986), and indeed it had not. Far from being

helpful, the evidence established that the appellant was

untruthful when he testified he had never used cocaine.

Appellate defense counsel’s main thrust is that the dis-

closure of the laboratory test and the testimony concern-

ing it was required by R.C.M. 701(a) (2) (B), and had

the appellant known the prosecution had obtained the

test results, he would have testified differently on cross-

examination. - -

In United States v. Callara, 21 M.J. 259, 262 (C.M.A.

1986), Chief Judge Everett, in discussing rebuttal evi-

dence under Mil. R. Evid. 304, suggested that the sound

administration of criminal justice favors disclosure of

rebuttal evidence. However, Chief Judge Everett went

on to say that, “Obviously, the disclosure rules were never

designed to give comfort to an unscrupulous witness who

plans to falsify his testimony.” Supra, at 263. The fed-

eral courts have generally concluded-that Fed. R. Crim.

P. 16 requires the prosecution to disclose to the defense

only the non-exculpatory evidence it intends to offer in

its case-in-chief. United States v. Kilroy, 523 F. Supp.

206 (E.D. Wise. 1981); United States v. Bremer, 482

F. Supp. 821 (W.D. Okl. 1979). While the appellant

denied he was the individual who requested the drug test,

it can be inferred from the transcript that he was not

7a

surprised at the existence of the test results, but only that

the prosecution was also aware of it.

We hold that rebuttal evidence is not discoverable un-

der R.C.M. 701 unless it is exculpatory in nature or ma-

terial to punishment. The challenged evidence was not

exculpatory and was not offered in the case-in-chief. Re-

buttal evidence is that “given to explain, repel, counter-

act, or disprove facts given in evidence by the adverse

party.” United States v. Callara, supra, at 264. By defi-

nition it is offered after the opposing party has rested its

case. Had the President in his rule making capacity un-

der Article 36 of the Code wished to make rebuttal evi-

dence discoverable under R.C.M. 701, he could have done

so. That it was omitted lends support to the conclusion

that it is not subject to disclosure under R.C.M. 701. See

generally United States v. Ryland, 806 F.2d 941 (9th

Cir. 1986).

The appellant also argues, citing United States v. Cal-

lara, supra, and United States v. Reynolds, 15 M.J. 1021

(A.F.C.M.R. 1983), that the statement by him to Mrs.

Dale that he had obtained a private urinalysis that had

come back positive for cocaine should have been sup-

pressed because the prosecution failed to disclose its con-

tents to the defense as required by Mil. R. Evid. 304

(d) (1.). Again we appear to be sailing in unchartered

waters. The challenged statement was not obtained by a

criminal investigator or anyone connected with govern-

ment as were the situations in the Callara and Reynolds

decisions. Here, the statement was the result of a con-.

versation motivated by friendship where the appellant

could not possibly have thought that it was official in ~

nature. See United States.v. Duga, 10 M.J. 206 (C.M.A. .

1981). While the rule itself makes no distinction between

statements taken by law enforcement agents and those in

an official capacity and statements that were the result

of a causal conversation, the analysis of Mil. R. Evid.

304 suggests they should be treated differently. Rule 304

8a

deals with the admissibility of “an involuntary state-

ment” obtained through the actions of officials or agents

of the United States in a governmental capacity. See

analysis to Mil. R. Evid. 304, App. 22, A22-9. Since the

proffered statement was not given to a government agent

during an interrogation, the prosecution was not obli-

gated to disclose its contents to the defense under Mil.

R. Evid. 304, and further, since it was not exculpatory in

nature and not offered in the government’s case-in-chief,

disclosure was not required under R.C.M. 701. United

States v. Jackson, 757 F.2d 1486 (4th Cir. 1985) ; United

States v. Pollack, 534 F.2d 964 (D.C. 1976).

Discovery matters are within the sound discretion of

the trial judge and are reversible only upon an abuse of

that discretion. United States v. Crow Dog, 532 F.2d

1182 (8th Cir. 1976). The discovery issues that con-

fronted the trial judge are novel, and, as we have stated

earlier, involve questions of first impression. We find no

basis to overturn his rulings.

