United States v. Smith

18 C.M.A. 607, 18 USCMA 607, 40 C.M.R. 319, 1969 CMA LEXIS 694, 1969 WL 6103

Opinion

Opinion of the Court

PER CURIAM:

When instructing the court on the sentence to be imposed, the president of the special court-martial which convicted the accused failed to give the court any guidance on the mechanics of voting, as prescribed in paragraph 766 (2), Manual for Courts-Martial, United States, 1951. The cited provision of the Manual provides in pertinent part as follows:

“. . . [A]ny member who desires to propose a sentence writes his proposal on a slip of paper. The junior member collects these proposed sentences and submits them to the president. The court then votes on the proposed sentences, beginning with the lightest, until a sentence is adopted by the concurrence of the required number of members.” [Emphasis supplied.]

In United States v Johnson, 18 USCMA 436, 40 CMR 148, we held that it was prejudicial error to fail to instruct the court that it should begin by voting on the lightest sentence proposed. So, too, in this case. As we said in Johnson, at page 437:

“A court, uninstructed as to this procedure, may well believe that the voting could properly commence with consideration of the most severe proposed sentence. Since we have no way of ascertaining what took place, the voting having been conducted in secret, and, inasmuch as, in our opinion, the matter concerned a substantial'right of the accused, the doctrine of plain error may be properly invoked. United States v Stephen, 15 USCMA 314, 35 CMR 286. Reversal as to sentence is required.”

See also United States v Newton, 18 USCMA 562, 40. CMR 274.

The decision of the board of review is reversed. The record of trial is returned to the Judge Advocate General of the Navy. A rehearing on sentence may be ordered.