United States v. Reynolds

40 M.J. 198, 1994 CMA LEXIS 68, 1994 WL 508134

• Court: United States Court of Military Appeals
• Decided: September 15, 1994
• Docket: No. 93-0632; CMR No. S28520
• Status: Published

Opinions

Opinion

COX, Judge:

Appellant, while stationed at Soesterberg Air Base in the Netherlands, mailed two grams of marijuana in the form of hashish to his brother in the United States. Appellant pleaded guilty to one specification of distribution of hashish, in violation of Article 112a, Uniform Code of Military Justice, 10 USC § 912a. A special court-martial composed of officer members sentenced him to a bad-conduct discharge and reduction to the lowest enlisted pay grade. Following a post-trial session under Article 39(a), UCMJ, 10 USC § 839(a), addressing the possibility of unlawful command influence and juror misconduct, the convening authority approved the sentence. The Court of Military Review affirmed the findings and sentence in an unpublished opinion dated January 22, 1993.

We granted review to consider: (1) the possibility of command influence arising from the convening authority’s expression of dissatisfaction with past court-martial sentences in the presence of four potential members of appellant’s panel; and (2) the potential of command influence upon junior members of the court-martial panel by the actions of the president, who was present when the convening authority expressed his dissatisfaction with prior sentences.¹

FACTS

A Pretrial

After the military judge entered findings of guilty pursuant to appellant’s pleas and after the members assembled, trial counsel called the court’s attention to comments made at a morning briefing by the Commander of the 32d Tactical Fighter Group, who was the special court-martial convening authority. There were 15 to 20 people at the briefing, 4 of whom were potential members of the court-martial panel in appellant’s case. The staff judge advocate, Captain Michael D. Murphy, was present at the meeting and testified as follows:

We have a regular Group Standup at 0900 every morning. At this morning’s Standup, at 0900, the Commander of the 32d Tactical Fighter Group made some comments concerning court-martial membership. There were four of the court members on this court present in the room and I think it’s important to bring the— both the comments by the Commander as well as my response to those comments to the attention ... [of] the court, as well as the parties.

This morning the way the order of business goes in Standup is that the Commander will generally go around the table and when everyone else is finished speaking he will make comments on a variety of subjects. This morning the Commander said he wanted to make sure that everybody knew what his attitude was about service on court[s]-martial, that he was to an extent dissatisfied with the results of courts that occurred over the last couple of years. He then proceeded to talk about some thoughts about what his policy was, and at that point he — I sit at the other end of the table ... about eight feet away from the Commander. He looked down at me and said, “Now, stop me if I’ve gone too far,” and at that point I said, “Sir, you have gone too far, and let me add some comments, please.”

I then interrupted the Commander and said, “Sir, I think it’s important, and I think it’s important for everybody in the room to know that what the Commander expects when you’re appointed, or when you’re named to a court-martial panel, is that you will bring your common sense, knowledge of human nature and the ways of the world into the courtroom and nothing else.” I intentionally said those words because I knew that they would be instructions that the military judge would later give the court members.

I went on to say that when anyone is appointed to a court panel at Soesterberg Air Base that the Commander’s intention is that they should bring nothing short of full, fair and impartial integrity into the courtroom and make decisions based solely on what they hear in the courtroom. That was about the end of the discussion....

The military judge proceeded to question the four potential members who were present at the morning briefing. First, he called Major Smith, who recalled the statements of both the commander and Captain Murphy. Regarding the commander’s comments, Major Smith stated:

Personally I didn’t get any message from it. I have sat on a board before. I do have officers that work for me now that have never sat on one before and I took it in — to discuss, you know, sitting on a court and your responsibilities as a court member — with the junior officers that work for me. That’s how I took it. I didn’t take it in any other way.

Major Smith assured the judge she would not be influenced by the commander’s comments and that her decisions as a member would be made with a fair and open mind based on the evidence presented in court.

Next, the military judge called Major Schmidt. The judge asked Major Schmidt whether he thought the commander was sending a message to the potential members as to the results they should reach in this court-martial. Major Schmidt responded:

No, not at all. I — I don’t know how to say this except that I feel like military professionalism comes in here, that being appointed on the orders and stuff — to where, if I told these folks that I’m going to be fair and honest without any prejudice one way or the other, that’s what I intend to do. So, I don’t know how — you know, anything said to me, how that’s going to affect anything.

