United States v. Staff Sergeant DAVID C. TATE ( 2020 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
BROOKHART, KRIMBILL, and WALKER
Appellate Military Fudges
UNITED STATES, Appellee
Vv.
Staff Sergeant DAVID C. TATE
United States Army, Appellant
ARMY 20180477
Headquarters, United States Army Intelligence Center of Excellence and Fort
Huachuca
Michael S. Devine, Military Judge
Colonel Steven P. Haight, Staff Judge Advocate
For Appellant: Colonel Elizabeth G. Marotta, JA; Lieutenant Colonel Tiffany D.
Pond, JA; Major Kyle C. Sprague, JA; Captain Loraima Morciglio, JA (on brief);
Lieutenant Colonel Angela D. Swilley, JA; Major Kyle C. Sprague, JA; Captain
Alexander N. Hess, JA (on reply brief).
For Appellee: Lieutenant Colonel Wayne H. Williams, JA; Major Craig J. Schapira,
JA; Captain Karey B. Marren, JA (on brief).
25 September 2020
This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.
BROOKHART, Senior Judge:
A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of one specification of aggravated assault in violation of
Article 128, Uniform Code of Military Justice, 10 U.S.C. § 928 [UCMJ]. The
military judge sentenced appellant to a bad-conduct discharge, confinement for
twenty-two months, and reduction to the grade of E-3. Due to significant post-trial
delay, the convening authority approved only so much of the sentence as provided
for a bad-conduct discharge, confinement for twenty-one months, and reduction to
the grade of E-3.
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The case is before this court for review pursuant to Article 66, UCMJ.
Appellant contends the convening authority improperly approved his sentence
without a substantially verbatim transcript, in violation of Rule for Courts-Martial
{[R.C.M.] 1103(f).! We agree and accordingly, provide relief in our decretal
paragraph.
BACKGROUND
On the morning of the second day of trial, the military judge learned that due
to a malfunction of the court recording equipment there was no record of the
previous afternoon’s proceedings. The missing session included the military judge’s
notification of the appellant’s sentencing rights, the government’s entire sentencing
case (both witnesses and documentary evidence), the victim impact statement, and
one defense sentencing witness. The government’s witnesses included the victim’s
sister and son, her neighbor, and the government’s expert.
After conducting a lengthy R.C.M. 802 session with counsel, the military
judge announced his intention to “allow the government to present their case anew.”
The military judge also stated that he would not consider anything he heard during
the unrecorded sentencing portion of the case.
Citing R.C.M. 1103(f) and United States v. Davenport, 73 M.J. 373 (C.A.A.F.
2014), the defense objected and made a motion to limit the appellant’s punitive
exposure to the jurisdictional limit of six months confinement and no punitive
discharge. Overruling the defense objection, the military judge stated that it was not
his desire to recreate a substantially verbatim transcript or even a summarized
transcript of the missing proceedings, but rather “[i]t is the court’s intent to wash
out that proceeding, as for purposes of record of trial, as if it never occurred.” The
military judge further explained that the inability to create a verbatim transcript was
not at issue, “because it’s not the court’s intent to create -- attempt to create a
verbatim transcript at all for that portion of the hearing.” Finally, although he again
reiterated that he would not consider any of the unrecorded testimony, the military
judge nevertheless found that “the admitted material from yesterday’s session would
be both qualitatively and quantitatively substantial were such testimony to be
considered by the court in determining an appropriate sentence.”
' Appellant’s other assignment of error alleges the military judge erred by allowing
the government to present its sentencing case anew. This assignment of error is
without merit. We have also given full and fair consideration to the matters
personally raised by appellant pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982), and find them to be without merit.
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The military judge also recognized that R.C.M. 1103(f)(2) authorized only the
convening authority to direct a rehearing, but ruled that it would constitute “judicial
waste” for him to wait for the convening authority to direct such a rehearing given
the timeliness in which the recording error was identified.
