United States v. Maxfield

20 C.M.A. 496, 20 USCMA 496, 43 C.M.R. 336, 1971 CMA LEXIS 676, 1971 WL 12791

• Court: United States Court of Military Appeals
• Decided: April 16, 1971
• Docket: No. 23,366
• Status: Published

Opinions

Opinion of the Court

Quinn, Chief Judge:

Rated “exceptional” in the performance of duty and the recipient of a Bronze Star for heroism in combat, the accused was involved in an incident in a village in the Republic of Vietnam, which led to his conviction by a general court-martial of assault upon Tang Thi Cue, with intent to commit rape, and the performance of an indecent act upon another female under sixteen years of age, in violation of Article 134, Uniform Code of Military Justice, 10 USC § 934. On this appeal, he advances two reasons for reversal of the conviction.

One assignment of error alleges the accused was denied due process because trial counsel did not disclose that the testimony of Private First Class Kerr, described as a “key government witness,” had been obtained by means of a grant of immunity from prosecution. See Brady v Maryland, 373 US 83, 10 L Ed 2d 215, 83 S Ct 1194 (1963), and United States v Miller, 411 F2d 825 (CA2d Cir) (1969). In an affidavit obtained as a result of this appeal, trial counsel indicated that before trial he and defense counsel had “discussed the grant of immunity many times.” The representation is undisputed. It follows that the assignment of error is ill-founded.

A second assignment of error charges that “various actions” by the convening authority, General, Gettys, “cast substantial doubt” upon his impartiality and disqualified him from reviewing the conviction. We need only concern ourselves with one action, that relating to Private First Class Kerr.

On December 7, 1968, Kerr made a sworn statement which was very damaging to the accused. On December 12th, two days before trial, Kerr was granted immunity by Brigadier General Cooksey, who had assumed command of the division because General Gettys had temporarily left the country.¹ General Gettys returned, and resumed command, in time to review the accused’s record of trial. In the post-trial advice, the staff judge advocate pointed out that Kerr was an accomplice and his testimony was of “questionable integrity” and had to be “considered with great caution.” He also noted that Kerr had been granted immunity by General Cooksey, as acting division commander during General Gettys’ absence. His comments on the effect of the latter circumstance are as follows:

“. . . You were out of country at the time of this grant and took no part in its acceptance. However, if the fact that the Division Staff Judge Advocate recommended and the Acting Division Commander tendered such a grant has caused you to form a preconceived opinion as to the credibility of Kerr’s testimony, you can not act as convening' authority. If you have formed any such preconceived opinion, it will be necessary for you to advise me of this fact so that another convening authority can accept jurisdiction.”

Appellate defense counsel contend that, since General Cooksey was subordinate to General Gettys and had only temporarily succeeded to command, he was merely General Gettys’ “surrogate,” and, as such, should be presumed to have taken “only such actions as he believ[ed] would be desired by his boss”; that, in turn, General Gettys, as Cooksey’s superior, was not likely “to overrule actions taken for him . . . by his subordinate.”

Succession to command, whether temporary or permanent, confers upon the commander all the authority and responsibility of the office. United States v Williams, 6 USCMA 243, 19 CMR 369 (1955); United States v Bunting, 4 USCMA 84, 15 CMR 84 (1954); see also Manual for Courts-Martial, United States, 1969 (Revised edition), paragraph 84a. On the basis of my reading of the record, I would conclude that General Cooksey did not act merely as he imagined General Gettys would have wanted him to act, but rather as his own judgment indicated he should act, and that General Gettys’ review was not improperly influenced by General Cooksey’s action in the case. However, my brothers believe that, in the circumstances, it is asking too much of “human behavior” to expect General Gettys to be wholly free of the influence of General Cooksey’s action, especially since such action comported with other action that he had himself taken. United States v Keith, 3 USCMA 579, 583, 13 CMR 135 (1953). They conclude, therefore, that General Gettys should not have reviewed the record of trial. See Manual for Courts-Martial, United States, 1969 (Revised edition), paragraph 84c.

The decision of the United States Army Court of Military Review is reversed. The record of trial is returned to the Judge Advocate General of the Army for reference to another competent general court-martial authority for a new review under the provisions of Articles 60 and 61, Code, supra, 10 USC §§ 860 and 861, respectively.

Judge ÜARDEN concurs.

1 Earlier, General Cooksey had constituted a new court-martial to try the accused’s case. This action was apparently taken because Townsend had been tried by the court-martial to which the charges had been previously referred by General Gettys.