UNITED STATES, Appellee
v.
Collin J. CARTER, Private First Class
U.S. Army, Appellant
No. 14-0792
Crim. App. No. 20121046
United States Court of Appeals for the Armed Forces
Argued February 11, 2015
Decided June 10, 2015
BAKER, C.J., delivered the opinion of the Court, in which
ERDMANN, RYAN, and OHLSON, JJ., joined. STUCKY, J., filed a
separate opinion concurring in the result.
Counsel
For Appellant: Captain Patrick A. Crocker (argued); Colonel
Kevin Boyle (on brief); Lieutenant Colonel Jonathan F. Potter.
For Appellee: Captain Jihan Walker (argued); Colonel John P.
Carrell and Major John K. Choike (on brief); Lieutenant Colonel
James L. Varley and Major A. G. Courie III.
Military Judge: Wendy P. Daknis
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Carter, No. 14-0792/AR
Chief Judge BAKER delivered the opinion of the Court.
A general court-martial composed of officer and enlisted
members convicted Appellant, contrary to his pleas, of one
specification of an indecent act in violation of Article 120,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920 (2012).
The panel sentenced Appellant to six months of confinement,
reduction to E-1, forfeiture of all pay and allowances, and a
bad-conduct discharge. Appellant was awarded twenty-seven days
of confinement credit: two of those days were for pretrial
confinement and twenty-five days for Article 13, UCMJ, 10 U.S.C.
§ 813 (2012), violations. The convening authority approved the
sentence, which included the twenty-seven days of credit, and
the United States Army Court of Criminal Appeals affirmed.
This Court granted review of the following issue:
WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION BY
PREVENTING DEFENSE COUNSEL FROM PRESENTING FACTS OF
APPELLANT’S UNLAWFUL PRETRIAL PUNISHMENT AS MITIGATION
EVIDENCE AT SENTENCING.
For the reasons set forth below, we hold that the military judge
did not abuse her discretion when, based upon her reasoned
interpretation of case law, she determined that Appellant could
not present the Article 13, UCMJ, violations to the panel
members as mitigation evidence after already being awarded
confinement credit by the military judge based upon that same
evidence. We also conclude, however, that the law does not
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create a per se rule against the accused being allowed to
present evidence of an Article 13, UCMJ, violation to the
military judge and also to the panel, so long as that evidence
is otherwise admissible pursuant to the relevant rules of
evidence and procedure.
Presenting Article 13, UCMJ, evidence in these two
different contexts serves two distinct purposes. A military
judge considers evidence of Article 13, UCMJ, violations to
determine, as a matter of law, whether the accused is entitled
to credit for the government’s conduct. However, when a panel
considers that same evidence properly admitted as mitigation on
sentencing, it is doing so for the purpose of determining an
appropriate sentence for an appellant’s conduct. As with other
evidence offered in sentence mitigation, this evidence is
subject to Military Rule of Evidence (M.R.E.) 403 balancing,
rebuttal, and instruction.
Background
In April 2012 at or near Camp Casey, Republic of Korea,
Appellant was reported to have engaged in sexual conduct with CG
while she was substantially incapacitated and while other
soldiers were present. When Appellant was called into
questioning, he was, according to defense counsel, “subjected to
significant unlawful pretrial punishment.”
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At trial, defense counsel moved for confinement credit on
the basis that Appellant was subjected to restrictions which
amounted to unlawful pretrial punishment, in violation of
Article 13, UCMJ. Defense counsel initially asked for forty-
five days of confinement credit. Before the military judge
ruled on the motion, however, trial and defense counsel agreed
upon twenty-five days of credit for the unlawful pretrial
punishment. When asked by the military judge whether he agreed
with the number of days of credit awarded, Appellant said yes.
Following the confinement credit agreement, defense counsel
attempted to introduce a witness at presentencing to testify
about the pretrial violations. Trial counsel objected on the
basis of relevancy. In response defense counsel argued the
testimony was relevant in mitigation to the possible sentence.
The military judge at this point sustained the objection finding
that the issue had already been addressed with the confinement
credit.
