Does a military judge abuse his discretion by denying defense counsel’s request to reopen the defense case to respond to a court member’s question solely via an additional unsworn statement by the accused? We hold that he does not.
Appellant was convicted, consistent with his pleas, by a general court-martial, of absence without leave, willful destruction of military property, and larceny. Articles 86, 108, and 121, UCMJ, 10 U.S.C. §§ 886, 908, 921. His approved sentence is a dishonorable discharge, 42 months’ confinement, and reduction to E-l.
I. Background
After both sides rested and the military judge had given his instructions on sentencing, members of the court-martial posed several questions. One question was what happened to the four laptop computers not recovered by the government. Five computers had been recovered. During an Article 39a, UCMJ, 10 U.S.C. § 839(a), session, the military judge suggested to counsel for both sides that the answer to the member’s question is, “we don’t know.” Defense counsel, however, responded:
DC: Right. There is no evidence. I believe that you have the discretion to allow us to answer that question.
MJ: Oh.
DC: We have not decided yet what’s in our client’s best interest. We’ve discussed it and we’d like to talk about it. We do have the night. I believe if he wanted to tell them, the members can ask for additional information.
MJ: That is true. But they can’t ask somebody who has given an unsworn statement.
DC: Exactly. But they can’t force him to do it, but I think if he wanted to volunteer that information, he could.
MJ: Well the best I will allow you to do, defense counsel, is if you decide that you want to provide that information to the court members, if both sides are willing to stipulate to that, then I will certainly allow you to present a stipulation of fact. Other than that, I am not going to allow your client just to answer a question like that. Even though I agree, I think I could. He gave an unsworn statement and as I’ve instructed a couple of times, they can’t interrogate him on that or ask him any questions about that, including a question like this. So I am not inclined to let him just answer it. But that doesn’t mean that you two can’t work out a stipulation of fact or even a stipulation of expected testimony, although I don’t know who it would be the expected testimony of. But I will let you worry about that tonight and see if you can come up with an answer to that.
The next morning, after determining the counsel had no other suggestions for answering the member’s question, the military judge instructed the members there was no evidence before them as to the disposition of the other computers. During the next Article 39a, UCMJ, session, trial defense counsel informed the military judge that it appeared to him that a court member was not happy with the answer and offered to have his client say what happened if the military judge wouldn’t prohibit his client from telling the court members.
The military judge responded:
No, I didn’t say that. What I said is he can’t provide that information to them over the objection of the trial counsel in the form of an unsworn statement.
Trial defense counsel then requested the military judge provide the members a curative instruction. Upon reconvening with the members present, the military judge instructed the members that the information regarding the unreeovered computers was
II. The Law
The standard of appellate review on the issue of whether the military judge erred in refusing to permit the defense to reopen its case after resting in order to make an additional unsworn statement is abuse of discretion. United States v. Martinsmith,
First, it is essential to delineate what we are not concerned with in the instant case. We are not dealing with a situation where the military judge prevented appellant from including certain information in his unsworn statement. Cf. United States v. Jeffery,
Current precedents provide that an accused’s allocution rights are special and may not be curtailed without good cause. See United States v. Provost,
R.C.M. 1001(c)(2)(C) provides in part that an “accused may make an unsworn statement and may not be cross-examined by the trial counsel upon it or examined upon it by the court-martial.” (emphasis added). This qualified privilege required the military judge to instruct the court members that appellant could not be questioned after completing his unsworn statement. Martins-mith,
With regards to the first prong of our analytical model, we note, as did our superior court in Martinsmith, that appellant had exercised his right to make an unsworn statement without any restriction, but elected not to include the information sought by the court members. See Martinsmith,
Testimonial evidence can be introduced only by a witness, whether via live testimony or other available means, ie., deposition or stipulation of expected testimony. Further, all witnesses must testify under oath or affirmation.
Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness’s conscience and impress the witness’s mind with the duty to do so. Mil.R.Evid. 603; see R.C.M. 807(b)(1)(B).
While an unsworn statement is an authorized means for an accused to bring information to the attention of the court-martial during sentencing proceedings, it is not evidence because, when presenting it, the accused is not a witness testifying under oath. Id.; R.C.M. 1001(c)(2)(C); Provost,
III. Application to Instant Case
We now apply these principles to the instant case. After the prosecution and defense had rested their respective sentencing cases, and a member later asked what happened to the laptop computers which were not recovered, the dynamics of the trial changed significantly. The members did not make a casual inquiry but exercised their statutory authority to request evidence to answer their question. Otherwise, their request fell outside the parameters of their authority. See Article 46, UCMJ; Mil. R.Evid. 614(a). Further, any evidence submitted in response to their question had to be in a form which complied with the Military Rules of Evidence. In view of the fact that the member’s question was quite reasonable and relevant, the military judge’s only real concern was how the evidence to answer the question, if available, might be presented. He made it clear to trial defense counsel that he would permit alternatives to an unsworn statement, but the answer had to be evidence.
Trial defense counsel, however, advised the military judge in no uncertain terms that appellant desired to answer the member’s question only through an unsworn statement. By adhering to this stance, appellant asserted that he did not want the trial counsel or the court members to question him or seek to elaborate on what he presented, which was his right. R.C.M. 1001(c)(2)(C). The necessary consequence of appellant’s assertion of his privilege, however, was that he could not answer via an unsworn statement because the members requested evidence, and appellant’s unsworn answer would not have been evidence. Article 46, UCMJ; see Mil.R.Evid. 603. There is nothing in the applicable rules which allows an accused to agree to answer questions or authorizes the military judge to permit such questioning or cross-examination during or after an unsworn statement. Therefore, allowing the appellant, without first being sworn, to answer a question which might be beneficial to him would circumvent R.C.M. 1001(c)(2)(C) and be a clear violation of the protections and limitations built into that rule, and also would circumvent the other rules which govern the introduction of evidence in trials by courts-martial. Accordingly, the military judge was entirely correct when he advised trial defense counsel that, if appellant was going to be the source of testi
“[V]iewed in the context that [appellant] had previously exercised his right to make an unsworn statement and he had not chosen to make this matter an important part of it[,]” Martinsmith,
IV. Conclusion
The findings are correct in law and fact, the sentence is not inappropriate, and no error prejudicial to the substantial rights of the appellant was committed. Accordingly, the findings of guilty and the sentence are
AFFIRMED.
Senior Judge SENANDER
Notes
. Trial counsel did not interpose an objection.
. Senior Judge Senander participated on this case prior to his retirement.