11 M.J. 131 | United States Court of Military Appeals | 1981
Lead Opinion
OPINION OF THE COURT
By divided vote, the United States Navy Court of Military Review terminated accused’s case by setting aside findings of guilty of five specifications of larceny and dismissing the charge under which they were lodged. United States v. Leslie, 9 M.J. 646. Pursuant to Article 67(b)(2), Uniform Code of Military Justice, 10 U.S.C. § 867(b)(2), the Acting Judge Advocate General of the Navy certified the decision to this Court for review of a specified question.
In McGlothing, two members of the Board of Review (now Court of Military Review) acted on the accused’s case; the third member was absent and did not participate. On his pleas of guilty, the accused had been convicted of, among other offenses, 34 specifications of forgery and 1 specification of wrongful possession of an identification card. Except as to the wrongful possession offense, the board affirmed all the findings of guilty. As to the excepted offense, one member wrote an opinion setting out his determination that the specification did not state facts sufficient to allege the offense charged; and he stated that the findings of guilty thereon were “invalid.” The concluding paragraph of the opinion approved the other findings of guilty and the sentence. The second member of the board concurred only in the
Leggio elucidates the McGlothing holding. As in McGlothing, two members of the board of review joined in the disposition.
Judge Latimer maintained that when only a single legal issue is before the tribunal, a concurrence in result represents agreement with the legal determination expressed in the written opinion of the other member.
What transpired here is different from what occurred in McGlothing and Leggio. In the latter cases, one of the two judges who joined in the disposition of the case gave no reason for concurring in the result. Here, the second judge particularized the predicate for his vote; his predicate was a perceived legal error different from that found by the first judge. United States v. Leslie, 9 M.J. 646 (N.C.M.R.1980). Further, the joinder of the two perceived legal errors produced dismissal of all the offenses of which the accused had been convicted, not simply an agreement on an appropriate sentence.
A Court of Military Review cannot dismiss all charges against an accused for reasons unsupported by the record of trial. United States v. Waymire, 9 U.S.C. M.A. 252, 26 C.M.R. 32 (1958). Here, each of the two judges who agreed on dismissal of the charges did so for a different legal reason. As both votes were essential to attainment of a majority decision, the incorrectness, as a matter of law, of either reason vitiates the majority. The Acting Judge Advocate General has asked review of the legal correctness of the first member’s determination “that a fatal variance” exists but not that of the second judge, who determined that “reversal [was] mandated for failure of the evidence” to support the findings of guilty. United States v. Leslie, supra at 655. The complexities inherent in review of factual determinations by a Court of Military Review may have dissuaded the Acting Judge Advocate General from including the second issue.
. United States v. Leslie, 9 M.J. 67 (C.M.A. 1980).
. The third judge of the board of review was not absent as was the judge in United States v. McGlothing, 14 U.S.C.M.A. 392, 34 C.M.R. 172 (1964).
. United States v. Leggio, 12 U.S.C.M.A. 319, 321, 30 C.M.R. 319, 321 (1961) (Latimer, J., dissenting).
. Article 67(d), Uniform Code of Military Justice, 10 U.S.C. § 867(d).
. See United States v. Remele, 13 U.S.C.M.A. 617, 33 C.M.R. 149 (1963); United States v.
Dissenting Opinion
(dissenting):
This matter is before this Court on motion of the appellee, the accused. The motion goes to the question certified by the acting Judge Advocate General of the Navy concerning action taken by the United States Navy Court of Military Review in this case. That court reversed the appellee’s conviction.
The certified question is as follows: Considering that the majority of the U. S. Navy Court of Military Review found the accused’s conviction to be otherwise unassailable, was the lead opinion correct in the determination that United States v. Craig, 8 U.S.C.M.A. 218, 24 C.M.R. 28 (1957) was wrongly decided and that a fatal variance occurred in this case between the pleadings and proof of ownership of the property allegedly stolen thereby requiring reversal of the conviction?
(Emphasis added.)
The appellee’s motion asserts that there is no certifiable issue of law raised by the holding of the Navy Court of Military Review for this Court to review. The certified question, he argues, relates only to the opinion of one judge and therefore falls within the rationale of United States v. McGlothing, 14 U.S.C.M.A. 392, 34 C.M.R. 172 (1964). The prayer of the motion is to dismiss the certified issue.
