United States v. Booker

37 M.J. 1114, 1993 CMR LEXIS 394, 1993 WL 362331

• Court: U.S. Navy-Marine Corps Court of Military Review
• Decided: August 31, 1993
• Docket: NMCM 92 00171
• Status: Published

Opinions

PER CURIAM:

In accordance with his pleas, the appellant was found guilty of assaulting a petty officer and carrying a concealed weapon in violation, respectively, of Articles 128 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 928, 934. He was sentenced by the military judge, sitting alone, to confinement for 2 months, forfeiture of $250.00 pay per month for 4 months, reduction to pay grade E-l, and a bad-conduct discharge. Before this Court, the appellant assigns four errors ¹ II.in the conduct of his trial. We have concluded, however, that all of those assigned errors are without merit.

Although the appellant admitted at trial, Record at 19, that an unloaded² .38 caliber pistol he had in the glove compartment of his car was within his “immediate reach” while he was on board the Oakland Army Base, he now asserts in his first assignment of error that, as a matter of law, the pistol could not have been in his immediate reach. During the sentencing portion of the hearing, the Government called an enlisted security guard who testified that he had discovered a .38 caliber automatic pistol in the appellant’s ear during a gate search at the Oakland Army Base after initially finding a magazine containing five rounds of ammunition between and under the front seats and that the pistol was in a zippered case, along with two additional rounds of ammunition, in the glove compartment. Record 41-42.

Neither the appellant nor the Government has cited a military case addressing this issue in the context of a locked glove compartment, and we have also been unable to find an identical precedent among reported military cases. There appears to be only one federal court decision based on a similar factual predicate, however. Cf. United States v. Barber, 594 F.2d 1242 (9th Cir.1979) (carrying a firearm in violation of 18 U.S.C. § 924(c)(2) includes transporting or possessing a gun even in a locked glove compartment).

The Government cites several state court decisions supporting conviction under state laws or local ordinances. Cf. State v. Goodwin, 184 Neb. 537, 169 N.W.2d 270 (1969), cert. denied, 397 U.S. 1046, 90 S.Ct. 1374, 25 L.Ed.2d 658 (1970) (loaded pistol in locked glove compartment is concealed on or about the person of the driver where state statute provided that presence of weapon in automobile was prima facie evidence of possession by all persons occupying the automobile at the time); Cleveland v. Betts, 107 Ohio App. 511, 148 N.E.2d 708 (1958) (revolver in locked glove compartment was on or about the person of the driver under municipal ordinance making such a crime a misdemeanor but conviction reversed because ordinance conflicted with state statute which made the same crime a felony).

Although the appellant does not directly cite any contrary decisions on these facts, he mentions Williams v. Commonwealth, 261 S.W.2d 807 (1953), which refers to an earlier Kentucky decision in Turley v. Commonwealth, 307 Ky. 89, 209 S.W.2d 843 (1948), where it was held that it was not a violation of Kentucky’s prohibition against carrying a concealed weapon to have a pistol in a locked glove compartment. The Williams decision is mentioned in an Army Board of Review decision stating the general rule that on or about one’s person refers to weapons within an accused’s immediate reach. See. United States v. Detuccio, 29 C.M.R. 879, 885, 1960 WL 4615 (A.B.R. 1960) (guilty plea not improvident where weapon found under the driver’s seat).

The appellant also cites United States v. Jemmings, 1 M.J. 414 (C.M.A.1976), for his contention that the military judge failed to make an adequate inquiry when the appellant told him that the glove compartment was locked and that that information was inconsistent with the appellant’s “legal conclusion” that the pistol was within his immediate reach. Unlike Jemmings, however, where the accused always maintained that he had been forced into committing the offense he had pled guilty to, raising the possible defense of duress, the appellant here never asserted that he thought the pistol was not within his immediate reach but actually stated that he believed it was in his immediate reach or access after he told the military judge that the glove compartment was locked. Record at 17-19.

