v.
Jonathan L. ALEXANDER, Specialist
No. 04-0677
Crim. App. No. 20000627
Argued
Decided
BAKER, J., delivered
the opinion of the Court, in which CRAWFORD and ERDMANN, JJ.,
joined. EFFRON, J., filed a dissenting
opinion, in which GIERKE, C.J.,
joined.
GIERKE, C.J., also filed a separate dissenting opinion.
Counsel
For
Appellant: Captain Danyele M. Jordan
(argued); Lieutenant Colonel Mark Tellitocci
and Major
Allyson G. Lambert (on brief).
For
Appellee: Captain Edward E. Wiggers
(argued); Colonel
Steven T. Salata, Lieutenant Colonel Mark L. Johnson, and Major Natalie A. Kolb
(on brief).
Military
Judge: Kenneth H. Clevenger
THIS
OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
Judge
BAKER delivered the decision of the Court.
A
court-martial panel composed of officer and enlisted members convicted
Appellant, contrary to his pleas, of one specification of rape and one
specification of carnal knowledge as an aider and abettor in violation
of
Article 120, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920
(2000). He was sentenced to a
dishonorable discharge, five years of confinement, forfeiture of all
pay and
allowances, and reduction to grade E-1. The convening authority
approved the
sentence as adjudged, except for the forfeitures, and the United States
Army
Court of Criminal Appeals affirmed.
We granted
review of the following issue:
WHETHER THE
RECORD OF TRIAL
FAILS TO SHOW THAT APPELLANT MADE A PERSONAL ELECTION OF FORUM, THUS
CREATING A
JURISDICTIONAL ERROR REQUIRING REVERSAL.
For the reasons
articulated
below, we affirm.
Background
During Appellant’s arraignment, the
military judge advised Appellant of his forum rights, and Appellant
indicated
that he understood these rights.
Appellant was asked specifically if he understood the difference
between
a trial before a military judge and a trial before members, and he
indicated
that he did. The military judge informed
Appellant that he had the right to be tried by “a court composed of
commissioned and/or warrant officers,” but that upon request, he could
alternatively be “tried by a court composed of at least one-third
enlisted
soldiers.”
The military judge also asked the Appellant
to confirm his desire to defer forum election until a later date and
Appellant,
via his civilian defense counsel, reiterated his desire to defer forum
election. The military
judge then granted this
deferral, and informed the Appellant that he would set a due date for
final
choice of forum at some time in the future.
The record of trial is silent as to whether the military judge
ever set
a due date.1 At a subsequent session pursuant to Article
39(a), UCMJ, 10 U.S.C. § 839(a) (2000), the military judge stated in
the
presence of Appellant and his counsel, “On Monday, I intend to impanel
-- I
believe I was told -- an enlisted panel in this case, and we’re going
to go
forward with trial.” The military judge
and the parties discussed various housekeeping matters relating to the
court-martial proceedings. They also
discussed the instructions that would be read to the panel as well as
which
members were going to be empaneled.
At the next Article 39(a) session, the
military judge and counsel discussed the charges and specifications,
and then
shifted to matters involving the panel members.
The military judge and both parties discussed instructions, the
convening
order, the expected number of members, and the voir dire of the members. The members were eventually called in and
seated, and voir dire was conducted.
Later that same day, the court-martial proceeded with the
empaneled
members. The record of trial does not
reflect that a forum choice was ever expressly made on the record or in
writing
by Appellant or his counsel. Nor does
the record reflect objection to the forum at which Appellant was
ultimately
tried. Appellant did not raise this
issue before the court below.
Discussion
Article 25(c)(1),
UCMJ, provides:
Any
enlisted member of an armed force on active duty who is not a member of
the
same unit as the accused is eligible to serve on general and special
courts-martial for the trial of any enlisted member of an armed force
who may
lawfully be brought before such courts for trial, but he shall serve as
a
member of a court only if, before the conclusion of a session called by
the
military judge under section 839(a) of this title (article 39(a)) prior
to
trial or, in the absence of such a session, before the court is
assembled for
the trial of the accused, the accused personally has requested orally
on the
record or in writing that enlisted members serve on it.
10
U.S.C. § 825(c)(1) (2000).
Rule
for Courts-Martial (R.C.M.) 903(b)(2) sets
forth the
requirements for the election of enlisted members:
A
request for the membership of the court-martial to include enlisted
persons
shall be in writing and signed by the accused or shall be made orally
on the
record.
Thus, in plain
language both the UCMJ and the R.C.M. require that an accused
personally elect
to be tried by a panel including enlisted members, either orally on the
trial
record or in writing.
The parties agree
that the record of trial does not contain an explicit oral or written
election
by Appellant to be tried by a panel of officer and enlisted members. The parties also agree that the failure to
record Appellant’s forum selection as prescribed constitutes error. We agree.
However, the parties differ as to whether this error is
jurisdictional
or procedural in effect.
Appellant argues
that because a failure to adhere to the forum selection requirements of
Article
25(c)(1), amounts to jurisdictional error,
his
court-martial was without authority to hear his case and thus was a
nullity. Consequently, Appellant argues,
he is entitled to immediate relief.
