United States v. Gudmundson , 2002 CAAF LEXIS 1692 ( 2002 )

UNITED STATES, Appellee
v.
Aaron J. GUDMUNDSON, Airman First Class
U.S. Air Force, Appellant
No. 02-0264
Crim. App. No. S29944
United States Court of Appeals for the Armed Forces
Argued October 16, 2002
Decided December 19, 2002
GIERKE, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., EFFRON, BAKER, and ERDMANN, JJ., joined.
Counsel
For Appellant: Captain Antony B. Kolenc (argued); Lieutenant
Colonel Beverly B. Knott, Major Terry L. McElyea, and Major
Jeffrey A. Vires (on brief).
For Appellee: Captain C. Taylor Smith (argued); Lieutenant
Colonel LeEllen Coacher and Lieutenant Colonel Lance B.
Sigmon (on brief); Captain Adam Oler and Captain Suzanne
Sumner.
Military Judge: Israel B. Willner
This opinion is subject to editorial correction before final publication.
United States v. Gudmundson, No. 02-0264/AF
Judge GIERKE delivered the opinion of the Court.
A military judge sitting as a special court-martial
convicted appellant, pursuant to his pleas,1 of wrongful use of
lysergic acid diethylamide (LSD), in violation of Article 112a,
Uniform Code of Military Justice, 10 U.S.C. § 912a (2002). The
adjudged and approved sentence provides for a bad-conduct
discharge, confinement for three months, and reduction to the
lowest enlisted grade. The Court of Criminal Appeals affirmed
the findings and sentence in an unpublished opinion.
This Court granted review of the following issue:
WHETHER THE CONVENING AUTHORITY, WHO TESTIFIED AT THE
COURT-MARTIAL PURSUANT TO A DISPOSITIVE SUPPRESSION
MOTION, WAS DISQUALIFIED FROM THEREAFTER TAKING R.C.M.
11072 ACTION IN THIS CASE.
We hold that any issue regarding the convening authority’s
disqualification was waived.
Factual Background
During the early hours of November 18, 2000, the first 100
airmen coming back onto Little Rock Air Force Base, Arkansas,
between the hours of 3:00 a.m. and 6:00 a.m., were required to
provide a urine sample. Appellant was one of those airmen. His
urine sample tested positive for LSD. The issue at trial was
1
Appellant’s guilty plea was conditional under the provisions of
Rule for Courts-Martial 910(a)(2) [hereinafter R.C.M.], and it
allowed him to preserve for appellate review his assertion that
the evidence against him was the product of an unlawful search
and seizure. Appellant raised the issue before the Court of
Criminal Appeals as well as this Court, but this Court did not
grant review of the issue.
2
R.C.M. 1107.
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whether the urinalysis results were the product of a valid
inspection or an unlawful search. See Military Rule of Evidence
313(b).
At trial, Appellant moved to suppress the urinalysis results
and the evidence derived from the urinalysis. In response, the
Government presented the testimony of Brigadier General (Brig
Gen) Paul Fletcher, the base commander and the convening
authority for this case. Brig Gen Fletcher had given the order
to execute the plan, dubbed Operation Nighthawk, for collecting
urine samples from airmen returning to the base.
Trial counsel asked Brig Gen Fletcher, “[W]hat was your
primary purpose in issuing that order?” Brig Gen Fletcher
explained that Operation Nighthawk was designed to obtain random
urine samples on the weekend before the drugs were out of the
airmen’s bodies. He testified that “his ultimate goal” was to
deter drug use “or at least make them think twice about going and
doing something on a weekend, knowing that there’s potential that
they may very well get tested on the weekend.” He testified that
deterrence was necessary, “because we all know we don’t want our
kids out there working on airplanes, driving vehicles, doing very
dangerous things, who have a propensity, or are using illegal
drugs.”
Brig Gen Fletcher testified that the command had begun
planning for Operation Nighthawk two or three weeks prior to
November 18. After they began planning, they learned that a rave
was scheduled off base on the night of November 17-18, which also
coincided with the mid-month payday. Brig Gen Fletcher decided
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to schedule Operation Nighthawk to coincide with the rave and the
mid-month payday.
Brig Gen Fletcher’s understanding of a rave, was that it
involved “a very young collection of kids getting together to
have a great time.” He understood that a rave included “a lot of
music, which is pretty typical, a lot of lights, a lot of glitz,
but on the other side, there are reports – validated reports – of
a lot of drug use, alcohol, potentially sexual acts going on.”
