United States v. Cree

OPINION COOK, Judge: The accused contends that the staff judge advocate’s post-trial review is prejudicially misleading because it conveys an impression that he was convicted of wrongfully communicating a threat, whereas he was acquitted of that offense. He relies upon United States v. Lindsey, 23 U.S.C.M.A. 9, 48 C.M.R. 265 (1974). This case is not like United States v. Lindsey. There, the staff judge advocate represented that the accused had been convicted of an offense when, in fact, he had been acquitted; here, the staff judge advocate twice iterated that the accused was acquitted of the offense in issue. Thus, the post-trial advice is factually correct. What then is wrong with it? According to appellate defense counsel the error consists of the inclusion of a summary of the evidence as to the acquitted offense and an enumeration of the elements of the offense. There can be occasions when summarization of the evidence presented in regard to an offense of which the accused has been acquitted may be properly included in the review. For example, an accused tried for larceny and unauthorized absence might be convicted only of the latter offense. His acquittal of the larceny charge could have come about because of evidence of his excellent character1 and that evidence would certainly have a place in the review, at least in consideration of the sentence. But even if [211] the evidence as to the acquitted offense is unfavorable, it still can properly be included in the review. A convening authority may consider matter bearing upon an accused’s sentence that is not part of the evidence relating to the offenses of which the accused is convicted. Matter relevant to the sentence may come even from sources outside the transcript of trial.2 While the accused must be accorded the opportunity to rebut or explain adverse material from outside the record of trial,3 the inclusion of such matter in the post-trial advice is legally correct. True, matter relating to the sentence alone normally appears in a part of the review dealing with that aspect of the case, whereas, here it appears in the section summarizing all the evidence introduced at trial. As we read the review, the staff judge advocate was merely following his formula for preparation of the advice, which provided for a summary of all the testimony in the order in which witnesses testified and an enumeration of the elements of all offenses charged in the order in which the offenses were listed on the charge sheet. That sort of approach may be pedestrian, but it is neither unlawful nor deceptive. The decision of the Court of Military Review is affirmed. Footnotes [1] See United States v. Barnhill, 13 U.S.C.M.A. 647, 33 C.M.R. 179 (1963). [2] United States v. Vara, 8 U.S.C.M.A. 651, 25 C.M.R. 155 (1958); United States v. Griffin, 8 U.S.C.M.A. 206, 24 C.M.R. 16 (1957). Of course, such evidence cannot be used to increase the sentence adjudged by the court-martial, but it can militate against reduction or mitigation of the adjudged sentence. [3] The accused here was accorded the opportunity to rebut matter contained in the advice. No rebuttal was presented. See United States v. Goode, 23 U.S.C.M.A. 367, 50 C.M.R. 1, 1 M.J. 3 (1975).