Alternatively, if this Court determines that the error was
procedural in
nature, Appellant argues his substantial rights were materially
prejudiced
because he was deprived of his statutory right to select a forum on the
record. The Government responds that the
omission was procedural in nature.
Considered in context, the Government argues, the record
reflects that
Appellant elected to be tried by a panel with enlisted members. Thus, Appellant must demonstrate prejudice
under Article 59(a), UCMJ, 10 U.S.C. §
859(a) (2000),
to warrant relief, which he has not done, the Government asserts.
We review jurisdictional questions
de
novo.
In United States v. Townes, 52 M.J. 275
(C.A.A.F. 2000), the Court determined that when the record indicates
that an
accused personally requested enlisted members, the failure to record
the
members selection as prescribed by Article 25 amounted to procedural
error,
subject to prejudice review.
In Townes and Morgan we
determined, based on the facts of those particular cases, that failure
to
comply with the provisions of Article 25(c) was nonjurisdictional, and
we
tested for prejudice under Article 59(a).
However, our conclusions rested in part on a determination that
there
had been “substantial compliance” with the requirements of Article
25(c). In Townes,
for example, the appellant was present when his counsel selected the
forum on
his behalf. 52 M.J. at
277. And, in Morgan, the
record included a facsimile from trial defense counsel informing the
military
judge that “[t]he defense will request trial before a court-martial
panel
consisting of at least one-third enlisted members.”
57 M.J. at 120. A
subsequent hearing pursuant to United
States v. DuBay, 17 C.M.A. 147, 37 C.M.A. 411 (1967), also
established that
the facsimile reflected that the accused was advised and “chose to go
with the
enlisted panel.” Morgan
at 121.
In this case, there is no argument that
Appellant selected trial by one-third enlisted members on the record,
either in
writing or orally. He did not. Thus, this case goes beyond the facts in Townes
or Morgan. However, our analytic
framework is the same. We review the
record for evidence as to whether the accused chose the forum by which
he was
tried.
The military
judge advised Appellant, in the
presence of his counsel, of his rights concerning forum election. The record reflects a clear and thorough
explanation. Appellant responded on the
record that he understood his election rights.
Appellant also indicated, through his counsel, that he wished to
defer
election until a later time, and asked the military judge to permit him
to do
so. The record does not indicate that a
date was set for doing so. However, at a
subsequent Article 39(a) session the military judge stated: “On
Monday, I intend to impanel -- I believe I was told -- an enlisted
panel in
this case, and we’re going to go forward with trial.”
When the military judge made this statement,
both Appellant and his counsel remained silent.
Defense counsel did not object.
Appellant’s trial proceeded.
Appellant and his counsel participated in the voir dire of
members,
including enlisted members. And, of
course, Appellant and his counsel participated in Appellant’s contested
court-martial with one-third enlisted members empaneled.
Defense counsel did not seek to revisit the
deferred matter of forum selection.
In this case,
the record reflects that Appellant
chose trial by members with one-third enlisted members. The
root of Appellant’s claim is in the
failure of the military judge to record that election as prescribed in
Article
25. Appellant does not argue that he
was
not personally subject to UCMJ authority at the time of his offense or
at the
time of trial. He does not challenge the
authority of the convening authority to convene a court-martial, or
argue that
his court-martial was improperly convened.
He does not argue that he was not informed of his right of forum
selection,
nor does he assert that he did not exercise his right.
His claim is simply that he did not do so on
the record.
The right being addressed and protected in
Article 25 is the right of an accused servicemember to select the forum
by
which he or she will be tried. The
underlying
right is one of forum selection, not the ministerial nature of its
recording. Of course, there is no better
way to protect the right of selection than through compliance with the
specific
and straightforward recording requirements of Article 25.
Nonetheless, where the record reflects that
the servicemember, in fact, elected the forum by which he was tried,
the error
in recording that selection is procedural and not jurisdictional. Thus, we will not order relief
absent a showing of
prejudice. Mayfield, 45 M.J. at 178.
Appellant’s claim of prejudice is integral
to his claim of error. His essential
argument is the same. He asserts
prejudice on the ground that he was not given the opportunity to
personally
elect his forum, and therefore choose among trial by military judge
alone, a
panel of officer members, and a panel composed of one-third enlisted
members. For the reasons stated above,
the record reflects otherwise. The
military judge presented Appellant with his options.
Appellant acknowledged his options and
deferred election. The military judge
subsequently stated on the record that an election had been made for a
panel
including enlisted members, without comment or correction by counsel or
Appellant. Appellant proceeded through
voir dire and
trial with a panel of one-third enlisted members, without objection. Indeed, Appellant did not raise the question
of selection and prejudice either in his submissions under R.C.M. 1105
or
before the court below. As a result, for
the same reasons that we find the error in this case procedural and not
jurisdictional, we conclude that he did not suffer material prejudice
to a
substantial right.
Decision
The decision of the United States
Army Court
of Criminal Appeals is affirmed.
