25 M.J. 587 | U.S. Army Court of Military Review | 1987
OPINION OF THE COURT
Tried by a special court-martial composed of officer and enlisted members, appellant was convicted, pursuant to his plea, of wrongful use of marijuana in violation of Article 112a, Uniform Code of Military Justice, 10 U.S.C. § 912a (Supp. I 1983) [hereinafter UCMJ]. Contrary to his plea, appellant was convicted of assault consummated by a battery in violation of Article 128, UCMJ, 10 U.S.C. § 928. He was sentenced to a bad-conduct discharge and confinement for ninety days. In the post-trial recommendation, the staff judge advocate advised the convening authority that the military judge had erred by informing the
Appellant asserts the military judge erred by (1) failing to recuse himself, (2) failing to grant the defense challenge for cause against him, and (3) refusing to accept or consider a request for trial by judge alone. As the contested charge was dismissed after trial, appellant requests only a rehearing on sentence. We find that the military judge was disqualified to sit as the fact finder and, under the circumstances of this case, should have recused himself rather than directing a trial with members, but that appellant suffered no prejudice on findings because of the provident guilty plea to wrongful use of marijuana. We further find, based upon the military judge’s overall conduct of the trial and the admission into evidence, over defense objection, of an inadmissible record of nonjudicial punishment (Article 15, UCMJ), that appellant was prejudiced as to sentence. We choose to reassess the sentence and reduce it significantly rather than order a sentence rehearing.
I. Facts
During the Article 39(a), UCMJ, session prior to entry of pleas, the military judge, in answer to trial counsel’s query regarding possible grounds for challenge of the judge, responded as follows:
In a companion case tried in this courtroom last week I presided over the case of the United States versus Gomersall. In adjudging an appropriate sentence in the case it was my determination that I received mendacious testimony from Gomersall, and I will not accept a request by the accused for trial by judge alone.
Trial counsel lodged no challenge for cause against the judge, who then asked whether Specialist Four (SP4) Gomersall would be a witness in the present case. Upon being advised that SP4 Gomersall would be a government witness, the judge asked the defense counsel whether she desired to voir dire or present a challenge for cause against the judge. The following colloquy between the defense counsel and the judge then ensued:
DC [Defense Counsel]: Yes, your Hon- or. The defense would have chosen to take a judge alone trial in this case, if we had that option, and because the military judge cannot sit in decision on this case since Specialist Gomersall will be a witness, the defense would like to present a challenge for cause.
MJ [Military Judge]: What is the basis for cause?
DC: Again, sir, that the Military Judge has made a predisposition as to the credibility of one of the witnesses and the defense would request a judge alone tri — would—still would like a judge alone trial.
MJ: Captain Lewis, what I stated earlier was that I determined that Gomersall presented to me untruthful testimony during his own trial. He is a witness for the prosecution. Each party to a trial is entitled to a fair trial by an unbiased, impartial fact-finder [sic]. You will receive that kind of trial in this case, by having your facts decided by the court members. The prosecution is also entitled to that same impartial, unbiased fact-finder, and it is for that reason that I would not accept a trial by military judge alone request from this accused.
DC: I understand that, sir. That is why the defense would make a request for a recusal by the military judge so*590 that another military judge could sit on this case, in order to give defense the opportunity to have a judge alone court.
MJ: The determination of evidentiary issues, procedural disputes, and instructions of law that the court members will receive from me will not be affected in any way during this trial as a consequence of my presiding over the Gomersall trial last week. However, it does not promote judicial efficiency, nor the public image of our court-martial process, for me to recuse myself so that you can have another judge traveling a distance of at least 100 miles, from either Stuttgart or Nuernberg, the nearest location of another judge, in order for this case to proceed by judge alone.
Your challenge for cause is denied.
Written requests for trial by military judge alone and for enlisted court members were then marked as appellate exhibits. Noticing that the trial counsel had indicated on the form requesting trial by judge alone that the government desired argument on that request, the judge asked the trial counsel what her argument would have been had he entertained a request for trial by judge alone. The trial counsel replied that she would have opposed the request based upon the judge’s disclosure concerning his opinion of SP4 Gomersall’s truth and veracity.
Notwithstanding his earlier statements that he would not accept a request for trial by judge alone, the judge included that option in his trial forum advice to appellant. Appellant, as noted, chose trial by officer and enlisted members.
