United States v. Hall

36 M.J. 634, 1992 WL 364285

• Court: U.S. Army Court of Military Review
• Decided: December 8, 1992
• Docket: ACMR 9003107
• Status: Published

Opinion

OPINION OF THE COURT ON REMAND

PER CURIAM:

The appellant was convicted by a military judge sitting as a general court-martial, pursuant to mixed pleas, of two specifications of conduct unbecoming an officer and one specification of sodomy, in violation of Articles 133 and 125, Uniform Code of Military Justice, 10 U.S.C. §§ 933 and 925 (1982). The convening authority approved the adjudged sentence to a dismissal and forfeiture of $1000.00 pay per month for three months.

On 15 November 1991, this Court affirmed the findings of guilty and the sentence. United States v. Hall, 34 M.J. 695 (A.C.M.R.1991). On 23 July 1992, the Court of Military Appeals set aside the decision of this Court. United States v. Hall, 36 M.J. 80 (C.M.A.1992). The Court of Military Appeals remanded the case because Prosecution Exhibit 4, an 8-millime-ter tape of the appellant engaging in sexual intercourse with one woman and having “sexual relations not amounting to intercourse” with another woman was not included with the record of trial. Prosecution Exhibit 5, a videotape which is an authentic “transcription of ... the 8-mil-limeter tape,” which was admitted into evidence, was included. The Court of Military Appeals directed this Court to obtain Prosecution Exhibit 4 and then determine if the absence of this exhibit prejudiced our prior review of this case. If we found prejudice, we were to review the record anew.

On 27 July 1992, this Court directed that Prosecution Exhibit 4 be obtained and permitted counsel to file any additional pleadings in light of the Court of Military Appeals’ order. United States v. Hall, ACMR 9003107 (A.C.M.R. 27 July 1992) (order) (unpub.). Appellate defense counsel submitted the case to this Court on its merits, but in a footnote suggests that the appellant was prejudiced by this Court not viewing Prosecution Exhibit 4. Counsel notes that Prosecution Exhibit 5 does not contain audio and the images are projected at a faster speed than Prosecution Exhibit 4. Counsel further notes that the tape indicates that the appellant and his partner did not engage in anal intercourse.

We have viewed Prosecution Exhibits 4 and 5. We find that the failure to include Prosecution Exhibit 4 did not prejudice our initial review of the case. However, we have reviewed the record once again in its entirety and affirm the findings of guilty and the sentence for the reasons set forth by Judge Hagan in our earlier opinion.

The findings of guilty and the sentence are affirmed.