Petition for Writ of Certiorari — Tilley v. United States

CS yi , a *) | ‘t) Supreme Court, U.S,

| FILED

NOV, 20 GE

No.

| JOSEPH F. SPANIOL, JR.

LERK

In the Supreme Court of the United States

OCTOBER TERM, 1987

MICHEL L. TILLEY, PETITIONER,

Vv.

UNITED STATES OF AMERICA, RESPONDENT.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

COLONEL LEO L, SERGI

(Counsel of Record)

CAPTAIN HENRY J. SCHWEITER

Defense Services Division

Office of The Judge Advocate

General of the Air Force

Bolling Air Force Base

Washington, D.C. 20332

(202) 767-1562

Altorneys for Petitioner

QUESTION PRESENTED

Whether the Due Process clause of the Fifth Amend-

ment is violated when representatives of the prosecuting

attorney’s office are permitted to nominate and recom-

mend potential jurors to the person responsible for the

convening of a court-martial?

ne ras ne a dod a Win ale ws as 0A l

Ne ak abe kaka eee 4 6 l

Constitutional and Statutory Provisions ......... y

ES "rr 3

Reasons for Granting the Writ ................. 6

IE )

TABLE OF AUTHORITIES

Cases:

Duren v. Missouri, 439 U.S. 357 (1979) ...... 7

Middendorf v. Henry, 425 U.S. 25 (1976) .... 7

Ex parte Milligan, 71 U.S. (4 Wali) 2 (1866) .. 7

Parker v. Levy, 417 U.S. 733 (1974) ......... Y

Ex parte Quirin, 317 U.S. 1 (1942) .......... 7

Taylor v. Louisiana, 419 U.S. 522 (1975) .... 7

United States v. Beard, 15 M.J. 768

SE gk ok nc ncsscus a cawes 7

United States v. Care, 40 C.M.R. 247 (C.M.A.

es a ee dy wa oes 4d Oo 3

United States v. Cherry, 14 M.J. 251 (C.M.A.

|g RS a 7

United States v. Clay, 1 C.M.R. 74 (C.M.A.

te ee a as wale k 6 6s wa ka adn 7,8

United States v. Cook, 18 C.M.R. 715

ET eG as Gs ab a ee ones Oa 8

United States v. Crumb, 10 M.J. 520

Oe 7

United States v. Davenport, 9 M.J. 364

nc ica eens ceetcensvenns 3

United States v. Greene, 43 C.M.R. 72

a 7

United States v. Hardin, 7 M.J. 399 (C.M.A.

eT ale 4 de aw 8

iV

Cases — Continued: | Page

United States v. Mahan, 1 M.J. 303 (C.M.A.

SN oe shag ay a4 ks ek aek eee nad aan tae 6

United States v. Murphy, 224 F.554 (N.D.

ee auc cn aug ber W ee are ces ae oe 8

United States v. Sax, 19 C.M.R. 826

COED ob dbsccddveadenaessenses 7

United States v. Tilley, ACM 24722

(A.F.C.M.R. December 24, 1985), affd,

y-) SR 7 dk Oy re passim

United States v. Walters, 16 C.M.R. 191

ee SE eee a eka eka sna ese hago 7

Constitutions and Statutes:

Ok eg ee roy ere 7

[7 eG se csa sane eaeewa dean 6

0 as ee, sae ea es oo yy

28 U.S.C. § 1259(3) (Supp. II] 1985) ........ 1, 6

28 U.S.C. § 1861-1869 (1982) .............. 8

Military Justice Act of 1983, Pub. L. No.

OO ee cha saduds sacs 6

Uniform Code of Military Justice:

Art. 25, 10 U.S.C. § 825 (1982) ........ a, 3;

Art. 41, 10 U.S.C. § 841 (1982) ........ 5

Art. 45, 10 U.S.C. § 845 (1982) ........ 3

Art. 67(b)(3), 10 U.S.C. § 867(b)(3)

ee NE ok Sra awh ee kane 6

Art. 67(h), 10 U.S.C. § 867(h)(Supp. Ill

os oni a es Ca ee 1, 6

Miscellaneous:

126 Cong. Rec. H10340 (daily ed. October 2,

eis Ma a petals Beart iin poe eR rnc a, 6

Miscellaneous — Continued: Page

H.R. 8188, 96i1h Cong., 2d Sess. (1980) ...... 6

Rule for Courts-Martial 501 ............... 4

Rule for Courts-Martial 502 ............... 4

In the Supreme Court of the Anited States

OCTOBER TERM, 1987

No.

