United States v. Syro

7 M.J. 431, 1979 CMA LEXIS 8914
United States Court of Military Appeals·Decided October 22, 1979·No. No. 37,234; NCM 78 1498·Published·Cited by 12 cases

Opinions

FLETCHER, Chief Judge:

The appellant was found guilty of numerous offenses1 on June 16, 1978, by a special court-martial composed of a military judge alone. He was sentenced to a bad-conduct discharge,2 confinement at hard labor for 3 months and forfeiture of $265 pay per month for the same period. The con[432] vening authority approved the findings of guilty, and the sentence of a bad-conduct discharge and 2 months’ confinement.3 The supervisory authority approved this sentence. On January 24, 1979, the United States Navy Court of Military Review affirmed the findings of guilty. However, that Court refused to approve the sentence because the military judge considered evidence of two summary court-martial punishments in purported violation of the decision in United States v. Booker, 5 M.J. 238 (C.M.A.1977). The record of trial was forwarded to the Judge Advocate General of the Navy for return to the convening authority for appropriate action.

The Judge Advocate General of the Navy, pursuant to Article 67(b)(2), Uniform Code of Military Justice, 10 U.S.C. § 867(b)(2), referred appellant’s case to this Court for consideration of the following issues:

I
Whether the United States Court of Military Appeals decision in United States v. Cannon, 5 M.J. 198 (C.M.A.1978), with its reliance upon Stovall v. Denno, 388 U.S. 293 [87 S.Ct. 1967, 18 L.Ed.2d 1199] (1967), renders inadmissible adjudications by summary court-martial which were conducted prior to the decision in United States v. Booker, 5 M.J. 238 (C.M.A.1977), in light of the results in Stovall and Desist v. United States, 394 U.S. 244 [89 S.Ct. 1030, 22 L.Ed.2d 248] (1969). See also United States v. Janis, 428 U.S. 433 [96 S.Ct. 3021, 49 L.Ed.2d 1046] (1976); Stone v. Powell, 428 U.S. 465 [96 S.Ct. 3037, 49 L.Ed.2d 1067] (1976); Michigan v. Tucker, 417 U.S. 433 [94 S.Ct. 2357, 41 L.Ed.2d 182] (1974); Adams v. Illinois, 405 U.S. 278 [92 S.Ct. 916, 31 L.Ed.2d 202] (1972).
II
If the first certified question be answered in the negative, was the United States Navy Court of Military Review correct in its determination that Seaman Recruit SYRO was prejudiced by the introduction of two summary court-martial adjudications which were final prior to the decision in United States v. Booker, supra.

The facts which give rise to the certified questions are as follows. During the sentencing portion of this special court-martial, the military judge considered evidence of two prior summary court-martial punishments of the appellant. This evidence was introduced by the Government solely for purposes of aggravation. See generally para. 75a, Manual for Courts-Martial, United States, 1969 (Revised edition). Defense counsel objected to the admission of this evidence on the grounds that the Government had not demonstrated compliance4 with the mandates of United States v. Booker, supra. These earlier disciplinary proceedings were concluded on August 29, 1977, and September 29, 1977, subsequent to the Supreme Court’s decision in Middendorf v. Henry, 425 U.S. 25, 96 S.Ct. 1281, 47 L.Ed.2d 556 (1976), but prior to our decision in United States v. Booker, supra, which was handed down on October 11, 1977. Yet, unlike the situation in United States v. Cannon, 5 M.J. 198 (C.M.A.1978), these records of summary court-martial proceedings were admitted at a special court-martial tried after the date of our decision in United States v. Booker, supra, and they were not used for purposes of enhancement. See para. 127(c), Manual, supra.

In substance,5 the Judge Advocate General of the Navy asks whether the rec[433] ord of punishment at a summary court-martial completed prior to our decision in United States v. Booker, supra, may be introduced in aggravation of sentence at a special or general court-martial, conducted after the date of that decision, without compliance with its mandates. Moreover, assuming a finding of improper admission of such a record, he queries whether such an impropriety was prejudicial in the Syro case as found by the United States Navy Court of Military Review. The first question, as paraphrased above, we answer in the affirmative, thus making it unnecessary to reach the second question raised by the Judge Advocate General.

The decision in United States v. Booker, supra, established several different requirements for the admission of records of prior disciplinary proceedings, depending upon the purpose of their introduction at subsequent special or general courts-martial. First, as a general threshold requirement, the Government has to demonstrate in writing that the person suffering such a disciplinary punishment was advised of the right to confer with counsel prior to accepting such a disciplinary hearing. This evidentiary prerequisite was developed to fill an existing interstice in military law. It was a necessary response, as a matter of military criminal trial practice, to the due process considerations recently recognized as inherent in the statutory removal options provided in Articles 15 and 20, UCMJ, 10 U.S.C. §§ 815 and 820, respectively. See United States v. Booker, supra at 243. Additional requirements for admissibility were mandated depending upon the characterization and use of the summary court-martial as a conviction for purposes of paras. 75b, 127c and 153b, Manual, supra, at a later criminal proceeding. These requirements were deemed necessary in view of the Supreme Court’s decision in Middendorf v. Henry, supra; particularly, that Honorable Court’s reluctance to characterize punishment at a disciplinary proceeding as “a stamp of ‘bad character’ [coincident to a criminal] conviction.”6

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United States v. Syro, 7 M.J. 431, 1979 CMA LEXIS 8914 (cma 1979).

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