

   
   
   
   U.S. v. Howard



IN THE CASE OF
UNITED STATES, Appellee
v.
Christopher L. HOWARD, Lance Corporal
U.S. Marine Corps, Appellant
 
No. 98-0522
Crim. App. No. 97-0424
UNITED STATES COURT OF APPEALS FOR
THE ARMED FORCES
Argued December 16, 1998
Decided July 1, 1999

COX, C.J., delivered the opinion
of the Court, in which SULLIVAN, CRAWFORD, GIERKE, and EFFRON, JJ., joined.
SULLIVAN, J., filed a concurring opinion.
 


Counsel
For Appellant: Lieutenant Commander
L. J. Lofton, JAGC, USN (argued); Lieutenant Syed N. Ahmad,
JAGC, USNR.
For Appellee: Lieutenant Commander
JoAnn W. Melesky, JAGC, USN (argued); Colonel Kevin M. Sandkuhler,
USMC, and Lieutenant Kevin S. Rosenberg, JAGC, USNR (on brief);
Commander D. H. Myers, JAGC, USN, and Major Troy D. Taylor,
USMC.
Military Judge: R. E. Nunley
 


This opinion is
subject to editorial correction before publication.
 
Chief Judge COX delivered the opinion
of the Court.
Appellant was convicted at a special
court-martial of 1 specification of unauthorized absence, Art. 86, Uniform
Code of Military Justice, 10 USC § 886, that began on June 20, 1996,
and terminated on September 19, 1996, when he was apprehended. Appellant
was sentenced to a bad-conduct discharge, confinement for 60 days, forfeiture
of $500.00 pay per month for 2 months, and reduction to E-1. He pleaded
guilty to the charge before a military judge, who acted as the sentencing
authority.
During the presentencing portion of
the trial, the Government introduced a prior conviction from June 1996
that appellant had for assault. See RCM 1001(b)(2), Manual for Courts-Martial,
United States (1995 ed.) (allowing the Government to introduce personnel
records to show appellants prior service). The same military judge in
the prior case presided over this case. The defense did not object to admission
of this evidence. The Government did not introduce any amplifying evidence
about the circumstances surrounding the conviction.
During the defense case for sentencing,
appellant used an unsworn statement to explain his version of the circumstances
surrounding the assault conviction. Appellant explained that he assaulted
the victim because the victim was assaulting a member of his squad. Additionally,
during the defense argument on sentencing, the trial defense counsel argued
that appellant was only trying to "[do] the right thing in looking out
for his junior Marines." During this argument, the military judge interrupted
defense counsel and stated that, although he had awarded appellant "an
unusually light sentence for a fractured jaw," he found him guilty because
"he had exceeded any bounds" by kicking the victim in the head while he
was already lying on the ground, unable to get up. After this statement,
appellant did not seek further voir dire or challenge the military
judge.
Appellant argues that he was prejudiced
because the military judge considered evidence from a previous court-martial
that neither side had introduced into evidence in the sentencing phase
of this court-martial. Appellant also contends that the military judge
had a sua sponte duty to recuse himself from further consideration
of appellants case.*/
On consideration of this issue, the
Court of Criminal Appeals made the following findings:


Before forum selection, the military
judge properly revealed his rather comprehensive memory of the facts underlying
the prior proceeding. United States v. Oakley, 33 MJ 27, 34 (CMA
1991). See Rule for Courts-Martial 902(a), Manual for Courts-Martial,
United States (1995 ed.). After doing so, both the trial defense counsel
and the appellant specifically decided that they wanted this military judge
to continue to preside over this case.


The court went on to hold:


We note that it was the appellant
and his defense counsel who introduced his version of the circumstances
of the prior offense, no doubt as a matter in extenuation and mitigation.
The conviction itself was admissible against the appellant as a matter
in aggravation.. . . Had the appellant felt that the military judge's comment
indicated that he would be unfair, he should have made a challenge for
cause at that time. By not doing so, he waived the objection.


