United States v. Murray

25 M.J. 445, 1988 CMA LEXIS 3, 1988 WL 14039
CourtUnited States Court of Military Appeals
DecidedMarch 14, 1988
DocketNo. 55,499; CM 447738
StatusPublished
Cited by40 cases

This text of 25 M.J. 445 (United States v. Murray) is published on Counsel Stack Legal Research, covering United States Court of Military Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Murray, 25 M.J. 445, 1988 CMA LEXIS 3, 1988 WL 14039 (cma 1988).

Opinions

OPINION OF THE COURT

COX, Judge:

The accused was tried by general court-martial convened at Wiesbaden, Federal Republic of Germany, by a military judge sitting alone. In accordance with his pleas, he was convicted of obstruction of justice and bribery, in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934. He was sentenced to confinement for 6 months, total forfeitures, and a bad-conduct discharge. In accordance with a pretrial agreement, the convening authority approved the sentence except for forfeitures in excess of $413.00 pay per month for 6 months. The Court of Military Review set aside the findings and sentence, and authorized a rehearing. 22 M.J. 700 (1986).

[446]*446The Judge Advocate General of the Army then certified the following issue to this Court for review:

WHETHER THE DECISION OF THE ARMY COURT OF MILITARY REVIEW, THAT FAILURE TO PROVIDE A WRITTEN PRETRIAL ADVICE TO A CONVENING AUTHORITY IN A GENERAL COURT-MARTIAL IS IN EFFECT PER SE PREJUDICIAL ERROR REQUIRING REVERSAL, IS CORRECT IN VIEW OF ARTICLE 59(a).

The charges against the accused were preferred by his commander on May 14, 1985. In his transmittal letter dated May 15, 1985, accompanying the charges, the commander recommended that the accused be tried by general court-martial. The summary court-martial (SCM) convening authority forwarded the charges on May 16, 1985, recommending trial by general court-martial. The special court-martial (SPCM) convening authority appointed an Article 321 investigating officer, who held an inquiry on June 14, 1985. In his report of June 19, 1985, the investigating officer recommended trial by special court-martial. The SPCM convening authority, after reviewing the report of investigation, forwarded the charges and the investigation to the general court-martial (GCM) convening authority recommending trial by general court-martial.

It was at this stage of the case that the error which led to the decision now challenged in the certified issue was committed. There is no evidence in the record that the convening authority was ever provided the written pretrial advice from his staff judge advocate, as required by Article 34, UCMJ, 10 U.S.C. § 834. The charges and all the allied papers — minus the pretrial advice — were forwarded to defense counsel, and a trial date was set. No motion was made by the defense regarding the missing pretrial advice before pleas were entered. Murray had negotiated a pretrial agreement2 and, accordingly, entered pleas of guilty. His pleas were accepted, and he was sentenced by the judge.

Defense counsel was presented with the record of trial along with the staff judge advocate’s post-trial recommendation. Pursuant to R.C.M. 1106(f), Manual for Courts-Martial, United States, 1984, counsel submitted his response to the convening authority; again he made no mention of the lack of the pretrial advice. On September 18, 1985, in accordance with the pretrial agreement, the convening authority approved the sentence. The matter of the “missing” pretrial advice was not raised until the case reached the Court of Military Review.

The Court of Military Review determined that the lack of the pretrial advice deprived the court-martial of the power to proceed to trial on the investigated charges, holding that the absence of the document was per se prejudicial and required automatic reversal. 22 M.J. at 703. To reach this conclusion, the court reviewed the legislative history of Article 34 and concluded that changes to the article implemented by the Military Justice Act of 1983,3 given their logical meaning, demonstrated a congressional desire to impose stricter standards for pretrial advices than those that previously existed and that stricter sanctions should apply to errors of this type, i.e., automatic reversal. Id. at 702-03. In so doing, the court decided that a showing of actual prejudice or the harmless-error standard4 as set out in United States v. Ragan, 14 U.S.C.M.A. 119, 33 C.M.R. 331 (1963), no longer applied.

After careful consideration of this issue, we must emphasize that we do not entirely disagree with the Court of Military Review’s decision. We do agree that:

(1) It is error not to submit the charges to the staff judge advocate in order for him to render, in writing, a pretrial advice;

[447]*447(2) Failure to obtain the pretrial advice can be prejudicial to an accused; and,

(3) Such an error is not jurisdictional in nature.

However, to the extent that the Court of Military Review determined the omission was per se prejudicial error, we conclude that the decision below that “the failure of the convening authority to receive a pretrial advice deprives a court-martial of the power to proceed with trial on investigated charges— [and] is prejudicial error requiring reversal,” 22 M.J. at 701, 703, was incorrect and must be overruled.

Our careful review of Article 59, the legislative history pertinent thereto, the various Rules for Courts-Martial issued to implement the Article, and case law involving similar questions requires us to hold that an error such as the one before us now requires reversal only when the accused has suffered actual prejudice. Art. 59(a), UCMJ, 10 U.S.C. § 859(a). See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); United States v. Weeks, 20 M.J. 22 (C.M.A. 1985); United States v. Remai, 19 M.J. 229 (C.M.A. 1985); and United States v. Ragan, supra.

Ragan dealt with a similar issue. The convening authority referred additional charges to a general court-martial without first submitting them to a legal advisor for review and comment. There, we would not, as did the court below here, elevate the Article 34 advice “to a more sanctified position in the preliminary proceedings than the Article 32 investigation.” 14 U.S.C.M.A. at 124, 33 C.M.R. at 336. We stated:

From whatever standpoint we approach it, the advice is unalterably a preliminary requirement. A defect in the preliminary proceedings is substantially different from a defect in the trial proceedings. We pointed out the significance of the difference in the Mickel [United States v. Mickel, 9 U.S.C.M.A. 324, 327, 26 C.M.R. 104, 107 (1958)] case ... [as follows]:
“With the possible exception of the sufficiency of the evidence to support the charges, the pretrial proceedings, including the formal investigation under Article 32, are separate from the trial. [Citations omitted.] Of course, this is not to say that they are unimportant. The Uniform Code says otherwise, and we have often held to the contrary. [Citations omitted.] Thus if an accused is deprived of a substantial pretrial right on timely objection, he is entitled to judicial enforcement of his right, without regard to whether such enforcement will benefit him at the trial. At that stage of the proceedings, he is perhaps the best judge of the benefits he can obtain from the pretrial right.

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Bluebook (online)
25 M.J. 445, 1988 CMA LEXIS 3, 1988 WL 14039, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-murray-cma-1988.