Petition for Writ of Certiorari — Florida v. Smith

Supreme Court, U.S.

D FILED

97 938 DEC -4 1997

OFFICE OF THE CLERK

No.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

MASTER SERGEANT WILLIAM M. HAMILTON,

PETITIONER

V.

UNITED STATES OF AMERICA, RESPONDENT

Petition For a Writ of Certiorari to the

United States Court of Appeals for the Armed Forces

PETITION FOR WRIT OF CERTIORARI

Tishlyn Estelle Taylor

Captain, United States Air Force

Appellate Defense Division

Counsel of Record

Douglas H. Kohrt

Colonel, United States Air Force

Chief, Appellate Defense Division

Counsel for the Petitioner

Air Force Legal Services Agency

Appellate Defense Division

112 Luke Avenue, Suite 343

Bolling AFB, DC 20332-8000

(202) 767-1562

November 1997

31 PP:

QUESTION PRESENTED

Whether the Court of Appeals for the Armed Forced

erred in finding that the appellant was not prejudiced by errors

in the Staff Judge Advocate’s Recommendation and

Addendum thereto, including preparation of the

Recommendation by trial counsel’s spouse and erroneous

advice in the Addendum to the effect that legal error is not an

appropriate basis for corrective action by the convening

authority.

TABLE OF CONTENTS

Page

QUESTION PRESENTED ........-----seeeeeeerrreee i

TABLE OF AUTHORITIES ........---- es ce reece eces iv

OPINIONS BELOW ...........ccccccsec eee cereecaes

WET TIN « bn co ich ph ea chen ee ers cewsaueneess

STATEMENT OF THE CASE........--- eee eeeeeeeee

REASON FOR GRANTING THE WRIT ........-------

THE COURT OF APPEALS FOR THE ARMED

FORCES ERRED IN FINDING THAT THE

PETITIONER WAS NOT PREJUDICED BY

ERRORS IN THE STAFF JUDGE ADVOCATE’S

RECOMMENDATION AND ADDENDUM

THERETO, INCLUDING PREPARATION OF

THE RECOMMENDATION BY _ TRIAL

COUNSEL’S SPOUSE AND ERRONEOUS

ADVICE IN THE ADDENDUM TO THE EFFECT

THAT LEGAL ERROR IS NOT AN

APPROPRIATE BASIS FOR CORRECTIVE

ACTION BY THE CONVENING AUTHORITY.

CR IE, oii ve ccctewtinweos sp abaeiereens 18a

APPENDIX A

(Opinion of the United States Court of Appeals

for the Armed Forces)........---+-eeeeeeerecees la

APPENDIX B

(Opinion of the United States Air Force .

Court of Criminal Appeals). .........-+-0++++0e5 10a

iv

TABLE OF AUTHORITIES

page

Military Cases:

United States v. Coulter, 3 U.S.C.M.A.

O57. RSL: Fo SESS noe a ee Seek Fs se 6

United States v. Crunk, 4 U.S.C.M.A. 290,

5 Cr ee ee aa es hc ee eee ba be ash eka 4

United States v. Hightower, 5 U.S.C.M.A.

Sad, A ee ED ok eas oe ow ek eRe eat Se 4

United States v. Kerwin, 47 M.J. 588

CAT. 4A. Com: Aah, SD a a oa his eke RS i 7

United States v. McCormick, 34 M.J. 752

(RS OE Wee 6 ener ek eae ieee ah he

United States v. Reed, 33 M.J. 98

a ES os oe eee eek oe ee was 6

United States v. Thompson, 3 M.J. 966

Ce ee Bee ESD oes Cons Cech as OL eee 5

Federal Statutes:

28 U.S.C.A. 1259(3) (West Supp. 1996) ............ l

10 U.S.C.A. 867(a) (West Supp. 1996) ............. l

Article 6(c), Uniform Code of Military Justice

CF ad ee a as a ie be ee os bees. 3

Rules for Courts-Martial

Rule for Courts-Martial 1106(b) ...................3

Rute for Courte-Martal 11050)... .. 6. oa ee ieee 6

Rule for Courts-Martial 1107(b)................... 6

Rule for Couste-Wiertiel TIGCIAD «3 wc ke ccc ecweeusn 6

mole for Cure Bats TGS 6 das 6 ooo boa Cea weiss 7

I

The petitioner, Master Sergeant William M. Hamilton,

respectfully prays that a writ of certiorari issue to review the

order and judgment of the United States Court of Appeals for

the Armed Forces entered in this case on 10 September 1997.

OPINIONS BELOW

The order and judgment of the United States Court of

Appeals for the Armed Forces is not yet reported in an

advance sheet or the Military Justice Reporter. The decision,

No. 96-1407, —. M.J. —— (10 September 1997), is located at

Appendix A. The opinion of the United States Air Force

Court of Criminal Appeals, ACM 31768 (A.F. Ct.Crim.App.,

9 August 1996), is located at Appendix B.

JURISDICTION

The judgment of the United States Court of Appeals for

the Armed Forces was entered on 10 September 1997. The

jurisdiction of this Court is invoked under 28 U.S.C.A 1259

(3) (West Supp. 1996) and 10 U.S.C.A. 867 (a) (West Supp.

1996).

