United States v. Hancock

12 M.J. 685, 1981 CMR LEXIS 586

• Court: U.S. Army Court of Military Review
• Decided: November 30, 1981
• Docket: SPCM 16313
• Status: Published

Opinions

OPINION OF THE COURT

FOREMAN, Judge:

In accordance with his pleas, the appellant was convicted of escape from custody and an unauthorized absence from his unit, in violation of Articles 95 and 86. Uniform Code of Military Justice, 10 U.S.C. §§ 895 and 886 (1976), respectively. He was sentenced to a bad-conduct discharge, forfeiture of $330.00 pay per month for two months, and confinement at hard labor for three months. The convening authority approved the sentence.

After findings the military judge received a copy of the appellant’s DA Form 2-2, Insert Sheet to DA Form 2, Record of Court-Martial Conviction, 1 November 1974, reflecting that on 21 December 1977 the appellant had been convicted by special court-martial of possession of eight ounces of marihuana (Prosecution Exhibit 6) and a copy of the promulgating order pertaining to the same conviction (Prosecution Exhibit 7). Neither document reflected that supervisory review in accordance with Article 65, Uniform Code of Military Justice, 10 U.S.C. § 865 (1976), had been completed. The trial defense counsel affirmatively stated that he had no objection to Prosecution Exhibit 6. He objected to Prosecution Exhibit 7 on the grounds that it was cumulative and that it reflected an offense which had been dismissed, citing Mil.R.Evid. 403, but he made no objection to the lack of the finality entry on the order.

Ordinarily, a promulgating order is prima facie evidence of a conviction even if the finality entry has not been endorsed thereon, if sufficient time has elapsed for completion of supervisory review. However, such prima facie evidence is overcome by a DA Form 2-2 which lacks the entry reflecting the required supervisory review. United States v. Graham, 1 M.J. 308 (C.M.A.1976); United States v. Reed, 1 M.J. 166 (C.M.A.1975). Prior to 1 September 1980, the effective date of the Military Rules of Evidence, defense counsel’s failure to object to evidence of a previous conviction which lacked the entry reflecting completion of supervisory review did not constitute a waiver of the defect. United States v. Heflin, 1 M.J. 131 (C.M.A.1975).

This case was tried after 1 September 1980 in accordance with the Military Rules of Evidence, which envision a broader waiver rule than previously existed. See United States v. Gordon, 10 M.J. 278, 279, n. 1 (C.M.A.1981); United States v. McLemore, 10 M.J. 238, 240 n. 1 (C.M.A.1981); United States v. Beaudion, 11 M.J. 838 (A.C.M.R.1981); United States v. Lockhart, 11 M.J. 603 (A.F.C.M.R.1981); but see United States v. Brister, 12 M.J. 44 (C.M.A.1981) and United States v. Boles, 11 M.J. 195 (C.M.A.1981), (cases tried before the effective date of the Military Rules of Evidence)

* The Military Rules of Evidence contemplate relaxation of the rules of evidence during sentencing. Mil.R.Evid. 1101(c); see 18 U.S.C. 3577 (1976); Fed.R.Crim.P. 32; United States v. Mack, 9 M.J. 300, 316 (C.M.A.1980).

The defects in Prosecution Exhibits 6 and 7 are foundational. The facts regarding the completion of supervisory review of a conviction by court-martial normally are readily available to counsel for either side. The purpose of Rule 103(a) is “to litigate all such matters at the trial level and to permit evidentiary foundational defects to be cured by the offering party if possible.... ” United States v. Taylor, 12 M.J. 561 at p. 562 (A.C.M.R.1981), slip opinion at p. 3. Since the trial defense counsel affirmatively stated that he had no objection to Prosecution Exhibit 6, we hold that the defect arising from the lack of a finality entry was waived. Furthermore, since his objection to Prosecution Exhibit 7 was not based on lack of proof of finality, we hold that this defect likewise was waived. See United States v. Taylor, supra, (Booker objection to record of previous conviction by summary court-martial waived by failure to object); United States v. Beaudion, supra (defects based on illegibility of required entries and signatures on record of nonjudicial punishment waived by failure to object).

In the absence of any indication that invoking waiver will “cause a miscarriage of justice,” or will “impugn the reputation and integrity of the courts” or amount to “a denial of a fundamental right of the accused,” we hold that the defects in Prosecution Exhibits 6 and 7 do not rise to the level of “plain error” contemplated in Mil.R.Evid. 103(d). See United States v. Sims, 617 F.2d 1371, 1378 (9th Cir. 1980); United States v. Kilburn, 596 F.2d 928, 935 (10th Cir. 1979), cert. denied 440 U.S. 966, 99 S.Ct. 1517, 59 L.Ed.2d 782 (1979); United States v. Beaudion, supra.

The findings of guilty and the sentence are AFFIRMED.

Chief Judge CARNE concurs.

Two judges of the Court of Military Appeals recently indicated that waiver should be applied to questions of admissibility on the merits, even for cases tried prior to 1 September 1980. See United States v. Phinizy, 12 M.J. 40, 43 (C.M.A.1981) (Everett, C. J., concurring; Cook, J., concurring in the result). To decline to apply waiver during sentencing may result in the anomaly of applying stricter rules of evidence during sentencing than on findings, contrary to the expressed intent of the drafters of the Military Rules of Evidence. See Mil.R.Evid. 1101(c).