1 The following exchange
occurred between Appellant and the military judge:
[Military Judge (MJ)]: Now,
Specialist Alexander, you’ve got
a right to be tried by a court consisting of at least five court
members -–
that is, a court composed of commissioned and/or warrant officers. Also, should you request it, you would be
tried by a court composed of at least one-third enlisted soldiers, but
none of
these enlisted soldiers would come from your same company-sized unit;
in your
case, that would be Delta Troop, 6th Squadron of the 6th Cav[alry]. You’re
further advised that no enlisted
soldier on that court-martial panel would be junior in rank than you. Do you understand everything that I have just
explained to you?
[Accused (ACC)]: Yes, sir.
MJ: Now, if you’re tried by a
court with members, then the
members would vote by secret, written ballot, and two-thirds of the
members
would have to agree before you could be found guilty of any of these
offenses. And should you be found guilty
of any of these offenses, then two-thirds of the members would also
have to
vote by secret, written ballot on a sentence; and that sentence, if it
included
a period of confinement in excess of 10 years, would have to be by a three-quarters’ vote, or three-fourths of the
members would
have to agree. Do you understand that?
ACC: Yes, sir.
MJ: Now, you also have a right to
request a trial by
military judge alone and, if approved, there would be no court members,
and the
judge alone would determine whether or not you are guilty.
And, should you be found guilty of any
offense, then the judge alone would determine an appropriate sentence
in your
case. So do you understand the
difference between trial before a court with members and trial before a
court
by military judge alone?
ACC: Yes, sir.
MJ: Very well.
Defense, I was told at [a Rule for Courts-Martial] 802 session earlier that you intended to defer your
election in
that regard. Is that still your desire?
[Civilian Defense Council (CDC)]:
Yes, Your
Honor.
MJ: Very well. I will set a due
date for final choice of
forum to be entered by the defense at some subsequent time, but at this
point I
will grant the requested deferral.
EFFRON, Judge, with whom
GIERKE, Chief
Judge, joins (dissenting):
Under the Uniform Code of Military Justice
(UCMJ), a member of the armed forces does not have the right to trial
by jury,
but instead is subject to trial by a court-martial panel.
Article 25, UCMJ, 10 U.S.C.
§ 825 (2000). Congress has
strictly regulated the composition of courts-martial.
Although enlisted members have the
opportunity to serve on courts-martial panels, the UCMJ expressly
provides
servicemembers with the right to be tried by a panel that does not
include
enlisted membership. Under Article 25(c)(1),
a
court-martial panel may include enlisted members “only if . . . the
accused
personally has requested orally on the record or in writing that
enlisted
members serve on it.” The selection must
be made “before the court is assembled for the trial.”
Where the record of trial is ambiguous as
to whether a timely choice was made personally by the accused on the
record,
our Court has held that any error in the clarity of the request is not
prejudicial when the record otherwise demonstrates “substantial
compliance.”
In the present case, there has been no such
proceeding. The record reflects that the
military judge advised Appellant of his rights regarding the
composition of the
court-martial, the Appellant affirmed that he understood those rights,
the
military judge deferred the election at Appellant’s request, and the
military
judge stated that he would set a date for the election in the future. The record also reflects that the military
judge indicated an intent to empanel a
court-martial
with enlisted membership, and that Appellant’s court-martial included
enlisted
members on the panel. The record does
not indicate that the military judge set a date for the Appellant to
make a
forum selection, nor does the record contain such an election. The record before us establishes, at most,
acquiescence, not “an informed, personal choice of forum” under Morgan. 57 M.J. at 121.
In the context of the substantial
compliance standard, Morgan demonstrates the critical role a
post-trial
proceeding under United States v. DuBay, 17 C.M.A. 147, 37
C.M.R. 411
(1967), plays in developing the facts necessary to determine whether
the
Appellant made an informed personal selection as to the composition of
the
panel. Before replacing the substantial
compliance standard with a mere acquiescence standard, we should follow
the
procedure relied upon in Morgan to determine whether the
composition of
the panel reflected Appellant’s affirmative choice, as mandated by
Congress in
Article 25(c)(1).
I respectfully dissent.
GIERKE,
Chief Judge (dissenting):
I join Judge Effron’s dissent. I
write separately only to note that this
case is distinguishable from Townes1 and Morgan,2
where I joined the majority. In Townes,
the trial defense counsel stated on the record, in front of the
accused, that
the defense requested enlisted membership.3 In Morgan, the detailed defense
counsel submitted a written request for enlisted membership.4 Also in Morgan, the detailed defense
counsel’s testimony at a post-trial evidentiary hearing confirmed that
the
accused personally selected enlisted membership.5 In this case, there was not substantial
compliance, but rather noncompliance with the requirements of Article
25(c)(1), Uniform Code of Military Justice.6 In the absence of an evidentiary hearing to
determine whether Appellant, in fact, chose enlisted membership, this
record
reflects no more than Appellant’s acquiescence to the panel composition. I would remand this case for an evidentiary
hearing, like that held in Morgan, to determine whether
Appellant
actually chose enlisted membership.
Excusing the total abrogation of the requirements of Article 25(c)(1) renders the congressionally prescribed
procedure for
selecting enlisted membership a mere dead letter. I
respectfully dissent.
1
2