STATEMENT OF THE CASE

At the petitioner’s general court-martial, he was

convicted contrary to his pleas of voluritary manslaughter, in

violation of Article 119, Uniform Code of Military Justice (10

U.S.C. 919). Petitioner was sentenced to a dishonorable

discharge, confinement for 10 years, and reduction to the

grade of E-1. After trial, Major LeEllen Coacher was the

acting Staff Judge Advocate at the base legal office. Maj

Coacher had participated in the pretrial preparation of the

case, including acting as the government representative at the

petitioner’s pretrial confinement hearing. Additionally, it was

Maj Coacher’s spouse who ultimately prosecuted the case at

trial. Inspite of these facts, Maj Coacher drafted the Staff

Judge Advocate’s Recomendation (SJAR) to the convening

authority. The record of trial was ultimately given to Major

Steve Kenyon to review. However, Maj Coacher also gave

him a copy of the SJAR she had already drafted. Maj Kenyon

submitted this same SJAR without change, except for the

signature block, to the convening authority. In his response to

the SJAR, trial defense counsel alleged that it was error for

Maj Coacher to have written the SJAR to the convening

authority, and raised a number of other legal errors. During

this time the new staff judge advocate for the Brooks AFB

legal office arrived and he wrote the addendum responding to

these allegations of error.

On appeal, both the Air Force Court of Criminal

Appeals and the United States Court of Appeals for the Armed

Forces held that the petitioner was not prejudiced by any error

that might have occurred in having a disqualified person draft

the SJAR. The Air Force Court of Criminal Appeals also

found no error in the advice given by the Staff Judge

Advocate in the Addendum to the SJAR. The Court of

Appeals for the Armed Forces conceded that the advice in the

Addendum was arguably incomplete and misleading, but

found that the petitioner was not prejudiced by any possibility

that the convening authority was misled by this advice.

REASON FOR GRANTING THE WRIT

THE COURT OF APPEALS FOR THE ARMED

FORCES ERRED IN FINDING THAT THE

PETITIONER WAS NOT PREJUDICED BY

ERRORS IN THE STAFF JUDGE ADVOCATE’S

RECOMMENDATION AND ADDENDUM

THERETO, INCLUDING PREPARATION CF

THE RECOMMENDATION BY TRIAL

COUNSEL’S SPOUSE AND ERRONEOUS

ADVICE IN THE ADDENDUM TO THE EFFECT

THAT LEGAL ERROR IS NOT AN

APPROPRIATE BASIS FOR CORRECTIVE

ACTION BY THE CONVENING AUTHORITY.

The SJA recommendation and addendum in this case

were defective in two ways: (1) the SJA recommendation was

prepared by Major LeEllen Coacher, who was a disqualified

person under Article 6(c), UCM, and Rule for Courts-Martial

(R.C.M.) 1106(b); and (2) the convening authority was given

erroneous and misleading advice in the addendum which

clearly suggested that legal errors are not an appropriate basis

for corrective action by the convening authority.

Under Article 6(c), UCMJ, and R.C.M. 1106(b), a

number of people are disqualified from acting as a staff judge

advocate or legal officer to the convening authority on a given

case. This list includes anyone who has acted as trial counsel

or assistant trial counsel in that case. The discussion under

R.C.M. 1106(b) also states that anyone with other than an

official interest in the case should be precluded from acting as

the staff judge advocate or legal officer in that case.

“Trial Counsel” as used in these provisions clearly

extends beyond the person who represented the government at

trial. In U.S. v. McCormick, 34 M.J. 752 (NMCMR 1992),

the Navy-Marine Corps Court of Military Review held that a

government counsei who had acted as trial counsel prior to

the actual court-martial, was disqualified from drafting the

post-trial advice to the convening authority. In that case the

captain who was initially assigned to prosecute the case had

been the point of contact for the victim’s family; counseled

the victim’s family; escorted the victim and her family to the

Naval Investigative Service; and provided his interview notes

to his successor trial counsel. This same captain subsequently

drafted the SJA recommendation, which recommended the

sentence be approved as adjudged. The Navy-Marine Corps

Court of Military Review found that this level of involvement

was enough to disqualify him under R.C.M 1106(b), even

though the captain who drafted the SJA recommendation was

taken off of the case prior to trial. /d. at 755.

Further, mere concurrence by a staff judge advocate in

recommendations prepared by a disqualified person does rot

meet the requirement for an impartial review. United States v.

McCormick, 34 M.J. at 755; citing United States v. Hightower,

5 USCMA 385, 18 CMR 9, 13 (1955). See also United States

v. Crunk, 4 U.S.C.M.A. 290 15 C.M.R. 290 (1954). The staff

judge advocate in McCormick actually signed the

recommendation; and when trial defense counsel brought this

issue up during post-trial review, a new staff judge advocate

reviewed the case, but again submitted the original SJA

recommendation with a new signature. /d. at 754. The Navy-

Marine Court of Military Review held that merely having the

SJA, or even two SJAs, review and sign the recommendation

does not filter out the influence, or the appearance of

influence, created by having a disqualified party draft the SJA

recommendation. /d. at 756.

In the case sub judice, trial defense counsel’s response to

the SJA recommendation asserts that Maj Coacher was

disqualified from acting as the SJA for two reasons: she was

intricately involved with the government witnesses and trial

preparation; and she is/was the spouse of the chief prosecutor

at trial. The first of those two issues was never addressed.

