

   
   
   
   U.S. v. Townes



UNITED STATES, Appellant
v.
Kevin TOWNES, Staff Sergeant
U.S. Marine Corps, Appellee
 
No. 99-5004
Crim. App. No. 95-0849
 
United States Court of Appeals for
the Armed Forces
Argued December 9, 1999
Decided March 8, 2000
CRAWFORD, C.J., delivered the opinion
of the Court, in which GIERKE and EFFRON, JJ., and COX, S.J., joined. SULLIVAN,
J., filed an opinion concurring in the result.

Counsel
For Appellant: Lieutenant Margaret
E. Jolly, JAGC, USNR (argued); Colonel Kevin M. Sandkuhler,
USMC, and Commander
Eugene E. Irvin, JAGC, USN
(on brief).
For Appellee: Lieutenant Commander
R.C. Klant, JAGC, USN (argued).
Military Judges: Russ W.G. Grove (trial)
and A.W. Keller
(post-trial).
 
 



THIS OPINION IS
SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.



Chief Judge CRAWFORD delivered the
opinion of the Court.
Pursuant to his pleas, appellee was
convicted of unauthorized absence, rape, forcible sodomy, and various charges
relating to the molestation of a child, in violation of Articles 86, 120,
125, and 134, Uniform Code of Military Justice, 10 USC §§ 886,
920, 925, and 934, respectively. Contrary to his pleas, a panel of officer
and enlisted members convicted appellee of non-capital premeditated murder
and assault and battery, in violation of Articles 118 and 128, UCMJ, 10
USC §§ 918 and 928, respectively. The convening authority approved
the sentence of a dishonorable discharge, confinement for life, total forfeitures,
and reduction to the lowest enlisted grade. The Court of Criminal Appeals
set aside the contested charges and specifications and authorized a rehearing.
50 MJ 762, 766 (1999).
The Judge Advocate General certified
the following issue to this Court:

WHETHER THE NAVY-MARINE CORPS COURT
OF CRIMINAL
APPEALS ERRED BY HOLDING THAT STAFF
SERGEANT
TOWNES' FAILURE TO PERSONALLY SELECT
ENLISTED MEMBERS WAS JURISDICTIONAL ERROR RATHER THAN
PROCEDURAL ERROR THAT SHOULD BE TESTED
FOR
SUBSTANTIAL COMPLIANCE.

We hold that the judge erred in not obtaining
on the record appellees personal request for a trial by enlisted members.
However, under the circumstances of this case, there was substantial compliance
with Article 25, UCMJ, 10 USC § 825, and the error by the judge did
not materially prejudice the substantial rights of appellee. Art. 59(a),
UCMJ,10 USC § 859(a). Thus, we answer the certified question in the
affirmative.

FACTS
At a session under Article 39(a), UCMJ,
10 USC § 839(a), on February 10, 1993, appellee was advised of his
rights concerning trial by a court-martial composed of officer and enlisted
members and a trial by judge alone, and appellee stated that he understood
his options. On March 24, 1993, the judge and the trial defense counsel
discussed a written request for a trial by enlisted members. This request
was not signed by appellee. A few days later in appellees presence, trial
defense counsel informed the judge that "at this time we make a formal
election for officer and enlisted members." On May 11, 1993, with members
present, a lengthy voir dire occurred in the presence of
appellee. The original panel consisted of 5 enlisted members and 6 officers.
After excusal of two enlisted and one officer member, the eight members
heard a 10-day contested case. Appellee was present and participated by
testifying before the members an entire day. Appellee was also present
during the instructions to the members and during the sentencing proceedings.
During the post-trial hearing on this
issue which was ordered by the court below 4 years after the court-martial,
neither appellee nor his counsel objected to the composition of the court-martial.
When specifically asked whether he had elected officer and enlisted members,
appellee stated he did not know and did not remember.
The Court of Criminal Appeals reversed
because there was neither a personal oral request nor a written request
by appellee. 50 MJ at 764. The court noted that the approach taken in United
States v. Turner, 47 MJ 348 (1997), and United States v. Mayfield,
45 MJ 176 (1996), was "appealing." The Court, however, believed it was
bound by prior precedent, i.e., United States v. Brandt,
20 MJ 74, 77 (CMA 1985)(Congress intended the election of enlisted members
be made by the accused in writing and signed personally by the accused).
As a basis for its decision, the Court cited United States v. Kelly,
45 MJ 259 (1996). 50 MJ at 765.

