United States v. McLemore

10 M.J. 238, 1981 CMA LEXIS 16601

• Court: United States Court of Military Appeals
• Decided: February 2, 1981
• Docket: No. 39305/NA; NCM No. 79-1312
• Status: Published

Opinions

Opinion of the Court

PER CURIAM:

Pursuant to Article 67(b)(2), Uniform Code of Military Justice, 10 U.S.C. § 867(b)(2), the Judge Advocate General of the Navy certified the following question for review (9 M.J. 134):

Was the United States Navy Court of Military Review correct in its determination that the page 13 (NAVPERS 1070/613) entry from the accused’s service record contains sufficient advice to render admissible in evidence, as a prior nonjudicial punishment, the page 7 (NAVPERS 1070/607) from the service record, pursuant to paragraph 75d, Manual for Courts-Martial, 1969 (Rev.), and consistent with United States v. Booker, 5 M.J. 238 (C.M.A.1977), and United States v. Syro, 7 M.J. 431 (C.M.A.1979)?

The record reflects that during the presentencing stage of the appellant’s court-martial, trial counsel introduced prosecution exhibit 2, a record of nonjudicial punishment, which appeared on a document designated as “Court Memorandum NAVPERS 1070/607 (Rev. 12-75).” This document is also referred to as “a page 7” from the appellant’s service record. Prosecution exhibit 3, which is referred to as “a page 13” of the appellant’s service record, was introduced into evidence along with the Article 15 record. It contained the following entry which was initialed and signed by the appellant:

ADVISE OF RIGHT TO CONSULT WITH AN ATTORNEY PRIOR TO NONJUDICIAL PUNISHMENT:

/s/R.E.M.. I understand that because my choice of whether to accept nonjudicial punishment or demand trial by court-martial is an important choice, I have the right to a lawyer before making that choice.

/s/R.E.M.. I understand that I have the right to consult with a civilian lawyer at my own expense or with a military lawyer provided for me at no expense.

/s/R.E.M. I (BO) (DO NOT) want to consult with a lawyer.

The defense counsel objected to admission of the Article 15 record on the ground that the record had omitted the date of the offense, which was required by paragraph 90436 of the PAYPERS Manual. This objection was summarily overruled by the military judge.

Before the United States Navy Court of Military Review, the appellant contended that the two prosecution exhibits had been erroneously admitted into evidence-not because of failure to show the date of the Article 15 offense but because the record did not comply with the counsel and waiver requirements set forth in United States v. Booker, 5 M.J. 238 (C.M.A.1977). The Court of Military Review held that the record of non judicial punishment had been properly admitted into evidence since prosecution exhibit 3 “clearly demonstrates compliance with the threshold requirement of Booker, that is, advice to the accused of his right to confer with counsel before waiving his right to trial in a criminal forum and accepting punishment under Article 15.” United States v. McLemore, 9 M.J. 695, 698 (N.C.M.R.1980).

The only question that we have been asked to review concerns the correctness of the lower court’s holding that the exhibits introduced into evidence by the Government adequately demonstrate that the appellant was advised of his rights as to nonjudicial punishment. We observe that under our recent decisions in United States v. Hayes, 9 M.J. 331 (C.M.A.1980), and United States v. Mack, 9 M.J. 300 (C.M.A.1980), the Article 15 record clearly met the requisite conditions for admission as evidence insofar as advice of rights is involved. Accordingly, we answer the certified question in the affirmative.

The appellant did not seek to question in this Court the issue of the alleged omission of the date of the offense from exhibit 2, which recorded his non judicial punishment. However, we observe that in item 2 of this document is recited the command where the accused was stationed at the time of the Article 15. The portion of the service record which was admitted as prosecution exhibit 1 reveals that he had been at this command for less than one month before the nonjudicial punishment was administered. Thus, exhibit 1 provides to a substantial extent the information about the date of the offense which was not filled in on the record of non judicial punishment; and it makes clear that the offense involved was not one which, because of its staleness, could not be considered for sentencing purposes under applicable directives. Under such circumstances, we conclude that the requirements imposed by United States v. Negrone, 9 M.J. 171 (C.M.A.1980), have been satisfied.

We note, however, that these exhibits offered by the Government are defective in an important respect. Although they demonstrate that McLemore was advised of his right to decline nonjudicial punishment, they do not reveal what choice he made. In this respect they differ from the records of nonjudicial punishment we considered in United States v. Doran, 9 M.J. 385 (C.M.A. 1980); and United States v. Hayes, supra; United States v. Mack, supra.

In United States v. Mack, supra, at 324, we ruled that Congress had left the Armed Services free to use any “reasonable and adequate means of evidencing and recording the accused’s election” to decline nonjudicial punishment. The two documents that were admitted by the military judge neither evidence nor record such an election — although they demonstrate that appellant was advised that he could elect. In short, if an objection had been made at trial that none of the exhibits supplied this essential item of information, it should have been sustained and the evidence excluded.

However, apart from the previously discussed omission on one exhibit of the date of the offense, every entry that appeared to be required by the documents had been made. In United States v. Negrone, supra, obvious omissions in a record offered in evidence placed the military judge on notice that there had been defects in its preparation. Under these circumstances, we held that lack of defense objection did not constitute a waiver. In the case at hand, the defect lies in the failure of the forms to provide space for all the information which should be recorded in order to establish a basis for admissibility. Under these circumstances, the responsibility rests on defense counsel to interpose an objection-or else be subject to a waiver.¹

Moreover, even if we assumed that the military judge erred in receiving in evidence the questioned exhibits, we also are convinced that, under the circumstances disclosed by this record of trial, the appellant was not prejudiced thereby as to his sentence.²

Accordingly, the decision of the United States Navy Court of Military Review is affirmed.

1 . The Military Rules of Evidence now have taken a very expansive view of waiver by failure to object. See Rule 103(a)(1).

2 . Interestingly, we also note that in Appellate Exhibit 7, the accused authorized his attorney not to argue against adjudication of a bad-conduct discharge.