United States v. Haagenson

52 M.J. 34, 1999 CAAF LEXIS 1252

• Court: Court of Appeals for the Armed Forces
• Decided: September 28, 1999
• Docket: 98-0581/MC
• Status: Published

Opinions

Judge EFFRON

delivered the opinion of the Court.

Contrary to her pleas, appellant was convicted by a general court-martial composed of officer members of one specification of fraternization, in violation of Article 134, Uniform Code of Military Justice, 10 USC § 934. The court sentenced her to a dismissal, reprimand, and loss of lineal numbers. The convening authority approved the sentence, and the Court of Criminal Appeals affirmed.

On appellant’s petition, we granted review of the following issues:

I. WHETHER THE LOWER COURT ERRED WHEN 1) IT AFFIRMED THE FINDINGS AND SENTENCE WHEN THE GOVERNMENT FAILED TO ESTABLISH THAT THE COURT-MARTIAL PANEL WAS SELECTED IN ACCORDANCE WITH ARTICLES 25 AND 37, UCMJ, AND 2) FAILED TO ADDRESS THE ISSUE OF APPARENT UNLAWFUL COMMAND INFLUENCE AT ALL.

II. WHETHER THE LOWER COURT ERRED WHEN IT DETERMINED THAT THERE WAS NO EVIDENCE THAT THE SPECIAL COURT-MARTIAL CONVENING AUTHORITY WITHDREW APPELLANT’S REFERRED CHARGE FROM A SPECIAL COURT-MARTIAL AND RE-REFERRED IT TO AN ARTICLE 32 INVESTIGATION AS A RESULT OF UNLAWFUL COMMAND INFLUENCE.

III. WHETHER THE LOWER COURT ERRED WHEN IT DETERMINED THAT APPELLANT WAS NOT DENIED HER SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHEN HER TRIAL DEFENSE COUNSEL FAILED TO PRESENT ANY WITNESSES IN THE SENTENCING CASE AND WAITED UNTIL DELIBERATIONS ON FINDINGS TO BEGIN GATHERING FAVORABLE DOCUMENTARY SENTENCING EVIDENCE.

For the reasons stated below, we conclude that a factfinding hearing is necessary as a predicate to resolving appellant’s assertions of legal error. See United States v. DuBay, 17 USCMA 147, 37 CMR 411 (1967).

I. WITHDRAWAL AND RE-REFERRAL OF CHARGES

Issue II concerns the propriety of the withdrawal of appellant’s case from a special court-martial by a subordinate convening authority and its ultimate referral by a superior convening authority to a general court-martial. The convening authority or a superior competent authority may withdraw charges from a court-martial at any time before find- . ings are announced. RCM 604(a), Manual for Courts-Martial, United States (1998 ed.). Subsequently, such charges may be referred to another court-martial, “unless the withdrawal was for an improper reason.” RCM 604(b).

The Discussion accompanying RCM 604(b) identifies several permissible reasons for withdrawal prior to arraignment, including receipt of additional charges, absence of the accused, reconsideration by the convening authority, issues concerning the mental capacity of the accused, and routine duty rotation of court-martial personnel. The Discussion also provides examples of improper reasons for withdrawal, including an intent to interfere with the rights of the accused, an intent to interfere with the impartiality of a court-martial, or an action that does not represent the personal and independent judgment of the authority ordering withdrawal. When charges have been withdrawn and referred to a later court-martial that is more onerous to the accused, the Discussion notes that “the reasons for the withdrawal and later referral should be included in the record of the later court-martial.”

In the present case, an initial referral to a special court-martial was withdrawn, and the matter was later referred to the general court-martial that tried appellant.¹ Documents filed at the Court of Criminal Appeals, which are not in dispute between the parties, reflect the following circumstances concerning the earlier referral and withdrawal of charges from a special court-martial.

Colonel Christy, who was the commanding officer of appellant’s Battalion and who served as the Special Court-Martial Convening Authority (SPCMCA), signed a charge sheet on May 2, 1995, referring a charge of fraternization to a special court-martial under convening order number 8-95. Colonel Christy had signed convening order number 8-95 on that same date.

On May 3, Colonel Christy received a letter from his military justice officer, who later served as trial counsel in this case. That officer recommended that Colonel Christy reconsider his decision to refer the matter to a special court-martial. On the same day, Colonel Christy withdrew the charge from the special court-martial. In his withdrawal letter, Colonel Christy cited his “reconsideration of the seriousness of the charge, the nature of the offense, and [his] knowledge of evidence that may lead to additional charges after further investigation.”

Colonel Christy referred the matter for a pretrial investigation under Article 32, UCMJ, 10 USC § 832. On July 28, the Article 32 investigating officer recommended that the original charge, along with two additional specifications, be referred to a general court-martial. The SPCMCA forwarded the charges to the Base Commander, who referred the charges to a general court-martial on September 1,1995.

The parties do not agree on the reasons for the withdrawal and subsequent referral. At the court below, appellant submitted an affidavit from Colonel Christy’s Executive Officer, Major (Retired) Greene, who described a meeting between Colonel Christy and Colonel Murray, who was the Chief of Staff to the Base Commander around the time of the initial referral and withdrawal.