MICHEL L. TILLEY, PETITIONER,

Vv.

UNITED STATES OF AMERICA, RESPONDENT.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

Michel L. Tilley respectfully prays that a writ of cer-

tiorari issue to review the judgment of the United States

Court of Military Appeals entered in his case on

September 21, 1987.

OPINIONS BELOW

The decision of the United States Air Force Court of

Military Review was issued on December 24, 1985. United

States v. Tilley, ACM 24722 (A.F.C.M.R. Deceinber 24,

1985). That decision is unreported, and is reproduced in

the Appendix to this Petition. The decision of the United

States Court of Military Appeals is reported at 25 M.J. 20

(C.M.A. 1987), and is reproduced in the Appendix.

JURISDICTION

The jurisdiction of this Court is invoked under 10

U.S.C. § 867(h)(Supp III 1985) and 28 U.S.C. § 1259(3)

(Supp III 1985). The judgment of the Court of Military

Appeals was entered on September 21, 1987.

(1)

2

CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth Amendment provides:

No person shall be . . . deprived of life, liberty, or

property, without due process of law...

Article 25 of the Uniform Code of Military Justice

(U.C.M.J.), 10 U.S.C. § 825 (1982), provides in pertinent

part:

(a) Any commissioned officer on active duty is eligi-

ble to serve on all courts-martial for the trial of any

person who may lawfully be brought before such

courts for trial.

* * *

(c)(1) Any enlisted member of an armed force on ac-

tive duty who is not a member of the same unit as the

accused is eligible to serve on general and special

courts-martial for the trial of any enlisted member of

an armed force who may lawfully be brought before

such courts for trial, but he shall serve as a member of

a court only if, before the conclusion of a session

called by the military judge under section 839(a) of

this title (article 39(a)) prior to trial or, in the absence

of such a session, before the court is assembled for

the trial of the accused, the accused personally re-

quested in writing that enlisted members serve on it.

After such a request, the accused may not be tried by

a general or special court-martial the membership of

which does not include enlisted members in a number

comprising at least, one-third of the total membership

of the court, unless eligible enlisted members cannot

be obtained on account of physical condition or

military exigencies. If such members cannot be ob-

tained, the court may be assembled and the trial held

without them, but the convening authority shall make

a detailed written statement, to be appended to the

record, stating why they could not be obtained.

* ” *

(d)(2) When convening a court-martial, the conven-

ing authority shall detail as members thereof such

members of the armed forces as, in his opinion, are

best qualified for the duty by reason of age, educa-

tion, training, experience, length of service, and

judicial temperament. No member of an armed force

is eligible to serve as a member of a general or special

court-martial when he is the accuser or a witness for

the prosecution or has acted as investigating officer or

as counsel in the same case.

STATEMENT OF THE CASE

From June 12 through July 17, 1984, petitioner was

tried by a general court-martial at Rhein-Main Air Base,

Germany, on a charge of premeditated murder. At arraign-

ment, he entered a plea of guilty to the lesser-included of-

fense of involuntary manslaughter, leaving only the issue

of intent and premeditation for resolution by the jury. As

a result of expert testimony adduced during the course of

trial, the issue of petitioner’s mental responsibility was

raised to such a degree that the trial judge set aside the

previously entered guilty plea, and a fully litigated trial en-

sued.' The jury, composed of officer and enlisted Air

Force members, found petitioner guilty of unpremeditated

' In military practice, when an accused wishes to plead guilty to a

charge, the trial judge must conduct an inquiry of him to ensure that

the plea is knowingly, voluntarily, and intelligently made. United

States v. Care, 40 C.M.R. 247 (C.M.A. 1969). If during trial an ac-

cused sets up some matter which is inconsistent with the plea of guilty,

then the plea must be rejected. Article 45(a), U.C.M.J., 10 U.S.C.

§ 845(a)(1982); United States v. Davenport, 9 M.J. 364 (C.M.A.

1980).

4

murder and sentenced him to confinement for 18 years, a

dishonorable discharge, and other accessory penalties.

