United States v. Rice

16 M.J. 770, 1983 CMR LEXIS 832
CourtUnited States Court of Military Appeals
DecidedJuly 20, 1983
DocketCM 442855
StatusPublished
Cited by2 cases

This text of 16 M.J. 770 (United States v. Rice) is published on Counsel Stack Legal Research, covering United States Court of Military Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Rice, 16 M.J. 770, 1983 CMR LEXIS 832 (cma 1983).

Opinion

OPINION OF THE COURT

BADAMI, Judge:

Consistent with his pleas, appellant was convicted of assault thereby intentionally inflicting grievous bodily harm, indecent assault, and assault with intent to commit rape, violations of Articles 128 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 928 and 934 (1976). The military judge, sitting as a general court-martial, sentenced appellant to a dishonorable discharge, confinement at hard labor for four years, total forfeitures, and reduction to Private E-l.

Prior to appellant’s arraignment trial defense counsel questioned the military judge, Lieutenant Colonel Joe L. Woodward, regarding the judge’s involvement with appellant’s pretrial confinement. Appellant was placed in pretrial confinement on 1 April 1982. On 4 April 1982, defense counsel was appointed to represent appellant and formed an attorney-client relationship. On or about 8 April appellant was released from pretrial confinement by the military magistrate.

During voir dire Judge Woodward acknowledged that prior to the military magistrate’s final decision on whether to release appellant or keep him in pretrial confinement, he, the military judge, called the military magistrate. The call was made at the behest of Lieutenant Colonel B., the Mannheim Deputy Staff Judge Advocate and Captain G., the Chief of Criminal Law. These officers were concerned that appellant might be released from pretrial confinement and that their prior experience made them “leary” in that another similarly charged accused had committed more crimes upon his release. Judge Woodward thought these officers were justly concerned “about the possible danger to other individuals” and made the call to the military magistrate.

When speaking to the military magistrate, Judge Woodward asked the magistrate to take into consideration all the possible consequences of a release and the “harm to other individuals that might occur when people who are charged with having [772]*772committed serious offenses involving harm to other people are left [sic] out.” Judge Woodward then asked that the magistrate consider all the possible factors before making his decision. The magistrate was advised that the judge was not going to overrule his decision and that the decision to release the appellant from pretrial confinement would be his alone.

During voir dire Judge Woodward explained that he wanted to be sure that the military magistrate was doing the right thing and noted that while he had the authority to overrule a magistrate’s decision, he did not choose to do so and only choose to intervene when there were some exceptional circumstances. Once the judge determined that the magistrate had given the matter all the consideration he thought it deserved, the judge was willing to abide by the magistrate’s decision.

Appellant’s trial defense counsel introduced a memorandum for record, dated 23 May 1982, in which the defense counsel detailed what he knew of the telephone call. Appellant also introduced two letters. The first, a letter from another defense counsel, expressed concern that the same military judge, by chastising court members after sentencing for “leniency” in another case, had disqualified the panel and created a chilling effect on future court members. The second, a letter from a civilian attorney who had unsuccessfully attempted to have the military judge recuse himself in a previous court-martial for his admonishing prior panels because they gave what the military judge thought was too lenient a sentence. The writer of the latter letter, a civilian attorney, observed the judge and the court president in a rather lengthy, closed-door session. The attorney opined that the admonishments of which he had heard and his personal observations led him to believe that there was a “chilling effect” on jurors.

Appellant challenged Judge Woodward for cause based on the telephone call to the magistrate and the allegations contained in the letters referred to above which he argued evinced “a pattern of certain pro-prosecution bent.” Judge Woodward denied any such “bent” and assured defense counsel that in all cases he was just as interested in seeing that a person gets a fair trial as counsel or anyone. The military judge acknowledged that he was concerned that in some cases people convicted of felonies did not get adequate sentences. The judge opined that his feelings were neither unethical nor illegal; that there was no entitlement to a liberal, lenient judge sitting on every case and that he would not recuse himself for “some baloney like” the appellant’s grounds. The challenge was denied. Appellant was arraigned and he then pled guilty.

After the providence inquiry was completed and findings were entered, appellant was given the opportunity to decide whether he wished to be tried by judge alone or members. Appellant requested trial by a military judge alone. When asked whether he understood the earlier discussions regarding his defense counsel’s feeling about the judge’s impartiality and ethical misconduct, the appellant replied “yes sir.” Judge Woodward then recessed the court to consider whether to accept the appellant’s request. When the court was called to order, appellant again requested trial by military judge alone. Appellant acknowledged that he understood all the things discussed that morning and that the judge would make the sole determination as to what sentence would be adjudged. Judge Woodward stated that he was reluctant to approve the request, not because he had “any qualms about being able to adjudge a fair and impartial sentence ... but because he wanted to make absolutely sure that appellant, ... felt that he was getting an impartial determination as to the sentence and was not going to change his mind somewhere later down the line.” Appellant understood this explanation and upon specific questions by the military judge, agreed that he had no qualms about his request for sentencing by the military judge.

A ruling of a trial judge on a challenge for cause rests within the discretion of the trial judge and will not be disturbed on appeal unless there has been [773]*773an abuse of discretion. United States v. Wright, 47 C.M.R. 637 (A.F.C.M.R.1973). The burden of establishing the propriety and correctness of the challenge rests on the moving party. Paragraph 62h, Manual for Courts-Martial, United States, 1969 (Revised edition) (MCM 1969 (Rev)); United States v. Talbott, 12 U.S.C.M.A. 446, 31 C.M.R. 32 (1961); United States v. Russell, 43 C.M.R. 807 (A.C.M.R.1971). While the facts in this case do not show an abuse of judicial discretion in denying the challenge for cause, they do cause us concern.

Appellant argues that once counsel has been appointed, any consideration that can change a pretrial confinee’s status should be characterized as adversary. For this proposition he cites United States v. Malia, 6 M.J. 65 (C.M.A.1978). Malia has no application to this case. In Malia the accused had already been through an Article 32 investigation and had been released from pretrial confinement when the magistrate was approached ex parte with new information which ultimately caused the accused to be reconfined. Here, however, the magistrate had not made the initial determination of pretrial confinement, and there was no new information which the defense should have been given the opportunity to rebut.

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Bluebook (online)
16 M.J. 770, 1983 CMR LEXIS 832, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-rice-cma-1983.