(dissenting):
I agree with Judge Sullivan and write to add these observations.
Because the magic words “How do you plead?” are lacking, the Court grants appellant a windfall by reversing his conviction. In numerous cases, we have rejected application of mere form over substance.* We should also do so here.
Appellant was charged with conspiring with two other servicemembers to rob a taxicab driver, robbery of the cab driver, and aggravated assault by intentionally inflicting grievous bodily harm with a heavy metal bar, in violation of Articles 81, 122, and 128, Uniform Code of Military Justice, 10 USC §§ 881, 922, and 928, respectively.
At an Article 89(a), UCMJ, 10 USC § 839(a), session on August 10, 1994, appellant was represented by the senior military counsel for the 3d Infantry Division, Sehweinfurt, Germany. At that session, the judge advised appellant of his right to both military and civilian counsel, and his right to choose a trial either by judge alone or by officer and enlisted members. Appellant requested an enlisted panel. After that request, the judge noted: “The accused will now be arraigned.” Appellant waived the reading of the charges. The judge noted that he would normally call for a plea, but he had been served with notice of several motions, including defense motions for dismissal for violating the right to a speedy trial, suppression of in-court identification, and dismissal of a Charge. The military judge had to continue the Article 39(a) session to a later date because the senior defense counsel was leaving for Italy that evening to try a case. The senior defense counsel noted that Mr. Court, a civilian counsel in Germany, would defend appellant.
Another Article 39(a) session was scheduled for August 22, 1994. However, the defense requested that the motions be heard on August 15, 1994. Because of numerous scheduling conflicts, the judge could not schedule the Article 39(a) on that date. The judge also noted that, because of unit deployment, the 3d Infantry Division had a significant problem with panel members being available after August 17.
The next Article 39(a) session was held on August 23, 1994. At that session, appellant was again represented by the Division’s senior defense counsel and not civilian defense counsel. After ruling adversely to appellant on two of the motions, the judge notified the parties and appellant that the trial would be set for August 30,1994.
At trial, on August 30, 1994, appellant was absent. The judge, after a hearing, found appellant’s absence was voluntary and entered pleas of not guilty. During the voir dire, at least one panel member indicated that, if the trial went beyond one day, he would be deploying to Russia.
*185RCM 904, Manual for Courts-Martial, United States (1995 ed.), provides: “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.” The Discussion to RCM 904 states: “Arraignment is complete when the accused is called upon to plead; the entry of pleas is not part of the arraignment.” Technically then, arraignment would have been completed in this case had the judge merely asked, “How do you plead?”
Arraignment is the triggering device in the military for permitting a trial in absentia. It is a clear demarcation as to when trial has commenced. However, a defective arraignment under these circumstances should not result in the conclusion by the majority to reverse appellant’s conviction.
What the Supreme Court said in Taylor v. United States, 414 U.S. 17, 20, 94 S.Ct. 194, 196, 38 L.Ed.2d 174 (1973) (citation omitted), is applicable here:
It is wholly incredible to suggest that petitioner, who was at liberty on bail, had attended the opening session of his trial [similarly, appellant attended two Article 39(a) sessions], and had a duty to be present at trial, entertained any doubts about his right to be present at every stage of his trial. It seems equally incredible to us ... “that a defendant who flees from a courtroom in the midst of a trial — where a judge, jury, witnesses and lawyers are present and ready to continue — would not know that as a consequence the trial could continue in his absence.”
RCM 804(b) provides:
The further progress of the trial to and including the return of the findings and, if necessary, determination of a sentence shall not be prevented and the accused shall be considered to have waived the right to be present whenever an accused, initially present:
(1) Is voluntarily absent after arraignment (whether or not informed by the military judge of the obligation to remain during the trial); or
(2) After being warned by the military judge that disruptive conduct will cause the accused to be removed from the courtroom, persists in conduct which is such as to justify exclusion from the courtroom.
This provision, similar to Fed.R.Crim.P. 43(b), provides that a trial may proceed if the accused has absented himself voluntarily after arraignment.
In Crosby v. United States, 506 U.S. 255, 113 S.Ct. 748, 122 L.Ed.2d 25 (1993), the Supreme Court held that a trial in absentia may not be held when the defendant is not present at the beginning of the trial. However, the Court indicated that Fed.R.Crim.P. 43
treats midtrial flight as a knowing and voluntary waiver of the right to be present. Whether or not the right constitutionally may be waived in other circumstances— and we express no opinion here on that subject' — the defendant’s initial presence serves to assure that any waiver is indeed knowing____ Moreover, a rule that allows an ongoing trial to continue when a defendant disappears deprives the defendant of the option of gambling on an acquittal knowing that he can terminate the trial if it seems that the verdict will go against him — an option that might otherwise appear preferable to the costly, perhaps unnecessary, path of becoming a fugitive from the outset.
506 U.S. at 261-62, 113 S.Ct. at 752-53 (emphasis added; citations omitted).
After his initial presence at two separate Article 39(a) sessions where he was advised of numerous rights, elected an enlisted panel, waived the reading of the charges, litigated several pretrial motions, and was advised of the trial date, appellant fled. In essence, after a number of motions were decided against appellant, he voluntarily absented himself from trial. By his conduct, it is patently obvious that appellant knowingly and voluntarily waived his right to be present at trial. The majority says there is no waiver because nothing indicates appellant had any warning that trial would take place if he did not show up. 48 MJ at 183. But RCM *186804(b)(1) says that all the notice appellant would be entitled to is being asked how he pled. Clearly one has nothing to do with the other. What is readily apparent is that appellant knew trial would take place on August 30. To paraphrase the Supreme Court in Taylor, it would be “incredible” to suggest that appellant believed he could bring the trial process to a complete halt by simply staying away. Nobody suggested that to him, and he certainly knew he was required, not just invited, to be present. Further, defense counsel did not object to the trial in absentia, either at trial or in the post-trial submissions.
This is not jurisdictional error and no claim of plain error would be viable. I am satisfied that the court below correctly found that this was waiver. 43 MJ 823, 827. In any event, it is harmless error. Art. 59(a), UCMJ, 10 USC § 859(a).
Because the majority would reward appellant’s deliberate, knowing misconduct under these circumstances by elevating form over substance, I respectfully dissent.
United States v. Hayward, 47 MJ 381 (1998)(post-arraignment referral of second charge did not materially prejudice substantial rights of accused); United States v. Sargent, 47 MJ 367 (1997)(unexplained absence of detailed member was not jurisdictional error); United States v. Turner, 47 MJ 348 (1997)(nonjurisdictional error not to have written or oral request for general court-martial on the record but error did not materially prejudice accused); United States v. Schneider, 38 MJ 387 (CMA 1993)(having panel member junior to accused was nonjurisdictional and did not prejudice accused); United States v. Gebhart, 34 MJ 189 (CMA 1992)(court-martial order both detailing and relieving court member not reversible error).