United States v. Gibson

29 M.J. 379, 1990 CMA LEXIS 7, 1990 WL 5599

• Court: United States Court of Military Appeals
• Decided: February 13, 1990
• Docket: No. 61,678; CM 8800401
• Status: Published

Opinions

Opinion of the Court

SULLIVAN, Judge:

During December 1987 and January 1988, appellant was tried by a general court-martial composed of a military judge sitting alone at Schofield Barracks, Hawaii. In accordance with his pleas, he was found guilty of forcible sodomy on his 5-year-old son, in violation of Article 125, Uniform Code of Military Justice, 10 USC § 925. Contrary to his pleas, he was found guilty of indecent acts with his 3-year-old daughter, in violation of Article 134, UCMJ, 10 USC § 934. He was sentenced to a dishonorable discharge, confinement for 20 years, forfeiture of $320.00 pay per month for 20 years, and reduction to the lowest enlisted grade. The convening authority, acting pursuant to a pretrial agreement, approved the sentence as adjudged but suspended confinement in excess of 5 years for a period of 2 years after appellant’s release from confinement, with provision for automatic remission. The Court of Military Review affirmed the findings and sentence. 27 MJ 736 (1988).

This Court granted the following issue for review:

WHETHER APPELLANT’S PRETRIAL AGREEMENT WAS CONTRARY TO PUBLIC POLICY AND STATUTE AND WAS VOID, RENDERING THE FINDINGS AND SENTENCE INVALID.

We hold that this agreement, as applied by the military judge, was neither invalid nor substantially prejudicial to appellant’s rights. United States v. Jones, 23 MJ 305 (CMA 1987); Art. 59(a), UCMJ, 10 USC § 859(a).

Prior to trial, appellant agreed to plead guilty to attempted forcible sodomy on his son. However, he reserved the right to plead not guilty to the charge of committing forcible sodomy on his son and indecent acts with his daughter. The Government reserved the right to proceed on both original charges. Appellant’s agreement also stated:

I agree to waive any and all evidentiary objections based on the Military Rules of Evidence to any pretrial statements made by my children, [his son and daughter].

The military judge explained this provision to appellant in terms of its meaning and effect on the unresolved charges. He also assured himself that appellant proposed and voluntarily agreed to this provision.

Later in the trial, appellant amended his plea to guilty of forcible sodomy on his son. The Government then proceeded to prove the indecent-act offense. The mother of the victim was questioned by the prosecutor as follows:

Q. Okay. Was there anything else that [D] told you about these incidents?

A. Well, after she had first told me about it and I dried her off, we went into my bedroom.

A. She told me the same story again, the exact same thing. And since we’ve been in Florida, right before we came over here, she told me that daddy had put a sock in her mouth and he took her into my room and she told me he had put his meat back-there, she was pointing to her butt area.

DC: That gets into an area of uncharged misconduct at this point.

MJ: What’s your position?

TC: I agree, sir, that is uncharged misconduct.

MJ: Well, I don’t; he’s charged with fondling her and placing his hands upon her private parts. It seems to me it falls within that. Now, if this is something the Government doesn’t intend to rely on, fine, we won’t deal with it. What’s the case?

TC: The Government doesn’t intend to rely on it, sir.

MJ: Okay, go ahead.

DC: I want to make clear that if the Government feels that they want to rely on it, I don’t intend to make an evidentiary objection, as I agreed I wouldn’t make an evidentiary objection, okay. If they want to rely on it, I’ll withdraw that objection.

MJ: Well, they don’t, so ...

DC: If they want to change their mind, they can.

MJ: What’s the pretrial agreement; what exactly are the terms again?

DC: It basically says that I won’t make any evidentiary objections to pretrial statements by the — well, any pretrial statements by the children or — to anybody.

I was not — that allegation didn’t come up until after the pretrial agreement.

MJ: Well, the intent of the thing was not to object — not to interpose hearsay or confrontation objections, correct?

DC: I believe it was stated as objections under the Rules of Evidence, so it’s pretty broad, Your Honor.

MJ: Well, I don’t think such an agreement — an agreement that broad would be enforceable. If it’s irrelevant, if it deals with uncharged misconduct, I think that you have to be free to object or we might as well not have a trial, which is the ultimate test of the acceptability of the terms of a pretrial agreement.

DC: Yes, sir.

MJ:- Now, I’m perfectly well prepared to honor an agreement that says that you’re going to waive confrontation and hearsay objections; that’s what we went over, and you told me you had tactical reasons for that, and so on and so forth, but I don’t think you’re muzzled,- and I want — I think you — the record needs to show that you understand that you’re clear, you’re free to make any other objections. Would you not agree?

TC: Yes, sir, I agree with that.

MJ: Okay, fine. All right, that’s prospective. You’ve been under no misapprehension up to now, I take it?

DC: No, sir, I have not. I’m just — I’m treading—

MJ: Yeah, I understand. Okay, good. Go right ahead, please.

(Emphasis added.)

The victim, appellant’s 3-year-old daughter, testified at this court-martial that he engaged in indecent acts with her. Appellant’s wife, a military police investigator, and a civilian social worker also testified that the victim told them on different occasions that her father had engaged in indecent acts with her. The defense had introduced in evidence a videotape interview of the victim by a social worker in which the former failed to confirm that her father had engaged in indecent acts with her. The defense also introduced testimony of the wife that the victim later said that her daddy had not hurt her.