However, it is apparent from Maj Coacher’s affidavit that she

acted as the government representative at the pre-trial

confinement hearing in this case. It is also apparent from the

transcript of the pretrial confinement hearing that Maj

Coacher was not simply acting as an impartial advisor to the

confinement magistrate. Maj Coacher was advocating that the

petitioner should be placed in confinement. While Maj

Coacher passed off the case to another trial counsel for trial,

she was more than peripherally involved in this case prior to

trial. Further, the person who acted as trial counsel at the

actual court-martial is and was Maj Coacher’s spouse. In

drafting the SJA recommendation Maj Coacher was placed in

the position of reviewing the actions of her own spouse in a

contested case where there were numerous contested

evidentiary issues. Though R.C.M. 1106(b) does not

explicitly disqualify the trial counsel’s spouse from preparing

the SJA recommendation, this fact clearly put Maj Coacher in

that class of people who have “other than an official interest”

in the case.

Further, as in McCormick, supra., merely having another

person sign an SJA recommendation prepared by a disqualified

person does dissipate the taint. Both Major Coacher, and Maj

Kenyon agree in their affidavits that Maj Coacher originally

prepared the SJA recommendation and that her draft was given

to Maj Kenyon. According to the affidavit of Maj Kenyon, the

SJA recommendation signed by Maj Coacher was in fact

served in error on the appellant. A review of the draft SJA

recommendation prepared by Maj Coacher and the final SJA

recommendation signed by Maj Kenyon shows that Maj

Kenyon made no changes to the draft given to him by Maj

Coacher. Maj Kenyon states in his affidavit that he “adopted

Maj Coacher’s recommendations only after careful review and

consideration of the record of trial.” However, in the final

analysis, Maj Kenyon put his signature to Maj Coacher’s

work; and the disqualification attaches to the work not the

signature. United States v. McCormick, 34 M.J. at 755; citing

United States v. Thompson, 3 M.J. 966, 968 (N.C.M.R. 1977),

rev'd on other grounds, 6 M.J. 106.

The Court of Appeals for the Armed Forces found no

prejudice in having a disqualified person draft the SJAR in

this case. However, in looking at Article 6, UCMJ, in the

past, the Court of Appeals for the Armed Forces has stated:

The obvious purpose of the lawmakers in

prohibiting trial counsel from subsequently acting

as the Staff Judge Advocate on the review of the

same Case was to assure the accused a thoroughly

fair and impartial review.

Crunk, supra; quoting United States v. Coulter, 3 U.S.C.M.A.

657 14 C.M.R.75. It can never be known with certainty

whether an impartial review might have produced a different

recommendation. However, the petitioner was prejudiced in

that he was denied the chance to ever have the impartial

review of his case promised under Article 6 of the UCMJ.

The Addendum to the SJA recommendation was also

defective because it implied that legal errors are not an

appropriate basis for corrective action by the convening

authority. R.C.M. 1105(b)(1) clearly states that the accused

may submit allegations of errors affecting the legality of the

findings or sentence. While R.C.M. 1107(b) states that the

convening authority is not required to review the case for

legal errors, that rule is equally clear that the convening

authority must consider any matters submitted by the accused

under R.C.M. 1105. The discussion under R.C.M. 1107(b)(1)

also notes that, if the convening authority notices any errors,

the convening authority may take corrective action under this

rule. Indeed, the Court of Appeals for the Armed Forces has

stated that it is entirely appropriate for a convening authority

to attempt to cure such errors before the case reaches the

appellate level. United States v. Reed, 33 M.J. 98, 99 (C.M.A.

1991).

In addition, before a convening authority takes action

under R.C.M. 1107 on a general court-martial, the convening

authority’s staff judge advocate or legal officer must forward

their recommendations to the convening authority, R.C.M.

1106(a); and, when a legal error is alleged, those

recommendations must state whether, in the staff judge

advocate’s opinion, corrective action on the findings or

sentence is appropriate, R.C.M. 1106 (d)(4). Further, the staff

judge advocate’s advice on such corrective action is entirely

separate from whether the convening authority should grant

clemency. United States v. Kerwin, 46 M.J. 588 (A.F.Ct.

Crim.App. 1996).

In this case, the appellant alleged six legal errors in the

court-martial proceedings. The SJA discusses these errors in

paragraph 5 of the Addendum to the SJA recommendation,

dated 1 August 1995. The SJA begins by noting that the

convening althority is not required to review the case for

legal errors, but may take corrective action. However, the

SJA then disposed of three of the legal errors alleged by

advising the convening authority as follows: “Evidentiary

rulings do not fall under the province of the convening

authority, but are matters properly brought before the Military

Judge, as was done in this case on this issue. Unfavorable

rulings are issues for appeal rather than reasons for granting

clemency.” (Addendum paragraphs 5c, d, and e).

In disposing of the issues this way, the staff judge

advocate failed to express either “agreement or disagreement

with the matter raised by the accused” as required by R.C.M.

1106(d)(4), and, more importantly, provided misleading and

inaccurate advice to the convening authority. This advice

confused the distinction between taking corrective action for

legal errors and clemency, and implied that the convening

authority did not have the authority to take corrective action

with respect to these legal errors. Thus, the SJA’s addendum

erroneously, and prejudicially, invited the convening authority

to abrogate his responsibility to consider the legal errors

raised by the appellant as a basis for corrective action.

