Lead Opinion
Opinion of the Court
Two of the three issues upon which the Court granted accused’s petition for review have since been decided adversely to his contentions. The first relates to the general qualification of a commanding officer to authorize a search; United States v. Ezell,
As authorized by Article 39(a),
No one challenged Colonel Bennett’s right to sit on the court. He was sworn with the other members, and examined with them for possible disqualification. No ground of disqualification appeared, and he'
Appellate defense counsel contend that once excused a court member cannot sit unless he is again appointed to the court by the convening authority. In their view, an excused absence by the convening authority is equivalent to removal from the court. Article 29, UCMJ, 10 U.S.C. § 829, implies the contrary.
In pertinent part, subdivision (a) of Article 29 provides that a court member “may be absent or excused” for specified reasons. One reason is “by order of the convening authority.” Subdivision (b) indicates the effect of the nonpresence of a member upon the trial proceedings of a general court-martial. Specifically, it provides that if the absence of a member reduces the number of court members present below five, “the trial may not proceed” unless a new person is detailed to the court by the convening authority. The manifest inference is that if a new member is not detailed, trial must be adjourned until the absent or excused member becomes available.
The inference of Article 29 is stated as fact in a discussion of the subject in the Manual for Courts-Martial, United States, 1969 (Revised edition). Paragraph 37c (2) observes that a member can be excused for a particular case or session of the court, without being relieved “permanently.” Nevertheless, relying upon United States v. Harnish,
The decision of the United States Army Court of Military Review is affirmed.
Notes
. Article 39(a), Uniform Code of Military Justice, 10 U.S.C. § 839(a).
Concurrence in Part
(concurring in part and dissenting in part):
I agree with the majority’s treatment and disposition of the appellant’s contention that Lieutenant Colonel Bennett improperly sat on the court-martial panel which tried and convicted him. I also agree with the majority’s disposition of the claim that military commanders should be per se disqualified. As the majority states, that contention was disposed of in United States v. Ezell,
An informant, himself a drug user, accosted the commander for drug rehabilitation assistance and confided in him his dependency on and involvement with drugs. The commander then explained the drug rehabilitation program and told the informant that if he was really sincere in his desire to receive assistance, he should tell the commander the source of his drugs. The informant eventually stated that he had recently purchased 100 tablets of speed from another soldier in the unit and that the seller had a larger quantity in his (the seller’s) locker. But the informant stated that he would not tell the commander who the seller was because he was afraid for his own safety. Gradually, the commander persuaded the informant to divulge the sell
During the hearing on the appellant’s motion to suppress the evidence, the commander’s predisposition against the appellant was made quite clear. He stated that “with Private Herrington’s demonstrated character and behavior within the troop, clearly, to me substantiated reasonable cause and— in that way with regard to the individual (Emphasis added). That is, the appellant worked in the motor pool, which, in the commander’s view, was the hot bed of drug activity in his unit. The appellant had also been previously involved with another soldier who had been court-martialed for possession of marihuana. Also, another officer had reported to him that he had information that implicated the appellant in drug abuse. And still another man had described to him the “practice” that the appellant pursued and “the way he smoked his marihuana.” Finally, he had inspected the appellant’s room and “signs of the [drug] culture” were still present. All this “input, the very informal input that I had was — was generally what I was reacting to as commander when I made my decision” to authorize the search of the appellant’s room.
By participating in the scheme by which the informant was to purchase more drugs, the commander involved himself in the “ ‘enterprise of ferreting out [evidence of] crime.’ ” United States v. Ezell, supra at 310. Therefore, he could not serve as a neutral and detached magistrate and impartially evaluate the information given him in arriving at a finding of probable cause. It follows that the search authority issued by him was fatally defective and the evidence discovered during the search of the appellant’s room should have been suppressed. Moreover, it was equally disqualifying for the company commander to initiate the search on the basis of the appellant’s character and behavior.
In United States v. Strangstalien,
Judge Matthew J. Perry took final action in this case prior to his resignation as a judge of this Court pursuant to his appointment and confirmation as a United States District Judge for the District of South Carolina.