The remaining assigned errors are resolved against

the appellant. Our review of the trial transcript con-

vinces us that only so much of the approved sentence as

provides for a dismissal, confinement for three years and

total forfeitures of all pay and allowances is appropriate.

The findings of guilty and the sentence, as modified, are

AFFIRMED.

Senior Judge FORAY and Judge HOLTE concur.

9a

APPENDIX B

U.S. COURT OF MILITARY APPEALS

No. 60,399

ACM 26211

UNITED STATES,

Appellee,

v.

GLEN A. TRIMPER, Captain U.S. Air Force,

Appellant.

Aug. 23, 1989

—

For Appellant: Michael L. Sandul, Esquire (argued) ;

Colonel Richard F. O’Hair, Colonel Leo L. Sergi, Major

William J. Reichart, Captain Paul M. Dankovich.

For Appellee: Major Terry M. Petrie (argued) ; Colo- |

nel Joe R. Lamport and Lieutenant Colonel Robert E.

Opinion of the Court

EVERETT, Chief Judge:

At his general court-martial in February 1987, Cap-

tain Trimper, an Air Force judge advocate, contested

specifications alleging wrongful use of cocaine and mari-

juana on divers occasions between May 1, 1985, and Au-

gust 1, 1986, in violation of Article 112a, Uniform Code

of Military Justice, 10 USC §912a. Nonetheless, the

members found him guilty and sentenced him to dis-

missal, confinement for 7 years, and total forfeitures.

10a

The convening authority approved these results, except

for reducing the confinement to 5 years. On review

below, the Court of Military Review affirmed the findings

and most of the sentence—cutting the confinement even

further, to 3 years. 26 MJ 534 (1988).

Through various issues, appellant complains in this

Court about use of evidence of a private urinalysis al-

legedly commissioned by himself and of admissions con-

cerning the urinalysis report that allegedly were made

by him to an office co-worker. 27 MJ 463. Specifically,

he complains that trial counsel did not disclose this evi-

dence to the defense until just before the prosecutor used

it during the trial; and he urges that, as a result, the

evidence should have been suppressed. Instead, the chal-

lenged evidence not only served as a basis for trial coun-

sel’s cross-examination of appellant but also was ad-

mitted directly against him.

In our view, Trimper, by his own testimony, opened

the way for the prosecution to use the contested evidence,

even though it otherwise would have been inadmissible.

Although we agree that trial counsel should have dis-

closed this evidence to the defense, see RCM 701(a) (2)

(B) and Mil. R. Evid. 304(d) (1), Manual for Courts-

Martial, United States, 1984, we conclude that the mili-

tary judge acted within his discretion in fashioning an

appropriate remedy for this prosecutorial delict, see RCM

701(g) (8) and Mil. R. Evid. 304(d) (2) (B).

I

As noted earlier, the time period in which Trimper al-

legedly used marijuana and cocaine was from May 1,

1985, to August 1, 1986. His wife and several of his

close friends, many of whom themselves had been drug

users and were testifying under grants of immunity, re-

vealed various occasions when they had observed such

use within that time frame.

lla

During extensive direct and cross-examination, appel-

lant asserted that all of the witnesses against him had

lied and that all had compelling motives for their per-

jury. The steadfastness of his position in this regard can

best be seen from the following limited colloquy with as-

sistant trial counsel during cross-examination:

Q. I'd like to move on to talk about each of these

witnesses’ testimony, the testimony of the witnesses

against you. Now, your ex-wife Kim has said that

you used drugs over a period of time, and that you

used cocaine on one occasion within the charged time

frame. I take it you are denying those allegations?

A. Of course I’m denying them. They’re not true.

I have to deny them.

Q. And, essentially, you believe she’s being untrue?

A. I know she’s being untrue.

Q. How about Gary Nelson. He’s made some alle-

gations, not precisely the same time frame, but gen-

erally so?

A. He’s a bold faced liar and a cheat and a thief.

Q. And Linda Dale, how about the allegations at

Wasilla?

