United States v. Desciscio

22 M.J. 684, 1986 CMR LEXIS 2552
CourtU S Air Force Court of Military Review
DecidedMay 8, 1986
DocketACM 25088
StatusPublished
Cited by10 cases

This text of 22 M.J. 684 (United States v. Desciscio) is published on Counsel Stack Legal Research, covering U S Air Force Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Desciscio, 22 M.J. 684, 1986 CMR LEXIS 2552 (usafctmilrev 1986).

Opinion

DECISION

CARPARELLI, Judge:

The appellant was found guilty of distributing cocaine. The approved sentence includes a dishonorable discharge, confinement for twenty months, forfeiture of all pay and allowances, and reduction to airman basic. Appellate defense counsel complain that the military judge ruled on a defense objection in an unrecorded sidebar conference. They argue that the the record of trial is, thus, not substantially verbatim as required by Article 54, Uniform Code of Military Justice, 10 U.S.C. § 854, as that provision has been interpreted in light of its legislative history. See, e.g., United States v. Lashley, 14 M.J. 7 (C.M.A. 1982); United States v. Gray, 7 M.J. 296 (C.M.A. 1979); and United States v. Sturdivant, 1 M.J. 256 (C.M.A. 1976). Government counsel concede that the record is not “substantially verbatim”, but argue that the presumption of prejudice has been rebutted by a clear and convincing showing that the prejudice has been ameliorated. United States v. Eichenlaub, 11 M.J. 239 (C.M.A. 1981); and United States v. Boxdale, 22 U.S.C.M.A. 414, 47 C.M.R. 351 (1973). We find the record is not substantially verbatim because it provides no account of the sidebar conference regarding appellant’s objection. We also find that the government has not rebutted the presumption of prejudice.

The pertinent portion of the record reads as follows:

Q. All right, what happened after you told him this “snow bunny” story?
A. Well, normally if I told someone that story I would feel like I was close enough to ask them about drugs. But I didn’t feel like he trusted me enough. So I told Special Agent McBride this and, from information that I had supplied him before, we had made up a story that Airman Desciscio had gone over to this guy named Tim’s room, lived in the barracks ...
DC: Your Honor, I’m going to have to object to this and request a brief out-of-court hearing — out-of-board hearing.
MJ: Will counsel for both sides approach the bench?
RPTR: Will this be a recorded side bar?
MJ: Unrecorded side bar.
(Trial counsel, assistant trial counsel, defense counsel and military judge hold a side bar discussion out of the hearing of the parties present.)
MJ: There was an unrecorded side bar between the Judge and the trial counsel and defense counsel.
TC: May I continue, Your Honor?
MJ: Yes, you may.
Questions continued by Trial Counsel:
Q. Airman Deal, we were at the point where you said you told Agent McBride you didn’t feel close enough and that you and Agent McBride were talking. Now what was that conversation about?
A. That conversation was about some information that I had told Special Agent McBride about earlier, about July of ‘83.

[687]*687Because the sentence in this general court-martial includes a punitive discharge and confinement and forfeitures greater than could be given by a special court-martial, a verbatim record is required. Article 54(a), U.C.M.J.; and R.C.M. 1103(b)(2)(B). The record before us reveals that trial defense counsel objected during direct examination of Airman Deal. It does not indicate that he objected when the military judge decided to proceed off the record. Notwithstanding R.C.M. 801(g), we have concluded that the requirement for a verbatim record is jurisdictional and, therefore, was not waived by counsel’s failure to object to the procedure.1 See United States v. Whitney, 23 U.S.C.M.A. 48, 48 C.M.R. 519 (1974).

As a result of the judge’s decision to proceed unrecorded, the record of trial does not reveal the nature of the appellant’s objection, the specific testimony which was in dispute, or the ruling of the military judge. These omissions harm the appellant by failing to preserve his objection and the judge’s ruling for appellate review. See United States v. Thompson 22 U.S.C.M.A. 448, 47 C.M.R. 489, 494 (1973). Therefore, although the sidebar conference may have been brief, the quality of the omitted matters was substantial. Given the substantial quality of the omissions, the military judge could not properly invoke R.C.M. 802(a). That rule permits non-verbatim conferences regarding matters that will promote a fair and expeditious trial. Unrecorded rulings regarding objections to testimony do not promote a fair trial. United States v. Lashley, 14 M.J. 7, 8-9 (C.M.A. 1982); see R.C.M. 801(f); United States v. Gray, 7 M.J. 296, 297 (C.M.A. 1979); United States v. Sturdivant, 1 M.J. 256 (C.M.A. 1976); United States v. Richardson, 21 U.S.C.M.A. 383, 45 C.M.R. 157 (1972); and Discussion accompanying R.C.M. 1103(b)(2)(B).

Substantial omissions from a verbatim record give rise to a presumption of prejudice. United States v. Boxdale, 22 U.S.C.M.A. 414, 47 C.M.R. 351 (1973). See Article 54(a), U.C.M.J.; R.C.M. 1103(b)(2)(B); Lashley, supra. The burden of overcoming this presumption rests with the government. Boxdale, supra.

In an effort to overcome the presumption of prejudice, the government refers to two affidavits that the staff judge advocate forwarded to this court four months after the trial, copies of which he also sent to trial defense counsel. The disputed omissions from the record occurred on 8 August 1985. The first affidavit is dated 19 November 1985 and reflects the prosecutor’s recollection. The second affidavit is dated 9 December 1985 and contains the military judge’s recollection. The judge’s affidavit states, in pertinent part:

Since there was no apparent basis for the objection, I conducted a sidebar conference that was unrecorded. Defense counsel explained the answer would involve uncharged misconduct. Trial counsel made an offer of proof that Deal would testify that he convinced the accused they had used drugs together about two years earlier, although they actually had not. This apparently had been instrumental in persuading the accused to procure drugs for Deal later. The defense counsel agreed that that was what Deal would say and that was what he found objectionable. I overruled the objection on the basis that an event that never took place could not be uncharged misconduct, explaining that rationale to counsel, and then told trial counsel he could continue his examination.

The judge’s affidavit is not a substantially verbatim reconstruction of the record and does not purport to be such. Cf. Lashley, 14 M.J. at 9; United States v. Eichenlaub, 11 M.J. 239 (C.M.A. 1981); Gray, supra; Sturdivant, supra; and United States v. Spring, 15 M.J. 669 (A.F.C.M.R. 1983), aff'd, 17 M.J. 436 (C.M.A. 1984). [688]*688Consequently, it does not prevent the presumption of prejudice from arising. Indeed, the government has expressly conceded this.

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Cite This Page — Counsel Stack

Bluebook (online)
22 M.J. 684, 1986 CMR LEXIS 2552, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-desciscio-usafctmilrev-1986.