United States v. Wood

13 C.M.A. 217, 13 USCMA 217, 32 C.M.R. 217, 1962 CMA LEXIS 193, 1962 WL 4482

• Court: United States Court of Military Appeals
• Decided: August 3, 1962
• Docket: No. 15,615
• Status: Published

Opinions

Opinion of the Court

Kilday, Judge:

I

Accused, a master sergeant who had served as first sergeant of the hospital, was tried by a general court-martial convened at England Air Force Base, Louisiana. He was convicted of a five-month absence without leave, violative of Article 86, Uniform Code of Military Justice, 10 USC § 886; and numerous specifications of larceny by check, contrary to Article 121 of the Uniform Code, 10 USC § 921, committed during the period of unauthorized absence. The court-martial sentenced accused to dishonorable discharge, confinement at hard labor for six months, forfeiture of $43.00 per month for that same period, and reduction to the lowest enlisted grade. The findings and sentence were, in turn, approved by the convening authority and affirmed by a board of review.

Thereafter, accused sought review by this Court, and we granted his petition in order to consider several issues developed during voir dire examination and relating largely to alleged improper command control. We shall treat with them seriatim, and such facts as are germane to resolution of each issue may conveniently be set forth in the course of our discussion.

It may be noted that we are not faced with any difficult questions of law here, for on numerous previous occasions we have considered the issue of command influence. See United States v Davis, 12 USCMA 576, 31 CMR 162, and authorities therein collated. The problem presently before us involves merely application of settled rules to the facts of the instant case.

II

The first granted assignment poses the question whether the court-martial erred in failing to sustain a challenge for cause leveled against Major Baglio, one of the members. The defense predicated said challenge on the ground that Baglio had received a letter dealing with military justice which would influence him with regard to sentence, and the member had indicated that in the event of' conviction he would consider the fact accused was a first sergeant adversely on sentence.

Regarding the second asserted basis for disqualification, suffice it to comment that the defense distorts Baglio’s position. True enough, he indicated he was “afraid” the fact serious crimes were committed by one who thereby breached a position of responsibility as a senior noncommissioned officer might be a matter in aggravation. But, considering the whole of his answers on this point it is apparent that, with regard to sentence, he would take into consideration all pertinent matters, including an accused’s rank, length of service, and the nature thereof; the responsibility involved in the position he held; and, generally, all the circumstances adduced. Further, he indicated he was unable to state, in the absence of other relevant factors, the impact of the single item of rank. Significantly, when defense counsel made pointed inquiry, Baglio indicated that matter might augur for or militate against accused, depending on all the evidence. Thus it cannot be said Baglio was, for this reason, disqualified as a matter of law. See United States v Deain, 5 USCMA 44, 49, 17 CMR 44, where Chief Judge Quinn wrote that, although an accused clearly is entitled to have his guilt or innocence determined by a jury composed of individuals with a fair and open mind:

“. . . Transient or ‘light impressions’ of an accused’s guilt or innocence will not disqualify a juror, if it is plainly demonstrated that such impressions will easily yield to the evidence presented in open court and to the law propounded by the trial judge. Reynolds v United States, 98 US 145, 25 L ed 244. So, too, a general or abstract bias against particular classes of offenses or persons is not necessarily disqualifying. United States v Noelke, 1 Fed 426 (CC SD NY 1880); Temple v Moses, 175 Va 320, 8 SE 2d 262. There can, of course, be no degrees of bias, but, essentially, the question of whether bias exists is one of fact. If the evidence touching the issue is in conflict, the balance must be struck by the person or persons having authority to rule on the challenge. There must be a clear abuse of discretion in resolving the conflict before an appellate tribunal, which lacks the power to reweigh the facts, will reverse a decision. State v Dickson, 200 Iowa 17, 202 NW 225; Temple v Moses, supra; People v Martinez, 31 Cal App 413, 160 Pac 868.”

The other facet of this assignment concerns a letter regarding the duties and responsibilities of court-martial members dated over twenty-one months prior to the time of trial. It was not beamed to court members alone, but was distributed generally. It was authored by the legal adviser on the staff of a command inferior to that which convened the instant court-martial, and went out over that officer’s signature. Major Baglio, however, was a member of the lesser command, and had received and read the letter, which without question contains a number of mistaken notions as to matters bearing on sentence. Indeed, before this Court the Government concedes several such items are legally erroneous and others, at the least, questionable. And in that connection appellate defense counsel point out that the offending nature of the document must have been apparent even to the author thereof, for some three weeks prior to trial a revised edition, from which the erroneous portions had been eliminated, was distributed.

