For Appellant: Captain Blair T. O’Connor (argued); Colonel John T. Phelps, II, Colonel Adele H. Odegard, and Captain Kirsten V. Campbell-Brunson (on brief); Major Holly S. G. Coffey, Captain Jodi E. Terwilliger-Stacey, and Captain Norman R. Zamboni.

For Appellee: Captain Troy A. Smith (argued); Colonel Russell S. Estey and Major Patricia A. Ham (on brief).

Military Judge: Larry R. Dean
 
 

Judge GIERKE delivered the opinion of the Court.

A special court-martial convicted appellant, pursuant to his pleas, of wrongful use of cocaine, in violation of Article 112a, Uniform Code of Military Justice, 10 USC § 912a. The adjudged and approved sentence provides for a bad-conduct discharge and reduction to the lowest enlisted grade. The Court of Criminal Appeals affirmed in an unpublished opinion.

This Court granted review of the following issues:

The court-martial was composed of officer and enlisted members. The first granted issue involves two members, Command Sergeant Major (CSM) Legoas and Sergeant First Class (SFC) Walder. During general voir dire by trial counsel, all members expressed their willingness and ability to be "fair, impartial, and open-minded in [their] consideration of an appropriate sentence." During general voir dire by defense counsel, all members acknowledged that a guilty plea demonstrates acceptance of responsibility. All members agreed with defense counsel "that a federal conviction is in and of itself punishment" that would foreclose "many opportunities and privileges." No member felt obliged to adjudge a punitive discharge, confinement, or reduction in grade because of the nature of the offense. All members understood that "with the judge’s instructions [they were] authorized to adjudge no punishment." Only one member expressed inability to follow such an instruction, and he was successfully challenged for cause.

The defense concern about the sentencing attitudes of the members was triggered by trial counsel’s question whether the members could let appellant stay in the military "irrespective of whether [they thought] he could have a successful career afterwards." CSM Legoas responded, "I wouldn’t [let him stay]." Upon further questioning, CSM Legoas agreed that what he meant was that he did not think appellant could have a successful career.

Defense counsel picked up on that cue and asked whether the members could, "on the judge’s instruction, come back and keep [appellant] in the United States Army?" Four members, including CSM Legoas, indicated they would have a problem with that. One member responded, "It’s my opinion that as a result of this action Sergeant Rolle’s career is over and we should allow it to be over. That’s my opinion." The military judge later sustained a challenge for cause against that member.

CSM Legoas then spontaneously directed the following comment to defense counsel:

During individual voir dire of CSM Legoas, the following colloquy occurred:

The defense case on sentencing focused on appellant’s service record and potential for rehabilitation. Five noncommissioned officers -- a sergeant, two staff sergeants, a sergeant first class, and a first sergeant -- testified on his behalf. In an unsworn statement, appellant expressed remorse and shame for his use of cocaine. He told the court members that, based on his misconduct, he was not sure that he was worthy to wear the uniform again.

In his sentencing argument, defense counsel emphasized appellant’s remorse and his potential for rehabilitation. He argued that "[a] federal conviction, sitting by itself without getting wrapped around the axle about the no punishment issue," is punishment. After pointing out that the sentence worksheet listed a range of punishments from "no punishment," the least severe, to confinement and punitive discharge, the most severe, he asked the court members not to discharge or confine appellant. He did not ask the court members to impose a sentence to no punishment.

Appellant asserts that the military judge abused his discretion in applying the liberal-grant mandate, because CSM Legoas and SFC Walder indicated that they would not be able to consider a sentence to no punishment. The Government argues that the military judge did not abuse his discretion because neither member expressed an inelastic attitude toward sentencing.

RCM 912(f)(1)(N), Manual for Courts-Martial, United States (1995 ed.),^* requires that a member be removed for cause if that member "[s]hould not sit as a member in the interest of having the court-martial free from substantial doubt as to legality, fairness, and impartiality." Under this rule, a member is disqualified if he or she "has an inelastic opinion concerning an appropriate sentence for the offenses charged." RCM 912(f)(1)(N), Discussion. RCM 912(f)(3) provides that "[t]he burden of establishing that grounds for a challenge exist is upon the party making the challenge."

