United States v. Robertson

17 M.J. 846, 1984 CMR LEXIS 4693
CourtU.S. Navy-Marine Corps Court of Military Review
DecidedJanuary 31, 1984
DocketNMCM 83 2969
StatusPublished
Cited by7 cases

This text of 17 M.J. 846 (United States v. Robertson) is published on Counsel Stack Legal Research, covering U.S. Navy-Marine Corps 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. Robertson, 17 M.J. 846, 1984 CMR LEXIS 4693 (usnmcmilrev 1984).

Opinion

LECORNU, Judge:

In consonance with his pleas before a general court-martial composed of members, appellant was convicted of two specifications of attempting wrongfully to possess and use cocaine, two specifications of wrongfully soliciting the distribution of cocaine, one specification of wrongfully soliciting the distribution of marijuana, and one specification of wrongful possession of cocaine with intent to distribute in violation of Articles 80 and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 880, 934. He was sentenced to be confined at hard labor for 5 years, to forfeit all pay and allowances, and to be dismissed from the Naval Service. The convening authority approved the findings and the sentence, but reduced the confinement to 2 years in accordance with the pretrial agreement. Before this Court, appellant has assigned nine errors. Although none of the assignments has merit, we believe that five of them warrant discussion.

The first assignment contends that the military judge erred by failing to advise appellant of his allocution rights during the sentencing stage of the trial. It is further argued that this error was materially prejudicial because the trial counsel was able to obtain damaging admissions during cross-examination of appellant on his sworn statement to the members. It is undisputed that the trial judge overlooked the requirements of paragraph 53A, Manual for Courts-Martial, 1969 (Rev.) (MCM). This omission was recognized by the judge at some point after the trial, and a proceeding in revision was convened to determine whether the error was of such a nature as to require a rehearing on the sentence.

During the sentencing portion of the trial, the defense presented considerable evidence to the members, including actual and stipulated testimony of character witnesses, documentary evidence in the form of letters and military records, and the sworn testimony of appellant. There can be no question that appellant understood many of his rights at this stage of the trial. Of understandable concern to the military judge, however, was whether appellant, at the time he testified, knew of his right to present unsworn testimony. When pressed on this point during the revision proceeding, appellant was uncertain. Surprisingly, neither the civilian defense counsel, a former Marine Corps judge advocate, nor detailed counsel could recall whether appellant had been advised of this right. Faced with these memory lapses, the military judge conceded the possibility that appellant was unaware of his right to make an unsworn statement. The judge concluded, however, that his error in failing to so advise appellant was not prejudicial to appellant’s substantial rights.

Our examination of the record of trial in its entirety convinces us that the military judge was correct. The defense strategy, as acknowledged by the civilian defense counsel during the revision hearing, contemplated presenting appellant to the members as a candid individual with nothing to hide. An unsworn statement by appellant would have seriously undermined this strategy. We doubt that appellant was not informed at some point of this alternative. More likely, both counsel and appellant believed that it would be unthinkable, under the circumstances, for a commissioned officer not to take the stand under oath. In all probability, the notion of making an unsworn statement was rejected out of hand. Nonetheless, we will treat the military [848]*848judge’s omission as error and test for prejudice.

The admissions obtained by the trial counsel during the brief cross-examination of appellant simply do not support the contention that the error was prejudicial. The only matter brought out by the trial counsel, which had not been raised during direct examination, was appellant’s admission that he was aware of the Marine Corps Commandant’s policy with regard to drugs and had assured his superiors that he would vigorously enforce the policy. Appellant is hardly in a position to complain over this disclosure because he had earlier stipulated that a defense character witness would testify, inter alia, that appellant was aware of the policy. We find no prejudice to appellant’s substantial rights and reject the assignment. United States v. Koek, 6 M.J. 540 (N.C.M.R.1978).

The second assignment of error urges that the civilian defense counsel’s sentencing argument, in which he conceded the appropriateness of dismissal from the service, deprived appellant of effective assistance of counsel. Appellant’s brief cites us to a nuipber of the leading cases in which defense counsel’s arguments have been challenged and found wanting. These precedents, however, do not support appellant’s contention. As the Court of Military Appeals recently explained in United States v. Volmar, 15 M.J. 339 (C.M.A.1983), “[these] cases concerned a situation where there appeared to be a reasonable likelihood that court members might consider retention in the service as an alternative to a punitive- discharge.” Id. at 343. In the instant case, it strains credulity to suggest that the members would consider retaining a commissioned officer, who stood convicted of six drug offenses, most of them in consort with an enlisted Marine, and who also admitted to other instances of unlawful drug use. The length of confinement imposed unmistakably supports this conclusion. Significantly, appellant did not expressly state during his sworn testimony before the members that he desired to remain in the Marine Corps. He also did not object to the civilian defense counsel’s argument on sentence. Under these circumstances, it is readily apparent that the civilian defense counsel recognized that he could be most effective “by proposing to the sentencing authority an alternative for which there [was] some reasonable possibility of acceptance.” Id. at 342. This he sought to do by urging the members to spare his client lengthy confinement. Although only modestly successful in this effort, his argument in no manner deprived appellant of effective assistance of counsel. The assignment is, therefore, without merit.

The third assignment contends that appellant was materially prejudiced by the trial counsel’s references to the Marine Corps Commandant’s drug policy during cross-examination of appellant and sentencing argument. The fourth assignment claims that the military judge’s failure sua sponte to give a limiting instruction concerning these references amounted to prejudicial error. We will address these assignments in tandem.

In a long line of decisions, the Court of Military Appeals and the Courts of Military Review have consistently condemned improper references to command policy before sentencing bodies. These cases are well known to us, are scrupulously followed, and do not require recitation here. By leave of this Court, however, appellant has brought to our attention, by way of a motion to cite additional authority, the recent summary disposition of the Court of Military Appeals in United States v. Reitz, 17 M.J. 51 (C.M.A.1983). In Reitz, the trial counsel’s sentencing argument made reference to the drug abuse policy of the Department of the Navy and the Chief of Naval Operations. A panel of this Court, after examining the responses of the members during voir dire, concluded that the members were not susceptible to improper influence by the references in question, found no prejudice, and affirmed.

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Bluebook (online)
17 M.J. 846, 1984 CMR LEXIS 4693, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-robertson-usnmcmilrev-1984.