15 M.J. 967 | U.S. Army Court of Military Review | 1983
OPINION OF THE COURT
Appellant was convicted, contrary to his pleas, of two specifications each of possession, transfer and sale of marihuana in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934 (hereinafter UCMJ). He was sentenced to a bad-conduct discharge, confinement at hard labor for five months, forfeiture of $367.00 pay per month for five months, and reduction to the grade of Private E-l. The convening authority approved the sentence.
Two errors raised by appellant merit discussion.
I
After closing on findings, the court-martial re-opened and the president asked for instructions on reconsideration of a specification. The military judge initially advised the court that it must reconsider a finding of guilty if three members vote to reconsider and reconsider a vote of not guilty if four members vote to reconsider. During the recess which followed, the military judge checked his computations and then advised the members:
“To reconsider a prior guilty finding, four members will have to vote for that. Not guilty, five members, a majority of the court. Okay? Any questions?”
“[A] determination to reconsider a finding of guilty ... may be made by any .. . vote [less than a majority] which indicates that the reconsideration is not opposed by the number of votes required for that finding.” Article 52(c), UCMJ, 10 U.S.C. § 852(c). The panel consisted of eight members; in order to find appellant guilty of any specification, two-thirds of the panel, six members, had to concur, Article 52(a)(2), UCMJ, 10 U.S.C. § 852(a)(2). Thus, six of the eight members must oppose reconsideration of a finding of guilty to preclude it. Stated another way, only three votes were required for the panel to reconsider. Paragraph 74d(3), Manual for Courts-Martial, United States, 1969 (Revised edition). Similarly, a majority vote is necessary to reconsider a finding of not guilty. Article 52(c), supra; paragraph 74d (3), supra. Here that is five members. Thus, the military judge was wrong, in part, on both attempts to
An erroneous instruction on the procedure for reconsideration of findings is presumptively prejudicial. United States v. Boland, 20 U.S.C.M.A. 83, 42 C.M.R. 275 (1975). Conceding prejudice, the government urges this Court to limit the prejudice, i.e., it argues that the error “did not infect the entire proceeding.” We are asked to focus on the words of the president at the time court was reopened for instructions and, as an appropriate curative measure, to set aside a single specification. Apparently any specification will do.
The fact that the president requested instructions to “reconsider a specification [the members had] voted on” is not dispositive. The court-martial deliberated approximately one hour before requesting reconsideration instructions. After receiving the erroneous instructions, the members retired to another hour of deliberations before ultimate findings were reached and announced. “Not being privy to what transpired during the court’s deliberations we can, at best, only speculate as to the effect of the erroneous instruction.” United States v. Mooney, 44 C.M.R. 668, 669 (A.B.R.1971). The basis for a finding that the court members voted to reconsider only one specification in the second hour, as with the Government’s contention that the members had only voted on one specification in the first hour of deliberation, can be nothing more than speculation. Because we cannot limit the extent of prejudice with any degree of certainty we must set aside all the findings. See United States v. Sexton, 28 C.M.R. 775 (A.F.B.R.1959). Normally our holding on this issue would make it unnecessary to discuss any remaining issue. Because we will authorize a rehearing, we feel it appropriate to discuss findings on another asserted error.
II
The second issue concerns comments by the military judge to an earlier court-martial panel. Nineteen days prior to appellant’s court-martial the judge presided at the trial of another accused, one Darville. Three of the eight members of appellant’s court-martial panel sat on the panel in Darville. After sentence was announced in the Darville case, the military judge directed a number of comments to the court members. His remarks included his views regarding appropriate sentences for drug offenses, and his opinion that the sentence adjudged in Darville was less than appropriate. Although on voir dire at appellant’s trial the military judge denied having stated that the court members had violated the oath that they had taken on that particular day, or that “This panel is unfit to sit on further cases,” his comments had no less the effect of castigating the Darville court members for their decision in that case.
The military judge clearly erred when he expressed his personal views to the court-martial. United States v. Daughtry, 502 F.2d 1019 (5th Cir.1974); United States v. Kyle, 469 F.2d 547 (D.C.Cir.1972), cert. denied, 409 U.S. 1117, 93 S.Ct. 920, 34 L.Ed.2d 700 (1973); State v. Eskew, 192 Neb. 76, 218 N.W.2d 898 (Neb.1974); Commonwealth v. Albert, 437 Pa. 195, 262 A.2d 855 (Pa.), cert. denied, 400 U.S. 825, 91 S.Ct. 49, 27 L.Ed.2d 54 (1970); People v. Deneweth, 14 Mich. App. 604, 165 N.W.2d 910 (Mich.1968). “While it is appropriate for the court to thank jurors at conclusion of a trial for their public service, such comments should not include praise or criticism of their verdict.” Standards for Criminal Justice § 15-46 (1980); The Function of the Trial Judge § 5.13 (Approved Draft 1972); Trial By Jury § 5.6 (Approved Draft 1968). “Critical or laudatory words with reference to the verdict may unduly influence jurors during the remainder of their term and should accordingly be excised from the trial judge’s vocabulary.” United States v. Kyle, supra at 550. A presiding military judge may not attempt to influence a court-martial by expressions of personal opinion regarding findings or sentence. Article 37, UCMJ, 10 U.S.C. § 837.
The government argues that appellant was not prejudiced by the judge’s comments in the prior case because only three of the eight members served in the Darville case and all eight members indicated during voir dire that they could impartially try appellant’s case. We disagree. Voir dire also disclosed that the entire panel had discussed among themselves the comments of the military judge. The military judge made no attempt to lessen the effect of his diatribe by disavowing any attempt to influence or by giving cautionary instructions. It seems obvious, moreover, that he could have had no purpose other than influencing future decisions by members of the Darville panel. Clearly, the likelihood of improper influence is strong despite the members’ protestations to the contrary. We cannot say the members were not influenced both as to findings and sentence.
The absence of a challenge by defense counsel is not controlling here. The military judge had an affirmative responsibility to avoid the appearance of evil in his courtroom and to foster public confidence in court-martial proceedings. United States v. Rosser, 6 M.J. 267 (C.M.A.1979). The military judge had a duty to sua sponte insure that his comments had no affect on appellant’s case.
In light of the errors noted, the findings and sentence are set aside. A rehearing may be ordered by the same or a different convening authority before a different military judge.
