United States v. Miller

11 M.J. 618, 1981 CMR LEXIS 749
CourtU S Coast Guard Court of Military Review
DecidedApril 27, 1981
DocketNo. 831
StatusPublished
Cited by1 cases

This text of 11 M.J. 618 (United States v. Miller) is published on Counsel Stack Legal Research, covering U S Coast Guard 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. Miller, 11 M.J. 618, 1981 CMR LEXIS 749 (cgcomilrev 1981).

Opinion

OPINION

MORGAN, Chief Judge:

Seaman Recruit Peter R. H. Miller, USCG, was tried by a special court-martial at Seattle, Washington 1-5 March 1979 on various charges and specifications alleging violations of Articles 81, 86, 92,108,109,121 and 134 Uniform Code of Military Justice 10 U.S.C. §§ 881, 886, 892, 908, 909, 921 and 934. The accused pleaded not guilty to all charges and specifications. At trial by a court comprised of a military judge and members the accused was found guilty of unauthorized absence from his unit for a period of about fifty-five minutes on 24 November 1978 in violation of Article 86, UCMJ, an offense of wrongful disposition of military property having a value greater than $100.00 and an offense of willfully damaging government property in an amount less than $50.00 in violation of Article 108, UCMJ, and two offenses of stealing military property having a value greater than $100.00 in violation of Article 121, UCMJ. The court sentenced the accused to be discharged from the service with a bad conduct discharge. The convening authority approved the findings and sentence of the court. The officer exercising general court-martial jurisdiction reduced the period of unauthorized absence found by the court from fifty-five minutes to thirty-five minutes and the value of the stolen property in one of the larceny offenses from about $300.00 to $235.10. Otherwise the findings of guilty and the sentence were approved.

Appellate defense counsel asserts that the unauthorized absence charge must be dis[619]*619missed because it is a minor offense improperly joined with major offenses contrary to the provisions of paragraph 26 c, Manual for Courts-Martial, 1969, (Rev.) and that a new legal officer’s review is required since the review was not prepared by the district legal officer as required by Article 61, UCMJ, 10 U.S.C. § 861, nor had the assistant legal officer who prepared the review been designated in writing for that purpose as authorized by Section 510-1 of the Coast Guard Military Justice Manual, CG-488.

Trial defense counsel made timely motion to dismiss the unauthorized absence charge as being improperly joined with the major offenses involving larceny and wrongful disposition of government property. Following an offer of proof by the trial counsel the military judge denied the defense motion on the ground that the absence in question, if proved, could help explain the accused’s opportunity to be present and participate in another alleged offense of unlawfully concealing stolen property. The military judge gave the defense counsel leave to raise the motion for dismissal of the absence offense again if the government failed to connect the two offenses.

At the close of the government’s case the military judge granted a defense motion for a finding of not guilty of the concealment of stolen property offense to which the unauthorized absence was reputedly related. The defense counsel did not renew the motion for dismissal of the unauthorized absence offense and the military judge did not dismiss it on his own motion. Instead, the members found the accused guilty of that offense and it remained before them for ('sentence considerations.

. The legal officer who reviewed the record for the officer exercising general court-martial jurisdiction expressed the view that the unauthorized absence offense was improperly joined since it could not have served to explain the concealment of stolen property offense alleged to have been committed on a different date. However, he concluded that defense counsel waived the error by failing to renew the motion for dismissal of the absence offense charge after the motion for a finding of not guilty of the concealment of stolen property charge was granted.

We agree that the minor unauthorized absence offense was improperly joined with the more serious offenses since it did not serve to explain the circumstances of any of the greater offenses. See paragraph 26 c, MCM, 1969 (Rev.); U. S. v. Briers, 7 M.J. 776 (A.C.M.R.1979). However, that offense was so inconsequential in relation to the more serious offenses of which the accused was convicted that it could have had no prejudicial impact with respect to the sentence. See U. S. v. Briers, supra; U. S. v. Johnson, 49 C.M.R. 477 (A.C.M.R.1974); U. S. v. Peterson, 19 U.S.C.M.A. 317, 41 C.M.R. 317 (1970); U. S. v. Fox, 10 M.J. 176 (C.M.A.1981). This view was evidently shared by the trial defense counsel since he did not renew the motion to dismiss the absence charge at trial as he had specifically been given leave to do nor did he object to the legal officer’s treatment of the issue in his review. See U. S. v. Goode, 1 M.J. 3 (C.M.A.1975); U. S. v. Barnes, 3 M.J. 406 (C.M.A.1977). Absent any indication that the erroneous joinder of the minor unauthorized absence charge with the more serious charges has resulted in a manifest miscarriage of justice or has otherwise seriously affected the fairness, integrity or public reputation of the judicial proceedings, the error has not been preserved for appellate review. U. S. v. Myhrberg, 2 M.J. 534 (A.C.M.R.1976); U. S. v. Berry, 2 M.J. 576 (A.C.M.R.1977), petition for review by U.S. C.M.A. denied 3 M.J. 339.

The record of this trial was properly referred to Commander, Fourteenth Coast Guard District, an officer exercising general court-martial jurisdiction, for review pursuant to Article 65(b), UCMJ. Commander Michael J. Jacobs, USCG, was the legal officer for Commander, Fourteenth Coast Guard District on 7 May 1980, the date of the legal officer’s post-trial review. The review was prepared and signed by Lieutenant Commander James S. Carmichael, USCG, the senior assistant to Commander Jacobs. Nothing in the record indicates [620]*620that Lieutenant Commander Carmichael prepared and signed the review in Commander Jacobs’ absence or due to his disqualification.

Article 65(b), UCMJ, 10 U.S.C. § 865(b), provides that if the sentence of a special court-martial as approved by the convening authority includes a bad conduct discharge the record shall be sent to the officer exercising general court-martial jurisdiction to be reviewed in the same manner as a record of trial by general court-martial. Article 61 pertaining to general courts-martial provides that “The convening authority shall refer the record of each general court-martial to his staff judge advocate or legal officer, who shall submit his written opinion thereon to the convening authority.” The term “his staff judge advocate or legal officer” as used in Article 61 was not elaborated upon in the Congressional Hearings or Reports on the Code. See Index and Legislative History Uniform Code of Military Justice House Hearings pp.

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11 M.J. 618, 1981 CMR LEXIS 749, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-miller-cgcomilrev-1981.