Later in the proceedings, however, the military judge gave
defense counsel an opportunity to further elaborate on the
relevance of the testimony. Defense counsel explained that the
Article 13, UCMJ, violations could serve as mitigating evidence
as the members contemplated the appropriate sentence. After
reconsideration, the military judge again sustained the
Government’s objection. She specifically based her decision on
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existing case law discussing Article 15, UCMJ, 10 U.S.C. § 815
(2012), nonjudicial punishment which, according to the military
judge, is analogous to Article 13, UCMJ, and should be
interpreted to mean that defense counsel “has an option as to
how to present that evidence; one of four ways.” See United
States v. Gammons, 51 M.J. 169, 183 (C.A.A.F. 1999). Those four
options include: (1) introducing the evidence for consideration
by the court-martial during sentencing; (2) introducing the
evidence during an Article 39(a), UCMJ, 10 U.S.C. § 839(a)
(2012), session and having that evidence adjudicated by the
military judge for the purpose of receiving credit; (3)
presenting evidence to the convening authority before action is
taken on the sentence; or (4) choosing not to raise the issue
for any sentencing purpose. Gammons, 51 M.J. at 183. She
additionally explained that since defense counsel already chose
to present that evidence to the military judge in the context of
seeking pretrial confinement credit, giving defense counsel a
second opportunity to present the evidence, this time for
sentence mitigation, would effectively be giving Appellant a
“second bite at the apple.”
Standard of Review
A military judge’s decision to admit or exclude evidence at
sentencing is reviewed for an abuse of discretion. United
States v. Stephens, 67 M.J. 233, 235 (C.A.A.F. 2009). The
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admission of sentencing evidence is subject to the M.R.E. 403
balancing test and the substantive law and procedures set forth
in Rule for Courts-Martial (R.C.M.) 1001. United States v.
Manns, 54 M.J. 164, 166 (C.A.A.F. 2000) (citing United States v.
Rust, 41 M.J. 472, 478 (C.A.A.F. 1995)). A military judge is
given “‘wide discretion’” and more deference if she properly
conducts the balancing test and articulates her reasoning on the
record. Id. (quoting Rust, 41 M.J. at 478).
Discussion
1. Legal Background
The military judge in this case relied primarily on this
Court’s decisions in Gammons, 51 M.J. 169, and United States v.
Southwick, 53 M.J. 412 (C.A.A.F. 2000), overruled on other
grounds by United States v. Inong, 58 M.J. 460, 464 (C.A.A.F.
2010), to find that defense counsel must choose between
presenting evidence of Article 13, UCMJ, violations to the
military judge in seeking confinement credit, or presenting the
same evidence to the panel for the purpose of sentence
mitigation.
In Gammons, a case pertaining to evidence of Article 15,
UCMJ, nonjudicial punishment (NJP), this Court suggested that,
“the accused, as gatekeeper, may choose whether to introduce the
record of a prior NJP . . . and may also choose the forum for
making such a presentation.” 51 M.J. at 183. The opinion went
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on to list the four alternatives available to defense counsel
for presenting the evidence, and it is from this discussion that
our subsequent Southwick decision, which dealt with Article 13,
UCMJ, violations, derives. See Southwick, 53 M.J. at 416.
Specifically, in Southwick this Court stated that a
decision concerning how to present evidence was a “trial tactic
. . . because [it] involved an election between two available
alternatives.” Id. (citing Gammons, 51 M.J. at 182-84). In
characterizing the election between the members or military
judge as a trial tactic, however, the only specific support
Southwick cites is the dicta in Gammons.1 Id. Moreover, the
ultimate question before the Court in Southwick was a waiver
issue, not a question as to whether defense counsel was
precluded from presenting evidence of Article 13, UCMJ,
violations both for credit and in mitigation. As a result,
these cases did not create a clear and binding precedent
concerning the question before us now of whether, when there is
evidence of an Article 13, UCMJ, violation, that evidence can be
presented to the military judge for confinement credit and then
subsequently, to the panel in connection with the issue of
sentence mitigation.
1
The Southwick opinion also cites United States v. Edwards, 42
M.J. 381 (C.A.A.F. 1995) for support, though the context in that
case was slightly different as it concerned a bench trial and
thus the election between the military judge and the convening
authority, not members, in seeking relief.
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The fact that this question remains unresolved despite the
Gammons and Southwick cases was further highlighted in United
States v. Barnett, 71 M.J. 248, 253-54 (C.A.A.F. 2012) (Erdmann,
J., concurring specially). Although not the issue on appeal,
the underlying facts of that case showed that defense counsel
did present Article 13, UCMJ, evidence twice: first to a
military judge and then to a panel. Id. at 250. Trial counsel
did not oppose the presentation to members and the military
judge also allowed it. Id. And notably, when this Court heard
oral argument in the present case, Government counsel conceded
that Article 13, UCMJ, evidence can be presented to both the
military judge and the sentencing authority. These facts
underscore the inconsistency and confusion that exists in court-
martial practice as it relates to Article 13, UCMJ, evidence
presentation. Judge Erdmann’s special concurring opinion in
Barnett noted that the question as to whether or not defense
counsel can present Article 13, UCMJ, evidence to both the
military judge and the panel remains unanswered. Id. at 253-54
(Erdmann, J., concurring specially).