During the subsequent recorded proceedings, the government recalled the
victim’s sister, her neighbor, and their expert. The victim again presented her
impact statement, and the defense recalled its first sentencing witness. The
government did not, however, recall the victim’s son, CM.’ Instead, the government
announced that given the late hour and the fact that CM was on the East Coast, “we
have elected to not call him today.” The defense confirmed that it had no objection
to CM not being recalled, and likewise did not call CM as a witness in its sentencing
case. The parties and the military judge made no effort to summarize or otherwise
provide a synopsis of CM’s unrecorded testimony.
Prior to announcing his sentence, the military judge noted that with the
exception of CM, all of the government sentencing witnesses “testified substantially
the same as they had during their unrecorded testimony given when they were first
called as witnesses.”
LAW AND DISCUSSION
Whether a transcript is substantially verbatim is a question of law which we
review de novo. Davenport, 73 M.J. at 376.
R.C.M. 1103(b)(2)(B) provides that the record of trial in any case in which
the sentence adjudged includes twelve or more months of confinement or a bad-
conduct discharge must include a verbatim transcript of all sessions except for
deliberations and voting.*> The discussion to R.C.M. 1103(b)(2)(B) further clarifies
that a verbatim transcript includes “all proceedings, including sidebar conferences,
arguments of counsel, and rulings and instructions by the military judge.”
Rule for Courts-Martial 1103(f) states in pertinent part that if a verbatim
transcript cannot be prepared because of the loss of recordings or notes, the
convening authority may: (1) approve only so much of the sentence that could be
adjudged by a special court-martial, except that a bad-conduct discharge and/or
confinement for more than six months may not be approved; or (2) direct a rehearing
* The record refers to the victim’s son as both “Mr. MGM” and “Mr. CM.” This
opinion will refer to him as “CM.”
> As the referral of the charges in this case was prior to 1 January 2019, we must
follow the rules in effect on the date of referral. —
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as to any offense of which the accused was found guilty if supported by the summary
of the evidence contained in the record.
A, Starting “Anew”
Upon learning of the recording omission, the military judge correctly ruled
that he was not required to notify the convening authority before recalling witnesses.
See United States v. Griffin, 17 M.J. 698, 699 (A.C.M.R. 1983) (beginning
examination anew is the preferred method of handling unrecorded testimony); United
States v. Howard, 9 M.J. 873, 875 (N.M.C.M.R. 1978) (re-referral to convening
authority when recording error discovered during trial would be “an unacceptably
mechanical and unimaginative approach to the problem”). However, to the extent he
sought to “wash out” the prior afternoon and instead conduct an entirely new
sentencing hearing, the military judge improperly usurped the authority granted to
the convening authority under R.C.M. 1103(f). Cf United States v. Rodriguez-
Cortes, ARMY 20170521, 2019 CCA LEXIS 24, at *7 (Army Ct. Crim. App. 23 Jan.
2019) (mem. op.) (“[T]he convening authority can seek to correct error through the
military judge”); United States v. Hewett, 2 M.J. 496, 498 (A.C.M.R. 1976)
(procedure employed by trial judge was contrary to language of the Manual for
Courts-Martial and “a usurpation of the prerogatives conferred on the convening
authority”). Accordingly, we reject the view that the military judge conducted a
rehearing on sentence that severed all relation to the sentence hearing for which the
recording was lost. Instead, we find that the military judge’s effort was an attempt
to re-create the lost testimony.
Where the military judge attempts to remedy a recording error by starting
anew and recalling witnesses, the entire record must be “reconstructed.” See Griffin,
17 M.J. at 699; United States v. Lashley, 14 M.J. 7, 8 (C.M.A. 1982) (“no doubt that
the substance of the redirect exam is now in the record”); Howard, 9 M.J. at 876
(prior proceedings “repeated and transcribed verbatim”) (Baum, J., conc. op.);
United States v. Crowell, 21 M.J. 760, 761 (N.M.C.M.R. 1985) (no error where
military judge holds post-trial proceeding that is a “repetition of proceedings for
which a verbatim transcript could not be prepared”).
