United States v. Jones

46 M.J. 815, 1997 CCA LEXIS 201, 1997 WL 369562
Navy-Marine Corps Court of Criminal Appeals·Decided June 18, 1997·No. NMCM 96 01538·Published·Cited by 5 cases

Opinion

OLIVER, Judge:

Following mixed pleas, a general court-martial composed of officer and enlisted members convicted the appellant of two specifications of unauthorized absence, missing movement through design, assault, adultery, and drunk and disorderly conduct, in violation of Articles 86, 87, 128, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 886, 887, 928, and 934 (1994), respectively [hereinafter UCMJ]. He was sentenced to reduction to pay grade E-l, confinement for 6 months, and a bad-conduct discharge. We have examined the record of trial, the three assignments of error,1 and the Government’s response thereto. We conclude that the findings and sentence are correct in law and fact and that no error materially prejudicial to the substantial rights of the appellant was committed.

Failure to Announce Findings

The appellant first contends that the military judge failed to announce findings on those charges to which he had pled guilty and concerning which the military judge had conducted a comprehensive providence inquiry. While both the military judge and this court recognize that there was a technical error, we believe the military judge preserved the appellant’s substantive rights and therefore the appellant is entitled to no relief.

Article 53, UCMJ, 10 U.S.C. § 853, requires that a court-martial “announce its findings ... to the parties as soon as determined.” The pertinent rule provides: “Findings shall be announced in the presence of all parties promptly after they have been determined.” Rule for Courts-Martial 922(a), Manual for Courts-Martial, United States (1995 ed.) [hereinafter R.C.M.]. The appellant contends that for the offenses to which he pleaded guilty, no announcement was ever made, promptly or otherwise. The Government responds that, after determining that he had failed to announce the findings based on the appellant’s guilty pleas during his review of the record, the military judge corrected the error by holding a proceeding in revision and entering findings in the presence of all of the parties.

The appellant relies on United States v. Dilday, 47 C.M.R. 172, 174, 1973 WL 14692 (A.C.M.R.1973), in arguing that the failure of the military judge to announce the findings entitles him to a new trial. Dilday stands for the proposition, with which we do not argue, that the announcement of all findings in open court is a substantial statutory right of the accused. However, in Dilday the military judge never made any statement which could be construed to indicate that he had ever entered findings at all. In United States v. Moser, 23 M.J. 568, 569 (A.C.M.R. 1986), on the other hand, our Army brethren found “that the statements by the military judge were tantamount to an announcement of a finding of guilty in accordance with the appellant’s pleas.”

In the instant case, after the members had entered findings on the contested charges, the military judge provided to the members Appellate Exhibit L and explained to them that these were the charges and specifica[817]*817tions for which the appellant had been found guilty. He informed them that this exhibit contained “not only the charges and specifications that you entered findings on, but also charges and specifications to which the accused pleaded guilty at an earlier session of this court-martial.” Record at 578. He then said that he had “accepted those pleas and entered findings of guilty.” Id. On 6 February 1996, the members sentenced the appellant based on all the charges of which he had been found guilty.

In a post-trial Article 39(a) session conducted on 30 April 1996, the military judge stated to the parties that he had “made an error” by not entering findings as to those offenses to which the appellant had pleaded guilty. Record at 617. After hearing the counsel argue the issue of whether the appellant was entitled to a new sentencing hearing (in which they argued the application of both Dilday and Moser), the military judge denied the appellant’s motion and entered “findings of Guilty consistent with the guilty pleas of the accused.” Record at 627. We have no doubt but that, based on the entire record, the appellant was fully advised that he had been convicted of these offenses and that he is fully protected from subsequent prosecution for the same offenses. United States v. Wilson, 13 M.J. 247, 250 (C.M.A. 1982).

Indeed, we commend the military judge for reopening the trial to resolve his oversight. In United States v. Mayfield, 45 M.J. 176, 178 (1996), our superior court held that in holding a post-trial Article 39(a) session, the military judge properly corrected a statutory error concerning the lack of an on-the-record request for military judge alone. The error which the military judge acknowledged in the instant case is precisely the type of problem which R.C.M. 1102 is designed to rectify.

As this court observed in United States v. Pena, 11 M.J. 509 (N.C.M.R.1981): “ ‘It is well settled that not every departure from established trial procedure constitutes reversible error.’” (quoting United States v. McAllister, 19 USCMA 420, 42 C.M.R. 22, 24, 1970 WL 6968 (1970)). Since there was no prejudice to the substantial rights of the appellant, we conclude that the appellant was not prejudiced and that this assignment of error is without merit. Art. 59(a), UCMJ, 10 U.S.C. § 859(a).

Defective Instruction Concerning Reasonable Doubt

The appellant next contends that, in his instructions to the members, the military judge improperly shifted to him the burden of establishing his innocence. We disagree.

In a criminal proceeding the United States Constitution requires that the Government prove, beyond a reasonable doubt, every element of the offense alleged. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072-73, 25 L.Ed.2d 368 (1970). The trial judge must instruct the members of the necessity that the accused’s guilt be proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 315-16, 320, 99 S.Ct. 2781, 2786-88, 61 L.Ed.2d 560 (1979). However, the Supreme Court has not dictated the precise form the instructions to the members must take, so long as, “taken as a whole, the instruction correctly conveys the concept of reasonable doubt.” Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 137-38, 99 L.Ed. 150 (1954). See Francis v. Franklin, 471 U.S. 307, 316, 105 S.Ct. 1965, 1972, 85 L.Ed.2d 344 (1985).

In the instant case, the military judge instructed the members concerning reasonable doubt and the burden of proof on several occasions. Just before they deliberated on findings, he advised them:

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United States v. Jones, 46 M.J. 815, 1997 CCA LEXIS 201, 1997 WL 369562 (N.M. 1997).

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