United States v. Kinman

25 M.J. 99, 1987 CMA LEXIS 3977

• Court: United States Court of Military Appeals
• Decided: September 25, 1987
• Docket: No. 56,992; ACM 25393
• Status: Published

Opinions

Opinion of the Court

EVERETT, Chief Judge:

A general court-martial judge sitting alone convicted appellant of communicating indecent language to his daughter and soliciting her to commit an indecent act, in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934. The sentence adjudged was a bad-conduct discharge, confinement for 18 months, and reduction to pay grade E-4. The convening authority approved these results, and the Court of Military Review affirmed. Appellant complains that he was prejudiced by improper admission of evidence during presentencing proceedings. We now grant the petition and reverse the decision below.

After appellant pleaded guilty to the two sexually-related offenses with which he was charged, the prosecution introduced, over a multi-pronged defense objection, a pretrial statement given by appellant’s daughter to the Air Force Office of Special Investigations (OSI). Therein she asserted that appellant had committed other sexual offenses against her. The Court of Military Review held that, because the uncharged allegations were “so repugnant” and “so much more reprehensible than the acts charged that the danger the accused would be sentenced for the acts not charged was overwhelming.” Accordingly, the court concluded that, in admitting this extrajudicial statement, the military judge erred in “balancing ... the probative value of [the] proffered evidence against the danger that it might be outweighed by undue prejudice,” unpub. op. at 4, see Mil.R.Evid. 403, Manual for Courts-Martial, United States, 1984, when he ruled in favor of admission.¹

Nonetheless, the Court of Military Review concluded that appellant had not been prejudiced by this error

because the accused was being tried in a bench trial; the sentence was in line with that which the appellant (in his pretrial agreement) had agreed would not be excessive; the trial judge made a specific finding that he would not sentence the accused for the uncharged misconduct; and the sentence is no greater than that which would have been imposed had the error not been committed.

Unpub. op. at 4.

Earlier in its opinion, though, the court candidly acknowledged, “Had this evidence been presented to members for their deliberation we would be compelled to set aside the sentence.” Id. Accordingly, it is clear that the court’s conclusion of no prejudice depended upon the facts that (a) appellant had been sentenced by a military judge, rather than by members, and (b) the judge had specifically noted that he would not sentence the accused for the uncharged acts.

We believe, however, that in this case the Court of Military Review misconstrued the military judge’s language:

In looking at the undue prejudice to it or the unfair prejudice, I find that I will not sentence the accused for the acts which were cited in the statement, other than the ones that were charged. So far as the uncharged acts are concerned, I will not sentence the accused for those acts. Therefore, there’s no danger at this point of unfair prejudice to the accused. And my ruling is that the probative value, in explaining the seriousness of the charged offenses, indicating the emotional impact on the victim and the intent of the accused, outweighs any potential for unfair prejudice to the accused, in that he would be sentenced for the uncharged acts.

The judge’s assurance that he would not sentence appellant for his uncharged misconduct amounts to little more than an affirmation that he will not perform his sentencing duties in a lawless manner. With limited exceptions,² a judge may only impose a sentence based on the crimes of which the accused stands convicted. Moreover, a sentence based on other uncharged offenses would not be appropriate and so could not properly be affirmed under Article 66, UCMJ, 10 U.S.C. § 866.

If, as our dissenting Brother suggests, the military judge had stated that he would not “consider” the evidence of uncharged misconduct, the situation would be different and would be akin to that which exists when a judge becomes aware of evidence which he later rules inadmissible. However, as we understand the quoted language of the military judge — and contrary to the interpretation thereof in the dissent — the judge did not state he would disregard the evidence that he was admitting; and he did not assert that the sentence would not be increased by reason of the uncharged misconduct. Instead, he specifically admitted the evidence because of its “probative value, in explaining the seriousness of the charged offenses, indicating the emotional impact on the victim and the intent of the accused.” Obviously, this ruling differs greatly from a determination to exclude evidence or to strike it after it has been initially admitted.

We have great confidence in military judges; and often we have assumed that, by reason of their legal training and experience, they are better able than court members to avoid prejudicial or improper use of inflammatory evidence. For example, this assumption is often made as to evidence (a) that a judge says he will disregard entirely even though he has become aware of its contents; or (b) that he says he will consider only for a limited purpose.

Obviously, in the present case, the judge never said he would disregard the evidence entirely; indeed, his ruling was exactly to the contrary. Furthermore, his assurance that he would not sentence Kinman for certain uncharged misconduct might be construed as no more than a promise to act in a lawful manner in sentencing. However, even if the comment by the judge is taken as a commitment not to aggravate the sentence because of the uncharged offenses, we are unconvinced that appellant will escape prejudice.