In United States v. Ballesteros, 29 M.J. 14 (C.M.A.1989), the Court of Military Appeals addressed a contention very similar to that now raised by the appellant involving the possession of a pistol concealed in a locked briefcase in the cab of the pickup truck Ballesteros had been driving. There the Court stated:

First, we note that appellant was not required to plead guilty, and he could easily have raised these possible defenses at his court-martial. Second, we find that the judge was sensitive to the very matters now raised on appeal, and he particularly examined and resolved them to his satisfaction and appellant’s. Third, we find the facts of this case, as reflected in appellant’s own responses, show sufficient accessibility to the loaded gun to satisfy the element of being “on or about his person” within the meaning of military law. In any event, post-trial speculation concerning the ownership of the briefcase or the whereabouts of its key pales before appellant’s express admission of guilt.

29 M.J. at 15-16 (citations omitted) (emphasis added). We reach the same conclusion in the case now before us. We do not think the military judge is required to ask how long an accused thinks it might take him or her to retrieve the weapon or to determine how adept an accused may be in opening the locked compartment in any given instance.

As to the appellant’s second assignment of error, he fails to allege what possible prejudice he could have suffered as a result of the staff judge advocate’s recommending that the convening authority suspend confinement in excess of 75 days in accordance with the pretrial agreement when the sentence adjudged included only 2 months’ confinement. Although the promulgating order and the convening authority’s action on the case are not dated, the appellant’s trial defense counsel was served with a copy of the recommendation and the appellant does not now allege that the convening authority acted prematurely. Consequently, any error concerning this mistaken advice has been waived, and it does not constitute plain error. United States v. Lowry, 33 M.J. 1035 (N.M.C.M.R. 1991) .

The appellant’s remaining assignments of error are also without merit. United States v. Graf, 35 M.J. 450 (C.M.A.1992); United States v. Weiss, 36 M.J. 224 (C.M.A. 1992), cert. granted, — U.S. -, 113 S.Ct. 2412, 124 L.Ed.2d 635 (1993).

Accordingly, the findings and sentence, as approved on review below, are affirmed.

1 . I. APPELLANT’S PLEAS TO CHARGE II AND ITS SPECIFICATION, CARRYING A CONCEALED WEAPON, ARE NOT PROVIDENT WHEN THE PROVIDENCE INQUIRY REVEALS THAT THE WEAPON WAS LOCATED IN THE LOCKED GLOVE COMPARTMENT OF THE VEHICLE THAT APPELLANT WAS DRIVING.

II. THE STAFF JUDGE ADVOCATE’S RECOMMENDATION, REGARDING THE EFFECT OF THE PRETRIAL AGREEMENT NEGOTIATED IN APPELLANT’S CASE, WAS MATERIALLY ERRONEOUS AND MISLED THE CONVENING AUTHORITY INTO SUSPENDING CONFINEMENT IN EXCESS OF 75 DAYS WHEN ONLY TWO MONTHS CONFINEMENT WAS ADJUDGED. [CITATIONS OMITTED.]

III. THE COURT-MARTIAL HAD NO JURISDICTION BECAUSE THE MILITARY JUDGE’S LACK OF A FIXED TERM OF OFFICE LEFT THE MILITARY JUDGE INSUFFICIENTLY INDEPENDENT TO SATISFY THE FIFTH AMENDMENT’S DUE PROCESS CLAUSE. [CITATION OMITTED.] BECAUSE THE ERROR IS JURISDICTIONAL AND THE RECORD CONTAINS NO EVIDENCE OF A KNOWING WAIVER OF APPELLANT’S RIGHT TO AN INDEPENDENT MILITARY JUDGE, THE ISSUE IS NOT WAIVED EVEN THOUGH IT WAS NOT RAISED AT TRIAL. [FOOTNOTE OMITTED.].

IV. THE COURT-MARTIAL LACKED JURISDICTION BECAUSE APPELLANTS MILITARY JUDGE WAS DESIGNATED IN VIOLATION OF THE APPOINTMENTS CLAUSE OF THE CONSTITUTION. [CITATIONS AND FOOTNOTE OMITTED.] BECAUSE THIS ERROR IS JURISDICTIONAL, THE ISSUE IS NOT WAIVED EVEN THOUGH IT WAS NOT RAISED AT TRIAL.

2 . The fact that the pistol was unloaded does not prevent its use as a dangerous weapon under military law, Manual for Courts-Martial, United States, 1984, Part IV, ¶ 112c(2), and that is not the basis of the appellant’s assignment of error. The appellant also revealed during the military judge’s inquiry that there was ammunition in the car under the seat and that the ammunition was as "readily available” to him as was the pistol.