United States v. Thompson

22 C.M.A. 448
CourtUnited States Court of Military Appeals
DecidedAugust 24, 1973
DocketNo. 26,896; No. 26,897
StatusPublished

This text of 22 C.M.A. 448 (United States v. Thompson) 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. Thompson, 22 C.M.A. 448 (cma 1973).

Opinion

OPINION

Quinn, Judge:

Each of these cases presents the same question as to the effect of a summarized record of trial of a general court-martial.

A general court-martial convicted Thompson, on his plea of guilty, of five counts of attempted pandering and sentenced him to forfeiture of pay of $200 per month for 4 months and reduction to pay grade E-l. The military judge authenticated a summarized record of trial, which defense counsel "examined,” without comment. On review of this record, the convening authority approved. the findings of guilty and the sentence. The record was forwarded to the Judge Advocate General, as provided by Article 65(a), UCMJ, 10 USC § 865(a), and was referred by him, under the provisions of Article 69 of the Code, to the Court of Military Review. Proceeding en banc, all the judges of the court agreed that, by law, the record of the trial proceedings was required to be verbatim, not summarized, but they divided over the proper way to handle the error. A majority held that the error could be "purged by reducing the sentence to one which can lawfully be adjudged by a general court-martial when a nonverbatim record is prepared;” reasoning that a nonverbatim record could be prepared if the sentence adjudged by the general court-martial did not include a discharge and did not exceed that which a special court could adjudge, Article 54(a), UCMJ, 10 USC § 854(a), it reduced the forfeitures from $200 per month to $150 per month to accomplish that result.1 The dissenting judges were of the opinion that the only proper remedy was to return the record for preparation of a verbatim transcript of the trial of proceedings. The Acting Judge Advocate General of the Army certified the case to us to review the correctness of the disposition effected by the majority.

Rogers was convicted by a general court-martial of assault with a dangerous weapon and was sentenced to reduction to grade E-l, confinement at hard labor for 6 months, and forfeiture of $288 pay per month for 6 months. As in Thompson’s case, the trial judge authenticated a summarized record of trial, which was "examined” by Rogers’ civilian counsel without comment. Also, as in Thompson’s case, after approval of the sentence by the convening authority, the [450]*450Judge Advocate General submitted the record to the Court of Military Review for review. Relying upon the en banc decision in Thompson’s case, a panel of the court reduced the amount of forfeiture from $288 to $192 to adjust the sentence to one that could have been adjudged by a special court and otherwise affirmed the action of the convening authority. The decision was certified to this Court for review.

Although the parties are agreed that in a trial by general court-martial, the record of the trial proceedings must be verbatim where the sentence adjudged by the court exceeds that which could be adjudged by a special court-martial, the nature of their respective arguments makes it worthwhile to consider first what legal requirement, if any, exists to prepare a verbatim record when trial results in findings of guilty and a sentence. In terms of constitutional right, the United States Supreme Court reviewed the matter in Miller v United States, 317 US 192, 198 (1942):

It has become the usual, because the more convenient, method to prepare a bill of exceptions by the use of a stenographic transcript of the evidence. Even so, the bill ought not to contain all of the evidence but only that which is relevant to the issues made upon the appeal and often it is expedient and satisfactory to summarize the evidence and transmute it into narrative form. Historically a bill of exceptions does not embody a verbatim transcript of the evidence but, on the contrary, a statement with respect to the evidence adequate to present the contentions made in the appellate court. Such a bill may be prepared from notes kept by counsel, from the judge’s notes, from the recollection of witnesses as to what occurred at the trial, and, in short, from any and all sources which will contribute to a veracious account of the trial judge’s action and the basis on which his ruling was invoked.

More recently, the Supreme Court has determined that destitute defendants "must be afforded as adequate appellate review as defendants who have money enough to buy transcripts” of the record. Griffin v Illinois, 351 US 12, 19 (1956). As a result, in cases in which the Government allows appeal from a conviction, it must furnish an indigent accused with a transcript of the trial proceedings for his use on appeal. The transcript, regarded by the Supreme Court as constitutionally adequate, is not a verbatim transcript but one of "sufficient completeness” to allow proper consideration of what transpired at trial. Coppedge v United States, 369 US 438, 446 (1962). In Draper v Washington, 372 US 487, 495-96 (1963), recently reaffirmed in Mayer v Chicago, 404 US 189 (1971), the Court said:

Alternative methods of reporting trial proceedings are permissible if they place before the appellate court an equivalent report of the events at trial from which the appellant’s contentions arise. A statement of facts agreed to by both sides, a full narrative statement based perhaps on the trial judge’s minutes taken during trial or on the court reporter’s untranscribed notes, or a bystander’s bill of exceptions might all be adequate substitutes, equally as good as a transcript. Moreover, part or all of the stenographic transcript in certain cases will not be germane to consideration of the appeal, and a State will not be required to expend its funds unnecessarily in such circumstances. If, for instance, the points urged relate only to the validity of the statute or the sufficiency of the indictment upon which conviction was predicated, the transcript is irrelevant and need not be provided. If the assignments of error go only to rulings on evidence or to its sufficiency, the transcript provided might well be limited to the portions relevant to such issues. Even as to this kind of issue, however, it is unnecessary to afford a record of the proceedings pertaining to an alleged failure of proof on a point which is irrelevant as a matter of law to the elements of the crime for which the defendant has been convicted. In the examples given, the fact that an appellant with funds may choose to waste his money by unnecessarily including in the record all of the transcript does not mean that the State must waste its funds by providing what is unnecessary for adequate appellate review. In all cases the [451]*451duty of the State is to provide the indigent as adequate and effective an appellate review as that given appellants with funds — the State must provide the indigent defendant with means of presenting his contentions to the appellate court which are as good as those available to a non-indigent defendant with similar contentions. (Footnote omitted.)

From the foregoing, it is apparent that there is no constitutional right to a verbatim transcript of the trial proceedings for review of a conviction. The requirement for a verbatim transcript must, therefore, be traced to the Uniform Code of Military Justice and authorized supplementary regulations.

The Uniform Code provides for three types of courts-martial, the general court, the special court, and the summary court. The record of trial of each is subject to review. See Moyer, Procedural Rights of the Military Accused: Advantages Over a Civilian Defendant, 22 Maine L Rev 105, 127-129 (1970).

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Related

Miller v. United States
317 U.S. 192 (Supreme Court, 1942)
Griffin v. Illinois
351 U.S. 12 (Supreme Court, 1956)
Coppedge v. United States
369 U.S. 438 (Supreme Court, 1962)
Draper v. Washington
372 U.S. 487 (Supreme Court, 1963)
Mayer v. City of Chicago
404 U.S. 189 (Supreme Court, 1971)
United States v. Whitman
3 C.M.A. 179 (United States Court of Military Appeals, 1953)
United States v. Nelson
3 C.M.A. 482 (United States Court of Military Appeals, 1953)

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Bluebook (online)
22 C.M.A. 448, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-thompson-cma-1973.