Conclusion

For the foregoing reasons, this Honorable Court should

reverse the decision of the Air Force Court of Criminal

Appeals and the Court of Appeals for the Armed Forces in .

this case. Petitioner respectfully submits the Court of Appeals

for the Armed Forces and the Air Force Court of Criminal

appeals erred in finding that the petitioner was not prejudiced

by the above errors in the Staff Judge Advocate’s

Recommendation and Addendum.

WHEREFORE, petitioner requests that this writ be

granted.

Respectfully submitted,

TISHLYN E. TAYLOR

Captain, United States Air Force

Appellate Defense Division

Counsel of Record

DOUGLAS H. KOHRT

Colonel, United States Air Force

Appellate Defense Division

Counsel for the Petitioner

Air Force Legal Services Agency

Appellate Defense Division

112 Luke Avenue, Suite 343

Bolling AFB, DC 20332-8000

(202) 767-1562

la

APPENDIX A

United States, Appellee

V.

William M. HAMILTON, Jr., Master Sergeant

U. S. Air Force, Appellant

No. 96-1407

Crim.App. No. 31768

United States Court of Appeals for the Armed Forces

Argued June 4, 1997

Decided September 10, 1997

Counsel

For Appellant: Captain Tishlyn Taylor (argued); Lieutenant

Colonel Kim L. Sheffield and Captain Harold M. Vaught (on

brief); Colonel David W. Madsen and Lieutenant Colonel

Charles L. Carpenter, Jr., USAFR.

For Appellee: Lieutenant Colonel Michael J. Breslin (argued);

Captain Libby A. Brown (on brief).

Military Judge: Michael B. McShane

Tried at Kelly and Lackland Air Force Bases, Texas

Opinion of the Court

EFFRON, Judge:

Following a trial by officer and enlisted members sitting

as a general court-martial on a specification alleging

premeditated murder of his estranged wife, appellant was

2a

convicted of voluntary manslaughter. See Arts. 118 and 119,

Uniform Code of Military Justice, 10 USC §§ 918 and 919,

respectively. He was sentenced to a dishonorable discharge,

confinement for 10 years, and reduction to the lowest enlisted

grade. The convening authority approved these results, and

the Court of Criminal Appeals affirmed in an unpublished

opinion. On appellant’s petition, we granted review of the

following issue:

WHETHER ERRORS IN THE SJA’S [STAFF

JUDGE ADVOCATE’S] RECOMMENDATION

AND ADDENDUM THERETO (INCLUDING

PREPARATION OF THE RECOMMENDATION

BY TRIAL COUNSEL’S SPOUSE AND

ERRONEOUS ADVICE IN THE ADDENDUM

TO THE EFFECT THAT LEGAL ERROR IS NOT

AN APPROPRIATE BASIS FOR CORRECTIVE

ACTION BY THE CONVENING AUTHORITY)

NECESSITATE A NEW CONVENING

AUTHORITY ACTION OR OTHER

APPROPRIATE RELIEF.

For the reasons discussed below, we hold that a new

recommendation and action 1s not required.

I. Background

Prior to trial, Major (Maj) C represented the SJA’s office

in the negotiations with local civilian officials that resulted in

military jurisdiction over the prosecution of this case. She also

represented the Government at a hearing concerning pretrial

confinement of appellant. Subsequently, she was designated

as the Acting SJA for the command.

Following appellant’s trial, Maj C prepared a draft post-

trial recommendation to the convening authority. See Art.

60(d), UCMJ, 10 USC § 860(d) (1983); RCM 1106, Manual

3a

for Courts-Martial, United States (1995 ed.). Prior to

transmitting the recommendation, however, she decided to

undertake research and consultation on the question whether

she should transfer responsibility for preparing the

recommendation to another attorney. She primarily was

concerned about the fact that her husband had been trial

counsel at appellant’s court-martial.

Subsequently, she decided to transfer responsibility for

the post-trial recommendation to another attorney in order to

avoid any appearance of bias. Because she was scheduled to

be away from her office during the following week for

temporary duty, she asked Maj K—who would be Acting SJA

in her stead—to take responsibility in her absence.

Maj K prepared a recommendation and served it on

appellant. See Art. 60(d); RCM 1106(f)(1). Apparently as a

result of administrative inadvertence, Maj C’s draft

recommendation also was served on appellant. After

examining the two versions, appellant’s defense counsel

observed that they nearly were identical.

Subsequently, a new SJA, Lieutenant Colonel (LtCol) W.

was assigned to the command, and defense counsel submitted

a document to him that responded to the recommendation that

had been prepared by Maj K. See RCM 1106(f)(4). Defense

counsel challenged Maj C’s role in writing the

recommendation, arguing, “There is a definite appearance of

impropriety and probable bias in having the wife of the Chief

Prosecutor of MSgt Hamilton write the advice and

recommendation to the convening authority.” Furthermore,

defense counsel pointed out that Maj C had been “intricately

involved with the government witnesses and trial preparation”

as the “Chief of Military Justice” prior to the trial. Defense

counsel acknowledged that Maj K also had written a

recommendation, but noted that it was the “very same

recommendation” that had been written by Maj C, simply

ta

with someone else’s stgnature. In addition to this issue,

defense counsel alleged that five separate legal errors had

occurred at trial. ’

LtCol W prepared an addendum to the recommendation, |

see RCM 1106(f)(7), in which he addressed the six legal

issues that had been raised in defense counsel’s response. He ‘

“remind[ed]” the convening authority that he was “not

required to review the case for legal errors or factual

sufficiency, but . . . [could] take corrective action.” With

respect to three of the issues, which concerned admissibility

of evidence, he advised the convening authority in each

instance as follows:

Evidentiary rulings do not fall under the province of

the convening authority, but are matters properly

brought before the [military judge], as was done in

this case on this issue. Unfavorable rulings are

issues for appeal rather than reasons for granting of

clemency.

