# Petition for Writ of Certiorari — Trimper v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1989
- **Citation:** 493 U.S. 965

## Text

ro — Supreme Court, U.S,

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0475%3A1. Public record. Not legal advice.