United States v. Davis

33 M.J. 13, 1991 CMA LEXIS 835, 1991 WL 148932
United States Court of Military Appeals·Decided August 9, 1991·No. No. 64,489; ACM 27871·Published·Cited by 8 cases

Opinions

Opinion of the Court

EVERETT, Senior Judge:

Pursuant to his pleas, a general court-martial at Carswell Air Force Base, Texas, convicted Davis of twice committing sodomy by force with children under the age of 16 and of committing indecent acts on two other occasions with children under the age of 16, in violation of Articles 125 and 134, Uniform Code of Military Justice, 10 USC §§ 925 and 934, respectively. The court members sentenced the accused to a dishonorable discharge, confinement for 22 years, total forfeitures, and reduction to E-l.

Under the terms of a pretrial agreement, the convening authority approved the sentence except for reducing the confinement to 15 years; but the Court of Military Review set aside the convening authority’s action. 29 MJ 1004 (1990). The Government then moved unsuccessfully for reconsideration of the court’s decision. Thereafter, pursuant to Article 67(a)(2), UCMJ, 10 USC § 867(a)(2)(1989), the Judge Advocate General of the Air Force certified to us this issue for review:

[14]*14WHETHER THE AIR FORCE COURT OF MILITARY REVIEW ERRED BY HOLDING THAT THE CONVENING AUTHORITY COULD NOT RELY ON A SYNOPSIS OF A 35-40 MINUTE VIDEOTAPE SUBMITTED AS PART OF A CLEMENCY PACKAGE AND, INSTEAD, WAS REQUIRED TO VIEW THE TAPE IN ITS ENTIRETY.

I

On the day the accused’s court-martial ended, trial counsel gave him written notice that, having “been convicted and sentenced by a court-martial,” he had “the right to submit matters to the convening authority ... for consideration before the convening authority” took “final action on” the case. The prosecutor also advised the accused that “[t]he matters you submit may include any matters which might affect the convening authority’s decision whether to approve or disapprove any findings of guilty or any part of the sentence in your case.” (Emphasis added.) He further elaborated that “[t]hese matters may include,” inter alia, “[a]ny other matters which you or your counsel believe the convening authority should be aware of before the action is taken in your case, whether or not it was available or introduced into evidence at your trial.” Finally, trial counsel stated that “[a]ll matters you submit will be considered by the convening authority before the action is taken in your case.”

Later the staff judge advocate served on Airman Davis a copy of the post-trial recommendation which he had prepared for the convening authority. In turn, Davis submitted numerous clemency matters, including a 35-40 minute videotape of himself and several letters and notes written by him, his family members, and friends.

In response to the clemency matters, the staff judge advocate prepared an addendum to his post-trial recommendation to the convening authority and gave this advice about the videotape which Davis had submitted:

Those matters include a videotape of Airman Davis discussing his molestation as a child, how he was mistreated as a child, and the molestation of the children of which he was convicted. The videotape, which is included, is about 40 minutes long. Airman Davis is frequently tearful and highly emotional in it, and the experience of recounting the incidents of abuse in his childhood and their effect is clearly traumatic itself. However, except for the evident distress it depicts, the videotape is redundant of Airman Davis’ unsworn statement at pages 131-137 of the record of trial, which accompanies this addendum. You are not required to view the videotape. The right of a convict to submit matters related to clemency is limited to written matters, RCM 1105(b), just as videotape is not an acceptable substitute for a transcribed record of trial. See United States v. Barton, 6 MJ 16 (CMA 1978). Nonetheless, the videotape accompanies this addendum, and you may view it if you wish.

(Emphasis added).

Upon receiving the staff judge advocate’s post-trial recommendation and the addendum, the convening authority wrote “No” in the margin to the addendum — next to where the staff judge advocate had written, “[Y]ou may view it [the videotape] if you wish.”

Before the Court of Military Review, Davis contended that the staff judge advocate had erred in advising the convening authority that he did not have to review the videotape which the accused had submitted as a clemency matter pursuant to Article 60(b)(1) of the Uniform Code, 10 USC § 860(b)(1). That court concluded that, to the extent RCM 1105(b), Manual for Courts-Martial, United States, 1984, limits an accused to submitting only “written matters” for a convening authority’s consideration, it contravenes Article 60(b) and the legislative history of that Article and, incidentally, is inconsistent with the guidance contained in paragraph 15-7a, Air Force Regulation 111-1, Military Justice Guide (Sep.1988). Accordingly, the court agreed with Davis that the staff judge [15]*15advocate should have advised the convening authority to review this videotape, because Article 60(b) does not contain any restriction on the nature or the form of the matters an accused may submit for the convening authority’s consideration with respect to the findings and sentence. 29 MJ at 1006.

The Court of Military Review then set aside the convening authority’s action in this case; returned the record of trial to the convening authority to resubmit it to his staff judge advocate for preparation of a new recommendation; directed further “consideration by the convening authority of all the matters submitted by” Davis; and ordered “a new action by the convening authority on” Davis’ case after such consideration. Id. at 1007.

II

A

Article 60(b)(1) provides that, after conviction, “[t]he accused may submit to the convening authority matters for consideration by the convening authority with respect to the findings and the sentence.” This codal provision does not state that the “matters” submitted by the accused have to be written.

RCM 1105(b), however, states:
The accused may submit to the convening authority any written matters which may reasonably tend to affect the convening authority’s decision whether to disapprove any findings of guilty or to approve the sentence.

By limiting an accused to submission only of written matters to the convening authority, this Manual provision seems to conflict with Article 60(b)(1).

The Government contends, however, that the President was empowered by Article 36 of the Code, 10 USC § 836, to prescribe the “procedures” by which an accused may submit clemency matters for consideration by the convening authority. Therefore, it says, the accused must follow the procedure set out in RCM 1105(b), which requires the matters submitted to be “written.” Moreover, RCM 1105(b) does correspond generally to paragraph 77a, Manual for Courts-Martial, United States, 1969 (Revised edition), which provided:

After the sentence has been announced, the defense may submit in writing for attachment to the record any matters as to clemency which it desires to have considered by the military judge, the members of the court, or the convening authority. The rules of evidence are not applicable to these matters, but they should not be cumulative of matters presented to the court before the sentence was announced.

However, of the several references in the Drafters’ Analysis of RCM 1105,1984 Manual,

Free access — add to your briefcase to read the full text and ask questions with AI

United States v. Davis, 33 M.J. 13, 1991 CMA LEXIS 835, 1991 WL 148932 (cma 1991).

33 M.J. 13 (United States v. Davis) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

United States v. Henry
76 M.J. 595 (Air Force Court of Criminal Appeals, 2017)
United States v. Rodriguez
Air Force Court of Criminal Appeals, 2014
United States v. Sylvester
47 M.J. 390 (Court of Appeals for the Armed Forces, 1998)
States v. Haire
44 M.J. 520 (U S Coast Guard Court of Criminal Appeals, 1996)
United States v. Lopez
37 M.J. 702 (U.S. Army Court of Military Review, 1993)
United States v. Driver
36 M.J. 1020 (U.S. Navy-Marine Corps Court of Military Review, 1993)
United States v. Crawford
34 M.J. 758 (U S Air Force Court of Military Review, 1992)
United States v. Komorous
33 M.J. 907 (U S Air Force Court of Military Review, 1991)