IN THE CASE OF
UNITED STATES, Appellee
v.
Allan P. JAMES, Airman
No. 04-0284
Crim. App. No. 34863
Argued
Decided
ERDMANN, J., delivered the opinion of the court, in which GIERKE, C.J., and CRAWFORD, EFFRON, and BAKER, JJ., joined.
Counsel
For Appellant: Captain L. Martin Powell (argued); Major Terry L. McElyea (on brief).
For Appellee: Captain Stacey J. Vetter (argued); Colonel LeEllen Coacher and Lieutenant Colonel Robert V. Combs (on brief).
Military Judge: Thomas W. Pittman
This opinion is subject to
revision before final publication.
Judge ERDMANN delivered the opinion of the court.
Airman
Allan P.
James pleaded guilty to using and distributing ecstasy in violation of
Article
112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 912a (2000). He was sentenced to a dishonorable discharge,
two years of confinement, forfeiture of all pay and allowances, and
reduction
to the grade of E-1. The convening
authority approved the findings and sentence and granted James 120 days
of
administrative confinement credit under Rule for Courts-Martial
(R.C.M.)
305(k). On
A
judge may limit
a defendant’s cross-examination of a prosecution witness regarding the
terms of
a plea agreement entered into by the witness, so long as adequate
inquiry into
possible bias of that witness has been allowed through other lines of
questioning.
A
member of a
court-martial panel may be removed for cause if it is shown that he or she “has an inelastic opinion
concerning an appropriate sentence for the offenses charged.” R.C.M. 912(f) discussion. During voir dire one of the potential members
expressed reservations about discharging servicemembers who were
convicted of minor
drug crimes. She later agreed that if
the evidence warranted, she would be able to vote for a punitive
discharge. The military judge granted the
Government’s challenge for cause against the member.
We granted review of Issue II to evaluate
whether the military judge’s decision to grant the challenge for cause
was
prejudicial error.2
We find that the military judge did
not err in regard to either ruling. His
ruling limiting cross-examination did not impermissibly infringe on
James’s
Sixth Amendment rights and his grant of the Government’s challenge for
cause
was not an abuse of discretion.
Accordingly, we affirm the decision of the Court of Criminal
Appeals.
I.
Cross-Examination
of Airman Basic Rose
Background
During the sentencing
phase of the trial, the prosecution called Airman Basic Scott Rose,
James’s alleged
best friend, to testify against James.
Rose testified that James had introduced him to ecstasy by
providing him
with his first ecstasy pill. He also
testified about James’s use and distribution of ecstasy on a number of
occasions. At the time of his testimony,
Rose had been tried by a general court-martial, had pled guilty
pursuant to a
pretrial agreement, and had been sentenced.
His pretrial agreement limited the
period of confinement that could be approved by the convening authority
to eighteen
months. Although the maximum authorized
punishment for Rose’s crimes included the possibility of confinement
for fifty-two
years, his adjudged sentence was eighteen months and a punitive
discharge. At the time of Rose’s testimony
he had not
yet submitted clemency matters for the convening authority’s
consideration.
During cross-examination
of Rose, the defense attempted to explore Rose’s potential bias in
favor of the
Government by inquiring into Rose’s offenses and the terms of his
pretrial
agreement. The military judge allowed the
defense some latitude to explore potential motives for Rose to
fabricate
testimony because of his pretrial agreement.
He ruled, however, that the terms of Rose’s pretrial agreement
concerning the maximum punishment the convening authority could approve
were not
relevant.
In response to questioning by the defense and trial counsel, Rose acknowledged: (1) that he had a pretrial agreement in his own court-martial; (2) that as part of that pretrial agreement he pleaded guilty and entered into a stipulation of facts; (3) that he had immunity for his testimony in James’s court-martial; (4) that his pretrial agreement required him to cooperate with the Government against his best friend; and (5) that clemency was still pending in his case and as part of that process he would be able to tell the convening authority that he had cooperated and testified against James.