A. Lies.

Q. And Mike Dale?

A. Lies.

Subsequent to this exchange, appellant was questioned

about incidents involving an unusually fast heartbeat

rate. First, he was asked about an occasion when his

girlfriend had mentioned to him, one night while lying

in bed together, that his heart was pounding at a fast

rate—an incident that appellant denied had ever hap-

pened. Then he was questioned about an occasion on

which he reported to the emergency room because he

feared he was having a heart attack; indeed, on that

12a

occasion his heart rate at the hospital was -recorded in

his medical file as 100 beats per minute. The relevance

of this questioning became apparent in this colloquy:

Q. Are you aware that tachycardia or accelerated

heart rate is a symptom of cocaine use?

A. Ihave heard that.

Q. Did you use cocaine at anytime the night before

[the feared heart attack]?

A. I have never used cocaine.

(Emphasis added. )

Appellant repeated his expansive denial of drug in-

volvement a short time later when he was discussing with

assistant trial counsel his investigative interviews with

OSI agents:

Q. Now, the time that you talked to them [OSI]

initially, you were not aware that Linda Dale and

Mike Dale were going to come forward with any

testimony against you?

A. No, I was in, I had no idea who was going to lie

about me.

Q. So, you denied some of the things that the other

three people had said?

A. I denied everything anybody had ever said about

any wrongdoing from the git-go, because it’s not

true about any drug involvement.

Q. What I’m getting at is, were you being cagey

with them by not addressing these other instances?

A. What do you mean?

Q. If they asked you about these three individuals,

were you denying and not giving them information

about possible use on these other occasions?

13a

A. There is no use, there is no use, there’s no use,

there’s no use to talk about. How could I be cagey

about something that’s not there?

* * * *

Q. Mr. Lazar [civilian defense counsel] asked you

the question if between 1 May ’85 and 1 August ’86,

you had used drugs, and your answer was, I believe

A. Of course, it was no.

Q. You understand that there’s been some testi-

mony about a couple of later dates? Are you being

cagey with us? We're talking specifically about Mike

Dale and the other incidents up in Wasilla?

A. Oh, yow’re talking about the ones that are out-

side the spec that was still brought in. They’re false

too, I’m not being cagey. I have not used drugs.

These five people who have come in here today, not

today, the last few days, have lied, period.

Q. So, you just deny outright that you have used

drugs? -

A. Yes, yes.

(Emphasis added. )

Defense counsel objected to the last query, insisting

that the prosecutor should have to restrain his question-

ing to events within the time frame charged. Civilian

defense counsel acknowledged that the judge had ruled

that the alleged incident at Wasilla, later in August,

“falls within the parameters of the specification, those

allegations.” Defense counsel clarified his objection that

the questioning seemed to go beyond that, as well.

After some further difficulty in this regard, defense

counsel suggested, “Perhaps if we just keep the ques-

tions within the parameters of the specifications as has

been alluded to [by] the military judge, and obviously,

l4a

Captain Trimper understands what that means, it will -

be resolved.” The military judge agreed and sustained

the defense objection to broader questioning.

At an Article 39(a), UCMJ, 10 USC § 839(a), session

called at the prosecution’s request shortly thereafter, as-

sistant trial counsel revealed that, in light of appellant’s

denial of drug use or, specifically, cocaine use at any

time, the Government wanted to cross-examine appellant

about a urinalysis performed on a specimen provided by

Trimper at a local civilian hospital on September 4, 1986.

Trial counsel produced the laboratory report of the anal- -

ysis on that specimen.

Defense counsel objected. He pointed out that the

specimen had been submitted outside the time frame

charged; that the reliability of the laboratory analysis

was unknown; and that there was no showing that the

person who gave the specimen, identified as “Glen

Trimper,” in fact was appellant. As to the latter point,

the prosecutor responded that appellant had made a state-

ment to an office co-worker—Mrs. Dale, who already had

testified against appellant in another respect—about sub-

mitting a specimen for the urinalysis. The prosecutor

further argued that the fact that an Air Force officer

would go to a local civilian hospital and voluntarily sub-

mit a sample for testing was probative—apparently, of

his guilty state of mind.

