28 M.J. 531 | U S Air Force Court of Military Review | 1989
DECISION
Contrary to his pleas, the appellant was found guilty by a general court-martial composed with members of stealing currency belonging to the United States Government, sodomy, solicitation to commit sodomy, committing an indecent act, and indecent exposure in violation of Articles 121, 125 and 134, UCMJ 10 U.S.C. §§ 921, 925, 934. His sentence, as adjudged and approved, extends to a dishonorable discharge, confinement for five years, total forfeitures, and reduction to airman basic (E-l). The principal issue raised on appeal involves the validity of findings as announced by the president of the court with respect to the offenses charged under Article 134 (the latter three offenses set forth above), Specifications 1, 2 and 3 of Charge III. The matter is being raised for the first time before this Court.
The record of trial reveals the following occurred upon announcement of findings:
PRES: TSgt Michael L. Timmerman, this court-martial finds you:
Of the Specification of Charge I: Guilty.
Of the Specification of Charge II: Guilty, excepting the words “by force and without consent,” substituting therefor the words “without consent”; Of the Charge: Guilty;
And of Charge III: Guilty.
MJ: And I believe of Charge I, you did not announce that as the charge: Guilty. You need to add that to your notes.
PRES: And as of the Charge: Guilty.
*533 MJ: Of Charge I?
PRES: Of Charge I.
MJ: All right. That brings us then—
TC: If I might ask for a clarification on all three specifications of Charge III.
MJ: Yes.
TC: They were guilty. Thank you, Your Honor.
MJ: That brings us then to the second phase of the trial____
The trial then proceeded to its conclusion. It appears from the record that all parties believed the court’s findings included findings of guilty on all three specifications under Charge III. We can positively state that to be the case for the military judge and counsel. The military judge’s instructions to the court members prior to their sentencing deliberations set forth a maximum punishment which included punishment for all three of the Article 134 offenses.
We agree with appellate defense counsel that the findings in question as announced by the president of the court were irregular.
In his action, the convening authority made an adjustment to the dollar amount involved in the larceny charge, a modification to the findings which does not bear on the issue we are facing, and approved the
This seems to us a classic case for a proceeding in revision. R.C.M. 1102. However, the time for that type of corrective action has passed, since some parts of the sentence have already been ordered executed. R.C.M. 1102(d). That Rule states:
When directed. The military judge may direct a post-trial session any time before the record is authenticated. The convening authority may direct a post-trial session any time before the convening authority takes initial action on the case or at such later time as the convening authority is authorized to do so by a reviewing authority, except that no proceeding in revision may be held when any part of the sentence has been ordered executed.
(Emphasis added.) (Prior to taking his action the convening authority did order a post-trial proceeding in this case, but for an entirely unrelated purpose.)
The drafter’s Analysis tells us that this provision is based on paragraph 86d of MCM, 1969 (Rev.). MCM, App. 21, R.C.M. 1102(d) at A21-69 (1984). Paragraph 86d provided in part that, with certain limited exceptions (not pertinent to the matter in question here), “proceedings in revision may not be had in any ease in which any part of the sentence has been ordered executed.” This provision has been a part of military law at least as far back as the 1949 Manual (see MCM, 1949, para. 87b). It is a rule created by Executive Order of the President, not by statute. See Article 60(e), UCMJ, 10 U.S.C. § 860(e). Although our research has not disclosed any specific legal basis or rationale for this rule, we suspect it is premised upon the belief that proceedings in revision would no longer be appropriate once a case has become final in law. Prior to passage of the Military Justice Act of 1983 (Public Law 98-209; 98 Stat. 1393), no part of a court-martial sentence which included a punitive discharge or confinement of one year or more could be ordered executed until the case was in essence final in law, that is, after completion of appellate review. That, of course, is no longer the rule. A convening authority, as was done in this case, can now order execution of all types of punishment when taking initial action except for punitive discharges or a sentence extending to death. See Article 71, UCMJ, 10 U.S.C. § 871.
Before this change in the law, an appellate court could order a proceeding in revision. In fact the Manual for Courts-Martial specifically provided for this:
When a record of trial by general court-martial, or a record of trial by special court-martial in which a sentence to bad-conduct discharge has been approved, has been forwarded by a convening authority to higher authority and error of the kind mentioned in 86c and d is noted by the higher authority, the record will be returned to the convening authority (Art. 60) with directions for the correction of the record or revision of the proceedings.
