UNITED
STATES, Appellee
v.
Michael D.
STRAND, Corporal
No.
03-0557
Crim. App.
No.
200000275
Argued
Decided
BAKER,
J., delivered the opinion of the Court, in which CRAWFORD, C.J.,
GIERKE, EFFRON
and ERDMANN, JJ., joined.
Counsel
For Appellant:
Lieutenant
Colonel Eric B. Stone, USMC (argued).
For Appellee: Lieutenant Frank L. Gatto,
JAGC, USNR (argued); Commander Robert P. Taishoff,
JAGC, USN (on brief); Lieutenant Colonel John F. Kennedy, USMC.
Military
Judge: R. W. Redcliff
This
opinion is subject to editorial correction before final publication.
Judge
BAKER delivered the opinion of
the Court.
Appellant
was tried by a general court-martial composed of officer and enlisted
members. Pursuant to his mixed pleas,
Appellant was convicted of one specification of assault consummated by
a
battery and three specifications of adultery in violation of Articles
128 and
134, Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§
928 and
934 (2000), respectively. He was
sentenced to a bad-conduct discharge, confinement for thirty months,
total
forfeiture of all pay and allowances, and reduction to the lowest
enlisted grade. The convening authority
approved the sentence
as adjudged, but in an act of clemency suspended confinement in excess
of 24
months for a period of six months from the date of his action, and
purported to
waive the “automatic reduction” and the automatic forfeitures for a
period of
six months.1 The
Navy-Marine Corps Court of Criminal
Appeals affirmed the findings of guilty and the sentence in an
unpublished
opinion.
This
Court granted review of the following
issue:
WHETHER
THE
Based
on the totality of the circumstances
particular to this case, we hold that the military judge did not abuse
his
discretion, and therefore the lower court did not err.
FACTS
Appellant,
a 26-year-old corporal with approximately eight years of service, was
charged
with multiple incidents of sexual misconduct.
The majority of these incidents occurred on base.
Although Appellant was married, he engaged in
sexual intercourse with some of the wives of his fellow Marines as well
as a
subordinate Marine assigned to his unit.
Various members of Appellant’s unit were aware of his misconduct.
On
1stLt
Olson’s court-martial member questionnaire identified him as a 26-year
old
supply officer with two years and 10 months of active duty service. It also indicated that he had not previously
served on a court-martial. In response
to the question “What are/were your parent’s . . . occupations?”, 1stLt Olson wrote of his father “USMC active
duty.”
During
voir dire,
the military judge asked prospective panel members whether they knew
“the
convening authority in this case, Commander, Marine Corps Base Hawaii,
specifically,
Brigadier General Fields or in his absence Colonel Olson?”
The military judge received positive
responses from all the members except one.
Individual voir dire followed.
At
the close, of 1stLt Olson’s voir dire,
trial counsel
inquired regarding his relationship with the convening authority. The following dialogue occurred.
TC:
Sir, there was actually one other
question. The
relationship between the convening authority and the member.
MJ:
With regard to reporting seniors?
TC:
No, sir. Actually --
MJ:
Oh, Colonel Olson? Are you related to
Colonel Olson?
MBR:
(1stLt Olson) Yes,
sir. He's my father, sir.
MJ:
He's your dad?
MBR:
(1stLt Olson) Yes, sir.
MJ:
Okay.
Well, thank you for bringing that out.
Have you had any discussions with the Colonel about this case?
MBR:
(1stLt Olson) No, sir.
MJ:
Has he ever discussed his views on
military justice with you?
MBR:
(1stLt Olson) Not that I can remember,
sir. I'm sure we've had conversations in
the past, but nothing that comes to mind.
MJ:
Any conversations with regard to the
nature of these allegations that he's had with you?
MBR:
(1stLt Olson) No, sir.
MJ:
I gather you have frequent interaction
with him?
MBR:
(1stLt Olson) Yes, sir.
MJ:
Does he know you have been
detailed? I gather he does know, since
he signed the convening order.
MBR:
(1stLt Olson) Yes, sir.
MJ:
No discussions at all about assigning
you to this court-martial?
MBR:
(1stLt Olson) No, sir.
MJ:
Do you feel that his assignment of you
to this court-martial in any way is reflective of how he feels this
case ought
to come out?