Here, the military judge asked whether appellant’s al-

leged statement to Mrs. Dale was on the list of state-

ments given to the defense, and assistant trial counsel

responded in the negative. Trial counsel explained that

the Government had overlooked providing this statement

because the prosecution had focused primarily on the

laboratory report, not on the statement that had led them

to it. In light of its oversight, the prosecution volunteered

at that time not to cross-examine appellant about the

statement.

a ee RR A Ee Oe ea

15a

The defense continued to press its objection to the

laboratory report. Besides renewing its argument that

the report was not an analysis of a specimen submitted

by Trimper, the defense pointed out that the Government

had been under an obligation—which it had failed to

meet—to reveal the report pursuant to an outstanding

discovery request for all laboratory reports regarding

appellant. The prosecution resisted the notion that the

defense request included this particular report; and it

argued further that, even so, the remedy under RCM

701(a) (2) was a continuance to permit the defense to

prepare, not exclusion of the evidence.

To delve into the defense contention that the report

was not of appellant’s specimen, the military judge called

Mrs. Dale to testify. She stated that in September 1986

appellant had told her that he had taken a urinalysis

“downtown” and that its results were “positive for co-

caine and negative for marijuana.”

Ultimately, the military judge overruled the defense

objections to the laboratory report, to Mrs. Dale’s testi-

mony about appellant’s statement to her in that connec-

tion, and to the Government’s cross-examination of

Trimper concerning these matters. He indicated that the

report could be used to show appellant’s cocaine use some-

time shortly before September 4. Furthermore, he con-

cluded that appellant’s “submission to a private urinaly-

sis test” was “somewhat inconsistent with his denial of’

drug use—apparently permitting the Government to use

the evidence in rebuttal.’ As a basis for his rulings, the

military judge made extensive findings of fact and per-

formed, as well, the test for unfair prejudice mandated

by Mil. R. Evid. 403.

1 Moreover, according to the military judge the evidence also

was “relevant in that it... reflects upon the accused’s self-professed

attempt to gain expertise as to the urinalysis program and how it

worked and his belie[f] in the validity of the Air Force urinalysis

system.”

16a

In addition—referring expressly to Mil. R. Evid. 304

(d) (2) (B) and impliedly to RCM 701(g) (3)—the mili-

tary judge determined that exclusion of the challenged

evidence was not necessary to remedy the late disclosure

of the evidence to the defense. Specifically, he ruled:

(4) While I realize that the defense may have been

somewhat surprised by the prosecution’s attempt to

use the 4 September urinalysis result and the addi-

tional statements by Mrs. Dale in this case, under

all the circumstances of this case, including both the

‘Government’s and the defense’s difficulty in securing

full access to witnesses due to the witnesses’ con-

cerns about criminal liability, possible defamation

suits, and other adverse personal impact, I conclude

that the Government’s later notification of Mrs.

Dale’s statement about the urinalysis should not

cause exclusion of that evidence. I’m willing to grant

a reasonable continuance to the defense so that they

may pursue this matter to their satisfaction, but

exclusion of such evidence is not a reasonable rem-

edy under the circumstances, in my judgment.

Initially, the defense made a request for such a continu-

ance but later withdrew it.

At this point, appellant’s cross-examination continued

with the following extensive colloquy:

Q. Earlier in your testimony you made two state-

ments. First of all, stating I have not used drugs,

and later I have never, or excuse me, earlier, I have

never used cocaine. Do you recall those statements?

A. Yes.

ATC: I’d like to hand you Prosecution Exhibit #3

for identification [a laboratory urinalysis report]

and ask you to take a few moments to look at that

three-page document. (The witness reviewed Prose-

cution Exhibit +3 for identification).

17a

Q. Do you feel you’re fully familiar with that? -

A. Yes.

Q. Captain Trimper, have you ever been to the

Humana Hospital?

A. No.

Q. In Anchorage?

A. No.

Q. Have you ever met a Doctor Donald Rogers?

A. Is he military?

Q. It would appear that Doctor Rogers is associated

with Humana Hospital?

A. No. Let me... never anybody saying I’m

Doctor Rogers or something like that. I guess I

could have run into him or something like that.

