United States v. Barnes

FLETCHER, Chief Judge

(concurring):

As noted by the majority, we undertook review of this case to examine the appellant’s claims that the post-trial review was inadequately prepared to his prejudice. Although I share the conclusion of the majority that the facts of this ease properly support invocation of the waiver doctrine under our decision in United States v. Goode, 23 U.S.C.M.A. 367, 50 C.M.R. 1, 1 M.J. 3 (1975), I feel it necessary additionally to address briefly one of the claimed deficiencies in the review. Appellate defense counsel argue that the failure of the staff judge advocate to advise the convening authority of the elements of the offenses and the relationship of the evidence to those elements precluded the convening authority from making an informed decision as to the propriety of the court’s findings. Counsel rely upon paragraph 85b of the Manual for Courts-Martial, United States, 1969 (Revised edition), and our early decisions of United States v. Clark, 10 U.S.C.M.A. 614, 28 C.M.R. 180 (1959) and United States v. Bennie, 10 U.S.C.M.A. 159, 27 C.M.R. 233 (1959), as support for this proposition.1 I believe that this position has merit and would hold it incumbent upon a staff judge advocate always to include a delineation of the elements of the offenses and the relationship of the evidence presented at trial to those elements in order satisfactorily to provide the convening authority with sufficient guidelines so that he may make an informed decision which I believe was the intent of Congress under Articles 61, 64 and 65(b), Uniform Code of Military Justice, 10 U.S.C. §§ 861, 864, and 865(b), respectively. See United States v. Fields, 9 U.S.C.M.A. 70, 25 C.M.R. 332 (1958). Bald conclusions as to sufficiency of the evidence without reasons and legal guidelines cannot suffice.2

. The Courts of Military Review have already properly noted the need for such information in a post-trial review. See United States v. Baker, 50 C.M.R. 758 (A.F.C.M.R.1975), petition denied, 23 U.S.C.M.A. 670 (1975); United States v. Donoho, 46 C.M.R. 691 (A.C.M.R.1972), petition denied, 22 U.S.C.M.A. 645 (1973).

. This problem is only compounded when, as here, the trial was by judge alone, and even assuming the convening authority chose to examine the record of trial, there would be no instructions present to give him legal guidance.