United States v. Czerwonky

Opinion of the Court Quinn, Chief Judge: This is an appeal from a conviction by general court-martial for several offenses, including robbery, in violation of Article 122, Uniform Code of Military Justice, 10 USC § 922. The accused contends that a remark by a court member, during a closed session conference with the law officer for the purpose of putting the findings in proper form, indicates the member had prior knowledge of a matter concerning the accused which he should have disclosed during the challenge proceedings at the start of the trial. Eliminating remarks immaterial to issue before us, the colloquy between the law officer and the court members on the form of findings is as follows: “LO: . . . Check me now and see if this is what you’ve turned up. ‘Private CZERWONKY, it is my duty as president of this court to inform you that the court in closed session and upon secret written ballot, two-thirds of the members present at the time the vote was taken, concurring in each finding of guilty finds you of the specification Charge I, guilty.’ It’s also got to say; and Charge I. “PRES: Specification 1 of Charge II rather. . . “LO: Of specification 1, Charge II, guilty and Charge II, guilty and of the specification and additional charge, guilty. “PRES: Of the charge, guilty. “LO: And then, of Charge I, guilty and then back up to Charge II. “PRES: Do we all agree? “MEMBER: I think that he’s a PFC though. He’s a PFC. “MEMBER: No, he’s a private. He was busted at office hours.” Appellate defense counsel contend the court member’s comment that the accused had been “busted at office hours” indicates he had prior knowledge of the accused’s involvement in a criminal offense which he should have disclosed on the voir dire examination. See United States v Schuller, 5 USCMA 101, 17 CMR 101. Since there was no disclosure, the argument continues, the accused was deprived of the right to challenge the court member for cause. See United States v Lynch, 9 USCMA 523, 26 CMR 303. The argument rests on an unarticulated assumption that the comment was predicated solely on the members private knowledge of the incident. At the outset, we reject the accused’s suggestion that the unidentified court member deliberately concealed knowledge of the fact that he knew the accused had been reduced in grade at “office hours.” The voir dire of the court members shows a genuine effort on their part to reveal all information they had that might bear upon the case. A copy of the charge sheet was given to each court member. After reading it, one member immediately noted he recognized the names of two persons mentioned in the specifications. These persons were members of the same battalion to which he was assigned, and he knew them “by sight.” Another mem [355] ber indicated that when in Japan he had heard about the case, but he “knew nothing about the individual involved.” After full examination, both members were accepted by defense counsel. Also important to the charge of deliberate concealment is the nature of the alleged knowledge. It relates merely to official action of a relatively minor nature. See Article 15, Uniform Code of Military Justice, 10 USC § 815. It is not, therefore, the kind of information that would induce a member to conceal his knowledge of it for fear of being challenged for cause. See United States v Washington, 8 USCMA 588, 25 CMR 92; United States v Edwards, 4 USCMA 299, 15 CMR 299; cf. United States v Schuller, supra. So far as inadvertent silence is concerned, the record of trial contains matter from which reasonably it can be concluded the statement was based on what the member had heard in open court, rather than upon his prior knowledge.1 The specification of Charges I and II described the accused as a Private First Class. These oifenses were alleged to have occurred on March 19, 1961. The specification of the Additional Charge described the accused as a Private; that offense, escape from confinement, was allegedly committed on May 21, 1961. As previously noted, a copy of the charge sheet was given to each court member. On the arraignment, the accused was described as a Private. In the course of the trial, evidence was introduced to the effect that the accused and other persons appeared before their commanding officer in May 1961 and were informed that “they would be placed in the security area at Camp Hansen, Okinawa, for violations of the Uniform Code of Military Justice.” Persons sent to the security area were “liberty risks,” whom the commander believed should be detained in camp. The commander gave the accused’s rank as Private. Before his appearance before the commanding officer, the accused had not been allowed to go on liberty. These circumstances reasonably justify the conclusion that between March 19 and May 21, 1961, the accused had been reduced in grade. They also suggest the reduction was prompted by some action of the accused which required that he be disciplined, but that the misdeed was minor and was disposed of at office hours, rather than by court-martial. In our opinion, therefore, the record of trial indicates the member’s comment was based upon matters presented in open court, and does not support the accused’s allegation that the member possessed previous knowledge that the reduction was effected at office hours. In any event, even if, in fact, the court member had prior knowledge that the accused was reduced at office hours, we perceive no possibility that the knowledge, and the member’s disclosure of it in closed session, prejudiced the accused as to either the findings or the sentence. We are not informed of the exact nature of the misdeed that led to the accused’s reduction, but since it resulted only in “office hours” punishment, manifestly it was no more than a very minor wrong. Knowledge of a minor act of misconduct in a prosecution for a serious crime is not likely, in the absence of other circumstances, to make so indelible an impression on the court members as to prejudice them in their deliberations on the accused’s guilt or innocence or in their imposition of sentence. One of the offenses of which the accused was tried and convicted in this case is robbery. Referring to the relation between that crime and a “simple delinquency,” we have said: “. . . If the previous misconduct appears to be ‘a simple delinquency,’ and the offense charged is substantially different in character and in the degree of seriousness, it is im [356] probable that evidence of the former would persuade the court members that the accused was more likely to commit the latter than would a person whose earlier conduct was irreproachable. United States v Thomas, 6 USCMA 92, 19 CMR 218; cf. United States v Kelley, 7 USCMA 584, 23 CMR 48; United States v Richard, supra. It is hardly disputable for example, that a conviction for failing to maintain clean boots, in violation of Article 134 (see Manual for Courts-Martial, United States, 1951, paragraph 127(c), Section A, page 227), would have no measurable significance in a case in which the accused is charged with aiding the enemy, in violation of Article 104, Uniform Code of Military Justice. Here, the accused was charged with robbery, an offense which all persons know to be a very serious crime. What of the accused’s earlier conduct? . . . “From the Colonel’s remarks, we do not know the nature of the accused’s misconduct. However, it seems clear that his transgressions were relatively minor. The reference to ‘disciplinary punishment,’ in conjunction with the comment on the accused’s work for the Colonel as a ‘prisoner,’ gives a distinct impression that the accused’s previous misdeeds were ‘simple delinquencies.’ . . . “The record of trial clearly indicates that the Colonel’s comments on the accused’s previous misconduct did not make an indelible impression upon other court members. Considering that fact, in conjunction with the testimony of the remaining members that they would impartially judge the case upon the basis of the evidence, we are of the opinion that there is no fair risk that the Colonel’s statements prejudiced the other court members against the accused. United States v Stewart, 1 USCMA 648, 5 CMR 76.” [United States v Washington, 8 USCMA 588, 590, 25 CMR 92.] The decision of the board of review is affirmed. Judge Kilday concurs. Footnotes [1] This conclusion serves to explain the law officer’s failure to reopen the case to acquaint defense counsel with the member’s remark and to give the defense an opportunity to challenge the member. Throughout the trial the law officer was alert to the accused’s rights. It is probable, therefore, that he understood the member’s remark to be based upon the evidence, and to be in accord with hl§ own recollection of it.