United States v. Kahmann

58 M.J. 667, 2003 CCA LEXIS 108, 2003 WL 1989840
CourtNavy-Marine Corps Court of Criminal Appeals
DecidedApril 30, 2003
DocketNMCM 200200355
StatusPublished
Cited by3 cases

This text of 58 M.J. 667 (United States v. Kahmann) 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. Kahmann, 58 M.J. 667, 2003 CCA LEXIS 108, 2003 WL 1989840 (N.M. 2003).

Opinions

BRYANT, Judge:

On 2 July 2001, a military judge, sitting as a special court-martial, convicted the appellant, pursuant to his pleas, of unauthorized absence, in violation of Article 86, Uniform Code of Military Justice, 10 U.S.C. § 886. The convening authority approved the adjudged sentence to confinement for 90 days, forfeiture of $695.00 pay per month for 3 months, and a bad-conduct discharge, but pursuant to the pretrial agreement suspended all confinement in excess of 30 days.

The case was originally submitted without specific assignment of error. On 12 June 2002, in an unpublished decision, Panel 3 of this Court sua sponte determined that the military judge committed plain error by the erroneous admission of the record of a prior summary court-martial without evidence of compliance with United States v. Booker, 5 M.J. 238 (C.M.A.1977), as modified by, United States v. Mack, 9 M.J. 300 (C.M.A.1980), and without evidence of a judge advocate review, as required by Article 64, UCMJ, 10 U.S.C. § 864. United States v. Kahmann, No. 200200355, 2002 WL 1343459 (N.M.Ct. CrimApp. 12 June 2002)(unpublished op.). In view of the perceived error, Panel 3 reassessed the sentence. On 25 June 2002, the Government requested en banc reconsideration of that decision. Motion to Reconsider En Banc of 25 Jun 2002. On 4 September 2002, we granted the Government’s motion and specified the following issue for review:

IN THE ABSENCE OF DEFENSE COUNSEL OBJECTION, WHETHER THE MILITARY JUDGE ERRED BY ADMITTING EVIDENCE OF APPELLANT’S PRIOR SUMMARY COURT-MARTIAL WITHOUT ALSO REQUIRING A SHOWING OF COMPLIANCE WITH UNITED STATES V. BOOKER, 5 M.J. 238 (C.M.A.1977), as modified by, UNITED STATES V. MACK, 9 M.J. 300 (C.M.A.1980), AND COMPLETION OF A JUDGE ADVOCATE REVIEW, AS REQUIRED BY ARTICLE 64, UCMJ?

Court Order of 4 Sep 2002.

After considering the record of trial and briefs by the appellant and the Government filed in response to our 4 September 2002 Order, we answer the specified issue in the negative. We hold that the military judge properly admitted the evidence of the appellant’s prior summary court-martial.

As explained in more detail below, we are not attempting to abrogate, by this decision, the mandate of Booker/Mack that a servicemember must be afforded an opportunity to consult with counsel prior to accepting nonjudicial punishment (NJP) or a summary court-martial in order for that disciplinary action to be admissible in aggravation at a subsequent court-martial. See Manual of the Judge Advocate General, Judge Advocate General Instruction 5800.7C § 0109 (Ch-3, 27 Jul 1998)(JAGMAN). Nor are we saying that the requirement for a post-trial review of a summary court-martial pursuant to Article 64, UCMJ is not a condition precedent for admissibility of that summary court-martial in aggravation at a servicemember’s subsequent court-martial. We are merely saying that when, as in this case, the Government offers evidence of a prior summary court-martial in aggravation and there is no objection for lack of proof that a Booker/Mack advisory and/or an Article 64, UCMJ, review was completed, any issue as to the evidence’s admissibility for the alleged failure to provide Booker/Mack advisory and/or conduct an Article 64, UCMJ, review is forfeited. See Mil. R. Evid. 103(a), Manual for Courts-Martial, United States (2000 ed.). We presume compliance with Booker/Mack and Article 64, UCMJ, when trial defense counsel raises no objection at trial to the admission of a prior NJP or summary court-martial in aggravation.

Accordingly, we hold that the findings and the sentence are correct in law and fact and that no error materially prejudicial to the substantial rights of the appellant was committed. Arts. 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a) and 866(c).

Background

During pre-sentencing, the trial counsel offered excerpts from the appellant’s military service record. Prosecution Exhibit 1. Among the documents offered was a “Record of Conviction by Court-Martial (1070).” Id. at 9. The document (hereinafter “Page 13”) reflected the appellant’s punishment at sum[669]*669maj*y court-martial on 30 August 2000 for a variety of UCMJ offenses, including Article 86, UCMJ, 10 U.S.C. § 886, unauthorized absence. But for one minor omission, all blocks on the front page of the pre-printed form document were complete.1 Block “4A” of the Page 13 notes that the appellant “waived representation by counsel.” Id. The Page 13, however, contains no specific space or block on the front page to reflect, nor does the document anywhere so reflect, whether the appellant was provided the opportunity to consult with counsel pursuant to Booker/Mack prior to accepting trial by summary court-martial, or whether the summary court-martial was reviewed by a judge advocate after trial pursuant to Article 64, UCMJ. Although objecting without success to the summary of the non-Article 86, UCMJ, offenses on the Page 13, trial defense counsel had no objection to the admission into evidence of the document itself. Record at 21-22.

Booker and Its Progeny

In United States v. Booker, a divided Court of Military Appeals held that a record of a summary court-martial may not be admitted as a sentencing exhibit in a subsequent special or general court-martial unless the “exhibit ... affirmatively establishes] a valid waiver” of the right to consult with counsel prior to accepting punishment under Article 20, UCMJ, 10 U.S.C. § 820. Booker, 5 M.J. at 244. This requirement was subsequently extended to sentencing exhibits relating to NJP awarded pursuant to Article 15, UCMJ, 10 U.S.C. § 815. United States v. Mathews, 6 M.J. 357, 358 (C.M.A.1979). Under Booker and Mathews, if the document was insufficient on its face, regardless of whether there was a defense objection, the onus fell on the military judge to “conduct an inquiry on the record to establish the necessary information.” Booker, 5 M.J. at 244; accord Mathews, 6 M.J. at 358-59. These rulings were affirmed in Mack, 9 M.J. at 323.

The Booker Court did not specify the manner in which the record was to be developed or the level of proof required to overcome a deficiency on the face of the exhibit. In Mathews, our superior Court held that the military judge satisfied his obligation to develop the record where he questioned the accused and learned directly from him that the necessary advisement, followed by a valid waiver, had occurred. Mathews, 6 M.J. at 358-59. In Mack,

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United States v. Kahmann
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59 M.J. 659 (Navy-Marine Corps Court of Criminal Appeals, 2003)

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Bluebook (online)
58 M.J. 667, 2003 CCA LEXIS 108, 2003 WL 1989840, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-kahmann-nmcca-2003.