United States v. Small

21 M.J. 218, 1986 CMA LEXIS 19527

• Court: United States Court of Military Appeals
• Decided: January 13, 1986
• Docket: No. 51108; NMCM 84-1513
• Status: Published

Opinions

Opinion of the Court

COX, Judge:

This case concerns the propriety of a defense voir dire question directed to the military judge, which the judge declined to answer. 19 M.J. 272. We conclude that the question was improper; accordingly, we affirm.

I

Appellant pleaded guilty to one specification of unauthorized absence, in violation of Article 86, Uniform Code of Military Justice, 10 U.S.C. § 886. He was sentenced by the military judge sitting alone as a special court-martial to a bad-conduct discharge, confinement at hard labor for 35 days, partial forfeitures for one month, and reduction to the lowest enlisted pay grade. The convening and supervisory authorities approved these results.

Prior to the time for challenges and selection of the mode of trial, defense counsel asked the military judge if he thought the offense — a 657-day unauthorized absence — necessitated a discharge from the naval service. The judge responded that the question was improper as it did not relate to his “qualifications” to sit as a military judge. Therefore, he declined to answer it. The defense then “withdrew” the question and, ultimately, elected trial by judge alone. The Court of Military Review, in an unpublished opinion, affirmed the findings and sentence on the grounds that, by failing to exercise various other options, such as asking additional questions, formally challenging the judge for cause, or electing trial by members, appellant waived any error.

II

The granted issue, as framed by appellant, is:

WHETHER THE MILITARY JUDGE COMMITTED PREJUDICIAL ERROR WHEN HE REFUSED TO ALLOW TRIAL DEFENSE COUNSEL TO VOIR DIRE THE MILITARY JUDGE THEREBY DENYING APPELLANT THE OPPORTUNITY TO DEVELOP POSSIBLE GROUNDS FOR CHALLENGE AGAINST THE MILITARY JUDGE.

The Manual for Courts-Martial in effect at the time of appellant’s court-martial contemplates that “counsel may question ... the military judge concerning the existence or nonexistence of facts which may disclose a proper ground of challenge for cause.” Para. 626, Manual for Courts-Martial, United States, 1969 (Revised edition). Among the grounds listed for such challenges are: “[a]ny other facts indicating that he should not sit as a ... military judge in the interest of having the trial and subsequent proceedings free from substantial doubt• as to legality, fairness, and impartiality.” (Emphasis added). Id. at 62/(13). Fairness and impartiality as to sentencing have long been recognized as critical ingredients of military justice. See United States v. Tippit, 9 M.J. 106, 107-08 (C.M.A. 1980); United States v. Deain, 5 U.S.C.M.A. 44, 49, 17 C.M.R. 44, 49 (1954). Thus, whether the trial judge would be able to be fair and impartial in sentencing relates as much to his “qualifications” as, for example, whether he would “be a witness for the prosecution.” See para. 62/(4), Manual, supra. Accordingly, the military judge construed the scope of proper voir dire too narrowly.

Our reason for affirming the case, however, has to do more with the form of the question. As we interpret the Manual, counsel are free, if they deem it advisable, to ask military judges such questions as, whether they have predetermined the sentence, whether they can keep open minds until all the evidence has been presented, and whether they will give due consideration to the extenuating and mitigating evidence. Counsel do not have a right, however, to extract commitments from judges¹ as to what they will ultimately decide.² Cf. Briley v. Bass, 584 F.Supp. 807, 818 (E.D.Va.), aff'd., 742 F.2d 155 (4th Cir.1984); Wolfe v. Nash, 205 F.Supp. 219, 225 (W.D.Mo.1962), aff'd., 313 F.2d 393 (8th Cir.), cert. denied, 374 U.S. 817, 83 S.Ct. 1713, 10 L.Ed.2d 1041 (1963); State v. Bracey, 303 N.C. 112, 277 S.E.2d 390, 395 (1981); State v. Ward, 569 S.W.2d 341, 344 (Mo.App.1978); Kephart v. State, 93 Okl.Cr. 451, 229 P.2d 224, 229 (Okla.Crim.App.1951). Accordingly, we find no error in the trial judge’s declining to answer the question.

The decision of the United States Navy-Marine Corps Court of Military Review is affirmed.

1 . The logic applies equally to court members. But see, e.g., United States v. Heriot, 21 M.J. 11 (C.M.A.1985); United States v. Cleveland, 15 U.S.C.M.A. 213, 216, 35 C.M.R. 185, 188 (1965).

2 . Such questions are not analogous to asking jurors if they are opposed to voting against the death penalty regardless of the facts. See Wainwright v. Witt, — U.S. ---, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985); Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339 (1976); Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).