United States v. Britt

44 M.J. 731, 1996 CCA LEXIS 291, 1996 WL 583722
CourtUnited States Air Force Court of Criminal Appeals
DecidedOctober 3, 1996
DocketACM 31804
StatusPublished
Cited by9 cases

This text of 44 M.J. 731 (United States v. Britt) 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. Britt, 44 M.J. 731, 1996 CCA LEXIS 291, 1996 WL 583722 (afcca 1996).

Opinion

OPINION OF THE COURT

MORGAN, C.H., II, Judge:

This case calls upon us to decide the limits, if any, which may be placed on the contents of an unsworn statement of a convicted accused during the sentencing phase of a court-martial. We hold that the military judge did not abuse her discretion in forbidding appellant, as part of his unsworn statement, from offering his belief that if he were not púnitively discharged, his commander would administratively separate him.

Convicted pursuant to his pleas of unlawful use of methamphetamine, appellant elected to have his sentencing case heard before a general court-martial consisting of members with enlisted representation. In an Article 39(a), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 839(a), session, the trial defense counsel proffered the written statement proposed to be read by appellant to the members. The prosecutor objected to the following sentence, as “inappropriate:”

It is my understanding from conversations with [defense counsel] that if you do not punitively discharge me my commander will administratively discharge me from the Air Force.

Defense counsel responded with the view, now advanced by appellate defense counsel, that during an unsworn statement a convicted accused is entitled to “comment on just about anything.” The military judge sustained trial counsel’s objection, ruling that the unsworn statement is not “an unfettered right.” We agree.

Origin of Unsworn Statement

Founded neither in the constitution nor in statute, the unsworn statement in military criminal practice evolved from a time, prior to 1878, when a military accused was statutorily incompetent to testify on his own behalf.1 That incompetence, along with the fact that [732]*732most accused went unrepresented by counsel, led to the development of the unsworn statement or argument, which until 1878 was the only means whereby an accused could communicate his view of the evidence, and argue his case, prior to findings. See G. Davis, A Treatise on the Military Law of the United States 132-133 (3d ed. rev. 1913). Colonel Winthrop, in his chapter on trial procedure prior to findings, describes the limits of this procedural privilege, which he termed the “concluding statement,” thus:

The testimony on both sides being concluded, either party or both parties — the accused first in order and the judge advocate after him — may present a closing “statement” or address to the court, which may be oral but is commonly read from a writing. While, strictly, the closing of the argument, as of the proof, belongs to the party who has the affirmative of the issue, the order indicated is that now invariably observed in the practice of our courts-martial, whatever be the nature, of the defence, if any, which may be made____ The statement may consist of a brief summary or version of the evidence, with such explanation, or allegation of motive, excuse, matter of extenuation, & c., as the party may desire to offer, or it may embrace, with the facts, a presentation also of the law of the case and an argument both upon the facts and the law.

W. Winthrop, Military Law and Precedents 299 (2d ed. 1920 Revision). Colonel Winthrop notes that “a very considerable freedom” is permitted in this argument, but that it was not unlimited. The accused was permitted to “sharply criticize the testimony as given by the adverse witnesses, and their apparent or supposed animus in giving it, as well as the conduct, motives & c., of the persons through whose acts or at whose instance he has been brought to trial, and especially those of the actual prosecutor or responsible accuser.” But this argument was not to exceed the bounds of proper respect for military decorum, and accused were cautioned against drifting into “gratuitously disrespectful language toward superiors or the court.” Id. Where the statement “manifestly exceeds a reasonable freedom” in an extreme case, the court “may properly report the facts to the reviewing authority for the preferring of charges or other action.” Id. at 300. Leaving no doubt that he was referring to the antecedent to what we know as argument on findings, Winthrop continues:

As to the statement or argument on the part of the prosecution, it is comparatively rare that this becomes subject to criticism on account of gross improprieties of language. Where, however, it exceeds a proper license, the same procedure is to be observed as in the case of a similar address on the part of the accused.

Id. Winthrop reminds practitioners that these statements are not evidence, “nor can it be a vehicle of evidence, or properly embrace documents or other writings, or even averments of material facts, which, if duly introduced, would be evidence.” Id.

Because of its argumentative character, it was “irregular and improper to permit the statement to be sworn to.” Id. at 301.

Winthrop deals with the sentencing procedure much later, in a separate chapter, and in much more abbreviated fashion. Id. at 387. There is no reference to an unsworn statement at this juncture, nor even to argument, nor was the accused afforded any opportunity to put on favorable evidence. The procedure was apparently limited to ascertaining if the convicted accused had any previous convictions. The accused was entitled to contest the admissibility of any such convictions, but that was the limit of his apparent participation in the sentencing phase of the trial. General Order 41 of June 26,1886, rendered consideration of such convictions mandatory, although Colonel Winthrop seemingly allied himself with critics of the practice, inasmuch as it “substantially authorized the introduction of bad character before due foundation had been laid therefor by the introduction of good character on the part of the accused.” Id. at 389.

By the turn of the century, the practice of permitting the accused a statement or argument on the findings was of sufficient importance that The Judge Advocate General of the Army held its denial, even when the accused had testified under oath before find[733]*733ings, to be a fatal abridgement of the accused’s rights. Digest of the Opinions of the Judge Advocate General of the Army 573 (1912). See also Tillotson, Articles of War Annotated 114 (Fifth Rev. Ed.1949).

The 1928 Manual for Courts-Martial codified the practice of having the accused give an unsworn statement, “in denial, explanation, or extenuation of the offenses charged, but this right does not permit the filing of the accused’s own affidavit,” and for the first time, distinguished that statement from the argument of counsel on the merits, which was a discrete part of the pre-findings procedure, and which followed the unsworn statement. Significantly, comment on the liberality afforded 'the content of the statement vanished, a logical outcome of the distinction between an accused’s allocution2 right and the right of defense counsel to comment upon and argue the evidence on findings. A Manual for Courts-Martial, U.S. Army 1928, ¶¶ 76-77 (Corrected to April 20, 1943). The 1928 Manual also codified, for the first time, a pre-sentencing procedure more familiar to modern practitioners.

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Bluebook (online)
44 M.J. 731, 1996 CCA LEXIS 291, 1996 WL 583722, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-britt-afcca-1996.