Digest of Opinions: The Judge Advocates General of the Armed Forces

§ 4.1. Generally.

§ 4. Previous Convictions

Effect of president of court having attested record of previous convictions, see CGCMS 19945, Smith, CRT-M § 11.8.

§ 4.3. Time of commission or conviction.

Evidence of a previous conviction of the accused was properly considered where he was convicted of two offenses which were committed subsequent to the offense to which the previous conviction related although a third offense of which he was convicted had been committed prior to the offense to which the previous conviction related. (Citing MCM, 1951, par 75b (2).) NCM 368, Gayton (1954) 17 CMR 538.

§ 4.5. Proof of previous convictions, generally.

In sentencing the accused, two previous convictions were considered. The evidence of each conviction was in the form of a certified copy of a document entitled "Action of The General Counsel as Supervisory Authority (Pursuant to Sec. 0107 CG Supp and Par 94 MCM 1951)", from the files of the Courts Section, Legal Division, U. S. Coast Guard, Washington, D. C. These copies were shown to be part of the official personnel records of the accused. The first document recited that the accused was tried by summary court-martial on a certain date, that the convening authority approved and ordered executed so much of the adjudged sentence "as provided for confinement at hard labor for thirty days and forfeiture of $44.00 for one month", that the record of trial was reviewed in accordance with UCMJ, Art 65(c), and that the proceedings and findings were correct in law and fact and the sentence approved. The second document referred to a trial by special court-martial in which the sentence, as approved and ordered executed by the convening authority, extended to reduction to the grade of seaman recruit, confinement at hard labor for four months, and forfeitures of $25.00 per month for a like period and it concluded with the same recitals of review and approval of the sentence. Both actions were signed by the General Counsel of the Treasury. Held: The exhibits herein constituted competent evidence of previous convictions. Under UCMJ, Art 65(c), special and summary court-martial convictions, of the kind referred to in this case, are not previous convictions until reviewed by an appropriate supervisory authority (U. S. v. McKnight (No. 3363), 4 USCMA 190, 15 CMR 190). The best evidence that such action has been taken is the action itself. Thus, the order promulgating the results of trial, or the service record entry of a special court conviction, provide prima facie evidence of finality (U. S. v. Larney (No. 775), 2 USCMA 563, 10 CMR 61). But that showing is rebuttable; and the rebuttal evidence may directly appear in the order or entry (U. S. v. Anderson (No. 1569), 2 USCMA 606, 10 CMR 104). The supervisory authority's action. also provides uncontestable evidence of the finality of a summary court-martial conviction. (Cf. U. S. v. McKnight, supra.) Since the accused interposed no objections to the admission of the evi

dence it was properly before the court. Except in unusual cases, a failure to object to admission of evidence on a proper ground prevents the accused from raising the issue on appeal. No exceptional circumstances are present here. (Citing U. S. v. Fisher (No. 3318), 4 USCMA 152, 15 CMR 152.) The evidence being properly before the court, it was sufficient to permit the imposition of additional punishment since although information as to the nature of the previous offenses is desirable, a description of the offense is not the only indication of its gravity. The final sentence also constitutes a reliable index of that fact. (Citing MCM, 1951, par 76; U. S. v. Prescott (No. 812), 2 USCMA 122, 6 CMR 122.) [Brosman, J., concurring states that had the defense counsel objected to the evidence of previous convictions offered it should have been ruled inadmissible.] United States v. Clark (No. 4571), 4 USCMA 650, 16 CMR 224, affirming CGCMS 19961, Clark, 14 CMR 536.

The accused was found guilty of absence without leave from 6 July 1954 to 30 August 1954. His sentence included a bad conduct discharge. After the finding of guilty and before the imposition of sentence the trial counsel announced he had evidence of previous convictions and thereupon proceeded to read what purported to be entries from five court memorandum forms used for recording courtmartial convictions in a Coast Guard service record. There was no objection from the accused. No supporting document of any kind was offered or received in evidence, or even marked for identification nor was any exhibit or copy of any court memorandum form attached to the record. Held: The bad conduct discharge was not authorized since there was no legally acceptable proof of any previous convictions and the offense was committed prior to Executive Order 10565, permitting a punitive discharge without proof of previous convictions in cases of absence without leave for more than thirty days. (Citing U. S. v. Carter (No. 159), 1 USCMA 108, 2 CMR 14; U. S. v. Trimiar, (No. 413), 1 USCMA 262, 2 CMR 169; U. S. v. Schabel (No. 440), 1 USCMA 275, 3 CMR 9; U. S. v. Hand (No. 450), 1 USCMA 301, 3 CMR 35; U. S. v. Deweese (No. 633), 1 USCMA 400, 3 CMR 134; U. S. v. Townsend (No. 597), 1 USCMA 441, 4 CMR 33; CGCMS 19242, Anderson, 4 CMR 459; U. S. v. Marshall (No. 3531), 5 USCMA 31, 17 CMR 31, 15 October 1954.) CGCMS 20067, Perry (1954) 17 CMR 548.