As to the issue of Maj C’s role in preparing the

recommendation, LtCol W provided the following advice to

the convening authority:

Another SJA’s Recommendation was prepared and

signed by Maj [K], Acting Staff Judge Advocate.

Before signing the Recommendation, Maj [K]

reviewed the recommendation and the ROT [record

of trial] and concluded that the sentence should be

imposed as adjudged. He was in no way obligated

to reach the same conclusion that Maj [C] did, but :

could have changed the recommendation had he

* seen fit to do so. His independent review of the

ROT and the SJA’s Recommendation prior to

signing it cleanses any possible taint and renders the

SJA’s Recommendation proper for your

consideration.

Sa

II. Discussion

Appellant contends that the

SJA recommendation and addendum .. . were

defective in two ways: (1) the SJA recommendation

was prepared by Maj [C], who was a disqualified

person under Article 6(c), UCMJ, and RCM

1106(b); and (2) the convening authority was given

erroneous and misleading advice in the addendum

which clearly suggested that legal errors are not an

appropriate basis for corrective action by the

convening authority.

Final Brief at 2.

A. Disqualification of Maj C

Appellant contends that, because the recommendation

submitted by Maj K to the convening authority was the draft

written by Maj C, any disqualification of Maj C extends to use

of her work-product by another attorney in the same office.

See United States v. Hightower, 5 USCMA 385, 389, 18 CMR

9, 13 (1955).

Appellant makes two distinct arguments in support of his

predicate claim that Maj C was disqualified from writing the

post-trial recommendation. First, he points to the language in

Article 6(c), UCMJ, 10 USC § 806(c), and in RCM 1106(b)

that disqualifies the “trial counsel” in a case from acting later

as the staff judge advocate to the convening authority in the

same case. He urges that “trial counsel” extends beyond the

person who prosecutes in the name of the United States in the

courtroom and includes all persons who act on behalf of the

United States prior to trial. Final Brief at 3.

Second, appellant argues that Maj C “was placed in the

position of reviewing the actions of her own spouse in a

contested case where there were numerous contested

6a

~videntiary issues.” /d. at 4. While Article 6(c) and RCM

1:06(b) do not disqualify a trial counsel’s spouse expressly,

appellant contends that the reviewing spouse is someone who

has “other than an official interest” in the case when she must

review the prosecution’s trial performance. /d.; see RCM

1106(b), Discussion; see generally United States v. Rice, 33

MJ 451, 45253 (CMA 1991)(Government sentencing witness

disqualified from writing post-trial recommendation).

Under the circumstances of this case, we need not decide

whether Maj C was disqualified, because Maj C’s actions

relating to the SJA’s recommendation to the convening

authority did not materially prejudice the substantial rights of

appellant. See Art. 59(a), UCMJ, 10 USC § 859(a). After Ma,

C had drafted her recommendation, she realized that she

might have a conflict or an appearance of one in fulfilling that

responsibility. Consequently, she delegated that duty to the

next most senior officer, to be performed while she was

absent from the installation.

Although Maj C’s draft and Maj K’s recommendation to

the convening authority virtually are identical, appellant has

failed to demonstrate that the text of the recommendation

prejudiced his opportunity to receive relief from the

convening authority. The entries on the first page of the

recommendation repeat routine administrative boilerplate.

The content of the following one and one half pages of text—

which includes matters such as a list of appellant’s awards and

decorations, a short discussion of the purpose of the SJA’s

recommendation, a statement that the evidence was legally

sufficient, a statement that there were no legal errors, and a

brief recital of additional background information on

appellant—is bland and unremarkable.

We note that the only discussion of any substantive issue

in controversy did not occur in the initial recommendation

submitted by Maj K but in the subsequent addendum written

7a

by LtCol W. the new SJA. Appellant does not claim that Maj

C played any role in the preparation of LtCol W’s addendum.

In this unusual context, Maj K’s borrowing of Maj C’s

recommendation, which was plain-vanilla in substance, did

not prejudice appellant, and appellant has not made any

specific representation in this Court to the contrary. Cf. United

States v. Craig, 28 MJ 321, 324-25 (CMA 1989)(remand

usually in order when SJA does not comply with RCM 1106

or when record is unclear whether convening authority

considered clemency materials).

B. Advice on Convening Authority's Review of Legal Issues

Appellant contends that the addendum to the

recommendation, written by LtCol W. “clearly suggested

[incorrectly] that legal errors are not an appropriate basis for

corrective action by the convening authority.” Final Brief at 2.

Although we do not agree that such a suggestion “clearly”

was made, we recognize that the SJA’s advice, as a whole, is

ambiguous in this regard.

The SJA began his discussion of appellant’s contention

of legal error by informing the convening authori” ‘hat he

was “not required to review the case for legal error. _“:t that

he could “take corrective action.” In his ensuing discu_.ion of

the legal issues raised by appellant, however, the SA seemed

to muddy the water. His advice as to three of those issues—

that “[e]videntiary rulings do not fall under the province of

the convening authority” and that “[{u]nfavorable rulings are

issues for appeal rather than reasons for granting clemency”—

arguably is incomplete to the extent that it implies that such

matters are of no proper concern to the convening authority.

