United States v. Mason

16 M.J. 455, 1983 CMA LEXIS 16373

• Court: United States Court of Military Appeals
• Decided: November 21, 1983
• Docket: No. 43,210; CM 440976
• Status: Published

Opinions

Opinion of the Court

PER CURIAM:

In February 1981, at Mainz-Gonsenheim, Germany, appellant was tried by general court-martial for numerous offenses against the Uniform Code of Military Justice. Contrary to his pleas, he was found guilty of one specification each of resisting lawful apprehension; assault on a military policeman; and wrongful appropriation of a motor vehicle; as well as the wrongful possession, sale, and transfer of heroin on two separate occasions and the wrongful possession of diazepam, in violation of Articles 95, 128, 121, 134 and 92, UCMJ, 10 U.S.C. §§ 895, 928, 921, 934, and 892, respectively. He pleaded guilty to and was found guilty of a second specification of resisting lawful apprehension, in violation of Article 95, UCMJ, 10 U.S.C. § 895. The members of this general court-martial sentenced appellant to a dishonorable discharge, confinement for 17 years, total forfeitures, and reduction to the lowest enlisted pay grade. The convening authority disapproved the findings of guilty of wrongful appropriation of a motor vehicle, and reduced the confinement to 15 years, but otherwise approved the findings of guilty and the sentence adjudged by the court-martial. The United States Army Court of Military Review affirmed his action in a memorandum opinion.

This Court granted review in appellant’s case on the following two issues:

I

WHETHER TRIAL COUNSEL COMMITTED PREJUDICIAL ERROR BY ARGUING THAT THE COURT MEMBERS COULD INCREASE APPELLANT’S SENTENCE SOLELY BECAUSE THE FINDINGS OF GUILTY ESTABLISHED THAT THE APPELLANT HAD LIED UNDER OATH, AND WHETHER THE MILITARY JUDGE ERRED IN INSTRUCTING THE COURT MEMBERS THAT THEY COULD AGGRAVATE THE APPELLANT’S SENTENCE IF THEY FOUND THAT HE HAD LIED UNDER OATH.

II

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY DENYING APPELLANT’S CHALLENGE OF LTC SKLAR FOR CAUSE.

We have examined the record of trial in light of the assigned errors and conclude that they are without merit.

In regard to the first granted issue, we note that appellant’s case was tried after the decision of the Supreme Court in United States v. Grayson, 438 U.S. 41, 98 S.Ct. 2610, 57 L.Ed.2d 582 (1978), but before the decisions of this Court in United States v. Cabebe, 13 M.J. 303 (1982); United States v. Warren, 13 M.J. 278 (1982), and United States v. Beaty, 14 M.J. 155 (1982). Accordingly, we have examined the argument of trial counsel and the instructions of the military judge to see if “the possibility [existed] that appellant’s sentence reflected punishment for ... [his purportedly] false testimony itself.” See United States v. Beaty, supra at 156. The limited nature of trial counsel’s remarks¹ and the military judge’s instructions,² viewed in their entirety, convince us that, although appellant received a stiff sentence, it was not imposed as a result of the members’ improper consideration of this matter.

The second granted issue we also find to be without merit. The military judge did not deny this challenge for cause simply because Lieutenant Colonel Sklar said he would treat all the witnesses equally. Cf. United States v. Harris, 13 M.J. 288, 291 (C.M.A.1982). Instead his decision³ was based on a careful evaluation of the manner in which this disclaimer was made. Id. We note that prior to reaching this decision, he explored in depth the challenged member’s association with the government witness, explained in detail the standard of impartiality required of a court member,⁴ and questioned the member about his ability to meet this standard. In the absence of other circumstances in this case showing or implying bias (cf. United States v. Harris, supra at 292), we hold that the military judge did not abuse his discretion in denying this challenge for cause. See United States v. Boyd, 7 M.J. 282 (C.M.A.1979); United States v. McQueen, 7 M.J. 281 (C.M.A.1979).

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

1 . Trial counsel specifically argued that this matter be considered in determining an appropriate sentence to rehabilitate appellant. Cf. United States v. Warren, 13 M.J. 278, 279-280 (C.M.A.1982).

2 . The military judge instructed inter alia:

Your determination of the kind and amount of punishment, if any, is a grave responsibility requiring the exercise of wise discretion. Although you must give due consideration to all matters in mitigation and extenuation, as well as the facts surrounding the offenses, you must bear in mind that the accused is to be sentenced only for the offenses you have found him guilty of committing.

If you find beyond a reasonable doubt that PFC Mason, while under oath today, and yesterday — it should be yesterday, made a material false statement that he did not then believe to be true, you may consider this as a matter in aggravation in determining an appropriate sentence. PFC Mason does not have the right to make such a false statement to effect a determination of guilt or innocence.

You should consider all of the matters in extenuation and mitigation and all of the circumstances surrounding the offenses that you found the accused guilty of. Consider the fact that he’s married, and how long he’s been in the service. Consider a sentence to fit PFC Mason. His background, his education, his training, his family, and you have the 2 and 2-1 in front of you. Consider possibilities for rehabilitation and reform.

3 . The military judge stated:

I am going to deny the challenge for cause. Colonel Sklar gave his honest reaction to the questions that were posed to him. Once I instructed him as to his duties in the case, he indicated that he would treat all witnesses equally, and I think his sincerity was shown by the answers that he gave after that, even as to the questions of a direct contradiction between the accused and Sergeant DeCamp. Any other challenge for cause?

4 . The military judge also instructed the members prior to findings that they “should carefully scrutinize ... every matter in evidence which tends to indicate whether the witness is .worthy of belief.”