United States v. Phillips

32 M.J. 955, 1991 CMR LEXIS 703, 1991 WL 78446

• Court: U S Air Force Court of Military Review
• Decided: March 14, 1991
• Docket: ACM 28909
• Status: Published

Opinions

OPINION OF THE COURT

JAMES, Judge:

Sergeant Phillips pleaded guilty to and was convicted by a general court-martial of divers uses of cocaine and two uses of marijuana. The court-martial (with members) sentenced her to be discharged from the service with a bad conduct discharge, to forfeit all pay and allowances, and to be reduced to pay grade E-1. The convening authority approved the discharge and reduction but not the forfeitures.

Appellant’s pleas were conditional (a matter to which we return below), to preserve one issue: “pretrial motions relating to the suppression of illegally seized evidence.” See generally R.C.M. 910(a)(2). The motion she preserved relates to a search of her purse that produced a straight razor on which were found traces of cocaine. The prosecution argued that the search was lawful, justified by appellant’s consent. Appellant countered that she simply acquiesced to the investigator’s authority. We have carefully considered the record, the military judge’s findings of fact and conclusions of law, the briefs of appellate counsel, and their stimulating arguments. We find the evidence clear and convincing that appellant consented voluntarily to the search. Article 66(c), UCMJ, 10 U.S.C. sec. 866(c) (1988). See Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. , 36 L.Ed.2d 854 (1973); Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); United States v. Goudy, 32 M.J. 88 (C.M.A.1991); United States v. Middleton, 10 M.J. 123 (C.M.A.1981); Mil.R.Evid. 314(e).

This case illustrates a pitfall for staff judge advocates and trial counsel who consider conditional offers to plead guilty. The record does not disclose why the controverted evidence was important—or even relevant. Thus, we may have been required, in the interests of finality, to give an advisory opinion on a moot, solely academic issue. Given the substantial investment of resources incidental to our review of a case, that would be a waste. The details of this problem deserve some discussion here so that the waste we fear will be less likely.

Whenever there is issue-focused litigation, there is danger that the record will not be developed well enough to serve on appellate review. One contributor to that phenomenon is “target fixation,” when counsel so concentrate on the core issue that collateral but important matters are forgotten. That danger is often alleviated when trial on the merits follows because the presentation of evidence in a complete factual fabric encourages sewing together the loose ends. A conditional plea of guilty does nothing to help develop the record, and counsel who fix too closely on the core issue litigated can easily overlook important collateral matters. See, e.g., United States v. Forbes, 19 M.J. 953 (A.P.C.M.R.1985).

In this case the collateral matter is extremely important to us: Whether the disputed evidence would ever have been relevant. The chronology illustrates that question:

Alleged use of cocaine 31 Dec 87 to 31 Aug 89

Alleged use of marijuana 13 & 20 Peb 90

Seizure of the razor and cocaine residue 20 Peb 90

Appellant’s possession in 1990 of a trace of cocaine on a razor can hardly be relevant to either specification except in two circumstances. First, it may be that the 1990 possession of drug abuse paraphernalia could have been offered to corroborate the confession to use of the same drug 6 months earlier. Perhaps appellant had more confidence in the likelihood of admission on that theory than the prosecution had; she did not litigate the adequacy of corroboration as she might have.¹ Second, it may be that appellant feared that the uncharged possession of a trace of cocaine would be admissible to impeach her if she testified in her own behalf. We are dubious; a denial would apparently have been perjurious and inconsistent with her confession. Thus, the evidence on which the parties spent their time at trial may have been inadmissible for reasons other than that it was, urged appellant, unlawfully seized. Those reasons, however, were not preserved by the conditional plea.

Nonetheless, R.C.M. 910(a)(2) permits this procedure and requires our review of the issue, regardless whether it may be a waste of the effort of this Court, appellate counsel, and others. Were we not to review the issue, we fear that appellant’s privilege to withdraw her plea might remain ambulatory. Thus, we are coerced by the procedural posture of such a case to refrain from exercising traditional judicial discretion to decline to review moot issues and to decline to give advisory opinions.

The drafters of the federal civilian corollary, Fed.R.Crim.P. 11(a)(2), were aware of this problem and dismissed it. See generally, Notes of the Advisory Committee on Rules, reprinted at 18 U.S.C.A., Rule 11, p. 359 et seq. They anticipated that trial judges and the prosecution would be alert to such problems and cure them either by assuring that the record is well made or by withholding their essential consent and approval to the conditional plea: Id. at 360. We must trust the staff judge advocate and military judge to take the same precautions, R.C.M. 910(a)(2); Air Force Regulation 111-1, Military Justice Guide, paragraph 12-8 (30 September 1988) , and in this case we will assume that they did. See Forbes, 19 M.J. 955.

As for the consent by the government, it will ensure that conditional pleas will be allowed only when the decision of the court of appeals will dispose of the case by allowing the plea to stand or by such action as compelling dismissal of the indictment or suppressing substantial evidence.

We hope that this case will alert all to the special demands of such a plea and the resulting litigation. Staff judge advocates and military judges should not permit conditional pleas that only preserve issues that would not terminate the prosecution because to do so invites piecemeal appeals and the kind of appellate confusion suffered in this case. United States v. Wong Ching Hing, 867 F.2d 754, 758 (2d Cir. 1989).² See United States v. Yasak, 884 F.2d 996, 999-1000 (7th Cir.1989). This approach mirrors that of the prosecution’s privilege to take an appeal pendente lite “from an order or ruling ... which terminates the proceedings ... or which excludes evidence that is substantial proof of a fact material in the proceeding.” 10 U.S.C. sec. 862(a)(1), Article 62(a)(1), UCMJ.

When conditional pleas are permitted, the parties must be careful to develop the record fully, including such collateral aspects as the relevance of disputed evidence. That development should begin (but not end) with a full and precise identification of the issue in the written agreement, which is mandatory. The convenience of a conviction on a conditional plea may later evaporate on appeal if relevance and similar aspects are poorly developed on the record: If the plea is then set aside, the command is left with a complex case to unravel, with the further complication that it must do so belatedly.

The findings of guilty and the sentence are correct in law and fact and, on the basis of the entire record, are

AFFIRMED.

1 . We do not decide the issue today.

2 . The circuit court in Wong Ching Hing was unable to determine whether the preserved issue would completely dispose of the case because there was no written agreement. Its solution was to vacate the plea.