MCM, 1969 (Rev.), para. 95 (emphasis added) — this provision had also been a part of military law since the 1949 Manual. See MCM, 1949, para. 92. See also United States v. Williamson, 4 M.J. 708, 710 (N.C. M.R.1977). However, there is no such provision in the 1984 Manual, nor is there any reference to paragraph 95 of the 1969 Manual in the Analysis sections relating to post-trial sessions or review by the military appellate courts MCM, App. 21 at A2169, A21-78.1 and A21-78.2. The last sentence in the Analysis to Rule 1102(d) does state: “Note that a post-trial session may be directed, when authorized by an appropriate reviewing authority (e.g., the supervisory authority, or the Judge Advocate General), even if some or all of the sentence has been executed.” We are confident that the term “appropriate reviewing authority” does include the military appellate courts, but what specific guidance was intended by the rest of this sentence we are not entirely sure. If it was intended to include proceedings in revision, then it is in direct conflict with the Manual Rule itself.
As the Court of Military Appeals stated some years ago:
We have consistently recognized that where a Manual provision does not lie outside the scope of the authority of the President, offend against the Uniform Code, conflict with another well-recognized principle of military law, or clash with other Manual provisions, we are duty-bound to accord it full weight.
United States v. Villasenor, 6 U.S.C.M.A. 3, 19 C.M.R. 129, 133 (1955). We will do so with regard to R.C.M. 1102(d). Absent additional guidance from the President, we will not presume that we have the authority to order a proceeding in revision at this stage in the appellate process. This is most unfortunate, and a situation we are not sure was intended, or for that matter even considered when the present Manual was being drafted. Proceedings in this case are not final in law as appellate review has not been completed, and in our view there is no rational basis for an appellate court not to have the same power as a military judge or convening authority as far as proceedings in revision are concerned. We strongly urge that the Manual drafters give consideration to this matter at their earliest convenience. We considered setting aside the action of the convening authority and returning the record to him for further consideration. That being done, it might be possible for a proceeding in revision to be held. However, in light of our disposition of the error in question, we need not further address the viability of that course of action at this time.
Appellate defense counsel urge that we set aside the findings of guilty of Charge III and its specifications because there is no basis in the record to support the conclusion that the court members complied with the military judge’s instructions in reaching their findings — i.e., that they even voted on the three specifications undér Charge III. Counsel rely principally upon United States v. Dilday, 47 C.M.R. 172 (A.C.M.R. 1973). In Dilday, the trial court announced findings as to the charges, but not the specifications thereunder (a single specification was alleged under each charge). The Army Court of Military Review found no basis in the record to support the conclusion that the court had in fact voted by secret written ballot on the specifications. The Court of Review concluded that “an accused is entitled to a separate vote upon each specification; further, he is entitled to an announcement in open court as to each of the findings reached ...; [and] that the statutory right of announcement of all findings in open court is a substantial right of the accused.” Id. at 174. See also Articles 51(a) and 53, UCMJ; MCM, 1969 (Rev.), para. 74d (having to do with voting procedures — now covered by R.C.M. 921(c)). Therefore, the failure of the court to announce findings as to the specifications was the equivalent of no finding. United States v. Dilday, 47 C.M.R. at 174. See also ACM 1013, Stephens, 1 C.M.R. 279 (1949).
Other Courts and Boards of Review have addressed this matter in varied settings. In another Army case, some two years after Dilday, the Court held that the failure of the trial court to make findings as to three specifications was not prejudicial where each specification was the only specification under three different charges and the accused pleaded guilty to the specifications and the charges. The Court cautioned, however, that the result would be different if there had been more than one specification under the charge or if the offenses had been contested (precisely the situation we are facing today). United States v. Barnes, 50 C.M.R. 625 (A.C.M.R. 1975). In United States v. Duncan, 16 C.M.R. 346 (A.B.R.1954), a ease involving a single offense, the trial court entered a finding of not guilty to an excepted word,
We do not consider this Court, of necessity, bound by the holdings in those cases, and we have not discovered a case wherein the United States Court of Military Appeals has addressed the precise issue we are facing. We accept two legal principles from these cases: first, that an accused is entitled to a separate vote on each specification charged; and second, that the right to announcement of all findings in open court is a substantial right of the accused. However, though an error which affects a substantial right of an accused is presumptively prejudicial, “the presumption may yield to compelling evidence in the record that no harm actually resulted.” United States v. Boland, 20 U.S.C.M.A. 83, 42 C.M.R. 275, 278 (1970). In this regard we look to the record as a whole to determine the intent of the trial court with respect to announcement of the findings. Cf. United States v. Nedeau, 7 U.S.C.M.A. 718, 23 C.M.R. 182 (1957); United States v. D'Andrea, 10 C.M.R. 909 (A.F.B.R.1953). We are convinced that the members determined that the appellant was guilty of all three of the specifications in question and it was their intent to so announce in their findings. The appellant has suffered no harm as a result of the court’s erroneous announcement of its findings. We reach this conclusion based upon the following matters of record.
