(concurring):
Contrary to the dissenting judge’s position, I do not find that my opinion in United States v. Clark, 7 M.J. 178 (C.M.A.1979), requires that this case be affirmed. The military judge in Clark noted various factual conclusions when he advised the court members that he had made a preliminary ruling on the admissibility of accused’s pretrial statement. The accused argued before this Court that the specific reference to the factual conclusions improperly influenced the court members in their determination of the voluntariness of the pretrial statement. We rejected the defense position because the military judge also instructed the members that he had resolved only the preliminary issue of admissibility; that the members had to resolve the ultimate issue of voluntariness; and they were not to be influenced by his preliminary ruling. He meticulously detailed the defense evidence as to the lack of voluntariness; advised the court members that they must be satisfied beyond a reasonable doubt that the accused did not sign the pretrial statement for the reasons indicated by defense evidence; advised them on the matter of voluntariness; and four times repeated his admonition not to be influenced by his preliminary ruling. On the basis of the foregoing, I concluded that the accused had not been prejudiced.
The present case comes to us in a totally different posture. As the Chief Judge notes in his opinion, this was a closely contested ease. The evidence was not overwhelming, but the military judge summarized it in a manner very favorable to the Government. I do not believe that a general instruction to ignore his summarization could dissipate the prejudice introduced by his one-sided evaluation. Accordingly, I concur.