The Court of Military Review acknowledged that, if the sentencing had been performed by court members, they would feel compelled to reverse because of the risk of prejudice. Even military judges are subject to some limitations in their ability to avoid prejudicial use of admitted evidence. If the military judge used the pretrial extrajudicial statement for the purposes that he mentioned, such as “explaining the seriousness of the charged offenses,” it would be impossible for him not to consider it at the same time for prohibited purposes.³

The Court of Military Review also observed that the sentence adjudged was in line with what appellant had agreed in a pretrial agreement was not excessive. However, in military practice a pretrial agreement only sets a ceiling and does not constitute an affirmation by an accused that the sentence is appropriate. Indeed, the sentence provided in the agreement may only be the lowest ceiling that an accused can obtain in return for his guilty plea. Despite the guilty plea, an accused usually attempts to “beat the deal”; and a defense counsel has an obligation to try to induce the court-martial to adjudge a more lenient sentence than that prescribed in the pretrial agreement. Furthermore, unlike typical civilian practice, the military judge usually is not even informed of the sentence contained in the pretrial agreement, so that he may in no way be influenced by that agreement in seeking to adjudge an appropriate sentence.

Since the sentence set forth in the pretrial agreement is not inevitably the sentence that the court-martial imposes, some possibility exists that, even though at trial an appellant receives a sentence which is no more than that recited in the pretrial agreement, he still has been prejudiced by some type of trial error.⁴ The test of prejudice is whether the sentence adjudged was “no greater than that which would have been imposed if the prejudicial error had not been committed.” United States v. Suzuki, 20 M.J. 248, 249 (C.M.A.1985); see United States v. Sales, 22 M.J. 305, 307 n. 3 (C.M.A.1986). When this test is applied to the evidence involved in this case— evidence that according to the Court of Military Review was improperly admitted— we are unconvinced that appellant suffered no prejudice.⁵

The decision of the United States Air Force Court of Military Review as to sentence is reversed; the sentence is set aside; the record of trial is returned to the Judge Advocate General of the Air Force. A rehearing on sentence may be ordered.

Judge SULLIVAN concurs.

1 . In view of its ruling under Mil.R.Evid. 403, the court below did not consider whether the statement was admissible as evidence in aggravation under R.C.M. 1001(b)(4), Manual for Courts-Martial, United States, 1984; constituted impermissible hearsay; or violated appellant’s right of confrontation. Cf. United. States v. Cordero, 11 M.J. 210 (C.M.A.1981).

2 . Under recidivist statutes, prior convictions sometimes may be taken into account to authorize a more severe maximum punishment. Also, if an accused himself requests that certain uncharged crimes be taken into account in sentencing, the judge may be entitled to consider them directly as a basis for imposing sentence.

3 . We note that the Court of Military Review rejected the evidence on the basis of Mil.R.Evid. 403, without ruling on the other grounds. If those other grounds are meritorious — as to which we need not rule — it would be improper to consider the "probative value" of the evidence.

4 . Judge Cox in his dissenting opinion asserts: "Most certainly, the error must be harmless where, as here, the military judge sentenced the accused to a more lenient sentence than that agreed upon in his pretrial agreement. See United States v. Hendon, 6 M.J. 171, 175 (C.M.A.1979)." 25 M.J. at 103. In a footnote following his citation to Hendon, Judge Cox write’s: "I trust the majority does not intend to overrule this valuable precedent without even giving the Government an opportunity to brief and argue the issue." 25 M.J. at 103 n. 1. In truth, Hendon is not so ironclad in equating lack of prejudice on the one hand and an adjudged sentence's comparison to a pretrial agreement on the other. In Hendon, this Court stated:

Absent evidence to the contrary, accused’s own sentence proposal is a reasonable indication of its probable fairness to him. United States v. Johnson, 19 U.S.C.M.A. 49, 50, 41 C.M.R. 49, 50 (1969). Of course, the sentence factors that may be taken into account in connection with a pretrial plea agreement may be different from those before the court-martial. See United States v. Villa, 19 U.S.C. M.A. 564, 567, 42 C.M.R. 166, 169 (1970); cf. United States v. Green, supra [1 M.J. 453] at 454-55 [C.M.A.1976]. Also, a court-martial can legally, and we may perhaps judicially notice that, in practice, does, adjudge a sentence less than that provided in the pretrial agreement. United States v. Villa, supra at 569, 42 C.M.R. at 171 (Ferguson, J., dissenting).

6 M.J. at 175.

5 . We find it unnecessary to consider in this case whether, by reason of the evidentiary error involved, it would be necessary for us to be convinced beyond a reasonable doubt of the absence of prejudice.