That implication, if made, would be incorrect because a

convening authority statutorily may take action in a case

“only after consideration of any matters submitted by the

accused... .” Art. 60(c)(2).

8a

Notwithstanding the mandate to consider defense

submissions, it is clear that the convening authority’s power

“to modify the findings and sentence of a court-martial is a

matter of command prerogative involving the sole discretion

of the convening authority.” Art. 60(c)(1). As a matter of

command prerogative, “[t]he convening authority is not

required to review the case for legal errors or factual

sufficiency.” RCM 1107(b)(1).

In matters of clemency, the convening authority's

obligation to consider defense submissions is uniquely critical

to an accused. This Court often has observed that the

convening authority is an accused’s last best hope for

clemency. See United States y. Cook, 46 MJ 37, 39 (1997).

Clemency is the heart of the convening authority's

responsibility at that stage of a case. If an SJA gives faulty

advice in this regard, the impact is particularly serious because

no subsequent authority adequately can fix that mistake.

In contrast, the convening authority’s statutory role vis-a-

vis defense claims of legal error is less pivotal to an accused's

ultimate interests. Although an SJA must respond to a defense

claim of legal error, see Craig, 28 MJ at 324, “[t]he response

may consist of a statement of agreement or disagreement with

the matter raised by the accused. An analysis or rationale for

the staff judge advocate’s statement, if any, concerning legal

errors is not required.” RCM 1106(d)(4).

Thus, while a convening authority has the power to

respond remedially to an accused’s claim of legal error and

while he is encouraged to act in the interest of fairness to the

accused and efficiency of the system, he is not required to do

so. Unlike the lost opportunity occasioned by defective SJA

advice on matters of clemency, erroneous advice by an SJA as

to a claim of legal error that leads a convening authority not to

afford relief to an accused can be corrected by appellate

litigation of the claimed error.

Ya

It is appropriate in this context for an appellate court to

look for prejudice that might have flowed from misadvice as

to a defense claim of legal error. See United States v. Welker,

44 MJ 85 (1996). We find none. While appellant has pursued

on appeal some of the claims of legal error that he raised in

his response to the SJA recommendation, neither the Court of

Criminal Appeals nor this Court has considered any of these

issues to be meritorious. Even if the originally ambiguous

advice from the SJA might have misled the convening

authority with respect to his power to correct legal errors, the

absence of any such errors precludes a finding that the SJA’s

advice prejudiced appellant.

ll

The decision of the United States Air Force Court of

Criminal Appeals is affirmed.

Chief Judge COX and Judges SULLIVAN,

CRAWFORD, and GIERKE concur.

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APPENDIX B

UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEAL

UNITED STATES

v.

Master Sergeant WILLIAM M. HAMILTON, JR.,

FR 155-48-—1042 ot

United States Air Force

ACM 31768

9 August 1996

Sentence adjudged 21 April 199S by GCM convened at

Brooks Air Force Base, Texas. Military Judge: Michael B.

McShane.

Approved sentence: Dishonorable discharge. confinement for

10 years, and reduction to E-1.

Appellate Counsel for Appellant: Colonel Jay L Cohen and

Captain Harold M. Vaught.

Appellate Counsel for the United States: Lieutenant Colonel

Michael I. Breslin.

Before

DIXON, SCHREIER and STARR

Appellate Military Judge

OPINION OF THE COURT

SCHREIER, Senior Judge:

This began as a capital murder case . Ultimately,

members convicted appellant of voluntary manslaughter in

lla

the stabbing death of his wife, Sharon, and sentenced him to a

dishonorable discharge, confinement for 10 years, and a

reduction to E-I. Appellant asserts four assignment of error

involving the admissibility of evidence, unfair prejudice by

including in the record of trial the members’ comments after

sentence was announced, and errors in the Staff Judge

Advocate Recommendation (SJAR). Finding no prejudicial

error, we affirm

FACTS

Appellant and his wife had a tumultuous relationship,

having separated at least twice over the course of a brief

marriage. At the time of his wife’s death, they were living

apart. The chain of events leading to her death began on

Friday, July 8th, 1994. During late afternoon, appellant and

his wife had a fight which was witnessed by Mechelle

Hensley, a neighbor, who called the police. Appellant left the

scene before the police arrived. He testified that he was afraid

the police would arrest him, so he took measures to allow

time for the situation to defuse. He left his car at the airport

and rented another vehicle for the weekend.

When appellant went to work on Monday morning, he

told his supervisor that he had a fight with his wife over the

weekend and he contacted Family Advocacy for an

appointment. Later that morning, he received a call from his

wife. He claimed she told him that there was a warrant for his

arrest and that Kevin Adair, the father of one*of her children.

was looking for him. Shortly thereafter, he left work and

engaged in a series of actions apparently intending to avoid

detection by the police or Mr. Adair. He took all the money

out of the bank account and placed it under the floormat of his

car; he rented another car; and he purchased some clothes,

“Mace,” sleeping pills, and a fishing knife. Appellant testified

12a

to conflicting emotions ranging from concealing himself, to

trying to get back together with his wife, to killing himself.

