15 C.M.A. 322 | United States Court of Military Appeals | 1965
Opinion of the Court
Tried before a general court-martial convened at Fort Knox, Kentucky, the accused was found guilty of attempting to strike his superior officer, in violation of Uniform Code of Military Justice, Article 90, 10 USC § 890, and communicating a threat, in violation of Code, supra, Article 134, 10 USC § 934. He was sentenced to bad-conduct discharge, forfeiture of all pay and allowances, and confinement at hard labor for two years. The convening authority reduced the term of confinement to twelve months, approved the forfeitures and bad-conduct discharge, but suspended the latter for the period of confinement and six months thereafter. The board of review affirmed, and we granted accused’s petition for review on the issue whether the law officer erred in failing to grant a defense motion for mistrial, based upon his failure to give an instruction regarding the effect of evidence of the accused’s good character prior to the return of findings of guilty.
I
The factual background of accused’s alleged offenses is unimportant. Suffice it to say that the prosecution’s witnesses tended to establish that Cooper, in a drunken condition, was disrespectful to his commanding officer, threatened his life, and initiated an attack upon his person. Considerable lay evidence was adduced by the defense tending to establish the alleged acts occurred while accused was not mentally responsible for his behavior. In addition, proof was introduced which demonstrated his goo.d
Based on this evidence, the law officer, in an out-of-court hearing, expressed the view that “good character is in issue in this case” and advised counsel that he would give the court an appropriate instruction thereon. Inexplicably, however, the advice was not given, and the court-martial returned findings of guilty without the benefit of any charge in this regard.
Following announcement of the verdict, the usual presentencing proceedings were had, including receipt of evidence of a previous conviction for similar misconduct. After the court members had retired to consider the question of accused’s punishment, the law officer called án out-of-court hearing in which he disclosed that he had become aware of his failure to give an appropriate instruction on the effect of the character evidence. He proposed to correct the omission by recalling the court, appropriately instructing it on the issue, and having it thereafter revoke its earlier findings and vote again on the issue of guilt or innocence. Defense counsel objected to the procedure on the basis that “human nature being such as it is, they would give this no consideration and just adhere to the previous findings.”
The law officer nevertheless refused to declare a mistrial in-view of the error and had the court members summoned from their deliberations. Thereafter, he advised them properly concerning the effect of the evidence of good character; informed them it would be appropriate to revoke the findings of guilty, and reconsider the matter in light of his new instructions; and ordered them into closed session for that purpose.
The court, however, Upon reopening, announced it had determined not to revoke its former findings and to reballot on the question of accused’s guilt or innocence. Instead, it had elected to vote upon and decide the issue of accused’s sentence. Following further instructions from the law officer and a statement of his belief that he had committed reversible error in failing to instruct it prior to findings, it again closed and thereafter revoked its former findings of guilty; reballoted on the issue in light of the instruction on character evidence; and again found the accused guilty. Thereafter, it closed once more, deliberated on the question of punishment, and reconvened to announce the sentence set out above.
II
Basically, the issue before us is whether an instructional omission by the law officer may be cured by having the court-martial revoke its findings of guilty and deliberate again on the issue of guilt or innocence after having received proper instructions. There can be no doubt that, as the law officer properly recognized, . the evidence placed in issue the question of accused’s good character and, upon request, entitled him to a proper instruction on the effect thereof. United States v Harrell, 9 USCMA 279, 26 CMR 59; United States v Gagnon, 5 USCMA 619, 18 CMR 243; United States v Browning, 1 USCMA 599, 5 CMR 27. Nor can it be argued here that entitlement to the instruction was waived when it appears from the record the law officer affirmatively indicated to counsel his intention to give the instruction and did not thereafter inform them of any change in his ruling or permit an opportunity to object to its exclusion from the advice. Cf. Colbert v United States, 146 F2d 10 (CA DC Cir) (1944) ; Hawley v United States, 133 F2d 966 (CA 10th Cir) (1943); McAffee v United States, 105 F2d 21 (CA DC Cir) (1939). Thus, the real question is whether a prejudicial instructional error or omission may be cured by the procedure followed here.
Turning to other authorities, we find the general rule applicable to such situation to be stated as follows:
“The court has the power, and it is its right and duty, either with or without request, and at any time during the trial, to withdraw or to correct its instructions to the jury, if, on reflection, it is considered that they have been erroneously or unnecessarily given; and even though the jury have retired they may be recalled for such purpose.” [23A CJS, Criminal Law, § 1322.]
Such corrections may clearly take place “at least prior to the time that the jury retires to deliberate.” Byas v United States, 182 F2d 94, 98 (CA DC Cir) (1950). Indeed, they may be made after the jury has retired for its deliberations but has not yet returned a verdict. Baker v United States, 156 F2d 386, 390 (CA 5th Cir) (1946). See also 23A CJS, supra, § 1376; Elms v State, 53 Okla Crim 268, 10 P2d 728 (1932); People v McNeal, 160 Cal App 2d 446, 325 P2d 166 (1958); and State v Smith, 21 NJ 326, 121 A2d 729 (1956). But no authority has been found or cited before us which authorizes the correction of instructions after the fact finders have completed their deliberations and returned a verdict in open court.
Accused having presented evidence of his good character and the intended instruction not having been delivered to the court prior to its return of findings of guilty, it is apparent that prejudicial error was committed, particularly in light of the substantial issue which existed regarding accused’s mental responsibility for the alleged acts. The error, as we have noted, could not be purged by the law officer’s nunc pro tunc action, and, accordingly, a mistrial should have been declared. As it was not, reversal is necessitated.
The decision of the board of review is reversed, and the record of trial is returned to The Judge Advocate General of the Army. A rehearing may be ordered.