United States v. Smart

21 M.J. 15, 1985 CMA LEXIS 14541
CourtUnited States Court of Military Appeals
DecidedOctober 28, 1985
DocketNo. 49275; CM 443633
StatusPublished
Cited by121 cases

This text of 21 M.J. 15 (United States v. Smart) is published on Counsel Stack Legal Research, covering United States Court of Military 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. Smart, 21 M.J. 15, 1985 CMA LEXIS 14541 (cma 1985).

Opinions

Opinion of the Court

EVERETT, Chief Judge:

Pursuant to appellant’s guilty pleas, a general court-martial sitting at Darmstadt, Federal Republic of Germany, found him guilty of two specifications of robbery, in violation of Article 122, Uniform Code of Military Justice, 10 U.S.C. § 922. The sentence adjudged was a bad-conduct discharge, confinement at hard labor for 5 years, total forfeitures, and reduction to the grade of private E-l. After the convening authority approved the findings and sentence, the Court of Military Review affirmed them.

This Court granted review on these issues:

I

WHETHER THE CONVENING AUTHORITY’S ACTION, DATED 29 DECEMBER 1982, WAS PREMATURE SINCE THE RECORD OF TRIAL AND ALLIED PAPERS CONTAIN NO INDICATION THAT TRIAL DEFENSE COUNSEL WAS SERVED WITH A COPY OF THE POST-TRIAL REVIEW OR GIVEN AN OPPORTUNITY TO RESPOND BEFORE ACTION WAS TAKEN.

II

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY DISALLOWING DEFENSE CHALLENGES FOR CAUSE AGAINST CAPTAIN HARRISON AND SERGEANT FIRST CLASS FAIR.

Appellant had been charged with committing two robberies by confronting sales clerks with what appeared to be a .45-cali-ber pistol. He elected to be tried by a court-martial composed of both officer and enlisted members. After his guilty pleas had been accepted and findings of guilty had been entered, the panel was sworn and questioned upon voir dire. In response to a question by defense counsel, two members — Captain Sammie Harrison and Sergeant First Class Billy Fair — stated that they had been victims of robbery.

Replying to followup questions, Captain Harrison stated that, while he was in college, his room had been “broken into and ... $200.00 stolen.” On a later occasion, his house had been “broken into” and his coin collection, as well as those of his sister and his mother, had been stolen. However, Harrison acknowledged that these crimes of which he had been a victim were burglary — rather than face-to-face robbery like that with which Smart was charged.

When questioned whether these two incidents “would influence ... [his] decision on a sentence in this case,” he responded: “I can’t say. I think it would, but I don’t know to what degree it might do it.” Harrison denied that he would “be comparing those incidents with the circumstances” of the offenses alleged against Smart; but when asked if he could “fairly sit in this case, and just use ... [his] common sense and the circumstances and facts that are presented here, to determine the case,” he answered:

It’s hard to say. I wouldn’t say I positively could, because I’d have to hear the circumstances of the case, and they might trigger something from the past, and again it may- not.

Trial counsel attempted to rehabilitate this member; but when he inquired whether Harrison would be able to disregard what had happened in the past, the answer was:

To say that I could, no, I can't say that I could, due to the fact that after listening to those circumstances, then it might trigger something from the past. Am I making myself clear?

The colloquy then proceeded as follows:

TC: Well, the case today deals with two robberies. Do you think that under, that [17]*17under the circumstances of two robberies, you could disregard any outside influences, and base your judgment solely on the facts presented here today, to render a fair sentence?
MEMBER (CPT HARRISON): Totally disregard, I’d say, no.
TC: Well, do you think that you could still render a fair and just sentence— MEMBER (CPT HARRISON): Yes, I think I could.
TC: — taking into consideration, your common sense?
MEMBER (CPT HARRISON): Right, I do.
******
MJ: Captain Harrison, will you be able to consider the entire range of punishments available to the court, all the way from no punishment at all, to the maximum punishment?
MEMBER (CPT HARRISON): No punishment, no, sir, I will not consider that one.

(Emphasis added.) The interrogation of this member was pursued no further.

