United States v. Clark

53 M.J. 280, 2000 CAAF LEXIS 866, 2000 WL 1159257
CourtCourt of Appeals for the Armed Forces
DecidedAugust 16, 2000
Docket99-0545/A
StatusPublished
Cited by20 cases

This text of 53 M.J. 280 (United States v. Clark) is published on Counsel Stack Legal Research, covering Court of Appeals for the Armed Forces primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Clark, 53 M.J. 280, 2000 CAAF LEXIS 866, 2000 WL 1159257 (Ark. 2000).

Opinions

Judge EFFRON

delivered the opinion of the Court.

A special court-martial composed of a military judge sitting alone convicted appellant, pursuant to his pleas, of 1 specification each of making false official statements and of making a false claim against the United States, violations of Articles 107 and 132, Uniform Code of Military Justice, 10 USC §§ 907 and 932, respectively. Appellant was sentenced to a bad-conduct discharge, confinement for 2 months, and reduction to pay grade E-1. In accordance with a pretrial agreement, the convening authority only approved so much of the sentence as called for a bad-conduct discharge, 43 days of confinement, and reduction to pay grade E-1. The Court of Criminal Appeals affirmed the findings and sentence in an unpublished memorandum decision.

On appellant’s petition for review of his case, we specified the following issues:

I
WHETHER THE STIPULATION OF FACT (PROS. EX. 1) THAT WAS ADMITTED AS EVIDENCE DURING APPELLANT’S PROVIDENCE INQUIRY VIOLATED MIL.R.EVID. 707 AND UNITED STATES V. SCHEFFER, 523 U.S. 303, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998), BECAUSE IT STATED THAT APPELLANT AGREED TO TAKE A POLYGRAPH TEST AND THE TEST RESULTS REVEALED DECEPTION ON HIS PART.
II
WHETHER APPELLANT’S PRETRIAL AGREEMENT IS ILLEGAL OR VOID BECAUSE IT CONTAINED A STIPULATION TO USE POLYGRAPH EVIDENCE AT APPELLANT’S COURT-MARTIAL IN VIOLATION OF MIL. R.EVID. 707 AND UNITED STATES V. SCHEFFER, 523 U.S. 303,118 S.Ct. 1261, 140 L.Ed.2d 413 (1998).

We affirm for the reasons set forth below.

I. THE REFERENCE TO POLYGRAPH EVIDENCE

A. Factual Setting

Appellant discovered his stereo speakers were missing in November 1997, on the day his household goods were being packed for shipment. Appellant did not attribute the theft to the movers, but assumed that someone had stolen the speakers prior to the move. Rather than reporting the theft, appellant filed a claim on April 22,1998, for loss of personal property during the move, listing the speakers as missing from his shipment.

In May 1998, appellant was interviewed twice by base security personnel about his claim. Each time, he stated that the speakers were missing from his shipment. Appellant agreed to take a polygraph test. When confronted with the polygraph results, he admitted to filing a false claim and lying to the investigator.

' Appellant entered into a pretrial agreement and pled guilty to making a false claim and making false official statements. Appellant was required to agree to “reasonable stipulations concerning the facts and circumstances” of his case.

During the providence inquiry, the military judge reviewed the elements of the offenses, questioned appellant, and received appellant’s description of the events at issue and his admission of guilt. After appellant completed his responses to the providence inquiry, the military judge briefly examined the stipulation of fact, which noted that appellant had agreed to take a polygraph test and that the “test results revealed deception.” He admitted the stipulation into evidence and entered findings of guilty. Appellant made no objections during the providence inquiry.

B. The Legal Setting

Evidence that otherwise would be inadmissible under the Military Rules of Evidence may sometimes be admitted at trial through a stipulation, if the parties expressly agree, if there is no overreaching on the part [282]*282of the Government in obtaining the agreement, and if the military judge finds no reason to reject the stipulation “in the interest of justice.” United States v. Glazier, 26 MJ 268, 270 (CMA 1988). Mil.R.Evid. 707, Manual for Courts-Martial, United States (1998 ed.), creates an express prohibition on use of polygraph evidence in courts-martial. Subsection (a) of the rule provides:

Notwithstanding any other provision of law, the results of a polygraph examination, the opinion of a polygraph examiner, or any reference to an offer to take, failure to take, or taking of a polygraph examination, shall not be admitted into evidence.

The Analysis indicates that the rule was adopted for several reasons, including a concern that the “reliability of polygraph evidence” had not been established and its use in trials could affect “the integrity of the judicial system.” According to the Analysis, Mil.R.Evid. 707 “adopts a bright-line rule that polygraph evidence is not admissible by any party to a court-martial even if stipulated to by the parties.” Manual, supra at A22-49.

The Supreme Court upheld the constitutionality of the per se exclusion of polygraph evidence under Mil.R.Evid. 707 when the rule was challenged as an abridgement of an accused’s right to present a defense. United States v. Scheffer, 523 U.S. 303, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998). In reaching its decision, the Court held that “[t]he approach taken by the President in adopting Rule 707 — excluding polygraph evidence in all military trials — is a rational and proportional means of advancing the legitimate interest in barring unreliable evidence.” Id. at 312,118 S.Ct. at 1266.

C. Discussion

A stipulation of fact, which noted that appellant agreed to take a polygraph test and that he failed the test, was admitted into evidence against appellant during the providence inquiry following his pleas of guilty. Appellant made no objections at his court-martial and raised no issues on appeal. We granted review to determine whether this stipulation and the pretrial agreement, to the extent it required the stipulation, violated the ban on polygraph evidence announced in Mil. R.Evid. 707 and upheld in United States v. Scheffer, supra.

In general, error may not be based upon admission of evidence unless there is a timely objection on the record. Mil.R.Evid. 103(a)(1). However, an appellate court may take notice of plain error even though not brought to the attention of the military judge, if the appellant demonstrates that there was an “error,” that the error was “plain” (“clear” or “obvious”), and that the error “materially prejudice[d] the substantial rights of’ the appellant. United States v. Powell, 49 MJ 460, 463-65 (1998); see MR. R.Evid. 103(d); Art. 59(a), UCMJ, 10 USC § 859(a).

Appellant has met his burden of proving the first two prongs of the plain-error test. Under Mil.R.Evid. 707 and United States v. Scheffer, supra, no evidence relating to polygraph testing may be admitted in a court-martial, even via a stipulation of fact. The mfiitary judge committed a plain and obvious error by admitting the stipulation into evidence during the providence inquiry. As to the final prong of the test, appellant has not persuaded this Court that the error materially prejudiced his substantial rights.

AppeUant argues that the military judge must have considered the polygraph evidence when making his findings and adjudging a sentence because he failed to exclude the impermissible evidence.

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Bluebook (online)
53 M.J. 280, 2000 CAAF LEXIS 866, 2000 WL 1159257, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-clark-armfor-2000.