36 M.J. 629 | U.S. Army Court of Military Review | 1992
OPINION OF THE COURT
The appellant, pursuant to his pleas, was found guilty, by a military judge sitting as a general court-martial, of conspiracy to commit burglary and larceny, larceny, and burglary, in violation of Articles 81, 121, and 129, Uniform Code of Military Justice, 10 U.S.C. §§ 881, 921, and 929 (1982) [hereinafter UCMJ], He was sentenced to a bad-conduct discharge, confinement for 27 months, forfeiture of all pay and allowances, and reduction to Private El. Pursuant to a pretrial agreement, the convening authority reduced the confinement to 15 months, but otherwise approved the sentence.
The appellant was one of three soldiers found guilty of offenses stemming from a successfully executed plan to burglarize the barracks rooms of other soldiers during the night of 25 December 1991. The appellant acted as a lookout as the other two soldiers entered and stole various items from several rooms. In her submission of matters to the convening authority pursuant to Rules for Courts-Martial 1105 and 1106
In his addendum to the post-trial recommendation, the staff judge advocate advised the convening authority that the trial defense counsel had failed to state that the third coconspirator “received a three year sentence.”
I. The Service Requirement
A starting point for our determination of this issue is R.C.M. 1106(f)(1), which embodies the requirement first mandated in United States v. Goode, 1 M.J. 3, 6 (C.M.A. 1975), that a copy of the post-trial review
The purpose of the post-trial recommendation “is to assist the convening authority to decide what action to take on the sentence in the exercise of command prerogative.” R.C.M. 1106(d)(1). Accordingly, we believe it to be imperative that the convening authority be provided accurate and complete information in the post-trial recommendation, addenda thereto, and in any defense response to either the recommendation or an addendum. The Goode and Narine service requirements, as now reflected in R.C.M. 1106(f)(1) and (7), work as a system of checks and balances to ensure that the convening authority receives only the most accurate and complete information prior to fulfilling his statutory duties in acting on an accused’s sentence under Article 60(c), UCMJ.
In the case sub judice, government appellate counsel argue that the staff judge advocate’s addendum pointing out the third coconspirator’s sentence did not raise new matter. We agree. The appellant’s trial defense counsel provided the convening authority with considerable information about not only the appellant, but also his coconspirators. Conspicuously absent from her post-trial submission was the third coconspirator’s sentence. This omission, in the context of the counsel’s request of the convening authority, amounted to an error which the staff judge advocate understandably believed necessary to correct.
II. Testing for Prejudice
If the information in the addendum had been new matter, the staff judge advocate would have erred in failing to serve the addendum on the trial defense counsel. R.C.M. 1106(f)(7); Norment, 34 M.J. at 227. If there was error, the next question for resolution would be whether that failure can be tested for prejudice. Government appellate counsel argue that such an error should be tested for prejudice. Appellate defense counsel counter by arguing that failure to serve trial defense counsel with an addendum containing new matter should be considered as a general prejudice. The failure to serve this addendum foreclosed any possibility of distinguishing the third
The Court of Military Appeals arguably rejected a test for prejudice in those situations where the government errs in the post-trial review process when it held:
It dilutes the curative effect of Goode to ignore the lack of input from the defense counsel and to examine the new material for possible prejudice at the appellate level neither substitutes for the input of the defense counsel nor avoids the appellate caseload that Goode was designed to reduce.
Narine, 14 M.J. at 57.