Later that day, he observed his wife picking up the

children from child care. He went to her apartment complex,

parked his rental van around the side, and waited for her by the

mailbox. He testified that he approached her and asked her if

they could work it out. When she replied “no,” be asked who

was in the car waiting for her. He alleged that she replied “my

lover,” and he went into a rage. The next thing he realized, the

knife was in his hand and he saw blood on it. Sharon received

eight stab wounds to her chest, arm, groin area, abdomen, and

neck. During emergency surgery, she died.

IMPEACHMENT OF AN ACCUSED

During an Article 39(a) session following arraignment,

defense counsel moved to exclude evidence relating to nine

separate incidents or reports of uncharged misconduct. The

trial counsel stated that he only intended to introduce

evidence of the July 8th uncharged misconduct incident on

the merits. However, trial counsel indicated that information

concerning the other misconduct may be introduced through

the cross-examination of defense witnesses or in rebuttal. The

military judge did not rule on eight of the nine incidents of

uncharged misconduct but advised trial counsel to litigate the

admissibility of matters if they decided to offer the uncharged

misconduct.

Appellant testified on the merits. On direct examination

he stated that he was going to tell the truth and except for an

Article 15 for a false official statement he had not gotten into

trouble for lying during his career. On cross-examination

appellant was questioned extensively about his truthfulness.

He admitted to lying in the past but denied lying in his

testimony. Trial counsel then asked the following series of

questions:

13a

Q. Now, you have lied before concerning your relationship

with Sharon when you thought you were in trouble, haven’t

you?

A. No. sir

Q. Well do you recall an incident in June 1993 when the

police were called to your house?

A. Yes. sir.

Q. Sharon had reported to them that you had a gun and were

threatening her with that gun, isn’t that time?

A. Yes, sir.

Q. And they came out and they asked you if you had a gun,

didn’t they?

A. Yes, sir.

And you told them no.

Initially, I did, yes, sir.

You told him no; isn’t that true?

Initially.

And they actually found the gun, didn’t they?

rPOPrPO PL

I told them where the gun was.

Q. I want to get this straight because Officer Sims is going to

be in here, and you are telling us that you told them before

they found the gun that you had a gun?

A. I told him where the gun was, yes, sir.

Q. And so if this San Antonio police officer comes in here

and says something different

DC. Objection, Your Honor.

Q. —he would be lying?

MJ. I’m sorry: Objection? Argumentative? Probably so.

Sustained.

l4a

On rebuttal, Officer Sims testified that appellant denied

having a gun in the house. He stated that they found a weapon

in the bedroom. Defense made no objection to the testimony.

During an Article 39(a) session on findings instructions, the

military judge asked whether the defense wanted an

instruction on the issue of uncharged misconduct and the

alleged lying to the policeman. The defense specifically

waived any instructions in this area.

Appellant now alleges that the trial counsel attempted to

smuggle this inadmissible evidence of uncharged misconduct

before the members in the guise of impeachment evidence.

Appellant urges that the evidence is not admissible under

MiL.R. Evip. 404(b). Furthermore, because the trial counsel

elicited this alleged lie from the appellant, he cannot then

bootstrap otherwise inadmissible evidence into impeachment

evidence. United States v. Maxwell, 21 M.1. 229, 230 (C.M.A.

1986). Finally, appellant argues that the earlier motion in

liming preserved the issue and counsel's failure to object don

ant constitute waiver.

We'll-deal with appellant’s latter claim first. A party

objecting to the admissibility of certain evidence must make a

timely objection to that evidence and state the specific

grounds for the objection if the specific grounds are not

evident from the surrounding circumstances. MIL.R.EVID.

103(a)(1). Failure to makes a timely, specific objection waives

the issue for appeal, absent plain error. See United States v.

Akers, 14 M J. 768 (A.C.M.R. 1982). Standing alone a motion

in limine may not preserve an objection for appeal. United

States v. Johnson, 35 M.J.17 (C.M.A. 1992) (expert

tesumony in child sex abuse case). Once a judge has limited

the scope of testimony, it is incumbent for the defense to

protest violations of that ruling. United States v. Johnson, 35

M.J. at 21. But, if the ruling of the military judge is intended

to be final then a subsequent objection is not necessary at the

—

15a

time the evidence is offered to preserve the issue. United

States v. Gamble, 27 MJ. 298, 307 (C.M.A. 1988).

An accused who testifies opens the door to his or her

character for truthfulness. United States v. Pruitt, 43 MJ. 864.

868 (A.F.Ct.Crim.App. 1996). Additionally, counsel may

attack or support the credibility of a witness by inquiring into

specific instances of conduct on cross-examination. Normally,

counsel is bound by the witness’s answer and may not

introduce extrinsic evidence to prove the conduct.

MiL.R.Evip. 608(b). However, counsel may introduce

extrinsic evidence to contradict the witness who denies

committing certain misconduct on direct examination or

gratuitously volunteers information in response to a narrow

cross-examination. United States v. Trimper, 28 M.J. 460,

466-67 (C.M.A. 1989), cert. denied, 493 U.S. 96S (1989).

Appellant’s credibility was at the heart of his denial of

premeditated murder. Additionally, the appellant’s alleged lie

to the police officer concerning his possession of a gun was

fully described in the police report. Defense counsel knew this

information and must have anticipated that it could be used to

impeach appellant’s testimony. Yet, the initial motion focused

on the use of uncharged misconduct as substantive evidence

and not on its use as impeachment. Indeed, trial counsel

specifically warned the defense that the uncharged misconduct

might be used in cross-examination or rebuttal.