Following arraignment, but before entry of pleas, the defense counsel verbally moved for a continuance until Private E-2 (PY2) Coleman, the alleged victim of the assault, could be present for testimony. Without inquiring into the grounds for continuance, the judge informed the defense counsel that she had been warned about “no-notice, unwritten motions” and that he would not entertain her non-constitutional motion. The defense counsel advised the judge that she believed her motion was of constitutional magnitude,
The defense counsel reserved the plea to the alleged assault, and appellant pled guilty to the alleged wrongful use of marijuana. The judge conducted a providence inquiry,
When trial reconvened two days later, the judge informed counsel that he would advise the court members of appellant’s guilty plea and the resultant guilty finding of wrongful use of marijuana before the members heard evidence on the contested assault charge. The defense counsel, in apparent reference to United States v. Rivera, 23 M.J. 89, which had been decided approximately one month before the instant trial, stated “there was a very recent case ... that says it is the choice of defense whether the jury [sic] is to be informed of a guilty plea made in front of the judge before ... continuing on the merits with the other charges.” The military
During her opening statement to the court members, trial counsel related the government’s version of the alleged assault upon PV2 Coleman by SP4 Gomersall and appellant. She told the members that SP4 Gomersall had “been convicted of his part in that assault.” Although the defense counsel did not object to this disclosure in the trial counsel’s opening statement, she did object when trial counsel asked SP4 Gomersall, on direct examination, whether he had been convicted of the assault.
In a subsequent Article 39(a), UCMJ, session to consider the possible sentencing evidence, the defense counsel objected to the admission of a record of nonjudicial punishment under Article 15, UCMJ, because appellant had allegedly not been given the opportunity to “see” counsel before the Article 15 proceedings took place. The military judge examined the contested document, which reflected that appellant had “the right to consult with legal counsel” located at a named location. The document also reflected that appellant's punishment included a reduction from Specialist Four to Private First Class, and that appellant had not appealed. Rather than inquiring into the defense counsel’s objection, the military judge asked why appellant was still wearing the grade insignia of a Specialist Four. The defense counsel informed the judge that the punishment had been imposed “after lunch yesterday” (emphasis added) and that appellant had not had the opportunity to correct the rank on his uniform.
II. Disqualification of Military Judge
Rule for Courts-Martial [hereinafter R.C.M.] 902
Here, we are not faced with a non-waivable disqualification under R.C.M. 902(b)(1), or any of the other specific grounds for disqualification under R.C.M. 902(b). As the military judge’s determination that SP4 Gomersall was mendacious was based upon what the judge had heard in court during SP4 Gomersall’s court-martial, and was not based upon out-of-court knowledge of SP4 Gomersall’s truth and veracity, the judge’s bias or prejudice was judicial, not personal, in nature. To be disqualifying under R.C.M. 902(b)(1) the judge’s bias must be based upon extra-judicial, personal knowledge, not knowledge gained through performance of judicial duties. See United States v. Grinnell Corp., 384 U.S. 563, 580-83, 86 S.Ct. 1698, 1708-10, 16 L.Ed.2d 778 (1966) (statutory disqualification for alleged bias and prejudice must stem from extra-judicial source, not from what the judge learned from participation in the case); In re International Business Machines Corp., 618 F.2d 923, 928 (2d Cir.1980) (determination of personal bias or prejudice should be made on the basis of extra-judicial conduct as distinguished from conduct within a judicial context). Knowledge of an accused, a co-accused, or a witness gained from prior hearings or other cases is judicial, not extra-judicial, knowledge. See United States v. Boffa, 513 F.Supp. 505, 508-11 (D.Del.1981) (exposure to co-defendant/possible witness in a prior case in which judge stated co-defendant “is not credible” on certain issues was not extra-judicial exposure disqualifying judge under 28 U.S.C. § 455); United States v. Lewis, 6 M.J. 43 (C.M.A.1978) (co-accused, who had been tried by the judge during a three-day interval in accused’s trial, testified in rebuttal to accused’s testimony on sentencing; the judge was not disqualified by his exposure to a “related” case). Accordingly, as the judge’s prior exposure to SP4 Gomersall arose in a judicial context, the judge was not disqualified under R.C.M. 902(b)(1).
The same conclusion cannot be reached, however, with respect to the general disqualification ground of R.C.M. 902(a). Although the same general rules respecting judicial vis-a-vis extra-judicial exposure apply equally to R.C.M. 902(a) and 902(b)(1), United States v. Boffa, 513 F.Supp. at 509,
No prejudicial error remains as to findings, however, because the convening authority set aside the finding of guilty to the one contested offense. Appellant’s provident plea of guilty was not affected by the judge’s disqualification to act as the finder of fact. See United States v. Butler, 26 C.M.R. 398 (C.M.A.1958) (plea of guilty is a judicial confession); United States v. Lucas, 1 C.M.R. 19, 23 (C.M.A.1951) (plea of guilty removes from the trier of fact any question of innocence or guilt and, if regularly made, leaves only the requirement for the court to impose an appropriate sentence). Cf. United States v. Caruth, 6 M.J. 184 (C.M.A.1979) (judge’s intervention into plea bargaining process criticized and disapproved of by Court of Military Appeals, but Court rejected appellant’s contention that such pretrial intervention required rejection, per se, of the pleas of guilty); United States v. Sherrod, 22 M.J. 917 (A.C.M.R.1986), petition granted, 24 M.J. 37 (C.M.A.1987) (in contested case,
III. Military Judge’s Overall Conduct of the Trial
In addition to the error discussed above, our review of the record has revealed seven other instances in which the judge did not conduct the trial in a “professional and fair manner.” United States v. Sherrod, 22 M.J. at 923. Each instance will be discussed in the order in which it occurred at trial.
