United States v. Brister

12 M.J. 44, 1981 CMA LEXIS 12372

• Court: United States Court of Military Appeals
• Decided: October 26, 1981
• Docket: No. 41,424; ACM S24988
• Status: Published

Opinions

Opinion of the Court

PER CURIAM:

In a trial by military judge sitting alone as a special court-martial, appellant was found guilty of desertion from February 5, 1980, until March 17, 1980, when appellant was apprehended by civil authorities in Austin, Texas. He was sentenced to confinement at hard labor for 147 days, partial forfeitures, reduction to the lowest enlisted grade, and a bad-conduct discharge. The findings and sentence have been approved by the convening and supervisory authorities, and affirmed by the United States Air Force Court of Military Review. We granted review of a single issue on September 2, 1981.

After the findings of guilty were returned, the Government offered in evidence prosecution exhibit 11 — the Unfavorable Information Files maintained on appellant by his unit. Among the 32 pages of this exhibit was a letter of reprimand dated April 14, 1980, which referred to a report “that. . . when arrested by the Travis County Sheriff’s Department, on or about 17 Mar 80,” appellant “had in [his] possession... a quantity of approximately 12 pounds of marihuana and associated paraphernalia.” The letter continues, “Although these materials were discovered during an illegal search procedure by civilian law enforcement authorities, this in no way detracts from the seriousness of the offense.”

During his initial argument on sentence, trial counsel referred to appellant’s “life style” as evidenced by the “12 pounds of marihuana and paraphernalia in his possession.” He also observed, “It is apparent that this quantity of marihuana is not for personal use.” After defense counsel had argued, trial counsel in his final argument on sentence once again adverted to the “12 pounds of marihuana.”

The letter of reprimand was inadmissible. United States v. Boles, 11 M.J. 195 (C.M.A.1981). Even though defense counsel did not object to prosecution exhibit 11 or to trial counsel’s argument, we conclude that appellant is entitled to relief, for the manner in which this inadmissible evidence was used by trial counsel clearly would tend to prejudice the appellant as to the sentence imposed.

Accordingly, the decision of the United States Air Force Court of Military Review is reversed as to the sentence. The record of trial is returned to the Judge Advocate General of the Air Force for submission to the Court of Military Review for reassessment of the sentence.