United States v. Elzy

25 M.J. 416, 1988 CMA LEXIS 7, 1988 WL 5612
CourtUnited States Court of Military Appeals
DecidedFebruary 22, 1988
DocketNo. 55,419; CM 445163
StatusPublished
Cited by17 cases

This text of 25 M.J. 416 (United States v. Elzy) is published on Counsel Stack Legal Research, covering United States Court of Military Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Elzy, 25 M.J. 416, 1988 CMA LEXIS 7, 1988 WL 5612 (cma 1988).

Opinion

Opinion of the Court

COX, Judge:

Appellant was tried by military judge alone at a general court-martial convened at Yongsan, Seoul, and Camp Humphreys, Korea. He was charged with conspiring to wrongfully distribute (with wrongful distribution as the overt act) approximately 27.-25 grams of methamphetamine, in violation of Article 81, Uniform Code of Military Justice, 10 U.S.C. § 881; and with wrongfully possessing and wrongfully distributing (one specification each) approximately 27.25 grams of methamphetamine, in violation of Article 134, UCMJ, 10 U.S.C. § 934. He pled not guilty to all charges and specifications, but was convicted of both specifications charged under Article 134. He was acquitted of the conspiracy charged under Article 81.

Appellant was sentenced to confinement for 6 years, total forfeitures, reduction to pay grade E-l, and dishonorable discharge from the service. The convening authority approved the sentence as adjudged. The Court of Military Review set aside and dismissed the wrongful-possession offense (specification 1, Charge II), but affirmed [417]*417the findings of guilty for wrongful distribution (specification 2, Charge II), and the sentence. 22 M.J. 640, 643 (A.C.M.R.1986).

Appellant’s petition was granted to consider:

WHETHER THE MILITARY JUDGE WAS DISABLED AS A FACTFINDER BY APPELLANT’S DISCLOSURE THAT NO ATTORNEY WOULD PRESENT APPELLANT’S DEFENSE AND BY DEFENSE COUNSEL’S REPEATED ATTEMPTS TO WITHDRAW, FAILURE TO QUESTION APPELLANT AS A WITNESS, AND FAILURE TO ARGUE APPELLANT’S TESTIMONY ON FINDINGS.

Here, we are confronted with the question of when a military judge must sua sponte recuse himself from sitting on a case. At the outset, we note that a request for trial by judge alone was made, the military judge opened himself to voir dire, and no challenge or motion for recusal was made at any time. See United States v. Hawkins, 24 M.J. 257, 259 (C.M.A.1987).

The Manual for Courts-Martial, United States, 1969 (Revised edition), in effect at the time of appellant’s trial, makes no provision governing sua sponte recusal. However, Canon 3C(1), ABA Code of Judicial Conduct (1972), provided that “[a] judge should disqualify himself in a preceeding in which his impartiality might reasonably be questioned____”

Paragraph 62/ of the 1969 Manual did identify thirteen grounds for challenging military judges. Of these, only two even arguably relate to this case:

(10) That he [the military judge] has formed or expressed a positive and definite opinion as to the guilt or innocence of the accused as to any offense charged, except that this shall not necessarily apply to a military judge who has formed or expressed such an opinion solely in his role as military judge sitting alone in a previous trial of the same or a closely related case.
(13) Any other facts indicating tkat he should not sit as a ... military judge in the interest of having the trial and subsequent proceedings free from substantial doubt as to legality, fairness, and impartiality. Examples of the facts which may constitute grounds for challenge are: That he will be a witness for the defense; that he testified or submitted a written statement in connection with the investigation of the charges, unless at the request of the accused; that he has officially expressed an opinion as to the mental condition of the accused; ... that he has a direct personal interest in the result of the trial; that he is in any way closely related to the accused; that he participated as a member or as counsel in the trial of a closely related case; that he is decidedly hostile or friendly to the accused ____

(Emphasis added.)

The Manual for Courts-Martial, United States, 1984, not yet in effect at the time of appellant’s trial, specifically addresses self-disqualification of military judges. R.C.M. 902(a) states that “a military judge shall disqualify himself or herself in any proceeding in which that military judge’s impartiality might reasonably be questioned.” However, where the ground for disqualification arises under this rule, as opposed to the specific grounds set forth in R.C.M. 902(b), “waiver may be accepted provided it is preceded by a full disclosure on the record of the basis for disqualification.” R.C.M. 902(e).

Further, as the drafters of the 1984 Manual observed: “[A]ny interest or bias to be disqualifying must be personal, not judicial, in nature.” Analysis of R.C.M. 902(b), A21-46 (citations omitted). A corollary to this principle is that “[a] timely request for trial by military judge alone should be granted unless there is substantial reason why, in the interest of justice, the military judge should not sit as factfinder.” R.C.M. 903(c)(2)(B), Discussion.

Under both Manuals, the military judge’s decision on recusal is subject to an abuse-of-discretion standard. See United [418]*418States v. Soriano, 20 M.J. 337, 341 (C.M.A.1985); United States v. Bradley, 7 M.J. 332, 334 (C.M.A.1979); United States v. Roberts, 20 M.J. 689 (A.C.M.R.1985).

Appellant entered pleas of not guilty. Detailed defense counsel made several pretrial motions to withdraw, presented appellant’s testimony on the merits in a narrative form, and did not argue all of appellant’s testimony on findings. Even though this may “have inferentially signaled to the judge that” counsel “did not [personally] believe all of appellant’s testimony was truthful,” 22 M.J. at 641,

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Bluebook (online)
25 M.J. 416, 1988 CMA LEXIS 7, 1988 WL 5612, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-elzy-cma-1988.