United States v. Howard

7 M.J. 962, 1979 CMR LEXIS 621
CourtU.S. Army Court of Military Review
DecidedJuly 25, 1979
DocketSPCM 13837
StatusPublished
Cited by2 cases

This text of 7 M.J. 962 (United States v. Howard) 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. Howard, 7 M.J. 962, 1979 CMR LEXIS 621 (usarmymilrev 1979).

Opinions

OPINION OF THE COURT

FULTON, Senior Judge:

Although pleading not guilty, the appellant was convicted, in a special court-martial bench trial, of wrongfully possessing a switchblade knife in violation of general regulations, assaulting Sergeant Pingley and Specialist Four Pooler with a means (the knife) likely to produce grievous bodily harm, and threatening to kill Specialist Pooler.1 The adjudged sentence included a bad-conduct discharge, confinement at hard labor for four months, forfeiture of $250.00 pay per month for five months, and reduction to the grade of Private E-l. The convening authority approved the sentence.

On our review pursuant to Article 66, Uniform Code of Military Justice, 10 U.S.C. § 866 (1976), the sole error assigned relates to the admissibility of a record of prior nonjudicial punishment, pursuant to paragraph 75d of the Manual for Courts-Martial, United States, 1969 (Revised edition), as evidence of the past conduct and performance of the appellant.

[963]*963The appellant’s offenses were committed during an evening of heavy drinking at the “All Ranks Club” at Giebelstadt Army Air Field, Germany. Appellant denied having a switchblade knife with him (it was found at his quarters), much less putting it to the throat of Specialist Pooler and holding it to Sergeant Pingley’s chin. After findings of guilty had been entered, the prosecution offered in evidence a “Record of Proceedings Under Article 15, UCMJ [10 U.S.C. § 815]” (Department of the Army Form 2627, 1 November 1973), which showed that 14 months earlier appellant had been punished for engaging in a fight at the “All-Grades Club” at Fort Bliss, Texas. The military judge received the exhibit in evidence over defense objection. When appellant testified in extenuation and mitigation, saying that he wanted to remain in the service to earn an honorable discharge, the trial counsel asked on cross-examination if the earlier incident didn’t indicate that he had a problem controlling his temper and asked how he expected to keep his “nose clean from here on out” when previous nonjudicial punishment hadn’t deterred him from committing the instant offenses. On re-direct examination, appellant asserted that the earlier incident occurred when he was trying to break up a fight. However, the trial counsel opened his sentencing argument with a reference to the “Article 15 for engaging in a fist fight,” and, moments later, concluded his brief argument with a recommendation for the maximum punishment.

When the record of non judicial punishment was offered in evidence, the defense counsel had objected on the basis that “there is no evidence that the accused was ever provided the opportunity to consult with counsel before acceptance of the Article 15.” After some discussion of the decision in United States v. Booker, 3 M.J. 443 (C.M.A.1977),2 the defense counsel argued “that the thrust of the decision is that . it should be the Government’s burden to show that the individual was specifically offered the opportunity and did consult with or affirmatively waived his right to consult with counsel. Of course, the Government has not shown it in this case.” The military judge admitted the record in evidence on the basis that, if Booker applied to records of nonjudicial punishment, it did not apply to records of punishment imposed (as was the nonjudicial punishment in this case) before the date of that decision.3

United States v. Cannon, 5 M.J. 198 (C.M.A.1978), has resolved the question of the retrospectivity of the Booker decision itself. As to the further question whether Booker applies only to the admissibility of records of trial by summary court-martial, which were the only exhibits at issue in that case, the Court recently held “that the requirements set forth in Booker are likewise ap[964]*964plicable to the introduction of a record of an Article 15 hearing in extenuation and mitigation [sic] at a court-martial.” United States v. Mathews, 6 M.J. 357, 358 (C.M.A.1979).4

In Booker, the Court of Military Appeals commented that “[t]he consequences of a decision to accept either an Article 15 or a summary court-martial disciplinary action under Article 20 involve due process considerations.” United States v. Booker, supra, 5 M.J. at 243. Asserting a belief “that only a legally trained person can supply the requisite quantum of information necessary for an informed decision,” the Court further said:

[W]e believe it mandatory that the individual to be disciplined must be told of his right to confer with an independent counsel before he opts for disposition of the question at either of the above levels. Absent compliance with this proviso, evidence of the imposition of discipline under either is inadmissible in any subsequent trial by court-martial.

Id. (emphasis added). Finally the court said, “A waiver of the statutory right under Articles 15 and 20 for removal to trial in a criminal proceeding must be in writing.” The Court accompanied this reference to a written waiver of an adversarial criminal trial with a footnote saying in part:

It is imperative that this written waiver establish a voluntary, knowing, and intelligent decision to forego removal to a criminal proceeding . . . . Any ambiguity must be resolved prior to the utilization of evidence of discipline under either codal provision.

Id. at 243 n.20 (emphasis added). Later, albeit in a passage dealing only with the records of summary courts-martial used in Booker’s trial, the Court reiterated that the record must “affirmatively demonstrate a valid personal waiver by the individual of his right to trial in a criminal proceeding,” and further that, “[i]f the exhibit does not affirmatively establish a valid waiver, the trial judge must conduct an inquiry'on the record to establish the necessary information.” Id. at 244. These last-quoted passages were expressly made applicable to records of non judicial punishment by the decision in United States v. Mathews, 6 M.J. 357 (C.M.A.1979).

My colleagues on this Court long since have concluded, properly I think, that Department of the Army forms currently being used to record the administration of nonjudicial punishment normally will satisfy the Bookerian requirements of advice as to the right to counsel and a written waiver of trial personally made. See, e. g., United States v. Rembert, 5 M.J. 910, 912 (A.C.M.R.1978) (Watkins, J.); United States v. Happel, 5 M.J. 908 (A.C.M.R.1978); United States v. Gordon, 5 M.J. 653, 654 (A.C.M.R.1978) (Jones, Sr. J.). My concern, expressed in Rembert, has been that the Booker court’s footnote 20 may have signalled an additional requirement that the written waiver somehow affirmatively be shown to have been knowingly and intelligently made. United States v. Rembert, supra, 5 M.J. at 912-13 (Fulton, Sr. J., dissenting).5

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7 M.J. 962, 1979 CMR LEXIS 621, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-howard-usarmymilrev-1979.