Q. Captain Trimper, did you on the 4th of Septem-

ber of 1986, submit a urine specimen for cocaine and

marijuana analysis?

A. No.

Q. I’m handing the witness a specimen bottle with

what appears to be urine in it and a green lid on it.

Could you tell us what the name is that appears on

that specimen bottle?

A. The narne says Trimper—Glen.

Is Glen spelled with one “N” or two?

One “N.”

Q.

A.

Q. Did you ever go to the Humana Hospital?

A. No, I’ve never been to Humana Hospital.

Q.

th

Are you aware that this test report indicates

at a Glen Trimper went to Humana Hospital on

18a

the 4th of September 1986, and submitted a urine

sample which was tested positive for cocaine?

A. I glossed over that second page, may I see it

again?

Q. Certainly.

A. Cocaine/Pos, Cannibis/Neg, Alcohol/Neg. This

person, Glen Trimper, is a doper.

Q. And the final page is the statement of an in-

dividual, of a Doctor Rogers, is that correct?

A. Is that what that says?

Q. That’s what it appears to be.

A. It’s his signature on there. I don’t sée my signa-

ture on there.

* * * * -

Q. You’re saying that you’re not the same Glen

Trimper who submitted the sample?

A. Clearly not.

ATC (CAPT BOOMGARDEN): One moment, please,

sir.

Q. Have you at any time, Captain Trimper, made

a statement to Linda Dale that you were going to

the Humana Hospital to have a urine sample taken?

A. No.

Q. Did you at any time in September of 1986, say

to Linda Dale that you had received the results back

from a urine specimen that you had submitted down-

town in Anchorage, and that that sample came back

positive for cocaine?

A. Obviously not, no.

19a

Q. So, is it your testimony then that you never

submitted a urine sample at the Humana Hospital,

and this is an apparent mistake of identity?

A. Well, all I can say, I never submitted a sample.

Mistake of identity means like when people mistake

faces and things like that. That is either someone

else by the name of Glen Trimper or someone who

went there and used my name.

Both the laboratory report and Mrs. Dale’s testimony

about appellant’s statement to her relating to that report

ultimately found their way, ifto evidence. Additionally,

Dr. Rogers, a pathologist at Humana Hospital in An-

chorage, Alaska, testified that he could remember only

one Air Force officer . ver coming to the hospital for a

urinalysis; that person was about 61” to 6’2” tall, aver-

age build, sandy hair, and identified himself as a lawyer

named Glen Trimper. Appellant is 6’3” tall, weighs 200

pounds, and has light brown hair. However, Dr. Rogers

was unable to say whether the specimen to which the

laboratory report related was the one submitted by that

officer or whether appellant was that officer.

II

Both at trial and on appeal the defense has challenged

the reception in evidence of the laboratory report of the

urinalysis performed at Humana Hospital; Dr. Rogers’

testimony relating to the identity of the specimen’s con-

tributor; Mrs. Dale’s testimony concerning appellant’s

statements to her about the urinalysis and its results;

and, of course, the cross-examination of appellant about

the laboratory report and the statements to Mrs. Dale.

Appellant insists that reception of this evidence was for-

bidden by Mil. R. Evid. 404(b) and 608(b) and also that

its exclusion was necessary as a sanction for failure of

the prosecution to perform its disclosure obligations.

20a

A

According to Mil. R. Evid. 608(b), a witness “may,

. in the discretion of the military judge,” be cross-

examined about specific instances of conduct.* However,

apart from a “conviction of crime as provided in Rule

609,” extrinsic evidence may not be received to attack or

support the credibility of a witness, see Mil. R. Evid.

608 (b)-—unless that evidence is offered to show “[blias,

prejudice, or any motive to misrepresent.” See Mil. R.

Evid. 608(c). Presumably this limitation on extrinsic

evidence reflects an intent to avoid confusion, distraction,

and delay in trials.

Mil. R. Evid. 404(b) prohibits evidence of other mis-

conduct “to prove the character of a person in order to

show that the person acted in conformity “therewith.”

