United States v. Greska

65 M.J. 835, 2007 CCA LEXIS 504, 2007 WL 4254620
CourtUnited States Air Force Court of Criminal Appeals
DecidedOctober 22, 2007
DocketACM S30987
StatusPublished
Cited by3 cases

This text of 65 M.J. 835 (United States v. Greska) is published on Counsel Stack Legal Research, covering United States Air Force Court of Criminal Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Greska, 65 M.J. 835, 2007 CCA LEXIS 504, 2007 WL 4254620 (afcca 2007).

Opinion

PER CURIAM:

Contrary to his pleas the appellant was found guilty of conspiracy to commit larceny and burglary, larceny, and burglary in violation of Articles 81, 121 and 129, UCMJ, 10 U.S.C. §§ 881, 921, 929. He was sentenced to a bad-conduct discharge and confinement for 6 months. On appeal he raises four issues:

I. WHETHER THE MILITARY JUDGE ERRED WHEN SHE PERMITTED THE TRIAL COUNSEL TO REPEATEDLY ARGUE TO THE MEMBERS THAT A BAD-CONDUCT DISCHARGE WAS WARRANTED IN ORDER TO DISTINGUISH HIS SERVICE FROM THOSE WHO SERVED HONORABLY.
II. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS’ ORDER THAT APPELLATE DEFENSE COUNSEL PROVIDE AN AVERMENT OF PRIOR COORDINATION BETWEEN APPELLANT AND HIS APPELLATE DEFENSE COUNSEL OR ACKNOWLEDGEMENT THAT APPELLANT CONCURS WITH THE REQUEST FOR AN ENLARGEMENT OF TIME, REQUIRING COUNSEL TO DISCLOSE CONFIDENTIAL INFORMATION IN VIOLATION OF THE PROFESSIONAL RULES OF CONDUCT AND ATTORNEY CLIENT CONFIDENTIALITY AND DUE TO COUNSEL’S REFUSAL TO PROVIDE SUCH INFORMATION THIS HONORABLE COURT PREJUDICED APPELLANT WHEN IT DENIED THE APPELLANT’S REQUEST FOR ENLARGEMENT OF TIME.
III. WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION WHEN, OVER DEFENSE OBJECTION, SHE ADMITTED HEARSAY EVIDENCE ABOUT THE TIME AND DATE STAMP ON A PHOTO IN THE DIGITAL CAMERA.
IV. WHETHER SPECIAL COURT-MARTIAL ORDER NO. 1 IS IMPROPER BECAUSE THERE WAS NO AUTHENTICATION IN ACCORDANCE WITH AIR FORCE INSTRUCTION 51-201.

Background

The appellant was a member of the 343rd Training Squadron and resided in a student dormitory on Lackland Air Force Base, Texas. On the night of 11 November 2004, the [837]*837entire student dorm was ordered to form up and attend a Clint Black concert. Because of the last minute nature of the notification and the fact that there was no training that afternoon, not everyone assigned to the dorm could be contacted in time and a few airmen remained behind. The appellant and two others, Airman (Amn) TK and Amn TT, were among those left in the dorm. Taking advantage of the fact that essentially everyone else was away, the three hatched a plan to break into the rooms of other airmen and steal their personal belongings.1

While one of the group served as a lookout, the appellant and the other airman broke into several rooms and stole certain items, including a digital camera and a video game. They returned to Amn TT’s room and split up their take. Amn TT testified the appellant got a digital camera and a Sony Play Station. The appellant put these items in a blue backpack and went back to his room.

When the other residents of the dorm returned from the concert they reported items were missing from their rooms. The next day a health and welfare inspection was conducted and the backpack containing the digital camera and Sony Play Station was discovered in the appellant’s suitemate’s room.2 The suitemate, Amn AF, testified that the appellant told him the bag contained stolen property and asked him to hold it for him, suggesting it be stored in Amn AF’s car. The property was discovered before it could be placed in the car.3

Sentencing argument

In his first issue on appeal the appellant contends the trial counsel’s sentencing argument was improper, as he argued a bad-conduct discharge was appropriate because the appellant had not served honorably. The appellant also argues that trial counsel erred because he characterized a punitive discharge as either a separation or retention decision. He cites United States v. Hampton, 40 M.J. 457 (C.M.A.1994), United States v. Motsinger, 34 M.J. 255 (C.M.A.1992), and United States v. Ohrt, 28 M.J. 301 (C.M.A.1989), as authority. We disagree with his interpretation of trial counsel’s argument in this case.

The appellant selected several themes from the government’s argument to support his assertions. Although trial defense counsel successfully objected to other themes within trial counsel’s sentencing argument, he did not object to these. The first was trial counsel’s argument that those discharged with an honorable discharge get certain benefits from society such as “better loans” and the fact that “employers look favorably upon [honorable service].” The trial counsel’s point was that a “bad-conduct discharge is also appropriate because prior military service, that’s a privilege. That’s a benefit.”

Trial counsel also argued it was unfair to say to “airmen who act every day with integrity, with honor, who ... sacrifice for our country ... who are over in the desert ... here’s the deal, you’re on the same playing field as the accused[.]”

The appellant also contends trial counsel improperly argued that if a bad-conduct discharge were not adjudged, the members would be sending the message that these were not serious crimes; that you can do these things and still “be a cop in our Air Force.”

Lastly, the appellant claims it was error when the trial counsel argued that the members could send a two-part message by sentencing appellant to a bad-conduct discharge. The first part of the message was “you can[838]*838not commit these crimes and be associated with the Air Force. You are telling [Airman Basic Greska] you have not served honorably.” The second part of the message was to say to “every other airman who knows about this ... you will not do this and serve in the Air Force.”

These arguments can fairly be interpreted as arguing the long-standing principle that the members should consider the nature and seriousness of the offense and the character of the offender when considering a proper sentence. United States v. Barrier, 61 M.J. 482 (C.A.A.F.2005) (citing United States v. Mamaluy, 10 USCMA 102, 27 C.M.R. 176, 1959 WL 3587 (1959)); see also United States v. Erickson, 65 M.J. 221 (C.A.A.F.2007). These are hard-hitting arguments to be sure, but they are not the errors the appellant claims them to be. They are distinguishable from Hampton, Motsinger, and Ohrt because they do not suggest a punitive discharge is appropriate as a means to separate the appellant from the Air Force. The government’s argument can easily be interpreted as saying that the appellant should be discharged with a bad-conduct discharge because it is a proper and fitting punishment for what he did and such a punishment will also deter other airmen from committing similar crimes.

Finally, we note that any error was waived at trial by trial defense counsel’s failure to object at trial. We find that these arguments, even if they were error, did not constitute plain error and the appellant would have received the same results in sentencing even had the arguments not been made. Erickson, 65 M.J. at 225; see also United States v. Powell, 49 M.J. 460 (C.A.A.F.1998); United States v. Ramos, 42 M.J. 392 (C.A.A.F.1995).

Providing an Averment of Prior Coordination

In his second issue the appellant indirectly challenges the legitimacy of this Court’s order to appellate defense counsel to provide an averment of prior coordination with the appellant before we would grant the appellant’s 11th request for enlargement of time.4

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Cite This Page — Counsel Stack

Bluebook (online)
65 M.J. 835, 2007 CCA LEXIS 504, 2007 WL 4254620, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-greska-afcca-2007.