Unpub. op. at 1-2.
We agree with the Court of Criminal
Appeals that appellant waived any objection to the continued presence of
the military judge. Absent any objection and the record that could have
been developed in the course of litigating such an objection, there is
no evidence that the military judge misstated the public record
in the prior case or otherwise demonstrated bias. Under the circumstances
of this case, the military judge did not err in failing to recuse himself
sua sponte.
We decided a related issue in United
States v. Oakley, supra. There, we held that a judge who had
presided over the trials of two coconspirators was not required to recuse
himself from sitting at Oakleys trial. In that case, the military judge
raised the issue himself; he assured the defense that he would resolve
any motions and determine the accuseds guilt based solely on the evidence;
and that he had reached no conclusions about Oakleys guilt or an appropriate
sentence, if necessary. Id. at 34-35.
Here, as in Oakley, the military
judge raised the issue sua sponte and allowed both the defense and
prosecution the opportunity to voir dire him and make any challenges
for cause. Both sides declined. Additionally, the military judge detailed
his knowledge about appellants prior conviction on the record.
Military and civilian judges are routinely
tasked with hearing facts for limited purposes, which they later disregard
if consideration would be improper. Suppression of confessions, consideration
of the admissibility of other bad acts and wrongs under Mil.R.Evid. 404(b),
Manual, supra, and rulings on the admissibility of hearsay are examples
of these matters. Judges need not recuse themselves under these circumstances.
See United States v. Widgery, 778 F.2d 325, 328 (7th
Cir. 1985); United States v. Bradley, 7 MJ 332, 334 (CMA 1979).
"Simply because a judge possessesand has expressed, even publiclypredilections
on an issue of law to be litigated before him does not mean that the judge
is disqualified to sit and to resolve such issue." Id. at 334, citing
Laird v. Tatum, 409 U.S. 824 (Memorandum of Mr. Justice Rehnquist)(1972).
"As well, simply because a judge may have been made aware of certain factual
circumstances involved in a case does not necessarily mean that
he is disqualified to continue to preside." Id., citing United
States v. Hodges, 22 USCMA 506, 47 CMR 923 (1973).
Likewise, the judges awareness of
the factual circumstances surrounding appellants previous conviction did
not disqualify him from continuing to preside. See United States
v. Walker, 473 F.2d 136, 138-39 (D.C. Cir. 1972).
The judges knowledge regarding the
circumstances surrounding the offense admitted during sentencing did not
prejudice appellant.
First, the military judge acknowledged
on the record that he gave appellant a lighter sentence in the previous
court-martial than one would normally expect for an assault offense, precisely
because of the extenuating circumstances of the previous court-martial,
and that he did not consider the prior offense serious. Second, the fact
of the first court-martial was properly admitted as evidence of a prior
conviction to be considered in aggravation on sentencing, regardless of
who sat as military judge in the prior case.
Lastly, a military judge, looking at
the record of appellants prior conviction in conjunction with a lengthy
unauthorized absence terminated by apprehension, would certainly be within
his or her discretion to impose a sentence that includes confinement and
a punitive discharge. The Court of Criminal Appeals reviewed this sentence
and found it to be correct in both law and fact. Unpub. op. at 1.
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is affirmed.
FOOTNOTE:
*/
We granted the following issue for review:


WHETHER THE MILITARY
JUDGE ERRED WHEN HE CONSIDERED EVIDENCE FROM APPELLANTS PREVIOUS COURT-MARTIAL
THAT HAD NOT BEEN INTRODUCED AT THIS COURT-MARTIAL AND THE FAILED TO RECUSE
HIMSELF SUA SPONTE?
 
 


SULLIVAN, Judge (concurring):
I concur with the majority opinion.
I write separately only to note briefly the following words of the Supreme
Court in Liteky v. United States, 510 U.S. 540, 555 (1994):



[O]pinions formed by the judge
on the basis of facts introduced or events occurring in the course
of the current proceedings, or of prior proceedings, do not constitute
a basis for a bias or partiality motion unless they display a deep-seated
favoritism or antagonism that would make fair judgment impossible.
Thus, judicial remarks during the course of a trial that are critical or
disapproving of, or even hostile to, counsel, the parties, or their cases,
ordinarily do not support a bias or partiality challenge.



(Emphasis added.) In the present case,
trial defense counsel did not request voir dire of the military
judge or challenge him following his comments. This proved to be a wise
course of action because it is clear that the military judges comments
do not display a "deep-seated" antagonism toward appellant that made fair
judgment of his case impossible.

Home
Page  |  Opinions
& Digest  |  Daily
Journal  |  Public
Notice of Hearings
