United States v. Muir

20 C.M.A. 188, 20 USCMA 188, 43 C.M.R. 28, 1970 CMA LEXIS 668, 1970 WL 7422

• Court: United States Court of Military Appeals
• Decided: December 11, 1970
• Docket: No. 22,842
• Status: Published

Opinions

Opinion of the Court

Darden, Judge:

Because the military judge in this case introduced a sentence work sheet and a written instruction on voting procedure for the court’s use “[a]s an aid in putting the sentence in proper form,” following the appellant’s conviction of attempted robbery and of robbery, the question that now arises is whether he prejudicially erred by failing to give complete oral instructions before sentencing.

The mimeographed instruction on voting procedure that was used advises court members to include “full and free discussion” in their deliberations; that influence of rank is not to be employed to control the exercise of a member’s judgment; that all who desired to do so could propose a sentence in writing that would be collected by the junior member present and given to the president of the court; that sentence proposals would be voted on by secret written ballot, beginning with the lightest sentence, to determine if one was adopted by the required number of members (this instruction was also given orally); that the junior member should collect and count the votes, with a check being made by the president, who, in turn, would announce the result; that any sentence adjudged required the concurrence of two-thirds of the members present at the time of voting but that the concurrence of three-fourths was needed where a sentence included confinement at hard labor in excess of ten years (this point, too, was the subject of an oral instruction); and, finally, that if in computing the vote required a fraction resulted, that fraction would be counted as a whole vote.

In the judgment of appellate Government counsel, instructions given by the military judge are in accord with the Manual for Courts-Martial, United States, 1969 (Revised edition), and the case law of this Court. Neither source, they say, requires instructions on the mechanics of voting, either orally or in writing. Their position is that information in paragraph 76b (1), Manual, supra, must be furnished by an oral instruction but that the guidance in paragraphs 76b(2) and 76b(3) may be brought to the court’s attention by other means.

The Court’s holding in United States v Pryor, 19 USCMA 279, 41 CMR 279 (1970), that a court must be orally instructed that voting on proposed sentences must begin with the lightest sentence proposed is considered by Government counsel to be only a sequel to United States v Johnson, 18 USCMA 436, 437, 40 CMR 148 (1969), where the requirement for an instruction that voting should begin on the lightest sentence proposed was held to be essentially “a part of military due process.” In the case before us, the military judge gave an oral instruction on the order in which proposed sentences were to be voted on.

The Government argument continues with the assertions that the guidelines in paragraph 76b (2), except for the sentence voting order, are so fully established in the military judicial system it is only “reasonable to assume that each individual court member was fully aware of them,” and that there is enough independent reassurance, such as the oath of the court members, the oral instructions, and the resulting action of the court, to permit an inference that the members acted with full information.

In United States v Johnson, supra, the law officer’s instruction on voting conformed to the requirements of paragraph 76b (2) except that he did not inform the court that it should vote on proposed sentences beginning with the lightest. The provision that voting on sentences should begin with the lightest one proposed was described in the Johnson opinion as more than a “mere technicality.” We found it to be “essentially, a part of military due process,” hence the instructional omission resulted in reversal of the sentence. 18 USCMA, at page 437.

Although the Johnson and Pryor opinions addressed only one topic among the sentence instructions, those opinions presaged our concern about sentence instructions that are provided only in written form. We did not intend to limit our emphasis on the importance of oral instructions covering procedures for determining sentence to the one subject of sentence voting order. A military judge should furnish court members with instructions on the questions they are responsible for deciding, both on findings and on sentence. Court members are not expected to consult other sources for the law. United States v Linder, 6 USCMA 669, 20 CMR 385 (1956). We consider it preferable that the judge’s instructions to the court be given “orally in the presence of counsel and the defendant.” United States v Noble, 155 F2d 315, 318 (CA3d Cir) (1946). After a military judge has orally instructed a court on the procedures by which it determines a sentence, he may also furnish some or all of his instructions in writing for reference. Oertle v United States, 370 F2d 719 (CA10th Cir) (1966), certiorari denied, 387 US 943, 18 L Ed 2d 1329, 87 S Ct 2075 (1967).

Nonetheless, in the present case counsel for the Government accurately observe that the written form was not “simply handed to the court by trial counsel unaccompanied by a word of advice or caution.” United States v Pryor, supra, at page 280. Instead, this record shows that, after introduction of the form sheet and while instructions were still being given orally, the military judge specifically referred to the written instruction on voting procedure in a reminder to the court that the lightest proposed sentence should be voted on first. Under these circumstances, we think it reasonable to conclude that the court members did in fact make use of the entire instruction form in their consideration of the sentence in this case and, as a result, that Muir was unharmed. Accordingly, we affirm the decision of the United States Army Court of Military Review.

Chief Judge Quinn concurs.