United States v. Witherspoon

16 M.J. 252, 1983 CMA LEXIS 18009

• Court: United States Court of Military Appeals
• Decided: September 6, 1983
• Docket: No. 42,345; CM 439581
• Status: Published

Opinions

Opinion

FLETCHER, Judge:

Subsequent to affirmance by the United States Army Court of Military Review of his conviction by general court-martial,¹ we granted appellant’s petition on the following issue:

WHETHER THE ARMY COURT OF MILITARY REVIEW ERRED TO THE SUBSTANTIAL PREJUDICE OF THE APPELLANT IN HOLDING THAT THE IMPROPER ACTION OF A COURT MEMBER (CAPTAIN PAUL-SEN) IN. VISITING THE SCENE DESCRIBED IN APPELLANT’S TESTIMONY AND RELYING UPON INFORMATION ADVERSE TO APPELLANT OBTAINED AS A RESULT OF HIS UNAUTHORIZED VIEWING DURING DELIBERATIONS ON FINDINGS DID NOT PREJUDICE THE APPELLANT BECAUSE CAPTAIN PAULSEN COULD HAVE OBTAINED THE SAME INFORMATION FROM OTHER COURT MEMBERS.

After close review of the events that occurred during the trial and conviction of this accused, we conclude that no prejudice accrued to him and, as a result, affirm the findings below.

This was a highly contested case of rape. Among other contested facts was that of the location of the rape. Appellant claimed that his act of sexual intercourse occurred while the car was parked near the Officers Club and the family housing area. Complainant, on the other hand, testified that she had been raped at a more remote location. With respect to the granted issue in this case, we are called upon to answer two questions: First, was the staff judge advocate’s submission of affidavits from court members to the convening authority an appropriate procedure for deciding this question? Second, was an unauthorized view of the scene of the crime by one court member prejudicial to the accused?

As a general rule, jurors cannot “impeach their verdict, with respect to matters which essentially inhere therein.” United States v. Bourchier, 5 U.S.C.M.A. 15, 27, 17 C.M.R. 15, 27 (1954). See United States v. West, 23 U.S.C.M.A. 77, 48 C.M.R. 548 (1974); United States v. Hanee, 10 M.J. 622 (A.C.M.R.1980). Exceptions exist when extraneous information has been improperly considered. See, e.g., United States ex rel. Owen v. McMann, 435 F.2d 813 (2d Cir.1970), cert, denied, 402 U.S. 906, 91 S.Ct. 1373, 28 L.Ed.2d 646 (1971); United States ex rel. DeLucia v. McMann, 373 F.2d 759 (2d Cir.1967). See also United States v. Bishop, 11 M.J. 7 (C.M.A.1981). This general principle is now part of Mil.R.Evid. 606(b), which provides:

It is clear that extra-judicial information can prejudice a case and require reversal. See Parker v. Gladden, 385 U.S. 363, 87 S.Ct. 468, 17 L.Ed.2d 420 (1966) (bailiff informed jurors he believed accused was guilty); Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959) (newspaper publicity); United States ex rel. Owen v. McMann, supra (personal information about accused’s background); United States v. McKinney, 429 F.2d 1019, reh. granted and decision aff’d, 434 F.2d 831 (5th Cir.1970), cert, denied, 401 U.S. 922, 91 S.Ct. 910, 27 L.Ed.2d 825 (1971) (newspaper publicity).

It is important to examine how the issue of extraneous information was brought to light. In response to the staff judge advocate’s review, appellant submitted two affidavits attempting to support the proposition that clandestine information of the scene was used by members in a way prejudicial to appellant. These affidavits were executed by two military lawyers. The trial defense counsel alleged that Captain Paulsen, a court member, had said he had visited the scene in order to understand the testimony. Captain McAllister averred that, in company with trial defense counsel, he heard court member Warrant Officer Reece state that he had checked the crime scene to observe certain physical features. Like the court below, we are unable to consider these hearsay allegations. United States v. Witherspoon, 12 M.J. 588, 589 n. 5 (A.C.M.R.1981).

