United States v. May

18 M.J. 809
CourtU.S. Navy-Marine Corps Court of Military Review
DecidedJuly 24, 1984
DocketNMCM 84 0593
StatusPublished

This text of 18 M.J. 809 (United States v. May) 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. May, 18 M.J. 809 (usnmcmilrev 1984).

Opinion

BARR, Judge:

Appellant was convicted by military judge, sitting as a special court-martial, and upon pleas of guilty, of four periods of-unauthorized absence, in violation of Article 86, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 886. During the sentencing stage of the trial, trial counsel introduced Prosecution Exhibit 7, consisting of four pages, into evidence as proof of a civilian conviction, citing Rule 803(22), Military Rules of Evidence (Mil.R.Evid.), as the basis favoring admissibility. Trial defense counsel objected to the exhibit on three stated grounds: (1) that Prosecution Exhibit 7 was a copy, not an original; (2) that the exhibit was incomplete in that the counsel could not “read many of the places that are to be filled out”; and, (3) that the exhibit contained no evidence that the offenses related therein, and upon which appellant was allegedly convicted, carried a punishment extending to more than one year confinement. From the tenor of the objection stated as to the latter ground, trial defense counsel, by his obvious attempt to except the document from the criteria stated within the Rule, also considered Rule 803(22), Mil.R.Evid., as the proper basis for admissibility — if it met the threshold requirement of conformance with the “in excess of one year” rule expressed therein. The military judge, in overruling each objection, concluded that Prosecution Exhibit 7 was admissible under either Rule 803(22) or 803(24), Mil.R.Evid., the latter being commonly termed the residual hearsay rule. The military judge also stated that, as to the objection based on the document being unreadable, he could “discern appropriate entries including signatures reflecting the accused’s pleas of guilty on the document

Finding it inadequate to completely describe, by words, Prosecution Exhibit 7 as it appears in the original record of trial now before us, we have attached it as Appendix I to this opinion. We will point out that the part contained on page 1 reciting “the within named _ Defendant arraigned, and pleads_guilty to this information” bears absolutely no mark, let alone a legible entry, which would indicate which defendant (Stryker or May) is referenced or what plea was entered to the information. We also point out that pages 3 and 4, which set forth the general conditions of probation, make no reference to appellant, either directly or by implication.

We have before us the original record of trial which was authenticated by the military judge. We must presume that the four pages constituting Prosecution Exhibit 7 contained in this record are the very same pages — not copies of those pages— admitted into evidence by the military judge at trial. His authentication of the record signifies this much. We are, under these circumstances, amazed to read the statement of the military judge that he could “discern” entries reflecting that appellant had entered pleas of guilty to the civilian charges.1

[841]*841The initial error assigned on review asserted that the military judge erred to appellant’s substantial prejudice by admitting Prosecution Exhibit 7 over trial defense counsel’s objections.2 The thrust of the assignment was that, as appellant’s name does not appear on the pages containing the terms of probation, Prosecution Exhibit 7 was irrelevant at the trial of appellant. The Government, in response, contended that Prosecution Exhibit 7 was admissible under Rule 803(24), Mil.R.Evid., that appellant could have rebutted the veracity of that exhibit at trial had he so chosen, and that trial defense counsel conceded, in argument on sentence, that appellant had been convicted. The Government, in addition, joined with the military judge in concluding that Prosecution Exhibit 7 evidenced guilty pleas having been entered by appellant to the civilian charges. Finally, the Government argued for a finding of waiver under Rule 103(a), Mil.R.Evid., on the ground that the specific basis asserted by appellant on appeal was not addressed to the military judge at trial.

Upon our initial review of the record of trial, this Court ordered briefs to be submitted on three issues, only the latter two of which retain vitality at this stage of review:

II
WHETHER PROSECUTION EXHIBIT 7 CONTAINS SUFFICIENT EVIDENCE OF FINALITY WITHIN THE MEANING OF PARAGRAPH 756(e)(b), MANUAL FOR COURTS-MARTIAL, 1969 (REV.).
III
IF THE ANSWER TO ... II ARGUES AGAINST ADMISSIBILITY, WHETHER THE WAIVER RULE OF RULE 103(a)(1), MILITARY RULES OF EVIDENCE, APPLIES WHERE THE SPECIFIC GROUND OF OBJECTION RELYING ON PARAGRAPH 756(3), MANUAL FOR COURTS-MARTIAL, 1969 (REV.), WAS NOT ASSERTED AT TRIAL.

In response to these specified issues, appellant, relying on the “escape clause” provided by section (d) of Rule 103, contends that admission of Prosecution Exhibit 7 amounted to “plain error” which materially prejudiced a substantial right of appellant. Appellate defense counsel also provided this Court with the pertinent law of Ohio, the locus of the alleged civilian conviction, which holds that “a plea of guilty is but one step in the process of rendering a final judgment of conviction.”3 Based upon this holding, which the Government concedes to be the applicable law, appellant argues that the event reported by Prosecution Exhibit 7 is not even a conviction, let alone a final one.

Appellate government counsel’s response re-emphasized the salient points of its brief on the initial assignment of error, the basic theme being that, since appellant did not raise an objection based on finality at trial, he is foreclosed by Rule 103(a)(1), Mil.R.Evid., from asserting it now as a basis for relief on review. The Government also argues, as an alternative ground for admissibility, that Prosecution Exhibit 7 was properly admitted as evidence of “other offenses or acts of misconduct” under Paragraph 76a, Manual for Courts-Martial, 1969 (Rev.) (MCM, 1969 (Rev.)). Under this theory, so the Government contends, the requirements set forth in Paragraph 756-(3)(b), MOM, 1969 (Rev.), need not be met.

We approach the issues at bar by first considering whether, under any rule of evidence or provision of law, Prosecution Ex[842]*842hibit 7 could have been properly admitted at trial into evidence. Our survey of the Manual for Courts-Martial, 1969 (Rev.) reveals the following provisions which deal with prior convictions and/or which the Government argues support admissibility: (1) Paragraph 76a, MCM, 1969 (Rev.); (2) Rule 609, Mil.R.Evid.; (3) Rule 803(8), Mil.R.Evid.; (4) Paragraph 756, MCM, 1969 (Rev.); (5) Rule 803(22), Mil.R.Evid.; and, (6) Rule 803(24), Mil.R.Evid. We shall consider each provision seriatim.

Paragraph 76a, MCM, 1969 (Rev.f.4 Any reasonable reading of this provision compels the conclusion that the condition precedent to the consideration of “evidence of other offenses or acts of misconduct” during the sentencing phase is that such evidence must already be admitted in evidence as a matter properly introduced during the trial of the case. Paragraph 76a does not establish an independent ground of admissibility for any of the matters listed therein which may provide a “basis for determining” an appropriate sentence. In short, for a matter to be considered on sentencing under Paragraph 76a, it must have been previously admitted pursuant to

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Bluebook (online)
18 M.J. 809, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-may-usnmcmilrev-1984.