This prohibition—which we have often applied, see, ¢.g.,

United States v. Hicks, 24 M.J. 3, 7 (CMA), cert. de-

nied, —— US. , 108 S.Ct. 95, 98 L.Ed.2d 55

(1987) ; United States v. Owens, 21 MJ 117, 122 (CMA

1985) —is intended to prevent a factfinder from inferring

that an accused must be guilty because he is a “bad

person” and has a propensity or disposition to commit

crimes like those for which he is being tried.

Under Mil. R. Evid. 608(b) and 404(b), it would ap-

pear initially that the cross-examination of Trimper

about his private urinalysis might be permitted “in the

discretion of the military judge,” even though it con-

cerned uncharged misconduct on his part, but that intro-

duction of extrinsic evidence to contradict his denials

was improper. However, more thorough analysis leads

to a different conclusion.

The starting point for his analysis is Walder v. United

States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954),

2In exercising his discretion, the military judge should consider

the factors mentioned in Mil. R. Evid. 403, Manual for Courts-

Martial, United States, 1984.

2la

where the Supreme Court held that, when a defendant

testified on direct examination that he had never had

any narcotics in his possession, the Government was free

to introduce evidence of prior possession of narcotics,

even though this evidence would otherwise have been in-

admissible because it was obtained by an unreasonable

search and seizure. As the Court pointed out:

It is one thing to say that the Government can-

not make an affirmative use of evidence unlawfully

obtained. It is quite another to say that the defend-

ant can trrn the illegal method by which evidence in

the Government’s possession was obtained to his

own advantage, and provide himself with a shield

against contradiction of his untruths.

347 U.S. at 65, 74 S.Ct. at 356, 98 L.Ed. at 507.

In Harris v. New York, 401 U.S. 222, 91 S.Ct. 643,

28 L.Ed.2d 1 (1971), the Supreme Court used the same

rationale in holding that, although an unwarned state-

ment obtained in violation of the rules prescribed by

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16

L.Ed.2d 694 (1964), could not be received as part of the

prosecution’s case-in-chief, it could be introduced in re-

buttal to impeach the defendant’s testimony on direct

examination.* Then in United States v. Havens, 446 U.S.

620, 100 S.Ct. 1912, 64 L.Ed.2d 559 (1980), the Su-

preme Court slightly extended the principle of Walder

in ruling that evidence that had been illegally seized and

otherwise was inadmissible because of the exclusionary

rule could be used to impeach “a defendant’s statements

made in response to” government “cross-examination rea-

sonably suggested by” his direct testimony. 7d. at 627,

100 S.Ct. at 1917, 64 L.Ed.2d at 567.

8 On the other hand, an involuntary statement may not be used

even for impeachment. Mincey v. Arizona, 437 U.S. 385, 98 S.Ct.

2408, 57 L.Ed.2d 290 (1978).

ameter

22a

The lesson we draw from this line of cases is that

even an exclusionary rule which has a constitutional basis

cannot be manipulated by a defendant to permit him to

commit perjury with impunity. If this be so, it seems

clear that Mil. R. Evid. 608(b) and 404(b) must be ap-

plied in the same way. Thus, if a witness makes a broad

collateral assertion on direct examination that he has

never engaged in a certain type of misconduct or if he

volunteers such broad information. in responding to ap-

propriately narrow cross-examination, he may be im-

peached by extrinsic evidence of the misconduct. Cf.

United States v. Clemente, 640 F.2d 1069 (2d Cir.),

cert. denied, 454 U.S. 820, 102 S.Ct. 102, 70 L.Ed.2d 91

(1981): United States v. Opager, 589 F.2d 799 (5th

Cir. 1979): United States v. Benedetto, 571 F.2d 1246

(2d Cir. 1978) ; United States v. Bell, 506 F.2d 207 (DC

Cir. 1974) ; United States v. Beno, 324 F.2d 582 (2d Cir.

1963), cert. denied, 379 U.S. 880, 85 S.Ct. 147, 13 L.Ed.