In denying the defense’s challenge for cause against him, the judge stated, inter alia, that neither “judicial efficiency” nor the “public image of our court-martial process” would be promoted by his recusal and the resultant requirement for another judge to travel “a distance of at least 100 miles” to preside over the trial. While judicial efficiency and a favorable public image of the military criminal trial are laudable goals, inordinate concern with those goals penalized appellant “for sins that were not of his making.” United States v. Webster, 24 M.J. 96, 99 (C.M.A.1987). Appellant was not responsible for the judge’s disqualification. The judge’s refusal to recuse himself deprived appellant of the “statutory option” of trial by judge alone pursuant to Article 16(1)(B), UCMJ. United States v. Webster, 24 M.J. at 99.
After refusing to recuse himself and directing a trial by members, the judge incongruously advised appellant of his right to request trial by judge alone. Such advice may have left appellant and any spectator with the impression that the judge did not know what he was doing. This impression would not promote the “public image of our court-martial process.”
Before inquiring into the defense counsel’s grounds for a continuance, the judge berated her for a “no-notice, unwritten” motion in violation of the circuit rules for prior, written notice of motions. In granting the request for a continuance, the judge threatened the defense counsel with a contempt determination “the next time [she] presented] a motion without notice.” As the Court of Military Appeals made clear in United States v. Williams, 23 M.J. 362 (C.M.A.1987),
Contrary to the dictates of United States v. Rivera, supra, the military judge informed the court members of appellant’s guilt of wrongful use of marijuana before the court members heard evidence on the contested assault charge. Both Rivera and United States v. Smith, 23 M.J. 118 (C.M.A.1986), had been decided by the Court of Military Appeals before the trial commenced in this case, but it is likely that the Smith decision, having been issued only two days before this trial, had not reached the military judge sitting in Augsburg, Germany. The Rivera decision, however, having been issued approximately one month before this trial, should have
The military judge admitted the fact of SP4 Gomersall’s conviction for assault and battery as relevant to the government’s theory that appellant acted jointly with SP4 Gomersall or aided and abetted him in the assault upon PV2 Coleman. “Relevant evidence” is defined in Mil.R. Evid. 401
With respect to the Article 15’s admissibility, the record of trial reflects that the judge’s overriding concern was not with the defense counsel’s objection, but rather centered on appellant’s wearing of Specialist Four insignia of grade. After being informed of the reason for appellant’s failure to correct his uniform, the judge summarily overruled defense counsel’s objection to the Article 15 without hearing any defense evidence on the issue and without requiring even a rebuttal offer of proof from the government. The judge erroneously admitted the Article 15 record of punishment over defense’s objection that appellant had not been afforded the right to consult with counsel before the Article 15 proceedings took place. Although normally an Article 15 is admissible if the form reflects the soldier was advised of his right to consult with counsel, United States v. Mack, 9 M.J. 300, 321-22 (C.M.A.1980), the defense counsel’s objection should have alerted the military judge that the “presumption of regularity,” Mack 9 M.J. at 322, to be accorded properly completed Article 15 forms could not be extended to the form in question. If the military judge had required the defense to present evidence supporting its objection, it may
We must now consider the impact upon sentence of the erroneously admitted Article 15 punishment. The offense alleged on the Article 15 form was drunk and reckless driving resulting in personal injury to two other individuals. This driving incident occurred while appellant was pending court-martial for wrongful use of marijuana and an alleged assault in which the victim, the co-accused, and appellant were all highly intoxicated on alcohol. The drunk driving incident could thus be viewed by the court members as a recidivist offense showing that appellant had little or no rehabilitative potential for further military service. The staff judge advocate’s post-trial recommendation to the convening authority included exactly this analysis of the drunk driving incident. Accordingly, it is our opinion that the prejudicial impact on sentencing of the erroneously admitted Article 15 cannot be questioned. We will reassess the sentence.