In United States v. Jones, 23 MJ 305, this Court addressed the propriety of including a waiver of certain pretrial motions as part of a defense proposed pretrial agreement. See generally RCM 705(c), Manual for Courts-Martial, United States, 1984.¹ The provision in Jones said:

I also agree and understand that in addition to my plea as specified below, my defense counsel will not make any motions contesting the legality of any search and seizure out of which evidence against me may have been directly or indirectly obtained, or motions challenging any legality of any out-of-court identification.

In that case, although the accused pleaded guilty to all the charges against him, he might still have raised such motions and appealed their denial on a conditional basis. United States v. Jones, supra at 307 n.l; cf. RCM 910(a)(2). In appellant’s case, we have mixed pleas (see RCM 910(a)(1)) and a similar waiver provision which would additionally impact on the trial of a charge to which he pleaded not guilty. Cf. United States v. Cummings, 17 USCMA 376, 380, 38 CMR 174, 178 (1968).

Despite this distinction, review of the decision in Jones still suggests the standard by which the lawfulness of this provision can be measured. There, a majority of the Court held that an otherwise valid guilty plea will rarely, if ever, be invalidated on the basis of plea-agreement provisions proposed by the defense. United States v. DeYoung, 29 MJ 78, 81 (CMA 1989); United States v. Zelenski, 24 MJ 1 (CMA 1987). The rationale for this holding is that, absent government overreaching, it may be presumed that an accused and his counsel know what is fair to him and in “his best interest.” United States v. Jones, supra at 308.

On the contrary, where the Government directly or indirectly proposes the terms, we have stated: “Only actions which may reasonably be construed as attempts to orchestrate the trial proceeding itself will be rebuffed.” Id. at 307. As noted in footnote 4 of that opinion, the idea was to prevent the Government from turning the “trial proceedings into ‘an empty ritual.’ ”

Turning to appellant’s case, we note that he proposed the challenged plea-agreement provision. Moreover, its purpose and effect have not otherwise been shown to be barred by statute or regulation. Accordingly, public policy does not require that the guilty pleas induced by this defense-originated provision be invalidated. See generally United States v. Papaleo, 853 F.2d 16, 19 (1st. Cir.1988); United States v. McGovern, 822 F.2d 739, 743-44 (8th Cir.), cert. denied, 484 U.S. 956, 108 S.Ct. 352, 98 L.Ed.2d 377 (1987).

In any event, the military judge sua sponte construed this somewhat awkwardly-worded provision² in a narrow fashion. He limited its application to confrontation and hearsay objections which appellant might make to evidence of out-of-court statements made by the victims.

We note, however, that the child victim involved in the only contested charge actually testified in this case (cf. United States v. Quick, 26 MJ 460 (CMA 1988)), and she was obviously available for cross-examination by the defense about her pretrial statements. In this context, possible objection on confrontation grounds to other government witnesses’ testimony showing these same statements would be without merit. United States v. Owens, 484 U.S. 554, 108 S.Ct. 838, 98 L.Ed.2d 951 (1988). Moreover, hearsay objections would be questionable at best. United States v. Lee, 28 MJ 52, 54 (CMA 1989). See also Mil. R. Evid. 801(d)(1)(B), Manual, supra.

Finally, objections on any other grounds were simply not made despite the military judge’s express invitation to defense counsel to do so. Accordingly, we hold that this provision as applied in this case did not substantially prejudice appellant. Art. (59); cf. United States v. Dawson, 10 MJ 142, 150 (CMA 1981).

The decision of the United States Army Court of Military Review is affirmed.

Judge COX concurs.

1 . (c) Terms and conditions.

(1) Prohibited terms or conditions.

(A) Not voluntary. A term or condition in a pretrial agreement shall not be enforced if the accused did not freely and voluntarily agree to it.

(B) Deprivation of certain rights. A term or condition in a pretrial agreement shall not be enforced if it deprives the accused of: the right to counsel; the right to due process; the right to challenge the jurisdiction of the court-martial; the right to a speedy trial; the right to complete sentencing proceedings; the complete and effective exercise of posttrial and appellate rights.

Discussion

A pretrial agreement provision which prohibits the accused from making certain pretrial motions (see R.C.M. 905-907) may be improper.

(2) Permissible terms or conditions. Subject to subsection (c)(1)(A) of this rule, subsection (c)(1)(B) of this rule does not prohibit an accused from offering the following additional conditions with an offer to plead guilty:

(A) A promise to enter into a stipulation of fact concerning offenses to which a plea of guilty or as to which a confessional stipulation will be entered;

(B) A promise to testify as a witness in the trial of another person;

Discussion

See R.C.M. 704(a)(2) concerning testimonial immunity. Only a general court-martial convening authority may grant immunity.

(C) A promise to provide restitution;

(D) A promise to conform the accused's conduct to certain conditions of probation before action by the convening authority as well as during any period of suspension of the sentence, provided that the requirements of R.C.M. 1109 must be complied with before an alleged violation of such terms may relieve the convening authority of the obligation to fulfill the agreement; and

(E) A promise to waive procedural requirements such as the Article 32 investigation, the right to trial by court-martial composed of members or the right to request trial by military judge alone, or the opportunity to obtain the personal appearance of witnesses at sentencing proceedings.

2 . This Court has in the past discouraged expansive plea-bargaining provisions. See United States v. Dawson, 10 MJ 142, 150 (CMA 1981) (Fletcher, J.); United States v. Cummings, 17 USCMA 376, 380, 38 CMR 174, 178 (1968).