Nevertheless, in response to these hearsay allegations, the staff judge advocate, in essence, polled the jury, and submitted, as an addendum to his post-trial review, affidavits from each of the court members regarding extraneous information which may have affected their deliberations. Although we will consider this information on the granted issue in this case, we regard this procedure as improper.

The staff judge advocate here employed affidavits from court members to rebut the defense response to his post-trial review for the convening authority.² The purpose of the aforementioned exception to the nonimpeachability rule regarding members’ verdicts, however, contemplates judicial review and assessment. In the instant case, the appropriate procedure calls for referral of the matter to the trial judge for judicial assessment of the facts and the prejudicial impact on appellant’s rights. Article 39(a), Uniform Code of Military Justice, 10 U.S.C. § 839(a). We do not conclude, however, that absence of this appropriate procedure was detrimental to appellant.

Turning to the second question in this case, we note that the United States Supreme Court has recently ruled that a court can “ascertain the impartiality of a juror by relying solely upon the testimony of the juror in question.” Smith v. Phillips, 455 U.S. 209, 215, 102 S.Ct. 940, 945, 71 L.Ed.2d 78 (1982). According to his affidavit, Captain Paulsen indicated that during trial he had occasion to drive to the Officers Club, the scene of the crime, and “so while ... there I did look.” Captain Paulsen indeed stated he had heard some members, “who live on-post and ... have to drive right by there to go home,” discuss the physical conditions and their implication as to accused’s accuracy or credibility; but he also maintained that he “had formed ... [his] own opinion from what ... [he] saw” and “the talk that went on ... [and he didn’t] think [it] really made any difference” for that reason. According to Colonel Chunn’s affidavit, trial and defense counsel had brought up the physical features of the area in the court room, so the discussion of them did not bring “out any more than what the trial counsel had already brought out.”

Our principal case in this area is United States v. Bishop, supra. There we suggested that knowledge by court members of lighting conditions in the area of a rape acquired “because their homes were nearby and they passed through the neighborhood” would be improperly used if that knowledge “had any effect whatever on their deliberations or decision.” The view of the scene of the crime in Bishop was merely “casual or fortuitous.” Id. at 10.

In the instant case the information possessed by Captain Paulsen was, as appellant asserts, the result of more than mere fortuitous common knowledge; it was the result of a deliberate and unauthorized viewing of the scene of the crime. However, as did the court below, we conclude that Captain Paul-sen’s improper actions did not prejudice appellant. We observe that the information improperly obtained by Captain Paulsen was equivalent to information known by the members as a matter of common knowledge. Cf. United States v. Conley, 4 M.J. 327 (C.M.A.1978). Furthermore, as the court below stated, “[i]f Captain Paulsen had not visited the scene, it may reasonably be concluded that the information would have been made available to him during deliberations.” United States v. Wither-spoon, supra at 591.

Accordingly, we rule that despite the incorrect procedure used by the staff judge advocate and the unauthorized view of the scene of the crime by court member, Captain Paulsen, appellant thereby suffered no prejudice.

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

1 . At his trial by general court-martial at Fort Ord, California, appellant was convicted of rape, in violation of Article 120, Uniform Code of Military Justice, 10 U.S.C. § 920. His approved sentence included a bad-conduct discharge, confinement at hard labor and partial forfeitures for 2 years, and reduction to the lowest enlisted grade. The approved sentence was affirmed by the United States Army Court of Military Review. United States v. Witherspoon, 12 M.J. 588 (AC.M.R.1981).

2 . Affidavits from members concerning improper extraneous prejudicial information may be utilized by the trial judge in his judicial assessment. Mil.R.Evid. 606(b); Article 39(a), UCMJ, 10 U.S.C. § 839(a). See United States v. Bishop, 11 M.J. 7 (C.M.A.1981).