According to Major Greene, Colonel Murray “wielded a lot of power over the other colonels attached to the Marine Corps Base.” Major Greene recalls the meeting as follows:

I remember being present when Colonel Murray decided that she [appellant] should not be in the Marine Corps anymore. He told Colonel Christy “I want her out of the Marine Corps,” or words to that effect. Colonel Murray was very, very angry when he said this. He was yelling. He was, in fact, enraged. His anger was beyond normal, professional irritation. It was as if he had something personal against her. Having originally come from an Infantry background, I would consider myself pretty strict. But as I have stated, the level of hostility towards CW02 Haagenson had evolved into something irrational and unprofessional, and it did disturb me. I recall Colonel Murray specifically stating, “this is going to be the last nail in her coffin.”

The Government submitted an affidavit from Colpnel Christy, who stated that he did “not specifically recall” why he had withdrawn the charges, but recalled that he had done so “on advice of counsel.” He added that there was “absolutely no command influence associated with [his] decision.” In apparent contrast to Major Greene’s affidavit, Colonel Christy asserted: “The Chief of Staff never said anything in my presence regarding any personal animosity towards her.”

In summary, the defense takes the position that this is a case in which a commander was improperly pressured by the representative of -a superior commander to change his discretionary referral decision. The Government contends that Colonel Christy was simply correcting an erroneous referral based upon his unawareness of the limited sentencing powers of a special court-martial over a warrant officer.²

The court below, 1998 WL 85579, stated that it found “no support” for appellant’s contention in the record or the appellate submissions. Unpub. op. at 8. We do not agree that the documents filed in the court below provides “no support” for the defense claim. Major Greene’s sworn affidavit clearly contains such material, in sufficient quantity and quality to raise the issue of unlawful command influence.³ At the same time, in light of Colonel Christy’s affidavit, we do not find that the defense materials demonstrate conclusively that the SPCMCA’s discretion was improperly influenced.

What we have is an inadequately developed record. In the present case, trial counsel misinformed the court about the existence of a prior referral, and no effort was made to set forth the basis for withdrawal of that referral, as contemplated by the Discussion accompanying RCM 604(b). Had he done so, there would have been an appropriate record, litigation of disputed matters, and findings of fact and conclusions of law by the military judge.

In the absence of a properly developed record, we note that appellant’s claim — that the exercise of discretion by the SPCMCA was improperly influenced by a superior — is neither “inadequate on its face” nor “conclusively refuted as to the alleged facts by the files and records of the case.” United States v. Ginn, 47 MJ 236, 244 (1997). In that posture, the Court of Criminal Appeals was not in a position to resolve the controverted issue without a prior evidentiary hearing. See id. at 243 (“Article 66(c) does not authorize a Court of Criminal Appeals to decide disputed questions of fact pertaining to a post-trial claim, solely or in part on the basis of conflicting affidavits submitted by the parties.”). Accordingly, we cannot affirm the findings or sentence in this case in its present posture.

II. PANEL SELECTION AND INEFFECTIVENESS OF COUNSEL

Because the issues involved in Issue I (alleged improprieties in the selection of court members) are closely related to the matters arising under Issue II, particularly with respect to the critical role played by the Base Chief of Staff, Colonel Murray, we also find that it is appropriate for these matters to be resolved in an evidentiary hearing. With respect to Issue III, regarding ineffectiveness of counsel during the sentencing phase, we conclude that the interests of judicial economy would be served by requiring that this issue also be addressed during the fact-finding proceedings required by our disposition of Issues I and II.

III. CONCLUSION

The decision of the United States Navy-Marine Corps Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Navy for factfinding proceedings consistent with this opinion. Thereafter, Articles 66 and 67, UCMJ, 10 USC §§ 866 and 867 (1994), will apply. In the event that an appropriate convening authority concludes that such proceedings are impracticable, the convening authority may set aside the findings and the sentence and return the case to a special court-martial convening authority for appropriate disposition under RCM 401.

1 . The earlier referral to a special court-martial, however, was not disclosed at the time of the general court-martial. Trial counsel at the general court-martial represented on the record that the charge had not been referred to any other court. Possibly, this incorrect representation explains why no reasons for the withdrawal and later re-referral were included in the record. See Discussion, RCM 604(b). We note that the trial counsel who inaccurately asserted that there had been no prior referral was the same officer who earlier had recommended that the special court-martial convening authority reconsider the initial referral to a special court-martial.

2 . With respect to a warrant officer, a special court-martial is not empowered to adjudge either confinement or a punitive separation. See RCM 1003(c)(2)(A)(ii) and (iv).

3 . In the face of the order of events leading to Colonel Christy's withdrawal of the original charge from the special court-martial convened by him, our dissenting colleagues treat this issue as one affecting "the preferral and forwarding process, not the referral.” 52 MJ at 38. There is no dispute, however, that Colonel Christy already had referred the original charge to a special court-martial and then withdrew that charge before he forwarded it for investigation under Article 32. The issue before us is his motivation in that withdrawal decision. The dissenters’ reliance on "the waiver rule announced by this Court in” United States v. Hamilton, 41 MJ 32 (CMA 1994), is misplaced, because that rule applies only to defects in the preferral and forwarding processes of a case. 52 MJ at 38. Indeed, the majority in Hamilton squarely recognized that "[u]nlawful command influence at the referral, trial, or review stage is not waived by failure to raise the issue at trial." 41 MJ at 37.