§ 4.7. Necessity of completion of review of previous conviction.

At the trial, the prosecution introduced evidence of a previous conviction by special court-martial under which the accused was sentenced to confinement at hard labor for thirty days and forfeiture of $35.00 per month for six months. The exhibit relating the prior conviction contained a blank space which, if filled out, would indicate that review in the sense of UCMJ, Art 44b had been completed. However, the space remained blank. Held: The government failed to carry its burden of proving properly the previous conviction and the exhibit constituted an insufficient basis for the imposition of additional punishment under par 127c, MCM, 1951. The sentence imposed under the previous conviction did not include a punitive discharge,

but UCMJ, Art 65c, requires that this type of case be reviewed by a law specialist of the Navy and that thereafter the record be transmitted and disposed of as the Secretary of the Department may prescribe by regulations. If accepted at face value the prosecution exhibit must be interpreted as establishing that review has not been completed. (Citing U. S. v. Engle (No. 1971), 3 USCMA 41, 11 CMR 41; Distinguishing U. S. v. Tiedemann (No. 615), 1 USCMA 595, 5 CMR 23.) United States v. Pope (No. 5158), 5 USCMA 29, 17 CMR 29.

The trial of the accused took place from 9 to 14 September 1954. At his trial the prosecution introduced in evidence a record of previous convictions showing that he had been previously tried and convicted of certain offenses on 28 April 1954 and that the sentence was approved on 13 May 1954. Reference to the files in the office of the Judge Advocate General showed that appellate review of the previous trial was completed on 5 August 1954, prior to the trial in the instant case, but the order promulgating the results of the trial were not published until 11 October 1954, thirty-two days after the instant trial. Held: The time interval between the previous conviction and the trial in the instant case was not so short that it shows an improbability of final approval overcoming the prima facie showing of finality. Nor is there evidence in the record that the appellate review had not been completed. (Cf. U. S. v. Larney (No. 775), 2 USCMA 563, 10 CMR 61; U. S. v. Anderson (No. 1569), 2 USCMA 606, 10 CMR 104; U. S. v. Reed (No. 1321), 2 USCMA 622, 10 CMR 120.) The finality of a conviction by court-martial is dependent upon the exhaustion of appellate review and not upon the issuance of orders promulgating the results of trial. Court-martial orders serve only to coordinate the administrative actions to be taken affecting the convicted person and his relationship with the military service. Accordingly, appellate review of the previous conviction had been completed prior to the trial in the instant case and therefore the previous conviction was properly admissible in evidence. (Citing MCM, 1951, pars 75b (2), 90 and 100c; UCMJ, Art 44 (b); U. S. v. Wilson and Harvey (No. 647), 2 USCMA 248, 8 CMR 48.) ACM 9704, Raullerson (1955) 18 CMR 706.

§ 4.11. Punishment authorized.

The accused was found guilty of unauthorized absence for nine days. Upon evidence of two previous convictions he was sentenced to perform hard labor for sixty days, to forfeit $50 in pay, to be reduced in grade and to be discharged with a bad conduct discharge. The supervisory authority concluded that the forfeiture provisions were illegal because no period of confinement was adjudged and when par 127c, Section B, MCM, 1951, is utilized no forfeiture can be imposed for a period in excess of the period of confinement adjudged. Held: The forfeiture in the instant case was legal. The limitation of forfeitures to the period of confinement contained in par 127c, Section B, MCM, 1951, applies only to instances where both confinement and forfeitures are predicated upon the accelerating provisions of Section B, when awarded with a bad conduct discharge, otherwise not provided for, upon proof of two previous convictions.