At trial and before making his election regarding choice

of forum,? the defense made a motion seeking to have the

panel of jurors (court members in military parlance)

dismissed and a new panel selected. (R. 7). This motion

had its genesis in an earlier pretrial motion to the same ef-

fect. _

In March 1984, an original list of 25 prospective court

members had been prepared by Captain Secours, an assis-

tant staff judge advocate at the base legal office. This list

had in turn been submitted to the special court-martial

convening authority, the person responsible for making

recommendations as to the disposition of petitioner’s case,

by Captain Sweet, the actual assistant prosecutor of peti-

tioner’s case. (App. Exhibit 1). The general court-martial

convening authority, Major General Goodall,’ ultimately

selected nine jurors from the original list to sit at peti-

tioner’s trial. In its pretrial motion, the defense requested

that all 25 persons whose names appeared on the original

list be disqualified because their names had been im-

properly selected by representatives of the prosecution.

(App. Exhibit [).

The general court-martial convening authority assented

to the request. (R. 15). A new list of 15 names was drawn‘

and forwarded to Major General Goodall, and this list did

2 Generally, military accuseds may elect to be tried by a military

judge sitting alone, by a jury composed solely of officers, or by a jury

composed of officers and at least one third enlisted members. (R. 5-7).

Article 25(c)(1), U.C.M.J., 10 U.S.C. § 25(c)(1}(1982); Rule for

Courts-Martial (R.C.M.) 501, 502.

3 General Goodall was the person responsible for “convening” peti-

tioner’s court-martial.

4 At the time of petitioner’s trial, there were an estimated 300-400

officers assigned at Rhein Main Air Base who could be detailed for

court-martial duty. It was from among these officers that the second

list of 15 proposed jurors was drawn. (R. 22-23).

not include any names from the prior slate. (R. 9-10, 22).

The officer compiling this second list, another member of

the base staff judge advocate’s office, knew personally or

as an acquaintance each of the 15 people nominated.

(R. 25). Later, but before actual selection of the court-

members, it was communicated to General Goodall that

two individuals from the initial list, Colonel Horton and

Colonel McGovern, were still available to serve as

members of the court panel that would be hearing peti-

tioner’s case. (R. 9-11; App. Exhibits I, III). Major

General Goodall selected both Colonel Horton and Col-

onel McGovern to sit as court-members at petitioner’s

trial. (R. 1). The trial judge denied the resulting defense

motion respecting the court member selection process (R.

32). Subsequent defense challenges for cause against both

these jurors were likewise denied. (R. 37). Following these

denials, petitioner elected to be tried by a jury composed

of both officers and enlisted members (R. 40), but Col-

onels Horton and McGovern still sat as court-members.°

On mandatory review before the Air Force Court of

Military Review, that court acknowledged the procedural

anomaly in the selection of court-members but upheld ap-

peilant’s conviction and sentence on the ground that any

improper involvement of the convening authority or his

staff judge advocate’s personnel in the selection of court-

members was adequately cured by the remedial action of

compiling and selecting new jurors from the second venire

list.

The Court of Military Appeals granted discretionary

review on an unrelated instructional issue. 22 M.J. 378

(C.M.A. 1986). That court ultimately affirmed, finding no

> In court-martial practice each party ai trial is allowed but one

peremptory challenge at trial. Article 41(b), U.C.M.J., 10 U.S.C.

§ 841(b) (1982). At trial the defense chose to exercise its peremptory

challenge against another juror. (R. 228).

6

prejudice from the one error it identified. 25 M.J. 20

(C.M.A. 1987).

This Court would lack jurisdiction if the Court of

Military Appeals had denied Tilley’s petition for review in

its entirety. 10 U.S.C. § 867(h)(1)(Supp. III 1985). While

that court declined to grant review on the issue pressed in

the instant Petition,® the legislative history of the Military

Justice Act of 1983 makes it clear that this Court has

jurisdiction over any case in which the Court of Military

Appeals has granted review, even if the grant of review did

not include the particular issue on which certiorari is

sought. Section 1259 gives this Court jurisdiction over

“decisions” of the Court of Military Appeals in, inter alia,

“cases” reviewed under Article 67(b)(3) of the Code. This

is in contrast with an earlier administration proposal that

would have confined the certiorari jurisdiction to “issues”

upon which the lower court had granted review. The

House eschewed the “issues” approach, and passed a bill

employing the broader “cases” phraseology in 1980. 126

Cong.Rec. H10340-42 (daily ed. Oct. 2, 1980) (H.R.

