United States v. Demeio

OPINION OF THE COURT COHEN, Judge: At the request of the appellant, the general court-martial which was to adjudge a sentence after his plea of guilty was composed of officer and enlisted members. The convening authority appointed six officers and four enlisted members, but, after voir dire and challenges, the composition of the court was reduced to six officers and two enlisted men. At this point the trial was recessed to allow the trial counsel an opportunity to advise the convening authority that corrective action was necessary because the enlisted persons did not constitute at least one-third of the membership of the court. After learning that the convening authority could not be contacted and that no one formally assumed command during his absence, the military judge proposed “a novel and perhaps unauthorized solution” if both counsel would agree. He proposed to allow each side an additional peremptory challenge provided that it would be exercised against an officer member. Both counsel agreed, exercised their challenge and the court, now composed of one-third enlisted members, sentenced the appellant to a dishonorable discharge, confinement for two years, and total forfeitures. The convening authority, pursuant to the pretrial agreement, approved only so much of the sentence as provided for a bad-conduct discharge, total forfeitures, and confinement at hard labor for ten months. On appeal, appellant claims that the military judge erred in allowing both sides an additional peremptory challenge to reduce the court membership so that it was in compliance with the mandatory ratio and that the court-martial so composed lacked jurisdiction to sentence him. We agree that the military judge was in error as the number of peremptory challenges to be afforded each side is not within his discretion. Article 41(b), Uniform Code of Military Justice, 10 U.S.C. § 841(b) (1976); United States v. Calley, 46 C.M.R. 1131 (A.C.M.R. 1973). But see United States v. Harris, 13 M.J. 288, 294 n. 3 (C.M.A.1982) (Everett, C.J., dissenting). However, such error did not divest the court-martial of its jurisdiction. United States v. Calley, supra. Testing the peremptory challenge error for prejudice, we find none. The defense agreed to the extra peremptory challenge after being informed by the military judge of the novelty and suspect authority of his proposal. Accordingly, the findings of guilty and the sentence are affirmed. Judge NAUGHTON concurs.