On appeal, a military judge’s ruling on a challenge for cause is given "great deference." United States v. Rome, 47 MJ 467, 469 (1998). We will reverse only for a "clear abuse of discretion." United States v. White, 36 MJ 284, 287 (1995).

Predisposition to impose some punishment is not automatically disqualifying. United States v. Jefferson, 44 MJ 312, 319 (1996); United States v. Tippit, 9 MJ 106, 107 (CMA 1980). "[T]he test is whether the member’s attitude is of such a nature that he will not yield to the evidence presented and the judge’s instructions." United States v. McGowan, 7 MJ 205, 206 (CMA 1979). Recently, in United States v. Schlamer, 52 MJ 80, 93 (1999), we observed that "[a]n inflexible member is disqualified; a tough member is not."

The issue in this case arises from questions propounded to the members in a vacuum, before they heard any evidence or received instructions from the military judge. In United States v. Heriot, 21 MJ 11, 13 (CMA 1985), this Court stated that it was "sympathetic with the plight of court-martial members who on voir dire are asked hypothetical questions about the sentence they would adjudge in the event of conviction." We expressed reluctance "to hold that a prospective member who is not evasive and admits to harboring an opinion that many others would share -- such as that a convicted drug dealer should not remain a noncommissioned officer or should be separated from the armed services -- must automatically be excluded if challenged for cause." Id. In United States v. Reynolds, 23 MJ 292, 294 (CMA 1987), this Court held that neither side "is entitled to a commitment" during voir dire about "what they will ultimately do." See also United States v. Rockwood, 52 MJ 98, 114 (1999) (Gierke, J., concurring) (military judge should not have allowed voir dire asking for sentencing commitment).

It is not surprising that the notion of "no punishment" has bedeviled this Court for most of its history. A punishment of no punishment appears to be an oxymoron, but it is a valid punishment. In Ball v. United States, 470 U.S. 856, 861 (1985), the Supreme Court observed that "Congress does not create criminal offenses having no sentencing component." In United States v. Atkins, 8 USCMA 77, 23 CMR 301 (1957), Judge Latimer dissented from a holding that a board of review had authority to affirm a sentence of "no punishment." Judge Latimer opined that a sentence of no punishment was tantamount to a pardon, which is a power reserved to the Executive branch, not the Judiciary. 8 USCMA at 80, 23 CMR at 304. In United States v. Jones, 14 USCMA 177, 33 CMR 389 (1963), this Court recognized that a court-martial was empowered to adjudge a sentence of no punishment. A sentence to no punishment does not automatically result if the members cannot agree on a sentence; it must be agreed to by two-thirds of the members. United States v. Goffe, 15 USCMA 112, 35 CMR 84 (1964). In the context of challenges for cause, the majority opinion in United States v. McLaren, 38 MJ 112, 119 n.* (CMA 1993), includes the following observation:

Turning to the challenge of SFC Walder, we also find no clear abuse of discretion. In his responses to general voir dire, SFC Walder, along with the other members, agreed that a federal conviction itself is punishment and that it has adverse collateral consequences. He expressed willingness to follow the military judge’s instructions. Responding to trial counsel’s questions, he said he would consider no punishment, "depending on the evidence." Responding to defense counsel’s questions, he said that he could consider no punishment, but "there’s a thin line that I cannot punish him at all." Upon further questioning, he said that he could not give no punishment.

At the outset, we note that no one asked SFC Walder what he considered to be "punishment." He had previously responded during general voir dire that a conviction in itself was punishment. CSM Legoas had raised the possibility of administrative separation during general voir dire. We cannot ascertain from this record whether SFC Walder thought that no punishment meant no conviction, no collateral consequences of a conviction, or no administrative separation. Thus, we have another case of responses to "artful, sometimes ambiguous inquiries" that do not require the military judge to grant a challenge for cause. United States v. Bannwarth, 36 MJ 265, 267 (CMA 1993), quoting Tippit, 9 MJ at 108.