8188). That language was carried over in the measure that

became the Military Justice Act of 1983. Pub. L. No.

98-209, 97 Stat. 1393. Congress’s use of the broader term

in the legislation ultimately enacted indicates its intention

to permit review by writ of certiorari over any issue raised

in the Court of Military Appeals, provided that court

granted review on some issue in the case. Accordingly, the

issue presented in the Petition is properly before the

Court.

REASONS FOR GRANTING THE WRIT

The Constitution requires trial by jury in federal

criminal cases. See, Art. II!, § 2; U.S.Const. Amend. VI.

This requirement has been construed to call for juries

6 Denial of review has no precedential value. United States v.

Mahan, 1 M.J. 303, 307 n.9. (C.M.A. 1976).

7

comprised of a representative cross-section of persons

from within a given community. See, e.g., Duren vy.

Missouri, 439 U.S. 357 (1979); Taylor v. Louisiana, 419

U.S. 522 (1975). However, courts-martial have not been

considered subject to the jury trial demands of the Con-

stitution. Cf., Ex Parte Milligan, 71 U.S. (4 Wall) 2

(1866); Ex Parte Quirin, 317 U.S. 1 (1942). Instead,

qualifications for juror service on courts-martial have

been prescribed by Congress in the exercise of its power

under Article I, § 8, cl. 14 of the Constitution.

_ The essential guarantee of the Fifth Amendment’s due

process clause is that the government may not imprison a

person except in accordance with fair procedures. In con-

trast to jury composition standards, this concept has long

been deemed applicable to courts-martial under the rubric

of military due process. United States v. Clay, 1 C.M.R.

74 (C.M.A. 1951); Cf., Middendorf v. Henry, 425 U.S.

25, 43 (1976). Indeed, the Court of Military Appeals has

recognized, in the context of court-martial composition,

that “an accused has an absolute right to trial before a

properly constituted court with members.” United States

v. Greene, 43 C.M.R. 72, 79 (C.M.A. 1970).

Appellate courts in the military have been sensitive to

perceived as well as actual! improprieties in the jury selec-

tion process. United States v. Walters, 16 C.M.R. 191,

(C.M.A. 1954); United States v. Sax, 19 C.M.R. 826

(A.F.B.R. 1954). This is a case in which the appearance of

impropriety is sO great as to constitute a denial of due

process. ™

Military caselaw establishes that reversible error occurs

where the prosecutor makes recommendations as to which

individuals should comprise the jury panel of a court-

martial. United States v. Beard, 15 M.J. 768 (A.F.C.M.R.

1983); See also, United States v. Cherry, 14 M.J. 251,

252-253 (C.M.A. 1982); United States v. Crumb, 10 M.J.

520, 527-528 (A.C.M.R. 1980). The same has been the

8

case in the federal sector for many years. See, e.g., United

States v. Murphy, 224 F. 554 (N.D. N.Y. 1915); Cf., 28

U.S.C. § 1861-1869 (1982). Even where the person making

the recommendation is not actually the prosecutor, but

merely another attorney from the staff judge advocate’s

office, that person’s role with respect to pretrial matters

has prosecutorial aspects. Cf. United States v. Hardin, 7

M.J. 399, 404 (C.M.A. 1979).

To permit members of, in effect, the local district at-

torney’s office, to nominate jury members, who are then

actually appointed to serve, is unseemly. To do so for the

trial of a case in which an actual prosecutor, as a represen-

tative of that office, has a personal, partisan interest in the

outcome of the trial violates the intent of the Uniform

Code and offends established notions of due process. See,

United States v. Clay, supra; United States v. Cook, 18

C.M.R. 715, 717 (A.F.B.R. 1954). Any good in the initial

decision to strike the original list of 25 members was lost

by the subsequent decision to include the names of the two

senior officers from the original, tainted list of prospective

members. This error was then compounded by the action

of the assistant staff judge advocate who put together the

second venire list by winnowing over 300 officer names

down to a total of 15, all of whom he knew at least casual-

ly. As the court reasoned in United States v. Murphy, |

supra, 224 F. at 564:

. . . [BJehind and underlying all is the general prin-

ciple, universally recognized, that the courts cannot

justly or safely permit or sanction any participation

by unauthorized persons, or by parties litigant, or

their representatives, in the selection of names of per-

sons to go on the jury lists, or in the jury boxes, from

which panels for service are to be drawn, no matter

how high-minded and conscientious the purpose of the

party so participating, and no matter that his motive

is purely to promote fair trials and just verdicts and

9

the due administration of the law. . . . The only safe

rule is to prohibit and condemn it absolutely.

