United States v. Soriano

15 M.J. 633, 1982 CMR LEXIS 751
U.S. Navy-Marine Corps Court of Military Review·Decided December 28, 1982·No. NMCM 82 0666·Published·Cited by 2 cases

Opinion

MICHAEL, Judge:

Appellant was tried by general court-martial, by a court composed of officer members, on 3 and 15 May 1981 and on 11, 16, 22 and 23 June 1981 for violating Articles 85 and 131, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 885, 931. Contrary to his pleas, appellant was found guilty of Charge I, one specification alleging a violation of Article 86, UCMJ, 10 U.S.C. § 886, and Charge II, two specifications alleging violations of Article 131, UCMJ, 10 U.S.C. § 931. Appellant was sentenced to be confined at hard labor for one year, to forfeit all pay and allowances, to be reduced to pay grade E-l, and to be discharged from the service with a bad-conduct discharge. On 25 September 1981, the convening authority approved the findings of guilty and the sentence as adjudged.

At the first preliminary Article 39(a), UCMJ, 10 U.S.C. § 839(a) session of appellant’s trial, the military judge indicated that there may be grounds for challenge against him and invited voir dire and/or challenges. (R. 5). The record of trial reveals that the military judge was also the military judge who presided over the special court-martial from which the current charges originated. (R. 49-50). At that special court-martial, the military judge, contrary to appellant’s pleas and testimony, found him guilty of a violation of Article 121, UCMJ, 10 U.S.C. § 921, in the theft of six pistons and one air cooler, and sentenced appellant, in absentia, to confinement at hard labor for 4 months, to forfeit $275.00 pay per month for 4 months, and reduction to pay grade E-2. During that special court-martial, appellant, prior to the findings of the military judge, testified that he had no knowledge of the theft and manifested his innocence. Despite appellant’s protestations of innocence, the military judge entered findings of guilty to the charge and specification.

Subsequent to findings but prior to sentencing at the special court-martial, the defense requested to reopen its case and present additional evidence. This request was granted by the military judge. At this point, appellant took the stand and again testified on his own behalf. The military judge then heard appellant recant his prior testimony and admit that he had lied to the court while under oath. Appellant admitted knowledge of the theft but insisted that he had been working undercover for the Naval Investigative Service (NIS) and his participation in the theft was merely part of an NIS scheme to catch another individual. (Appellate Exhibit XVI). After the government presented evidence to rebut appellant’s “second explanation,” the military judge reaffirmed his original findings of guilty. Appellant’s contradictory statements made at the special court-martial form the basis for both specifications under Charge II in the case sub judice.

Charge I, and the single specification thereunder in the case sub judice, also had its origins in that prior special court-martial. While the military judge was deliberating on sentence, appellant voluntarily ab[635] sented himself from naval authority; the military judge sentenced appellant in absentia. (R. 120).

The defense challenged the military judge for cause in the instant general court-martial premised on his previous association with the current charges. Appellant contends in his first assignment of error that the military judge erred by not granting that challenge:

THE MILITARY JUDGE ERRED TO THE APPELLANT’S PREJUDICE BY REFUSING TO RECUSE HIMSELF FROM APPELLANT’S TRIAL.

The decision to grant a challenge for cause or to recuse on the court’s own motion is a matter left within the sound discretion of the military judge. United States v. Bradley, 7 M.J. 332 (C.M.A.1979); United States v. Melton, 1 M.J. 528 (A.F.C.M.R.1975), pet. denied, 2 M.J. 159 (C.M.A.1976). Accord, United States v. Cooper, 8 M.J. 5 (C.M.A.1979). Denial of such a challenge is not to be overturned unless there has been a clear abuse of discretion.1 United States v. Melton, supra at 530. Paragraph 62f(10), Manual for Courts-Martial, 1969 (Rev.) (MCM), cautions members of general or special courts-martial and the military judge not to sit on a case if “he has formed or expressed a positive and definite opinion as to the guilt or innocence of the accused as to any offense charged, except that this shall not necessarily apply to a military judge who has formed or expressed such an opinion solely in his role as military judge sitting alone in a previous trial of the same or a closely related case.”2 Subsection 13 of that same paragraph similarly dictates recusal whenever there are “[a]ny other facts indicating that he should not sit as a member or military judge in the interest of having the trial and subsequent proceedings free from substantial doubt as to legality, fairness, and impartiality.” See, ABA Code of Judicial Conduct, Canon 3 C(l) and (2); ABA Standards I, Special Functions of the Trial Judge, 6-1.7 (1980).

In Bradley and Cooper, both supra, the Court of Military Appeals held that a military judge was not automatically precluded from sitting on a case even though he may have gained knowledge regarding the circumstances surrounding the offense itself through judicial inquiry into a guilty plea tendered by the accused but later rejected by the military judge because the accused in the providence inquiry set forth matters inconsistent with guilt. See paragraph 62f (10), MCM. The Court, however, cautioned that a trial judge should recuse himself where he has formed or expressed a definite opinion as to the guilt or innocence of the accused as to any offense charged. Cooper, supra, at 7; Bradley, supra, at 333.

Appellant contends in his brief before us that the military judge,

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