

   
   
   
   U.S. v. Anderson



UNITED STATES, Appellee
v.
Douglas A. ANDERSON, Jr., Lance Corporal
U.S. Marine Corps, Appellant
 
No. 99-0911
Crim. App. No. 97-0058
 
United States Court of Appeals for the Armed
Forces
Argued February 4, 2000
Decided on August 25, 2000
SULLIVAN, J., delivered the opinion of the
Court, in which GIERKE, and EFFRON, JJ., and EVERETT, S.J., joined. CRAWFORD,
C.J., filed a dissenting opinion.
Counsel
For Appellant: Lieutenant Hardy Vieux,
JAGC, USNR (argued)
For Appellee: Captain Danny R. Fields,
USMC (argued); Colonel Kevin M. Sandkuhler, USMC and Commander
Eugene E. Irvin, JAGC, USN (on brief).
Military Judge: J. F. Blanche
 
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION.
 
 

Judge SULLIVAN delivered the opinion of the
Court.
During the summer of 1996, appellant was tried
by a military judge sitting alone at a general court-martial at Camp Pendleton,
California. In accordance with his pleas, he was found guilty of conspiracy
to commit robbery and aggravated assault; unauthorized absence (114 days);
and robbery, in violation of Articles 81, 86, and 122, Uniform Code of
Military Justice, 10 USC §§ 881, 886, and 922, respectively.
He was sentenced to a dishonorable discharge, confinement for 20 years,
total forfeitures, and reduction to the lowest enlisted grade. The convening
authority approved the sentence with some modification of the forfeiture,
and the United States Navy-Marine Corps Court of Criminal Appeals affirmed
the findings and sentence. United States v. Anderson, No. 97-00058
(N.M. Ct. Crim. App. 27 May 1999). On reconsideration, the appellate court
below again affirmed the findings and sentence but pursuant to United
States v. Gorski, 47 MJ 370 (1997), returned the record to the Judge
Advocate General for appropriate action. United States v. Anderson,
50 MJ 856 (N.M. Ct. Crim. App. 24 June 1999).
On October 22, 1999, this Court granted review
on the following issue:

WHETHER THE LOWER COURT ERRED IN NOT FINDING
THAT THE CHIEF OF STAFF'S APPENDED NOTE TO THE STAFF JUDGE ADVOCATE'S RECOMMENDATION
CONSTITUTED "NEW MATTER" NECESSITATING COUNTERVAILING COMMENTARY BY DEFENSE
COUNSEL AS REQUIRED BY RCM 1106(f)(7).

We hold that the appellate court below erred in
finding that the chief of staff's note did not constitute "new matter"
or "matters adverse to the accused from outside the record" under RCM 1106(f)(7)
and 1107(b)(3)(B)(iii), Manual for Courts-Martial, United States (1995
ed.). */ See United States
v. Cook, 46 MJ 37, 40 (1997). We further hold that appellant has made
a colorable showing of prejudice requiring a new staff judge advocates
recommendation and convening authoritys action. Cf. United States
v. Wheelus, 49 MJ 283, 289 (1998).
The record before us shows that on February
7, 1996, appellant lured the officer of the day (OD) (Staff Sergeant Kern)
away from his post on a pretext; and then, while appellant's civilian co-actor
lay on the ground feigning being drunk, appellant struck the OD in the
back of the head with a 25¼-inch wooden T-ball bat. R. 131-33, 144-52.
The victim did not fall after the first blow to the back of his head. Id.
The bat broke on the second blow, rendering the victim unconscious. R.
133. Appellant fled and then his co-actor took the victim's 9 millimeter
service pistol and ammunition clip, both of which were never recovered.
R. 133-39, 153. Immediately after this incident, appellant and his co-actor
fled the base to the nearby civilian community via a "getaway" car driven
by another co-actor. R. 153-54. Appellant remained an unauthorized absentee
until he was apprehended on March 22, 1996. R. 124.
As noted above, appellant was found guilty
and sentenced on September 26, 1996. The staff judge advocate signed a
post-trial recommendation on December 13, 1996, that was duly served on
the defense on December 16, 1996. This post-trial recommendation included
discussion of a lengthy clemency request submitted by appellant to the
convening authority on December 2, 1996. The staff judge advocate attached
and summarized the submission, advising the convening authority that he
was required to consider it before taking action, and recommended that
the sentence be approved as adjudged. The defense did not offer any additional
comments or corrections to the recommendation.
Although the post-trial recommendation was
addressed directly to the convening authority, the chief of staff of the
convening authority paperclipped a small note (3²
x 3½²
) to the last page of the recommendation with the following typewritten
comment:



From: Chief of Staff
To: Commanding General
 

For information.
 

