United States v. Price

43 M.J. 823, 1996 CCA LEXIS 2, 1996 WL 39671
CourtArmy Court of Criminal Appeals
DecidedJanuary 31, 1996
DocketARMY 9401505
StatusPublished
Cited by3 cases

This text of 43 M.J. 823 (United States v. Price) is published on Counsel Stack Legal Research, covering Army Court of Criminal 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. Price, 43 M.J. 823, 1996 CCA LEXIS 2, 1996 WL 39671 (acca 1996).

Opinions

OPINION OF THE COURT

GRAVELLE, Senior Judge:

The appellant was convicted in absentia by a general court-martial consisting of officer and enlisted members of conspiracy to commit robbery, robbery, and aggravated assault in violation of Articles 81, 122, and 128, Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 881, 922, and 928 (1988). The convening authority approved the adjudged sentence of a dishonorable discharge, confinement for eight years, and forfeiture of all pay and allowances.

The issue before us in this case is whether Private Price was properly tried in absentia. We hold that the appellant was never properly arraigned, but that the appellant waived the issue.

I. Facts

An initial pretrial session pursuant to Article 39(a), UCMJ, occurred in Private Price’s general court-martial on 10 August 1994. At that session, the military judge properly advised Private Price of his options regarding counsel and court composition. Private Price elected to be represented by his detailed defense counsel, and chose to be tried by a court-martial consisting of officer and enlisted members.

After Private Price made his choices of counsel and court composition, the military judge announced that the appellant would then be arraigned. The trial counsel furnished all parties with copies of the charges, identified the accuser, gave the names of those commanders who made recommendations as to disposition of the charges, and announced that the charges had been referred to a general court-martial by the division commander, a convening authority qualified to refer such charges.

After Private Price waived the reading of the charges, the military judge, rather than following the normal procedure of asking the accused, “How do you plead?” said instead, “I will not ask for the accused’s pleas, as I was served with notice of several motions that I would obviously need to resolve before any plea was entered in this case.” Thus it appears that the military judge affirmatively chose not to complete arraignment. Thereafter, a number of motions were litigated and a number of other matters discussed. There was no further mention of arraignment or pleas. The court then recessed until 23 August 1994.

At the Article 39(a), UCMJ, session on 23 August, which Private Price attended, additional motions were litigated. At that session, the trial judge set a trial date and announced the time and date (0900 on 30 August) for the next Article 39(a), UCMJ, session. Again, there was no further mention of arraignment or pleas.

When the court reconvened at 0950 on 30 August, the appellant was absent.1 All parties at trial apparently assumed that arraignment had been completed because the trial counsel, without objection, immediately began to present evidence showing that the appellant’s absence was voluntary. Based on the testimony of witnesses presented by the government, the military judge determined that Private Price was voluntarily absent. The military judge at this point normally would have entered pleas of not guilty on [823]*823behalf of the appellant. He, however, did not do so.2 Despite this omission and without objection by the defense counsel, the military judge assembled the court, and the trial proceeded to completion as a fully contested general court-martial with officer and enlisted members.

In his post-trial submissions pursuant to Rule for Courts-Martial 1105 [hereinafter R.C.M.], the defense counsel noted as “procedural errors” that “the military judge never entered pleas on behalf of the accused, and the accused never entered a plea in this case.” Counsel asked only for relief in the form of clemency as to the sentence.

Before this court, Private Price’s appellate counsel assert for the first time that he was illegally tried in absentia because he was not arraigned prior to the time he absented himself from the proceedings. Government counsel agree that “the formal requirements of Rule for Courts-Martial 904 were not met,” but argue that the appellant’s assignment of error places form over substance; that the error was harmless; and, that any defect in the arraignment was waived by counsel’s failure to object.

II. Law

A defendant has the right to be present at every stage of the trial, including arraignment, unless the right is effectively waived by his or her voluntary absence from the courtroom. See Taylor v. United States, 414 U.S. 17, 94 S.Ct. 194, 38 L.Ed.2d 174 (1973).

In criminal trials in which the accused is voluntarily absent, the presence of the accused at arraignment has always been legally significant but is not necessarily of constitutional “due process” dimensions. See, e.g., Garland v. Washington, 232 U.S. 642, 34 S.Ct. 456, 58 L.Ed. 772 (1914); United States v. Taft, 21 U.S.C.M.A. 68, 44 C.M.R. 122 (1971). See also 3A Charles A. Wright, Federal Practice and Procedure § 721, n. 6 (expressing doubt whether the Constitution requires that the accused be present at arraignment).

While not of Constitutional dimensions, federal procedural rules have long given the accused the right to be present at arraignment. See Federal Rule of Criminal Procedure 43 [hereinafter F.R.Crim.P.]; Wright, supra, § 721. See also Crosby v. United States, 506 U.S. 255, 113 S.Ct. 748, 122 L.Ed.2d 25 (1993) (construing the requirements of F.R.Crim.P. 43).

Likewise, military criminal procedure has long guaranteed a military accused the right to be present at the arraignment and at every other stage of the proceedings. See R.C.M. 804(a). As a starting point, “trials in absentia are generally considered repugnant under the American system of justice,” and courts have therefore strictly construed provisions of the Manual dealing with such trials. United States v. Johnson, 44 C.M.R. 797, 800 (A.C.M.R.1971). See also Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938); United States v. Cook, 20 U.S.C.M.A 504, 43 C.M.R. 344 (1971).

A military accused’s right to be present at all court-martial proceedings, however, is not absolute. Once the trial begins, “further progress of the trial to and including the return of findings and, if necessary, determination of a sentence shall not be prevented and the accused shall be considered to have waived the right to be present whenever an accused, initially present ... [i]s voluntarily absent after arraignment ”, R.C.M. 804(b) (emphasis added). See also United States v. Ellison, 13 M.J. 90 (C.M.A.1982); United States v. Peebles, 3 M.J. 177 (C.M.A. 1977).

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Related

United States v. Price
48 M.J. 181 (Court of Appeals for the Armed Forces, 1998)

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Bluebook (online)
43 M.J. 823, 1996 CCA LEXIS 2, 1996 WL 39671, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-price-acca-1996.