In United States v. Brown-Austin, this court rejected the parties’ “Stipulation
of Lost Testimony,” because the reconstruction attempt did not involve the
participation of the witnesses whose testimony was lost. 34 M.J. 578, 582-83
(A.C.M.R. 1982). Here, even though permitted to “start anew” to remedy the
unrecorded proceedings, the military judge erred in failing to require the government
*The dissent does not cite to any authority allowing for the military judge to usurp
or exercise the power granted to the convening authority to “direct a rehearing”
under R.C.M. 1103(f)(2}.
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to recall CM.° The remaining question then, is whether that missing testimony
renders the transcript non-verbatim.®
B, United States v. Davenpert
In Davenport, our Superior Court explained that an incomplete record and a
non-verbatim transcript are separate and distinct errors under the R.C.M.:
However, while in the case of most incomplete records
prophylactic measures are not prescribed, and the missing
material or remedy for same are tested for prejudice,
where the record is incomplete because the transcript is
not verbatim, the procedures set forth in R.C.M. 1103(f)
control.
73 M.J. at 377. (citing United States v. Gaskins, 72 M.J. 225, 230-31 (C.A.A.F.
2013); see also United States v. Steele, ARMY 20170303, 2019 CCA LEXIS 95 at *6
5 The dissent is correct that “starting anew” and disregarding the prior testimony is
the preferred method when a military judge discovers a recording error mid-trial.
There is a significant difference, however, between starting anew to recreate lost
testimony, see, e.g. Griffin, 17 M.J. at 699 (recalling missing witness “to testify
again provided substantially a verbatim transcript”); Lashley, 14 M.J. at 9 (portion
of missing testimony successfully reconstructed); United States v. Spring, 15 M.J.
669, 670 (A.F.C.M.R. 1983) (“The preferred method of handling incourt statements,
not recorded because of equipment malfunction, is to proceed anew on the same
matter”), and starting anew but omitting witnesses. See Brown-Austin, 34 M.J. at
583 (distinguishing Lashley, et al., on the grounds that “[i]n each of those cases the
testimony of those whose testimony was not recorded not only participated in the
reconstruction but re-testified”). The dissent also does not cite, nor are we aware of,
any case in which an appellate court affirmed after an entire witness’s testimony was
omitted.
6 The dissent cites to Griffin for the proposition that “the main reason for a verbatim
record is to ensure an accurate transcript for purposes of appellate review and review
by the convening authority.” However, this sentence is part of a larger discussion in
which the Griffin court noted that the Manual for Courts-Martial does not specify
the means by which a defective record may be reconstructed and that the “method of
reconstruction is not a matter of principal concern.” Griffin, 17 M.J. at 699. As
such, the court in Griffin was by no means justifying the omission of one or more
witnesses, but was instead reiterating that the transcript needs to be accurate
regardless of how it is reconstructed or recreated.
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(Army Ct. Crim. App. 5 A.K. Marsh. 2019) (mem. op.) (“[U]nder Davenport, we do not test
for prejudice when we have a non-verbatim transcript”).’
Although the court in Davenport eschewed a prejudice analysis, it also held
that the threshold question in determining whether the transcript is verbatim is
“whether the omitted material was ‘substantial,’ either qualitatively or
quantitatively.” 73 M.J. at 377 (quoting Lashley, 14 M.J. at 9}. The court further
explained that omissions are qualitatively substantial if the substance of the omitted
material “related to the sufficiency of the Government’s evidence on the merits” and
“could not ordinarily have been recalled with any degree of fidelity.” Jd. (quoting
Lashley, 14 M.J. at 9). Likewise, omissions are quantitatively substantial unless
“the totality of the omissions ... becomes so unimportant and so uninfluential when
viewed in light of the whole record that it approaches nothingness.” /d. (quoting
United States v, Nelson, 3 C.M.A. 482, 487, 13 C.M.R. 38, 43 (1953)); see also
Steele, 2019 CCA LEXIS 95 at *5 (“[A] record is not verbatim if either (a) there is a
lot of missing material; or (b) the missing material is important .... An omission on
either prong is fatal”).
