United States v. Smith , 1996 CAAF LEXIS 1 ( 1996 )

PER CURIAM:

Appellant has petitioned this Court for a grant of review contending in Issue II that the Court of Military Review ^* erred in holding that the military judge did not abuse his discretion in denying a challenge for cause against one of the members of his special court-martial. Specifically, appellant argues that conversations between the member and trial counsel amounted to an ex parte communication, creating a presumption of prejudice which was not rebutted, thus requiring that the member be excused from further participation.

The petition for grant of review is granted as to Issue II raised by appellate defense counsel.

During individual voir dire, the member, Chief Warrant Officer (CWO) Cottrell, was asked if he had engaged in discussions with trial counsel concerning military justice. He responded that, during the morning of the trial, he had talked with trial counsel, Captain Miller, concerning a sentence imposed in an earlier case where both were involved. CWO Cottrell stated that trial counsel had said that both he and the defense counsel found member sentences more interesting and creative punishments than those adjudged by military judges. However, CWO Cottrell made it clear that Captain Miller did not try to influence him and that they did not discuss the case about to be tried that day.

In other questions defense counsel established that Captain Miller had told the member that since he (Miller) had repeatedly heard the instructions of the military judge, he often did not pay attention when the judge was speaking only to the members. In response to a question by trial counsel on this subject, CWO Cottrell agreed that Captain Miller was really asking him whether the members were overwhelmed by the amount of information contained in the instructions.

Defense counsel challenged CWO Cottrell, arguing

that it is improper for trial counsel to establish a rapport with a member only 20 minutes before a trial, and, therefore, I think that his impartiality may have been affected; I at least think that there’s an appearance of it.

Trial counsel responded that his duties included assembly of the court members, and “they’re fellow Marine Corps officers, and we were talking generally about a lot of things.” He also indicated that he had several prior courts-martial where CWO Cottrell had been a member and that this was “a great general conversation with him ... more of familiarity than anything. We recognized each other as fellow officers____” Finally, he asserted that this was not an attempt to establish rapport; rather the discussion was just a matter of “common courtesy.”

In denying the challenge for cause the military judge observed:

I do note that Chief Warrant Officer Cottrell is one of the regular members here; has had exposure to both counsel and to myself. I don’t think that the conversation that was related here in court would have any kind of effect on rapport or not, and I think that defense was able to establish substantial rapport of his own during his voir dire here, so I don’t think that’s a factor that’s going to render the fairness of the proceedings suspect. And this kind of small talk does go on. It didn’t have anything to do with this case. Had it had anything to do with this case, then I think we might have a different matter.

We are concerned whenever counsel, military judges, or members engage in ex parte discussions. We understand that military service is such that a camaraderie exists whereby counsel and members are often social acquaintances or even friends. However, even casual conversations between trial participants and/or members may give rise to situations which create the appearance of impropriety and must be examined for possible prejudice. See United States v. Elmore, 33 MJ 387, 392-94 (CMA 1991), cert, denied, 504 U.S. 909, 112 S.Ct. 1938, 118 L.Ed.2d 544 (1992) and cases cited therein. Thus we urge all trial personnel to be circumspect in their interpersonal dealings.

In this case the responses by the member during voir dire resolved the issue at trial. We agree with the military judge that there was no reason to believe that the fairness of the proceedings was affected.

The decision of the United States Navy-Marine Corps Court of Military Review is affirmed.

* See 41 MJ 213, 229 n. * (1994).