If defense counsel believed the evidence was

inadmissible, it was incumbent on them to ensure that any

potentially inadmissible evidence did not come before the

fact-finder. Following the appellant’s direct examination.

defense counsel could have requested an Article 39(a) session

to renew their objection to the uncharged misconduct or they

could have objected at any point during trial counsel’s series

of questions. The potentially most damaging part of

appellant’s testimony was his alleged lie indicating he told the

l6a

officer the location of the gun. This statement was in response

to the seventh question in this series of questions.

We further reject appellant’s argument that the defense

counsel made a strategic choice not to object in front of the

members. This argument is undercut by counsel's subsequent

objection to an argumentative question in this same series of

question and the opportunities to request an Article 39(a)

session. We also reject appellant’s argument that the trial

counsel went beyond the limits of the judge’s ruling in

introducing evidence of uncharged misconduct. See Johnson,

35 M.J. at 21. Moreover, in a case where it appears that

counsel is going beyond the bounds of the military judge’s

ruling, it would appear even more critical for opposing counsel

to restate their objection. We find that appellant has waived

appellate review of this issue by failing to make a timely

objection at trial. MIL.R.Evip. 103(a)(1), RC.M. 905(e).

We have further considered whether the military judge

committed plain error in failing to sua sponte stop this line of

questioning. Plain error involving error that is both obvious

and has a prejudicial impact on the proceedings. United States

v. Fisher, 21 M.J. 327 (C.M.A. 1986). First, the error, if any,

in this case is not obvious. In fact we believe that a persuasive

argument can be made for the admissibility of the alleged lie

to the police officer. See Trimper, 28 M.J. at 466-467. Next,

defense specifically waived any limiting instruction in this

area. Finally, we have carefully considered the entire record in

both findings and sentencing. We are convinced that this

information did not have a prejudicial impact on the outcome.

Article 59(a).

VICTIM IMPACT TESTIMONY

The defense counsel made a motion in limine to prevent

trial counsel from offering numerous categories of evidence

17a

including “victim impact and other inflammatory and

convening authority. Rather, the common practice is to hold

the SJAR until the accused and counsel have had the

opportunity to submit any corrections or rebuttal to the SJAR

R.C.M. 1106(f)(1) and (4). Here, any error was corrected

before the SJAR and attachments were sent to the convening

authority, the potential conflict was raised in the defense

response to the SJAR, and the addendum commented on it.

We are convinced that the convening authority received the

benefit of an impartial SJAR prepared by Major Kenson, then

the acting SJA. There was no error.

The affidavits of the convening authority and the SJA

further convince us that the convening authority considered

the defense submissions before taking action on the case. See

United States v. Foy, 30 M.J. 664 (A.F.C.M.R. 1990) (en

banc), United States v. Blanch, 29 M.J. 672 (A.F.C.M.R.1989)

We reject appellant’s claim that the SJA failed to state

whether corrective action should be taken on the alleged legal

errors. We find that the SJA’s addendum clearly indicated

disagreement with the alleged legal errors. In fact, the

addendum went beyond the requirements of R.C.M.

1106(d)(4) by analyzing the alleged errors. Likewise. the

SJA’s advice to the convening authority concerning legal

errors Was not erroneous.

INCLUSION OF COURT MEMBERS’ COMMENTS IN

RECORD OF TRIAL

After announcing the sentence, the president of the

court-martial read a statement into the record of trial

expressing the members’ belief that panels should know the

maximum penalty for each offense before they make findings.

The statement further expressed their wish that appellant’s

pay be used solely for the support of his dependents. The

SJAR did not mention these comments. However, the defense

18a

response to the SJAR alleged inclusion of the first comment

constituted error. The addendum then discussed the alleged

error. Appellant now alleges that the inclusion of these

comments in the record of trial and the discussion in the

addendum tainted the convening authority's action and

precluded clemency. Appellant further requests that the

comments and the exhibit be expunged from the record of

trial.

It is not uncommon for court members to make a

recommendation for clemency after the announcement of the

sentence or by separate written communication. See United

States v. Weatherspoon, — M.J. —, (July 30, 1996) (the Court

recognizes the power of a court-martial to recommend

clemency to the convening authority contemporaneously with

the sentence). As in all facets of the trial, the military judge is

ultimately responsible for ensuring a fair and orderly

proceedings. Allowing the members to place a statement on

the record after the announcement of sentence is a matter

within the discretion of the military judge. We find the

military judge did not abuse his discretion in allowing the

members to express their desire to know the maximum

punishment earlier in the case.

Furthermore. it was the actions of defense counsel which

highlighted these comments to the convening authority. The

government's response was appropriate. Moreover, appellant

has cited no authority which allows us to delete information

from a record of trial. Finally, we are persuaded that the

inclusion of these comments did not prejudice appellant's

opportunity for clemency. Article 59(a).

CONCLUSION

We conclude that the findings and sentence are correct in

law and fact, the sentence is appropriate, and no error

Pe tn

19a

prejudicial to appellant’s substantial rights occurred.

Accordingly, the findings of guilty and the sentence are

AFFIRMED.

Chief Judge DIXON and Judge STARR concur.

OFFICIAL

LAURA L. GREEN

Clerk of Court