United States v. Wiggers

25 M.J. 587, 1987 CMR LEXIS 724
CourtU.S. Army Court of Military Review
DecidedOctober 30, 1987
DocketACMR 8601343
StatusPublished
Cited by6 cases

This text of 25 M.J. 587 (United States v. Wiggers) is published on Counsel Stack Legal Research, covering U.S. Army Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Wiggers, 25 M.J. 587, 1987 CMR LEXIS 724 (usarmymilrev 1987).

Opinion

OPINION OF THE COURT

KENNETT, Judge:

Tried by a special court-martial composed of officer and enlisted members, appellant was convicted, pursuant to his plea, of wrongful use of marijuana in violation of Article 112a, Uniform Code of Military Justice, 10 U.S.C. § 912a (Supp. I 1983) [hereinafter UCMJ]. Contrary to his plea, appellant was convicted of assault consummated by a battery in violation of Article 128, UCMJ, 10 U.S.C. § 928. He was sentenced to a bad-conduct discharge and confinement for ninety days. In the post-trial recommendation, the staff judge advocate advised the convening authority that the military judge had erred by informing the [589]*589court members, over defense objection, of appellant’s guilty plea to the marijuana offense before presentation of evidence on the contested assault charge.1 The staff judge advocate opined that the judge’s error “may have substantially prejudiced [appellant’s] rights.” The staff judge advocate recommended disapproval of the guilty finding of assault consummated by a battery, dismissal of that charge, but approval of the adjudged sentence after reassessment of its appropriateness. In accordance with those recommendations, the convening authority disapproved the guilty finding of assault consummated by a battery, dismissed that charge, and approved the adjudged sentence.

Appellant asserts the military judge erred by (1) failing to recuse himself, (2) failing to grant the defense challenge for cause against him, and (3) refusing to accept or consider a request for trial by judge alone. As the contested charge was dismissed after trial, appellant requests only a rehearing on sentence. We find that the military judge was disqualified to sit as the fact finder and, under the circumstances of this case, should have recused himself rather than directing a trial with members, but that appellant suffered no prejudice on findings because of the provident guilty plea to wrongful use of marijuana. We further find, based upon the military judge’s overall conduct of the trial and the admission into evidence, over defense objection, of an inadmissible record of nonjudicial punishment (Article 15, UCMJ), that appellant was prejudiced as to sentence. We choose to reassess the sentence and reduce it significantly rather than order a sentence rehearing.

I. Facts

During the Article 39(a), UCMJ, session prior to entry of pleas, the military judge, in answer to trial counsel’s query regarding possible grounds for challenge of the judge, responded as follows:

In a companion case tried in this courtroom last week I presided over the case of the United States versus Gomersall. In adjudging an appropriate sentence in the case it was my determination that I received mendacious testimony from Gomersall, and I will not accept a request by the accused for trial by judge alone.

Trial counsel lodged no challenge for cause against the judge, who then asked whether Specialist Four (SP4) Gomersall would be a witness in the present case. Upon being advised that SP4 Gomersall would be a government witness, the judge asked the defense counsel whether she desired to voir dire or present a challenge for cause against the judge. The following colloquy between the defense counsel and the judge then ensued:

DC [Defense Counsel]: Yes, your Hon- or. The defense would have chosen to take a judge alone trial in this case, if we had that option, and because the military judge cannot sit in decision on this case since Specialist Gomersall will be a witness, the defense would like to present a challenge for cause.
MJ [Military Judge]: What is the basis for cause?
DC: Again, sir, that the Military Judge has made a predisposition as to the credibility of one of the witnesses and the defense would request a judge alone tri — would—still would like a judge alone trial.
MJ: Captain Lewis, what I stated earlier was that I determined that Gomersall presented to me untruthful testimony during his own trial. He is a witness for the prosecution. Each party to a trial is entitled to a fair trial by an unbiased, impartial fact-finder [sic]. You will receive that kind of trial in this case, by having your facts decided by the court members. The prosecution is also entitled to that same impartial, unbiased fact-finder, and it is for that reason that I would not accept a trial by military judge alone request from this accused.
DC: I understand that, sir. That is why the defense would make a request for a recusal by the military judge so [590]*590that another military judge could sit on this case, in order to give defense the opportunity to have a judge alone court.
MJ: The determination of evidentiary issues, procedural disputes, and instructions of law that the court members will receive from me will not be affected in any way during this trial as a consequence of my presiding over the Gomersall trial last week. However, it does not promote judicial efficiency, nor the public image of our court-martial process, for me to recuse myself so that you can have another judge traveling a distance of at least 100 miles, from either Stuttgart or Nuernberg, the nearest location of another judge, in order for this case to proceed by judge alone.
Your challenge for cause is denied.

Written requests for trial by military judge alone and for enlisted court members were then marked as appellate exhibits. Noticing that the trial counsel had indicated on the form requesting trial by judge alone that the government desired argument on that request, the judge asked the trial counsel what her argument would have been had he entertained a request for trial by judge alone. The trial counsel replied that she would have opposed the request based upon the judge’s disclosure concerning his opinion of SP4 Gomersall’s truth and veracity.

Notwithstanding his earlier statements that he would not accept a request for trial by judge alone, the judge included that option in his trial forum advice to appellant. Appellant, as noted, chose trial by officer and enlisted members.

Following arraignment, but before entry of pleas, the defense counsel verbally moved for a continuance until Private E-2 (PY2) Coleman, the alleged victim of the assault, could be present for testimony. Without inquiring into the grounds for continuance, the judge informed the defense counsel that she had been warned about “no-notice, unwritten motions” and that he would not entertain her non-constitutional motion. The defense counsel advised the judge that she believed her motion was of constitutional magnitude,2 and informed him that PV2 Coleman had been hit by a car the previous evening and was not available to testify. She further told the judge that she had not learned of this accident until the morning of trial. The trial counsel corroborated the defense counsel’s statements, and added that she too had not been informed of the accident until that morning.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Tabor
Navy-Marine Corps Court of Criminal Appeals, 2022
United States v. Private E2 ERICK C. BLACK
Army Court of Criminal Appeals, 2020
United States v. Sergeant JOHN M. RUSSELL
76 M.J. 855 (Army Court of Criminal Appeals, 2017)
United States v. Summerset
37 M.J. 695 (U.S. Army Court of Military Review, 1993)
United States v. Davis
27 M.J. 543 (U.S. Army Court of Military Review, 1988)
United States v. Amos
26 M.J. 806 (U.S. Army Court of Military Review, 1988)

Cite This Page — Counsel Stack

Bluebook (online)
25 M.J. 587, 1987 CMR LEXIS 724, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-wiggers-usarmymilrev-1987.