Opinion of the Court
PERRY, Judge:
By special court-martial, which consisted of military judge alone, the appellant was tried and convicted of violating Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934, for distributing methamphetamine. His sentence included a bad-conduct discharge, forfeiture of $200 pay per month for 3 months, and confinement at hard la[315]*315bor for 3 months. The convening authority approved the findings, but suspended the punitive discharge with provision for automatic remission. His conviction was subsequently affirmed by the United States Army Court of Military Review.
We granted review to consider the appellant’s contention that the military judge erred by accepting as evidence a stipulation of fact amounting to a confession, allegedly in contravention of paragraph 154b (1) of the Manual for Courts-Martial, United States, 1969 (Revised edition). This paragraph provides, inter alia, that whenever “an accused has pleaded not guilty and the plea still stands, a stipulation which practically amounts to a confession should not be received in evidence.”
I
Clearly, the stipulation now repugned by the appellant amounted to a total confession of guilt. Indeed, the appellant had stipulated to the truth of every inculpatory fact charged against him. At his trial, where he pleaded not guilty, he stipulated that he sold three plastic baggies, each containing approximately 100 white methamphetamine tablets (a controlled substance), to an undercover agent for $70.1 This stipulation, which made out a prima facie case for the Government, was admitted as evidence by the military judge, thus assuring the appellant’s conviction without the production of prosecutorial evidence. It is true that the appellant could have presented the defense of entrapment, which would have required us to review this issue in a different light. However, because he did not present that defense, his stipulation admitted every essential fact and amounted to a confession of guilt.
We reject the contention that such a confessional stipulation2 cannot be admitted under any circumstances. Though ordinarily a confessional stipulation should be excluded as evidence,3 an accused may nonetheless consent to its admission. Thus, we agree with the United States Air Force Court of Military Review that a military judge, notwithstanding paragraph 154b (1) of the Manual, may admit a stipulation which amounts practically to a confession provided that the accused has first knowingly, intelligently and voluntarily consented to its admission. United States v. Rempe, 49 C.M.R. 367 (A.F.C.M.R.1974). If an accused and his lawyer, in their best judgment, think there is a benefit or advantage to be gained by entering otherwise objectionable evidence, as in Rempe where [316]*316the accused consented to the admission of a confessional stipulation in order to preserve an error for appellate review, we perceive no reason why they should not be their own judges with leeway to do so.4 We intimated in United States v. Gustafson, 17 U.S.C.M.A. 150, 37 C.M.R. 414 (1967), that the accused may purposely consent to the introduction of evidence which would otherwise necessarily be excluded, even if the evidence constituted a violation of his fundamental constitutional right. In Gustafson, the accused consented to the introduction of a statement obtained in violation of his Miranda-Tempia rights.5 However, once the accused knowingly consents to the admission of any objectionable evidence, it is irretrievable. United States v. Gustafson, supra; United States v. Frederick, 3 M.J. 230 (C.M.A.1977).
However, in the instant case, it is not clear whether the accused understood that his stipulation could not ordinarily be admitted specifically in light of paragraph 154b (1) of the Manual. The military judge only apprised the accused that if he did not understand its meaning and did not agree . to it, the stipulation could not be accepted. On the other hand, from all the circumstances, it appears that the accused eagerly desired and sought its admission. But the issue here is not so much whether the accused desired the admission of the stipulation as it is whether he knew it was inadmissible as evidence unless he preferred to have it admitted. As in Rempe, supra, we believe the military judge was required to expressly communicate to the appellant before accepting his confessional stipulation that under the Manual it could not be accepted without his consent. Absent such communication, its acceptance constituted error. Further, the military judge was required to apprise the accused, as he did here, that the Government has the burden of proving beyond a reasonable doubt every element of the offense and that by stipulating to material elements of the offense, the accused alleviates that burden.
II
Moreover, since the stipulation was actually a full admission of guilt, the trial judge was obligated to make a further inquiry to assure that the Government was not circumventing either the letter or the spirit of Article 45(a), UCMJ, 10 U.S.C. § 845(a). The statute bars acceptance of a plea of guilty if an accused “sets up matter inconsistent with the plea” or enters a plea “improvidently or through lack of understanding of its meaning and effect”.
