United States v. Spivey

10 M.J. 7, 1980 CMA LEXIS 9949

• Court: United States Court of Military Appeals
• Decided: November 10, 1980
• Docket: No. 38,555. CM 438496; No. 38,598. CM 439004
• Status: Published

Opinions

Opinion of the Court

COOK, Judge:

In accordance with his pleas, appellant Spivey was convicted by a general court-martial consisting of a military judge alone of falsely uttering a savings withdrawal form, in violation of Article 123, Uniform Code of Military Justice, 10 U.S.C. § 923. He was sentenced to a dishonorable discharge, confinement at hard labor for 14 months, and total forfeitures. The findings and sentence were approved by the intermediate reviewing authorities. Appellant Turrentine was convicted, in accordance with his pleas, by a general court-martial consisting of a judge alone, of violating a lawful regulation (2 specifications), absence without leave (2 specifications), and wrongful use of an identification card, in violation of Articles 92, 86, and 134, UCMJ, 10 U.S.C. §§ 892, 886, and 934, respectively. He was sentenced to a dishonorable discharge, confinement at hard labor for 2 years, and total forfeitures. The convening authority approved only so much of the sentence as extended to a bad-conduct discharge, confinement at hard labor for 2V2 months, and total forfeitures. His action was affirmed by the United States Army Court of Military Review. The Court granted review of both cases on the following issue:

WHETHER AN ACCUSED MAY LAWFULLY BE COMPELLED, OVER HIS OBJECTION, TO RESPOND TO AN INQUIRY BY THE MILITARY JUDGE MADE IN PRESENTENCING PROCEEDINGS IN AN EFFORT TO SUPPLY THE INFORMATION MANDATED BY UNITED STATES v. BOOKER, 5 M.J. 238 (C.M.A.1977), .IN ORDER FOR A PROSECUTION EXHIBIT, OTHERWISE INADMISSIBLE ON ITS FACE BECAUSE IT OMITS SUCH INFORMATION, TO BE MADE ADMISSIBLE?

During Spivey’s trial, the trial counsel attempted to introduce three records (DA Forms 2627) of disciplinary proceedings under Article 15, UCMJ, 10 U.S.C. § 815, and defense counsel objected on the basis that these forms did not comply with the requirements of United States v. Booker, 5 M.J. 238 (C.M.A.1977). Over defense objection, the military judge asked the appellant if he had been advised of his right to consult counsel prior to the imposition of punishment; the appellant admitted he had been so advised. He also questioned appellant as to whether he had exercised his right to appeal; the appellant responded appropriately. Thereafter, the military judge admitted the records of the Article 15 proceedings.

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During Turrentine’s trial, the trial counsel proffered records of previous conviction by a general court-martial and by a summary court-martial. Over defense objection, the military judge questioned the appellant as to the advice that was given to him concerning his right to consult with counsel and to reject trial by summary court-martial. The records and a DA Form 458 were subsequently admitted into evidence.

In United States v. Mathews, 6 M.J. 357 (C.M.A.1979), the Court held that an inquiry like those in the present cases did not violate the provisions of Article 31, UCMJ, 10 U.S.C. § 831. That holding was recently reaffirmed in United States v. Barlow, 9 M.J. 214 (C.M.A.1980). Appellants here, however, seek to distinguish Mathews and Barlow on the basis that, unlike the present cases, there was no objection made in either Mathews or Barlow. We disagree.

Initially, we note that the granted issue is arguably moot because the Court held, after appellants’ petitions were granted, that preliminary inquiries by military judges were not required to establish the admissibility of documents similar to the ones in question where the forms were properly completed. United States v. Mack, 9 M.J. 300 (C.M.A.1980). The forms in the present eases were all properly completed. However, we pass over the question of mootness to consider the extent to which a military judge may question an accused to establish the admissibility of records of proceedings under Article 15, supra, and Article 20, UCMJ, 10 U.S.C. § 820, because the matter is important to proper trial procedure.

In Roberts v. United States, 445 U.S. 552, 100 S.Ct. 1358, 1362, 63 L.Ed.2d 622 (1980), the Supreme Court reaffirmed the principle of United States v. Tucker, 404 U.S. 443, 446, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972), that:

a judge may appropriately conduct ... [a sentence] inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come.

See United States v. Mack, supra, at 317. Thus, the Court’s approach in Booker and Mathews infringed upon no constitutional rights of an accused where the inquiry involved no evidence of another crime. Although Mathews and Barlow did not involve a defense objection, appellants’ arguments misconstrue the basis of the holdings of those cases, i. e., they were predicated on the conclusion that an accused has no right to remain silent under either the Fifth Amendment or Article 31, rather than some doctrine of waiver. We adhere to those cases. Thus, we also disagree with the analysis of our brother Judge who would reach a different conclusion if an accused entered a plea of not guilty. In neither case is the inquiry involved with evidence of the commission of a crime and therefore, under our view set forth in Mathews, neither Article 31 nor the Fifth Amendment would shield an accused from answering questions designed to establish the admissibility of records of proceedings under Articles 15 and 20 of the Code.

Appellants further submit that the following language in paragraph 53h, Manual for Courts-Martial, United States, 1969 (Revised edition), precludes an inquiry by the military judge:

However, after a determination of guilt has been reached, the military judge or president of a special court-martial without a military judge will personally remind the accused of his rights to make a sworn or unsworn statement to the court in mitigation or extenuation of the offenses of which he stands convicted, or to remain silent. See 75e(2).

This paragraph is concerned with an accused’s options to present matters during the sentencing portion of the hearing. It does not purport to grant an accused a right to remain silent independent of Article 31 and the Fifth Amendment. Rather, the paragraph merely imposes an obligation upon the military judge to remind an accused of his various options. See United States v. Hawkins, 2 M.J. 23 (C.M.A.1976).

Accordingly, in each case, the decision of the United States Army Court of Military Review is affirmed.

Judge FLETCHER concurs.

In Spivey’s case, the military judge originally ruled that one of the records was inadmissible because it contained extraneous matters. He then questioned the evidence custodian who prepared another exhibit without the extraneous matter. Contrary to appellant’s argument on appeal, we do not perceive the trial judge’s action as a departure from an impartial role. See United States v. Hobbs, 8 M.J. 71 (C.M.A.1979).