It is important that the short opinion in United States v. McGlothing, supra, be dissected. The germane part of the opinion is set forth below:
The Acting Judge Advocate General of the Navy has certified its decision to this Court upon the following question:
“Was the Board of Review correct in holding that the specification under Charge IV failed to allege an offense?”
A study of the board’s action reveals that only the opinion of Member Ryan refers to the failure of the specification of Charge IV to allege an offense. Member Groom was absent, and Member Hen-dry concurred only in the result reached by Member Ryan. Compare United States v. Cudd, 6 USCMA 630, 20 CMR 346. There is, therefore, no holding by the board that the specification of Charge IV did not allege an offense, and no certifiable issue is presented. United States v. Leggio, 12 USCMA 319, 30 CMR 319.
(Emphasis added.)
I note first, that even though that certified question stated that the Board of Review had made the holding in question, this Court looked at the opinion and determined that only one member had spoken to the issue certified. Of further interest is the comment to “[cjompare United States v. Cudd, 6 U.S.C.M.A. 630, 20 CMR 346.” In that case this Court, with only two judges sitting, each writing an opinion antithetical to the other, arrived at the same disposition. The only reason for the “compare” was to show that no agreement as to the specific question could be reached and, accordingly, no precedential law was decided.
United States v. Leggio, 12 U.S.C.M.A. 319, 30 C.M.R. 319 (1961), was also in answer to a certified question.
Looking now to the certified question under consideration here, it should be observed that the first clause of the question is inaccurate. Judge Baum, constituting half the majority as to disposition, did assail the appellee’s conviction for a reason other than United States v. Craig, 8 U.S.C.M.A. 218, 24 C.M.R. 28 (1957).
United States v. Waymire, 9 U.S.C.M.A. 252, 26 C.M.R. 32 (1958), stands solely for the proposition that a Board of Review (now Court of Military Review), unlike a convening authority, cannot set aside findings of guilty as a matter of discretion without finding them incorrect in law or in fact. This statement of the meaning of Waymire differs greatly from that expressed by my Brother, especially in light of the Court of Military Review’s decision in this case. Moreover, in Waymire, the members of the Board of Review sidestepped the issues of law and fact in reaching their decision. Here, two judges of the intermediate court each set aside the findings of guilty by finding them incorrect in law.
True, the judges took different routes, but this Court in McGlothing and Leggio assumed that the vote in each of those cases of one judge concurring in the result was for reasons different from those stated in the lead opinion. If this were not their assumption, there would have been a holding by the then Board of Review reviewable by this Court. Such was not the result of the McGlothing and Leggio opinions.
My Brother’s next comment is, “[a]s both votes were essential to attainment of a majority decision, the incorrectness, as a matter of law, of either reason vitiates the majority.” 11 M.J. at 132. First, only one question of law is before us. It is true if that question is heard by this Court and found wanting, it would vitiate the decision of the intermediate court. So too, if this Court in United States v. McGlothing, supra, and United States v. Leggio, supra, had heard the certified question and found the respective lead opinions wanting, the same situations would have existed. There is nothing new presented in the appellee’s case.
I will not comment on my Brothers’ conclusion that the Acting Judge Advocate General of the Navy cannot handle ‘[t]he complexities inherent in review of factual determinations by a Court of Military Review,” 11 M.J. at 132, but will proceed to the majority’s next conclusion, namely, that if this Court determines that no fatal variance exists between pleading and proof that ruling will have a material effect on the decision of the Court of Military Review.
I believe if this Court in United States v. McGlothing, supra, had determined that Charge IV did allege an offense, that ruling would have had a material effect on the decision of the then Board of Review. I further believe that if this Court in United States v. Leggio, supra, had determined that the argument of trial counsel was not prejudicial to the accused, that ruling would have had a material effect on the decision of the then Board of Review.
I conclude there is no question of law to be presented to this Court. I can find no reason to deviate from this Court’s longstanding law as set forth in United States v. McGlothing, supra.
I would grant the motion to dismiss.
. “Was the Board of Review correct in holding the argument of trial counsel was prejudicial to the accused?” United States v. Leggio, 12 U.S. C.M.A. 319, 30 C.M.R. 319 (1961).
. United States v. Leslie, 9 M.J. 646 (N.C.M.R. 1980).
. See id. at 654.
. See id. at 65.
. See id. at 656.