“Even prior to the adoption of the Military Rules of Evidence, post-trial affidavits alleging errors in voting proce- dures, to include erroneous reconsideration, were considered incompetent evidence.”
How later courts described this case
- “Even prior to the adoption of the Military Rules of Evidence, post-trial affidavits alleging errors in voting proce- dures, to include erroneous reconsideration, were considered incompetent evidence.”
- denying relief for alleged instructional and procedural errors during the sentencing hearing
Written by the judges who cited it.
The opinion
REED, Senior Judge
(concurring in part):
I concur with the lead opinion insofar as Judge Lawrence concludes (1) that the military-judge’s initial instruction on reconsideration and his answer to the president’s question were not erroneous; and (2) that the affidavits submitted by defense counsel merit only a limited inquiry and that only to determine whether the exceptions, contained in R.C.M. 923 and Mil.R.Evid. 606, for inquiry into the members’ deliberations existed. Like Judge Lawrence, I conclude that none of the exceptions in R.C.M. 923 or Mil. R.Evid. 606(b) is shown. Therefore, I concur with Judge Lawrence that the Court may not consider the affidavits or depositions as a means to impeach the findings or the sentence in this case. See United States v. Motsinger, 34 M.J. 255 (C.M.A.1992). Having reached this conclusion, I believe no further inquiry is necessary.
Although not required in the resolution of the issue before the Court, Judge Lawrence’s remarks in Part VII of his lead opinion are well-reasoned and I endorse them.