United States v. Douglas

1 M.J. 354, 1976 CMA LEXIS 5650

• Court: United States Court of Military Appeals
• Decided: March 19, 1976
• Docket: No. 30,946
• Status: Published

Opinions

OPINION OF THE COURT

FLETCHER, Chief Judge:

At his trial by general court-martial on charges of indecent exposure and communicating obscene language to a female,¹ the appellant objected to the Government’s key proffer of evidence, a transcript of the alleged victim’s testimony offered during the Article 32 investigation.² As a preliminary matter, the prosecution first established the requisite unavailability of the witness through live testimony of the victim’s first sergeant as well as morning report entries which demonstrated the witness’ absence without authority from her unit. United States v. Obligacion, 17 U.S.C.M.A. 36, 37 C.M.R. 300 (1967). In addition, the Government offered testimony to prove that the accused was represented by counsel who was afforded full opportunity to cross-examine during the Article 32 hearing. United States v. Ledbetter, 18 U.S.C.M.A. 67, 39 C.M.R. 67 (1968). See also Mancusi v. Stubbs, 408 U.S. 204, 213, 92 S.Ct. 2308, 33 L. Ed.2d 293 (1972); Pointer v. Texas, 380 U.S. 400, 407, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965).

To establish the completeness of the Article 32 transcript, the prosecutor called Specialist Four John Rigg, who testified that he was the “legal clerk who took down notes at the investigation.” Specialist Rigg went on to indicate that he did not put down every word that was said but merely summarized thoughts and ideas. He later summarized these notes into “a coherent, smoothly flowing narrative” which the investigating officer authenticated. It is this “summarization of a summarization” which the accused challenged as nonverbatim and hence inadmissible former testimony.³

In overruling the defense objection, the trial judge concluded that this Court’s decision in United States v. Norris, 16 U.S.C.M.A. 574, 37 C.M.R. 194 (1967), requiring that such testimony be verbatim, had been modified to a lesser standard of completeness by paragraph 145b of the present Manual ⁴ which was promulgated after our decision in Norris.

While Article 36 of the Uniform Code does confer upon the President authority to prescribe rules of court-martial procedure “which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts,” such rules “may not be contrary to or inconsistent with [the Uniform Code of Military Justice].”⁵ Thus, it is not enough to state that the Manual modified a decision of this Court. The inquiry must proceed to an examination of whether the Manual provision itself is in conflict with the Code.

Interpreting Article 54, Uniform Code of Military Justice, 10 U.S.C. § 854, this Court has long required that the proceedings of a general court-martial such as the one before us be substantially verbatim. United States v. Webb, 23 U.S.C.M.A. 333, 49 C.M.R. 667 (1975); United States v. Boxdale, 22 U.S.C.M.A. 414, 47 C.M.R. 351 (1973) ; United States v. Nelson, 3 U.S.C.M.A. 482, 13 C.M.R. 38 (1953). Necessarily included within this concept is the requirement that the testimony of the principal government witness be verbatim, whether it be live testimony or prior testimony. It would be incongruous to bar a trial judge’s reconstruction of a witness’ testimony while at the same time allowing an Article 32 clerk’s resummarized transcript to qualify as verbatim testimony. United States v. Randall, 22 U.S.C.M.A. 591, 48 C.M.R. 215 (1974) . See also United States v. Weber, 20 U.S.C.M.A. 82, 42 C.M.R. 274 (1970). The trial judge, therefore, erred in admitting the transcript into evidence. United States v. Ledbetter, supra; United States v. Norris, supra. To the extent that paragraph 145b, Manual for Courts-Martial, United States, 1969 (Rev), relaxes the statutory requirement that the record of trial be verbatim, it exceeds the President’s authority under Article 36, UCMJ, and is inoperative. Exclusion of the victim’s Article 32 testimony leaves insufficient evidence to warrant a rehearing.⁶

The decision of the United States Army Court of Military Review is reversed. The findings of guilty and the sentence are set aside. The charges are ordered dismissed.

Senior Judge FERGUSON concurs.

1 . A charge alleging indecent liberties with a minor was dismissed by the trial judge on sufficiency grounds.

2 . Article 32, Uniform Code of Military Justice, 10 U.S.C. § 832.

3 . Our disposition of this assignment of error makes it unnecessary to decide the additional issue granted.

4 . Manual for Courts-Martial, United States, 1969 (Rev).

5 . See generally United States v. Ware, No. 30,-468, 1 M.J. 282 (1976); United States v. McFadden, 19 U.S.C.M.A. 412, 42 C.M.R. 14 (1970); United States v. Johnpier, 12 U.S.C.M.A. 90, 30 C.M.R. 90 (1961).

6 . Before authorization of a rehearing is appropriate, there must exist sufficient evidence at the time of the original trial to conclude that the Government might prevail at a rehearing even absent the excluded testimony or evidence. To adopt the dissent’s approach of examining potentially available evidence at the time of appeal would allow the Government impermissibly to benefit from its own error and thereby to profit from the lengthy appellate process.