U.S. v. Collier

Brief Background:

Case Citation:            U.S. v. Collier, 29 M.J. 365 (CMA 1990).

 

Parties:                       United States, Appellee

 

                                    William H. Collier, Jr., Appellant

 

Facts:

Collier, Appellant, was convicted by a special court martial for failure to willfully leave, disobeying a lawful order from a warrant officer, and dereliction of duty in violations of Articles 86, 91, and 92 in the Uniform Code Of Military Justice (UCMJ). 

 

Procedural History: 

·         U.S. Court of Military Appeals

·         United States Army Court of Military Review

·         25th Infantry Division (Light)--Special Court Martial-- Schofield Barracks, Hawaii

 

Issue:

Did the judge err by failing to direct his own motion on the issue of affirmative defense of abandonment of office by the warrant officer?

 

Holding: 

The court rejected the divestiture defense and supported the disobedience offense. The court found that the superior, a warrant officer, did not act in a manner where he abandoned his position and office.  His language, while rough, was on par with the environment and both the superior and the appellant used harsh language.  In order for it to be a viable issue the warrant officer must have taken an action or used vulgar or racially motivated language or a challenge to a fight.  These were not at issue and the language used was not out of normal range of dialogue.  

 

Eight years prior the appellant had been convicted of a similar charge but in light of the distance the prior conviction and its foreseeable prejudicial effect, there was a serious question about the ability of this evidence passing the test under Mil.R.Evid. 403, even if the evidence had been otherwise admissible. In U.S. v. Brenizer, 20 M.J. 78 (CMA 1985), the time issue is discussed. 

 

Reasoning:

The court allowed the evidence to be admitted on an entirely different theory; and the judge gave instructions based on that theory.  In light of the erroneous premise of these instructions, the court members may have used the evidence for an improper purpose -- to show that Collier was a disobedient person.   Secondly, the Court of Military Review misapplied the test established by United States v. Brenizer, 20 MJ 78 (CMA 1985).  In this case the judge explained that one of the factors to be considered in deciding whether a prior conviction is admissible is whether the prior conviction was for an offense similar to that for which the accused is on trial.  His opinion makes clear that such similarity militates against reception of the evidence.  The Court of Military Review, on the other hand, turned the test upside down and reasoned that the similarity of the offense for which the accused was previously convicted enhanced the argument for admissibility.

 

Decision: 

Reversed and returned for review.

 

Comment:

The court rejected the divestiture defense and supported the disobedience offense.  The lower court misapplied Mil.R.Evid. 403 and 405 (b).  There was one dissenting opinion by Judge Sullivan.  Judge Sullivan wrote that there was a reasonable inference that could be drawn from the testimony that the appellant was a good soldier who always obeyed orders. See U.S. v. Strong, 17 MJ 263, 266-67 (CMA 1984). The defense then could have argued that appellant's character supported his denial that the order was ever given. Finally, He also found that the form of evidence for character was authorized by Mil. R. Evid. 405(b).