11 C.M.A. 552 | United States Court of Military Appeals | 1960
Lead Opinion
Opinion of the Court
The accused pleaded guilty to the larceny of a radio of a value of over $20.00 and less than $50.00. He was sentenced to a bad-conduct discharge, confinement at hard labor for one year, and total forfeiture of all pay and allowances. The convening authority reduced the period of confinement at hard labor to ten months but otherwise approved the sentence, and thereafter a board of review in the office of The Judge Advocate General of the Army affirmed the proceedings. We granted accused’s petition for review to determine whether he had been prejudiced by the testimony of the Article 32 investigating officer who was called as a witness for the Government during the hearing on the sentence.
While it might be contended that an issue such as herein involved goes more to the weight of the testimony of the officer than its competency, we are of the opinion that the objection to his testimony should have been sustained. The record shows clearly that he was basing his opinion on the evidence given by persons who only knew the accused as a criminal. Obviously, that is an improper foundation to support an opinion on traits of character for the base contains only information detrimental to the accused and from sources which normally would be hostile. It is conceded that accused’s character, reputation or performance of military duties were not in issue at the pretrial investigation, and for aught that appears the investigating officer had no proper source of information. The accused had never served in a unit with the investigating officer, and the latter had no firsthand information on the accused’s military service record or his civilian background. The officer was only a legal conduit through which information on a criminal offense passed, and it could hardly be expected that he would get an unbiased report from witnesses who were being interviewed on a criminal charge. His activities may be likened to those of a witness who goes into a community for the purpose of ascertaining the reputation of a defendant and makes inquiry only of those citizens who are the victims of a crime. Under those circumstances it could hardly be contended that the witness had an opportunity regularly and for a sufficient period of time to make a reasonably comprehensive and reliable estimate of the character or reputation of the defendant. In the case at bar, the investigating officer had neither time, opportunity, nor relationship with the accused to form any opinion on the latter’s combat capabilities or his performance of military duties. See paragraph 138/ (1), Manual for Courts-Martial, United States, 1951.
Aside from the lack of qualification of the investigating officer to testify on the subject matter involved, there is an abuse of a judicial assignment which must be reached. By virtue of his position, the investigating officer acts in a judicial capacity. He is required to conduct the hearing in a fair and impartial manner, and he should not be permitted to be used subsequently in a manner which has a tendency to restrict the value of a pretrial hearing. If an investigating officer may be used to furnish the court-martial with his opinion on evidence he hears, he makes a mockery of the hearing. A pretrial investigation is an exploratory proceeding, and the accused should not
To avoid any question of creating a situation where the Article 32 investigating officer may destroy his usefulness, we place our stamp of disapproval on a proceeding which permits him to express an opinion on the military character of an accused when his only source of information is found in his investigation activities. While in this case, it can be argued that we should not reach the question because the defense counsel withdrew his objection, that assertion is not persuasive in this setting because the law officer had ruled that the objection would be denied and any procedural irregularity on the part of the defense counsel did not contribute to the erroneous ruling.
The error affects only the sentence imposed in this case. Accordingly, the record is returned to The Judge Advocate General of the Army for reference to a board of review with instructions to reconsider the sentence and to affirm only such punishment as the members may find to be fair and just in the light of this opinion.
Concurrence Opinion
(concurring):
In my opinion, the error here “goes to the punitive discharge rather than to any other aspect of the sentence [and, consequently,] a reduction in the term of confinement can hardly be considered as purging the error.” United States v Lackey, 8 USCMA 718, 25 CMR 222. I would, therefore, return the record of trial to the board of review with directions that, in its discretion, it consider a sentence which does not include a punitive discharge or order a rehearing on the sentence.