ACCA set aside the sentence of Staff Sergeant David C. Tate, instructing that the convening authority may direct a rehearing under R.C.M. 1103(f)(2).
Tate opinion here.
Appellant was tried before a military judge sitting as a general court-martial and convicted, pursuant to his pleas, for one specification of aggravated assault in violation of Article 128, UCMJ. Appellant was sentenced to a bad conduct discharge, confinement for twenty-two months, and a reduction to the grade of E-3. Appellant appealed to the Army Court of Criminal Appeals (ACCA) on the ground that his sentence was improperly approved without having a substantially verbatim transcript, in violation of R.C.M. 1103(f).
During the first day of Appellant’s trial, the court recording equipment malfunctioned and did not record the afternoon’s proceedings. The missing session included the notification of sentencing rights, the government’s sentencing case, the victim impact statement, and one defense sentencing witness. When the judge learned of the malfunction the next day, he conducted a R.C.M. 802 session, ordered the proceedings to begin anew, and stated that he would not consider anything he heard during the unrecorded sentencing portion of the case.
Appellant objected and made a motion, citing R.C.M. 1103(f) and United States v. Davenport, 73 M.J. 373 (C.A.A.F 2014), to limit Appellant’s punitive exposure to six months’ confinement and no punitive discharge. The military judge denied the motion, reiterating that he would not consider any unrecorded testimony and stating that it would be “judicial waste” to wait for the convening authority to direct a rehearing.
In the subsequent recorded proceedings, the government recalled the victim’s sister, her neighbor, and their expert. The government, however, did not recall the victim’s son, who had testified on the first day. The defense confirmed that it had no objection to the government not recalling the victim’s son and did not call that person as a witness in its own sentencing case. The military judge noted that with the exception of the victim’s son, all government sentencing witnesses testified substantially the same as they had during their unrecorded testimony.
The ACCA reviewed de novo whether the transcript was substantially verbatim as a matter of law. The Court rejected the view that the military judge conducted a rehearing on sentence that severed all connection to the hearing in which the recording was lost, and instead found that the military judge’s effort was an attempt to re-create the lost testimony. The Court found that the military judge erred in failing to require the government to recall the victim’s son.
The Court then considered whether the missing testimony rendered the transcript non-verbatim under United States v. Davenport, 73 M.J. 373 (C.A.A.F 2014), stating that the threshold question is whether the omitted material was “substantial,” either “qualitatively or quantitatively.” The Court held that the missing testimony of the victim’s son was both qualitatively and quantitatively substantial. The Court held also that the defendant’s failure to object to the government’s decision not to recall the witness was immaterial to its analysis because “[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.”
Because the Court held that the transcript was not verbatim, it ordered the case be remanded to allow the convening authority to exercise his or her discretion under R.C.M. 1103(f).
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