We note, however, that Narine was decided prior to the Military Justice Act of 1983 and the ensuing prescription of the Manual for Courts-Martial, United States, 1984, and the Rules for Courts-Martial contained therein. Significantly, in addressing the 1983 Act’s proposed changes to the convening authority’s duties with respect to taking action on a court-martial pursuant to Article 60, UCMJ, the report of the Senate Committee on the Armed Services stated, “If there is an objection to an error that is deemed prejudicial under Article 59
We recognize that some decisions of our superior appellate court since enactment of the Military Justice Act of 1983 have clouded this issue. See United States v. Anderson, 25 M.J. 342, 344 (C.M.A.1987) (In responding to the accused’s clemency petition relating to his offense of, inter alia, involuntary manslaughter, “[t]he reference by the staff judge advocate to the large civil claim against the United States was not so trivial that it can be disregarded as a nonprejudicial violation of R.C.M. 1106(f)(7).” (emphasis added)). In United States v. Heirs, 29 M.J. 68 (C.M.A.1989), the staff judge advocate’s addendum to his recommendation responded to the appellant’s post-trial attack on the sufficiency of the evidence on the offense of making bad checks with the intent to defraud. The addendum, which was not served on the trial defense counsel, referred to the appellant’s providence inquiry testimony during his i attempt to plead guilty to that offense — a plea the military judge rejected as improvident. The court held that it was error to rely on this inadmissible testimony and directed that a new recommendation be prepared, without any discussion of prejudice. Significantly, though, Heirs contained the additional error of a lack of evidence that the convening authority had considered the appellant’s clemency submission, an error requiring a new action under United States v. Craig, 28 M.J. 321 (C.M.A.1989). Most recently, in responding to a government argument advocating a test for prejudice, the Court of Military Appeals stated:
The Government points out that, in United States v. Anderson, 25 M.J. 342, 344 (C.M.A.1987), this Court implied that failure to serve an addendum containing new matter might be nonprejudicial, notwithstanding the majority’s clear holding to the contrary in Narine. Regardless, the Government’s contention that the defense could not have benefited from an opportunity to respond to the addendum here asks us to hide our judicial heads in the sand.
Norment, 34 M.J. at 227.
Neither this Court nor our sister service courts of review have been consistent in the treatment of this issue. Some deci
In other instances, courts of military review have returned the case for a new review and action. In United States v. Holmes, 33 M.J. 750 (A.C.M.R.1991), this Court addressed an Heirs issue in which the staff judge advocate’s addendum referred to inadmissible testimony at trial and was not served on the trial defense counsel. This Court set aside the action of the convening authority and returned the case for a new review and action. There was no discussion of prejudice. In United States v. Thompson, 25 M.J. 662 (A.F.C.M.R.1987), the court found that the unserved addendum's change in the recommended location of confinement and rebuttal of the appellant's claims about the timing of his efforts to seek help with his drug problem constituted new matter. The court stated, “Although we have grave doubts as to whether the appellant has suffered any prejudice as a result of the omission in this case, we feel constrained by law to take appropriate remedial ac-. tion,” and then quoted language from Narine. Thompson, 25 M.J. at 666.
We must reconcile these conflicting views to arrive at our determination of whether a post-trial error of this nature may be tested for prejudice. In so doing we seek a methodology that will guarantee some measure of predictability in the resolution of this issue in cases that will almost certainly follow. We believe that the Navy-Marine Court of Military Review has provided this methodology in United States v. Skaar, 20 M.J. 836, 838-40 (N.M.C.M.R.1985). In Skaar, the court found error in the convening authority’s premature action under R.C.M. 1107 prior to receipt of any submission from the appellant pursuant to R.C.M. 1105. While not addressing the issue of post-trial recommendation addenda, its analysis is nevertheless instructive. The court cited Article 59(a), UCMJ, and United States v. Remai, 19 M.J. 229 (C.M.A.1985), for the proposition that “The Court of Military Appeals has all but abandoned the concept of general prejudice, except where a fundamental constitutional right is denied.” Skaar, 20 M.J. at 838. It tested the convening authority’s error for prejudice just as errors under Goode and R.C.M. 1106 are “assessed for prejudicial impact.” Id. Importantly, Skaar extrapolated an analytical scheme from United States v. Weeks, 20 M.J. 22 (C.M.A.1985), for the assessment of prejudice in cases not involving a fundamental right. Id. at 838-39. That scheme is:
First: The character of the rule violated. Is it a rule of substantive law, procedure or evidence?
Second: The purpose of the specific rule and its underlying policy.
Third: The degree of risk, in terms of conviction and sentence, to the appellant at the time the rule is violated. The point of risk is greatest during trial; less in the pretrial stage, where relief can be sought from the military judge and the actual trial has not begun; and even less in the post-trial stage where risk, in terms of conviction and potential sentence, has been resolved and there exists*634 a record and extensive appellate mechanisms for determining facts and resolving error.
Fourth: The character of the potential actual harm to the accused. For example, whether the risk of conviction was enhanced, the sentence was more severe, there was a loss of opportunity to exercise a right, etc. Potential harm must be actual harm, not remote or ingenious, fanciful or imagined harm.
Fifth: The materiality of the harm to the purpose of the violated rule and its underlying policy.
Sixth: Considering the circumstances, the degree of risk of material actual harm to the accused resulting from the violation of the rule.
Id. at 839.
