United States v. Hedges

11 C.M.A. 642, 11 USCMA 642, 29 C.M.R. 458, 1960 CMA LEXIS 255, 1960 WL 4531

• Court: United States Court of Military Appeals
• Decided: July 8, 1960
• Docket: No. 13,778
• Status: Published

Opinions

Opinion of the Court

ROBERT E. Quinn, Chief Judge:

In the early morning of October 21, 1958, the nude and mutilated body of Helen Peoples was found in an alley in Waikiki Beach, Hawaii. An autopsy showed that the decedent had been strangled to death with one of her undergarments. There were numerous bruises about the face and body and several fractured ribs and a fractured jaw. A police investigation ultimately led to the accused and he was brought to trial before a general court-martial on a charge of premeditated murder. After a trial of thirteen days the accused was found guilty of the charge and sentenced to life imprisonment and a dishonorable discharge. The conviction was affirmed by the convening authority and the record of trial was forwarded to a board of review in the West Coast office of The Judge Advocate General.

By a divided vote, the board of review set aside the conviction. Considering a combination of two of twelve errors assigned by appellate defense counsel, a majority of the board of review concluded that the composition of the court-martial was such as to give the distinct appearance that the members were “hand-picked” by the Government. Pursuant to the provisions of Article 67 (b) (2) of the Uniform Code of Military Justice, 10 USC § 867, The Judge Advocate General of the Navy asked this Court to review the correctness of the board of review’s decision. The issues upon which review is sought are as follows :

“ (1) Was the Board of Review correct in ordering a rehearing as a result of the law officer's action in denying the motion for a change of venue and the motion for a mistrial based on the voir dire examination of the members of the court;

“(2) Did the law officer abuse his discretion in admitting in evidence Prosecution Exhibits 14, 15 and 18;

“(3) Did the law officer err in refusing to instruct the court on the offense of voluntary manslaughter.”

The court-martial which was convened to try the accused was composed of nine officers. The duty assignments of seven of the members were summarized by the board of review as follows;

“(1) A permanent president for the Naval District general courts-martial of about two years standing, who was likewise a qualified lawyer and past board of review member.

“(2) The Provost Marshal of the Marine Corps Air Station, Kaneohe, Oahu, T. H.

“(3) The Provost Marshal for the Naval District and the Hawaiian Sea Frontier.

“(4) The Inspector General for the Naval District and the Hawaiian Sea Frontier.

“(5) The Executive Officer of the Marine Barracks which was responsible for the operation of the brig wherein the accused was confined.

“(6) A member of an Inspection and Survey Board which operated within the command.

“(7) The Assistant for Naval Base Matters on the Naval District staff.”

The remaining two members were, respectively, the Civilian Personnel Officer of Headquarters Hawaiian Sea Frontier and 'the Operations Officer, Fleet Weather Control.

Reviewing the effect of certain skills and duty assignments upon competency to set as a court member, the board of review below observed that this Court has previously held that neither a lawyer nor a provost marshal is per se disqualified. United States v Glaze, 8 USCMA 168, 11 CMR 168; United States v Stewart, 2 USCMA 78, 6 CMR 78. It extended the rationale of those cases to inspectors general, brig personnel, and “even those having assigned duties as members of the personal staffs of convening authorities.”¹ However, the board of review went on to point out that this Court cautioned against the “obvious dangers” in the use of a lawyer on a court-martial, and that we emphasized that “any deviation from the limited role of member in the direction of the more stimulating position of untitled law officer” would result in disqualification and necessitate his removal. United States v Sears, 6 USCMA 661, 666, 20 CMR 377. Consideration of several matters developed in the voir dire of the court members led the board of review to conclude that the appearance of a hand-picked court was too strong to be ignored. We agree with the board of review. Since the circumstances speak eloquently for themselves, we think it sufficient to detail them as presented by the board of review.

“B. Among matters developed during voir dire examination of the court members, were disclosures:

“(a) That the Marine provost marshal officer, as a police officer, had read with interest newspaper reports, including a statement purportedly made by the accused, and, after having discussed the case with several officers, though no opinions were voiced; and a further statement from such member that ‘one always entex*-tains the thought, where there’s smoke there’s fire.’

“(b) That the Navy provost marshal officer was in charge of the Base police, and that he had acquaintances in the Honolulu Police Department whom he met at regular monthly meetings of all Island provost marshals to which the Honolulu police (who initially investigated the case) sent representatives.

“(c) That the Inspector General admitted he was under the direct supervision of the convening authority as a ‘watch dog’ on the state of discipline within the command.

“(d) That one of the court members stated that if three qualified experts testified that, in their opinion, an accused was mentally competent and one such expert testified that such accused was mentally incompetent, he would apply the majority rule in weighing the evidence.

“(e) That the president of the court (a lawyer) didn’t consider a plea of temporary insanity appropriate in a case involving a charge of premeditated murder, because he considered premeditated murder something that took a long time to do and temporary insanity would ‘generally be out of place in an offense of that type of thing.’

“C. The president of the court [interceded, apparently as a lawyer], during voir dire examination of the members thereof, . . . [and] attempted to rehabilitate the testimony of . . . [a] member ... in the following manner:

‘Law OFFICER: Any question by any member of the Court?

‘PRESIDENT: Yes, I’d like to ask a question. You stated that when you began that you’d abide by the majority opinion of these specialists. Say that the majority opinion weren’t as convincing as the minority. The minority would be overwhelmingly convincing. Would you or would you not still be bound by the majority rule? In other words, the minority man was very convincing.

‘A. [Member] The opinion has to be yes or no, you can’t have any opinion maybe. So if the opinion is yes on the one hand and no on the other and the majority says no, I’ll go with the majority. (Emphasis supplied)

‘PRESIDENT: Even in spite of the fact that the minority is better reasoned and very convincing?

‘A. Now you’re bringing in reasons again.

‘PRESIDENT: That’s exactly what I mean.

‘A. If the reasons would enter into it, and the psychiatrists have gone through the same course of studies and did the same ampunt of years, they’d get to the reasons practically the same as everyone else does.

‘PRESIDENT: Then you would not be bound by your majority?

‘A. Not bound by either reasoning or majority, but principally I’ll go by the majority if the reasoning is pretty much similar.’ (Emphasis supplied)”

The first certified question is answered in the affirmative. This answer makes it unnecessary to consider the other two issues, and appellate defense counsel’s motion to dismiss them because they were not passed upon by the board of review is moot. The decision of the board of review is affirmed.

Judge FeRGUSON concurs.

1 We express no opinion on the validity of the board of review’s conclusion. Also it is unnecessary for us to consider whether a court-martial composed entirely of personnel engaged in law enforcement work, or in staff operations for the convening authority, itself gives the appearance of a packed coui’t. Cf. United States v Deain, 5 USCMA 44, 17 CMR 44, concurring opinion by Judge Latimer.