Discussion
Military Rule of Evidence 608(c) provides
that “[b]ias, prejudice, or any motive to
misrepresent
may be shown to impeach the witness either by examination of the
witness or by
evidence otherwise adduced.” James
argues that he was precluded from adequately exploring the bias and
motives of
a witness against him by the military judge’s rulings, in violation of
his
Sixth Amendment rights. He notes that in
his pretrial agreement, Rose received a reduction in his possible
sentence from
fifty-two years to eighteen months. He
argues that this potential windfall was relevant evidence of Rose’s
bias in
favor of the Government, regardless of the fact that Rose had already
been sentenced
to eighteen months and would not realize any actual benefit of the
sentence
limitation.
The Government argues that the
military judge exercised his discretion in placing reasonable limits on
Rose’s cross-examination
in order to avoid confusion of the issues.
It contends that James had ample opportunity to explore Rose’s
bias by
exposing the fact that he was testifying pursuant to a pretrial
agreement and by
obtaining his admission that he might receive a benefit in the form of
clemency
from his testimony. The Government
concludes that Rose’s failure to actually benefit from the agreement
means that
the terms of the agreement are not relevant to show possible bias.
In
United States v. Bahr, 33 M.J. 228, 232 (C.M.A. 1991), this
court adopted
the standard set forth by the Supreme Court in Delaware v. Van
Arsdall,
475 U.S. 673 (1986), for determining whether cross-examination
inquiring into
the potential bias of a witness was properly limited:
“[w]e
have recognized that the exposure of
a witness’ motivation in testifying is a proper and important function
of the
constitutionally protected right of cross-examination.”
475
In
United States v. Maceo, 947 F.2d 1191 (5th Cir. 1991), the
Fifth Circuit found that the trial judge did not err when he limited
the
defense attorney’s cross-examination of a witness regarding the terms
of his
plea agreement. The court noted that
“[t]he
Confrontation Clause does not prohibit a trial judge from limiting
cross-examination where the testimony would confuse the issues, is
repetitive
or only marginally relevant.” Maceo,
947 F.2d at 1200 (citing Van Arsdall, 475
In United
States v. Nelson, the Seventh Circuit found that the Sixth
Amendment rights
of the defendants were not violated where the trial judge prevented
defense
counsel from asking two prosecution witnesses “what penalties they
might have
faced without plea bargains.” 39 F.3d 705, 707-08 (7th Cir. 1994).
Defense counsel was allowed to impeach the
motives of the witnesses by eliciting testimony that the witnesses were
testifying under plea bargains as well as what benefits they were to
receive
from their agreements.
The court in Nelson discussed the limitations of cross-examination and noted that courts must initially distinguish between the “‘core values of the confrontation right and more peripheral concerns which remain within the ambit of the trial judge’s discretion.’” 39 F.3d at 709 (quoting United States v. Saunders, 973 F.2d 1354, 1358 (7th Cir. 1992)). Addressing the limitations imposed by the trial judge, the court found that there was no constitutional violation because the limitations:
on cross-examination
did not deny the defendants the opportunity to establish that
the
witnesses may have had a motive to lie;
rather, the limitations denied them the opportunity to add extra
detail
to that motive. “‘The exposure of a witness’ motivation
in testifying is a
proper and important function of the constitutionally protected right
of
cross-examination.’” Van
Arsdall, 475
Faced
with
somewhat different factual situations, other circuit courts have taken
different views of the issue. In United States v. Roan Eagle,
867 F.2d
436 (8th Cir. 1989), a prosecution
witness had pleaded guilty to manslaughter
instead of murder as part of her plea agreement but had not yet been
sentenced. The Eighth Circuit
found that under those circumstances an inquiry into the terms of the
agreement
was essential. The court noted that the
information is especially relevant if the witness has not yet been
sentenced
because “there is a continuing incentive to give testimony that
strengthens the
prosecution’s case.”
In
United States v. Schoneberg, 388 F.3d 1275 (9th Cir. 2004), the
prosecution witness was a coconspirator whose plea agreement required
his
cooperation with the Government. The
jury was made aware of the plea agreement and also was told that a term
of the
plea agreement reserved the possibility of a sentence reduction after
the
witness testified against his coconspirators.
That term required the Government to file a post-sentencing
motion to
reduce the witness’s sentence if it determined that he had provided
“substantial assistance” to the Government through his testimony. Schoneberg, 388
F.3d
at 1277-78.
The
trial judge prohibited the defense attorney from cross-examining the
witness as
to whether his testimony was affected by the Government’s promise to
move for a
sentence reduction if he provided them with “substantial assistance.”
