# Petition for Writ of Certiorari — Tilley v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1988
- **Citation:** 484 U.S. 1060

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0422%3A1. Public record. Not legal advice.