Applied here, the missing testimony of CM is both qualitatively and
quantitatively substantial. First, given that the entire testimony of CM is missing, it
cannot be “recalled with any degree of fidelity.” Davenport, 73 M.J. at 377; see
also Steele, 2019 CCA LEXIS 95 at *5 (“We easily determine that the transcript has
substantial quantitative omissions. An entire defense sentencing witness is
missing”); see also Brown-Austin, 34 M.J. at 583 (A.C.M.R. 1992) (summary
reconstruction of witness testimony “without their participation and without a
showing of their unavailability renders this record nonverbatim”).
Likewise, given that the record contains no summary or synopsis of CM’s
missing testimony, it is impossible for this court to now determine whether it is
qualitatively substantial. See United States v. Roberts, ARMY 20150023, 2018 CCA
LEXIS 437, at *12 (Army Ct. Crim. App. 7 Jun. 2018) (where record of trial lacks a
verbatim or sufficiently summarized transcript of witness testimony, the appellate
court is “unable to ascertain, with any degree of reasonable certainty, the substance
of the proceedings before it”) (citations omitted). Finally, and in any event, the
military judge himself ruled that “the admitted material from yesterday’s session
7 Although the dissent emphasizes the fact that in this case the error was discovered
and “remedied” prior to sentencing, there is nothing in either Davenport or Steele,
either explicitly or implicitly suggesting that their holdings are limited only to cases
where the recording error is discovered post-trial.
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would be both qualitatively and quantitatively substantial were such testimony to be
considered by the court in determining an appropriate sentence.”?
The defense failure to object to the government’s decision not to recall CM is
immaterial to this analysis. As the court in Davenport held, “[t]he requirement that
a record of trial be complete and substantially verbatim in order to uphold the
validity of a verbatim record sentence is one of jurisdictional proportion that cannot
be waived.” 73 M.J. at 376 (citing United States v. Henry, 53 M.J. 108, 110
(C.A.A.F. 2000)). Likewise, the court in Brown-Austin held that notwithstanding the
parties’ stipulation, the record of trial was not sufficient. 34 M.J. at 582. “This
determination of sufficiency for appellate review is solely ours, notwithstanding the
agreement of the parties at the trial level as to the purported accuracy and
completeness of reconstruction.” Jd.
Similar to United States v. Benoit, 43 C.M.R. 666, 668 (A.C.M.R. 1971), we
have no question here that the defects in the underlying proceeding “occurred in an
atmosphere of an honest intention to do the ‘right’ thing.” As the court in Benoit
also held, however, even an “unintentional failure to adhere to the correct practice
may require the reversal of an otherwise valid conviction.” Jd. Such is the case
here.
Because the transcript is not verbatim, remand is appropriate to allow the
convening authority to exercise his or her discretion under R.C.M. 1103(f). ?
However, we are again confronted with a situation similar to that in United States v.
Steele, where the 2014 amendments to Article 60, UCMJ, present a barrier to the
convening authority acting on appellant’s case under RCM 1103 because his
sentence includes a punitive discharge. 2019 CCA LEXIS 95 at 7-8. As we did in
Steele, we will set aside appellant’s sentence in order to clear the path for the
convening authority to take action under RCM 1103(f). Jd., see also United States v.
® The government also suggests we look to the 2019 Manual for Courts-Martial
version of R.C.M. 1112 for “guidance on this subject.” As appellant correctly notes,
because this rule was not in effect at the time of his court-martial, it is inapposite.
Moreover, in pertinent part, the new rule states that if there is a recording failure,
the record should be reconstructed “as completely as possible” and that if there is an
objection to reconstruction, “the trial should proceed anew, and the proceedings
repeated from the point where the interruption began.” R.C.M. 1112(d)(3)
discussion (emphasis added). As such, it is questionable whether the military
judge’s actions in this case would pass muster even under the new R.C.M. 1112.
’ Given our ruling regarding the missing testimony of CM, we need not address
appellant’s other contentions pertaining to missing exhibits and the government’s
witnesses testifying to new matters on the second day.
