United States v. Napier

20 C.M.A. 422, 20 USCMA 422, 43 C.M.R. 262, 1971 CMA LEXIS 699, 1971 WL 12774
CourtUnited States Court of Military Appeals
DecidedMarch 26, 1971
DocketNo. 23,365
StatusPublished
Cited by16 cases

This text of 20 C.M.A. 422 (United States v. Napier) is published on Counsel Stack Legal Research, covering United States Court of Military 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. Napier, 20 C.M.A. 422, 20 USCMA 422, 43 C.M.R. 262, 1971 CMA LEXIS 699, 1971 WL 12774 (cma 1971).

Opinions

Opinion of the Court

Quinn, Chief Judge:

Pursuant to Article 67(b)(2), Uniform Code of Military Justice, 10 USC § 867, the Judge Advocate General of the Army referred the case to this Court for review of the correctness of the decision of the United States Army Court of Military Review setting aside the accused’s conviction. The Court of Military Review deemed the record of trial incomplete in a material respect and entertained “some doubt” as to the record’s accuracy.

Few of the records of trial we have seen reflect the regard for the rights of an accused and the insistence upon compliance with the procedures required by law that were evidenced by the military judge in this case. Yet, he made a mistake. Before authenticating the transcript of the trial, he did not note that a part of the proceedings preliminary to the plea was omitted. When the case was pending review by the Court of Military Review, he filed a certificate of correction to indicate the proceeding had, in fact, been had at trial, but that the reporter had “inadvertently failed” to include it in the official transcript. Although the accused did not challenge the truthfulness of the certificate, the Court of Military Review granted a defense motion to strike it. Then, considering the transcript as though the proceeding had not been had, the court concluded the omitted proceeding was “such an important part of the arraignment” that the conviction could not stand.

A certificate of correction is intended to relate “the true facts”; its purpose is to show that the trial court actually “performed its duty properly, but through clerical error or inadvertence the events . . . [were] improperly recorded” in the authenticated transcript. Manual for Courts-Martial, United States, 1969 (Revised edition), paragraph 86c; United States v Vintress, 17 USCMA 268, 38 CMR 56 (1967). It is not new evidence or merely an appellate exhibit; rather, it is an integral part of the transcript of the trial. United States v McKnight, 4 USCMA 190, 15 CMR 190 (1954). Cf. United States v Roberts, 7 USCMA 322, 32 CMR 112 (1956). Consequently, in the absence of fraud or mistake, the certificate, like other parts of the authenticated transcript, is presumed to be true; if it indicates that what actually occurred satisfied the requirements of law, the record, with the certificate, must be regarded as complete and free from error. United States v Vintress, supra, at page 260; United States v Snook, 12 USCMA 613, 619-620, 31 CMR 199 (1962); United States v Payne, 12 USCMA 455, 460, 31 CMR 41 (1961). If the certificate discloses error, it does not mean that the certificate is automatically stricken so that the record appears as though no certificate had been filed. United States v Vaughan, 3 USCMA 121, 127-128, 11 CMR 121 (1953). A certificate may be completely disregarded only if it refers to an event that did not actually take place at trial; that kind of document is not a certificate of correction. United States v Nicholson, 10 USCMA 186, 189, 27 CMR 260 (1959); United States v Hollis, 11 USCMA 235, 29 CMR 51 (1960). It is difficult, therefore, to understand the Court of Military Review’s ruling on the defense motion to strike. However, the ruling has not been chai-[425]*425lenged by the Government. For purposes of this case, and without deciding the correctness of the conclusion, we shall consider the record as not containing the certificate of correction.

Initially, the accused was charged with six acts of misconduct, including assault upon two soldiers with intent to commit murder and wrongful possession of marihuana. On October 5, 1969, the charges were referred to trial before a general court-martial. Two days before trial, the accused and his counsel had agreed with the convening authority that the offense of assault with intent to murder would be reduced to the lesser offense of assault with a dangerous weapon and the accused would plead guilty to that offense and all other charges as alleged.

The trial started with proceedings before the military judge alone, as authorized by Article 39(a), Code, supra, 10 USC § 839. In the course of the session, the judge considered the accused’s proposed plea of guilty. The judge pointed out to the accused the legal consequences of a plea of guilty and the effect of a stipulation of facts to which he and his counsel had consented. He described the elements of the offenses and, with one exception, the accused admitted doing every act alleged in each specification.1 The exception was in connection with the marihuana offense. As to that, the accused contended he had been drinking and did not know how the marihuana had gotten into his shirt pocket. Eventually, the judge indicated that he was satisfied as to the providence of the plea as to all the offenses but the marihuana charge. He recessed the session to October 23, to allow the parties to consider the effect that nonacceptance of the plea of guilty to this charge would have on the agreement with the convening authority and on the necessity to produce witnesses to prove the marihuana charge in place of the stipulation of facts. Instead of continuing on the adjourned date, however, the Article 39 session was resumed one and one-half hours later. The judge was informed that the convening authority had withdrawn the marihuana charge and both the Government and the accused were ready to proceed with trial of the other charges before the military judge alone.

Further proceedings resulted in renumbering of the charges, a copy of which was in the possession of defense counsel, to reflect withdrawal of the marihuana offense and the grant of a defense motion to dismiss specification 3, Charge I, on the ground that it was “multiplieious.” Additionally, defense counsel assured the judge that the change in the number of charges did not affect the agreement to plead guilty because the purpose of the agreement had been to effect substitution of the lesser charge of assault with a dangerous weapon for the charge of assault with intent to murder and that purpose had been achieved. The accused reaffirmed his consent to the stipulation, of facts and to trial before the judge alone. The proceedings continued as follows:

“MJ: . . . And I now announce that the court is assembled and we will proceed with the case. I now ask the accused, how does he plea[d] ?
“DC: Sir, the accused pleads:
“To all Charges and Specifications, Guilty.
“MJ: All right. Thank you, you may be seated. Okay, will you rise please, Specialist Napier? Specialist Four Danny L. Napier, it is my duty as military judge to inform you that in accordance with your pleas, this court finds you:
“Of all Specifications and Charges, Guilty.
“All right, you may be seated. The court will now hear the per[426]*426sonal data concerning the accused. . . .”

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Cite This Page — Counsel Stack

Bluebook (online)
20 C.M.A. 422, 20 USCMA 422, 43 C.M.R. 262, 1971 CMA LEXIS 699, 1971 WL 12774, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-napier-cma-1971.