United States v. Millender

27 M.J. 568, 1988 CMR LEXIS 750, 1988 WL 114656

• Court: U.S. Army Court of Military Review
• Decided: October 28, 1988
• Docket: ACMR 8702272
• Status: Published

Opinion

OPINION OF THE COURT

KANE, Judge:

Contrary to his pleas, appellant was convicted by a general court-martial consisting of officer and enlisted members of larceny of government property, arson, and housebreaking in violation of Articles 121, 126, and 130 of the Uniform Code of Military Justice, 10 U.S.C. §§ 921, 926, and 930 (1982). His adjudged and approved sentence included a bad-conduct discharge, confinement for four years, forfeitures of all pay and allowances, and reduction to the grade of Private El.

Appellant now requests this court to set aside the findings and the sentence and authorize a rehearing thereon. He argues that the military judge abused his discretion by denying the defense’s challenge for cause against a court member. We disagree.

The basis of the challenge by appellant was that the court member, Sergeant Major (SGM) Clayborne Garrett, had been “tainted” as the result of two separate and improper contacts by SGM Garrett with members of the staff judge advocate (SJA) office during the course of the court-martial. Each occurrence was promptly reported to the military judge who immediately and thoroughly investigated the circumstances attending each incident. He determined in each instance that, considering the nature of the contact, the candor of the parties involved, and his first-hand observance and impressions of the witnesses, SGM Garrett had not been compromised.

The first improper contact occurred during a short break in the proceedings prior to findings. A brief and otherwise unremarkable conversation had been initiated by a Ms. Monica Ingram, employee of the SJA office.¹ No substantive matters relating to the court-martial were discussed.

The second occurrence which ultimately precipitated the unsuccessful challenge for cause occurred during a break following findings and prior to commencement of the sentencing phase of the trial. SGM Garrett inquired of a noncommissioned officer who worked as a legal clerk in the Criminal Law section of the SJA office, Staff Sergeant (SSG) Sharon Morgan, whether it would be possible to know the outcome of the “other sentence.” SSG Morgan apparently assumed that SGM Garrett was referring to the appellant’s first trial.² SGM Garrett testified that he was in fact referring to the sentence adjudged in the court-martial of appellant’s accomplice, Parrish.³ In any event, no responsive answer was given and SGM Garrett was not exposed to extrajudicial information which could have influenced the deliberations. Compare Untied States v. Witherspoon, 16 M.J. 252 (C.M.A.1983), with United States v. Davis, 19 M.J. 689 (A.C.M.R.1984). Accordingly, the military judge did not err in denying the appellant’s challenge for cause against SGM Garrett.

We have considered those matters personally asserted by the appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.1982), and find them without merit.

The findings and sentence are affirmed.

Senior Judge DeFORD and Judge WERNER concur.

1 . Ms. Ingram apparently recognized SGM Garrett as a sometime customer in her cousin's German tavern/hotel. His acquaintance with her was apparently as equally distant. Additionally, it appears that she was in fact the girlfriend of one of the principal government witnesses, Parrish. See note 3, infra.

2 . The accused had been previously tried, convicted, and sentenced for the offenses at hand, but, because of a jurisdictional defect, the trial was subsequently declared a nullity.

3 . Parrish, the accomplice of accused and a key prosecution witness against accused in the case at hand, had earlier been tried, convicted and sentenced by a general court-martial for the same offenses. Civilian defense counsel persistently attempted to portray Parrish as an opportunist who, with a testimonial grant of immunity, was merely attempting to better his chances for clemency action by the convening authority.