UNITED STATES

v.

Robert T. RATLIFF

Yeoman Third Class (E-4), U.S. Navy

NMCCA 200102020                       Decided 22 November 2005

 

Sentence adjudged 29 June 2000.  Military Judge: J.P. Winthrop.  Review pursuant to Article 66(c), UCMJ, of Special Court-Martial convened by Commanding Officer, USS NIMITZ

(CVN 68).

 

WILLIAM E. CASSARA, Civilian Appellate Defense Counsel

Maj ANTHONY WILLIAMS, USMC, Appellate Defense Counsel

LT BRIAN MIZER, JAGC, USNR, Appellate Defense Counsel

LT DEBORAH MAYER, JAGC, USNR, Appellate Government Counsel

Capt GLEN HINES, USMC, Appellate Government Counsel

 

AS AN UNPUBLISHED DECISION, THIS OPINION DOES NOT SERVE AS PRECEDENT.

 

PER CURIAM:

 

     A special court-martial, composed of officer and enlisted members, convicted the appellant, contrary to his pleas, of conspiracy and larceny, in violation of Articles 81 and 121, Uniform Code of Military Justice, 10 U.S.C. §§ 881 and 921.  The members sentenced the appellant to confinement for 75 days, reduction to pay grade E-1, and a bad-conduct discharge.  The convening authority approved the adjudged sentence. 

 

     The appellant asserts three assignments of error: the evidence is factually and legally insufficient to support his convictions; the Government’s loss or destruction of the key piece of evidence mandates reversal; and the failure of the military judge to instruct the members on the defense of mistake was not harmless error. 

     We have carefully considered the record of trial, the appellant’s three assignments of error, and the Government’s response.  We construe the appellant’s argument in his second assignment of error to be that the record of trial is incomplete due to a substantial omission, and that he is prejudiced by that omission.  We agree, and grant relief in our decretal paragraph. 

 

Record of Trial

 

     A “complete record of the proceedings and testimony” must be prepared for every special court-martial in which the adjudged sentence includes a bad-conduct discharge.  Art. 54(c)(1)(B), UCMJ.  “A ‘complete record’ is not necessarily a ‘verbatim record.’”  United States v. McCullah, 11 M.J. 234, 236 (C.M.A. 1981)(quoting United States v. Whitman, 11 C.M.R. 179, 181 (C.M.A. 1953)).  The Constitution does not require a verbatim record of a criminal trial.  Id. at 236.  The President has directed that a complete record in a special court-martial in which a bad-conduct discharge was adjudged shall include, in addition to a transcript of the trial itself, exhibits which were received in evidence and any appellate exhibits.  Rule for Courts-Martial 1103(c)(1), Manual for Courts-Martial, United States (2000 ed.).  Where an omission from the record of trial is substantial, it raises a presumption of prejudice that the Government must rebut.  United States v. Gray, 7 M.J. 296, 298 (C.M.A. 1979). 

 

     In this case, Prosecution Exhibits 3 and 4 are missing from the record of trial.  The appellant submitted a motion to compel their production, which we granted.  Despite “exhaustive searches” conducted by the Trial Service Office and the convening authority, however, the Government was unable to find the missing exhibits.   

 

The missing exhibits constituted critical evidence for the prosecution in this conspiracy and shoplifting case.  They were videotapes recorded by surveillance cameras in the Post Exchange at Fort Eustis, Virginia.  One tape captured the appellant’s actions as he allegedly encountered a co-conspirator in the store; received from him a bag containing previously purchased inconsequential items and a receipt; approached a cash register with a shopping cart containing expensive stereo equipment; and used the receipt to deceive the cashier into concluding that the stereo equipment was previously paid for.  The other tape showed the appellant as he moved from the store itself into a shopping mall immediately outside the storefront, where a store detective apprehended him.  The detective testified about her observations of the appellant’s actions in the store, which attracted her attention as she monitored the surveillance cameras because she interpreted them as indications that he and his co-conspirator were in the process of executing a major shoplifting scheme.  The trial counsel introduced the videotapes into evidence during her testimony and played them for the members while she narrated them.  Record at 128-36. 