First, evidence indicating that the appellant committed the sexual offenses charged in this case is overwhelming. The acts occurred at three different times and involved different victims, each of whom testified at trial. The victims did not know each other. That these three young men (two were airmen, one of whom was assigned to another base, the third a civilian) would suddenly come forward and falsely accuse the appellant of committing these acts is incredible.
Second, the military judge’s instructions to the members concerning voting procedure and announcement of findings were entirely correct.
Third, the President announced a finding of guilty to the charge. If the members did not find the appellant guilty of one or more of the specifications thereunder, this announcement makes absolutely no sense.
Fourth, trial counsel inquired about the findings as to the specifications of Charge III, and then stated: “They were guilty. Thank you, Your Honor.” Had that not been the verdict of the jury, common sense dictates that one or more of the five panel members present would have questioned it.
Sixth, we turn to the Findings Worksheet (a copy of which appears as an Appendix to this opinion).
And, seventh, the post-trial submissions by both the appellant and his counsel (R.C. M. 1105, 1106) demonstrate their understanding that he was found guilty of all three specifications of Charge III.
In sum, based upon the entire record, we are satisfied that the appellant has suffered no prejudice from the irregular form in which the jury’s verdict was announced, and that the verdict is sufficiently certain to protect the appellant from subsequent prosecution for the same offenses. See generally United States v. Harris, 25 M.J. 281 (C.M.A.1987); United States v. Johnson, 22 M.J. 945 (A.C.M.R.1986); United States v. Davie, 18 M.J. 598 (N.M.C.M.R. 1984), pet. denied 19 M.J. 121 (C.M.A.1984); United States v. Darden, 1 M.J. 574 (A.C. M.R.1975).
Our attention is also invited to the issues raised by the appellant’s civilian defense counsel in a lengthy, well-written post-trial petition to the convening authority which addresses clemency as well as the merits of the case. Therein, counsel raises nine specific matters which he asserts affect the legality of the trial proceedings. Most relate to sufficiency of the evidence to support the findings of guilty. Each matter was addressed in detail by the staff judge advocate in an addendum to his recommendations to the convening authority (R.C.M. 1106). We agree with the staff judge advocate’s conclusion that none of the matters so raised require any type of corrective action. Article 66(c), UCMJ, 10 U.S.C. § 866(c). See generally United States v. Rath, 27 M.J. 600 (A.C.M.R.1988); United States v. King, 27 M.J. 545 (A.C.M.R.1988); United States v. Evans, 26 M.J. 550 (A.C. M.R.1988); United States v. Lips, 22 M.J. 679 (A.F.C.M.R.1986), pet. denied 24 M.J. 45 (C.M.A.1987); United States v. Steward, 18 M.J. 506 (A.F.C.M.R.1984); United States v. Teeter, 12 M.J. 716 (A.C.M.R. 1981), modified 16 M.J. 68 (C.M.A.1983) (on grounds not relevant to the issues being addressed in the present case); United States v. LeCappelain, 9 M.J. 562 (A.F.C. M.R.1980), pet. denied 9 M.J. 277 (C.M.A. 1980).
The approved findings of guilty, as modified, and the sentence are correct in law and fact and, on the basis of the entire record, are
AFFIRMED.
UNITED STATES ) ) V. ) ) TSgt Michael L. Timmerman ) FR128-36-3850 ) 380 Bombardment Wing (SAC) ) Plattsburgh Air Force Base, New York)
FINDINGS WORKSHEET
(Strike all inapplicable language)
I. NOT GUILTY
If the accused is found not guilty of all specifications and the charges, announce: TSgt Michael L. Timmerman, this court-martial finds you of all specifications and the charges: Not Guilty.
