United States v. Jackson

6 M.J. 116, 1979 CMA LEXIS 12249

• Court: United States Court of Military Appeals
• Decided: January 2, 1979
• Docket: No. 35,461; ACM S24534
• Status: Published

Opinions

Opinion of the Court

FLETCHER, Chief Judge:

The members of the appellant’s special court-martial found him guilty of larceny, housebreaking, and possession of marihuana, in violation of Articles 121, 130 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 921, 930, and 934. The appellant was sentenced to a bad-conduct discharge, confinement at hard labor for six months, and forfeiture of $200 pay per month for six months. A substitute convening authority approved the sentence as adjudged. The Court of Military Review affirmed these findings and the sentence.

As to the marihuana charge, the Government properly conceded that prejudicial error occurred when the military judge failed to instruct the members on the elements of this offense. Moreover, we find an additional instructional omission by the military judge with respect to the remaining charges which likewise constitutes prejudicial error in this case. Accordingly, these findings of guilty and the sentence must be set aside.

After the military judge instructed the court members on findings, the court closed for deliberations. Approximately 40 minutes later the court opened in order to resolve this question of the court members as to findings:

Pres: One question is, we liked to know where Airman Guzman and the defendant were during the period of about 0515 to 1300 on 1 April.

This question pertained to the larceny and housebreaking offenses. The military judge questioned trial counsel as to his desire to present some evidence on this matter. Trial counsel decided to recall Airman Guzman to the stand. The military judge then said to the members:

MJ: You see, we can’t call Airman Jackson. We can only call this man and have him testify as to matters of his own personal knowledge.

MJ: Does defense have any objection to the question?

DC: No, none at all.

We stated in United States v. Thompson, 3 M.J. 168, 171 (C.M.A.1977): “. . . the military judge must bear the primary responsibility for assuring that the jury is properly instructed, United States v. Graves, 23 U.S.C.M.A. 434, 437, 50 C.M.R. 393, 396, 1 M.J. 50, 53 (C.M.A.1975), and must see that the accused receives a fair trial. See also United States v. Bryant, 3 M.J. 9 (C.M.A.1977); United States v. Grunden, 2 M.J. 116 (C.M.A.1977).” In this light, the military judge must completely as well as correctly instruct the members. See United States v. Waggoner, 6 M.J. 77 (C.M.A.1978); United States v. Verdi, 5 M.J. 330, 333 (C.M.A.1978). This is especially so where the natural inclination of the members may conflict with fundamental constitutional rights. See Lakeside v. Oregon, 435 U.S. 333, 98 S.Ct. 1091, 55 L.Ed.2d 319 (1978).

In the case at bar, the military judge called attention to the fact that the court could not call the defendant to the stand to answer the members’ question. Yet he gave no specific cautionary instruction to protect this military accused from any adverse inferences being drawn from his failure to take the stand. Even accepting the fact that the members may have been previously instructed in the earlier findings instructions in some general way as to this constitutional right of the appellant, we believe the military judge had an. affirmative duty at this critical stage of the proceedings to particularly reinstruct the members in order to insure this appellant received a fair trial. Such incomplete instructions under these circumstances amount to a denial of military due process. The absence of curative instructions after this failure of the military judge to act creates a fair risk that the appellant was prejudiced, which mandates reversal.

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

Judge PERRY concurs.