United States v. Price

SULLIVAN, Judge

(dissenting):

I agree with the appellate court below. 43 MJ 823, 826.

An arraignment occurred here, albeit an incomplete arraignment within the meaning of RCM 904, Manual for Courts-Martial, United States (1994 ed.), which states:

Rule 904. Arraignment
Arraignment shall be conducted in a court-martial session and shall consist of reading the charges and specifications to the accused and calling on the accused to plead. The accused may waive the reading.
Discussion
Arraignment is complete when the accused is called upon to plead; the entry of pleas is not part of the arraignment.
When authorized by regulations of the Secretary concerned, the arraignment should be conducted at an Article 39(a) session when a military judge has been detailed. The accused may not be arraigned at a conference under RCM 802.
Once the accused has been arraigned, no additional charges against that accused may be referred to that court-martial for trial with the previously referred charges. See RCM 601(e)(2).
The defense should be asked whether it has any motions to make before pleas are entered. Some motions ordinarily must be *184made before a plea is entered. See ROM 905(b).

(Emphasis addéd.)

In the instant ease, we had a reading of the charges, and appellant left before being called upon to plead. Thus, the arraignment had started but was not completed. I would hold that an incomplete arraignment is not sufficient to warrant a reversal of a conviction in absentia. RCM 804(b)(1) was substantially complied with in this ease since the arraignment had started, and appellant’s conviction should not be reversed on the basis of a regulatory technicality. See United States v. Jette, 25 MJ 16 (CMA 1987). It is black letter law that defective arraignments do not warrant reversal of a conviction. See Wright, Federal Practice and Procedure § 161 at 548.