United States v. Verdi

5 M.J. 330, 1978 CMA LEXIS 10222
CourtUnited States Court of Military Appeals
DecidedSeptember 5, 1978
DocketNo. 31,836; ACM S-24215
StatusPublished
Cited by38 cases

This text of 5 M.J. 330 (United States v. Verdi) is published on Counsel Stack Legal Research, covering United States Court of Military 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. Verdi, 5 M.J. 330, 1978 CMA LEXIS 10222 (cma 1978).

Opinions

Opinion of the Court

PERRY, Judge:

The appellant was convicted of two offenses of willfully disobeying the order of a superior commissioned officer and three offenses of failing to obey a lawful general regulation, in violation of Articles 90 and 92, Uniform Code of Military Justice, 10 U.S.C. §§ 890 and 892, respectively. The convening authority disapproved all the findings of guilty except those of two of the Article 92 offenses. The approved sentence includes a bad-conduct discharge, forfeiture of $100 and reduction to the lowest enlisted grade. The United States Air Force Court of Military Review affirmed on December 9, 1975. We granted review to consider the appellant’s claims (1) that the wig proscription of paragraph l-12b(4), Air Force Manual 35-KXC1),1 September 21, 1973, is unconstitutional; and (2) that the trial judge failed to properly instruct the members of the court concerning the government’s burden of proof. We reject the appellant’s challenge to the constitutionality of the regulation, for reasons to be stated in part I, infra.2 However, examina[332]*332tion of the instructions of the military judge leads us ineluctably to the conclusion that the instructions concerning the government’s burden of proof were prejudicially inadequate. Accordingly, we reverse.

I

We consider first the appellant’s challenges to the constitutionality of the regulation. While not questioning the right of the Air Force to prescribe standards for hair length and style, he contends that the wig proscription does not operate to further the Air Force’s announced goal of maintaining a high standard of dress and personal appearance by requiring “neatness, cleanliness, safety and military image.” Instead, it operates only to insure that the hair grooming standards contained in paragraph l-12b(2) can be obeyed in only one way and is thus an arbitrary and unreasonable restriction of a private right. He also contends that the regulation constitutes a denial of equal protection because it permits a baldheaded person and persons with physical disfigurements to wear wigs for cosmetic reasons while performing their duties, but deprives others of that right. Finally, he contends that the regulation is unconstitutionally vague, overbroad and indefinite, and that his conviction pursuant to the regulation denied him due process of law.

We have quite recently considered identical challenges to a hair length regulation in United States v. Young, 1 M.J. 433 (C.M.A.1976). There, the accused was convicted, inter alia, of failure to obey an order by his commanding officer to get a hair cut and, in his appeal before this Court, challenged the regulation3 upon the same grounds. We held that the decision of the United States Supreme Court in Kelley v. Johnson, 425 U.S. 238, 96 S.Ct. 1440, 47 L.Ed.2d 708 (1976), which upheld a police department’s hair length regulation, was dispositive of the challenges concerning the constitutionality of the Army’s hair length regulation. Indeed, the police regulation which was sustained in Kelley v. Johnson, supra, was “directed at the style and length of hair, sideburns, and mustaches; beards and goatees were prohibited, except for medical reasons; and wigs conforming to the regulation could be worn for cosmetic reasons.” Id. at 240, 96 S.Ct. at 1442. The Supreme Court, in upholding the regulation, accorded “wide latitude” to Suffolk County’s police department in promulgating its grooming regulations and held that the question was not whether the state can establish a “genuine public need” for the specific regulation but whether the person attacking it can “demonstrate that there is no rational connection between the regulation . . . and the promotion of safety of persons and property.” Id. at 247, 96 S.Ct. at 1446. The Court found that no such demonstration was made. And in United States v. Young, supra, 1 M.J. at 435, we held that “[t]he reasons given by the court” in Kelley v. Johnson, supra, “to uphold the police regulations are equally applicable to the [military] service regulations on the subject.” The appellant correctly reminds us that Young upheld the Army’s hair length regulation (AR 600-20) but that it did not address the wig proscription provision since Young’s violation did not involve a wig. However, the rationale of Kelley v. Johnson, supra, applies equally to this case and leads us to the same conclusion. Accordingly, we decline to hold that the wig proscription in AFM 35-104 offends the Constitution in any manner suggested by the appellant.

II

A canvas of pertinent legal principles will facilitate our review of the appellant’s challenge to the adequacy of the military judge’s instructions to the court panel.

[333]*333In the trial of criminal cases the trial judge must instruct the jury on every issue or theory having any support in the evidence.5 “[T]he instructions should distinctly set forth the law applicable, [both] to the case as made by the evidence for the prosecution . . [and] as made by all the evidence, and especially to any favorable evidence comprising defensive matter in behalf of the accused.”6 We have held that the trial judge’s obligation to instruct upon issues arises not from the request of the parties but from the existence of evidence raising the issue. United States v. Graves, 1 M.J. 50 (C.M.A.1975). There (supra at 53) we observed:

The trial judge is more than a mere referee, and as such he is required to assure that the accused receives a fair trial. Advocacy leaves the proceedings at the juncture of instructing the court members. Irrespective of the desires of counsel, the military judge must bear the primary responsibility for assuring that the jury is instructed on the elements of the offenses raised by the evidence as well as potential defenses and other questions of law.

When “the law governing a case is expressed in a statute,” the presiding judge, in his charge to the jury, “should use the language of the statute and,” indeed, may commit “error if [he] employs language which constitutes a [pertinent] departure from the statute.”7 This does not mean that the judge must in every instance read the statute verbatim while instructing the jury. Indeed, it has been held in another context that the judge may state to the jury the statutory law upon which an action is based.8 Where he chooses to merely summarize the provisions of a statute the judge must take care to include each element of the offense as set forth in the statute as well as all variations and exceptions that are set forth therein. It necessarily follows that when the law governing a case is set forth in a punitive regulation, enforceable pursuant to Article 92, UCMJ,9 the language of the regulation must be included in the instructions. Otherwise, the danger is great that the jury will misinterpret the applicable law. While the judge is not required to read verbatim the language of statutes and punitive regulations, it is clear from the foregoing that any summarization must include all pertinent provisions thereof.

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Bluebook (online)
5 M.J. 330, 1978 CMA LEXIS 10222, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-verdi-cma-1978.