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Bruner, ARMY 20190276, 2020 CCA LEXIS 267, at *5 (Army Ct. Crim. App. 12
Aug. 2020) (summ. disp.).
CONCLUSION
The sentence is SET ASIDE, as is the convening authority’s action in
approving the findings. The convening authority may direct a rehearing under
R.C.M. 1103(f)}(2).
Chief Judge KRIMBILL concurs.
Judge WALKER, dissenting:
This court has before it a verbatim transcript of the entire proceedings in this
case, as required by the Uniform Code of Military Justice [UCMJ] and the Manual
for Courts-Martial [MCM]. See United States y. Lashley, 14 M.J. 7 (C.M.A. 1982);
UCM] art. 54; Rule for Courts-Martial [R.C.M.] 1103(b}. As such, this court can
fulfill its statutory obligation under Article 66, UCMJ to ensure appellant’s sentence
is correct in law and fact and should be approved. I disagree with the majority that
this case requires us to set aside the sentence and action and return it to the
convening authority.
Prior to January 2019, our appellate authority to act with respect to the
findings and the sentence of a court-martial extended only to cases in which a
sentence included a punitive discharge or confinement for one year or more, and
upon which a convening authority had acted and approved a sentence including one
or both of those elements. UCM] art. 66(c) (2018), see also United States v. Arness,
74 M.J. 441, 442 (C.A.A.F. 2015) (“The courts of criminal appeals are courts of
limited jurisdiction, defined entirely by statute.”) (citation omitted). The statutory
obligation to prepare a “complete record of the proceedings” extended to those
general courts-martial in which a sentence included death, a punitive discharge, or
confinement for one year or more. UCMJ art. 54(c). When read in conjunction with
one another, Articles 54 and 66, UCMJ, make it clear that “[t]he main reason for a
verbatim record is to ensure an accurate transcript for purposes of appellate review
and review by the convening authority.” United States v. Boxdale, 22 USCMA
414, 47 C.M.R. 351 (1973); United States v. Griffin, 17 M.J. 698, 699 (A.C.M.R.
1983). The verbatim transcript in this case allows for both required reviews.
The military judge’s remedy for the loss of the audio recording of the
sentencing proceedings produced a verbatim transcript as required. Upon discovery
of the loss of the entirety of the sentencing proceedings, prior to deliberation on or
announcement of a sentence, the military judge took immediate remedial action to
provide appellant a fair sentencing proceeding while complying with the requirement
to provide a verbatim transcript in accordance with R.C.M. 1103{b}. The military
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judge determined it would be too difficult to reconstruct nearly four hours of witness
testimony from the previous day. Rather than attempt to reconstruct the lost
testimony—a difficult task given it involved the testimony of five witnesses—the
military judge started the sentencing proceedings anew.
Having determined that reconstructing the testimony would be impossible,
beginning anew is exactly what the military judge should have done and is the
approach accepted by this court and our sister service courts. See United States v.
Griffin, 17 M.J. 698, 700 (A.C.M.R. 1983) (the court affirming a military judge’s
remedy of beginning the victim’s testimony anew which had not been recorded
initially and instructing panel members to disregard her prior testimony and destroy
any previously taken notes). The Air Force Court of Military Review found starting
anew to be “correct in law and fact,” and even commended the practice. United
States v. English, 50 C.M.R. 824, 825 (A.F.C.M.R. 1975). As the government
correctly asserts, the military judge’s remedy in this case is “the preferred method of
handling unrecorded testimony.” Griffin, 17 M.J. at 699; see also United States v.
Lashley, 14 M.J. 7,8 (C.M.A 1982) (military judge reconstructing witness testimony
during the trial proceedings immediately upon discovery). The Navy-Marine Corps
Court of Military Review found no prejudice to appellant when a military judge
began proceedings “de novo” upon the discovery of the failure of recording
equipment. United Sates vy. Howard, 9 M.J. 873, 875 (N.M.C.M.R. 1980). In United
States v. Howard, the court considered the military judge’s announcement that he
would disregard prior testimony in beginning anew and noted that neither party
challenged the military judge. /d.