Brig Gen Fletcher testified that he had no specific
knowledge that Appellant or any other military member intended to
participate in the rave. Brig Gen Fletcher suspected that drugs
would be used at the rave but he had no specific knowledge or
reports indicating that drugs would be used.
The prosecution presented four stipulations of expected
testimony from members of the command involved in the planning
and execution of Operation Nighthawk: Special Agent Christopher
Holton, commander of the local detachment of the U.S. Air Force
Office of Special Investigations; Captain Joseph Engelbrecht III,
who was then the Operations Officer for the base Security Forces
Squadron; Lieutenant Colonel Daniel Rogers, the staff judge
advocate; and Master Sergeant Michael Cook, administrative
manager for the drug testing program. All four stipulations of
expected testimony were consistent with Brig Gen Fletcher’s
testimony.
In response to questions by the military judge, Brig Gen
Fletcher testified that he personally addresses new members of
the command at a “Right Start” briefing. He testified that in
his briefing he tells new airmen that there is a significant drug
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problem in the Little Rock area and that drug use is
“incompatible with Air Force service.”
The defense did not present any evidence on the motion to
suppress. In its written motion as well as its oral argument on
the motion, the defense asserted that Operation Nighthawk was a
pretext and a subterfuge for an illegal search.
The military judge denied the motion to suppress. The staff
judge advocate did not mention the motion in his post-trial
recommendation. Appellant did not challenge the validity of the
inspection in his post-trial submission. In his clemency
petition, appellant reminded Brig Gen Fletcher that he had
testified at the court-martial, but he did not ask Brig Gen
Fletcher to disqualify himself.
Discussion
Appellant now asserts that the convening authority should
have disqualified himself because he testified on controverted
matters, had a personal interest in the litigation, and was put
in a position where he was required to review his own actions.
The Government asserts that Appellant “forfeited”3 the issue by
failing to object to the convening authority’s post-trial
involvement in the case.
3
The Government uses the term “forfeited,” used by the Supreme
Court in United States v. Olano, 507 U.S. 725, 732-34 (1993), to
describe a failure to preserve an issue by timely objection. See
United States v. Powell, 49 M.J. 460, 463-64 (C.A.A.F. 1998).
The Rules for Courts-Martial use the term “waived” rather than
“forfeited” to describe a failure to preserve an issue by timely
objection. See, e.g., R.C.M. 801(g), 905(e), 919(c), 920(f),
1001(g), 1005(f), and 1106(f)(6). Accordingly, we will use the
term “waived” instead of “forfeited.”
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A convening authority’s testimony at trial is not per se
disqualifying, but it may result in disqualification if it
indicates that the convening authority has a “personal connection
with the case.” United States v. McClenny, 5 C.M.A. 507, 512-13,
18 C.M.R. 131, 136-37 (1955). However, “if [the convening
authority’s] testimony is of an official or disinterested nature
only,” the convening authority is not disqualified. Id. at 513.
Based on these principles, this Court has held that a
convening authority was not disqualified by testifying about his
authorization for a search. United States v. Cansdale, 7 M.J.
143 (C.M.A. 1979). However, where the convening authority’s
testimony authenticating an official document required him to
later determine the factual accuracy of that document, this Court
held that the convening authority was disqualified. McClenny, 5
C.M.A. at 512-13; 18 C.M.R. at 136-37. Similarly, where the
convening authority’s testimony on a speedy-trial issue made it
necessary for him to review his own diligence in processing the
case, this Court held that his testimony was disqualifying.
United States v. Reed, 2 M.J. 64 (C.M.A. 1976).
If an appellant fails to make a timely motion or objection
raising the disqualification issue, the issue may be waived. See
United States v. Shiner, 40 M.J. 155, 157 (C.M.A. 1994); United
States v. Jeter, 35 M.J. 442, 447 (C.M.A. 1992). Where, however,
an appellant was unaware of the ground for disqualification, this
Court has declined to apply waiver. United States v. Fisher, 45
M.J. 159, 163 (C.A.A.F. 1996). We review issues of waiver and
plain error de novo, as questions of law. See United States v.
Kho, 54 M.J. 63, 65 (C.A.A.F. 2000).
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We hold that the issue was waived in this case. Appellant
was aware of the convening authority’s involvement, but he chose
to not raise the disqualification issue at trial or in his post-
trial submission to the convening authority. See Fisher, 45 M.J.
at 161-62; Jeter, 35 M.J. at 447.
Decision
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
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