Having
reviewed the holdings in these cases, we conclude that the limitations
placed
on cross-examination by the military judge were within his discretion
and did
not affect James’s core constitutional right to cross-examination. The members knew that Rose had received an
agreement in exchange for his testimony and that pursuant to that
agreement he
had pleaded guilty and entered a stipulation of fact.
They also knew that this agreement required
him to cooperate with the Government in James’s prosecution. They knew that he had been granted immunity
for his testimony in James’s trial. Finally, they knew that his clemency hearing
was still pending and that he would be able to tell the convening
authority
that he had cooperated in James’s prosecution.
As the Seventh Circuit noted in Nelson, once the
defendant has
been allowed to expose a witness’s motivation in testifying, “it is of peripheral concern to the Sixth
Amendment how much
opportunity defense counsel gets to hammer that point home to the jury.” Nelson 39 F.3d at
708.
Additionally,
we find it important to consider that although Rose entered into a
pretrial
agreement that promised a substantial reduction in sentence if he
cooperated
with the Government, he already had been sentenced to eighteen months
of
confinement by members who had no knowledge of the terms of the
pretrial
agreement. This is distinguishable from
both
Roan Eagle and Schoneberg where the witnesses had yet to
receive
the benefit of their bargain with the Government and were therefore
under a
continuing obligation to comply with their agreements to testify
against the
defendant to obtain the promised relief.
Rose’s only “continuing incentive” identified in this case was
that his clemency
appeal was pending before the convening authority and if he testified
favorably
he would be able to inform the convening authority that he cooperated
with the
Government in James’s trial. As noted
above, the military judge allowed the defense to bring these facts to
the
attention of the members and expose Rose’s potential bias and motive to
lie.
A
military judge has wide discretion to limit repetitive
cross-examination or to
prohibit cross-examination that may cause confusion.
See Van Arsdall, 475
II. Voir Dire of Major Winkler
Background
During voir dire of potential panel
members, Major (Maj) Maryellen Winkler was questioned regarding her
view of
discipline in the Air Force and more specifically regarding her views
on
punishments for drug crimes. In
responding to those questions Maj Winkler mentioned her concern over a
newspaper article that she had seen regarding a large drug bust in
which a
number of Air Force members were caught and punished.
Her testimony in response to questions from
the trial and defense counsels and the military judge is as follows:
Examination
by Circuit Trial Counsel:
Q. Major Winkler in
response to one of my questions regarding progressive discipline, you
said that
you didn’t feel that a court-martial may be the appropriate starting
point for
someone who has admitted guilty to use and illegal distribution of
drugs. Could you please expound on your
answers to
why you feel that way?
A. I truly feel, looking
at the individual, it almost feels like it is a one shot deal. You have
one
shot at making a mistake and then that’s it. Of course everyone has
seen the
Air Force Times showing the big drug bust in the
Q. The length of time?
A. The length of time and
what they received, yes.
Q. Will
you be thinking about that back in the deliberation room?
A. I’m human and that is
just how I feel. Yes, I would be. It
might be just my personality, it just might be looking at him, he’s
young, does
he just deserve one shot and hopefully not getting what they gotten. There is a conflict in my mind.
But, I didn’t hear any of the evidence and I
don’t know exactly what is going on, etc.
Q. Let me ask you . . . do
you think that drug use is more of a medical problem then [sic] . . .
A. No, not at all. I
guess maybe what I am thinking is that we
are all young, we all do stupid stuff sometimes, and one mistake
shouldn’t kill
us . . . .
. . . .
Examination
by Circuit Defense Counsel:
Q. Ma’am, if the military
judge instructs you that you are to consider -– I expect that he will
instruct
you that you are to consider the full range of punishments, from no
punishment
up to the maximum punishment, can you assure the court, both the
government and
defense, that you will do that?
A. I think I can, because
we are looking at him totally not as a young kid, we are looking at him
as a
military member too.
. . . .
Examination
by the Military Judge:
Q. And let me just ask
you, do you feel comfortable sitting on this case?
