United States v. Jordan

24 M.J. 573, 1987 CMR LEXIS 165
CourtU.S. Navy-Marine Corps Court of Military Review
DecidedMarch 23, 1987
DocketNMCM 86 2581
StatusPublished
Cited by3 cases

This text of 24 M.J. 573 (United States v. Jordan) is published on Counsel Stack Legal Research, covering U.S. Navy-Marine Corps 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. Jordan, 24 M.J. 573, 1987 CMR LEXIS 165 (usnmcmilrev 1987).

Opinion

GLADIS, Judge:

Charged with two specifications of wrongful use of marijuana and one specification each of wrongful possession of marijuana and wrongful possession, distribution, and use of cocaine, in violation of Article 112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 912a, the accused was acquitted of one specification of use of marijuana and possession of marijuana, but was convicted contrary to his pleas of one specification of wrongful use of marijuana and wrongful possession, distribution, and use of cocaine. He was sentenced to a dismissal, confinement at hard labor for 15 months, and forfeiture of $2000.00 per month for 15 months. The convening authority approved the sentence.

Among other things, the accused contends that the failure of the judge to give an accomplice instruction sua sponte was plain error, that the cocaine possession offense was multiplicious for findings purposes with the distribution and use offenses, and that the three cocaine offenses were multiplicious for sentencing purposes. Concluding that omission of an accomplice instruction was neither plain error nor prejudicial, that the cocaine possession offense was multiplicious for sentencing, but not for findings, and that cocaine possession and use offenses were not multiplicious for sentencing, we affirm the findings and reassess the sentence.1

Omission of Accomplice Instruction

The accused contends that failure of the military judge to give an accomplice instruction sua sponte on the testimony of R was plain error and requires reversal of the cocaine offenses. There was no objection at trial to the omission.

To prove the cocaine offenses, the Government offered the testimony of R in its case in chief and the testimony of A in its case in rebuttal. To prove the marijuana possession offense and the marijuana use offense of which the accused was acquitted, the Government relied solely on the testimony of R. She testified that the accused moved into her house during the fall of 1984 and they became lovers. They frequently used cocaine, which he initially provided, together. Both provided money for the cocaine. Later they obtained the cocaine together or she obtained it alone. He also brought marijuana, which she used, to the house. A testified the accused moved into R’s house during the fall of 1984. She did not see any marijuana there, but did see the accused and R use cocaine [575]*575there. She saw the accused use cocaine about five times.

R had a serious drug' problem. She was impeached by evidence of prior inconsistent statements, and the testimony of a clinical psychologist that she had a severe borderline personality disorder and routinely distorted reality. If confronted with a traumatic event she was likely to project blame on someone else.2 Revenge, such as making a false accusation against a former intimate partner, was consistent with her personality. Appellate defense counsel maintains that her motive for blaming the accused was her perception that he had rejected her romantically.

The Government concedes that R was an accomplice because the relationship with the accused, to which she testified, was an informal conspiracy to share drugs. United States v. Oxford, 21 M.J. 983, 985 (NMCMR 1986). Also see United States v. Allums, 5 U.S.C.M.A. 435, 438, 18 C.M.R. 59, 62 (1955).

Rule for Courts-Martial 920(f) provides that failure to object to omission of an instruction constitutes waiver of the objection in the absence of plain error.

In United States v. Lee, 6 M.J. 96 (C.M.A.1978), the Court of Military Appeals reviewed the law applicable to instruction on accomplice testimony.3 It noted that in United States v. Stephen, 15 U.S.C.M.A. 314, 316, 35 C.M.R. 286, 288 (1965), it had set aside a conviction because the law officer (now military judge) failed to give an instruction on accomplice testimony where virtually the entire case for the prosecution depended upon an accomplice who was an admitted thief. While considering the judge’s omission to be plain error, the Court had cautioned:

Lest it be thought that we are herein promulgating a new rule requiring sua sponte instructions on accomplice testimony, in all cases where such a witness testifies, we reiterate our holding in United States v. Schreiber, 5 U.S.C.M.A. 602, 18 C.M.R. 226, at page 609, that in general ‘the absence of a request for special instructions precludes consideration upon appeal____’ Defense counsel would be well advised to heed closely this admonition____

Lee, 6 M.J. 96 at 97. The Court also noted in Lee that it had applied the plain error exception in United States v. Lell, 16 U.S.C.M.A. 161, 36 C.M.R. 317 (1966), where the accomplice’s testimony constituted the only evidence as to some of the elements of proof and the accomplice was considerably impeached. Finally, the Court found in Lee that the judge’s failure to instruct the members sua sponte on accomplice testimony was not plain error where the accomplice testimony was corroborated by the [576]*576accused’s confession and the judge called attention to several impeaching factors relating to the accomplice.

In United States v. Oxford, 21 M.J. 983 at 985-986, citing Lee and holding that only where an accomplice’s testimony constitutes the only evidence as to some or all of the elements of proof does the military judge have a sua sponte duty to instruct on accomplice testimony, this Court found failure to give such an instruction to be plain error.

In United States v. Fisher, 21 M.J. 327 (C.M.A.1986), the Court of Military Appeals reexamined the doctrine of plain error, stating that a per se approach to plain error review is flawed. In order to constitute such error, the error must not only be both obvious and substantial, it must have had an unfair prejudicial impact on the deliberations of the members. The doctrine is invoked to rectify those errors that seriously affect the fairness, integrity, or public reputation of judicial proceedings. As a consequence, it is to be used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result. Id. at 328-329. The Court found that failure to give an instruction — the omission of which it had held on numerous occasions to be plain error in all cases — was not plain error under the plain error analysis set forth. Nevertheless, the Court reversed because there may have been reliance on its past rulings treating that instructional error as reversible error per se, which resulted in a failure to make timely objection at the trial level.

The lesson of Fisher is that error which has been treated in the past as plain error justifying reversal in spite of lack of timely objection will no longer be treated as such, unless the plain error analysis set forth in that case is satisfied. Therefore, counsel would be well advised to make timely objection at trial in all cases.4 In light of Fisher, we doubt that failure to give a sua sponte instruction on accomplice testimony where the testimony is uncorroborated and the accomplice impeached would be plain error today. Such an omission does not rise to the level of plain error as defined in Fisher.

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Bluebook (online)
24 M.J. 573, 1987 CMR LEXIS 165, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-jordan-usnmcmilrev-1987.