After initial good faith efforts to cure a recognized im-

propriety in the jury selection process, the authorities

needlessly injected an appearance of evil into the pro-

cedure that could and should have been avoided. Not-

withstanding recognized differences between military and

civilian criminal codes and procedures, Parker v. Levy,

417 U.S. 733, 749-51 (1974), there is no place for the use of

partisan government representatives in the sensitive area

of the selection of court-members. This Court should not

put its imprimatur on patently unfair practices such as

these by allowing them to go unremedied.

CONCLUSION

For the foregoing reasons, the petition for a writ of cer-

tiorari should be granted.

COLONEL LEO L. SERGI

(Counsel of Record)

CAPTAIN HENRY J. SCHWEITER

Defense Services Division

Office of The Judge Advocate

General of the Air Force

Bolling Air Force Base

Washington, D.C. 20332

202) 767-1562

Attorneys for Petitioner

NOVEMBER 1987

APPENDICES

BEST AVAILABLE COPY.

APPENDIX A

UNITED STATES COURT OF MILITARY APPEALS

No. 54617.

ACM 24722.

UNITED STATES, APPELLEE

¥.

MICHEL L. TILLEY, STAFF SERGEANT,

U.S. AIR FORCE, APPELLANT

Sept. 21, 1987.

OPINION OF THE COURT

SULLIVAN, Judge:

A general court-martial at Rhein-Main Air Base,

Federal Republic of Germany, found appellant guilty of

unpremeditated murder, in violation of Article 118(2),

Uniform Code of Military Justice, 10 U.S.C. § 918(2). On

July 17, 1984, the officer and enlisted members of this

court-martial sentenced him to a dishonorable discharge,

confinement for 18 years, total forfeitures, and reduction

to the lowest enlisted grade. The convening authority ap-

proved these results, and the Court of Military Review af-

firmed in an unpublished opinion.

This Court granted review of the following issue raised

by the defense;

WHETHER THE MILITARY JUDGE ERRED BY

FAILING TO GIVE THE DEFENSE-REQUESTED

INSTRUCTIONS REGARDING THE COMBINA-

(la)

2a

TION OF MENTAL CONDITION AND VOLUN-

TARY INTOXICATION.

Our review of the record reveals that the substance of the

requested instructions was given by the military judge. Ac-

cordingly, we reject the asserted premise of the granted

issue and affirm.

The record shows that appellant’s girlfriend (TH) was

beaten for over an hour by appellant, and she died on

February 9, 1984. The Government charged appellant with

premeditated murder under Article 118(1). The defense

maintained that appellant was not capable of forming a

specific intent to kill or cause great bodily harm to the vic-

tim as may be required for conviction under Articles

118(1) and 118(2). As noted above, the members found ap-

pellant guilty of unpremeditated murder under Article

118(2).

Appellant, before this Court, notes that evidence was

presented at trial that at the time of the charged offense he

was intoxicated; that he was an alcoholic; and that he had

an adjustment disorder based on stress. On this basis, he

asserts that he was entitled to an instruction that would ad-

vise the members that such conditions, if found to exist,

might justify a finding that he lacked substantial capacity

to form a specific intent to kill or inflict great bodily harm

as required by Article 118(2). See generally United States

v. Thomson, 3 M.J. 271, 273 (C.M.A.1977); para. 216A,

Manual for Courts-Martial, United States 1969 (Revised

edition). Although the particular instruction requested by

the defense was not given,* we find no error in the present

case.

