United States v. Jordon

44 M.J. 847, 1996 CCA LEXIS 376, 1996 WL 727152
CourtNavy-Marine Corps Court of Criminal Appeals
DecidedOctober 30, 1996
DocketNMCM 95 00272
StatusPublished
Cited by1 cases

This text of 44 M.J. 847 (United States v. Jordon) is published on Counsel Stack Legal Research, covering Navy-Marine Corps 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. Jordon, 44 M.J. 847, 1996 CCA LEXIS 376, 1996 WL 727152 (N.M. 1996).

Opinion

OLIVER, Judge:

A military judge, serving as a general court-martial, convicted the appellant, pursuant to his pleas, of multiple instances of sodomy, indecent acts, indecent liberties, and solicitation to commit indecent acts with a child under the age of 16, and conduct unbecoming an officer and a gentleman, in viola[848]*848tion of Articles 125, 134, and 133, Uniform Code of Military Justice [UCMJ], 10 U.S.C. §§ 925, 934, 933 (1988), respectively.

From the time his natural daughter was 9 years old until she first reported the abuse at the age of 14, the appellant had engaged in a pattern of sexual activities with her. The military judge sentenced him to 2 years of confinement and a dismissal from the naval service. Immediately after announcing sentence, the military judge made “the strongest possible recommendation to the convening authority that he suspend the dismissal” and “all confinement in excess of one year ... on the condition that [the appellant] provide full, timely financial support to [his] family.” Record at 244. The convening authority approved the sentence as adjudged. The appellant has submitted five assignments of error.1 Since our resolution of the first requires a new convening authority’s action, we need not consider the other assignments of error at this time.

In his first assignment of error, the appellant correctly claims that the staff judge advocate [SJA] denied him the opportunity to respond to the supplemental recommendation to the convening authority.

The military judge announced his sentence on 26 July 1994. The SJA served trial defense counsel with his original 5-page recommendation on 18 October 1994. Trial defense counsel filed two petitions for clemency on 1 and 16 December 1994. The SJA presented the convening authority with a 15-page supplemental recommendation on 25 July 1995.

In addition to the text, this addendum contained numerous enclosures. One of the enclosures was a letter of 24 May 1995 from Major Michael Colby, the Chief of the Rehabilitative Division at the Disciplinary Barracks, Fort Leavenworth, where the appellant was confined. In that letter, Major Colby recommended that the convening authority approve the appellant’s adjudged sentence (which he called “quite charitable” and “unusually short”). Major Colby also concluded that the risk that the appellant would commit another such offense was “high.” Supplemental Recommendation, enclosure (12), at 3.

Major Colby’s opinion in this regard stood in stark contrast to the unrebutted in-court testimony of Dr. Amy Lawson that the appellant was “not ... a danger” to the victim or anyone else. Record at 213. Trial defense counsel had no opportunity to comment on the SJA’s supplemental recommendation before the convening authority took his action, approving the appellant’s findings and sentence as adjudged on 26 July 1995.

In United States v. Narine, 14 M.J. 55 (C.M.A.1982), the Court held that “where new matter is introduced after defense counsel has examined the review, [United States v.] Goode [, 1 M.J. 3 (C.M.A.1975) ] requires a further opportunity to comment be given to the defense counsel.” Id. at 57 (footnote omitted). Rule for Courts-Martial [R.C.M.] 1106(f)(7), Manual for Courts-Martial, United States (1995 ed.) [MCM], is based on this aspect of the Na/rine opinion. See R.C.M. 1106(f)(7), Analysis, MCM, at A21-81. This Rule gives the trial defense counsel an opportunity to comment on “new matter” in any supplementary written material the SJA prepares for the convening authority.

[849]*849“New matter” includes, inter alia, “matter from outside the record of trial” and “issues not previously discussed” in the original recommendation. R.C.M. 1106(f)(7), Discussion. In this case, the supplemental recommendation contained new information from outside the record of trial, the adverse letter from Major Colby. It also raised new issues not previously discussed, namely, allegations that the appellant posed a continued threat to his daughter and the community at large. The SJA should have served this information on the trial defense counsel to give him the opportunity to comment upon it before the convening authority acted. See United States v. Leal, 44 M.J. 235, 237 (1996)(an appellant should be given the opportunity to “deny, counter, or explain” the new adverse information).

As the Government concedes, the SJA’s failure to serve the supplemental recommendation on the trial defense counsel until after the convening authority acted was error. United States v. Norment, 34 M.J. 224, 226-27 (C.M.A.1992). Having concluded that this failure was error, we must next consider whether the appellant is entitled to relief as a result.

The Government argues that we should apply the so-called plain-error doctrine and impose upon the appellant the burden of establishing prejudice. “When ... plain error is asserted, appellant ‘bears the burden of persuasion with respect to prejudice.’ ” United States v. Pollard, 38 M.J. 41, 51 (C.M.A.1993)(quoting United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 1777, 123 L.Ed.2d 508 (1993)). The problem with the Government’s argument in this regard is that the trial defense counsel was never given an opportunity to object in time to make a difference. Given trial defense counsel’s track record for zealous advocacy on behalf of his client, we have little doubt that he would have objected to the SJA’s failure to give him an opportunity to comment. Moreover, we believe he would have provided comments and, perhaps, additional evidence, if given the opportunity. Therefore, the Government’s reliance on Olano’s plain-error analysis is inapposite.

The recent trend in military jurisprudence is to reject per se rules for error. Appellate courts increasingly apply a harmless-error analysis before deciding to grant an appellant relief. See United States v. Cowan, 42 M.J. 475, 477-78 (1995). But see United States v. Moseley, 35 M.J. 481, 484 (C.M.A.1992)(plurality opinion). In line with this trend, the Court of Appeals for the Armed Forces in United States v. Jones, 44 M.J. 242, 243 (1996), recently held that while the SJA “injected new matter in his addendum” and failed to give the trial defense counsel an opportunity to comment in violation of R.C.M. 1106(f)(7), “the error was harmless under the particular circumstances of appellant’s case.”

This recent holding of our superior Court in Jones appears to be in conflict with that Court’s earlier decision in Narine. In Narine, the Court of Military Appeals had rejected a test-for-prejudice analysis and applied a per se rule. Narine required the record to be returned to the convening authority for a new SJA Recommendation and convening authority action any time the Government failed to provide defense counsel an opportunity to comment on an addendum containing “new matter.” 14 M.J. at 57. Indeed, the Court in Narine made clear that they considered the nature of the error in that case to be of little consequence: “The mere fact that upon appeal harm to the accused may be found nonexistent, in no sense lessens the obligation to see that he receives those benefits that are rightly his.” Id. at 57-58 (quoting United States v. Roop, 16 C.M.A. 612, 615, 37 C.M.R.

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Bluebook (online)
44 M.J. 847, 1996 CCA LEXIS 376, 1996 WL 727152, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-jordon-nmcca-1996.