United States v. Mortensen

Opinion of the Court GEORGE W. LatimeR, Judge: We granted accused’s petition for review to ascertain whether he had been denied a fair trial because of certain ill-advised activities on the part of the law officer. The specifically raised issue concerning his eligibility to act will be spelled out as we relate the facts relevant thereto. The accused was originally charged with burglary and assault with intent to commit rape, in violation of Articles 129 and 134 of the Uniform Code of Military Justice, 10 USC §§ 929 and 934, respectively. Sometime following the Article 32 investigation, the specification of assault with intent to commit rape was amended to allege the lesser offense of indecent assault, and the charge of burglary was reduced to housebreaking. Originally the assault with intent to commit rape charge had alleged the overt acts committed by the accused to be that he removed the bed covers and placed his hand on the victim’s leg. The overt act of the lesser [235] offense of assault was charged as pulling the bed covers from the victim and placing accused’s hand over her mouth. During the arraignment of accused, defense counsel noticed that the specification alleging the assault had been amended by certain inked-in interlinea-tions. They consisted of adding the phrase “fondling her leg” so that, as finally amended, the specification set out the three original offensive acts of removing the bed covers, fondling the victim, and placing his hand over her mouth. Defense counsel thereupon moved to strike the amended portion of the charge, and the law officer held an out-of-court conference to consider the merits of the motion. The out-of-court conference is reported in the record, and from it we glean the following facts: On the morning of trial the law officer was furnished a copy of the charges, and he incurred some reservations as to whether the specification stated facts sufficient to allege with certainty the offense of indecent assault. He decided to seek advice, and he thereupon contacted a civilian attorney in the office of the staff judge advocate. They concluded the specification was probably insufficient, and the assistant staff judge advocate was then consulted. Apparently at that conference a decision was reached that the specification should be amended to allege the act of fondling, and trial counsel was contacted by the law officer and directed to write in the required amendment. After making a complete disclosure of his activities in connection with the amendment, the law officer undoubtedly recognized his injudicious behavior, for he interrogated defense counsel as to whether he desired to challenge the law officer for his pretrial participation. Defense counsel, in reply, stated that he was personally satisfied that the activities of the law officer would have no effect on the latter’s rulings, his treatment of the issues, or his attitude toward the accused. He further stated that he believed all rulings of the law officer would be complete and fair and that he had no desire to exercise a challenge for cause. The law officer then overruled the motion to strike the amendments. One further aspect of the controversy must be mentioned. After the taking of testimony was completed, the court-martial returned findings of guilt on both specifications. However, in each instance, the findings involved exceptions and substitutions and, in connection with the specification which directly concerns the issue before us, the words which were added by amendment were excepted by the findings and the verdict returned was in accordance with the crime alleged before the alteration of the specification. Thus the added phrase played no part in the ultimate result reached by the court-martial. There can be no doubt that the action of the law officer in this instance is subject to condemnation. He apparently overlooked the fact that a law officer is not authorized to carry out any judicial functions which affect the rights of an accused to a fair trial except that they be in the courtroom and on the record. Furthermore, he possibly missed the principle that he cannot pass over his judicial responsibility to occupants of the staff judge advocate’s office. When, as here, a law officer concludes a specification is defective, paragraph 69 of the Manual spells out how he should proceed. Regardless of the method employed to effectuate the amendment, the paragraph envisions that the matter will be before the court and not handled in an ex parte, off-the-record transaction. For some unaccountable reason, this law officer concluded that he was burdened with the responsibility of representing the Government and that he was required to inform the convening authority or the staff judge advocate of the deficiency. Aside from assuming duties rightfully belonging to trial counsel, the law officer overlooked the obvious principle that an accused is entitled to be notified of and heard on matters which change the allegations of a specification or increase the gravity of the offense being tried. Moreover, when the law officer’s attention was called to the irregularity by a motion to strike, he should not have been [236] concerned with a challenge for canse. Rather, he should have deleted the amendment forthwith, and permitted counsel to proceed in a recognized manner. Then, had trial counsel desired to have the specification amended, he could have made an appropriate motion and it could have been disposed of in an acceptable and legal manner. The net of all this is that we seek to eliminate from military trials the volunteer out-of-court transactions sometimes engaged in by law officers and to force them to consider judicial matters only in the courtroom arena with the accused, his counsel, and a reporter present. By now all law officers ought to understand that principle and, in order to assure the accused a fair trial, it should be meticulously observed. While we are critical of the law officer’s handling of the ex parte amendment, we feel reversal is not required because subsequent events rendered the error harmless. For the purpose of this case, we can pretermit the Government’s contention that the error was waived when defense counsel was afforded an opportunity to challenge the law officer and the offer was rejected. Discussion of that assertion is not necessary because we find the error in this instance is cured by the findings of the court-martial. All additions to the specification which were made and to which counsel for the accused directed his motion to strike were deleted by the court-martial members when they returned their findings of guilt. For all practical purposes, they effectively sustained defense counsel’s motion. Had it been granted, all that the motion to strike would have accomplished would be to restore the specification to its original language. The specification would then have been couched in identical language to that used by the court-martial in its findings. The findings identify the gravity of the offense and control the maximum sentence which may be imposed. Here they were specifically tailored to the crime of assault and battery, which was the least serious crime alleged before the amendment. Some argument is advanced that the findings do not cure this particular error because the court-martial was presided over by a law officer who was disqualified to perform the duties of his office and, therefore, the trial was a nullity. There might be some merit to the argument if we were faced with the lack of the statutory qualification— as distinguished from eligibility — set out in Article 26(a) of the Code, 10 USC § 826. But here we have no more than an error arising out of pretrial activities. At best, it could be no more than prior participation in the same case by a law officer, and Congress has not decreed that this reaches the level ■of a disqualification which will cause the court to be illegally constituted. Moreover, in this instance, the right to challenge was specifically waived and, as we are npt confronted with a disqualification which would take from the court-martial the power to proceed, its' findings and sentence are not void. So long as they are valid and legal, they effectively cure the error. We, therefore, conclude that accused’s contention he was denied a fair trial must be overruled. Aside from the fact that accused was not prejudiced by the conduct of the law officer, the evidence supports adequately the findings returned and, in view of this offense and accused’s three previous convictions, the sentence imposed is far within legal limits. In addition, from our inspection of the record, defense counsel correctly anticipated the fairness of the law officer’s rulings and his attitude toward the accused, for we find no improper rulings of any significance. The decision of the board of review is affirmed.