Major Baglio also received a copy of the new missive. Upon questioning, he averred that the accompanying instructions directed it was to supplant the old one, but there was no indication of what had been omitted and he could not tell without making a comparison. Further, the Major stated it had been some eighteen months since he received the first letter, and that he had not referred to the same for over a year. Prior to having seen, in court, the old letter here assailed by the defense as a deleterious communication injecting improper command influence, Baglio had no independent recollection of its contents. It is against that backdrop that we take into account a final consideration, for Major Baglio affirmed that he would determine such matters as were his concern as a court member pursuant to the law officer’s instructions ; that he would try the issues by those standards uninfluenced by any out-of-court events. And the charge by the law officer regarding sentence was wholly correct and twice emphasized the independent and unfettered responsibility of the court-martial to impose appropriate punishment based on the evidence and circumstances and without regard to other considerations.

Standing alone, the fact that this member recived, at a time so long prior to trial and from the legal adviser to a commander subordinate to the convening authority herein, a communication setting forth erroneous statements of law, does not require his disqualification. Particularly is that so where Major Baglio had not referred to the letter for so long, retained no knowledge of its contents, and indicated his willingness to follow the law officer’s instructions without regard to possible outside influences. Thus, in the posture of the present record, it cannot be said as a matter of law that the directive constituted improper command leverage which rendered the Major disqualified from serving impartially. Cf. United States v Kitchens, 12 USCMA 589, 31 CMR 175.

We turn our attention, .therefore, to a single area where Baglio indicated, generally, his agreement with the letter’s admontion that court members should not interfere in the field of rehabilitation, which was the province of the commander. Agafh, when this member’s answers are considered in context, we cannot hold, as a matter of law, it was error to retain him on the court-martial. Thus, he indicated his agreement that a court-martial, itself, eould not in fact rehabilitate anyone, and this colloquy ensued:

“DC. Of course we’re not expecting the court to actually rehabilitate but whether or not the court should provide for it properly.

“MAJ BAGLIO. That’s right, and whether or not a person, based on what was presented, whether or not he’s a person that can be rehabilitated and be of use to the service. All these things are taken into consideration.”

It would appear that it could fairly be concluded Baglio, while he thought a court-martial was not in a position itself to effect rehabilitation, was quite willing to take into consideration an accused’s capacity for rehabilitation.

For the above reasons, we decline to hold the court-martial abused its discretion in refusing to sustain the challenge for cause against Major Baglio.

Ill

It is also contended by appellate defense counsel that the court-martial erred in rejecting the challenge for cause against another member, Major Ashley, on the basis of his answers to voir dire examination.

So far as the letters to which we adverted in part II, above, are concerned, Ashley, like Bag-lio, was a member of the

subordinate command that circulated them. But in answer to whether he had ever seen the old letter, Major Ashley-stated he could not recall. Certainly it had made no impression on him. The revised edition thereof, he testifield, had been sent to him, but he had merely glanced at the heading. He had not had time to read it and it still reposed on his desk at time of trial. It is manifest these facts do not reflect adversely on whether Ashley should sit on the court-martial. Moreover, when queried by defense counsel regarding one matter covered im the old letter, Major Ashley expressed his disagreement with the concept set forth therein that reference to trial by general court-martial indicated the propriety of sentences more severe than imposable by lesser courts. Cf. United States v Boese, 13 USCMA 131, 32 CMR 131.

Similarly, we can find no fault with Ashley’s answer regarding accused’s position as first sergeant and his lengthy service. He, like Major Baglio, reminded the defense counsel he was getting into “generalities,” whereas there was before them a specific case, one of which would differ from another. Hence we are unable to find the court-martial was required to sustain a challenge against him on the basis of his belief that, as a general matter, “The amount of responsibility of the individual of course is determined by his position, and a violation of that responsibility of course would weigh greater than violation of responsibility by an individual of a lesser stature.” As an abstract proposition, Ashley’s attitude is not wholly without foundation. But, in any event, it is apparent he did not consider this an inflexible rule, and that he would evaluate accused’s case, as any other, on the whole of the attendant facts.

The final aspect of the challenge against Ashley concerns certain publications emanating from various levels of the Air Force pertaining to dishonored checks and financial responsibility. It is not necessary to recount their specific provisions; generally, they counsel adherence to high standards, elimination of any problems in this area, and set forth certain administrative control measures. While there is no showing Major Ashley or other court members had received all of these writings, it is clear he was aware of at least some and they were distributed generally. They were, as others of similar import had been for a number of years, circulated to all officers. Like the letter discussed earlier in part II, they were not directed to court-martial members alone and, indeed, some had not been seen by certain members of this court until injected into this proceeding by the defense.

Their possible impact on Major Ashley was the subject of extensive inquiry by the defense, which contends his answers fairly shriek of the biased attitude of a “company man.” Exemplary of this, we are told, are even Ashley’s answers to trial counsel when the latter attempted to rehabilitate him. We do not agree. The gist of the member’s position as brought out by the prosecution was simply general agreement, “as a matter of principle” that the Air Force was opposed to the writing of bad checks, and that one convicted criminally for such conduct should be punished in some way. We see nothing untoward in that attitude. Cf. Robinson v United States, 128 F 2d 322 (CA DC Cir) (1942).

