United States v. Taft

21 C.M.A. 68, 21 USCMA 68, 44 C.M.R. 122, 1971 CMA LEXIS 577, 1971 WL 12464

• Court: United States Court of Military Appeals
• Decided: August 27, 1971
• Docket: No. 23,953
• Status: Published

Opinions

Opinion of the Court

Darden, Chief Judge:

In this case a procedural defect in the trial process concerns the Court. After the appellant’s arraignment, defense counsel interposed a motion to suppress certain expected Government evidence. Through inadvertence, the appellant’s plea was never taken.¹ Instead, the Government proceeded to develop its case. The trial continued to completion. Both sides clearly proceeded as though a not guilty plea had been entered in Taft’s behalf. The defense now contends that lack of a formal plea by the appellant or the failure of the military judge to enter a not guilty plea in the former’s behalf deprived the court of jurisdiction.

Since Garland v Washington, 232 US 642, 58 L Ed 772, 34 S Ct 456 (1914), stands as authority that failure to enter a plea is not a denial of due process, appellate defense counsel urge that we should reverse this conviction because of the failure to comply with statutory provisions. They remind us of the Supreme Court’s words in McClaughry v Deming, 186 US 49, 62, 46 L Ed 1049, 22 S Ct 786 (1902), that:

“. . . A court-martial is the creature of statute, and, as a body or tribunal, it must be convened and constituted in entire conformity with the provisions of the statute, or else it is without jurisdiction.”

Here no issue exists about the court-martial’s having been convened or constituted in accordance with the statute. Government counsel argue that once a court-martial is convened and constituted in accordance with the statute, it exists as a court and its procedural errors are to be tested for prejudice in the same way as are those of courts of general jurisdiction.

The statutory provision with which we are concerned is Article 45(a), Uniform Code of Military Justice, 10 USC § 845, which provides in pertinent part that if an accused fails or refuses to plead, “a plea of not guilty shall be entered in the record, and the court shall proceed as though he had pleaded not guilty.” Before enactment of the Uniform Code, the court was required to continue as if an accused had entered a not guilty plea when the accused failed to plead but the entry of a plea in his behalf was not a statutory provision. •

We find nothing in the legislative history of Article 45(a) to support a contention that Congress considered the entry of a plea as an objective in itself. Rather, the recording requirement appears to be no more than a further safeguard assuring Article 45’s basic objective of having a trial on the merits whenever an accused fails to enter a not guilty plea in his own behalf.

Moreover, this Court has held that not every violation of a statutory requirement divests a court-martial of jurisdiction. Only if the statutory provision is an indispensable prerequisite to the exercise of jurisdiction is a failure to comply with it a jurisdictional defect. United States v Vanderpool, 4 USCMA 561, 16 CMR 135 (1954).

We held in United States v Dean, 20 USCMA 212, 43 CMR 52 (1970), that a court-martial consisting of a military-judge alone did not have jurisdiction to try an accused unless the accused had requested in writing to be tried by such a court-martial. The reasons for that holding are, we believe, significantly different from the considerations in this case.² There the requirement related to the convening or the constitution of the court while here the requirement is related to a procedural step after the court was constituted.

In this case we have no doubt that the appellant intended to plead not guilty and to proceed to a trial on the merits. Since the facts of this case excluded any possibility of prejudice the decision of the United States Army Court of Military Review is affirmed.

Judge Quinn concurs.

1 The plea itself is not a part of the arraignment proceeding. United States v Boehm, 17 USCMA 530, 38 CMR 328 (1968).

2 United States v Robinson, 13 USCMA 674, 33 CMR 206 (1963), is also inapposite. Robinson’s trial occurred before the enactment of Article 39(a), Uniform Code of Military Justice, 10 USC § 839, that permits preliminary proceedings. The question in the Robinson case was whether a plea of guilty taken before the lawful convening of a court-martial and out of the presence of the court membership was enough to support a guilty finding.