United States v. Jackson

COOK, Judge

(concurring in part and dissenting in part):

As the trial judge failed to instruct the court members on the elements of the marihuana offense, I agree that the findings of guilty as to that charge must be set aside.1 However, I disagree with the majority as to the effect of the question asked by the president of the court-martial and the comment by the judge on it.

Civilian courts are divided as to whether, after a case has been submitted to the jury for verdict, the trial judge may reopen the proceedings to allow introduction of additional evidence. The federal civilian courts have rejected the idea that there is an “iron-bound, copper-fastened, double-riveted rule” against the practice, and have followed the rule that the matter rests within *118the sound discretion of the trial judge. Henry v. United States, 204 F.2d 817, 820 (6th Cir. 1953); see also cases cited in Anno: Submission of Case to Jury-Reopening, 87 A.L.R.2d 849, 851 (1963). This Court has not considered a case in which the trial judge has allowed reopening after the cause was submitted to the court members for verdict, but the breadth of the language of the unanimous opinion in United States v. Smith, 15 U.S.C.M.A. 416, 417, 35 C.M.R. 388, 389 (1965), which upheld a ruling allowing the Government to reopen its case after both sides had rested, clearly inclines to adoption of the federal civilian practice. 6 Wigmore, Evidence § 1880 (Chadbourn rev. 1976). Here, defense counsel did not object either to the court members’ request for additional evidence or to trial counsel’s declaration that he could recall Airman Guzman. I am satisfied, therefore, that the reopening of the case for additional testimony did not constitute reversible error.

Remaining for consideration is the judge’s remark that the accused could not be called to testify on the matter raised by the court members. I note first that the members did not ask that the accused testify; they asked only for information as to his whereabouts during a specified time. During the voir dire of the members, defense counsel had elicited an affirmative response from each member that he understood and agreed with the “rule of law that the Government has the entire burden [of proof],” and that he understood the accused did not have to “put on any evidence or testify at all.” The trial judge also instructed the court members on the subject. In my opinion, the judge’s challenged remark did not suggest in any way that the inability to call the accused to testify allowed an adverse inference against him. I agree with government counsel that the remark was intended as a reminder that the accused could remain silent; that it was so understood by defense counsel; and so understood by the court members. I, therefore, perceive no error in what occurred, and I would affirm the decision of the Court of Military Review as to the findings of guilty of larceny and housebreaking.

Inasmuch as the charges were tried by a special court-martial, I am convinced beyond a reasonable doubt that the practice of returning the case to the Court of Military Review to determine whether to continue the proceedings on the marihuana charge or to dismiss it and reassess the sentence on the basis of the findings of guilty of larceny and housebreaking would result in no significant advantage to the accused. I would, therefore, order dismissal of the marihuana charge but otherwise affirm the decision of the Court of Military Review.

. In light of the disposition I would make, the two other issues relating to the marihuana charge need not be considered.