United States v. Gibson

27 M.J. 736, 1988 CMR LEXIS 934, 1988 WL 130601
CourtU.S. Army Court of Military Review
DecidedNovember 30, 1988
DocketACMR 8800401
StatusPublished
Cited by2 cases

This text of 27 M.J. 736 (United States v. Gibson) is published on Counsel Stack Legal Research, covering U.S. Army 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. Gibson, 27 M.J. 736, 1988 CMR LEXIS 934, 1988 WL 130601 (usarmymilrev 1988).

Opinion

OPINION OF THE COURT

THORNOCK, Senior Judge:

The appellant was tried by a military judge sitting as a general court-martial convened by the commander of the 25th [737]*737Infantry Division (Light) in Hawaii. Pursuant to a pretrial agreement allowing for mixed pleas, he pleaded guilty to forcible sodomy upon his five-year-old son in violation of Article 125, Uniform Code of Military Justice, 10 U.S.C. § 925 (1982) [hereinafter UCMJ], and not guilty to committing indecent acts upon his three-year-old daughter in violation of Article 134, UCMJ, 10 U.S.C. § 934 (1982).

He was convicted of the sodomy offense on his guilty plea. The government presented evidence on the indecent acts offense and he was found guilty of that offense as well. He was sentenced by the military judge to a dishonorable discharge, confinement for twenty years, forfeiture of $320.00 pay per month for twenty years, and reduction to Private E-l. In accordance with a pretrial agreement, the convening authority approved the sentence, but suspended the confinement in excess of five years for a period of two years from the date of the appellant’s release from confinement with a provision for automatic remission.

The facts of this case are not in dispute. The appellant assigns as error that the pretrial agreement was contrary to both public policy and statute and is therefore void, rendering the findings and sentence invalid. We disagree and affirm.

The operative assertions by the appellant center on a somewhat unusual pretrial agreement. The agreement had two distinctive features. First, it provided for mixed-pleas without the requirement of a stipulation of fact and allowed the government to present evidence on the not guilty plea. Secondly, it provided that the appellant would “waive any and all evidentiary objections based on the Military Rules of Evidence to any pretrial statements made by my children, [D] and [D].” (Appellate Exhibit II.) The record does not reveal the negotiations of the parties concerning the mixed-plea portion of the agreement, except as to the clear assertion that the agreement originated with defense. Mixed-plea and waiver pretrial agreements are not the norm, but obviously they can serve useful purposes in judicial economy, as well as protecting provident guilty pleas and strengthening accused’s negotiation positions.

In the case sub judice, it is clear that there was a mutual benefit derived by the defense-initiated provision of waiver. It removed impediments to the government’s presentation of credible evidence by children of tender years who had been victimized by their father. It eased further emotional travail to the victims and their family, including no doubt their father, and it provided the appellant a sentence limitation that was far less than the maximum. The wisdom of both sides of the bargain was amply shown at trial by the testimony of the victims and the conduct of counsel, as well as by the convening authority’s reduction of the appellant’s sentence by fifteen years after the trial. Under the circumstances of this case, public policy most certainly was vindicated rather than violated. See United States v. Jones, 23 M.J. 305 (C.M.A.1987) (military judge should establish on the record that provision in a pretrial agreement in which accused waives certain rights voluntarily originated with accused).

Both Jones and United States v. Holland, 1 M.J. 58 (C.M.A.1975), loudly sound caution to all parts of the military justice system that pretrial agreements which forego or waive procedures or matters that benefit an accused will be scrutinized for propriety. Further, it is mandated military law that the pretrial agreement must be a “freely conceived defense product,” Jones, 23 M.J. at 306, and “attempts to orchestrate the trial proceeding itself will be rebuffed.” Id. at 307 (citing Holland ). See also United States v. Zelenski, 24 M.J. 1 (C.M.A.1987) (Guilty plea not invalidated where pretrial agreement with provision waiving trial by court-martial composed of members where provision was freely conceived defense product.); United States v. Green, 1 M.J. 453 (C.M.A.1976) (Military judge must ascertain, inter alia, that an accused understands the meaning and effect of each condition of a pretrial agreement.); and United States v. Allen, 25 C.M.R. 8 (C.M.A.1957) (The pretrial [738]*738agreement cannot transform the trial into an empty ritual.). In the instant case, all required conditions were satisfied. The military judge made a careful initial providence inquiry, noted the waiver provision and ruled that it was providently made.1 In part, the inquiry included the following:

MJ: Okay. Now this agreement says that in addition to your plea of guilty, the pleas that you have already entered, you will waive any evidentiary objections to the admission into evidence of pretrial statements made by either [D], or [D], your children. Now first of all, do you understand what I just said?
ACC: Yes, sir.
MJ: You see, we have rules about what can be considered in a trial by court-martial; these are rules of evidence, and those rules say that some things can’t be considered. And it may be that those rules will say that some of the things or all of the things that your children might say or might have said to other people would not be admissible, could not be considered as evidence against you in your trial. Do you understand that?
ACC: Yes, sir.
MJ: What this says is that you’re going to give up any argument or contention that that is so, and you’re going to basically allow the government to introduce any statements made by your children, either in court or previously. Do you understand that?
ACC: Yes, sir.
MJ: Now, you would be giving up the right to make those objections; you’d probably be giving up the right to confront the witnesses against you. And this would not only pertain to the offense to which you’ve plead guilty, but to the other offenses with which you’re charged ... Do you understand that?
ACC: Yes, sir.
MJ: Now, do you understand that you would be giving up the right to keep out any statements either of those children have made about any offenses of this nature, whether such statements were made in court or out of court; at the time of your trial or previously?
ACC: Yes, sir.
MJ: Is that clear to you?
ACC: Yes, sir.
MJ: All right. Now that’s what this waiver means. All of that comes in, and may not only be considered with respect to the offense to which you’ve pled guilty today, but may also be considered as evidence against you concerning these other offenses with which you’re charged. Do you understand all that?
ACC: Yes, sir.
MJ: Is that what you meant to have happen as part of this agreement?
ACC: Yes, sir.

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Related

United States v. Gibson
29 M.J. 379 (United States Court of Military Appeals, 1990)
United States v. Helweg
29 M.J. 714 (U.S. Army Court of Military Review, 1989)

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Bluebook (online)
27 M.J. 736, 1988 CMR LEXIS 934, 1988 WL 130601, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-gibson-usarmymilrev-1988.