DISCUSSION
There are two questions presented:
first, was there error; and second, was it jurisdictional? We answer the
first question in the affirmative and the second question in the negative.
Article 25(c)(1) now authorizes enlisted
panel members if "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." (Emphasis added.)
Shortly after the holding in Brandt,
Congress struck the prior language "has requested in writing" in favor
of the underlined language. Pub. L. No. 99-661, § 803(a), 100 Stat.
3906 (1986). In passing this provision, the House Report noted that it
"is similar to the provision in the Military Justice Act of 1983 authorizing
oral requests to be tried by a military judge sitting without a jury."
H.R. Rep. 718, 99th Cong., 2d Sess. 225 (1986). This
House Report refers to the parallel between Article 16(1)(B) and Article
25(c)(1). Both Article 16 and Article 25 require personal election by the
accused as to the forum.
In remarking on the provision for enlisted
members, the committee noted that an accused "personally makes that choice
and does the signing personally and doesn't delegate it to anyone [e]lse
-- counsel or otherwise." Hearings on H.R. 2498 Before a Subcomm. of the
House Armed Services Comm., 81stCong., 1st Sess.
1147 (1949). This Court has strictly enforced this provision. United
States v. Brandt, supra; United States v. Landrum, 3
MJ 160 (1977); United States v. White, 21 USCMA 583, 45 CMR 357
(1972).
We believe that failure to comply with
Article 25 in this case, however, was not jurisdictional because there
is sufficient indication by appellee orally and on the record that he personally
requested enlisted members. Appellee had been advised of his rights concerning
the forum. After delaying this election for a few days, defense counsel
in appellees presence noted appellees desire to be tried by an officer
and enlisted panel. Two months later an officer and enlisted panel was
impaneled subject to lengthy voir dire. After the members
were sworn, the trial continued for 10 days, consisting of 35 sessions.
Appellee testified for an entire day before the court members.
There is no allegation of coercion
or that appellee was incompetent to make a knowing and intelligent decision.
As we said in Turner, supra at 350, "[t]he record of trial
as a whole makes clear that the selection was the accuseds choice, and
that the error . . . did not materially prejudice the substantial rights
of the accused." This does not, however, relieve judges of their obligation
to obtain a personal election by the accused on the record.
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is set aside. The record of trial is returned
to the Judge Advocate General of the Navy for submission to that court
for further review.


SULLIVAN, Judge (concurring in the
result):
Common sense in trial practice must
prevail again. United States v. Turner, 47 MJ 348, 351 (1997) (Sullivan,
J., concurring in the result). In this case, appellee stood next to his
counsel as his attorney asked for the jury to be composed of one-third
enlisted members. This request on the record followed other on the record
discussions about this matter and an "on the record" affirmation by appellee
of his knowledge of his right to an enlisted section of the jury. I would
hold as I did in United States v. Turner, supra ("substantial
compliance" with Article 16  the right to trial by judge alone) that there
was substantial compliance with Article 25 in the present case. Appellee
was present and knowledgeable when his attorney asked for enlisted members.
Appellee got enlisted members for his trial. I find his technical attack
on the jury's verdict must fail. Fairness and common sense, not technicalities,
should rule the law. United States v. Turner, supra; see
United States v. Mayfield, 45 MJ 176, 177-78 (1996); United States
v. Yates, 28 MJ 60 (CMA 1989); United States v. Jette, 25 MJ
16 (CMA 1987).

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