II. GUILTY
If the accused is found guilty of any specification(s) of the charges, unmodified, use one or some combination of the announcements below reflecting the court's findings as to the specifications and the charges:
[[Image here]]
Of the excepted words, Not Guilty;
Of the substituted words, Guilty;
Of the Specification, Guilty;
And of the Charge under Article 134, Solicitation to Commit Sodomy, Not Guilty, but Guilty of Requesting Commission of an Offense under UCMJ Article 134.
e) Of Specification 3 of Charge III, Guilty, excepting the words, "willfully and wrongfully," substituting therefore, "attempt to willfully and wrongfully";
Of the excepted words, Not Guilty;
Of the substituted words, Guilty;
Of the Specification, Guilty;
And of the Charge under Article 134, Not Guilty, but Guilty of attempted Indecent Exposure under UCMJ Article 80.
NOTE: To modify a specification in a manner not set forth above, use:
[[Image here]]
a) Of the Specification of Charge II, Guilty, excepting the words, "by force and without consent of the said Airman First Class Michael S. Steinman";
Of the excepted words, Not Guilty;
Of the Specification, Guilty;
And of the Charge under Article 125, Guilty.
b) Of the Specification of Charge II, Guilty, excepting the words, "commit sodomy with Airman First Class Michael S. Steinman, by force and without consent of the said Airman First Class Michael S. Steinman"; substituting therefore, "wrongfully commit an indecent act with Airman First Class Michael S. Steinman by taking into his mouth the said Airman First Class Michael S. Steinman's penis";
Of the excepted words, Not Guilty:
Of the substituted words, Guilty;
Of the Specification, Guilty;
And of the Charge under Article 125, Forcible Sodomy, Not guilty, but Guilty of Indecent Acts With Another under UCMJ Article 134.
c) Of Specification 1 of Charge III, Guilty, excepting the words, "wrongfully commit an indecent act with Airman First Class Kevin E. Cook by masturbating in front of the said Airman First Class Kevin E. Cook while the said Airman First Class Kevin E. Cook also masturbated," substituting therefore, "while in his apartment willfully and wrongfully expose, in an indecent manner to public view, his penis";
Of the excepted words, Not Guilty;
Of the substituted words, Guilty;
Of the Specification, Guilty;
And of the Charge under Article 134, Indecent Acts With Another, Not Guilty, but Guilty of Indecent Exposure under UCMJ Article 134.
TSgt Michael L. Timmerman, this court-martial finds you
a) Of the Specification of Charge Is Guilty and of the Charge
b) Of the Specification of Charge II: Guilty except the words "by force and without consent" substituting the words "without consent"
Charge Guilty
and
c) Of Charge III: Guilty
. He instructed that the maximum sentence was a dishonorable discharge, confinement for 15 years and 6 months, total forfeitures, a fine, and reduction to the lowest enlisted grade. With respect to confinement the breakout as to the maximum authorized per offense is as follows: larceny — 5 years, consenual sodomy — 5 years, indecent act with another — 5 years, soliciting another to commit sodomy — 5 years, and indecent exposure — 6 months. This totals 20 years, 6 months. The first two specifications under Charge III (the indecent act and the solicitation offenses) were determined to be multiplicious for sentencing purposes, and the court was so instructed. This left a maximum term of confinement of 15 years, 6 months.
. The court’s findings with respect to the Specification under Charge II (sodomy) are also irregular. See MCM, Part IV, para. 51 (1984). However, we perceive no possible prejudice to the appellant in this regard since, for sentencing purposes, the offense found was considered to be consensual sodomy. We can correct this matter at this level of review.
. That paragraph, in pertinent part, provided: "A finding of not guilty results as to any specification or charge if no other valid finding is reached thereon; ____” The same provision appeared in the 1969 (Rev.) Manual in the same paragraph. This language does not appear in the 1984 Manual, although the drafter’s Analysis thereto states that R.C.M. 921(c)(3) is based thereon. Why, we are not sure. This Rule provides:
(3) Acquittal. If fewer than two-thirds of the members present vote for a finding of guilty— or, when the death penalty is mandatory, if fewer than all the members present vote for a finding of guilty — a finding of not guilty has resulted as to the charge or specification on which the vote was taken.
. In Dilday, the Court of Review noted that with respect to one of the charges the portion of the findings worksheet which related to findings as to a specification thereunder was completely blank. This led the appellate court to conclude that the trial court probably never voted on the specification.