United States v. Roberts

18 M.J. 192, 1984 CMA LEXIS 19084

Opinions

Opinion of the Court

FLETCHER, Judge:

On February 4, 1980, appellant was found guilty of being absent without authority, in violation of Article 86, Uniform Code of Military Justice, 10 U.S.C. § 886. The military judge at this special court-martial sentenced appellant to a bad-conduct discharge, confinement at hard labor for 3 months, forfeiture of $150.00 pay per month for 4 months and reduction to pay grade E-3. The convening authority and the supervisory authority approved this sentence. The United States Navy-Marine Corps Court of Military Review affirmed the findings of guilty and the sentence on December 16, 1982.

This Court specified the following issue for review:

WHETHER THE COURT OF MILITARY REVIEW ERRED TO THE SUBSTANTIAL PREJUDICE OF THE APPELLANT WHEN IT DIRECTED THAT THE INQUIRY INTO HIS SANITY AT THE TIME OF THE COMMISSION OF THE OFFENSE BE HEARD BY A MIL ITARY JUDGE AT A DUBAY PROCEEDING RATHER THAN BY A COURT-MARTIAL EMPOWERED TO DECIDE THE ULTIMATE ISSUE SINCE A DETERMINATION THAT HE WAS NOT SANE WOULD HAVE RESULTED IN NOT GUILTY FINDINGS AS TO THE OFFENSE.

We note that a DuBay

Footnotes

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* hearing is not a rehearing or trial de novo to redetermine an accused’s guilt. It is a proceeding “utilized to gather additional evidence or to resolve conflicting evidence before determining an issue presented to the appellate tribunal.” See United States v. Flint, 1 M.J. 428, 429 (C.M.A. 1976). With this distinction in mind, we hold that the Court of Military Review did not err in ordering a DuBay proceeding to assist it in resolving appellant’s post-trial sanity claims. See United States v. Jackson, 17 U.S.C.M.A. 681 (1968).

Appellant had no objection to this procedure at the Court of Military Review. At the close of evidence at the DuBay hearing, appellant’s counsel correctly asserted, “I want to make only one point on the record[:] that if we reach the issue of mental responsibility, we have not waived and we demand trial by court members on that issue.” This statement demonstrates cognizance of the limited issue presented to the Court of Military Review: whether sufficient post-trial evidence existed to warrant an order to rehear the issue de novo or other appropriate action. See United States v. Triplett, 21 U.S.C.M.A. 497, 45 C.M.R. 271 (1972); United States v. Wimberley, 16 U.S.C.M.A. 3, 36 C.M.R. 159 (1966).

The Court of Military Review, by ordering a DuBay hearing in addition to a sanity board under paragraph 121, Manual for Courts-Martial, United States, 1969 (Revised edition), apparently was giving the trial judge and the convening authority an opportunity to decide this limited issue. It is clear that this was lucidly understood by the convening authority, who stated in his trial-judge-referral order:

Should the accused introduce evidence sufficient to place in issue the questions of his capacity or responsibility, then the government and the accused will be afforded a complete hearing on the matter or matters in issue.

After the DuBay hearing, however, the military judge issued detailed findings of fact and conclusions of law — all of which go to resolution of the ultimate issue of mental capacity and responsibility at the time of trial and of the offense. This was manifestly not the issue to be resolved by the DuBay hearing as was clearly stated originally, supra, by the convening authority in his referral order. This error was further perpetuated in the staff judge advocate’s review, which advised the convening authority to make the same findings. The opinion of the Court of Military Review further confused the issue by seemingly reflecting the findings of the DuBay judge and deciding the issue of capacity and responsibility — all the while implicitly admitting that sufficient evidence had been introduced to raise the narrow issue they should have decided.

Our reluctance to affirm the decision of the Court of Military Review is based on the manner in which the lower appellate court ultimately resolved appellant’s post-conviction sanity claims after the DuBay hearing. The precise issue before the lower appellate court was whether appellant was entitled to a rehearing on the questions of his mental capacity to stand trial and his mental responsibility at the time of the offense. See United States v. Triplett, supra. Our examination of the Court of Military Review decision does not convince us that these questions were answered.

More particularly, the Court of Military Review in deciding this case expressly relied on United States v. Martinez, 12 M.J. 801 (N.M.C.M.R. 1981), pet. denied, 13 M.J. 232 (1982), and United States v. Bush, 14 M.J. 900 (N.M.C.M.R. 1982). These cases involve situations where either the issue of mental capacity to stand trial or the issue of mental responsibility at the time of the offense was raised at trial, fully litigated, and ruled on by the trial judge. The Court of Military Review during the course of these appeals subsequently weighed and balanced the evidence raised at trial to determine beyond a reasonable doubt these same questions. These de novo evaluations of the evidence were conducted pursuant to the Court of Military Review’s responsibility under Article 66(c), UCMJ, 10 U.S.C. § 866(c), to independently determine the mental capacity and mental responsibility of an accused. See United States v. Martinez, supra at 808 n.5.

In appellant’s case, information concerning his mental condition was first presented by appellate exhibits filed at the Court of Military Review and by evidence taken at a subsequently ordered DuBay proceeding. In this situation, the precise issue before the lower appellate court was whether, on the basis of the entire record of trial, including the new information, appellant was entitled to a rehearing on the question of his mental capacity or his mental responsibility. United States v. Triplett, supra. An appellant is not entitled to a rehearing at the trial level simply because new or additional information was presented to the appellate court. Id. By the same token, appellant does not forfeit his right to seek a rehearing simply because the appellate court utilized a DuBay proceeding to gather evidence to assist it in deciding this question. See United States v. Flint, supra; paras. 92a and 81b(1), Manual, supra.

Judge Duncan, dissenting in United States v. Triplett, supra, on a different point, succinctly stated the contours of the issue facing the Court of Military Review in this situation. “The majority considers whether or not it (new information) is of such ‘content and weight' that ‘considering all the matter on the issue, a different verdict might reasonably result.’ ” Id. at 505. Although this question requires an analysis of the weight and content of the post-conviction sanity information in light of the entire record of trial, it is done for a more limited purpose than the de novo evaluations' in United States v. Martinez and United States v. Bush, both supra, and the results may differ.

In view of the Court of Military Review’s indiscriminate reliance on United States v. Martinez and United States v. Bush, both supra, and its failure to resolve appellant’s post-conviction sanity claims in the manner provided in United States v. Triplett, supra, we are unable to affirm its decision. A reconsideration of its decision in light of our decision in United States v. Triplett, supra, is appropriate.

Accordingly, the decision of the United States Navy-Marine Corps Court of Military Review is set aside. The record of trial is returned to the Judge Advocate General of the Navy for resubmission to the Court of Military Review for further proceedings.

United States v. DuBay, 17 U.S.C.M.A. 147, 37 C.M.R. 411 (1968).