U.S. v. Kahmann, 59 M.J. 309

Trial Stages: Sentence and Punishment: Evidence

1. admission of a prior summary court-martial conviction into evidence during the sentencing proceeding did not constitute plain error; there is no legal requirement that the document reflecting the prior conviction contain on its face a notation that the accused had an opportunity to speak with counsel before the summary court-martial and that there has been a compliance with the review requirements under Article 64, UCMJ; in the absence of a defense objection, the Government does not have an affirmative duty to present evidence on these matters as a condition of admissibility
2. the point at which a service member must decide whether to object to an informal proceeding is an important stage in the military justice process; in recognition of the key role that counsel can play in advising a service member at that point, our Court has limited the admissibility of such records when the accused has not had the opportunity to consult with counsel
3. in a sentencing proceeding, the prosecution may introduce certain personnel records of the accused, including records of punishment under Article 15; the defense may object to the admission of a record on the grounds that it is inaccurate, incomplete, not made or maintained in accord with departmental regulations, or that the record otherwise contains inadmissible evidence; the accused also may object on the grounds that he or she was not provided with the opportunity to confer with counsel before deciding whether to demand trial by court-martial
4. during sentencing, the prosecution also may introduce prior convictions of the accused, including convictions by summary court-martial; among the objections that may be made to the admissibility of a summary court-martial conviction, the accused may cite the absence of proof of review under Article 64, UCMJ; in addition, the accused may object to the admissibility of a summary court-martial conviction on the grounds that the accused was not provided with the opportunity to consult with counsel prior to deciding whether to object to the proceeding
5. under M.R.E. 103, a ruling admitting evidence will not be overturned on appeal unless there was an appropriate objection at trial, subject to consideration of plain error; in a case decided prior to the adoption of M.R.E. 103 that involved the admissibility of a prior summary court-martial conviction, our Court indicated that the military judge had an affirmative duty to ensure that the accused had been afforded an opportunity to consult with counsel and had affirmatively waived the right to object to trial by summary court-martial; in subsequent cases, we have suggested that M.R.E. 103 governs the admissibility of records reflecting summary court-martial convictions and nonjudicial punishment, although we have not expressly based a decision on that position; we do so today
6. a document that summarizes a summary court-martial conviction or nonjudicial punishment does not differ in significant respects from other records that are subject to M.R.E. 103; recognition of the importance of the opportunity to consult with counsel prior to an election concerning a nonjudicial punishment proceeding or a summary court-martial does not require differential treatment with respect to plain error analysis; accordingly, we hold that admissibility of the record from such a proceeding is governed by the objection and plain error provisions of M.R.E. 103
7. the placement on the record of summary court-martial conviction of a statement that the accused had been afforded an opportunity to consult with counsel prior to electing to proceed with the summary court-martial may be desirable as a matter of policy, particularly in view of the fact that an objection to the document requires the Government to prove that the accused was afforded the opportunity to consult with counsel, and the Government must do so without compelling the accused to provide such evidence; the admissibility of such a record, however, does not depend upon the placement of such a statement on the face of the document, and the prosecution may prove that the accused was afforded the opportunity to consult with counsel through other evidence; absent objection by the defense, the prosecution is under no obligation to introduce such evidence
8. with respect to appellant’s contention that the military judge erred by admitting the record of a summary court-martial conviction when the document did not contain a notation that review had been completed under Article 64, appellant has not identified any statutory, regulatory, or judicial requirement to place such a notation on a document summarizing a conviction by summary court-martial; if the defense objects to the admissibility of a document summarizing a summary court-martial conviction on the grounds that there is no evidence of review under Article 64, the burden is on the prosecution to demonstrate that such review has been completed; the opportunity to object is sufficient to protect appellant’s rights under R.C.M. 1001(b)(3)(B), and the military judge is not required to inquire on his or her own motion whether such review has been completed

Trial Stages: Appeals: Preservation of Error / Plain Error

1. we analyze a claim of plain error under the three-part standard of United States v. Powell, 49 M.J. 460, 464-65 (C.A.A.F. 1998); that is, (1) whether there was an error; (2) if so, whether the error was plain or obvious; and (3) if the error was plain or obvious error, whether it was prejudicial
2. absent timely objection, irregularities do not provide a basis for relief without a showing that any errors were plain or obvious, or that they were prejudicial