United States v. Herrington

8 M.J. 194, 1980 CMA LEXIS 13761

• Court: United States Court of Military Appeals
• Decided: January 21, 1980
• Docket: No. 35,010; CM 434581
• Status: Published

Opinions

Opinion of the Court

per CURIAM:

Two of the three issues upon which the Court granted accused’s petition for review have since been decided adversely to his contentions. The first relates to the general qualification of a commanding officer to authorize a search; United States v. Ezell, 6 M.J. 307 (C.M.A.1979), rejected per se disqualification. The second invited reexamination of United States v. Evans, 21 U.S.C.M.A. 579, 45 C.M.R. 353 (1972), where the Court upheld the admissibility of a laboratory report as to the nature of a substance submitted for analysis; that holding was reaffirmed in United States v. Strangstalien, 7 M.J. 225 (C.M.A.1979). Accused’s third assignment of error challenges the right of a court member to sit as such for trial of the charges because he had previously been “excused” by the convening authority. We now decide that issue against the accused.

As authorized by Article 39(a),¹ the trial judge held a hearing without the detailed court members to dispose of various preliminary matters, such as accused’s understanding of his right to counsel and a defense motion to suppress evidence alleged to have been illegally obtained. Certain testimony on the motion to suppress convinced the trial judge and counsel that two court members were subject to challenge for cause. As a result, the judge inquired about other court members, and was informed by trial counsel that, because of a joint Army and Air .Force exercise that “began here today,” Lieutenant Colonel Bennett, the senior member detailed to the court, had been “excused by the convening authority.” Two days later, the court was called to order with the court members. Colonel Bennett was present.

No one challenged Colonel Bennett’s right to sit on the court. He was sworn with the other members, and examined with them for possible disqualification. No ground of disqualification appeared, and he' was not challenged, either peremptorily or for cause.

Appellate defense counsel contend that once excused a court member cannot sit unless he is again appointed to the court by the convening authority. In their view, an excused absence by the convening authority is equivalent to removal from the court. Article 29, UCMJ, 10 U.S.C. § 829, implies the contrary.

In pertinent part, subdivision (a) of Article 29 provides that a court member “may be absent or excused” for specified reasons. One reason is “by order of the convening authority.” Subdivision (b) indicates the effect of the nonpresence of a member upon the trial proceedings of a general court-martial. Specifically, it provides that if the absence of a member reduces the number of court members present below five, “the trial may not proceed” unless a new person is detailed to the court by the convening authority. The manifest inference is that if a new member is not detailed, trial must be adjourned until the absent or excused member becomes available.

The inference of Article 29 is stated as fact in a discussion of the subject in the Manual for Courts-Martial, United States, 1969 (Revised edition). Paragraph 37c (2) observes that a member can be excused for a particular case or session of the court, without being relieved “permanently.” Nevertheless, relying upon United States v. Harnish, 12 U.S.C.M.A. 443, 31 C.M.R. 29 (1961), appellate defense counsel contend that an “excused” member cannot sit unless “some affirmative action” is taken to reappoint him as a member. Harnish does not support the contention. There, two persons who had never been detailed to the court-martial that tried the accused’s case sat as members of that court. They had been detailed to a court to which the charges had previously been referred for trial, but that reference had been negated by proper withdrawal of the charges from that court. Here, Colonel Bennett was unquestionably detailed to the court-martial that tried the accused, and, as far as the record shows, he was never thereafter removed. We conclude, therefore, that, unlike the persons in Harnish, Colonel Bennett was not an interloper on the trial court, and that the court, with Colonel Bennett sitting as a member, was properly constituted.

The decision of the United States Army Court of Military Review is affirmed.

1 . Article 39(a), Uniform Code of Military Justice, 10 U.S.C. § 839(a).