7 M.J. 431 | United States Court of Military Appeals | 1979
Lead Opinion
The appellant was found guilty of numerous offenses
The Judge Advocate General of the Navy, pursuant to Article 67(b)(2), Uniform Code of Military Justice, 10 U.S.C. § 867(b)(2), referred appellant’s case to this Court for consideration of the following issues:
I
Whether the United States Court of Military Appeals decision in United States v. Cannon, 5 M.J. 198 (C.M.A.1978), with its reliance upon Stovall v. Denno, 388 U.S. 293 [87 S.Ct. 1967, 18 L.Ed.2d 1199] (1967), renders inadmissible adjudications by summary court-martial which were conducted prior to the decision in United States v. Booker, 5 M.J. 238 (C.M.A.1977), in light of the results in Stovall and Desist v. United States, 394 U.S. 244 [89 S.Ct. 1030, 22 L.Ed.2d 248] (1969). See also United States v. Janis, 428 U.S. 433 [96 S.Ct. 3021, 49 L.Ed.2d 1046] (1976); Stone v. Powell, 428 U.S. 465 [96 S.Ct. 3037, 49 L.Ed.2d 1067] (1976); Michigan v. Tucker, 417 U.S. 433 [94 S.Ct. 2357, 41 L.Ed.2d 182] (1974); Adams v. Illinois, 405 U.S. 278 [92 S.Ct. 916, 31 L.Ed.2d 202] (1972).
II
If the first certified question be answered in the negative, was the United States Navy Court of Military Review correct in its determination that Seaman Recruit SYRO was prejudiced by the introduction of two summary court-martial adjudications which were final prior to the decision in United States v. Booker, supra.
The facts which give rise to the certified questions are as follows. During the sentencing portion of this special court-martial, the military judge considered evidence of two prior summary court-martial punishments of the appellant. This evidence was introduced by the Government solely for purposes of aggravation. See generally para. 75a, Manual for Courts-Martial, United States, 1969 (Revised edition). Defense counsel objected to the admission of this evidence on the grounds that the Government had not demonstrated compliance
In substance,
The decision in United States v. Booker, supra, 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, as a general threshold requirement, the Government has to demonstrate in writing that the person suffering such a disciplinary punishment was advised of the right to confer with counsel prior to accepting such a disciplinary hearing. This evidentiary prerequisite was developed to fill an existing interstice in military law. It was a necessary response, as a matter of military criminal trial practice, to the due process considerations recently recognized as inherent in the statutory removal options provided in Articles 15 and 20, UCMJ, 10 U.S.C. §§ 815 and 820, respectively. See United States v. Booker, supra at 243. Additional requirements for admissibility were mandated depending upon the characterization and use of the summary court-martial as a conviction for purposes of paras. 75b, 127c and 153b, Manual, supra, at a later criminal proceeding. These requirements were deemed necessary in view of the Supreme Court’s decision in Middendorf v. Henry, supra; particularly, that Honorable Court’s reluctance to characterize punishment at a disciplinary proceeding as “a stamp of ‘bad character’ [coincident to a criminal] conviction.”
It is clear that after October 11, 1977, a record of summary court-martial punishment, no matter when conducted, may not be introduced by the Government as a prior conviction
Under para. 75d, Manual, supra, these personnel records are not treated as convic
Therefore the decision of the United' States Navy Court of Military Review is reversed. The record of trial is returned to the Judge Advocate General of the Navy for submission to the Court of Military Review for action consistent with this opinion.
. He pleaded guilty to seven violations of Article 86, Uniform Code of Military Justice, 10 U.S.C. § 886. Contrary to his pleas, he was convicted of being disrespectful to a superior officer, in violation of Article 89, UCMJ, 10 U.S.C. § 889.
. None of the appellant’s offenses by themselves authorized the award of a bad-conduct discharge. However, since the total confinement authorized for all offenses exceeded 6 months, this discharge was an additional permissible punishment. See para. 127c, Section B, Manual for Courts-Martial, United States, 1969 (Revised edition). This enhancement situation is different from that treated in United States v. Booker, 5 M.J. 238 (C.M.A.1977).
. Pursuant to a pretrial agreement.
. The Government introduced evidence that the appellant executed written waivers of counsel for these summary courts-martial. It also offered to call a summary court-martial officer to testify that the appellant was advised that he could consult with an attorney prior to his decision to submit to a summary court-martial. After objection by the defense counsel, the military judge ruled such evidence irrelevant. It appears no written waiver of the right to counsel for this removal decision existed, as required by United States v. Booker, supra.
. We are not comfortable with the broad scope of the first certified question. It simply does not distinguish between a record of summary
. See Middendorf v. Henry, 425 U.S. 25, 39, 96 S.Ct. 1281, 47 L.Ed.2d 556 (1976); United States v. Booker, supra at 242, n. 14.
. See Middendorf v. Henry, supra.
. See United States v. Booker, supra at 243-44.
. See Note, Reforming the Summary Court-Martial, 79 Col.L.Rev. 173, 191 n. 141 (1979).
. Indeed, in the present case the military judge specifically informed the appellant that he considered the summary courts-martial as disciplinary records in arriving at an appropriate sentence.
. Michigan v. Tucker, 417 U.S. 433, 446, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974); Desist v. United States, 394 U.S. 244, 246, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969); see generally Stovall v. Denno, 388 U.S. 293, 296, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).
Concurrence Opinion
(concurring in the result):
My dissatisfaction with the Booker requirements is set out in my dissent in that case.
. United States v. Booker, 5 M.J. 238, 244 (C.M.A.1977).
. Id.; United States v. Cannon, 5 M.J. 198 (C.M.A.1978).