Like Major Smith, Major Schmidt asserted he could arrive at decisions based solely on the evidence presented in court.

Captain Kolenda also recalled the commander indirectly expressing dissatisfaction with the results of courts-martial in the past. When asked how the commander’s comments affected him, Captain Kolenda replied:

Well, I’ve come through this process several times. This is not my first court-martial and although I thought it was an inappropriate comment — this is my personal opinion — I didn’t feel like I was affected. I’ve been here three years. I know Colonel Hagelin [the Commander] fairly well. He is very direct about things. And I — you know, I — I knew where he was coming from, but I kind of shrugged it off. I just accepted that as — you know, that’s his— that’s his way. No, I did not — I don’t think I have any formed opinion, other than just the reaction of what he was saying.

Captain Kolenda testified that the commander’s remarks would not affect his performance of his duties as a fair and open-minded member.

Captain Ballard was the final member called for voir dire. He recalled the commander saying, in effect, that anyone involved with drugs in any way should be made “a civilian as soon as possible” and that generally, when someone is court-martialed, there are circumstances warranting discharge. Captain Ballard surmised the commander was trying to enforce “his personal drug policy.” Ballard testified:

I was surprised by the comments. I— after the announcement was made later that we were, in fact, going to be sitting on the court, I did think about it, and I thought — I don’t happen to share his opinion. I — I would hope that we could all come in here with an open mind and know that there are general policies, but ... each case might have different circumstances that would warrant, you know, the whole spectrum of punishment that we discussed — which goes from zero punishment all the way up to the maximum.

Captain Ballard, too, considered himself capable of making decisions solely based on the evidence presented in court.

There were no challenges for cause, but the defense exercised a peremptory challenge to excuse Captain Kolenda. The members of appellant’s court-martial panel ultimately sentenced him to a bad-conduct discharge and reduction to E-1.

B. Post-trial

Pursuant to RCM 1102, Manual for Courts-Martial, United States, 1984, a post-trial Article 39(a) session was held to investigate the possibility of unlawful command influence during sentencing deliberations. Captain John E. Taylor, who served as a member on appellant’s court-martial panel, testified that he felt the president of the panel, Major Smith, was “pushing ... for [a] particular sentence.” According to Captain Taylor, when Major Smith referred to another member of the court as “Captain,” it was clear her “tone of voice” was intended to impress upon the captain his inferiority in rank. Similarly, when one member discussed his view of an appropriate sentence, Major Smith accused him of “condon[ing] the use of drugs” in the Air Force. Captain Taylor thought Major Smith pressured the panel to reach a certain result, implying if they did not, they “were not doing [their] jobs.”

Following Captain Taylor’s testimony, defense counsel stated his client “would waive any further investigation and any finding that would result.” Although defense thought there might be “ample basis” to pursue the possibility of unlawful command influence, appellant declined further inquiry into the matter because of the possibility that, upon a rehearing, he could receive “confinement in lieu of the bad-conduct discharge.” Defense counsel stated his “client [did] not want to spend a day in prison.” Appellant’s wife was pregnant at the time of his court-martial, and he was eager to locate a house and secure a job to support his family.² The military judge found appellant “knowingly, and voluntarily, and consciously waived his right to any further investigation” into the possibility of command influence on his court-martial, his right to a finding by the military judge, and his potential right “to a sentence rehearing.” Thus, the military judge reached no conclusions as to the propriety of Major Smith’s alleged comments.

ISSUES

I

The first granted issue asks whether appellant’s sentence should be set aside because of the commander’s statement to the four potential panel members regarding his opinion of prior sentences. We agree with the Court of Military Review that the commander’s remarks were inappropriate.³ When the issue of command influence has been raised, we will go to great lengths to ensure beyond a reasonable doubt that the decisions of the members were not tainted by illegal command influence. United States v. Levite, 25 MJ 334, 338 (CMA 1987); United States v. Thomas, 22 MJ 388, 394 (CMA 1986), cert. denied, 479 U.S. 1085, 107 S.Ct. 1289, 94 L.Ed.2d 146 (1987). See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). However, there must be more than a mere appearance of evil to justify appellate action. United States v. Allen, 33 MJ 209, 212 (CMA 1991), cert. denied, — U.S. -, 112 S.Ct. 1473, 117 L.Ed.2d 617 (1992). Prejudice is not presumed. The issue of unlawful command influence must be alleged with particularity and substantiation. For an accused to be entitled to appellate action on his case, the unlawful influence must be the proximate cause of the unfairness of his court-martial. Each case should be considered on its own facts. 25 MJ at 341 (Cox, J., concurring).