Inasmuch as these forms of punishment are severable, that portion of the sentence adjudging a bad conduct discharge can be substantiated by application of Section B and that portion relating to forfeitures involved a proper application of the Table of Maximum Punishments, Section A, par 127c, MCM, 1951. In other words, the forfeiture in this case was legal as it was predicated upon Section A which authorizes, under Art 86, a forfeiture of pay not to exceed two days' pay for each day of unauthorized absence. The court found the accused guilty of nine days' absence which permitted it to adjudge a total forfeiture of eighteen days' pay. (Citing U. S. v. Prescott (No. 812), 2 USCMA 122, 6 CMR 122; U. S. v. Watkins (No. 834), 2 USCMA 287, 8 CMR 87.) NCM 363, Thomas (1954) 17 CMR 522.

§ 5. Deliberation and Voting

§ 5.5. Presence of law officer or others.

The record showed that after the court had reopened but before it was called to order after deliberating on the findings, the president held a conference with the law officer. The reporter's notes stated that the conference related to the proper wording of the findings, however, it also stated that the conference was out of the hearing of the reporter, the counsel for both sides, accused, and members of the court. Held: The occurrence of the unrecorded conference requires a rehearing, even as to one of the offenses to which the accused pleaded guilty, since it cannot be determined what was discussed at the conference and it might possibly have affected either the findings or sentence. The reporter's statement that the conference was limited to the form of the findings cannot be accepted in view of the further statement that it took place out of the reporter's hearing. (Citing U. S. v. Walters (No. 3734), 4 USCMA 617, 16 CMR 191; ACM S-5718, Franklin, 9 CMR 741; U. S. v. Vaughan (No. 788), 3 USCMA 121, 11 CMR 121; U. S. v. Miskinis (No. 1535), 2 USCMA 273, 8 CMR 73; CM 356153, Bonds, 6 CMR 365; U. S. v. Adamiak (No. 4032), 4 USCMA 412, 15 CMR 412.) [Gottlieb, J.A., concurring in part and dissenting in part, states that the findings of guilty of the offense to which the accused pleaded guilty should be affirmed, since the fact that the conference took place after the court had deliberated on its findings and the fact that after the court had closed to vote on the sentence it opened and requested the advice of the law officer concerning the sentence that might be adjudged, make it reasonable to infer that the questioned conference did not relate to the sentence but only to the findings.]

Held also: The practice of courts-martial using findings work sheets upon which they set down their determinations of guilt and the presentation of such work sheets to the law officer in open court for his examination before the findings are officially announced is consistent with the Manual. However, where used, the work sheet should be attached to the record as an appellate exhibit and all comments between the court and the law officer concerning it should be fully recorded. (Citing U. S. v. Kupfer (No. 2733), 3 USCMA 478, 13 CMR

34; U. S. v. Adamiak (No. 4032), 4 USCMA 412, 15 CMR 412.) ACM 9101, Myles (1954) 17 CMR 796.

The law officer was called into conference after the court had decided upon a sentence of dishonorable discharge, forfeiture of all pay and allowances and confinement at hard labor for six months. A discussion took place during which the law officer told the court that the forfeiture provisions of the sentence were illegal to the extent that they were in excess of two months. As a result of this conference the court gave the accused the same sentence it had originally decided upon minus the total forfeitures. Held: The tradition of non-participation of the law officer in the deliberations of the court on the sentence has now become sufficiently well established in the service so that it is possible to assess the occasional lapses in terms of specific prejudice rather than general prejudice. (See U. S. v. Keith (No. 503), 1 USCMA 493, 4 CMR 85.) Hereafter, in applying a specific prejudice standard to the participation by the law officer in the deliberations of a court-martial, the Court of Military Appeals will utilize a rebuttable presumption that prejudice did in fact result from such participation. In the present case, however, every possibility of harm to the accused is refuted by the circumstance that the sentence originally settled on by the court was more severe than that ultimately announced. The closed conference related solely to forfeitures and all reference to this punitive action was deleted in the sentence announced in open court while other portions of the proposed penalty remained intact. The court-martial simply pared off a portion of the punishment initially contemplated, an action which could not possibly have harmed the accused. (Cf. U. S. v. Adamiak (No. 4032), 4 USCMA 412, 15 CMR 412; U. S. v. Walters (No. 3734), 4 USCMA 617, 16 CMR 191.) United States v. Allbee (No. 5572), 5 USCMA 448, 18 CMR 72, affirming CGCM 9819, Allbee, 16 CMR 454, infra this section.

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Digest of Opinions: The Judge Advocates General of the Armed Forces, Volume 4