United States v. Danzine

Opinion GeoRGB W. Latimer, Judge: Accused was arraigned before a general court-martial convened at Fort Monmouth, New Jersey, on charges of larceny and absence without leave, in violation of Articles 121 and 86, Uniform Code of Military Justice, 10 USC §§ 921 and 886, respectively. He admitted his guilt of the latter offense, but pleaded not guilty to the two larceny counts. He was, nonetheless, convicted as charged and sentenced to dishonorable discharge, total forfeitures, reduction to the lowest enlisted grade, and confinement at hard labor for two years. Intermediate appellate authorities affirmed, and thereafter this Court granted accused’s petition for review in order to consider a single issue pertaining to alleged improper command influence. The facts concerning the substantive offenses which compellingly establish accused’s guilt are of no importance to the question before us, so we may dispense with a recitation of them. The instant court-martial was appointed by the convening authority on May 17, 1960. Ten days later and before any cases had been referred to the court for trial, the convening authority and his staff judge advocate each presented a lecture to the court members. The commander’s comments were general in nature while those of the legal officer on his staff were largely procedural. Together they offer general guidelines to assist the court members in the performance of their duties. The remarks had been prepared by the staff judge advocate and, prior to presentation, were circulated among the staff, including the defense section, for comment. On May 27, 1960, when presented to the members of the court-martial, the lectures were delivered verbatim as written. Accused’s case was referred to trial on June 15, 1960, and some two weeks later, on June 28, it came on for hearing. At that time, accused’s defense counsel made a motion for appropriate relief, asserting as the basis for redress unlawful command influence arising from the lectures. The law officer denied the motion and the case continued to findings and sentence, thus giving rise to the issue before us. Appellate defense counsel direct their attack here primarily against the lecture by the convening authority. They note it was given before trial of accused’s case and, in addition to the content of his remarks, they object to the fact that he delivered them personally and beamed his comments solely at the members of this newly-appointed court-martial. These latter contentions we may pass over without extended discussion. We have on prior occasions considered cases involving allegations of improper command influence and, when consideration is given to our holdings in this area, it is qbvious that the subject matter of lectures dealing with military justice is the important consideration, and not whether they are delivered personally by the commanding officer nor whether they are given to court members only. See United States v Littrice, 3 USCMA 487, 13 CMR 43; United States v Isbell, 3 USCMA 782, 14 CMR 200; United States v Navarre, 5 USC [352] MA 32, 17 CMR 32. See also Article 37, Uniform Code of Military Justice, 10 USC § 837; and paragraph 38, Manual for Courts-Martial, United States, 1951. The proscription against improper command control is not intended to bar responsible officers from appropriately enlighting those who may serve or are serving on military courts. Rather, it is designed to assure military due process of law to those who are brought to justice before such forums. As the Chief Judge stated for the Court in the last above-mentioned case: “The history of unlawful command influence, and the importance attaching to it in the congressional hearings on the Uniform Code of Military Justice, were fully expounded by this Court in United States v Littrice, 3 USCMA 487, 13 CMR 43. We there discussed the dual purpose of Article 37 of the Code, supra, 50 USC § 612, and pointed out that it was designed to preserve the integrity of military courts without unduly restricting those responsible for the conduct of our military operations. That Article prohibits a convening authority, or other commanding officers, from censuring, reprimanding, or admonishing a court, or members thereof, because of the findings of sentence adjudged. It further proscribes coercing or otherwise influencing a court-martial member by any unauthorized means. Needless to say, this provision of the Code purports to assure to all in the military service an absolutely fair trial in which the findings and sentence are determined solely upon the evidence, and free from all unlawful influence exerted by any military superior. United States v Isbell, 3 USCMA 782, 14 CMR 200.” [5 USCMA at page 37.] And even as recently as United States v Marshall, 12 USCMA 117, 122, 30 CMR 117, this Court adverted to the possibility that convening authorities might find it desirable to comment on certain matters in orientation lectures to courts-martial. The primary responsibility for the maintenance of good order and discipline in the services is saddled on corn-manders, and we know of no good reason why they should not personally participate in improving the administration of military justice. No doubt the personal presentation of that subject by the commander is impressive, but that is as it should be. The question is not his influence but, rather, whether he charted it through forbidden areas. We turn our attention, therefore, to the fundamental question that must be determined in this instance, that is, whether or not the substance of the lectures was proper. It is asserted by appellate defense counsel that the thrust of the comments would influence sentence. In connection with that contention, they isolate one comparison advanced by the convening authority and argue that he was covertly suggesting that offenders be separated from the service. We quote the wording cited by them to support the argument: “. . . When a member of the Army is convicted of a serious offense and given an inadequate sentence, he will often continue to serve in a position of trust and responsibility, simply because practically every job in the Army necessarily involves their exercise in some measure. You should remember that while today a soldier may be remote from serious responsibility, tomorrow all our lives may depend upon him as a member of a team who must be relied on to do his part. A civilian offender, having paid his debt to society, will be returned to his community, but not necessarily to a position of trust or one involving intimate daily contact with him by very many people. In the event he is given responsibility, it will be by the voluntary act of some other member or members of that community. In the military, you or I do not volunteer to place our trust in those around us — we must do so by very reason of the fact that they are serving as members of our organization. On the other hand you must consider in each individual case that we are charged with making all possible use of the trained manpower available to us, and, as you know, we do not have many ‘spares.’ ” [353] Aside from the fact that the convening authority was stating the obvious, it is to be noted that he cautioned the court members that they must in each individual case consider the necessity of retaining trained personnel in the service as the Army was in short supply. Implicit in that remark is a requirement that the court members carefully determine the accused’s potential for rehabilitation. But, in addition, that particular comment must be considered in connection with the following admonition given by the speaker: . . By proper sentence, I mean proper as you see it, based upon the charges made, any circumstances of aggravation, extenuation, or mitigation presented, your own observation of the accused, and your own independent consideration of what you feel is appropriate for this particular accused and the needs of society in his case. By proper sentence, I do not mean one that you may believe that I would want in the particular case, or my Staff Judge Advocate, or any one else. It is your decision alone to make, with due consideration for all the individual and social factors presented. It should not be your concern that any other subsequent action may be taken by the convening authority.” Manifestly, the commander was careful to impress forcefully on the court-members that any sentence or portion thereof they should adjudge in a case must be circumscribed by their own independent determination of appropriateness, and that they should solemnly weigh not only that factor but the manpower needs of the Army and an individual’s potential for further creditable service before imposing punitive separation. We find no fault in this aspect of the lectures, and hence we reject this branch of the defense argument. Neither do we perceive any impropriety in the balance of the remarks. They did not suggest probable guilt if cases were referred to trial; the comments did not in any fashion indicate the court members should abdicate' their rightful responsibilities in reliance upon corrective action upon subsequent review; they did not touch on similar fact situations, nor in any other way indicate predetermination of a case or any particular finding or sentence therein; neither was there any critical reference to activities by parties to the trial of past, current, or future cases; there was no intemperate or inflammatory language upon military justice matters given to those who heard the lectures; there was no leverage or other device to coerce the court members injected into the remarks; and, last, no specific sentence was suggested, even by indirection. Cf. United States v Littrice, supra; United States v Hunter, 3 USCMA 497, 13 CMR 53; United States v Isbell, supra; United States v Navarre, supra; United States v Deain, 5 USCMA 44, 17 CMR 44; United States v Zagar, 5 USCMA 410, 18 CMR 34; United States v Hawthorne, 7 USCMA 293, 22 CMR 83; United States v Walinch, 8 USCMA 3, 23 CMR 227; United States v McCann, 8 USCMA 675, 25 CMR 179; United States v Lackey, 8 USCMA 718, 25 CMR 222; United States v Shepherd, 9 USCMA 90, 25 CMR 352. Having mentioned the negative aspects of the lecture, we turn to discuss its positive features. The remarks stressed the importance of the duties of court-martial members and the necessity for fairness and impartiality, both to society and accused persons; exhorted them not to attempt to divine any desires on the part of other authorities; emphasized the freedom of action by court members, completely unbound except by their oaths and the dictates of their own consciences; repeatedly instructed them that the responsibility for correct findings and appropriate sentences — according to their own, not anyone else’s standards— rested solely with them; and apprised them in crystal clear language that they need harbor no fear of reprisal arising out of conscientious discharge of their duties. The general tenor of the lectures is illustrated by the concluding paragraphs of the convening authority’s remarks. He said: “In your capacity as members of [354] a court-martial, you will be exercising a responsibility completely devoid of direct supervision. You will never be called to account for what you do here except as the dictates of your own conscience shall serve as an overseer. The only sanction imposed upon you regarding your functioning as a court member will be the oath that you take before trial and your consciousness of your obligation to see that justice prevails. “What these observations boil down to, Gentlemen, is this: each ease that you consider must be given careful, mature, responsible, and individual treatment. You must decide each case on its facts and reach a conclusion that is fair not only to the Government but also to the accused. In the performance of the duty that lies before you as members of this court-martial, I ask that you guide yourself not by emotional factors, but by evidence legally admitted in court and proved to your satisfaction. In the absence of proved fact, or when guilt is not proved beyond a reasonable doubt, your duty is clear. I ask that you not consider my remarks to be anything more than personal observations I have gathered throughout the years. These remarks are not meant to sway your judgment one way or another in considering any particular case. In fact, at this moment, no case has been referred to you for trial. I hope only that I have been able to impress upon you the importance and seriousness of the duty you are to perform.” Clearly the observations passed to the members of the newly appointed court were not improper. Having concluded the lectures did not inject improper command influence into the picture, we could end our discussion here. But in view of the defense complaints about the timing of the remarks, we deem it appropriate to say a word about that subject. The lectures were not singularly significant as to accused’s case, and were given a full month before he was tried. Indeed, neither the instant proceeding nor any other had even been referred to trial when the remarks were disseminated to the newly appointed court-martial. As a matter of fact, at the time of the lectures, there was no way for anyone to know just when accused might be tried. He had previously been restricted pending disposition of the larceny charge against him, but had absented himself without authority the middle of April 1960, and he did not surrender until more than a week after the lecture had been delivered. Patently the only significance about the timing of the lectures was that the convening authority desired all court members, before sitting on any case, to be appropriately advised of the serious nature of their obligation and the necessity for absolute impartiality and fairness unfettered by outside influence. Accordingly, we reject accused’s assignment of error and affirm the decision of the board of review. Chief Judge Quinn concurs in the result.