I disagree with the majority that when a military judge remedies a recording
error by starting anew, the military judge is required to “reconstruct” the entire
record that was lost. The aforementioned cases in which a military judge started
anew do not hold that doing so requires reconstruction of the lost testimony. Rather,
those cases hold that starting anew and disregarding any prior testimony prevents
prejudice to appellant regarding a verbatim transcript when the new proceeding is
fully captured in the record. It is only in those cases in which a military judge
attempts to actually reconstruct lost testimony that the entire record must be
reconstructed and there cannot be any substantial omissions. Lashley, 14 M.J. at 9,
{military judge’s recalling of an FBI agent to reconstruct his testimony and fill in
gaps in the recording provided complete “reconstruction” of testimony); United
States v. Brown-Austin, 34 M.J. 578, 582-83 (C.M.R. 1983) (“Stipulation of Lost
Testimony” as an attempt to reconstruct witness testimony was insufficient to satisfy
verbatim transcript when completed without the assistance of the witnesses).
Attempting to reconstruct lost testimony months after adjournment of a court-
martial is often an insurmountable task and also requires a verbatim reconstruction
of the entire record that was lost. See United States v. Davenport, 73 M.J. 373
(C.A.A.F. 2014); United States v. Steele, ARMY 20170303, 2019 CCA LEXIS 95
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(Army Ct. Crim. App. 5 A.K. Marsh. 2019). In this case, the military judge made it clear on
the record that he was not reconstructing the prior witness testimony as it would be
impossible to do so. Rather, he was starting anew and disregarding any prior
testimony. Therefore, I disagree with the majority’s conclusion that the military
judge was reconstructing lost testimony, and thereby erred in failing to require the
government to recall CM. There was no requirement to do so based upon the facts in
this case.
This court has before it a verbatim transcript of all of the testimony and
evidence considered by the military judge during the plea inquiry and the sentencing
proceedings. Given that the military judge had not yet announced a sentence in this
case, or even begun deliberation, he had the option of either reconstructing the lost
testimony or beginning anew. Unlike the aforementioned cases in which the military
judge chose to reconstruct lost testimony or was forced to do so when the lost
recording was discovered after adjournment, this court is not restricted to the
consideration of reconstructed testimony in determining whether we have a verbatim
transcript. See English, 50 C.M.R. at 826. The military judge advised both parties
he would disregard all prior testimony, admitted documentary evidence, and any of
his notes from the sentencing proceeding from the previous day. He then provided
both parties the opportunity to inquire as to his impartiality, which neither did. The
military judge also provided the appellant the opportunity to withdraw from his
guilty plea. However, appellant elected to move forward with his plea and fully
participated in the new sentencing proceeding. Both parties presented essentially
the same sentencing case with the exception of the Government’s failure to call the
victim’s son, CM, due to the late hour and his unavailability. The military judge
provided the opportunity for the defense to call CM and present any evidence it
desired from this witness, which the defense declined to do. The military judge
again emphasized that he would not consider CM’s testimony from the previous day.
The military judge’s actions resulted in a substantially verbatim transcript in which
this court has before it all of the testimony and evidence considered by him in
arriving at a sentence. This conclusion is based upon factors similar to those found
in both Lashley and Griffin, to include the military judge’s prompt remedial action
while the recollection of witnesses and counsel were fresh, and the participation of
both counsel in direct and cross-examination. Griffin, 17 M.J. at 699.
Given that we have before us a substantially verbatim transcript, we can
review whether appellant’s sentence is correct in law and fact. As the government
correctly asserts, to set aside the sentencing proceeding given the facts of this case
would “give the [appellant] a right, not based on law or reason, but upon the mere
fact of a mechanical failure over which neither party had any control.” English, 50
C.M.R. at 326. The appellant’s right to have this court conduct its statutory review
of his plea inquiry and the legality of his sentence is satisfied by the verbatim record
before this court.
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FOR THE COURT:
MALCOLM H. SQUIRES, JR.
Clerk of Court
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