It is to this continuing uncertainty we turn.
2. Presenting Article 13, UCMJ, Evidence
We start with three propositions.
First, the question of whether an accused was unlawfully
punished under Article 13, UCMJ, is one that includes a finding
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of law, and thus is a question that must be answered by the
military judge. United States v. Spaustat, 57 M.J. 256, 260
(C.A.A.F. 2002) (“The proper applications of credit for illegal
pretrial punishment . . . are questions of law, reviewed de
novo.”). The Military Judges’ Benchbook specifically instructs
the military judge in an Article 39(a), UCMJ, session without
members present, to ask defense counsel whether the accused was
subject to any Article 13, UCMJ, pretrial punishment. Dep’t of
Army, Pam. 27-9, Legal Services, Military Judges’ Benchbook ch.
2, § V, para. 2-5-15 (2014). If the military judge is convinced
by the evidence presented that it is “more likely than not [the
accused] suffered from illegal pretrial punishment, then [the
accused] would be entitled to (additional) credit against any
sentence.” Id. at § VII, para. 2-7-11.
Second, Article 13, UCMJ, credit is distinct from NJP
credit and should not be treated in the same way. “Article 13,
UCMJ, credit is provided for conduct in which the government has
already engaged. In other words, it is relief for the
government’s conduct, not a sentencing factor related to the
accused’s offense.” Barnett, 71 M.J. at 255 (Baker, C.J.,
concurring in part and in the result). It is the military judge
who awards Article 13, UCMJ, credit as a matter of law whereas
it is the trier of fact who assesses mitigation evidence as a
matter of sentence assessment and discretion. Where an accused
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has already received credit for NJP, he would indeed get “double
credit” for the same restriction were members to award him
credit as well. Should members take Article 13, UCMJ, evidence
into account when assessing a sentence, however, the accused is
not receiving credit twice for the same conduct. This is,
indeed, a case of apples and oranges. See Barnett, 71 M.J. at
255 (Baker, C.J., concurring in part and in the result). Thus,
an accused should not have to choose between presenting a
question of law to the military judge or to members. As a
question of law, the military judge should determine whether the
government has violated Article 13, UCMJ, and whether credit
is due.
Third, as a distinct matter, after a guilty finding,
defense counsel may present “[m]atter[s] in mitigation” which is
evidence introduced “to lessen the punishment to be adjudged by
the court-martial, or to furnish grounds for a recommendation of
clemency.” R.C.M. 1001(c)(1)(B). However, the opportunity to
do so remains subject to the rules of evidence and procedure.
Although the rules of evidence can be relaxed by a military
judge during sentencing, R.C.M. 1001(c)(3), mitigation evidence
also remains subject to M.R.E. 402 and M.R.E. 403.
Additionally, if defense counsel chooses to present the Article
13, UCMJ, violations to the panel for purposes of sentence
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mitigation, trial counsel may rebut the evidence, subject to the
same rules of evidence.
As is the case with Article 15, UCMJ, credit for NJP, the
military judge should, as necessary, give tailored instructions
to the panel members to distinguish between Article 13, UCMJ,
credit addressed to the government’s conduct, and the use of
such evidence in mitigation. The evidence of Article 13, UCMJ,
violations coupled with the number of days of confinement credit
already awarded can thereby be weighed as part of the totality
of the evidence the panel members consider when determining the
appropriate sentence for the accused. See Barnett, 71 M.J. at
254 (Baker, C.J., concurring in part and in the result) (“These
questions required a tailored response rather than a repeat of
the standard instruction.”).
Prior case law indicates that when and whether to raise
Article 13, UCMJ, is a matter of trial tactics. It remains so.
In choosing to present the Article 13, UCMJ, evidence to the
panel, including the number of days already credited the
accused, defense counsel may even risk that the panel members
consider that factor in favor of a harsher sentence than would
have been assessed without knowledge of the credit. It is for
that same reason, however, that allowing a military judge to
first determine whether Article 13, UCMJ, violations occurred as
a matter of law and awarding confinement credit where relevant,
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and subsequently allowing a panel to consider the totality of
the evidence -- including that there was an Article 13, UCMJ,
violation -- does not provide defense counsel two bites at the
apple. Rather, the evidence is at play in two different stages
of the trial, and presented for different purposes.
3. The Military Judge Did Not Abuse Her Discretion
Nonetheless, we conclude in this case that the military
judge did not abuse her discretion in ruling against Appellant.
