34 M.J. 1036 | U.S. Navy-Marine Corps Court of Military Review | 1992
Consistent with his pleas, the appellant was found guilty of a failure to go to his appointed place of duty, disobeying a non-commissioned officer, simple battery, and communicating threats in violation of Articles 86, 91, 128 and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 886, 891, 928, 934, respectively. A military judge sitting as a special court-martial sentenced the appellant to confinement for four months, forfeiture of $250.00 pay per month for four months, reduction to pay grade E-l, and a bad-conduct discharge. Pursuant to a pretrial agreement, the convening authority disapproved confinement in excess of 90 days, but otherwise approved the sentence as adjudged. The appellant asserts three errors were committed in his court-martial.
In the pre-sentencing procedure of trials by court-martial, the Government may introduce from the accused’s personnel record evidence of disciplinary actions including punishments under Article 15, UCMJ, 10 U.S.C. § 815. Article 36, UCMJ, 10 U.S.C. § 836; Rule for Courts-Martial (R.C.M.) 1001(b), Manual for Courts-Martial, United States, 1984; Manual of the Judge Advocate General (JAGMAN) § 0141 (formerly § 0133). However, other limitations upon the use of Article 15 nonjudicial punishments exist. Specifically, before a prior nonjudicial punishment may be introduced in the pre-sentencing proceedings, it must be shown on the record that the accused was informed of his right to confer with independent counsel before he accepted disposition of his charges by nonjudicial punishment and there was a valid personal, written waiver of the accused’s right to demand trial by court-martial.
In the appellant’s case, service record book entries, evidencing three prior nonjudicial punishments were introduced by the Government. All were accompanied by a Booker advisement, also in the form of service record book entries. The appellant’s assignment of error concerns only one of the nonjudicial punishments. By entry dated 29 December 1989, the appellant received nonjudicial punishment for failing to obey a lawful order by having alcohol in his barracks room. According to the same entry, the appellant did not appeal the imposition of this punishment. Curiously, the applicable Booker advisement, dated 27 December 1989, reflects the appellant chose to exercise his right to refuse nonjudicial punishment. Trial defense counsel did not object to this entry. Instead, he fashioned a case in extenuation and mitigation around the theme that alcohol was the root of the appellant’s problems. Under these facts, we must determine whether it was error to admit the nonjudicial punishment, and if so, whether the error in admitting the nonjudicial punishment constituted “plain error” and may, therefore, be asserted on appeal.
“Plain error” is without a fixed definition. “Plain error” has been described variously as error that is both obvious and substantial, that is particularly egregious, that seriously affects the fairness, integrity or public reputation of judicial proceedings, or that requires appellate intervention to prevent a miscarriage of justice, protect the reputation and integrity of the court, or to protect a fundamental right of the accused. The “plain error” rule will be invoked only in exceptional circumstances to avoid a miscarriage of justice. In determining whether or not there is “plain error,” the record must be considered as a whole.
United States v. Lowry, 33 M.J. 1035, 1037-38 (N.M.C.M.R.1991) (citations and quotations omitted). Plain error must have a prejudicial impact, and a per se approach to plain error is flawed. United States v. Rice, 33 M.J. 451, 452 (C.M.A.1991); United States v. Fisher, 21 M.J. 327, 328-29 (C.M.A.1986) (citing United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985)); United States v. Ruiz, 30 M.J. 867, 869 (N.M.C.M.R.1990).
In Dyke, the United States Court of Military Appeals held that the admission of a nonjudicial punishment was “plain error” in the absence of defense objection when the service record entries evidencing the nonjudicial punishment were unsigned. There the exhibit lacked signatures as to the advisement and election of rights, as well as the entry attesting the imposition of punishment. Judge Everett, speaking for the Court, observed:
Although the Military Rules of Evidence were intended to place additional responsibility upon trial and defense counsel, we do not believe that they meant to provide a license for slipshod performance by military judges. [The exhibit evidencing the nonjudicial punishment] was so incomplete on its face that the judge should have excluded it on his own motion.
If Booker means anything, it prohibits the admission of a record of nonjudicial
The balance of the appellant’s assignments of error are also without merit. Accordingly, the findings and sentence as approved on review below are affirmed.
. I. THE MILITARY JUDGE ERRED BY ADMITTING A RECORD OF A NONJUDICIAL PUNISHMENT WHEN APPELLANT HAD NOTIFIED HIS COMMAND THAT HE WAS EXERCISING HIS RIGHT TO REFUSE TO ACCEPT THAT NONJUDICIAL PUNISHMENT.
II. THE STAFF JUDGE ADVOCATE FAILED TO SERVE HIS RECOMMENDATION ON APPELLANTS TRIAL DEFENSE COUNSEL AS REQUIRED BY R.C.M. 1106(F)(1). [Footnote omitted]
III. THE CONVENING AUTHORITY FAILED TO PLACE INTO THE RECORD OF TRIAL ANY DOCUMENTS RELATING TO THE RELIEF OF THE TRIAL DEFENSE COUNSEL AND THE APPOINTMENT OF SUCCESSOR COUNSEL AS REQUIRED BY JAGINST 5810.2, PARAGRAPH (6)(C). SEE, UNITED STATES V PALENIUS, 2 M.J. 86 (C.M.A.1977). [Footnote omitted].
. This requirement does not apply to the accused who was attached to or embarked in a vessel at the time his nonjudicial punishment was imposed. The requirement also does not apply if the nonjudicial punishment is offered as a matter in rebuttal.
. In an earlier case, the Court of Military Appeals had mandated reassessment of sentence