2d 86 (1964); United States v. Banker, 15 MJ 207, 211-

12 (CMA 1983); United States v. Garcia-Garcia, 25 MJ

652 (AFCMR 1987), pet. denied, 26 MJ 85 (1988);

United States v. Bowling, 16 MJ 848 (NMCMR 1983)}).*

Under Mil. R. Evid. 404(a) (1), an accused’s character

generally is not in issue at trial. However, he can offer

“Te]vidence of a pertinent trait of” character to prove

that he “acted in conformity therewith on a particular

oceasion;” ® and in that event, the prosecution may “re-

but” this evidence. As we interpret Mil. R. Evid. 404

(a) (1), an accused who testifies that he has never en-

4 Even when an accused has opend the door with his answer, the

judge, after determining that the assertion was volunteered, must

still decide whether the probative value of the proffered extrinsic

evidence “outweigh[s] ... the danger of unfair prejudice,” see

Mil. R. Evid. 403.

4 5 We have construed “pertinent trait” broadly. See, e.g., United

States v. Court, 24 MJ 11 (CMA 1987); United Siates v. Weeks,

20 MJ 22 (CMA 1985).

23a

gaged in conduct like that for which he is being tried is

offering evidence that he possesses the “pertinent trait

of” abstraining from such conduct. A logical—and per-

missible—rebuttal by the prosecution is to show that the

accused previously has engaged in similar misconduct.

Trimper was asked on cross-examination whether he

had “use[d] cocaine at any time the night before”—a

quite specific question. He responded, “I have never used

cocaine”; and, in so doing, he went far beyond the scope

of the question. To show Trimper’s lack of credibility,

trial counsel was entitled to cross-examine him about his

obtaining a private urinalysis and about the outcome of

this test. Thereafter, in light of his denials, the prosecu-

tion was entitled to offer extrinsic evidence to show that

his testimony on this matter was false—from which the

courtmembers could reasonably infer that some of his

other testimony also was false.

Since Trimper’s answer that he had never used drugs

was “[e]vidence of a pertinent trait of” character—that

he was a nonuser of drugs—the Government was en-

titled to “rebut” this evidence. See Mil. R. Evid. 404

(a)(1). The extrinsic evidence that Trimper had him-

self obtained a drug test which proved to be positive

clearly rebutted his claim that one of his traits was that

he never used drugs; and so it was admissible for this

purpose, as well as to impeach his credibility.°

The case would be quite different if the testimony about

no prior use of drugs had been “extracted from” Trimper

by the prosecution or if the prosecution had been seeking

to “turn a defense witness into a character witness

through cross-examination and, thereby, bootstrap other-

wise inadmissible evidence into the case.” Cf. United

6 Trimper’s obtaining the private urinalysis might also be con-

strued to demonstrate his consciousness of guilt and, therefore, to

constitute an admission by conduct. Such an admission would be

substantive evidence.

ee a Se ee ee

24a

States v. Maxwell, 21 MJ 229, 230 (CMA 1986). How-

ever, as we read the record, Trimper’s denial that he had

ever used drugs was gratuitous; and undoubtedly it was

volunteered in the belief that it would help persuade the

courtmembers that he was an innocent man being vic-

timized by a band of liars.

Even though the extrinsic evidence was admissible to

impeach Trin:per’s credibility and to rebut his character

evidence, it could not properly be used by the factfinder

to infer that, because appellant had used drugs on a later

occasion, he was guilty of the charged offenses. Upon

request, the defense would have been entitled to a limit-

ing instruction to this effect. However, there was no

request that the members be instructed as to the limited

purposes for which the challenged evidence was ad-

mitted; and, absent such a request, the military judge

was not required to advise the members in this regard.

Mil. R. Evid. 105.

C

Appellant contends that the Government had a duty

to disclose to the defense before trial that it possessed the

report of the urinalysis test results and evidence of

Trimper’s remarks to Mrs. Dale about the positive uri-

nalysis. As to the report, Trimper relies on RCM 701

(a) (2)(B), which requires the Government, “([a]fter

service of charges [and] upon” defenes request, to “per-

mit the defense to inspect ... [a]ny results or reports

of physical or mental examinations, and of scientific tests

or experiments ... which are material to the preparation

of the defense or are intended for use by the trial counsel

as evidence in the prosecution case-in-chief at trial.”

