United States v. Specialist MICHAEL J. MOODY ( 2016 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
TOZZI, CAMPANELLA, and CELTNIEKS
Appellate Military Judges
UNITED STATES, Appellee
v.
Specialist MICHAEL J. MOODY
United States Army, Appellant
ARMY 20121083
Headquarters, XVIII Airborne Corps and Fort Bragg
Tara A. Osborn and David H. Robertson, Military Judges
Colonel Paul S. Wilson, Staff Judge Advocate (pretrial)
Colonel Michael O. Lacey, Staff Judge Advocate (recommendation)
Lieutenant Colonel Jerrett W. Dunlap, Jr., Staff Judge Advocate (addendum)
For Appellant: Mr. William E. Cassara, Esquire (argued); Captain Brian J. Sullivan,
JA; Mr. William E. Cassara, Esquire (on brief).
For Appellee: Captain Christopher A. Clausen, JA (argued); Major A.G Courie III,
JA; Major Daniel D. Derner, JA; Captain Christopher A. Clausen, JA (on brief).
29 February 2016
----------------------------------
SUMMARY DISPOSITION
----------------------------------
TOZZI, Senior Judge:
A general court-martial comprised of officer and enlisted members convicted
appellant, contrary to his pleas, of one specification of abusive sexual contact with a
child, and one specification of indecent liberties with a child, in violation of Article
120, Uniform Code of Military Justice, 10 U.S.C. § 920 (2006) [hereinafter UCMJ].
The panel sentenced appellant to a bad-conduct discharge and eight years
confinement. The convening authority approved the findings and sentence as
adjudged.
On 29 October 2015, this court affirmed the findings and sentence. United
States v. Moody, No. 20121083, 2015 CCA LEXIS 482 (Army Ct. Crim. App.
October 29, 2015) (sum. disp.). On 16 February 2016, the Court of Appeals for the
MOODY—ARMY 20121083
Armed Forces (CAAF) set aside this court’s decision and remanded this case for
consideration of the following specified issue:
WHETHER JURISDICTIONAL ERROR OCCURRED WHEN MAJOR
[KS] WAS DETAILED, LATER REMOVED BY VICING ORDER,
BUT ULTIMATELY WAS SWORN AND HEARD THE CASE.
United States v. Moody, No. 16-0233/AR, __ M.J. __ (16 Feb. 2016) (order) (sum.
disp.). Finding no error, we again affirm our prior decision in this case.
FACTS
Appellant’s court-martial was called to order pursuant to Court-Martial
Convening Order Number (CMCO) 1, dated 7 February 2012, as superseded by
CMCO 3, dated 4 April 2012, as amended by CMCO 11, dated 21 June 2012, as
superseded by CMCO 14, dated 12 July 2012, as amended by CMCO 18, dated 20
September 2012, and as amended by CMCO 25, dated 26 November 2012. The last
three of these orders warrant discussion in resolving the specified issue.
CMCO 14 served to detail six officers, to include MAJ KS, and six enlisted
members to all general courts-martial convened by CMCO 3 in which the court had
not been assembled. 1 CMCO 18, specific to appellant’s case, viced MAJ KS and
three other officer and four enlisted members from appellant’s panel. These
members were replaced with four other officers and four other enlisted members. 2
Appellant’s trial convened on 25 September 2012, at which time the four members
remaining from CMCO 14 and eight new members added by CMCO 18 underwent
voir dire. After challenges, only two officers and two enlisted members remained,
thus bringing the court-martial below quorum. 3 The court recessed to obtain new
members. CMCO 25 named four new officers and five enlisted members to serve on
appellant’s panel. However, the order was redundant in many respects. First, the
order purportedly detailed one officer and one enlisted member who were impaneled
1
This order detailed COL GB, COL JR, LTC LA, LTC FR, MAJ RC, MAJ KS, CSM
MM, SGM TW, MSG JP, 1SG LP, MSG SF, and SFC RS to serve as members.
