United States v. Frazier
1991 WL 187253, 33 M.J. 260, 1991 CMA LEXIS 1304 (1991)
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Rule of Law:
During a sentencing hearing, the prosecution may cross-examine a defense character witness regarding the potential dangerous consequences of the defendant's crime, including who might ultimately use a stolen weapon, to rebut evidence of the defendant's good character and highlight the severity of the offense.
Facts:
- Corporal Robert W. Frazier conspired with another individual to steal military property.
- The stolen items were two Claymore Mines, two wire and blasting cap sets, and a firing device.
- Frazier intended to sell the stolen explosives through an accomplice to an unidentified buyer.
- Frazier's stated motive was to use his share of the proceeds to help his mother with her financial and medical problems.
- During his sentencing hearing, Frazier presented a defense case focused on his excellent military character.
- Master Sergeant Harold Richards, a defense witness, testified that Frazier was an outstanding soldier.
Procedural Posture:
- Robert W. Frazier was tried by a general court-martial with a military judge sitting alone.
- Frazier pleaded guilty to conspiracy to steal and larceny of military property.
- The military judge sentenced Frazier to a bad-conduct discharge, confinement, forfeiture of pay, and reduction in rank.
- The convening authority approved the sentence.
- Frazier, as appellant, appealed to the United States Army Court of Military Review (intermediate appellate court).
- The Court of Military Review affirmed the conviction and sentence.
- Frazier, as appellant, appealed to the United States Court of Military Appeals (highest military court), which granted review.
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Issue:
Does a military judge commit reversible error by permitting, over defense objection, testimony and prosecutorial argument during sentencing that stolen military explosives, like Claymore mines, could be sold to terrorists or drug dealers?
Opinions:
Majority - Sullivan, C.J.
No. The military judge did not err by permitting the testimony and argument. The questioning was permissible because the defense put Frazier's sense of responsibility at issue by presenting evidence of his excellent military character. The cross-examination regarding the deadly potential of the stolen explosives in the civilian community was relevant under Mil.R.Evid. 401 and within the proper scope under Mil.R.Evid. 611(b), as it provided a more complete picture of the nature of his crimes. The witness, who was familiar with the weapon, could offer a lay opinion under Mil.R.Evid. 701 about its potential users, which was helpful to understanding the gravity of indiscriminately selling such an item. The judge’s comments at sentencing indicated he properly considered this evidence to assess the seriousness of the offense, not to punish Frazier for speculative connections to terrorists.
Concurring - Everett, S.J.
No. Although the court reached the correct result, the reasoning is flawed. The testimony about terrorists and drug dealers was improper because it was pure speculation and not helpful to the fact-finder, violating Mil.R.Evid. 701; it amounted to 'smuggling argument into the record under the guise of sworn testimony.' The prosecutor's purpose was likely to incite an emotional reaction rather than elicit relevant facts. However, the error was harmless and did not prejudice Frazier. The military judge’s sentencing comments focused on the inherently lethal nature of the Claymore mine, not the speculative identity of potential buyers. Given the gravity of the offense, the sentence was not unreasonably severe and would have been the same even without the improper testimony and argument.
Analysis:
This decision clarifies the scope of cross-examination during sentencing in military courts, particularly when a defendant introduces evidence of good character. It affirms that the prosecution can rebut such evidence by exploring the reasonably foreseeable negative consequences of the defendant's actions. The holding provides prosecutors with latitude to introduce evidence and argument about the potential real-world harm of a crime, even if it borders on speculation, to demonstrate the offense's gravity and counter mitigating factors.
