United States v. Randolph

20 M.J. 850, 1985 CMR LEXIS 3425

• Court: U.S. Army Court of Military Review
• Decided: July 24, 1985
• Docket: SPCM 21095
• Status: Published

Opinions

OPINION OF THE COURT

MARDEN, Senior Judge:

Appellant was convicted, in accordance with his pleas, of conspiracy to commit larceny, and willful destruction of government property in violation of Articles 81 and 108, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 881 and 908. The court, composed of officer and enlisted members, sentenced appellant to a bad-conduct discharge, confinement at hard labor for three months, forfeiture of $397.00 pay per month for three months, and reduction to the lowest enlisted grade. The convening authority approved the sentence.

During the sentencing portion of the trial, the government called the appellant’s company commander, Captain T, to testify as a rebuttal witness and the following pertinent portion of his testimony constitutes the basis for appellant’s assigned error:

Q: Based on what you know of the accused and what you’ve testified to, what is your opinion as to whether or not this soldier should be — receive a bad-conduct discharge from the service?

A: I think he should receive a bad-conduct discharge and I think he should go to jail for what he did.

The appellant argues, and the government agrees, that the military judge abused his discretion in permitting this testimony. We agree that it was error for the military judge to fail sua sponte to give curative instructions regarding such incompetent evidence presented to the members. United States v. Meade, 19 M.J. 894 (A.C. M.R.1985); United States v. Jenkins, 7 M.J. 504, pet. denied, 7 M.J. 328 (A.F.C.M. R.1979). However, under the particular facts of this case, noting especially the lack of defense objection, the appellant’s degree of involvement in the offenses as evidenced by his own unsworn testimony during presentencing and the admission of a record of nonjudicial punishment under Article 15, UCMJ, for larceny, we find that appellant’s sentence was not prejudiced by the admission of the testimony. See United States v. Pearson, 17 M.J. 149 (C.M.A.1984).

Accordingly, the findings of guilty and the sentence are affirmed.

Judge WERNER concurs.