MBR:
(1stLt Olson) No, sir.
MJ:
Do you feel that you would have a need
to explain any of the verdicts to him?
MBR:
(1stLt Olson) No, sir.
MJ:
Further inquiry, counsel?
TC:
No, sir.
DC:
None, sir.
At
the conclusion of voir
dire, defense counsel challenged four officers for cause.
Defense counsel challenged Maj
Kelly because his father was a
TC:
. . .
Sir, just one final matter. As a matter of record, the First Lieutenant
who is the son of the convening authority, I didn't know if the
military judge
wanted to --
MJ:
Well, neither side challenged for cause
or peremptorily First Lieutenant Olson --
TC:
Aye, aye, sir.
MJ:
-- so I see no need to make further
findings as to that matter. His answers
were fairly -- quite clear and direct on individual voir
dire.
DC:
Sir, can we have one moment?
MJ:
Certainly.
[Accused
and counsel conferred.]
MJ:
Do you wish a recess outside of our
presence?
DC:
No, sir, that's okay.
[Accused
and counsel conferred further.]
TC:
Sir, the government requests a brief
recess.
MJ:
Very well. Court is in recess until 1500
hours.
[The
court recessed at 1450,
[The
court was called to order at 1504,
MJ:
The court will come to order. Let the
record reflect that all parties who
were present prior to the court's last recess are once again present
before the
court. The members are still absent.
Counsel,
we were completing the challenge
process. Is there anything further for
the court before we have the members return and excuse the members who
have
been excused?
TC:
No, sir.
DC:
No, sir.
1stLt
Olson was the only commissioned officer who remained on the panel after
the
challenges, therefore, he was designated president of the panel. The remainder of the panel was comprised of a
master gunnery sergeant (E-9), three master sergeants (E-8), and a
gunnery
sergeant (E-7). Col Olson was the
reviewing officer for at least one member of the panel.
As stated above, Appellant was subsequently
convicted of certain offenses on
Appellant
now argues on appeal that it was plain error for the military judge to
permit
the son of the acting convening authority to sit as president of this
court-martial. In light of R.C.M. 912
and the doctrine of implied bias, Appellant argues that the judge had a
duty to
sua sponte
excuse 1stLt
Olson in the interest of maintaining public confidence in the legality,
fairness, and impartiality of the military justice system.
In support of this argument, Appellant
suggests that 1stLt Olson’s presence could have chilled the
deliberations of
the senior enlisted members of the panel by suggesting that the command
was
particularly interested in the outcome of this case and out of concern
that
1stLt Olson might report to his father on their views in deliberation.
The
Government in turn argues that
Appellant affirmatively waived any implied bias objection to 1stLt
Olson. Alternatively, the Government
argues the
judge did not commit plain error because there is no per se rule
against
members sitting who have familial relationships with the convening
authority. Finally, the Government
contends that 1stLt
Olson’s relationship was fully disclosed and Appellant has not
demonstrated
circumstances that would otherwise warrant invocation of the doctrine
of
implied bias.
DISCUSSION
This
Court has held that an accused “has a
constitutional right, as well as a regulatory right, to a fair and
impartial
panel.”
It
is clear that a military judge may excuse a member sua
sponte. R.C.M.
912(f)(4). The
judge’s decision whether or not to excuse a member sua
sponte is subsequently reviewed for an
abuse of
discretion.
Thus,
“issues of implied bias are reviewed under a standard less deferential
than
abuse of discretion but more deferential than de novo.”
Miles, 58 M.J. at 195 (citing Downing,
56 M.J. at 422)(citations omitted). This Court has generally found that “when
there is no actual bias, ‘implied bias should be invoked rarely.’” Warden, 51 M.J. at
81-82. “[D]ue
process does not require a new trial every time a juror has been placed
in a
potentially compromising situation.” United
States v. Lavender, 46 M.J. 485, 488 (C.A.A.F. 1997)(quoting
Smith v. Phillips, 455
This
case offers facts of clarity and
consequence on both sides of the implied bias equation.
On the one hand, 1stLt Olson was the
son of the acting convening authority who signed an order relieving
eight
officers from serving on Appellant’s panel while leaving only his son
and one
other officer from an original list of ten.
This was done without explanation in the record.
