United States v. McDonald

11 C.M.A. 506, 11 USCMA 506, 29 C.M.R. 322, 1960 CMA LEXIS 277, 1960 WL 4507

• Court: United States Court of Military Appeals
• Decided: June 3, 1960
• Docket: No. 13,716
• Status: Published

Opinions

Opinion of the Court

GEORGE W. LatimeR, Judge:

Accused was convicted by special court-martial for three unauthorized absences, in violation of Article 86, Uniform Code of Military Justice, 10 USC § 886, and one specification of disrespect toward his superior noncommis-sioned officer, contrary to Article 91 of the Code, 10 USC § 891. He was sentenced to bad-conduct discharge, forfeiture of $70.00 per month for six months, and confinement at hard labor for that same period. The convening authority approved except that he suspended execution of the punitive discharge with provision for automatic remission. Thereafter, the officer exercising general court-martial jurisdietion approved, and a board of review in the office of The Judge Advocate' General of the Navy affirmed. We granted accused’s petition for review on the single following issue:

“Whether the president was present and/or participated in the closed' session during the voting on the challenge for cause directed against the' said president.”

The facts relating to this issue are simple. After the court had been convened, defense counsel challenged the president on the ground that he had been a court member at a previous trial of accused. After a brief interchange, the court was closed and a vote taken and announced. The following extract -from the trial record discloses the pertinent proceedings:

“PRES: Reporter, in answer to the defense counsel’s challenge for cause and based upon paragraph 62f(13) line thirteen, the court will be closed and the next senior member will take a vote on the challenge for ■cause.

“PRES: The court will come to order. All manuals and other legal ■treaties [sic] were removed from the ■courtroom when the court closed.

“TC: All persons who were present when the court closed are again present.

“PRES: The court in closed session ■and upon secret written ballot with the majority vote, voted to have Captain HlLDERBRANDT as senior member •of this court. The rights of the accused were no way prejudiced by having Captain HildeRbrandt sit on the ■court-martial which occurred approximately four months ago. The president named in the appointing order will continue to sit as president on this court-martial.”

It would be patent error for the ■senior appointed member of the court-martial to be present and participate in the closed session on the challenge against him. United States v Stewart, 2 USCMA 78, 6 CMR 78. At worst, however, the record of trial is ■only somewhat ambiguous in this regard. First, we note that the record indicates awareness by the trial participants of the proper method of proceeding, in that the court was to be closed and a vote taken by the next ■senior member. Moreover, the presumption of regularity would ordinarily •dictate that the correct procedure was followed, and this conclusion is bolstered by the fact that accused’s two defense counsel, who were present and observed the closing and opening of ■court, registered no objection. And that same conclusion is compelled by the record before us on appeal. After we concluded the matter bore inquiry and stated the issue, appellate defense counsel, with commendable candor, furnished this Court with the affidavits of all the court members save the challenged president, and those of trial counsel, defense counsel and the assistant defense counsel. With the exception of the last mentioned individual, each affiant categorically declares that the president was not present nor did he participate in the closed session on the challenge for cause directed against him. The appointed assistant defense counsel avers that he cannot remember and prefers not to make any statement. Under such circumstances, it is clear beyond question that the affidavits support the presumption of regularity and clear up any uncertainty. Accordingly, we must resolve the granted issue adversely to the accused. Cf. United States v Solak, 10 USCMA 440, 28 CMR 6.

The decision of the board of review is affirmed.

Chief Judge Quinn concurs.