United States v. McCauley

9 C.M.A. 65, 9 USCMA 65, 25 C.M.R. 327, 1958 CMA LEXIS 631, 1958 WL 3159

• Court: United States Court of Military Appeals
• Decided: March 28, 1958
• Docket: No. 10,099
• Status: Published

Opinions

Opinion of the Court

ROBERT E. Quinn, Chief Judge:

At a hearing held by a special court-martial, the accused was convicted of sleeping on post, in violation of Article 113, Uniform Code of Military Justice, 10 USC § 913. The Government concedes that error was committed when trial counsel provided the court-martial with a volume of the Court-Martial Reports and asked it to refer to the opinion of this Court in United States v Williams, 4 USCMA 69, 15 CMR 69. Since we have “repeatedly condemned” such References, the concession is appropriate. United States v Chaput, 2 USCMA 127, 7 CMR 3. The Government contends, however, that the accused was not prejudiced by the court’s use of the case reference. To support its contention it has submitted affidavits from the members of the court. Three of the five members represent that they referred to page 70 of the volume of the Court-Martial Reports “for a definition of the word ‘sleep.’ ” The other two members say that they do not know whether the volume was used; they do not indicate whether they were informed of the Williams definition.

Assuming that we may consider the affidavits (cf. United States v Webb, 8 USCMA 70, 23 CMR 294; United States v Roberts, 7 USCMA 322, 22 CMR 112), they do not demonstrate a lack of prejudice. The definition of “sleep” in the opinion is an integral part of the discussion of the facts of the case which closely parallel the facts here. In the affidavits submitted to us the court members do not say that they were uninfluenced by the Williams facts. Consequently, the overall situation is substantially the same as that which we condemned in United States v Chaput, supra, and United States v Lowry, 4 USCMA 448, 16 CMR 22. As we said in the Lowry case, supra, page 453: “It may well be that the facts recited in them [the cases to which the court-martial was referred] had considerable influence upon the court.” Furthermore, the record of trial does not indicate that the Williams case was shown to defense counsel or that he was aware of his right to object to its use by the court-martial in its closed session deliberations. In effect, the court members were instructed on a vital issue in the case, without according defense counsel an opportunity to “frame an exception or . . . request . . . additional instructions.” United States v Linder, 6 USCMA 669, 20 CMR 385. We conclude that the accused was prejudiced by the court members’ use of the volume of the Court-Martial Reports submitted to them.

The decision of the board of review is reversed. The findings of guilty and the sentence are set aside. A rehearing may be ordered.

Judge FeRGüson concurs.