United States v. Dorsey

29 M.J. 761, 1989 CMR LEXIS 875, 1989 WL 131941
U.S. Army Court of Military Review·Decided October 31, 1989·No. ACMR 8900638·Published·Cited by 1 cases

Opinion

OPINION OF THE COURT

FOREMAN, Judge:

Contrary to his pleas, the appellant was convicted by a military judge sitting as a special court-martial of wrongful use of cocaine in violation of Article 112a, Uniform Code of Military Justice, 10 U.S.C. § 912a (Supp. IV 1984). His approved sentence provides for a bad-conduct discharge, restriction for 60 days to the limits of his unit “as specified by your unit commander,” and reduction to Private El. Before this Court, the appellant argues that (1) the military judge should have sustained the appellant’s challenges for cause; (2) the sentence to restriction to the “limits of your unit as specified by your unit commander” is illegal; and (3) the staff judge advocate should have served his addendum to the post-trial recommendation on the trial defense counsel because it contained “new matter.”

I. THE CHALLENGES

The appellant contends that military judge erred by denying the trial defense counsel’s challenge for cause of all members of the panel. Knowing that the prosecution case relied on the results of a urinalysis, the trial defense counsel asked the court members whether they felt the appellant needed to explain why his urinalysis had tested positive for cocaine. All members responded in the affirmative. Then he asked the members whether they agreed with the statement, “[Tjhe only person that has anything to fear from participating in the Army urinalysis program is an individual who uses drugs.” All but two members indicated that they agreed. In response to questioning by the trial counsel, the members responded that they understood their duty to follow the judge’s instructions and to disregard personal feelings and indicated that they would be able to follow the judge’s instructions and to ignore their personal feelings if the judge’s instructions should conflict with their personal feelings. In response to questioning by the military judge, they further indicated that they understood the presumption of innocence, the prosecution’s burden of proof, the accused’s absolute right to remain silent and, more specifically, the prosecution’s burden of proving that the urinalysis was conducted properly and that the accused had tested positive for the use of cocaine.

The defense counsel challenged a court member based on prior knowledge of the facts of the case and the challenge was granted. He then challenged each of the remaining members charging they were biased in favor of urinalysis results, but this challenge was denied. After exercising a peremptory challenge, the defense counsel obtained a short recess. He thereafter requested and the military judge granted a bench trial.

The appellee argues that the appellant waived any error on the challenges by requesting trial by judge alone. We hold that the appellant did not waive review of the denial of the challenges by his request for a bench trial.

Manual for Courts-Martial, United States, 1984, Rule for Courts-Martial 912(f)(4) [hereinafter R.C.M.] provides that the issue regarding a challenge for cause will be preserved if the member who was unsuccessfully challenged for cause is peremptorily challenged by the same party and the party states that it would have peremptorily challenged another member if the challenge for cause had been granted. [763] Although the trial defense counsel exercised a peremptory challenge in this case, he did not state that he would have used his challenge differently if his challenge of the entire panel had been granted. Instead, the appellant requested a bench trial.

An accused is entitled to a properly constituted panel, including enlisted members if he so requests. UCMJ, Article 25, 10 U.S.C. § 825. If he forgoes that right and requests a bench trial to avoid trial before an improperly constituted panel, he has not waived his objection to the panel membership. Prior to the adoption of the Rules for Courts-Martial, the Court of Military Appeals often looked to the trial defense counsel’s use of the peremptory challenge to determine whether the panel was objectionable to the defense. See United States v. Harris, 13 M.J. 288 (C.M.A.1982) (no prejudice because no evidence that appellant would have otherwise used peremptory challenge); United States v. Henderson, 29 C.M.R. 372 (C.M.A.1960) (presumed no prejudice because defense counsel did not use peremptory challenge); United States v. Shaffer, 6 C.M.R. 75, 77 (C.M.A.1952) (defense counsel expressed no dissatisfaction with any member of the court which finally sat in judgment of accused).

Where, as in this case, the accused objects to all members of the panel, trial defense counsel cannot remove the objectionable members by peremptory challenge and is left with but one alternative: a bench trial. Accordingly, we hold that the trial defense counsel preserved the issue regarding challenges by clearly stating on the record that the accused’s request for a bench trial was made to avoid trial by members who had been challenged for cause. See United States v. Greene, 43 C.M.R. 72, 79 (C.M.A.1970) (agreeing with Court of Military Review holding that “this accused’s conviction cannot stand if he abandoned his right (and was tried by military judge alone) to avoid trial before an improperly selected panel”).

We turn next to the question whether the military judge correctly denied the challenge for cause against all remaining members of the panel. We hold that the military judge did not err.

At the outset we note that a trial court may not receive a challenge to more than one member at a time. Article 41(a), UCMJ, 10 U.S.C. § 841(a). However, because this case involves a challenge of each and every remaining member of the court based on their individual responses to voir dire, we have treated the appellant’s objection to the court members as individual challenges. United States v. Montgomery, 16 M.J. 516 (A.C.M.R.1983).

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United States v. Dorsey, 29 M.J. 761, 1989 CMR LEXIS 875, 1989 WL 131941 (usarmymilrev 1989).

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