United States v. Boyd

52 M.J. 758, 2000 CCA LEXIS 42, 2000 WL 283203
CourtUnited States Air Force Court of Criminal Appeals
DecidedFebruary 17, 2000
DocketACM 33483
StatusPublished
Cited by8 cases

This text of 52 M.J. 758 (United States v. Boyd) is published on Counsel Stack Legal Research, covering United States Air Force Court of Criminal Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Boyd, 52 M.J. 758, 2000 CCA LEXIS 42, 2000 WL 283203 (afcca 2000).

Opinion

OPINION OF THE COURT

SPISAK, Senior Judge:

The appellant pled guilty to damaging and stealing military property, wrongfully using three different controlled substances, and conduct unbecoming an officer in violation of Articles 108, 121, 112a and 133, UCMJ, 10 U.S.C. §§ 908, 921, 912a, 933. His approved sentence consists of a dismissal, confinement for 80 days, and forfeiture of $215.00 pay per month for 3 months.

The appellant raises three errors for our consideration: (1) The military judge erred when he instructed that military confinement facilities must make mental health care professionals available and that the United States Disciplinary Barracks (USDB) has a drug rehabilitation program; (2) The assistant trial counsel erred when she argued that the appellant could receive substance abuse treatment while confined; (3) The military judge erred by not instructing the members on the loss of retirement benefits which could result from a dismissal. We find no error and affirm.

I. FACTS

The appellant was a nurse in the Intensive Care Unit (ICU) at the Eglin Air Force Base Hospital. Between 1 July 1997 and 3 August [761]*7611997, he took 111 tubexes (vials) of Meperi-dine, 73 vials of Morphine, and one vial of Versed, for his own use. All three of these drugs are controlled substances. He used the Morphine and Meperidine to alleviate withdrawal symptoms caused by his drug addiction. In addition, the appellant withdrew portions of the contents of 22 vials of Meperidine and 3 bottles of Morphine. He replaced the drugs with a sterile saline solution, thereby diluting the drugs, then returned the vials and bottles to the drug storage unit. On 3 August 1997, while at work in the ICU and in uniform, the appellant injected himself with Versed.

II. PLAIN ERROR

Two of the appellant’s assertions of error are raised pursuant to United States v. Gros-tefon, 12 M.J. 431 (C.M.A.1982). The appellant first complains that the military judge erred by instructing the members that he had taken judicial notice of certain facts and that

[Military confinement facilities are required to make available mental health care professionals to assist in treating prisoners presenting personality or psychiatric disorders and that treatment for substance abuse is commonly available to military confinees. You may consider these matters and give them whatever weight you deem appropriate in adjudging a sentence in this case.

The appellant then complains that the assistant trial counsel erred by arguing that “the judge will instruct you that in our confinement facilities, he will be able to continue with his rehabilitation. He will be able to get therapy. There are narcotic classes.”

Before addressing these specific issues, however, we note that trial defense counsel did not object to either the instruction or argument. Absent a timely objection, an error in sentencing instructions waives any error that does not rise to the level of “plain error.” Rule for Courts-Martial (R.C.M.) 1005(f); United States v. Griffm, 25 M.J. 423, 425 (C.M.A.1988). Similarly, absent plain error, a failure to object to argument at trial waives the issue on appeal. R.C.M. 1001(g); United States v. Ramos, 42 M.J. 392, 397 (1995). Therefore, in order for the appellant to prevail, he must demonstrate the existence of “plain error.”

A. Plain Error in the Courts of Criminal Appeals

In United States v. Olano, 507 U.S. 725, 732-34, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), the Supreme Court set forth a simple three-part definition for plain error: (1) Error, (2) that is plain, that is clear or obvious, and (3) affects a substantial right of the accused. Later, the Court explained that even if the test for plain error is met, an appellate court need not take corrective action unless the error also “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997).

In 1998, the United States Court of Appeals for the Armed Forces (USCAAF) held that the Olano definition of plain error has only limited applicability in the Courts of Criminal Appeals. United States v. Powell, 49 M.J. 460 (1998). Specifically, USCAAF pointed out that service courts of criminal appeals are not discretionary and that the Federal Rules of Criminal Procedure (Fed. R.Crim.P.) do not apply to us.1 Id. at 464. Thus, the Olano definition of plain error, which was based on Fed.R.Crim.P. 52(b), is of limited value to us because the Military Rules of Evidence “are somewhat different,” and our own rules are more demanding. Id. at 464; see Article 59(a), UCMJ, 10 U.S.C. § 859(a), and Mil.R.Evid. 103(d).

B. The Impact of Article 66(c) on the Plain Error Analysis

It is clear from the language of Article 66(c) that our Court has much broader authority than most courts of appeals.

[762]*762In a case referred to it, the Court of Criminal Appeals may act only with respect to the findings and sentence as approved by the convening authority. It may affirm only such findings of guilty and the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved. In considering the record, it may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses.

Article 66(c), UCMJ, 10 U.S.C. § 866(c) (emphasis added).

We are not limited to reviewing questions of law, but are required to determine the facts as well. How we evaluate those facts is largely up to us, although we must review the entire record and, when “considering the record,” we are admonished to recognize “that the trial court saw and heard the witnesses.” As a result, we have long exercised our fact-finding authority to determine the facts of a case without being bound by the facts found by the military judge. United States v. Cole, 31 M.J. 270, 272 (C.M.A.1990) (courts of criminal appeals may use their fact-finding powers to substitute their own judgment for that of the military judge). Similarly, we test for factual sufficiency of the evidence by asking whether or not we are ourselves convinced of the appellant’s guilt beyond a reasonable doubt. United States v. Turner, 25 M.J. 324, 325 (C.M.A.1987).

On the other hand, Article 66(c) provides no specific guidance for when or how we exercise our authority to determine whether the findings and sentence are correct in law.

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Bluebook (online)
52 M.J. 758, 2000 CCA LEXIS 42, 2000 WL 283203, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-boyd-afcca-2000.