Lucky he didn't kill the SSgt. He's
a thug, Sir. [hand-written]
 
 Very respectfully,
[Chief of Staff's initials]



(Emphasis added.)
The entire package was then forwarded to the
convening authority. There is no evidence in the record that the staff
judge advocate saw the chief of staff's note or that it was served on appellant
or his defense counsel, and the Government has not contested appellant's
representation that the note was not so served. On December 27, 1996, the
convening authority took his final action, rejected appellant's earlier
clemency request for a reduction in confinement, and approved appellant's
sentence as adjudged.

____ ____ ____
Appellant asserts that the chief of staff's
note appended to the staff judge advocates recommendation in his case
amounted to "new matter" that was not disclosed to him and which he had
a right to rebut. See RCM 1106(f)(7). He also argues that this note
constituted "matters adverse to the accused from outside the record" considered
by the convening authority that he had a right to be notified of and to
rebut. See RCM 1107(b)(3)(B)(iii); Final Brief at 14. The appellate
court below held that the chief of staff's comments were neither new nor
adverse matters within the meaning of these provisions. Instead, it reasoned
that they were "[f]air comments derived from the record of trial about
the offenses of which the appellant was convicted"; "the comments contained
no substantive information from outside the record; they offered no recommendation
or addressed any issue not previously discussed"; and "nothing in the comments
was false, misleading, incomplete, or highly detrimental to the accused."
United States v. Anderson, 50 MJ at 859. We disagree.
RCM 1106(f)(7) states:

(7) New matter in addendum to recommendation.
The staff judge advocate or legal officer may supplement the recommendation
after the accused and counsel for the accused have been served with the
recommendation and given the opportunity to comment. When new matter
is introduced after the accused and counsel for the accused have examined
the recommendation, however, the accused and counsel for the accused must
be served with the new matter and given 10 days from service of the addendum
in which to submit comments. Substitute service of the accused's copy of
the addendum upon counsel for the accused is permitted in accordance with
the procedures outlined in subparagraph (f)(1) of this rule.

Discussion
"New matter" includes discussion of the effect
of new decisions on issues in the case, matter from outside the record
of trial, and issues not previously discussed. "New matter" does not
ordinarily include any discussion by the staff judge advocate or legal
officer of the correctness of the initial defense comments on the recommendation.
The method of service and the form of the proof of service are not prescribed
and may be by any appropriate means. See RCM 1103(b)(3)(G). For
example, a certificate of service, attached to the record of trial, would
be appropriate when the accused is served personally.

