United States v. Burrell

Opinion of the Court

Appellant’s conviction1 by a general court-martial with members involves the instructional error we denounced in United States v. Cherry, 14 M.J. 251 (C.M. A. 1982); United States v. Brooks, 11 M.J. 420 (C.M.A. 1981), and United States v. Cotten, 10 M.J. 260 (C.M.A. 1981). See United States v. Salley, 9 M.J. 189 (C.M.A. 1980). Unlike the facts found in United States v. Brooks, supra, the record in this case reveals no specific objection made by trial defense counsel to the standard instruction recited by the military judge. However, prior to the judge’s instruction, defense counsel proposed an alternative instruction on reasonable doubt which was expressly rejected by the military judge who incorrectly stated:

The defense request [sic] instruction marked Appellate Exhibit XL, is denied. Instead the standard instruction on reasonable doubt that has been tested, proven to be valid will be given.

Thus, defense submission of this curative alternative instruction was sufficient to preserve this error of constitutional dimension; and, as in United States v. Brooks, supra, we apply the rule retroactively. Furthermore, we are unable to agree with the lower court that the error was non-prejudicial. This case must be distinguished from United States v. Martin, 13 M.J. 66 (C.M.A. 1982). There, it was clear on the record that defense counsel voiced no objection to the impermissible equation of reasonable doubt with substantial doubt but “merely voiced his concern relative to the appropriateness of ‘willing to act’ lan*260guage.” Id. at 67. This is not the central problem resolved by United States v. Cotten, supra, and therefore we declined to credit counsel for a diffused critique. Here the record reveals nothing regarding the out-of-court hearing attended by. judge and counsel. We are, thus, unable to evaluate the nature of defense counsel’s objection to the standard (but incorrect) reasonable doubt instruction. However, focusing on his proposed alternative we conclude it focuses on the constitutionally required standard of “beyond a reasonable doubt,” and its submission, absent evidence to the contrary, constitutes sufficient objection to the improper equation recited by the military judge.

As the remedy here requires setting aside the findings and sentence, we need not address the additional granted issue. We reverse the decision of the United States Army Court of Military Review and set aside the findings and sentence. The record of trial is returned to the Judge Advocate General of the Army. A rehearing may be ordered.