United States v. Keithan

1 M.J. 1056, 1976 CMR LEXIS 657

• Court: U.S. Navy-Marine Corps Court of Military Review
• Decided: December 6, 1976
• Docket: NCM 76 0410
• Status: Published

Opinions

MURRAY, Senior Judge:

This case was previously before the Court (United States v. Keithan, No. 76 0410 (N.C.M.R. 29 March 1976)) and was returned to the supervisory authority for further action under Article 65(b), UCMJ, 10 U.S.C. § 865(b), principally due to the inadequacy of the staff judge advocate’s review with respect to a lack of discussion of an affirmative defense raised at trial.

The record is once again before the Court, and while we find that the matter still has not been fully explored on the subsequent review, a determination can be made on the record without returning the case for any further action.

At trial, the appellant defended upon the grounds of a lack of knowledge that he wrongfully possessed the drug in question (marijuana), which the evidence of record indicates belonged to another person who was a passenger in the vehicle of the appellant. The issue is far broader than mere knowledge, however, since it runs to actual or constructive possession in addition to the knowledge question. As Senior Judge Evans pointed out in the previous opinion of this Court:

“. . . ‘possession’ means more than being where the action is; it involves the exercise of dominion and control over the thing allegedly possessed; it is not enough to place him [the accused] in the presence of other persons having possession to impart possession to him.” United States v. Smith, 46 C.M.R. 926, 929 (N.C.M.R.1972).

While the testimony of one witness indicates that “on the day of trial” the appellant said he knew the marijuana belonged to one of his passengers, there is no evidence of record to show the appellant knew of the drug or its ownership “at the time” of its discovery through a highly questionable gate search and its subsequent seizure.¹ Assuming the worst position to the appellant, that is, that he did know that the drug was in the possession of the passenger while he (the passenger) was being transported in the appellant’s vehicle, the evidence of record remains sorely deficient in establishing that the appellant actually exercised or was able to exercise any dominion and control over the contraband at that moment. While there are conceivable circumstances under which possession could be imputed to the driver of a vehicle even though the contraband is physically possessed by a passenger, the possibility of such circumstance does not convince beyond a reasonable doubt in this case where the factual predicate is absent.

As the government concedes in its brief to this court, it is “necessary to rely on a myriad of small pieces” in order to accept the findings in this case. We have carefully examined and weighed the “myriad of small pieces” the government urges us to consider, but we find their persuasive effect to fall far short of conviction beyond a reasonable doubt. Accordingly, while I am in accord with much of the philosophy expressed by the learned Judge Dunbar on the search and seizure issue raised through the questionable outgoing gate search, I need not address that issue at this juncture, since proof beyond a reasonable doubt as to the wrongful knowing possession of the drug is not established by the evidence of record.

Accordingly, the findings and sentence are set aside, and the charge is dismissed.

Judge GREGORY concurs.

1 . We find the conduct of the military judge in this case as reflected in the record [R. 43] to be injudicious at best. The outburst directed at the witness, Cpl. W., was intemperate and smacks of an abuse of judicial decorum. Judges, not even military judges, may not pull military rank in the courtroom. If a witness is wrongfully refusing to testify or is guilty of other misconduct, there are appropriate judicial procedures available to resolve the problem. Threats as a military superior to a subordinate have no place in a court of law. We are further disturbed by the military judge’s assumption of the prosecutorial role at several points in the trial. [R. 16, 17, 18, 36, 37, 38, 39, 42, 43, 44, 45, 50]. Such abandonment of the judicial function could have, in itself, caused reversal of this case.