Furthermore, even if SFC Walder meant what appellant asserts he meant, i.e., that he could not vote for a sentence of no punishment under any circumstances, we would still find no clear abuse of discretion under the specific facts of this case. Appellant pleaded guilty after negotiating a pretrial agreement that permitted imposition of a bad-conduct discharge and a short period of confinement. In his unsworn statement, he expressed doubt about his worthiness to wear the uniform. Finally, defense counsel’s closing argument asked for no discharge and no confinement, but did not ask the members to impose no punishment. Under these circumstances, the record reflects that all parties considered no punishment to be "outside the range of reasonable and even remotely probable sentences." United States v. McLaren, supra.

At first blush, the facts of this case appear similar to those in United States v. Giles, 48 MJ 60 (1998). In both cases, a key sentencing issue at trial was whether the accused should receive a punitive discharge. In both cases, the challenged member demonstrated an inelastic attitude about an aspect of sentencing. In Giles, the challenged member had an inelastic attitude regarding a punitive discharge; in this case, the challenged member indicated an inelastic attitude about "no punishment," although, as indicated above, it is not clear what he thought "no punishment" entailed.

However, there are critical differences between this case and Giles. SFC Walder expressed no predisposition regarding the real sentencing issues in this case: whether to impose a punitive discharge and confinement. SFC Walder’s attitude regarding "no punishment" had no bearing on the real sentencing issues, because the defense virtually conceded in sentencing argument that "no punishment" was "outside the range of reasonable and even remotely probable sentences."

In Giles, we held that the military judge abused his discretion by denying the challenge for cause. However, because of the above-described differences between this case and Giles, we hold that the military judge did not abuse his discretion in this case.

The decision of the United States Army Court of Criminal Appeals with respect to Issue I is affirmed. The decision is set aside with respect to Issue II. The record of trial is returned to the Judge Advocate General of the Army for remand to that court, which will consider whether appellant is within the class of persons who are entitled to relief under United States v. Gorski, supra. If the court concludes that appellant is within such class, the court will refer the record to the Judge Advocate General for a determination as to the amount of relief that is warranted, if any.

FOOTNOTE:

^* The current version is unchanged.

SULLIVAN, Judge (concurring in part and in the result):

I concur with the majority opinion, except where it vainly attempts to square its opinion today with its opinion in United States v. Giles, 48 MJ 60 (1998). One looking at the facts of both cases can see that the majority’s attempt to reconcile these two very similar cases is flawed with the same semantics at issue in both cases — the phrasing of artful, ambiguous questions. ^*/

In Giles, the majority held that a member had an inelastic attitude towards sentencing when,

In the present case, during group voir dire, SFC Walder, along with all the other panel members, did not state that he felt an obligation to adjudge a punitive discharge, confinement, or grade reduction because of the nature of the offense. Moreover, he expressed an understanding that "with the judge’s instructions [he was] authorized to adjudge no punishment." (R. at 50, 51). When asked the same question on individual voir dire, SFC Walder gave the same answer. (R. at 79). After twice repeating his position, SFC Walder succumbed to the increasingly artful questioning by defense counsel and stated that he would not give no punishment. (R. at 79-80, 80-81).

This is precisely the situation, i.e., inconsistent answers to repeated and increasingly complex questions by both trial and defense counsel, that lends itself best to the judgment of a trial judge who is present and observing the proceedings, rather than a distant appellate tribunal. At the end of the day, whether such artful questioning pertains to "real sentencing issues" (the majority’s term) or not, does not change the wisdom of deferring to the determination of the military judge. See United States v. Giles, 48 MJ 60, 63 (1998) (Sullivan, J., dissenting).

FOOTNOTE:

^* More particularly, I do not agree with the majority’s attempts to distinguish Giles on the basis that the artful questioning in that case concerned "real sentencing issues," but not in appellant’s case. This unsupported view of the law was not adopted by a majority in United States v. McLaren, 38 MJ 112, 119 n.* (CMA 1993), and it suggests that a member’s answers to no-punishment questions are usually irrelevant. I disagree (see RCM 1002, "a court-martial may adjudge . . . a sentence of no punishment"), and would note that a member’s intent to not follow the judge’s instructions and the law on a permissible punishment is always a relevant concern. See United States v. McGowan, 7 MJ 205, 206 (CMA 1979).