United States v. Brown

United States Court of Military Appeals

United States v. Brown

3 M.J. 368, 1977 CMA LEXIS 9017

CourtUnited States Court of Military Appeals

DecidedSeptember 12, 1977

DocketNo. 32,422; ACM 21969

StatusPublished

Cited by6 cases

This text of 3 M.J. 368 (United States v. Brown) is published on Counsel Stack Legal Research, covering United States Court of Military Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United States v. Brown, 3 M.J. 368, 1977 CMA LEXIS 9017 (cma 1977).

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Opinion of the Court

PER CURIAM:

Subsequent to the announcement of findings, defense counsel unsuccessfully moved for a mistrial on the ground that a certain court member was asleep during the instructions of the military judge. The court member in sworn testimony averred that while he did not think he was totally asleep, he was “a little lethargic”; “fighting sleep”; “heavily eyelidded . . . trying to pay attention to what . . . the military judge was saying.”

This physical and mental posture does not comport, we believe, with the obligation of the court member to be attentive¹ at a crucial juncture in the trial proceedings, i. e., during the instructions of the law giver to the fact finders. It is beyond argument that court members cannot preserve the accused’s right to a fair trial without being attentive to adequate instructions and properly applying them to the case under consideration. Following our opinion in United States v. Groce, 3 M.J. 369 (C.M.A.1977), we must reverse. We do not answer the question of adequacy of instructions on findings.

The decision of the United States Air Force Court of Military Review is reversed and the findings and sentence are set aside. The record is returned to the Judge Advocate General of the Air Force. A rehearing may be ordered.

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Opinion of the Court

PER CURIAM:

Subsequent to the announcement of findings, defense counsel unsuccessfully moved for a mistrial on the ground that a certain court member was asleep during the instructions of the military judge. The court member in sworn testimony averred that while he did not think he was totally asleep, he was “a little lethargic”; “fighting sleep”; “heavily eyelidded . . . trying to pay attention to what . . . the military judge was saying.”

This physical and mental posture does not comport, we believe, with the obligation of the court member to be attentive¹ at a crucial juncture in the trial proceedings, i. e., during the instructions of the law giver to the fact finders. It is beyond argument that court members cannot preserve the accused’s right to a fair trial without being attentive to adequate instructions and properly applying them to the case under consideration. Following our opinion in United States v. Groce, 3 M.J. 369 (C.M.A.1977), we must reverse. We do not answer the question of adequacy of instructions on findings.

The decision of the United States Air Force Court of Military Review is reversed and the findings and sentence are set aside. The record is returned to the Judge Advocate General of the Air Force. A rehearing may be ordered.

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3 M.J. 368, 1977 CMA LEXIS 9017, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-brown-cma-1977.

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