United States v. Rembert

OPINION OF THE COURT

WATKINS, Judge:

Consistent with his pleas, the appellant was convicted of two specifications of robbery of United States currency from other servicemen in violation of Article 122, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 922. The approved sentence included a bad-conduct discharge, confinement at hard labor for one year, and forfeiture of all pay and allowances.

Subsequent to findings, the trial counsel offered in evidence four records of punishment pursuant to Article 15, UCMJ, 10 U.S.C. § 815. Citing United States v. Booker, 3 M.J. 443 (C.M.A.1977), republished 5 M.J. 238 (C.M.A.1977), opinion on reconsideration 5 M.J. 246 (C.M.A.1978), defense counsel objected to the admissibility of these documents. The trial judge admitted two of the records, which were administratively completed prior to the Booker decision, and rejected the other two. Following the trial, in his post-trial review, the staff judge advocate advised the convening authority of the nature and substance of these rejected prosecution exhibits.

Appellant argues that the former two records of punishment were improperly admitted into evidence and, additionally, that it was error for the staff judge advocate to advise the convening authority of the two latter documents, which had been ruled inadmissible during the sentencing portion of the trial. Disposition of these assignments of error necessarily involves an interpretation of United States v. Booker, supra, a case which already has undergone some judicial refinement.1

At issue in that case was the question whether a record of conviction by a summary court-martial was properly admissible to authorize additional punishment under section B, paragraph 127c, Manual for Courts-Martial, United States, 1969 (Revised edition). The Court of Military Appeals held that only a summary court-martial in which the accused was represented by counsel or had executed a valid waiver of counsel could be used for the purpose of enhancing punishment under the “escalator clause” of the Table of Maximum Punishments of the Manual. Where the accused elected disposition by a summary court-martial subsequent to receipt of advice of counsel regarding the right of removal, but was denied legal representation at the summary court-martial, such a record could be used in aggravation only as evidence of the character of prior service.

Initially, it is my view that the rule of Booker, supra, extends not only to records of summary court-martial but also to those of nonjudicial punishment. I regard the language of United States v. Cannon, 5 M.J. 198 (C.M.A.1978), as persuasive in that regard. As to this case, it is necessary to examine the two documents of record to determine whether they evince a valid waiver of the right of removal for trial in a criminal proceeding. I note that in each instance appellant was advised of his right to demand trial by court-martial and, additionally, of the location of a lawyer with *906whom he could consult in deciding what he wanted to do. In both circumstances, his decision was manifested by a check on the form indicating that “Trial by court-martial . is not demanded.” Each of these entries was subscribed by the date, appellant’s typed signature and rank, and, most importantly, his personal signature. Keeping in mind the underlying role of nonjudicial punishment within the military justice system (particularly its relationship to other punitive elements of the system), as well as federal criminal practice regarding the admissibility, during the post-findings phase of trial, of previously documented incidents of criminal misconduct on the part of the defendant (in the form of ex parte-type presentencing reports, or otherwise), I am satisfied that in the context of this case the questioned exhibits affirmatively establish a valid waiver of the right to demand trial by court-martial.2 Accordingly, the former two records of nonjudicial punishment were properly admitted into evidence by the military judge.

With respect to appellant’s other contention, that the staff judge advocate erred in advising the convening authority of the two records of nonjudicial punishment which had been excluded from evidence during the sentencing portion of the trial, I am unpersuaded that the comments of the staff judge advocate were improper in this instance.3 Further, the irregularity, if any, was waived by the failure of the trial defense counsel to object to this information when he examined the staff judge advocate’s post-trial review of the case.4

The findings of guilty and the sentence are affirmed.

. Subsequent to republication of United States v. Booker, 5 M.J. 238 (C.M.A.1977), the Court of Military Appeals, on reconsideration, modified its earlier holding in the case and ruled that summary court-martial jurisdiction was not limited solely to minor military offenses unknown in a civilian society, but, with the exception of capital crimes, could be extended over serious offenses in violation of the UCMJ. In United States v. Cannon, 5 M.J. 198 (C.M.A. 1978), the same high Court clarified the manner in which Booker is to be applied. The holding was that Booker is applicable only to cases tried or retried subsequent co 11 October 1977, the date of publication of the Booker opinion. The Court again lumped together Articles 15 and 20, 10 U.S.C. §§ 815 and 820, UCMJ, for the purpose of reiterating the Booker rule. Interestingly, neither Booker nor Cannon involved records of nonjudicial punishment imposed pursuant to Article 15, UCMJ (10 U.S.C. § 815).

. Of similar import are United States v. Gordon, 5 M.J. 653 (A.C.M.R.1978), and United States v. Washington, 5 M.J. 615 (A.C.M.R. 1978).

. See, e. g., United States v. Blake, 50 C.M.R. 603 (A.C.M.R.1975); United States v. Watkins, 39 C.M.R. 696 (A.B.R.1968).

. See, United States v. Morrison, 3 M.J. 408 (C.M.A.1977); United States v. Barnes, 3 M.J. 406 (C.M.A.1977); United States v. Goode, 1 M.J. 3 (C.M.A.1975).