The underlying considerations which led us to adopt the Care6 inquiry also are present in cases like this one where the accused has stipulated to every criminal element charged. Consequently, a similar, although not identical, inquiry was required here. Judge Ely, dissenting in United States v. Terrack, 515 F.2d 558, 561-62 (9th Cir. 1975), correctly pointed this out:
The prosecution argues, and the majority appears to agree, that the fact that the stipulation was not formally designated as a guilty plea is determinative, even though its consequences were precisely the same as a guilty plea, assured conviction without any production of prosecutorial evidence. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) does not support that conclusion. In Boykin, the Supreme Court noted that a guilty plea has the following characteristics:
[317]*317“A plea of guilty is more than a voluntary confession made in open court, it also serves as a stipulation that no proof by the prosecution need be advanced. ... It supplies both evidence and verdict, ending controversy.” (emphasis added) (citation omitted.) Id. at 243-44, 89 S.Ct. at 1712 n. 4.
Terrack’s stipulation to the prosecution’s entire case was, exactly like a guilty plea, a stipulation that no proof by the prosecution was necessary. Once the stipulation was made, the controversy was effectively terminated, and accordingly, the trial judge summarily made his judgment of conviction. Thus, Terrack’s stipulation contained the basic characteristics that, under Supreme Court doctrine, delineate a plea of guilty.
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion of the Court
PERRY, Judge:
By special court-martial, which consisted of military judge alone, the appellant was tried and convicted of violating Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934, for distributing methamphetamine. His sentence included a bad-conduct discharge, forfeiture of $200 pay per month for 3 months, and confinement at hard la[315]*315bor for 3 months. The convening authority approved the findings, but suspended the punitive discharge with provision for automatic remission. His conviction was subsequently affirmed by the United States Army Court of Military Review.
We granted review to consider the appellant’s contention that the military judge erred by accepting as evidence a stipulation of fact amounting to a confession, allegedly in contravention of paragraph 154b (1) of the Manual for Courts-Martial, United States, 1969 (Revised edition). This paragraph provides, inter alia, that whenever “an accused has pleaded not guilty and the plea still stands, a stipulation which practically amounts to a confession should not be received in evidence.”
I
Clearly, the stipulation now repugned by the appellant amounted to a total confession of guilt. Indeed, the appellant had stipulated to the truth of every inculpatory fact charged against him. At his trial, where he pleaded not guilty, he stipulated that he sold three plastic baggies, each containing approximately 100 white methamphetamine tablets (a controlled substance), to an undercover agent for $70.1 This stipulation, which made out a prima facie case for the Government, was admitted as evidence by the military judge, thus assuring the appellant’s conviction without the production of prosecutorial evidence. It is true that the appellant could have presented the defense of entrapment, which would have required us to review this issue in a different light. However, because he did not present that defense, his stipulation admitted every essential fact and amounted to a confession of guilt.
We reject the contention that such a confessional stipulation2 cannot be admitted under any circumstances. Though ordinarily a confessional stipulation should be excluded as evidence,3 an accused may nonetheless consent to its admission. Thus, we agree with the United States Air Force Court of Military Review that a military judge, notwithstanding paragraph 154b (1) of the Manual, may admit a stipulation which amounts practically to a confession provided that the accused has first knowingly, intelligently and voluntarily consented to its admission. United States v. Rempe, 49 C.M.R. 367 (A.F.C.M.R.1974). If an accused and his lawyer, in their best judgment, think there is a benefit or advantage to be gained by entering otherwise objectionable evidence, as in Rempe where [316]*316the accused consented to the admission of a confessional stipulation in order to preserve an error for appellate review, we perceive no reason why they should not be their own judges with leeway to do so.4 We intimated in United States v. Gustafson, 17 U.S.C.M.A. 150, 37 C.M.R. 414 (1967), that the accused may purposely consent to the introduction of evidence which would otherwise necessarily be excluded, even if the evidence constituted a violation of his fundamental constitutional right. In Gustafson, the accused consented to the introduction of a statement obtained in violation of his Miranda-Tempia rights.5 However, once the accused knowingly consents to the admission of any objectionable evidence, it is irretrievable. United States v. Gustafson, supra; United States v. Frederick, 3 M.J. 230 (C.M.A.1977).
