9 M.J. 171 | United States Court of Military Appeals | 1980
Opinion of the Court
During the sentencing portion of appellant’s court-martial,
This case is resolvable under the doctrine espoused in United States v. Morales, 1 M.J.
Our examination of the legally inadmissible documents in United States v. Morales, supra, compelled us to agree with the lower court’s “determination that ... a more severe punishment” was a direct result of their admission. Furthermore, no indication was present as a matter of record that the defense counsel’s action was for “tactical advantage.” As a result, the remedy of sentence reversal was mandated.
These principles govern the instant case. Prosecution Exhibit 5 was inadmissible on its face. Here the defense was compelled to explain the inadmissible record of punishment so as to minimize the impact, and we are unable to conclude that the inadmissible item did not lead to a more severe sentence.
The decision of the United States Army Court of Military Review is reversed as to sentence. The record of trial is returned to the Judge Advocate General of the Army for resubmission to the Court of Military Review for reassessment of the sentence.
. Tried in a general court-martial by military judge alone, the appellant was found guilty, contrary to his pleas, of larceny and robbery, in violation of Article 121 and 122 of the Uniform Code of Military Justice, 10 U.S.C. §§ 921 and 922. His sentence included a bad-conduct discharge, confinement at hard labor for one year, forfeiture of all pay and allowances, and reduction to the grade of E-l.
. Article 15, UCMJ, 10 U.S.C. § 815.
. See United States v. Syro, 7 M.J. 431 (C.M.A. 1979).
. Prosecution Exhibit 5 is a nonjudicial punishment imposed after United States v. Booker, 5 M.J. 238 (C.M.A. 1977). We do not decide the implication of the Booker decision as to these facts, for we find the prosecution exhibit defective on other grounds.
. See Appendix A.