* The four doctors who testified in this case (two for each side) all

stated that these conditions did not interfere with appellant’s capacity

to form an intent to inflict great bodily harm. Although the members

were not required to accept these expert opinions, we have great doubt

3a

The Government argues before this Court that the in-

structions requested by the defense were fairly encom-

passed in the instructions actually given by the judge. We

agree. Cf. Cabana v. Bullock, 474 U.S. 376, 106 S.Ct.

689, 695, 88 L.Ed.2d 704 (1986); Francis v. Franklin, 471

U.S. 307, 315-16, 105 S.Ct. 1965, 1972, 85 L.Ed.2d 344

(1985).

Turning to the record, wé first note the instruction re-

quested by the defense. It stated:

You are advised that the combination of voluntary in-

toxication and a mental condition may cause the ac-

cused to lack substantial capacity to form a pre-

meditated design to kill, a specific intent to kill, or a

specific intent to inflict great bodily harm.

The military judge expressed some doubt whether this in-

struction was authorized as a matter of military law.

Nevertheless, he stated that such an instruction was fairly

implied in his other instructions. He said: Counsel, I think

we've gone over this at some point before, and I have given

this a great deal of thought. I gave it great thought when I

wrote the instructions. And when I say-state “voluntary in-

toxication by itself is not a defense to unpremeditated

murder, and voluntary intoxication standing alone will not

reduce unpremeditated murder to a lesser degree of

unlawful killing,” I don’t know of any other way to say

that. If it is not standing alone, then certainly you're free

to make that argument to the fact-finders. But —so I’m not

going to give the instruction you suggested.

The military judge’s actual instructions could be

reasonably interpreted by the members to convey the im-

whether the guilty findings would change even if they were particular-

ly instructed as requested by the defense. See generally Rose v. C lark,

__ US. ____, 106 S.Ct. 3101, 92 L.ED.2d 460 (1986).

4a

port of the defense request. The instruction referred to

Stated:

This instruction on voluntary intoxication is to be

distinguished from the previous instruction con-

cerning partial mental responsibility. As you recall, I

advised you that if an accused lacked substantial men-

tal capacity to entertain premeditation in the case of

the offense charged, or a specific intent to kill or in-

flict great bodily harm in the case of unpremeditated

murder or voluntary manslaughter, he cannot be con-

victed of those offenses. You are advised, however,

that as to the issue of voluntary intoxication,

although the accused must have had the intent to kill

or inflict great bodily harm in the lesser included of-

Sense of unpremeditated murder, voluntary intoxica-

tion by itself is not a defense to unpremeditated

murder, and voluntary intoxication standing alone

will not reduce_unpremeditated murder to a lesser

degree of unlawful killing.

(Emphasis added.) Moreover, immediately thereafter, the

military judge more clearly communicated the same idea

and eliminated any doubt on this point:

Further, regarding amnesia, you are advised that

amnesia whether it results from the use of alcohol,

from stress, or other emotional or psychological

causes, is not a defense to a crime. However, as with

the issue of intoxication, amnesia, if genuine, is one

of the factors you may consider in determining the ac-

cused’s mental processes at the time of the offense

and his ability to premeditate or form a specific intent

to kill or inflict great bodily harm.

Another question which is raised in this unpre-

meditated-murder case is whether evidence of voluntary

intoxication should ever be considered on the question of

one’s capacity to form the intent to kill or inflict great

A

Sa

bodily harm. See 1 W. LaFave & A. Scott, Substantive

Criminal Law § 4.10(a) (1986); cf. 2 Substantive Criminal

Law § 711(d). The Government, relying on older decisions

of this Court, asserts that voluntary intoxication, as a mat-

ter of law, cannot reduce unpremeditated murder to

manslaughter. See United States v. Ferguson, 17

U.S.C.M.A. 38 C.M.R. 239 (1968); United States v.

Craig, 2 U.S.C.M.A. 650, 10 C.M.R. 148 (1953); United

States v. Roman, 1 U.S.C.M.A. 244, 2 C.M.R. 150

(1952). See also para. 197, Manual, supra. Accordingly, it

concludes that evidence of voluntary intoxication is legally

irrelevant in all cases of unpremeditated murder.

Mil.R.Evid. 402, Manual, supra. The defense, relying on

United States v. Thomson, supra, and United States v.

