United States v. Ortiz

19 C.M.A. 283, 19 USCMA 283, 41 C.M.R. 283, 1970 CMA LEXIS 944, 1970 WL 7326

Opinions

Opinion of the Court

Darden, Judge:

The appellant was convicted for the wrongful use of morphine and for the larceny of morphine syrettes, in violation of Articles 134 and 121, Uniform Code of Military Justice, 10 USC §§ 934 and 921. His sentence now includes a dishonorable discharge, total forfeitures, and confinement at hard labor for eighteen months. The question before this Court is whether the law officer prejudiced Ortiz by failing to orally instruct the court on the required voting procedure during the sentencing portion of the trial.

The instruction — never orally given —became a part of the record as Appellate Exhibit 12. There is no physical indication that it was considered by the court members in closed session as there is of Appellate Exhibit 11, a sentence work sheet.

This case, therefore, is not unlike United States v Pryor, 19 USCMA 279, 41 CMR 279 (1970); United States v Heaston, 19 USCMA 281, 41 CMR 281 (1970); and United States v Matlock, 19 USCMA 282, 41 CMR 282 (1970). Accordingly, the decision of the Court of Military Review is reversed as to sentence. The record of trial is returned to the Judge Advocate General of the Army. A rehearing on the sentence may be ordered.

Judge Ferguson concurs.