United States v. Freeman

12 M.J. 542, 1981 CMR LEXIS 641
CourtU.S. Army Court of Military Review
DecidedSeptember 28, 1981
DocketSPCM 15839
StatusPublished
Cited by2 cases

This text of 12 M.J. 542 (United States v. Freeman) is published on Counsel Stack Legal Research, covering U.S. Army Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Freeman, 12 M.J. 542, 1981 CMR LEXIS 641 (usarmymilrev 1981).

Opinion

OPINION OF THE COURT

FULTON, Senior Judge:

The underlying issue in this case is whether, when new members are required to be added to a court-martial during a trial, and the trial is not begun anew, the new members may be allowed to read for themselves the evidence previously received or whether that evidence must be read aloud to them in the presence of the other court members. We conclude that, although the Uniform Code of Military Justice requires that the previous evidence be read aloud to all of them, rather than permitting the new members alone to read it for themselves,1 the failure to do so may be waived by the defense and was waived in this case.

So far as disclosed by the briefs of the parties and our own research, this is a case of first impression, the facts of which are as follows: The military judge accepted appel[543]*543lant’s pleas of guilty to all charges.2 A sentence hearing then began before the members of the special court-martial, who, after challenges, included two commissioned officers and two noncommissioned officers. The prosecution presented evidence which consisted of administrative information read from the first page of the charge sheet; three records of previous nonjudieial punishment, from which the offenses charged and punishment imposed were read aloud by the trial counsel; and a stipulation of fact as to the circumstances of the property offenses, which the trial counsel also read aloud. The defense then presented appellant’s testimony under oath in extenuation and mitigation.

During a recess after appellant’s testimony, the trial counsel learned that the two noncommissioned officer court members had served earlier as court members in the sentencing of another soldier who was involved in the same property offenses.3 When this was disclosed, defense challenges to them for cause were granted and reduced the court below the statutory minimum of three members as well as depriving it of a required minimum of one-third enlisted membership.4 During a six-day recess in the trial, two new members, a Sergeant Major and a First Sergeant, were appointed to the court.5

In the session at which the challenges were granted, the military judge had said, “[The court reporter] is going to type up the record verbatim. Additional court members who are detailed to this court will read the record of trial with the exception of my comments to . . . [the court members]. They will read the record of trial. I will direct the 82d Airborne Division [sic] to obtain sufficient copies for the court members who are going to be newly detailed . . . . ” Record at 49.

When the court reconvened, the following took place before any members were brought in:

MJ: Captain Drach, have you obtained a complete copy of the verbatim transcript of this trial?
TC: Yes, your honor.
MJ: Have you segregated the essential material for the court members from the past voir dire and administrative business that we discussed at the last trial?
TC: Yes, your honor. Defense counsel and I, I believe, have agreed court members should receive pages 36 through 44, inclusive. . . .
MJ: Now, all you need to do is when the new members come in — is to go over the pertinent data contained on the first page of the charge sheet and give them pages 36 through 44.
TC: Yes, your honor.. . .
MJ: Okay, have the new members come in and present them with pages 36 through 44l
[544]*544DC: Will they be reading that, your honor, before voir dire of the members as to sentencing and before preliminary instructions from the bench?
MJ: Pardon me?
DC: Will the new members be—
MJ: They’ll be treated just like the old members. They will be voir dired, and after voir dire we’ll give them a copy of the record and let them read it.
DC: Yes, your honor, that is the only point that needed [to be] clarified.

Record at 50-51.

The two new court members then entered, while the two remaining original members waited in the deliberation room. After preliminary instructions by the military judge, and voir dire by the judge and counsel (there were no challenges), the trial counsel read aloud from the first page of the charge sheet, the records of nonjudicial punishment, and the stipulation of fact, as she had done at the previous session.7 The record then shows the following:

MJ: Would you hand the court members pages 36 through 44 of this record? They will be marked an appellate exhibit.
(Reporter marked Appellate Exhibit VI, which was handed to members.)
MJ: Now, that — those documents that you received are verbatim transcripts of the last session of this trial. We had an interruption in that trial. The court members who are in the deliberation room right now heard all that testimony live. I want you to take your time, read this, and let me know by raising your hand when you’ve completed reading those documents. “TC” stands for trial counsel, the prosecuting attorney. Of course, “DC” is defense counsel; “MJ” is military judge. “ACC” is the accused.
(Pause) [We assume the new court members read the transcript, then so signified.]
MJ: Okay, go into the deliberation room at this time. You will be called back shortly with the rest of the court members.

Record at 56.

The full court then was seated, heard the arguments of counsel as to the sentence, and received instructions from the military judge. After deliberating, they imposed a sentence of bad-conduct discharge, confinement at hard labor for six months, and forfeiture of $334.00 pay per month for six months. In accordance with a plea bargain, the convening authority reduced the periods of confinement and pay forfeiture to four months, but approved the sentence otherwise.

Article 29(c) of the Uniform Code of Military Justice provides that when the number of members of a special court-martial is reduced below the required minimum of three, as in this case, a new member or members shall be appointed and—

The trial shall proceed with the new members present as if no evidence had previously been introduced at the trial, unless a verbatim record of the evidence previously introduced before members of the court or a stipulation thereof is read to the court in the presence of the military judge, if any, the accused and counsel for both sides.... [Emphasis added.]8

Similarly, paragraph 41 f of the Manual for Courts-Martial, United States, 1969 (Revised edition), prescribes that, when a newly detailed member of a special court-mar[545]

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Related

United States v. Matthews
55 M.J. 600 (U S Coast Guard Court of Criminal Appeals, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
12 M.J. 542, 1981 CMR LEXIS 641, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-freeman-usarmymilrev-1981.