Majors Smith and Schmidt, and Captains Kolenda and Ballard all testified that their decisions as members would not be influenced by the commander’s opinion of prior sentences, but they would arrive at decisions in appellant’s case solely on the basis of evidence presented at appellant’s court-martial. Moreover, appellant made no challenges for cause. Captain Kolenda was the only potential member excused, and he was excused by appellant’s peremptory challenge. The military judge instructed the members not to consider anything other than matters “admitted into evidence.” The members are presumed to have followed these instructions. United States v. Pollard, 38 MJ 41, 52 (CMA 1993), citing United States v. Ricketts, 1 MJ 78, 82 (CMA 1975). Moreover, having “waive[d] any further investigation and any finding that would result” on the ground that he did not want his sentence altered, appellant is not in a good position to argue that he was prejudiced as to sentence. We are not persuaded the commander’s comments proximately caused the members to award appellant a more severe sentence than he would otherwise have received. We are convinced, beyond a reasonable doubt, that appellant’s sentence was not tainted by undue command influence.

II

Next, we consider whether appellant’s sentence should be set aside because the president of the court-martial allegedly exerted superiority in rank during sentencing deliberations to increase appellant’s sentence. As noted, appellant affirmatively waived further inquiry and any findings or rulings on the matter during the Article 39(a) session. But cf. United States v. Sparrow, 33 MJ 139 (CMA 1991) (trial defense counsel failed to object but this Court did not apply the rule of waiver because of its special interest in the possibility of command influence). Unlike the preceding issue, however, it is not even clear that Major Smith’s alleged comments exceeded the bounds of that open and robust expression of opinion expected of court-members. In any event, appellant’s express and voluntary waiver precluded further inquiry. Under these circumstances, we are satisfied beyond a reasonable doubt that appellant has suffered no prejudice as to his adjudged sentence.

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

Judge CRAWFORD concurs.

1 . The granted issues are:

I

WHETHER THE SENTENCE SHOULD BE DISAPPROVED BECAUSE THE CONVENING AUTHORITY'S STATEMENTS, MADE WHILE THE COURT WAS HOLDING AN ARTICLE 39(A) SESSION AND IN THE PRESENCE OF FOUR OF THE COURT MEMBERS, EXPRESSING HIS DISSATISFACTION WITH THE RESULTS OF PRIOR COURTS-MARTIAL AT SOESTERBERG AB INFUSED UNLAWFUL COMMAND INFLUENCE INTO THIS CASE.

II

WHETHER THE SENTENCE SHOULD BE DISAPPROVED BECAUSE THE PRESIDENT OF THE COURT-MARTIAL, WHO HAD BEEN SUBJECTED TO COMMENTS OF THE CONVENING AUTHORITY REGARDING HIS DISSATISFACTION WITH THE RESULTS OF RECENT COURTS-MARTIAL, EXERTED SUPERIORITY OF RANK IN THE SENTENCING DELIBERATIONS TO INCREASE THE SEVERITY OF APPELLANT'S SENTENCE.

2 . When the military judge asked appellant why he chose not to "pursue the matter” of potential command influence and "run the risk of a rehearing” on sentence, appellant responded:

Well, Your Honor, I’ve been getting my resumes together, and, like I said, my life has been on hold for the last four months. And with my wife being pregnant, I can’t do her any good in jail, and at E-l pay I can’t very well support us. And I need to find a house, I need to find a job, and that right now is my most important issue.

3 . Article 37(a), Uniform Code of Military Justice, 10 USC § 837(a), states:

No authority convening a general, special, or summary court-martial, nor any other commanding officer, may censure, reprimand, or admonish the court or any member, military judge, or counsel thereof, with respect to the findings or sentence adjudged by the court, or with respect to any other exercise of its or his functions in the conduct of the proceeding. No person subject to this chapter may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to his judicial acts. The foregoing provisions of the subsection shall not apply with respect to (1) general instructional or informational courses in military justice if such courses are designed solely for the purpose of instructing members of a command in the substantive and procedural aspects of courts-martial, or (2) to statements and instructions given in open court by the military judge, president of a special court-martial, or counsel.