9 M.J. 850 | U.S. Navy-Marine Corps Court of Military Review | 1980
EN BANC.
The accused was convicted pursuant to his pleas at a special court-martial bench trial of extortion, assault, and communication of a threat, in violation of Articles 127, 128, and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 927, 928, and 934, and sentenced to a bad-conduct discharge, confinement at hard labor for 6 months, and forfeiture of $279.00 per month for 6 months. The convening authority reduced the period of confinement and forfeitures to 2 months and otherwise approved the sentence. The officer exercising general court-martial jurisdiction approved the sentence approved by the convening authority.
Citing United States v. Booker, 5 M.J. 238 (C.M.A.1977), the accused contends that evidence of a prior summary court-martial was erroneously admitted over his objection because, although it reflected an acknowledgment by the accused of his right to consult with counsel, it failed to reflect that he actually consulted with-counsel or affirmatively waived this right. We disagree and affirm, finding that, in the absence of a contention that the accused was actually denied the right to consult with counsel, the challenged evidence satisfied the Booker standards for admissibility as explained in United States v. Syro, 7 M.J. 431 (C.M.A. 1979).
During presentencing proceedings the military judge admitted Prosecution Exhibit 3, evidence of a prior summary court-martial for a 33-day unauthorized absence, overruling defense counsel’s objection based on United States v. Booker, supra, that the evidence was inadmissible because it did not indicate that the accused was afforded the right to see counsel, that is, that he either saw counsel or waived this right. Prosecution Exhibit 3 contains, among other things, the accused’s signed acknowledgment that he understood that, before deciding whether to consent or object to trial by summary court-martial, he had the right to consult with independent legal counsel, which would be provided at no expense to him.
In United States v. McLemore, 9 M.J. 695 (N.C.M.R.1980) (en banc), we recently examined the background of United States v. Booker, supra, which sets forth requirements for the admissibility of prior disciplinary proceedings, and the subsequent explanation of those requirements in United States v. Syro, supra. In Booker the Court of Military Appeals held that, because the consequences of a decision to accept a nonjudicial punishment or summary court-martial disciplinary action involve due process considerations (that is, waiver of a right to a full adversary criminal proceeding with its attendant Fifth and Sixth Amendment protections) and because only a legally trained person can supply the requisite
In Syro, the Court of Military Appeals announced that Booker established several different requirements for the admission of records of prior disciplinary proceedings, depending upon the purpose of their introduction at subsequent special or general courts-martial. First, the Court said, as a general threshold requirement the Government has to demonstrate in writing that the accused was advised of the right to confer with counsel prior to accepting such a disciplinary hearing. Additional requirements for admissibility, it noted, were mandated depending upon the characterization and use of the summary court-martial as a conviction for the purposes of paragraphs 75 b, 127 c, or 153b, Manual for Courts-Martial, 1969 (Rev.) (MCM). Therefore, Booker, as subsequently explained in Syro, holds that while records of prior disciplinary proceedings may not be introduced by the Government as prior convictions for the purposes of paragraphs 75b, 127c, or 153b, MCM, without compliance with both the threshold and additional requirements of Booker, such records may be introduced pursuant to paragraph 75d, MCM, as evidence of the character of an accused’s prior service, provided that compliance with the threshold requirement of Booker is demonstrated, even though the additional requirements are not satisfied. United States v. McLemore, supra. In Syro, the Court noted that compliance with the threshold requirement of Booker preserves the integrity of the removal decision; it satisfies the due process considerations recognized by the Court as inherent in the statutory removal options provided in Articles 15 and 20, UCMJ.
Applying the law as announced in Booker and as explained in Syro to the instant case, we conclude that the evidence of the accused’s prior summary court-martial was properly admitted. The summary court-martial was not used as a prior conviction for any purpose, but rather as evidence of character of service. The threshold requirement of Booker, written evidence of advice to the accused of his right to confer with counsel before accepting the disciplinary proceeding, was satisfied. Nothing more is required when a summary court-martial is used solely as evidence of character of service. Our decisions in United States v. Davis, 6 M.J. 969 (N.C.M.R.1979), and United States v. Rivera, 6 M.J. 535 (N.C.M.R.1978), are inconsistent with Syro to the extent that they mandate compliance with the additional Booker requirements for admissibility of evidence of prior summary courts-martial introduced as evidence of character of service and not as prior convictions. To this extent these decisions must be overruled. Booker as construed in Syro does not require that the record affirmatively establish that the accused waived counsel, if the summary court-martial is used solely as evidence of character of service. Although the language in United States v. Mathews, 6 M.J. 357 (C.M.A.
Absent a claim at trial that the accused has been denied the opportunity to consult with counsel, thereby negating the advice required by Booker, the threshold requirement of Booker is satisfied by evidence that the accused was advised of his right to confer with independent counsel before accepting the disciplinary proceeding.
Thus the evidence of the accused’s prior summary court-martial was properly admitted. The assignment of error lacks merit.
Accordingly, the findings of guilty and sentence as approved on review below are affirmed.
. A form evidencing waiver of the assistance of counsel signed by the accused or his acknowledgment that he consulted with counsel is preferable to the one utilized in this case in order to demonstrate that the accused was not denied the opportunity to consult with counsel; this would avoid unnecessary litigation of the issue of whether the advice concerning counsel was negated by a denial of counsel and, therefore, that the threshold requirement of Booker was not satisfied. See United States v. McLemore, 9 M.J. 695 (N.C.M.R.1980) (en banc), for an example of a satisfactory waiver of counsel form when a prior disciplinary action is introduced as evidence of character of service and not used as a conviction.