Applying the facts of this case to that scheme, we arrive at the following conclusions. First, the R.C.M. 1106 right involved is a procedural right which is not a fundamental constitutional right. Second, as indicated supra, its purpose is to provide the convening authority accurate information upon which to exercise his command prerogative under R.C.M. 1107 and Article 60, UCMJ. Third, there is no risk as to the appellant’s conviction and sentence at trial as those determinations had been made pri- or to the error. Fourth, there is only minimal risk that the convening authority had taken less favorable action in the absence of the possibility that there might be some distinguishing factor that might have set the appellant apart from the second coconspirator. Fifth, the appellant has offered nothing to show what matters he would have presented in a response to the addendum to either refute the accuracy of the addendum’s content or to rebut it with additional matters.
We hold that the addendum to the staff judge advocate’s recommendation did not contain new matter and, therefore, did not have to be served on the appellant’s trial defense counsel. Even if that addendum did contain new matter, any error in failing to serve it on the trial defense counsel did not prejudice the appellant.
We have carefully considered the other assignments of error raised by the appellant, including that raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.1982), and find them to be without merit.
The findings of guilty and the sentence are affirmed.
. Manual for Courts-Martial, United States, 1984, Rules for Courts-Martial 1105 and 1106 [hereinafter R.C.M.].
. We note that both the staff judge advocate’s recommendation and the defense counsel’s submissions under R.C.M. 1105 and 1106 contain factual errors. For instance, the staff judge advocate’s recommendation indicates that the appellant had two prior episodes of nonjudicial punishment and no convictions, whereas at trial, the trial counsel introduced exhibits evidencing that the appellant had a previous summary court-martial conviction and one episode of punishment under Article 15, UCMJ. In the defense counsel’s submissions, she misstates the limitation on confinement under the terms of the pretrial agreement as 18 months instead of the correct figure of 15 months. We caution both staff judge advocates and counsel that neither the soldier nor the convening authority is well served by such obvious errors.
. Prior to prescription of Manual for Courts-Martial, United States, 1984, the staff judge advocate’s post-trial recommendation was termed post-trial review.
. We do not imply that this goal of providing the convening authority with complete and accurate information should result in a paper battle between a staff judge advocate and an accused’s counsel. As the Air Force Court of Military Review has previously stated, "Compliance with the Goode rule was not intended to generate an endless succession of defense challenges and staff judge advocate responses thereto____ Such a requirement could place an intolerable burden upon convening authorities to afford an accused the speedy post-trial disposition of his case.” United States v. Meyer, 1 M.J. 755, 756 (A.F.C.M.R.1975) (quoted in Narine, 14 M.J. at 57).
. We do not condone gamesmanship in providing information to the convening authority preparatory to his action on sentence. Cf. Norment, 34 M.J. at 227 (Crawford, J. concurring) (criticizing "gamesmanship” in raising, for the first time post-trial, issues that should have been raised at trial). If the appellant’s counsel was requesting the convening authority to compare her client's sentence to those of his conconspirators, she should have provided him with all the sentences. The convening authority had a right to know the sentences of all co-accuseds to the crimes, not only the least severe, but also the most severe. See United States v. Snelling, 14 M.J. 267, 269 (C.M.A.1982). We judicially notice that one coconspirator, Specialist Perry, received a sentence of a bad-conduct discharge, confinement for 6 months, forfeiture of all pay and allowances, and reduction to Private El. The convening authority approved the adjudged sentence on 2 July 1992. This Court affirmed the findings and sentence. United States v. Perry, ACMR 9200958 (A.C.M.R. 11 Sep. 1992) (unpub.). The third coconspirator, Specialist Porter, received a sentence of a bad-conduct discharge, confinement for three years, forfeiture of all pay and allowances, and reduction to Private El. The convening authority reduced the period of confinement to 18 months, but otherwise approved the adjudged sentence on 10 June 1992, the same date he took action on the appellant’s case. This Court has not yet reviewed Private Porter’s case.
. Article 59(a), UCMJ, states, "A finding or sentence of court-martial may not be held incorrect on the ground of an error of law unless the error of law materially prejudices the substantial rights of the accused.”
. As we have indicated in footnote 5, supra, the convening authority took action pursuant to R.C.M. 1107 on both the appellant’s and then Specialist Porter’s sentences on 10 June 1992. Even without the objectionable addendum, the convening authority would have known about all coconspirators’ adjudged sentences on the day he acted on the appellant’s.