(Emphasis added.)
The clear intent of this provision is to permit
the staff judge advocate or legal officer (not the chief of staff or some
other officer in the chain of command) to supplement the staff judge advocates
recommendation. See generally Article 6(b), UCMJ, 10 USC
§ 806(b) ("Convening authorities shall at all times communicate directly
with their staff judge advocates or legal officers in matters relating
to the administration of military justice. . . ."); Cooke v. Orser,
12 MJ 335, 344 (CMA 1982) (noting that Congress intended special relationship
between commander and staff judge advocate). The attachment of these comments
to the post-trial recommendation without the knowledge or approval of the
staff judge advocate was legal error. See United States v. Hensley,
52 MJ 391, 393 (2000) (holding that it was error for someone other than
ship's legal officer to prepare post-trial recommendation); United States
v. Finster, 51 MJ 185, 188-89 (1999) (holding that erroneous use of
statutorily unqualified person to prepare post-trial recommendation requires
new recommendation and action).
Assuming no error as noted above, this Court
must still determine whether the chief of staffs note was "new matter"
within the meaning of RCM 1106(f)(7). We have not comprehensively defined
this term but we have dealt with the issue of "new matter" in several cases.
See United States v. Buller, 46 MJ 467, 468 (1997). In United
States v. Young, 9 USCMA 452, 453, 26 CMR 232, 233 (1958), the Court
ruled that the staff judge advocate's unserved written opinion that the
appellant had "forced on society the burden of caring for his illegitimate
offspring" constituted new matter. In United States v. Catalani,
46 MJ 325, 327-28 (1997), the Court held that the staff judge advocate's
unserved statement of fact that "[a]ll of the matters submitted for your
consideration in extenuation and mitigation were offered by the defense
at trial; and the senior-most military judge in the Pacific imposed
a sentence that, in my opinion, was both fair and proportionate to
the offense committed" was new matter. (Emphasis added.) In United States
v. Chatman, 46 MJ 321, 323 (1997), the Court held that the staff judge
advocate's referral to the accused's inadmissible second positive urinalysis
in his unserved rebuttal to his clemency request was new matter. In each
of these cases, our overarching concern was "fair play." See United
States v. Buller, supra at 469.
We conclude that the note attached to the staff
judge advocate's recommendation by the chief of staff was new matter as
delineated in this case law. First, his comments constituted an
opinion on appellants character submitted after the staff judge advocates
recommendation had been served and signed for by appellant. See
United States v. Young, supra. Second, his comments
were made after appellant submitted a lengthy request for clemency to the
convening authority. Cf. United States v. Chatman, supra.
Third, the comments were made and attached to the staff judge advocate's
recommendation by an officer who did not testify at trial and whose stature
suddenly became an issue in this case. See United States v. Catalani,
supra at 328-29. In our view, fair play dictates that the belated
comments on appellants case by a command officer be considered new matter.
See United States v. Cook, supra at 40 (note extolling
experience of military judge as reason for not granting clemency was new
matter).
The same result is reached under RCM 1107(b),
which provides:

(3) Matters considered.
 
(A) Required matters. Before taking
action, the convening authority shall consider:
 
(i) The result of trial;
(ii) The recommendation of the staff judge
advocate or legal officer under 1106, if applicable; and
(iii) Any matters submitted by the accused
under RCM 1105 or if applicable, RCM 1106(f).
 
(B) Additional matters. Before taking action
the convening authority may consider:
 
(i) The record of trial;
(ii) The personnel records of the accused;
and
(iii) Such other matters as the convening authority
deems appropriate. However, if the convening authority considers matters
adverse to the accused from outside the record, with knowledge of which
the accused is not chargeable, the accused shall be notified and given
an opportunity to rebut.



(Emphasis added.)
The chief of staff's comments that appellant
was a "thug" and that he was "lucky" he did not kill the victim were clearly
adverse matters from outside the record. These statements were neither
neutral nor trivial. See United States v. Jones, 44 MJ 242,
243-44 (1996). They constituted an unfavorable opinion on appellant's rehabilitative
potential from the second most important officer of the command, a matter
of devastating import. See United States v. Cook, 46 MJ at
40. Moreover, the chief of staff was not a witness in this case and his
opinion was not otherwise reflected in the record of trial or the recommendation
served on appellant. In effect, appellant was denied an opportunity to
respond to this post-trial reprimand by the chief of staff. See
United States v. Leal, 44 MJ 235, 237 (1996).
The appellate court below also found that,
even if there was error, there was no material prejudice to appellant's
substantial rights. United States v. Anderson, 50 MJ at 859-60.
In United States v. Chatman, 46 MJ at 323-24, we required that an
appellant "demonstrate prejudice by stating what, if anything, would have
been submitted to deny, counter, or explain the new matter. . . ." (Internal
quotation marks omitted.) "[T]he threshold should be low, and if an appellant
makes some colorable showing of possible prejudice, we will give that appellant
the benefit of the doubt and we will not speculate on what the convening
authority might have done if defense counsel had been given an opportunity
to comment." Id. at 323-24 (internal quotation marks omitted); see
also United States v. Cornwell, 49 MJ 491, 493 (1998).
Here, appellate defense counsel proffers that
appellant would have contested his characterization as a "thug" and challenged
the chief of staffs assertion that the victim was almost killed. In particular
he claimed that appellant would show the victim was not near death at the
time of the offense, "returned to duty and was fully deployable." Appellant's
Brief at 11. Appellate counsel also points out that appellant received
no clemency from the convening authority for his near maximum adjudged
sentence (1 and 1/2 years short of maximum authorized punishment). In light
of this Courts low threshold for relief noted above, we conclude appellant
was entitled to a new staff judge advocates recommendation with an opportunity
to respond and a new convening authoritys action. Cf. United
States v. Cornwell, 49 MJ at 493. Appellants conviction must stand;
however, he is entitled to an opportunity for sentence relief.
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is affirmed as to findings and set aside
as to sentence. The action of the convening authority is set aside. The
record of trial is returned to the Judge Advocate General of the Navy for
submission to a different convening authority (person) for a new recommendation
and action on the sentence.
FOOTNOTE:
*/ The 1998 version of
these Manual provisions is unchanged.