At the time, she was presented with what was expressly
acknowledged by Judge Erdmann’s special concurrence in Barnett,
71 M.J. at 253-54, as an unsettled question of law and, relying
on the relevant cases including Gammons and Southwick, provided
on the record sound reasoning to support her ruling. Notably,
the military judge made a point of researching the relevant law,
and stated, for the record, the logical steps she took to reach
her conclusion. She grappled first with the link between
Article 13, UCMJ, and Article 15, UCMJ, cases by relying on
Southwick, concluding that the articles “can be treated
similarly in terms of how the evidence is presented to the panel
members.” By linking Article 13, UCMJ, and Article 15, UCMJ,
she then could rely on the Gammon language, as Southwick did, to
support her conclusion that raising a motion for confinement
credit, and then also introducing the Article 13, UCMJ, evidence
to panel members, was giving defense counsel “two bites at the
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apple.”2 As she weighed the law and evidence before her,
articulated for the record why she reached her conclusion, and
her findings were not clearly erroneous, the military judge did
not abuse her discretion.
Conclusion
The military judge in this case did not abuse her
discretion in ruling that defense counsel could not present
evidence of Article 13, UCMJ, violations for sentence mitigation
after first presenting it to the military judge and receiving
confinement credit. We also clarify the law and conclude,
however, that there is no per se rule against defense counsel
presenting evidence of Article 13, UCMJ, violations to both the
military judge, for a finding of law, and to the panel, for the
purpose of sentencing. Therefore, the decision of the United
States Army Court of Criminal Appeals is affirmed.
2
She also acknowledged that in Barnett, 71 M.J. 248, defense
counsel did present the evidence twice, but subsequently
determined that Barnett was not applicable because, unlike in
the present case, trial counsel had failed to object to defense
counsel’s presentation of evidence.
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STUCKY, Judge (concurring in the result):
In essence, the majority concludes that an appellant may
seek credit for illegal pretrial punishment from the military
judge and still present evidence of such illegal pretrial
punishment to the court members as mitigation. Under this
Court’s current jurisprudence and interpretation of Rule for
Court-Martial 1001(c)(2), I agree. I disagree with the Court’s
holding that the military judge did not abuse her discretion in
excluding the evidence. Nevertheless, I concur in the result
because Appellant was not prejudiced.
A military judge abuses her discretion if her findings of
fact are clearly erroneous or her conclusions of law are
incorrect. United States v. Olson, 74 M.J. 132, __ (5)
(C.A.A.F. 2015). The Court correctly holds that the military
judge’s conclusion of law -- that Appellant was not entitled to
both request credit from the military judge for illegal pretrial
punishment and present evidence of such to the court members --
was incorrect. Therefore, the military judge abused her
discretion.
It matters not that the law was “unsettled” at the time of
her decision. “[A] new rule for the conduct of criminal
prosecutions is to be applied retroactively to all cases . . .
pending on direct review or not yet final, with no exception for
cases in which the new rule constitutes a ‘clear break’ with the
United States v. Carter, No. 14-0792/AR
past.” Griffith v. Kentucky, 479 U.S. 314, 328 (1987); see also
Henderson v. United States, 133 S. Ct. 1121, 1124–25 (2013)
(holding that even when an appellate court reviews for plain
error because the appellant failed to timely assert his claim at
trial, whether the law was settled or unsettled at the time of
trial, the error is plain as long as it was plain at the time of
appellate review). Appellant raised the issue at trial and is
entitled to the benefit of this Court’s ruling that the excluded
evidence was admissible.
Nevertheless, I conclude Appellant was not prejudiced by
the military judge’s error. See Article 59(a), Uniform Code of
Military Justice (UCMJ), 10 U.S.C. § 859(a) (2012). Appellant
was convicted of committing an indecent act, which carried a
maximum sentence of a dishonorable discharge and confinement for
five years. Manual for Courts-Martial, United States pt. IV,
¶ 45.f.(6) (2008 ed.). Had the military judge permitted
Appellant to present the excluded evidence, she no doubt would
have instructed the members that the parties had agreed, and she
had ordered, that Appellant was entitled to a credit of twenty-
five days against any sentence to confinement because of the
illegal pretrial punishment. A defense witness testified that
he was aware that Appellant had wrongfully used a Schedule II
controlled substance and had urinated on his commander’s
vehicle. Court members sentenced Appellant to a bad-conduct
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discharge, confinement for six months, forfeiture of all pay and
allowances, and reduction to the lowest enlisted grade. In
light of all of the facts and circumstances, the error in
excluding the evidence did not have a substantial influence on
the sentence adjudged by the court-martial. See United States
v. Custis, 65 M.J. 366, 371 (C.A.A.F. 2007).
3