2
This order viced LTC LA, LTC FR, MAJ RC, MAJ KS, SGM TW, 1SG LP, MSG
JP, and SFC RS and detailed 1LT JC, 1LT FG, CW4 FB, WO1 FS, SSG KP, SSG DJ,
SSG CP, and SGT TT to serve as panel members. Although not mentioned in this
order, COL GB, COL JR, CSM MM, and MSG SF detailed by CMCO 14 remained as
members and appeared for voir-dire on 25 September 2012.
3
COL GB and CSM MM, detailed by CMCO 14; and WO1 FS and SSG KP, detailed
by CMCO 18.
2
MOODY—ARMY 20121083
after voir dire. 4 Second, the order purported to “vice” an officer and an enlisted
member who had been challenged off the panel. 5 Finally, and most importantly, the
order “viced” all of the members previously viced by GCMO 18, with the exception
of MAJ KS.
When appellant’s trial reconvened on 27 November 2012, MAJ KS along with
the new members appointed by CMCO 25 were seated for voir dire. Neither the
government nor appellant’s civilian defense counsel objected to MAJ KS’s presence
at trial. After voir dire and challenges, MAJ KS was impaneled to serve with the
other nine remaining panel members.
LAW AND DISCUSSION
A court-martial is created by a convening order of the convening authority.
Rule for Court-Martial [hereinafter R.C.M.] 504(a). The convening authority details
the members of the court. UCMJ art. 25(d)(2); R.C.M. 503(a). “When the record
reflects an ambiguity as to whether an individual was detailed to serve at a particular
court-martial, we look to the intent of the convening authority with respect to
service of that member on that court-martial panel.” United States v. Mack, 58 M.J.
413, 416 (C.A.A.F. 2003). When there is an ambiguity concerning the convening
authority’s intent, “[i]n the absence of any evidence to the contrary, . . . the
construction of the convening orders by the participants of [the] trial is controlling.”
United States v. Gebhart, 34 M.J. 189, 193 (C.M.A. 1983) (citation omitted).
The convening authority properly detailed MAJ KS to serve as a panel
member under Article 25, UCMJ, but later relieved her from serving in CMCO 18.
“This is not the situation of an interloper who was not detailed at all to the court-
martial on which [s]he sat . . . .” Gebhart, 34 M.J. at 192. The ambiguity as to the
convening authority’s intent lies with CMCO 25, which relieved the same members
viced in CMCO 18, save for MAJ KS. This leaves two possibilities: either the
convening authority intended to re-detail MAJ KS as a member OR the convening
authority lost track of his prior detailing and relief of court-members due to the
confusing nature of CMCO 25. Given these two plausible explanations, we therefore
apply the rule of construction noted above: the construction given to the convening
orders by the trial participants governs. We, therefore, find MAJ KS’s presence as a
court member was not a jurisdictional error. The absence of her name on CMCO 25
was the result of an administrative oversight.
This administrative oversight, however, must be tested for prejudice. In this
regard, we find no prejudice. First, the appellant made no objection to any
4
WO1 FS and SSG KP.
5
COL JR and MSG SF.
3
MOODY—ARMY 20121083
irregularity, generally or specifically, with respect to MAJ KS. Second, appellant
did not use his peremptory challenge or raise a challenge for cause to remove MAJ
KS from the panel. Third, the record contains no indication that the convening
authority’s apparent relief of MAJ KS was intended to or could possibly benefit
appellant in any way. Id. at 193; see United States v. King, 28 M.J. 397, 399
(C.M.A. 1987).
CONCLUSION
We again AFFIRM the findings of guilty and the sentence in appellant’s case.
Judge CAMPANELLA and Judge CELTNIEKS concur.
FOR THE COURT:
FOR THE COURT:
JOHN P. TAITT
JOHN P. TAITT
Chief Deputy Clerk of Court
Chief Deputy Clerk of Court
4