United States v. Simmons

54 M.J. 883, 2001 CCA LEXIS 76, 2001 WL 314138
CourtNavy-Marine Corps Court of Criminal Appeals
DecidedMarch 16, 2001
DocketNMCM 9900723
StatusPublished
Cited by3 cases

This text of 54 M.J. 883 (United States v. Simmons) is published on Counsel Stack Legal Research, covering Navy-Marine Corps Court of Criminal Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Simmons, 54 M.J. 883, 2001 CCA LEXIS 76, 2001 WL 314138 (N.M. 2001).

Opinion

PRICE, Judge:

The appellant stands convicted by a general court-martial composed of officer and enlisted members. At trial, the appellant pleaded guilty to one specification of unauthorized absence in violation of Article 86, Uniform Code of Military Justice, 10 U.S.C. [886]*886§ 886. He pleaded not guilty to one specification of rape and one specification of unlawful entry in violation of Articles 120 and 134, UCMJ, 10 U.S.C. §§ 920 and 934.1 The court-martial acquitted him of unlawful entry but convicted him of rape. The adjudged and approved sentence was confinement for 12 months, reduction to E-1, and a bad-conduct discharge.

We have carefully examined the record of trial, the assignments of error, and the Government’s response. We conclude that the findings and sentence are correct in law and fact and that no error materially prejudicial to the substantial rights of the appellant was committed. Arts. 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a) and 866(c).

I. Record of Trial is Not Verbatim

The appellant contends that the record of trial is not verbatim and is substantially incomplete, requiring that we set aside the findings of guilty as to Charge I, rape, and the sentence. We agree that the record is not verbatim but find that the Government has rebutted the presumption of prejudice.

The transcript of this record of trial contains two portions that are not verbatim. The first is a summarized record of an Article 39(a), UCMJ, session held before the court-martial was assembled. The part of that day’s proceedings that was summarized lasted about 20 minutes. Record at 54a-54c. According to the record, a summary was necessary because the recorded tape for this session was inaudible. The summary was constructed from the military judge’s and court reporter’s notes, with input from both counsel. Record at 54a-54c, 749-50. The second portion purports to be a verbatim account of the proceedings, but contains numerous missing words followed by the note, “[unintelligible].” Record at 602-602L. Apparently, the tape for this portion was at a very low volume. Although not precisely documented in the record, from our experience, we estimate that the proceedings recorded at pages 602-602L lasted at least 50 minutes. The tape for this portion was examined by technical experts and enhanced to allow for greater volume and clarity. The military judge and both counsel then listened to the enhanced tape and made a few changes. In a post-trial Article 39(a), UCMJ, session, neither side offered any additional changes. Record at 750.

Article 54(c), UCMJ, 10 U.S.C. § 854(c), requires the preparation of a complete record of trial in a general court-martial in which the adjudged sentence includes a discharge. In addition, the President has prescribed that the record in such a case must include a verbatim written transcript. Rule for Courts-Martial 1103(b)(2)(B), Manual for Courts-Martial, United States (1995 ed.). Verbatim means: ‘Word for word: in the same words.” United States v. Lashley, 14 M.J. 7 (C.M.A.1982). Nevertheless, our superior court has long recognized that literal compliance with that requirement is impossible. Lashley, 14 M.J. at 8. Instead, the test is whether the record of trial is substantially verbatim. United States v. Henry, 53 M.J. 108 (2000). A substantial omission renders a record incomplete and raises a presumption of prejudice that the Government must rebut. Henry, 53 M.J. at 111. Whether an omission is substantial is reviewed by the appellate courts de novo. Henry, 53 M.J. at 110.

We have no difficulty in finding that the summarized transcript at pages 54a-54c is not a substantial omission. At this Article 39(a), UCMJ session, the military judge, Captain Hunt, first covered a number of procedural matters, most of which had been addressed in some degree by the military judge who presided at the initial Article 39(a), UCMJ, session in the ease, Captain Leachman. Captain Hunt announced his qualifications, invited voir dire and challenge, reiterated advisories of the appellant’s rights to counsel and choice of forum, and obtained the appellant’s previously stated elections on those issues. Then followed litigation of a defense motion in limine as to the admissibility of a prior act of the appellant. After hearing testimony and argument, the mili[887]*887tary judge granted the motion and ordered the Government not to present any evidence of the prior act. Our review of the record reveals that the Government complied with this ruling.

The net effect of this 20 minutes of court time is that the military judge changed. Neither side conducted voir dire of the new military judge, nor did either side challenge him. Other than the formalities associated with the initial appearance of the military judge, there was little forward progress made in the trial. Even if we were to find that the lack of a verbatim transcript represents a substantial omission, we have no hesitation in concluding that the appellant suffered no prejudice. As the Government states in its brief, the appellant benefited by the judge’s ruling on the motion in limine. Nothing occurred that could possibly be construed as contrary to the appellant’s interests.

The second portion of the record in question is more problematic. In this 13-page, ostensibly verbatim account of the proceedings are numerous missing words and no less than 30 uses of the note, “[unintelligible].” Record at 602-602L. Included in this portion is the testimony of two expert witnesses called by the Government to rebut damaging evidence elicited by the defense, interspersed with an Article 39(a), UCMJ, session where the defense objected to the testimony of the second witness. We cannot conclude that this is an insubstantial omission.

We must next decide whether the Government has earned its burden in showing that the appellant was not prejudiced by this substantial omission. The first expert witness was Commander Bradshaw, a Navy physician with specialty training in sleep disorders. Before the tape recording equipment malfunctioned, he testified on direct examination that, assuming the victim was asleep when intercourse was initiated, there was a great likelihood that she was sleeping deeply. Of greater importance, he then said that it was possible that the victim could have slept through the appellant’s moving her into position for intercourse. On cross-examination, Dr. Bradshaw conceded that he had neither talked to nor examined the victim and that the degree of stimulus assumed by the prosecution’s theory of rape would awaken some, even most people. However, he also reiterated that there is a significant possibility she slept through the pre-rape physical stimulus. After redirect examination, which added little testimony of value to either side’s case, the equipment malfunction began.

At this point, the defense asked nine questions in recross-examination. Out of nine, seven of the questions and the associated responses are verbatim.

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Cite This Page — Counsel Stack

Bluebook (online)
54 M.J. 883, 2001 CCA LEXIS 76, 2001 WL 314138, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-simmons-nmcca-2001.