United States v. Frazier

FULTON, Senior Judge,

concurring in the result:

I agree with the result reached by my Brothers, affirming the findings of guilty and the sentence, but prefer to put my reasoning on a somewhat different footing. Under Military Rule of Evidence 103(a), the lack of any meaningful objection by the trial defense counsel to the evidence of his client’s previous convictions results in a failure to preserve that issue for appellate review. See United States v. Blackshear, 568 F.2d 1120 (5th Cir. 1978). However, Rule 103(d) provides that, even if the error was not brought to the attention of the military *781judge, we may take notice of “plain errors that materially prejudice substantial rights.” Mil.R.Evid. 103(d). Even so, I would not dwell on the questions whether or how the military judge should have admitted the evidence of previous convictions for I am fully convinced that this evidence did not influence even slightly the findings of guilty made by the military judge and, therefore, no substantial right was prejudiced. See Kotteakos v. United States, 328 U.S. 750, 764-65, 66 S.Ct. 1239, 1247-48, 90 L.Ed. 1557 (1946).

As for the recital in the order announcing the sentence that there were “Three previous convictions considered,” examination of earlier court-martial manuals indicates to me that this administratively customary remark was meant to refer only to those brought forth at that point in the presentencing portion of the trial reserved for the entry of previous court-martial convictions. See, e.g., Manual for Courts-Martial, 1917, para. 306 and App. 11 at 376; U.S. Dep’t of Army, Technical Manual 27 — 255, Military Justice Procedure, para. 29, App. 2 at 211, App. 24 at 269 (1945). Now that civilian as well as military convictions are expressly made admissible at this point (see Manual for Courts-Martial, United States, 1969 (Revised edition), para. 755(3) (1981)), one may suppose they should be included in the number of previous convictions cited in the promulgating order, but none at all were introduced or referred to at that point in appellant’s trial. Accordingly, I agree that this erroneous administrative remark should be stricken from the promulgating order.