Vaughn, 23 U.S.C.M.A. 343, 49 C.M.R. 747 (1975) sug-

gests that the older decisions are no longer good law or are

inapplicabie to cases where evidence of voluntary intoxica-

tion does not stand alone. ;

We note that the Vaughn decision clearly holds that the

intent to kill or commit great bodily harm required by Ar-

ticle 118(2) is a specific intent and, accordingly, the

primary rationale of Ferguson, Craig, and Roman has

been eroded. On the other hand, that decision cites

Ferguson without expressly repudiating its holding.

United States v. Vaughn, 23 U.S.C.M.A. at 345, 49

C.M.R. at 749. Moreover, a related rationale expressed in

United States v. Roman, 1 U.S.C.M.A. at 251, 2 C.M.R.

at 157, and United States v. Ferguson, 17 U.S.C.M.A. at

443, 38 C.M.R. at 241, that the intent to drink may suffice

for malice aforethought or other intent necessary for un-

premeditated murder has not yet been rejected. See United

States v. Hernandez, 20 U.S.C.M.A. 219, 223, 43 C.M.R.

59, 63 (1970). The prudent action of the judge in giving his

instructions in the present case makes it unnecessary to

resolve this question today. See Part IV, para. 43c (2)(c)

ba

and (c)(3)(c), Manual for Courts-Martial, United States,

1984.

The decision of the United States Air Force Court of

Military Review is affirmed.

Chief Judge EVERETT and Judge COX concur.

Ta

APPENDIX B

ORDERS GRANTING PETITION FOR REVIEW

No. 54617/AF. U.S. v. Michel L. Tilley. CMR 24722.

Granted on Issue IV raised by appellate defense counsel as

follows:

Whether the military judge erred by failing to give the

defense requested instructions regarding the combina-

tion of mental condition and voluntary intoxication.

8a

APPENDIX C

UNITED STATES AIR FORCE COURT OF

MILITARY REVIEW

ACM 24722

UNITED STATES

Vv.

STAFF SERGEANT MICHEL L. TILLEY, FR 460-80-0502

UNITED STATES AIR FORCE

24 DECEMBER 1985

Sentence adjudged 17 July 1984 by GCM convened at

Rhein-Main Air Base, Germany. Military Judge: James Z.

Howey.

Approved sentence: Dishonorable discharge, confinement

for eighteen (18) years, forfeiture of all pay and

allowances, and reduction to airman basic.

Before

SESSOMS, CANELLOS and CARPARELLI

Appellate Military Judges

9a

DECISION

PER CURIAM:

The accused, a 33 year old Staff Sergeant, was tried by

general court-martial for the murder of Telma Haering, a

native of Mozambique. The convening authority chose to

refer the one charge of premeditated murder as non-

capital.

At arraignment, the accused entered a plea of guilty to

the lesser-included offense of involuntary manslaughter,

leaving Only the issues of intent and premeditation for the

court members to decide. During the course of the trial,

defense counsel adduced expert testimony which, in the

opinion of the military judge, so raised the issue of mental

responsibillity that he set aside the guilty plea. The trial

judge properly informed the members of the full impact of

the action he had taken and thereafter instructed on all of

the elements of the offense charged and all lesser included

offenses raised by the evidence. The court, composed of

officers and enlisted members, found the accused guilty of

unpremeditated murder and sentenced him to 18 years

confinement and other accessory penalties. Appellate

defense counsel have assigned seven errors, only one of

which we believe to be sufficiently meritorious to warrant

comment.

Prior to making his election regarding the forum in

which he wished to be tried, the accused made a motion

for appropriate relief in which he sought to have the panel

of court members dismissed and a new panel selected. In

order to properly understand the defense contention, some

recitation of the facts is necessary.

It appears that the officer appointed to be assistant trial

counsel in this case had, in her capacity as chief of military

justice, sent to the special court-martial convening

authority, a list of 25 names of potential court members.

This list was subsequently forwarded to the general court-

10a

martial convening authority and it was from this list that

the original nine panel members were selected. Defense

filed a pretrial motion requesting that all 25 persons whose

names appeared on this original list be disqualifed because

their names had been selected by the assistant trial

counsel. Although the assistant trial counsel’s total in-

volvement in the member selection process was limited to

the ministerial act of signing her name to the letter for-

warding the list to the special court-martial convening

authority, the general court-martial convening authority

decided to eliminate any possible taint by obtaining new

nominations for court members and by selecting a new

panel to hear the case.