However, in the instant case, it is not clear whether the accused understood that his stipulation could not ordinarily be admitted specifically in light of paragraph 154b (1) of the Manual. The military judge only apprised the accused that if he did not understand its meaning and did not agree . to it, the stipulation could not be accepted. On the other hand, from all the circumstances, it appears that the accused eagerly desired and sought its admission. But the issue here is not so much whether the accused desired the admission of the stipulation as it is whether he knew it was inadmissible as evidence unless he preferred to have it admitted. As in Rempe, supra, we believe the military judge was required to expressly communicate to the appellant before accepting his confessional stipulation that under the Manual it could not be accepted without his consent. Absent such communication, its acceptance constituted error. Further, the military judge was required to apprise the accused, as he did here, that the Government has the burden of proving beyond a reasonable doubt every element of the offense and that by stipulating to material elements of the offense, the accused alleviates that burden.
II
Moreover, since the stipulation was actually a full admission of guilt, the trial judge was obligated to make a further inquiry to assure that the Government was not circumventing either the letter or the spirit of Article 45(a), UCMJ, 10 U.S.C. § 845(a). The statute bars acceptance of a plea of guilty if an accused “sets up matter inconsistent with the plea” or enters a plea “improvidently or through lack of understanding of its meaning and effect”.
The underlying considerations which led us to adopt the Care6 inquiry also are present in cases like this one where the accused has stipulated to every criminal element charged. Consequently, a similar, although not identical, inquiry was required here. Judge Ely, dissenting in United States v. Terrack, 515 F.2d 558, 561-62 (9th Cir. 1975), correctly pointed this out:
The prosecution argues, and the majority appears to agree, that the fact that the stipulation was not formally designated as a guilty plea is determinative, even though its consequences were precisely the same as a guilty plea, assured conviction without any production of prosecutorial evidence. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) does not support that conclusion. In Boykin, the Supreme Court noted that a guilty plea has the following characteristics:
[317]*317“A plea of guilty is more than a voluntary confession made in open court, it also serves as a stipulation that no proof by the prosecution need be advanced. ... It supplies both evidence and verdict, ending controversy.” (emphasis added) (citation omitted.) Id. at 243-44, 89 S.Ct. at 1712 n. 4.
Terrack’s stipulation to the prosecution’s entire case was, exactly like a guilty plea, a stipulation that no proof by the prosecution was necessary. Once the stipulation was made, the controversy was effectively terminated, and accordingly, the trial judge summarily made his judgment of conviction. Thus, Terrack’s stipulation contained the basic characteristics that, under Supreme Court doctrine, delineate a plea of guilty. This being true, all incidents to the acceptance of a plea of guilty should attach.
Assuring the continued vitality of Article 45(a) is also relevant. To allow the Government to enter into pretrial agreements conditioned upon a stipulation (as opposed to a plea) of guilt coupled with a promise not to raise any defense or motion would utterly defeat the congressional purpose behind Article 45(a), for it would allow the Government to avoid the hurdles Congress imposed in Article 45(a) while nevertheless reaping benefits equivalent to a guilty plea.
We therefore hold that where a stipulation constitutes an acknowledgment of guilt, the trial judge, in addition to making the inquiry set forth in Part I of this opinion, must also ascertain from the accused on the record that a factual basis exists for the stipulation. See United States v. Terry, 21 U.S.C.M.A. 442, 45 C.M.R. 216 (1972). The trial judge also shall conduct a plea bargain inquiry in accordance with the guidelines set forth in United States v. Green, 24 U.S.C.M.A. 299, 52 C.M.R. 10, 1 M.J. 453 (1976). Should this plea bargain inquiry reveal the existence of an agreement not to raise defenses or motions, the confessional stipulation will be rejected as inconsistent with Article 45(a). See United States v. Holland, 23 U.S.C.M.A. 442, 50 C.M.R. 461, 1 M.J. 58 (1975). See also Schmeltz v. United States, 1 M.J. 273 (1976).
For the reasons set forth above, the decision of the United States Army Court of Military Review is reversed. The findings and sentence are set aside. The record of trial is returned to the Judge Advocate General of the Army. A rehearing may be ordered.
Chief Judge FLETCHER concurs.