A. No, I don’t.
Q. And why is that?
A. Just because, again, I
have read -– you just see in the paper all the time and the punishments
that the
kids got, the young airmen got in Virginia -– we have no tolerance of
drugs whatsoever
in the military, which we know that. Yet
on the other hand, I just feel that a young person shouldn’t be
probably kicked
out and put in jail or whatever.
Q. I guess I am trying to
get you to go ahead and conclude for me.
What is the conclusion?
A. I just feel that he
deserves more of a shot than one error in his career.
Q. When I asked you if
you feel uncomfortable sitting in the case, do you feel that you can
perform
your duties in sitting on a case?
A. Definitely, Sir, I can
perform my duties. Would I feel
comfortable with myself, yes, because it is my duty.
Will I do the right thing? Yes, I
will.
. . . .
Q. And you mentioned
these Air Force Times
articles that you have read . . . [.]
. . . .
A. Actually there was a
big bust in Virginia, the Virginia area, I think there were about 20
people
that were listed in the Air Force Times ranging anywhere from an airman
basic -–
I think the highest rank was a senior airman, I am not sure. Then I saw all their sentences and I was
shocked, I was taken back.
Q. At what?
A. Their sentences. I
really felt that while these –- again, I
didn’t hear any of their cases, but I just thought, wow, these guys
made a
mistake and look at the punishment for this.
I am not making myself clear am I?
Q. No, it is important
since you have had some obviously careful thought about the offense of
which
the accused is now before this court for sentencing, that you disclose
to both
parties what that careful thought is.
Can you be fair to both the government and the accused in this
case?
A. Yes, I feel I can be
fair, Sir.
The prosecution challenged Maj Winkler
for cause on the grounds of an “inelastic predisposition in favor of
the
defense.” The military judge granted the
challenge stating:
Well,
my recollection is that she not only said she was shocked twice by a
punitive
discharge, but shocked by another form of punishment as well, that may
have
been confinement. She also said
that. “She hated or hates to see the
airmen kicked out for this offense” were the words I recall her using
in reference
to those discharges. She seemed almost
relieved when I asked if she would be uncomfortable sitting on the
court, as
though it was going to be an opportunity for her not to have to sit on
the
court. I think at the same time she is
professional enough to let us know that as much as she hates to see a
sort of
punishment like this, or as much as she is shocked, she is a
professional
officer, to let us know that she would try and do her best to be fair
in
performing her duties. It just seems to
the court, from viewing her and viewing her expressions as she
described the
Air Force Times article in regard to those other cases, that she would
have an
extremely difficult time in sitting on this case and doing just what
she
promised to do, which was consider the entire range of punishments,
just
wavering a little bit in that area is cause for concern as well. I am going to grant the challenge for
cause.
Discussion
This court has held
that an accused “‘has a constitutional right, as well as a regulatory
right, to
a fair and impartial panel.’” United
States v. Strand, 59 M.J. 455, 458 (C.A.A.F. 2004) (quoting United
States
v. Wiesen, 56 M.J. 172, 174 (C.A.A.F. 2001)). A
member may be removed for cause if
it is shown that he or she should
not sit “in the interest of having the court-martial free from
substantial
doubt as to legality, fairness, and impartiality.”
R.C.M. 912(f)(1)(N).
The discussion accompanying this rule provides
that “an inelastic opinion concerning an appropriate sentence for the
offenses
charged” may be grounds for challenge under this provision. R.C.M. 912(f) discussion. The party that makes the challenge for cause
has the burden of proving that grounds for a challenge exist. R.C.M. 912(f)(3).
Generally, this court
has addressed challenges for cause where those challenges were denied.3 In evaluating a military
judge’s ruling on a challenge for cause, the court has found it
appropriate to
recognize the military judge’s superior position to evaluate the
demeanor of court
members. A military judge’s ruling on a
challenge for cause will therefore not be reversed absent a clear abuse
of
discretion. See
In evaluating challenges for cause
based on claims of “inelastic attitude,” this court has held that “an
unfavorable
inclination toward an offense is not automatically disqualifying. ‘The 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.’”
McLaren, 38 M.J. at 118 (citations omitted)
(quoting United States v. McGowan, 7 M.J. 205, 206 (C.M.A.
1979)).