 

     The prosecution built its case on the videotapes.  In his opening statement, the trial counsel told the members:

 

[Detective P] followed [the appellant] throughout the

store that entire time, and because she did, you’re

going to have an opportunity to view the accused in

that store as well. . . .

 

[Description of the appellant’s actions] 

 

And you’re going to see about 90% of this.  The only thing

you’re not going to see on that videotape is him right—

actually at the cashier, because Detective [P] had walked

out into the main store area to wait for him so she

wouldn’t have to chase him down. . . .

 

. . . .

 

Members, they say that a picture is worth a thousand words. 

The government is going to show you a thousand pictures

that add up to one very important word, in this case.  That

word is larceny.  

 

Id. at 114-15 (emphasis added). 

 

     In his closing argument, the trial counsel referred repeatedly to the videotapes and recounted for the members what they observed on them.  He linked the contents of the tapes to the elements of both the conspiracy and the larceny charges.  He concluded by telling the members, “You watched this tape.  You know exactly what happened. . . . ”  Id. at 201. 

 

     After closing arguments, the military judge and counsel conducted an Article 39(a), UCMJ, session.  The military judge expressed reluctance to include the videotapes with the evidence to be given to the members for their use during deliberations.  The trial counsel analogized the tapes to photographs and argued that they should be given to the members or that the members should be told that they may view the tapes again, if they wished to do so.  The defense counsel argued that the members should not be permitted to review the tapes as part of their deliberations.  The military judge finally concluded that the tapes themselves would be given to the members with the other exhibits, and that a television would be provided if the members asked to review the tapes.  Id. at 212-15, 230-32.  Significantly, immediately after the court closed for deliberations, the president submitted a request to view the tapes to the military judge.  Id. at 226-27.  A television was provided to the members, who reached findings of guilty of both charges after deliberating more than two hours.  Id. at 233. 

 

     In this case, the trial counsel focused attention in memorable fashion on the videotapes of the appellant’s actions in the store.  Apart from Detective [P]’s narration of the videotapes, which also includes her interpretation of some of the actions of the appellant and his alleged co-conspirator, she provided only cursory testimony regarding her observations of the appellant.  The members thought the videotapes so important that they sought to review them immediately upon beginning deliberations.  We conclude that their omission from the record is substantial, raising a presumption of prejudice to the appellant.  The Government attempts to rebut that presumption through argument in its brief.  That effort, however, falls short.  These exhibits formed the centerpiece of the prosecution’s case and we know that, like the members at trial, we would inevitably turn to them in our review of the findings of guilty.  We find that the Government has failed to rebut the presumption that the appellant is prejudiced by the omission of the tapes from the record.  See United States v. Stoffer, 53 M.J. 26 (C.A.A.F. 2000); United States v. Santoro, 46 M.J. 344 (C.A.A.F. 1997). 

 

     We may affirm only such findings of guilty and the sentence or such part or amount of the sentence as we find correct in law and fact and determine, on the basis of the entire record, should be approved.  Art. 66(c), UCMJ.  The fact that these exhibits are missing prevents us from reviewing the evidence presented to the members and determining whether the evidence they considered was legally and factually sufficient to support the appellant’s conviction.  See Art. 66(d), UCMJ; United States v. Terry, 61 M.J. 721, 724-26 (N.M.Ct.Crim.App. 2005).

 

Conclusion

 

Our decision makes consideration of the appellant’s remaining assignments of error and oral argument (granted in our order of 8 July 2004) unnecessary.  The findings and the sentence are set aside.  The record is returned to the Judge Advocate General for remand to an appropriate convening authority.  A rehearing may be ordered.  If a rehearing is not ordered, the charges and specifications shall be dismissed. 

 

 

For the Court

 

 

 

R.H. TROIDL

Clerk of Court