1 M.J. 445 | United States Court of Military Appeals | 1976
Lead Opinion
OPINION OF THE COURT
In accordance with local Fort Riley procedure,
At trial, the appellant moved for appropriate relief for what he termed “illegal confinement.” After hearing the testimony of Captain Lause, who represented the Government in the matter of the earlier motion, and Captain Theriault, the appellant’s company commander who had recommended confinement prior to trial, the military judge ruled that the confinement was legal, but gave the appellant credit therefor in extenuation and mitigation.
In an appeal to this Court,
In Courtney v. Williams, 1 M.J. 267 (1976), we opined that after an accused initially is confined a neutral and detached magistrate must make a prompt decision whether the accused could and should be confined prior to his trial. As to whether an accused “could” be confined pending trial, the magistrate must decide the probable cause question, that is, whether there is probable cause to believe that a crime has been committed and that the accused committed it. Gerstein v. Pugh, 420 U.S. 103, 114, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). As to whether an accused “should” be confined pending his court-martial, a legitimate inquiry is whether pretrial confinement is necessary to insure his presence at his trial.
In the case at bar, the appellant’s company commander testified as follows concerning his reasons for recommending the appellant’s pretrial confinement:
Let me go back, and then I’ll give my reason why I justified putting him in confinement. Private Peters was suspected of, let’s say, stealing numerous items within the Battalion, he was suspected of it. He had been threatened numerous times in Charlie Company by personnel in that Company, which is one of the primary reasons why he came to my unit. He was in my unit a short amount of time and he was also confronted with the same. When the offense was committed it was my feeling because of threats made to him, because of the fact that we felt that he did commit the crime, that he would go AWOL, I then instituted putting him into confinement, because I felt that he wouldn’t be there for the trial, so I initiated the action to put him into confinement. [Emphasis added.]
It would appear, then, that a perceived necessity to insure the appellant’s presence at his upcoming court-martial was in fact the impetus behind Captain Theriault’s initiative. The military judge so found. Additionally, the trial judge ruled:
Now, in this case it seems to me that there was in fact probable cause. Both probable cause for believing that an offense had been committed, the offense of larceny, that the accused committed it, and that the accused might not show up for his trial.
Thus, as in Courtney v. Williams, supra, 1 M.J. at 271, through the military judge the appellant “has received, albeit untimely . . . a hearing before a neutral and detached body on the probable cause issue (and the ultimate issue).”
The one element missing from this case, then, and the only element missing, which would have been present had a Courtney-type of hearing occurred within a short time after initial confinement is a magistrate’s determination whether continued confinement through the period in question was necessary to insure trial presence of the appellant. However, in direct answer to the appellant’s question posed to us, whether he was prejudiced by the military judge’s denial of his defense counsel’s motion for appropriate relief due to this procedural omission, we must respond in the negative. The appellant has made no claim that the pretrial confinement in any way hampered the preparation of his defense or his participation therein. Also, we note that the appellant was released as soon as his motion testing the propriety of his continued confinement was made. Finally, it is not insignificant in our resolution of the claim of prejudice that the military judge did give the appellant credit for his pretrial confinement in extenuation and mitigation
A supplemental issue granted review by this Court by order dated June 23, 1976, inquires whether the military judge himself had authority to suspend the bad-conduct discharge he adjudged against the appellant in this case, rather than merely to recom
The decision of the United States Army Court of Military Review is vacated, and this record is hereby remanded to that court with directions to hold further proceedings in abeyance pending this Court’s disposition of the issue granted in United States v. Occhi, supra.
. Fort Riley Circular No. 27-10 (Oct. 22, 1974).
. At trial, the appellant pleaded guilty to this transgression of Article 121, Uniform Code of Military Justice, 10 U.S.C. § 921. He was sentenced to a bad-conduct discharge, to forfeit $100 per month for 4 months, and to be reduced to the grade of Private E-l. The Army Court of Military Review has affirmed the conviction and sentence.
. The appellant forwent appellate representation before the United States Army Court of Military Review.
. What other if any basis or bases lawfully justify pretrial confinement need not now detain us. Compare Article 10, UCMJ, with Article 13, 10 U.S.C. §§ 810, 813 and paragraph 18h(3), Manual for Courts-Martial, United States, 1969 (Rev.), with paragraph 20c.
. While this method of credit falls somewhere short of the full credit to which an accused normally would be entitled, see United States v. Larner, 1 M.J. 371 (1976), we are satisfied that substantial benefit has been afforded this appellant, considering that the adjudged and approved sentence includes no confinement at all, and that adjustment of the remaining portions of the sentence is not warranted in this case.
Concurrence Opinion
(concurring in the result):
On the basis of the views expressed in my separate opinions in Courtney v. Williams, 1 M.J. 267 (1976), and United States v. Larner, 1 M.J. 371 (1976), I join in the affirmance of the decision of the Army Court of Military Review. I also join in the remand.