According to the defense view, trial counsel] inten-

tionally did not disclose this evidence in its possession,

so that the prosecution might lie in wait during the trial

and affirmatively and skillfully steer Trimper into his

sweeping denials—all in order that it might devastatingly

use the concealed information for impeachment and re-

25a

buttal purposes. Such trial-by-ambush tactics are dis-

couraged; and where clearly they have been employed,

we will recognize them for what they are. See United

States v. Maxwell, supra at 230. However, the military

judge expressly found an absence of prosecutorial “bad

faith”; and the record adequately supports those findings.

Even so, we conclude that the laboratory report should

have been disclosed. It concerned a private urinalysis

performed on September 4 to detect cocaine and mari-

juana; and Trimper was being tried for use of both sub-

stances over a period of time extending into August. In

view of this very short interval of time, we conclude that

the positive result of the urinalysis was “material to the

preparation of the defense.” Even though trial counsel

did not intend to use the report in his case-in-chief, he

should have recognized its materiality to the defense and

disclosed it.

Insofar as_the statements to Mrs. Dale are concerned,

we have observed that the “unambiguous language [of

Mil. R. Evid. 304(d) (1)] includes remarks made during

informal conversations.” United States v. Callara, 21

MJ 259, 262 (CMA 1986). Moreover, “[t]his unam-

biguous language” is not limited to statements made by

an accused to law-enforcement officials or military su-

periors. As with the laboratory report, the prosecutor

should have foreseen the likely relevance of this evidence

for one purpose or another at trial. “[I]f there is a rea-

sonable prospect that the statement might be offered in

evidence during the trial, then disclosure is required.”

Id. at 263. Significantly, trial counsel himself did not

dispute that he was obligated to notify appellant of the

statement; instead, he simply claimed to have “over-

looked the urinalysis statement.”

D

While we agree that the failure to disclose this evi-

dence constituted error, we do not agree with appellant

26a

that exclusion of the evidence was necessary to remedy

the situation. RCM 701(g)(8) permits the military

judge to redress a failure to disclose evidence—such as

the laboratory report here—in a variety of ways, includ-

ing ordering discovery, granting a continuance, exclud-

ing the evidence, and “enter[ing] such other order as is

just under the circumstances.” Mil. R. Evid. 304(d) (2)

(B) is equally flexible as to evidence like appellant’s

statement to Mrs. Dale. In United States v. Callara,

supra at 263, we pointed out that this provision “grants

authority to the military judge to ‘make such orders as

are required in the interests of justice’-—orders which

may include but certainly are not limited to suppression

of the pretrial statement as evidence.”

Appellant has pleaded with this Court to recognize that

a continuance in these circumstances was not “just under

the circumstances” and not adequate “in the interests of

justice.” He argues that a continuance would only have

permitted the damaging evidence to lie and fester in the

minds of the court members in the interim, growing to

an importance even greater than it had initially. While

generally we have some sympathy for this position, the

same could be said to a greater or lesser degree in any

case of erroneous nondisclosure, where a continuance was

used as the remedy.

We realize that Trimper would probably have testified

in.a more restrained manner if he had been aware that

the Government had evidence of the positive urinalysis

on September 4. Thus, if the military judge had ac-

cepted the defense contention that the non-disclosure was

part of a cunning prosecutor’s scheme to “ambush” ap-

pellant when he testified, the grounds for excluding the

evidence would be stronger.

However, even intentional nondisclosure of discoverable

evidence does not inevitably require as a sanction that

the evidence be excluded. Indeed, in Callara, we ex-

pressly concluded that,

27a

even if the evidence had shown that trial counsel

willfully violated Mil. R. Evid. 304(d) (1) in not

disclosing the statement prior to appellant’s arraign-

ment, ... the judge was still free to determine that

it would be “in the interests of justice” to admit the

statement when the statement demonstrated that ap-

pellant had lied as a witness.

Id. at 263. Our statement there prophesied the facts of

this case and, as well, fully disposes of appellant’s hollow

pleas for justice.

III

The decision of the United States Air Force Court of

Military Review is affirmed.

Judges COX and SULLIVAN concur.

W ov. 8. GOVERNMENT PRINTING orrice; 1989 250214 62076