United States v. McGary

OPINION OF THE COURT FOREMAN, Judge: Contrary to his pleas, the appellant was convicted of three specifications of possession of marihuana and two specifications of sale of marihuana, in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934 (1976). He was sentenced by the military judge to a bad-conduct discharge, confinement at hard labor for three months, forfeiture of $334.00 pay per month for three months, and reduction to Private E-l. The convening authority approved the sentence. The appellant contends that a record of nonjudicial punishment (Prosecution Exhibit 4) was inadmissible because it failed to reflect the legal review by a judge advocate, even though the punishments imposed required such a review prior to adjudication of appellant’s appeal from the punishment. See Article 15(e), Uniform Code of Military Justice, 10 U.S.C. § 815(e) (1976). He further contends that the defect in Prosecution Exhibit 4 was “plain error” which was not waived by the trial defense counsel’s failure to make a timely and specific objection. See Mil.R.Evid. 103(a), (d). The appellant relies on United States v. Guerrero, 10 M.J. 52 (C.M.A.1980), which held a record of non judicial punishment inadmissible for failure to reflect the required legal review by a judge advocate. See also United States v. Mack, 9 M.J. 300, 324 (C.M.A.1980). We believe that a different result is required in this case, because, unlike Guerrero and Mack, it was tried after the effective date of the Military Rules of Evidence, which contemplate a much broader waiver rule. See United States v. Gordon, 10 M.J. 278, 279 n.1 (C.M.A.1981); United States v. McLemore, 10 M.J. 238, 240 n.1 (C.M.A.1981). While the absence of a written legal review on the form may render the form incomplete and subject to objection, it does not establish that the required legal review was not performed. Unlike the other steps in the imposition of nonjudicial punishment, which are required to be reduced to writing on the DA Form 2627, there is no requirement that the legal review be reduced to writing. While Article 15(e) and paragraph 135 of the Manual for Courts-Martial, United States, 1969 (Revised edition), require a legal review, they do not require that it be reduced to writing. Unlike paragraphs 3-12, 3-23 and 3-25 of Army Regulation 27-10,1 which require that the action taken be recorded in the appropriate block of DA Form 2627,2 paragraph 3-26 merely states, “When an appeal is referred to a judge advocate, he will consider the case and advise the authority who is to act on the appeal either orally or in writing.” (Emphasis added.) Consequently the absence of an entry in Block 8 of DA Form 2627 establishes only that the legal review, if any, was not reduced to writing on the form. Such an omission makes the form incomplete, as would the omission of the appellant’s social security number or unit or the dates of the various procedural steps. Gf., Mack, supra, at 322 n.29 (Omissions in a supplemental form would make it “suspect and subject to objection.”). Raising the issue by appropri [762] ate objection would be consistent with the purpose of the Military Rules of Evidence to “litigate all such matters at the trial level and to permit evidentiary foundational defects to be cured by the offering party if possible. . . . ” United States v. Taylor, 12 M.J. 561, at p. 562 (A.C.M.R.1981). Guerrero and Mack do not hold that the absence of an entry in Block 8 of DA Form 2627 affirmatively establishes that the legal review was not performed. Those cases stand only for the proposition that proof of the required legal review is necessary to lay a proper foundation for the document. Absence of such proof is a foundational defect, frequently curable upon timely and specific objection, and waivable by failure to object. In the absence of any indication that invoking waiver will cause a miscarriage of justice, impugn the reputation or integrity of the courts or amount to a denial of a fundamental right, we hold that the defect in Prosecution Exhibit 4 was waived. Mil.R.Evid. 103(a); see United States v. Beaudion, 11 M.J. 838 (A.C.M.R.1981), pet. denied, 12 M.J. 181 (C.M.A.1981). The appellant also contends that he was prejudiced by multiplicious pleading, in that he was charged with two specifications of possession of marihuana based upon his possession of a single cache of marihuana. We disagree. Since the case involved the appellant’s possession of marihuana at two different times and places and in connection with two separate transactions, the multiplicious pleading was justified by the exigencies of proof and hence not “unreasonable.” We also believe that the appellant waived any multiplicity issue for findings by his failure to make a timely objection. United States v. Huggins, 12 M.J. 657 (A.C.M.R.1981). For sentencing purposes, we presume that the military judge knew and correctly applied the law. See United States v. Montgomery, 20 U.S.C.M.A. 35, 39, 42 C.M.R. 227, 231 (1970); United States v. Bethea, 2 M.J. 892, 897 (A.C.M.R.1976). Accordingly, we find no prejudice as to sentence. The findings of guilty and the sentence are affirmed. Senior Judge CARNE concurs. Footnotes [1] Army Regulation 27-10, Legal Services, Military Justice, 26 November 1968 (as changed). [2] DA Form 2627, Record of Proceedings under Article 15, UCMJ, 1 December 1978, shown at figure 3-2, Army Regulation 27-10, supra.