United States v. Rogers

17 M.J. 990, 1984 CMR LEXIS 4651
CourtU.S. Army Court of Military Review
DecidedMarch 30, 1984
DocketCM 442511
StatusPublished
Cited by5 cases

This text of 17 M.J. 990 (United States v. Rogers) is published on Counsel Stack Legal Research, covering U.S. Army 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. Rogers, 17 M.J. 990, 1984 CMR LEXIS 4651 (usarmymilrev 1984).

Opinion

OPINION OF THE COURT

BADAMI, Judge:

Appellant was tried by a general court-martial composed of officer and enlisted members. Contrary to his pleas, he was convicted of rape (two specifications), attempted rape, robbery (two specifications), housebreaking (two specifications), and assault in violation of Articles 80, 120, 122, 128, and 130, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 880, 920, 922, 928, and 930 (1976). Pursuant to his plea he was found guilty of absence without leave, in violation of Article 86, UCMJ, 10 U.S.C. § 886 (1976). The convening authority approved the adjudged sentence of a dishonorable discharge, confinement at hard labor for forty years, and total forfeitures.

On appeal, appellant asserts a number of errors, primarily that the military judge erred by ruling that a prior summary court-martial conviction was a conviction within the meaning of Mil.R.Evid. 609(a) and thus could be used to impeach appellant. Alternatively, the appellant asserts that his subsequent completion of the retraining cycle at the U.S. Army Retraining Brigade was a procedure equivalent to a “certificate of rehabilitation” under Mil.R.Evid. 609(c) and thus also barred the impeachment use of the conviction.

I

During the Article 39(a), UCMJ, 10 U.S.C. § 839(a), session, the defense made a motion in limine to prohibit the impeachment of Rogers by a previous summary court-martial conviction if he chose to testify on his own behalf. The motion was denied and Rogers did not testify.

The offenses for which Rogers had been convicted by the summary court-martial met the requirements of Mil.R.Evid. 609(a). Also, he had been advised of his right to consult with counsel as required by United States v. Booker, 5 M.J. 238 (C.M.A.1977). However, in Middendorf v. Henry, 425 U.S. 25, 96 S.Ct. 1281, 47 L.Ed.2d 556 (1976), the Supreme Court ruled that because a summary court-martial is essentially a nonadversarial disciplinary hearing and “is not a ‘criminal prosecution’ for purposes of the Sixth Amendment,” an accused tried by summary court-martial was not entitled to counsel. Id. at 42, 96 S.Ct. at 1291. The Court of Military Appeals has agreed with the categorization: “[W]e conclude that these hearings do not constitute criminal proceedings/convictions.” Booker at 244 n. 23.

In United States v. Mack, 9 M.J. 300 (C.M.A.1980), the Court of Military Appeals further examined the use of summary courts-martial for collateral purposes. “[TJhere remains unanswered the question whether a summary court-martial conviction obtained without the presence of counsel for the accused is reliable enough to allow its use for impeachment purposes.” Id. at 314. The question was answered with:

When that opinion of guilt was formed in a proceeding so informal that it does not constitute a ‘criminal prosecution’ for purposes of the Sixth Amendment, its receipt in evidence to enhance the maximum punishment imposable or to im[992]*992peach a witness’ credibility seems questionable on due process grounds.

Id. at 315.

The court’s most recent statement on the issue is, “Clearly, then, our precedents prohibited the use of summary courts-martial convictions to impeach an accused.” United States v. Cofield, 11 M.J. 422, 432 (C.M.A.1981). We are in agreement with the rationale of Booker, Mack, and Cofield and hold that a summary court-martial where the accused was not represented by counsel cannot be used for impeachment purposes under Mil.R.Evid. 609(a).1 The military judge thus erred by ruling that the conviction would be admissible.

We are mindful of the fact that Booker, Mack, and Cofield were tried before the implementation of the Military Rules of Evidence. This is of no moment. The underlying rationale remains the same: counselless summary courts-martial are informal, nonadversarial proceedings whose adjudications of guilt are not sufficiently reliable to rise to the level of a criminal conviction for purposes of Mil.R.Evid. 609(a). Secondly, Mil.R.Evid. 609 is virtually identical to Federal Rule of Evidence 609, the latter having been taken into consideration by the Court of Military Appeals. Booker at 244 n. 23.

II

Having determined that it was error to deny the motion in limine, we must next determine whether Rogers was prejudiced thereby. Article 59(a), UCMJ, 10 U.S.C. § 859(a); Mil.R.Evid. 103. He was not. In order to test for prejudice, this Court must have some reasonable idea, obtainable from the record of trial, as to what the testimony of Rogers would have been. The statement by the defense counsel that Rogers “would have taken the stand and discussed the matters in the case-in-chief” gives us no guidance.

The philosophy behind Mil.R.Evid. 103 is that counsel have an affirmative obligation to “illuminate the issue for both the trial and appellate bench.” Analysis, Mil.R. Evid. 103, Manual for Courts-Martial, United States, 1969 (Revised edition) at A18-3, 4. Failure to do so constitutes waiver. As in United States v. Wright, 13 M.J. 824, 827 (A.C.M.R.1982), “defense counsel’s statement that his client would testify, without setting forth the scope or content of his proposed testimony, was insufficient to provide this Court with a proper record from which we can assess the prejudicial impact of the military judge’s adverse ruling” (footnote omitted). In order to preserve a Rule 609 issue for appellate review, the appellant must state on the record of trial that he will in fact testify if the conviction is excluded and must “sufficiently outline the nature of the testimony” so that the trial and appellate court can make an informed ruling on the issue. United States v. Cook, 608 F.2d 1175, 1186 (9th Cir.1979), cert. denied, 444 U.S. 1034, 100 S.Ct. 706, 62 L.Ed.2d 670 (1980). Cf. United States v. Luce, 713 F.2d 1236 (6th Cir.1983); United States v. Toney, 615 F.2d 277 (5th Cir.), cert. denied, 449 U.S. 985, 101 S.Ct. 403, 66 L.Ed.2d 248 (1980). By failing to place the necessary facts on the record, the appellant is unable to demonstrate prejudice.

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Bluebook (online)
17 M.J. 990, 1984 CMR LEXIS 4651, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-rogers-usarmymilrev-1984.