United States v. Decker ( 2014 )


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  •            UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS
    UNITED STATES
    v.
    Staff Sergeant MYRANDA I. DECKER
    United States Air Force
    ACM S32173
    15 October 2014
    Sentence adjudged 8 July 2013 by SPCM convened at Keesler Air Force
    Base, Mississippi. Military Judge: Ronald A. Gregory (sitting alone).
    Approved Sentence: Bad-conduct discharge, confinement for 45 days, fine
    of $600.00, and reduction to E-3.
    Appellate Counsel for the Appellant: Major Matthew T. King.
    Appellate Counsel for the United States:               Major Roberto Ramírez and
    Gerald R. Bruce, Esquire.
    Before
    ALLRED, HECKER, and TELLER
    Appellate Military Judges
    This opinion is subject to editorial correction before final release.
    PER CURIAM:
    The appellant was convicted, consistent with her pleas, by a military judge sitting
    as a special court-martial, of signing a false official statement, stealing a hunting camera
    from a fellow Airman, and, on divers occasions, stealing over $500.00 from her
    squadron’s “snack fund,” in violation of Articles 107 and 121, UCMJ, 
    10 U.S.C. §§ 907
    ,
    921. The adjudged sentence consisted of a bad-conduct discharge, confinement for
    45 days, hard labor without confinement for 45 days, a fine of $600.00, and reduction to
    E-3. The convening authority approved the sentence as adjudged except for the hard
    labor without confinement.
    On appeal, the appellant argues the military judge abused his discretion by
    admitting two prosecution exhibits regarding the appellant’s disciplinary record. Finding
    no error materially prejudicial to the substantial rights of the appellant, we affirm.
    Background
    At the time of her court-martial, the appellant had been in the Air Force for over
    nine years and was serving as a technical school instructor at Keesler Air Force Base,
    Mississippi. From January to March 2013, the appellant took approximately $600.00
    from her squadron’s Snack and Fundraiser Fund. Although she was not the fund’s
    custodian, she served as a building facility manager and therefore had keys that provided
    her access to the locked room where the money was kept. On multiple occasions, in the
    middle of the night, she would access the room and take $20–$50 in cash. On one of
    these occasions, she discovered a camera in the room that she believed was videotaping
    her larcenous activities. She took the camera from the room and, after a few days,
    delivered it to a local pawn shop, where it was sold before law enforcement could recover
    it.
    In March 2013, the appellant went to the base clinic to be seen for a migraine
    headache. After giving her medicine, her doctor told the appellant that she could go
    home if her unit authorized it. Instead of requesting the day off from her unit, the
    appellant drafted a false Quarters Authorization form in order to stay home and
    recuperate.
    The military judge conducted a providence inquiry and accepted the appellant’s
    pleas of guilty. During the sentencing phase of the court-martial, the military judge
    admitted two prosecution exhibits over trial defense counsel’s objections.
    First, trial counsel offered a memorandum for record signed by the appellant’s
    commander which stated he had verbally counseled the appellant following the
    appellant’s first fitness test failure (Prosecution Exhibit 5). Trial defense counsel
    objected based on hearsay and relevancy. The military judge determined the record was
    admissible for sentencing, finding it was relevant to the appellant’s performance of duty
    and was “properly certified . . . on the side [of the document] as [having been] maintained
    in the squadron records.” The military judge did note, however, that he would “give it
    whatever weight it deserves.”
    Trial counsel next offered an unsigned memorandum for record containing the
    signature block of a noncommissioned officer who verbally counseled the appellant when
    she arrived late to work for the second consecutive day (Prosecution Exhibit 6). Trial
    defense counsel objected that the document was neither relevant nor an administrative
    action. The military judge determined the record was documentation of an oral
    2                                  ACM S32173
    counseling and that, while “it ha[d] very minimal relevance,” it was admissible because it
    was maintained in a squadron personnel information file.
    Admission of Sentencing Evidence
    The appellant argues the military judge abused his discretion by admitting both
    documents under Rule for Courts-Martial (R.C.M.) 1001(b) as they did not meet the
    requirement for admission under that rule.
    We review a military judge’s decision to admit sentencing evidence for an abuse
    of discretion. United States v. Manns, 
    54 M.J. 164
    , 166 (C.A.A.F. 2000). Such a review
    implicitly acknowledges a military judge has a range of choices, and we will not overturn
    an action taken within that range. United States v. Lubich, 
    72 M.J. 170
    , 173 (C.A.A.F.
    2013). We test the erroneous admission of evidence during the sentencing portion of a
    court-martial to determine if the error substantially influenced the adjudged sentence.