Finally, in dismissing the court members after sentence had been announced, the military judge expressed appreciation on behalf of the convening authority for the “diligent manner” in which the members had performed their duties. The military judge’s purporting to speak for the convening authority undermines the concept and image of an independent judiciary. Such expressions of appreciation on behalf of the command which has just prosecuted an individual should be avoided by military judges.
IV. Conclusion
The findings of guilty are affirmed. Reassessing the sentence on the basis of the errors noted above and the entire record, the court affirms only so much of the sentence as provides for confinement for ninety days.
. United States v. Smith, 23 M.J. 118 (C.M.A.1986); United States v. Rivera, 23 M.J. 89 (C.M.A.1986), cert. denied, — U.S. —, 107 S.Ct. 1302, 94 L.Ed.2d 157 (1987).
. We assume the constitutional basis was the Sixth Amendment's right of confrontation.
. United. States v. Care, 40 C.M.R. 247 (C.M.A.1969).
. The judge was apparently referring to United States v. Boland, 22 M.J. 886, 890-91 (A.C.M.R.1986), petition denied, 23 M.J. 400 (C.M.A.1987), portions of which were criticized in United States v. Rivera, 23 M.J. at 96 n. 1.
. SP4 Gomersall was the first prosecution witness.
. Appellant was being tried for offenses allegedly occurring on 14 August 1986 (assault consummated by a battery) and between 17 May and 16 June 1986 (wrongful use of marijuana). Trial commenced on 3 December 1986 and was recessed, as noted earlier in the body of this opinion, after the providence inquiry and entry of the guilty finding to the marijuana offense. On 1 December 1986, two days before trial began, appellant had been offered disposition under Article 15 for an incident occurring on 1 November 1986 in which he allegedly drove a passenger car in a reckless manner while drunk, resulting in injury to two other individuals. On 4 December 1986, appellant accepted the Article 15 proceedings rather than demanding trial by court-martial for the alleged driving offense, and punishment was imposed on 4 December. Additionally, on 4 December, appellant elected .not to appeal the Article 15. Trial recommenced on 5 December.
. Manual for Courts-Martial, United States, 1984 [hereinafter M.C.M., 1984], Rule for Courts-Martial 902. This rule is based on 28 U.S.C. § 455. M.C.M., 1984, Analysis of R.C.M. 902, App. 21, A21-45.
. There is no waiver in this case because appellant challenged the judge for cause.
. “Whether a recusal motion is based on ... [28 U.S.C.] § 455(a) or § 455(b)(1) [the sections upon which R.C.M. 902(a) and 902(b)(1) are based — see note 7, supra], it is clear that a claim of bias or prejudice based on judicial knowledge gained from prior hearings or other cases is not a sufficient ground for disqualification...." See Bradley v. Milliken, 620 F.2d 1143, 1156-57 (6th Cir.), cert. denied, 449 U.S. 870, 101 S.Ct. 207, 66 L.Ed.2d 89 (1980) (judge’s ex parte contacts, “[although perhaps a bit unorthodox,” arose in a judicial context and he was not disqualified under 28 U.S.C. § 455(a)); United States v. Partin, 552 F.2d 621, 636-39 (5th Cir.), cert. denied, 434 U.S. 903, 98 S.Ct. 298, 54 L.Ed.2d 189 (1977) (same judge may preside over a retrial after reversal; judge not disqualified because he presided over separate trial of a co-defendant); United States v. Cowden, 545 F.2d 257, 265-66 (1st Cir.1976), cert. denied, 430 U.S. 909, 97 S.Ct. 1181, 51 L.Ed.2d 585 (1977) (judge not disqualified because he presided over two prior trials of co-defendants);
. An accused has no absolute right to trial by military judge alone. United States v. Butler, 14 M.J. 72 (C.M.A.1982).
. Although Williams was decided after the trial of the instant case, United States v. Kelson, 3 M.J. 139 (C.M.A.1977), cited and discussed in Williams, at 365-66, was decided approximately nine and one-half years before this trial. Kelson held that regulatory requirements in conflict with the Manual for Courts-Martial are invalid.
. We note, with displeasure, that this is not the first instance of injudicious language by this particular military judge. See United States v. McKinnon, CM 448432 (A.C.M.R. 30 Mar. 1987) (unpub.) at 2-3 n. 1 (attached as an Appendix to this opinion), petition denied, No. 57,991/AR (C.M.A. 13 Oct. 1987).
. M.C.M., 1984, Mil.R.Evid. 401.
. The government did not seek admission of the evidence under Mil.R.Evid. 609, entitled “Impeachment by Evidence of Conviction of Crime."
. Mil.R.Evid. 402 provides, inter alia, that "(e]vidence which is not relevant is not admissible.”