Moreover, we deem the instant situation distinguishable from United States v Olson, 11 USCMA 286, 29 CMR 102. There the president of the court, in his regular capacity as deputy chief of staff, had responsibility for a written directive relative to the large number of offenders floating dishonored checks. It was also his duty to monitor the command’s bad check program. Further, on the day prior to trial, the president delivered a pointed lecture, attended by many court members, emphasizing the high incidence of check offenses in the command and the necessity to take positive action to eliminate such misconduct. That combination of factors was held to influence, improperly, the court-martial, and to tempt them to make an example of the accused. Here, however, we are not confronted with the aggravated situation found in Olson, and even in that instance we recognized a commander’s responsibility for appropriate preventive measures consistent with a balance between justice and discipline. United States v Littrice, 3 USCMA 487, 13 CMR 43; United States v Isbell, 3 USCMA 782, 14 CMR 200; United States v Carter, 9 USCMA 108, 25 CMR 370.

We conclude the publications here involved must properly be included in the latter category. They seem to be of the permissible prophylactic variety. And we are reinforced in that conclusion, not only by the court-martial members’ universal affirmation that they would try the case on the evidence and the law officer’s instructions alone, but by their categorical statements that none were aware of any desired result in accused’s case by superior authority, nor did they feel the convening authority’s reference for trial indicated a desire for a severe sentence.

Left for consideration, then, in regard to this issue, is only the defense complaint that Major Ashley admitted he would take the financial directives into consideration. The short answer would seem to be that Ashley, untrained in the law and seeing the directives apparently put into evidence at this preliminary proceeding, assumed he should pay heed to them. Thus he answered he would consider on sentence all matters utilized in resolving guilt or innocence, including the directives if they be used on the merits. And we note that before proceeding to trial on the merits, the law officer withdrew from the court members all exhibits utilized in conjunction with voir dire, and expressly admonished them to disregard anything contained therein!

Accordingly, we find no abuse by the court-martial in rejecting the challenge against Ashley, and this assignment, too, must be resolved adversely to accused.

IV

The defense also asserts the law officer erred in sustaining an objection to a question posed by defense counsel during voir dire examination. It is-helpful to consider the context in which this incident occurred. Major Ashley had just indicated, with regard to the circulars on financial responsibility, that he would consider on sentence all circumstances, including those bearing on findings. Thereupon defense counsel made the same inquiry of Major Baglio, and received a substantially similar answer. It was at that juncture Baglio was asked:

“In other words, you feel that even though you are a member of the court, you are at the same time an officer of the Air Force and it is necessary for you to enforce so-to-speak such directives?”

Trial counsel immediately interposed an objection which the law officer upheld, and the defense finds fault with the latter’s action.

We have already considered the nature of the communications involved, concluding they fall within the permissible class and do not inject improper command influence intp the proceedings. Additionally, as we have noted, Baglio’s answers were substantially identical to Ashley’s. Moreover, the argumentative nature of the question is apparent.

We hold the law officer did not err in sustaining the objection.

V

The next assignment deals with a motion for mistrial made by the defense after action on challenges was complete. It was based “essentially on the [same] command influence” asserted during voir dire.

The law officer denied said motion, and from our discussion hereinbefore of the other granted assignments, it is clear we are unable to find any abuse of discretion on his part. None of the five officers who sat on accused’s court-martial were shown to have been affected by any of the “noxious” communications assailed by the defense. This is true even of the admittedly erroneous portions of the initial letter considered in part II, earlier. Indeed, one member had not received the same and, except for Major Baglio, none of the other members could recall receiving that twenty-one-month-old missive.

The court-martial was not shown to be unfit to sit dispassionately but, to the contrary, the record supports the law officer’s determination they could and would decide the matters before them wholly without regard to any outside considerations. Hence this asserted ground for reversal must be rejected.

VI

The foregoing discussion also disposes largely of the final issue upon which we granted review, namely, whether paragraph 16 of the twenty-one-month-old letter mentioned in part II, above, constitutes command control affecting sentence.

The Government candidly concedes the impropriety of certain concepts spelled out therein. But, as is evident from what we have stated earlier, the mere existence 'of an epistle setting forth erroneous principles is not itself a decisive factor. We entertain little doubt concerning the lack of wisdom in disseminating views which could color a court-martial member’s judgment. However, we deal in this instance with a specific case, and here we find no basis to conclude the letter, composed by the staff judge advocate of a command inferior to that convening this court-martial, and distributed so long prior to trial, had any impact whereby accused was deprived of his fundamental right to have his case decided by impartial court members.

VII

For the foregoing reasons, the decision of the board of review is affirmed.

Chief Judge Quinn concurs.