Questioned individually on voir dire about his experiences as a crime victim, Sergeant First Class Fair explained:

I grew up in the city of Chicago, and I have been robbed quite a few times. First of all, I was robbed by an adult, and as a teenager doing odd jobs, I was robbed by local gangs.

Asked how many times he had been robbed, Fair answered, “I guess I’ve been accosted about six or seven times.” These were situations “where somebody’s taking money off of your person direct.” When the defense counsel asked if, in light of this evidence, Fair thought he would “be able to fairly sit in this case and hear the evidence,” the reply was, “Well, I have no problem with my past experiences, just was just something that has happened to me in my life.” According to Fair, he “would consider what is happening now, not yesterday”; and he did not believe that he would be influenced by the circumstance that he had been robbed so often. He stated that he would “be able to consider the full range of punishments” upon “hearing the facts of the case.” Although Fair had been robbed with a knife and his father had been robbed with a gun, he insisted that he “would have no problem then in rendering a fair and just sentence in this case.”

After the voir dire of the members, the military judge denied defense challenges for cause entered as to Harrison and Fair. Thereafter, the defense counsel exercised his sole peremptory challenge against another member.

After trial, a review was prepared by the staff judge advocate. However, the record of trial does not reveal whether Smart’s defense counsel was ever served with a copy of this review. The Court of Military Review concluded that service of the post-trial review had not taken place; but the court then went on to find waiver by defense counsel, because he had not complained earlier about the failure of the staff judge advocate to comply with the requirements of United States v. Goode, 1 M.J. 3 (C.M.A.1975).

In Goode this Court required service of the staff judge advocate’s review on defense counsel. A similar requirement is now embodied in RCM 1106(f)(1), Manual for Courts-Martial, United States, 1984. By means of the Goode response, error is avoided because defense counsel must promptly raise any matters as to which he believes the review is deficient; and a failure to raise an issue in a Goode response typically results in waiver.

In United States v. Kincheloe, 14 M.J. 40 (C.M.A.1982), the defense counsel had been served belatedly with a copy of the post-trial review. Under the circumstances of that case, we concluded that the defense counsel’s failure to complain had constituted a waiver of appellant’s right to be served with the post-trial review. In the present case, no post-trial review was ever served on the defense counsel. On the basis of this distinction, the defense seeks [18]*18to avoid the waiver result of Kincheloe.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. PINCOLIGONZALEZ
Navy-Marine Corps Court of Criminal Appeals, 2025
United States v. Covitz
Air Force Court of Criminal Appeals, 2022
United States v. Barnaby
Air Force Court of Criminal Appeals, 2021
United States v. Edwards
Air Force Court of Criminal Appeals, 2021
United States v. Major NIDAL M. HASAN
Army Court of Criminal Appeals, 2020
United States v. Plourde
Air Force Court of Criminal Appeals, 2019
United States v. Paulett
Air Force Court of Criminal Appeals, 2018
United States v. Condon
Air Force Court of Criminal Appeals, 2017
United States v. Morgan
Air Force Court of Criminal Appeals, 2015
United States v. Oakley
Navy-Marine Corps Court of Criminal Appeals, 2015
United States v. Bischoff
74 M.J. 664 (Air Force Court of Criminal Appeals, 2015)
United States v. Peters
74 M.J. 31 (Court of Appeals for the Armed Forces, 2015)
United States v. Castillo
74 M.J. 39 (Court of Appeals for the Armed Forces, 2015)
United States v. Andersen
Air Force Court of Criminal Appeals, 2015
United States v. Sutton
Air Force Court of Criminal Appeals, 2014
United States v. Wade
Air Force Court of Criminal Appeals, 2014
United States v. McIntosh
Air Force Court of Criminal Appeals, 2014
United States v. Terry
64 M.J. 295 (Court of Appeals for the Armed Forces, 2007)
United States v. Leonard
63 M.J. 398 (Court of Appeals for the Armed Forces, 2006)
United States v. Moreno
63 M.J. 129 (Court of Appeals for the Armed Forces, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
21 M.J. 15, 1985 CMA LEXIS 14541, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-smart-cma-1985.