    United States v. Griggs, 
    61 M.J. 402
    , 410 (C.A.A.F. 2005).
    Rule for Courts-Martial 1001(b)(2) provides that, during sentencing, trial counsel
    may introduce personal data and information pertaining to the character of the accused’s
    prior service. This rule provides as follows:
    Under regulations of the Secretary concerned, trial counsel
    may obtain and introduce from the personnel records of the
    accused evidence of the accused’s . . . character of prior
    service. Such evidence includes copies of reports reflecting
    the past military efficiency, conduct, performance, and
    history of the accused and evidence of any disciplinary
    actions including punishments under Article 15[, UCMJ].
    “Personnel records of the accused” includes any records made
    or maintained in accordance with departmental regulations
    that reflect the past military efficiency, conduct, performance,
    and history of the accused. If the accused objects to a
    particular document as inaccurate or incomplete in a specified
    respect, or as containing matter that is not admissible under
    the Military Rules of Evidence, the matter shall be
    determined by the military judge. Objections not asserted are
    waived.
    (Emphasis added.)
    In the Air Force, the “regulation[] of the Secretary concerned” is Air Force
    Instruction (AFI) 51-201, Administration of Military Justice (6 June 2013). See United
    3                                   ACM S32173
    States v. Sheridan, 
    43 M.J. 682
    , 685 (A.F. Ct. Crim. App. 1995) (to be admissible under
    R.C.M. 1001(b)(2), reprimand need not comply with regulation governing unfavorable
    information files, but must meet requirements of military justice regulation governing
    presentencing matters).
    In pertinent part, AFI 51-201 sets the following guidelines for admission of
    documents from an accused’s personnel information file:
    Section 8E—Pre-sentencing Matters (RCM 1001)
    8.13. Personnel Data and Character of Prior Service.
    “Personnel records of the accused,” as referenced in
    RCM 1001, includes all those records made or maintained in
    accordance with Air Force directives that reflect the past
    military efficiency, conduct, performance, and history of the
    accused, as well as any evidence of disciplinary actions,
    including punishment under Article 15, UCMJ, and previous
    court-martial convictions.
    8.13.1. Personnel Information File. Relevant material
    contained in an accused’s unit personnel information file
    (PIF) may be admitted pursuant to RCM 1001(b) if:
    8.13.1.1. Counsel provided a copy of the document or
    made the document available to opposing counsel prior to
    trial; and
    8.13.1.2. There is some evidence in the document or
    attached to it that:
    8.13.1.2.1. The accused received a copy of the
    correspondence (a document bearing the signature of the
    accused, or a witnessed statement regarding the accused’s
    refusal to sign, would meet this criterion) and had the
    opportunity to respond to the allegation; and,
    8.13.1.2.2. The document is not over 5 years old on
    the date the charges were referred to trial.
    Applying these requirements to the documents at issue here, we find these two
    exhibits did not comply with the regulation of the Secretary concerned. Prosecution
    Exhibit 5 contained only the signature of the squadron commander, and Prosecution
    Exhibit 6 contained only the signature block of a fellow instructor and staff sergeant,
    4                                 ACM S32173
    without even that individual’s signature. Neither document bears the signature of the
    accused, a witnessed statement regarding the accused’s refusal to sign, nor any other
    evidence the appellant received a copy of either document nor had the opportunity to
    respond to the allegations made therein. See AFI 51-201, ¶ 8.13.1.2.1. Accordingly,
    admission of these exhibits was error.
    Turning to the impact of this error, however, we find none. When admitting the
    exhibits, the military judge noted he would give them the weight they deserve. Viewing
    the appellant’s guilty plea as a whole, to include her admitted larceny of a fellow
    Airman’s camera and $600.00 from her squadron’s Snack and Fundraiser fund, and
    several adverse administrative actions properly admitted at trial, we find the record of a
    single fitness failure and a late arrival work to have had little-to-no impact on the
    sentencing decision of a seasoned military judge and thus did not substantially influence
    the adjudged sentence. Particularly in light of the military judge’s express statement that
    he considered the exhibits in question to be of “very minimal relevance,” we find the
    error to be harmless.
    Conclusion
    The approved findings and sentence are correct in law and fact, and no error
    materially prejudicial to the substantial rights of the appellant occurred. Articles 59(a)
    and 66(c), UCMJ, 
    10 U.S.C. §§ 859
    (a), 866(c). Accordingly, the approved findings and
    sentence are AFFIRMED.
    FOR THE COURT
    STEVEN LUCAS
    Clerk of the Court
    5                                  ACM S32173
    

Document Info

Docket Number: ACM S32173

Filed Date: 10/15/2014

Precedential Status: Non-Precedential

Modified Date: 10/30/2014