Further, the case at hand involved multiple
instances of sexual misconduct by Appellant with the on-base dependents
of
Marines. While the base chief of staff
would surely take interest in matters of military justice, arguably he
would
take particular interest in a case involving multiple instances of on
base
misconduct detrimental to morale.
1stLt
Olson was also the only commissioned officer who served on Appellant’s
panel. As a result, he served as the
president of the panel and not just as a member. Based
on these facts, Appellant argues an
outside observer might conclude that the senior enlisted members would
feel an
implicit command presence in the deliberation room in the form of the
chief of
staff/qua acting convening authority’s son’s presence.
Finally, the Government was concerned enough
about the appearance issue to twice affirmatively inquire of the
military judge
whether 1stLt Olson should be excused from the panel.
On
the other hand, defense counsel apparently did not share trial
counsel’s
concerns. Defense counsel did not
challenge 1stLt Olson for cause, nor did counsel use his peremptory
challenge
against 1stLt Olson or state that he would have done so if he had not
first
used it against Maj Kelly.
Moreover, the record reflects that defense
counsel was aggressive in his use of challenges. Among
other things, he challenged Maj Kelly on
the ground that his father was a police
officer.
This
is not a case where the salient fact went unnoticed or unexamined on
the
record. Defense counsel had a number of
opportunities to reflect on his position and to challenge 1stLt Olson. During the challenge process, trial counsel
once again mentioned the relationship between Col Olson and 1stLt Olson. Defense counsel appeared to discuss the
situation with his client and after a brief recess did not challenge
the
member.
Defense
counsel might well have had tactical reasons for not challenging 1stLt
Olson’s
presence on the panel. Nonetheless, the
question remains whether based on the totality of the circumstances
identified
above, the military judge should have dismissed 1stLt Olson sua
sponte in order to ensure public confidence
in the
legality, fairness, and impartiality of Appellant’s court-martial. See
Based
on the particular facts here, we think not.
It is noteworthy that the convening authority did not remove his
own son
from Appellant’s court-martial while relieving eight other officers
from this
duty, but Appellant has not challenged the selection of members on
Article 25,
UCMJ, 10 U.S.C. § 825 (2000) grounds.
Ultimately, however, we are satisfied that the transparent
nature of the
military judge’s inquiry with Appellant and his counsel present, along
with the
deliberate manner of the military judge’s voir
dire,
afforded counsel ample opportunity to explore any potential concerns
regarding
1stLt Olson’s presence on the panel.
Further, defense counsel’s demonstrated capability to identify
matters
of potential conflict regarding other members along with his ample use
of the
challenge mechanism removes concern that counsel “was asleep at the
switch.” It also would seem to address
Appellant’s argument that defense counsel may have been hesitant to
challenge
the acting convening authority’s son.
Further,
Appellant has not made a showing of actual bias, nor argued that 1stLt
Olson’s
familial relationship, in fact, influenced the panel’s deliberations. First, 1stLt Olson stated on the record that
he had not discussed the case with his father and would not feel a need
to
explain any of the verdicts to his father.
Second, Appellant suggests that the senior enlisted members on
Appellant’s panel may have felt pressure to uphold the command’s
charging
decision in light of 1stLt Olson’s presence, but Appellant has not
offered any
persuasive evidence of actual bias.
Appellant is correct that disclaimers of bias, or the absence of
actual
bias, are not dispositive with regard to
implied
bias, which is viewed through the eyes of the public.
Nonetheless, a “member’s unequivocal
statement of a lack of bias can . . . carry weight” when considering
the
application of implied bias. United
States v. Youngblood, 47 M.J. 338, 341 (C.A.A.F. 1997)(citations
omitted).
DECISION
Based
on the totality of these circumstances, we hold that 1stLt Olson’s
service as
president of Appellant’s court-martial did not raise a significant
question of
legality, fairness, impartiality, to the public observer pursuant to
the
doctrine of implied bias. Thus, given
the circumstances present in this case, the military judge did not
abuse his
discretion by not exercising his authority to remove the member sua sponte. Since the judge did not abuse his discretion,
there was no plain error. The decision
of the United States Navy-Marine Corps Court of Criminal Appeals is
affirmed.
1 We note that
the convening authority’s
action erroneously uses the word “waived” with respect to the reduction
for six
months. A corrected action should be
issued.