A new list of names was forwarded from the special

court-martial convening authority to the general court-

martial convening authority by letter of 30 May 1984. By

separate letter of the same date an assistant staff judge ad-

vocate from the base advised the general court-martial

staff judge advocate that there were three persons from

the original list who were still available to serve. The

record contains no further explanation of how or why the

three officers remained available. It does, however, reflect

that they had not been chosen to be members of the

Original panel. According to a memorandum from the

17th Air Force Staff Judge Advocate to the general court-

martial convening authority, the name of one of the of-

ficers referred to in that letter, Colonel Larry E.

McGovern, had been obtained earlier from a source other

than the letter or the original list of proposed members. In

addition, the general court-martial convening authority,

added the name of Colonel Charles E. Horton Jr. to the

list from which the second panel was to be chosen. The

second panel of court members selected by the general

.court-martial convening authority included the names of

Colonels Harton and McGovern. Both had been on the

lla

original list of nominees but neither were selected for the

original panel of court members.

In another motion for appropriate relief the accused

sought a new panel and a new court selection because Col-

onels Horton and McGovern were members of the second

panel, the defense contention being that every person

whose name appeared on the original list was disqualified

from further participation because of the action of the

assistant trial counsel in forwarding the origina! list. When

this motion was denied by the trial judge the accused chose

trial by a court composed of at least one-third enlisted

members. Colonels McGovern and Horton were included

in the new composition of the court. The trial judge denied

challenges for cause against each of them.!

Defense contends that because of their involvement in

the decision to provide a new panel of court members, the

convening authority and his staff judge advocate are

precluded from reviewing and taking action on the case

because they would be reviewing their own decisions. In

support of this contention they cite United States v. Engle,

1 M.J. 387 (C.M.A. 1976; United States v. Hollingsworth,

9 M.J. 839 (A.F.C.M.R. 1980); United States v. Bowie, 9

M.J. 680 (A.F.C.M.R. 1980); United States v. Mounsey,

10 M.J. 851 (N.C.M.R. 1981); and United States v. Hill, 7

M.J. 533 (A.C.M.R. 1979). They also refer to United

States v. Collins, 6 M.J. 265 (C.M.A. 1979).

The essence of those cases was the appellate court’s find-

ing that the staff judge advocate was so actively and exten-

sively involved in the trial or in preparation for the trial

that he could not reasonably be called upon or-expected to

render an impartial post-trial review of his own earlier

! We note that defense counsel did very little probing of Colonels

Horton and McGovern on voir dire examination to test these officers

for the existence of bias, prejudice, or predisposition.

12a

actions. In Engle the staff judge advocate had prepared

the pretrial advice for the convening authority. Defense

counsel moved for a new advice in that case on the ground

that the advice submitted to the convening authority for

his disposition decision contained “a material misstate-

ment of the evidence and omitted mention of other mat-

ters that could have affected the judgment of the conven-

ing authority.” The court in Engle held that the staff judge

advocate should have recused himself from participating

in the post trial review, not merely because he had

prepared the pretrial advice, but because this particular

staff judge advocate “necessarily had to deal, not just with

his previous legal opinions, but with the factual sufficien-

cy of his earlier work.” In Hill, supra, the court concluded

that the staff judge advocate could not conduct the super-

visory review of a case in which he had been the trial

counsel.

Should the staff judge advocate not be disqualified by

the proscriptions of Article 6, U.C.M.J., then the stand-

ard to be applied is whether the conduct of the staff judge

advocate is “so antithetical to the integrity of the military

justice system as to disqualify him from participation.”

United States v. Engle, supra.

We find that the remedial action recommended by the

staff judge advocate and taken by the convening authority

which was later reviewed by the military judge at trial was

not conduct which was so “antithetical to the military

justice system as to disqualify him from further participa-

tion.” Engle, supra at 389. We, therefore, find a new

review and action to be unnecessary.

l3a

We have resolved the remaining assignments of error

adversely to the accused and therefore the finding of guilty

and the sentence are

AFFIRMED.

OFFICIAL

/s/ CHARLES L. WILLE

Charles L. Willie

Captain, USAF

Chief Commissioner

US GOVERNMENT PRINTING OFFICE: 1987—196 769/62015