7 M.J. 609 | U.S. Navy-Marine Corps Court of Military Review | 1979
A practice condemned in prior opinions of this Court results in prejudice to appellant requiring the setting aside of the sentence in this case. United States v. Slubowski, 5 M.J. 882 (N.C.M.R.1978); United States v. Allen, No. 78 0009 (N.C.M.R. 24 Aug. 1978); United States v. Bowles, 7 M.J. 591 (N.C.M.R.1979).
Appellant pleaded guilty at an Article 39(a), 10 U.S.C. § 839(a) hearing before a military judge to voluntary manslaughter, lesser included in a charge of unpremeditated murder, wrongful appropriation of a pickup truck, and unauthorized absence, in violation of Articles 119, 121 and 86, Uniform Code of Military Justice, 10 U.S.C. § 919, 921 and 886. The pleas were accepted and findings of guilty in accordance with his pleas were entered when the Government declined to prove the greater offenses. The court comprised of officers and enlisted members was empaneled to impose sentence.
Local Court Rules of the Southwest Judicial Circuit provide, “Examination of prospective jurors
This Court has held in Slubowski, Allen and Bowles, all supra, that it is contrary to paragraph 62(b), Manual for Courts-Martial, United States, 1969 (Revised edition) and error to preclude direct examination of members by counsel. In each case, the circumstances were evaluated to determine prejudice. In Slubowski, defense counsel refused to propose written questions or to ask questions orally when afforded the opportunity to do so after the military judge had concluded his questioning. Defense counsel in Allen did not object to the procedure, submitted written questions and did not object to the military judge’s explanation of why certain questions were not asked. Although objecting to the procedure, written questions were submitted by the defense counsel in Bowles, and were
The remaining assignments of error, we find, are either without merit or rendered moot by our disposition.
The findings as approved on review below are affirmed. The sentence is set aside. The record of trial is returned to the Judge Advocate General. A rehearing on the sentence is ordered.
. We note the reference t<j jurors, incorporating a term applicable to civilian courts, has no basis in the Uniform Code of Military Justice, the Manual for Courts-Martial, United States, 1969 (Revised edition), or traditional court-martial practice. The precise designation for those persons detailed to courts-martial is “members.” See, United States v. Rivera, 6 M.J. 535 n.3 (N.C.M.R.1978).