United States v. Greene

41 M.J. 57, 1994 CMA LEXIS 127, 1994 WL 643756

• Court: United States Court of Military Appeals
• Decided: September 29, 1994
• Docket: No. 93-1084; CMR No. 9201234
• Status: Published

Opinions

Opinion of the Court

CRAWFORD, Judge:

Pursuant to his pleas, appellant was convicted of attempted larceny (2 specifications) and of wrongful use of marijuana, wrongful appropriation, and larceny, in violation of Articles 80, 112a, and 121, Uniform Code of Military Justice, 10 USC §§ 880, 912a, and 921, respectively. The convening authority approved the sentence of a bad-conduct discharge. The Court of Military Review affirmed the findings and sentence. 36 MJ 1068 (1993). We granted review on the following issue:

WHETHER THE MILITARY JUDGE ERRED BY IMPROPERLY INSTRUCTING THE MEMBERS AS TO VOTING PROCEDURES.

We hold that, under the facts in this case, the military judge did not commit plain error in failing to instruct the court members that their voting on sentence was to be by secret written ballot.

FACTS

During the preliminary instructions to the members, the judge said, “Each of you has an equal voice and vote with the other members in discussing and deciding all issues submitted to you. The senior member’s vote counts as one, the same as the junior member’s.”

The sentencing instructions by the judge were as follows:

Now, the procedural instructions in determining a sentence____ The influence of superiority in rank shall not be employed in any manner to control the independence of members in the exercise of their judgment. When you have completed your discussion, then any member who desires to do so may propose a sentence, and you do that by writing out on a slip of paper a complete sentence. The junior member collects the proposed sentences, submits them to the president, who will arrange them in order of their severity.

After each ballot, the junior member will collect and count the votes. The count is then cheeked by the president who shall announce the result of the ballot to the members.

There was no objection to these instructions.

DISCUSSION

Prior to 1920, United States v. Kendrick, 29 MJ 792, 794 n. 3 (ACMR 1989), there could be an oral vote beginning with the “youngest in commission.” The purpose was to prevent the senior members from “unduly” influencing the junior members. W. Winthrop, Military Law and Precedents 391 (2d ed. 1920 Reprint).

Now, however, both Article 51(a), UCMJ, 10 USC § 851(a), and ROM 1006(d)(2), Manual for Courts-Martial, United States, 1984, provide that the members shall vote by secret written ballot.

Article 51(a) provides:

Voting by members of a general or special court-martial on the findings and on the sentence ... shall be by secret written ballot. The junior member of the court shall count the votes. The count shall be checked by the president, who shall forthwith announce the result of the ballot to the members of the court.

RCM 1006(d)(2) requires that “[pjroposed sentences shall be voted on by secret written ballot.”

While the judge is not expressly required to instruct that there will be a secret written ballot, the members would not reasonably know this requirement unless there was an instruction. Such an instruction is set forth in paragraph 2-38 of the Military Judges’ Benchbook at 2-46 (Dept. of the Army Pamphlet 27-9 (Change 1, Feb. 1985)). The failure to give the instruction is error. The rationale behind the secret written ballot rule is to prevent unlawful influence or use of superiority in rank to influence the vote of junior members. See W. Winthrop, supra at 391.

Defense counsel’s failure to object constitutes waiver in the absence of plain error. United States v. Fisher, 21 MJ 327 (CMA 1986). See generally United States v. Olano, — U.S. -, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). We will find plain error when there is a clear, obvious error which affects the substantial rights of the accused. United States v. Toro, 37 MJ 313, 316 (CMA 1993).

In this case the judge instructed the members that “[e]ach of you has equal voice and vote..... The senior member’s- vote counts as one, the same as the junior member’s.” During the procedural instructions, again the judge admonished the members that “influence of superiority in rank shall not be employed.” Then the judge instructed the members that the ballots on proposed sentences are collected and counted by the junior member. Relying on these instructions and absent evidence of the influence of superiority in rank, United States v. According, 20 MJ 102 (CMA 1985), we hold the judge’s error did not affect the substantial rights of appellant.

*

The decision of the United States Army Court of Military Review is affirmed.

Judges COX and WISS concur.

United States v. Boland, 20 USCMA 83, 85, 42 CMR 275, 277, 1970 WL 7070 (1970), is distinguishable from the facts in this case. First, the issue there was an affirmative "instruction that the members could vote ‘orally’ on” a request to reconsider the findings. Second, the record in this case makes clear the absence of prejudice.