The NMCCA decided United States v. Kmiecik on 17 May 2018.
Kmiecik challenges the military judge’s decision to admit “a signed acknowledgment from the appellant that he understood the Marine Corps’ policy concerning the illegal use of drugs[,]” during sentencing.
For trial counsel and judges, and defense counsel.
The military judge did not articulate his basis for overruling the defense objection to PE 2. Thus, we are unable to determine how he concluded PE 2 was “directly related to or resulting from” the offenses for which the appellant was found guilty. R.C.M. 1001(b)(4). Likewise, the military judge did not articulate his MIL. R. EVID. 403 analysis. Therefore, we give the military judge’s decision no deference and will examine the record ourselves. United States v. Manns, 54 M.J. 164, 166 (C.A.A.F. 2000).
The result may not have differed on the facts of this case, but it always makes it harder to sustain a military judge’s ruling on appeal when there is no explanation in the record. The defense counsel did object at trial citing United States v. Hardison. Having ruled from the bench, it’s not clear the MJ read Hardison, or that the TC considered the case when preparing a sentencing case. On the issue, the NMCCA observes:
In Hardison, the Court of Appeals for the Armed Forces (CAAF) held there was “no way” the signing of a drug policy statement offered by the government to show an accused knew of a service’s policy against drug use could be used as valid aggravation where the appellant had no other choice but to sign it. [United States v.] Hardison, 64 M.J. 279, 283 (C.A.A.F. 2007) (citing United States v. Kirkpatrick, 33 M.J. 132, 133 (C.M.A. 1991).
In finding the error but no prejudice the court observed that the military judge said he’d only consider it “for whatever value it may have” which suggested this experienced military judge attached little probative value to the evidence–ergo–error but no prejudice and no sentence relief.