United States v. Ballard

39 M.J. 1028, 1994 CMR LEXIS 127, 1994 WL 138511
CourtU S Coast Guard Court of Military Review
DecidedApril 13, 1994
DocketCGCM 0075; Docket No. 1015
StatusPublished
Cited by6 cases

This text of 39 M.J. 1028 (United States v. Ballard) is published on Counsel Stack Legal Research, covering U S Coast Guard Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Ballard, 39 M.J. 1028, 1994 CMR LEXIS 127, 1994 WL 138511 (cgcomilrev 1994).

Opinion

BAUM, Chief Judge:

Appellant was tried by a general court-martial consisting of officer and enlisted members. He pled not guilty to one specification of assault with intent to commit murder and one specification of solicitation to commit obstruction of justice in violation of Article 134, UCMJ, 10 U.S.C. § 934. The court acquitted him of both of the charged offenses, but convicted him of assault with a dangerous weapon in violation of Article 128, UCMJ, 10 U.S.C. § 928, as a lesser included offense of assault with intent to commit murder. Pursuant to Appellant’s pleas of guilty, he was also convicted of violation of a lawful general regulation under Article 92, UCMJ, 10 U.S.C. § 892, by bringing a privately owned firearm aboard the Governors Island, New York, Coast Guard installation, without the prior permission of the Commanding Officer.

The court sentenced Appellant to a bad conduct discharge, confinement for twelve months, forfeiture of all pay and allowances, and reduction to pay grade E-l, which the convening authority approved as adjudged. Before this Court, Appellant has assigned five errors. Three of the assigned errors have been resolved against Appellant by the U.S. Supreme Court and the U.S. Court of Military Appeals, Weiss v. U.S., — U.S. -, 114 S.Ct. 752,127 L.Ed.2d 1 (1994) and U.S. v. Carpenter, 37 MJ 291 (CMA 1993). [1029]*1029The two remaining assignments will be addressed.

I.

WHETHER THE MILITARY JUDGE ERRED BY IMPROPERLY ADMITTING EVIDENCE OF PRIOR MISDEMEANOR LARCENY CONVICTIONS TO IMPEACH THE CREDIBILITY OF APPELLANT.

Appellant contends that the trial counsel erroneously introduced, and the judge erroneously admitted, evidence of two previous misdemeanor convictions for larceny in North Carolina to impeach Appellant’s credibility during trial on the merits. Appellant argues that this evidence failed to comply with the terms of Military Rules of Evidence (M.R.E.) 609 since the offenses were misdemeanors. The Government, in response, submits that, while the evidence on its face indicates that these convictions were misdemeanors, Sections 14-3(a) and 14-72 of the North Carolina General Statute, authorize imprisonment not exceeding two years for each of the offenses. For this reason, the. Government says that the convictions meet the requirements of M.R.E. 609(a)(1) for admissibility.

The Government is correct on this point since M.R.E. 609(a)(1) states that the credibility of a witness may be impeached during cross-examination by evidence of a crime punishable by imprisonment in excess of one year under the law under which the witness was convicted. Before admitting such evidence, however, the military judge must determine that the probative value of the conviction is not outweighed by its prejudicial effect. The Government notes that this balancing test was performed by the judge prior to admission of the evidence and that the judge also instructed the members that this particular evidence could be used only with respect to Appellant’s credibility.

For these reasons, we have concluded that the evidence of Appellant’s prior larceny convictions was properly admitted and instructed upon by the Judge. Appellant’s assignment of error I is rejected. In reaching this result, we have judicially noted the perti-

nent sections of the North Carolina General Statute.

II.

WHETHER THE GENERAL REGULATION OF WHICH CHARGE II ALLEGES A VIOLATION BY APPELLANT WAS IMPROPERLY PROMULGATED AND IS NOT A PUNITIVE GENERAL ORDER.

In the one remaining assignment of error, Appellant, citing U.S. v. Webster, 37 MJ 670 (CGCMR 1993) and US. v. Remchak, DKT. No. 1009 (CGCMR 11 June 1993), contends that the regulation he was convicted of violating was improperly promulgated and is not a punitive general order. Specifically, he argues that the regulation in question, the Coast Guard Small Arms Manual, COMD-TINST M8370.ll dated 20 March 1989, was signed by a flag officer while he was Chief of the Office of Law Enforcement and Defense Operations at Coast Guard Headquarters and that Coast Guard office chiefs are not authorized to promulgate punitive general regulations.

Appellant acknowledges that there would be no question of lawfulness of the regulation as a general order if the Commandant of the Coast Guard had personally directed the signing of the Manual by the officer in question. He argues, however, that, since the record is devoid of any evidence of the Commandant’s personal involvement, the conviction was erroneous. No evidence on this matter appears in the record because Appellant pled guilty to the offense.

He asserts now that his guilty plea was improvident and, therefore, does not legitimate the improper conviction. To the contrary, the record of trial amply demonstrates the providence of Appellant’s guilty plea. The following are pertinent excerpts from the judge’s dialogue with Appellant that bear on this matter:

MJ: Ok, at this time I’m going to explain to you the elements of the offense to which you’ve entered a plea guilty. As I read these elements to you, I want you to follow along on your copy of the charge sheet. These elements are the facts which [1030]*1030the prosecution would have to prove beyond a reasonable doubt if you were to plead not guilty. Now as I read each of these elements, ask yourself whether that element is absolutely true and whether you wish to admit that it is true, and then I want you to be ready to talk about each of these facts with me.
The first element of the offense of violating a general order or regulation would be as follows:
Number one, that there was in existence a certain lawful general order in the following terms, specifically Article 2-1-3, Commandant Instruction M8370.ll dated 20 March 1989. That’s the first element, that that was in existence at the time that the offense was committed on the 25th of September 1992;
The second element is that you had a duty to obey that regulation on the 25th of September 1992;
and the third element is that on or about the 25th of September 1992 at Governors Island, New York, you violated or failed to obey this lawful general regulation by wrongfully bringing a privately owned firearm aboard Governors Island, New York, a U.S. Coast Guard installation, without the prior permission of the Commanding Officer.
So those are the three elements. Do you understand each of those three elements?
ACCUSED: Yes, Your Honor.
MJ: Do you have any questions about them all?
ACCUSED: No, Your Honor.
MJ: Now, a general order or regulation is an order or regulation generally applicable to an Armed Force which is properly published by the President, The Secretary of Transportation or a military department.

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Related

United States v. Brantner
54 M.J. 595 (U S Coast Guard Court of Criminal Appeals, 2000)
United States v. Townsend
43 M.J. 205 (Court of Appeals for the Armed Forces, 1995)
United States v. Heath
39 M.J. 1101 (U S Coast Guard Court of Military Review, 1994)

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Bluebook (online)
39 M.J. 1028, 1994 CMR LEXIS 127, 1994 WL 138511, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-ballard-cgcomilrev-1994.