CRAWFORD, Chief Judge (dissenting):
This case reflects the needless litigation
that arises when commanders and their chief legal advisors fail to communicate
directly in matters relating to the administration of military justice.
See Art. 6(b), UCMJ, 10 USC § 806. While "there is nothing
in the UCMJ or the Manual for Courts-Martial prohibiting a convening authority
from consulting with his subordinate commanders or members of his staff
other than his SJA regarding a petition for clemency," United States
v. Cornwell, 49 MJ 491, 493 (1998), personal opinions, such as the
one the chief of staff appended to appellants post-trial clemency package,
are not helpful and can be destructive to our system of military justice.
SJAs should remind deputy commanders and chiefs of staff that the decisions
as to military criminal law are personal to the convening authority. It
would be a far better practice for the SJA to inform these individuals
after the commanding general has made his or her decision.
Nonetheless, appellant is entitled to no relief
under the facts of this case. While I do not view the chief of staffs
gratuitous comments as new matter, these comments are, nonetheless, inappropriate.
If the commanding general had given his chief of staff a copy of the staff
judge advocates recommendation and appellants clemency package, and asked
the chief of staff for an oral recommendation, the chief of staffs comments
would not have been considered new matter under our holding in Cornwell.
I do not understand how the non-substantive written remarks of the chief
of staff in this case are any different.
Assuming, as does the majority, that the chief
of staffs note constituted new matter, I find nothing therein that would
have required service on appellant and an opportunity for rebuttal. RCM
1107(b)(3)(B)(iii) provides that "if the convening authority considers
matters adverse to the accused from outside the record, with knowledge
of which the accused is not chargeable, the accused shall be notified and
given an opportunity to rebut." I view the language used by the chief of
staff as a fair inference arising from and based upon the facts contained
within the record of trial.
As found by the Court of Criminal Appeals,
the staff noncommissioned officer "suffered a fractured skull and a concussion,
and he lost his sense of smell and taste." 50 MJ 856, 859. In stating that
appellant was "lucky he didnt kill the SSgt," the chief of staff was not
attempting to make some extraordinarily revealing medical analysis. In
my view, he was merely saying that when one person hits a second person
over the head with a baseball bat twice, fractures that persons skull,
and gives the victim a concussion, both parties (assailant and victim)
are fortunate that a death did not occur. Accordingly, appellants proposed
rebuttal (that the victim was never near death, returned to duty, and was
fully deployable) is of no consequence.
Contrary to the majoritys view, I do not read
the chief of staffs note as saying that the victim was almost killed.
Were that the case, I would fully agree that new matter was introduced
and appellant would have had the right to comment thereon. There are many
people who are "lucky to be alive." "Lucky to be alive" is not synonymous
with "almost killed."
Accordingly, because I see no substantive new
matter introduced by the chief of staff or find any error prejudicial to
appellants substantial rights, I respectfully dissent. United States
v. Cornwell, supra; Art. 59(a), UCMJ, 10 USC § 859(a).


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