6 M.J. 816 | U.S. Army Court of Military Review | 1978
OPINION OF THE COURT
Contrary to his pleas, the appellant was convicted of wrongful appropriation of an M-16 rifle and aggravated assault.
He assigns as error the military judge’s implicit reference to preliminary instructions given outside the present trial. The record discloses the following remarks to the court after it was assembled: “Gentlemen, I’m not going to give you extensive preliminary instructions, because I note that you’ve all sat before recently. I’m just going to remind you about a few matters
While there is no requirement for any preliminary instruction whatsoever, where some instructions are given they must be proper and complete.
Where this occurs, a presumption of prejudice arises that is rebutted only “[by clear and convincing evidence] that nothing said or done in the prohibited exchange was detrimental to the accused.”
“We do not feel that the general nature of the subject matter of the preliminary instructions alone clearly and convincingly demonstrates the absence of prejudice . . .6
In the instant case, we have compared the judge’s instructions to the court members with those recommended at paragraph 2-1, Military Judge’s Guide, Department of the Army Pamphlet 27-9. These have received endorsement by the Court of Military Appeals.
The instructions given by the military judge both prior to findings and prior to sentencing were unmistakably proper and complete.
In sum, while we condemn the practice of any incorporation of instructions by reference outside the record, we are satisfied by clear and convincing evidence in this record that there was no possibility of prejudice in this case. Accordingly, the error does not require reversal.
The findings of guilty and the sentence are affirmed.
. In violation of Articles 121 and 128, Uniform Code of Military Justice, 10 U.S.C. §§ 921 and 928.
. United States v. Waggoner, 6 M.J. 77 (C.M.A. 1978).
. Id.; United States v. Robles, 17 U.S.C.M.A. 459, 38 C.M.R. 257 (1968); United States v. Shafer, 17 U.S.C.M.A. 456, 38 C.M.R. 254 (1968); United States v. Forwerck, 12 U.S.C.M.A. 540, 31 C.M.R. 126 (1961).
. United States v. Waggoner, supra at 80, quoting United States v. Forwerck, supra at 544, 31 C.M.R. at 130.
. United States v. Waggoner, supra at 80 (emphasis added).
. Id. (emphasis added).
. See United States v. Waggoner, supra, n. 2 and 12.
. Cf. Taylor v. Kentucky, 436 U.S. 478, 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978).
. The court found the accused guilty of wrongful appropriation, as charged. However, they found him only guilty of the lesser included offense of aggravated assault under the original charge of attempted murder, and acquitted the accused of an aggravated assault charge against a second victim.