United States v. Rodriquez

12 M.J. 632, 1981 CMR LEXIS 613

• Court: U.S. Navy-Marine Corps Court of Military Review
• Decided: October 30, 1981
• Docket: NMCM 80 0941
• Status: Published

Opinions

ABERNATHY, Judge:

Appellant assigns the following error for our consideration:

THE APPELLANT’S PLEA WAS IMPROVIDENT AS IT WAS ENTERED IN ACCORDANCE WITH A PRETRIAL AGREEMENT WHICH VIOLATED PUBLIC POLICY BY REQUIRING APPELLANT TO STIPULATE TO THE TESTIMONY OF WITNESSES.

In support of this assignment, appellant invites the Court’s attention to our holding in United States v. Neal, 3 M.J. 593, (N.C.M.R.1977), apparently relying on dicta in the lead opinion to the effect that “[i]n a proper case, however, upon a showing that the accused was forced to agree to trial counsel’s terms for a stipulation after the plea bargain had been approved by the convening authority, I would declare the agreement void as well as the plea of guilty based upon it.” Neal at 594, citing United States v. Eymer, 1 M.J. 990 (N.C.M.R.1976). Condemnation in Eymer of such provisions in pretrial agreements was also dicta which, in turn, was based upon three decisions of this Court wherein such provisions were found to be improper, but without prejudice to the accused.

In the instant case, the agreement called upon the appellant to “enter into reasonable stipulations of expected testimony.” At trial, the military judge established that the provision was intended to apply only to government witnesses, and, after an extensive colloquy with the trial defense counsel, satisfied himself that the stipulations were fair and consistent with sound trial tactics on the part of the defense. Assuming once again, as my brothers have in the past, that prejudice might flow from a provision requiring defense to stipulate without qualification to facts or testimony “sight unseen,” I can find no prejudice in the case sub judice. Accordingly, the findings and sentence as acted upon by prior reviewing authorities are affirmed.

Judge KERCHEVAL concurs.