In the context of challenges brought
by a defendant, this court has stated that “military judges must
liberally
grant challenges for cause.” United
States v. Downing, 56 M.J. 419, 422 (C.A.A.F. 2002); see also
McLaren,
38 M.J. at 118 (quoting United States v. Glenn, 25 M.J. 278,
279 (C.M.A.
1987)). The “liberal grant” policy
supports
the UCMJ’s interest in ensuring that members of the military have their
guilt
or innocence determined “by a jury composed of individuals with a fair
and open
mind.” United States v. Smart, 21
M.J. 15, 18 (C.M.A. 1985) (quoting United States v. Deain, 5
C.M.A. 44,
49, 17 C.M.R. 44, 49 (1954)). It is a
response to the unique nature of the military justice system “because
in
courts-martial peremptory challenges are much more limited than in most
civilian courts and because the manner of appointment of court-martial members presents perils that are not encountered
elsewhere.”
Unlike the
convening authority, who has the opportunity to provide his input into
the
makeup of the panel through his power to detail “such
members of the armed forces as, in his opinion, are best
qualified for the duty,” see
Article 25(d)(2), UCMJ,
10 U.S.C. § 825(d)(2)(2000); see also R.C.M.
503(a)(1), the defendant has only one peremptory challenge at his or
her
disposal.4
See Glenn, 25 M.J. at 279. The liberal grant rule protects the
“perception or appearance of fairness of the military justice system.”
We turn next to the central question
of whether the military judge’s finding that Maj Winkler “would have an
extremely difficult time in sitting on this case and doing just what
she
promised to do, which was consider the entire range of punishments,”
was
clearly erroneous. Maj Winkler repeatedly
expressed concern with the harsh punishments handed out for drug crimes
in the
Air Force. She clearly expressed her
feeling that “we are all young, we all do stupid stuff sometimes, and
one
mistake shouldn’t kill us.” She also
stated that she would feel uncomfortable sitting as a member because of
her
beliefs. While Maj Winkler provided appropriate
responses to rehabilitative questions, the military judge not only was
able to
hear her responses, he was able to evaluate her demeanor by “viewing
her and
viewing her expressions.”
We conclude that the
military judge did not abuse his discretion in granting the
Government’s
challenge to Maj Winkler on the basis of an “inelastic predisposition.” The military judge found that Maj Winkler
wavered
when asked if she could consider the entire range of punishments and
expressed
her concerns regarding punishments in drug cases both verbally and
nonverbally. We decline to find his
conclusion that she would have trouble considering the entire range of
punishments to be clearly erroneous.
We also do not see evidence that the
military judge applied the liberal grant policy in reaching his
conclusion. The record reflects that he
carefully considered
all of Maj Winkler’s responses and her demeanor in reaching his
conclusion. Accordingly, we affirm the
decision of the Air
Force court as to Issue II.
DECISION
The decision of the United
States Air Force Court of Criminal Appeals is affirmed as to Issues I
and II.
1 In Issue I we granted review of the
following:
WHETHER THE MILITARY JUDGE ERRED TO THE
PREJUDICE OF APPELLANT'S SIXTH AMENDMENT RIGHT TO CONFRONT THE
WITNESSES
AGAINST HIM BY REFUSING TO PERMIT DEFENSE COUNSEL TO EXPLORE THE
POTENTIAL BIAS
OF PROSECUTION WITNESSES ARISING FROM PROMISES BY THE GOVERNMENT TO
LIMIT
PUNISHMENT OF THE WITNESSES IN EXCHANGE FOR COOPERATION WITH THE
GOVERNMENT IN
THE PROSECUTION OF APPELLANT.
2 In Issue II we
granted review of the
following:
WHETHER THE
MILITARY JUDGE ERRED IN GRANTING THE PROSECUTION'S CHALLENGE FOR CAUSE
(OVER
DEFENSE OBJECTION) AGAINST A COURT MEMBER.
3 It is only in
cases involving the death
penalty that the court has been asked to review a challenge for cause
that was
granted. See
4 The staff judge
advocate also may have the
power to excuse members before the court-martial is assembled, and the
trial
counsel then still has one peremptory challenge during the
court-martial
itself. See R.C.M. 505(c)(1)(B); R.C.M. 912(g)(1).
The Government therefore has ample opportunity to affect the
makeup of
the panel before trial defense counsel has any opportunity for input.