United States v. Strand , 59 M.J. 455 ( 2004 )

UNITED STATES, Appellee
v.
Michael D. STRAND, Corporal
United States Marine Corps, Appellant
No. 03-0557
Crim. App. No. 200000275
United States Court of Appeals for the Armed Forces
Argued January 14, 2004
Decided May 10, 2004
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.
United States v. Strand, No. 03-0557/MC
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guilty and the sentence in an unpublished opinion. United
States v. Strand, NMCM 200000275 (N-M. Ct. Crim. App.
2002).
This Court granted review of the following issue:
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.
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WHETHER THE LOWER COURT ERRED IN HOLDING THAT
THE MILITARY JUDGE DID NOT HAVE AN
AFFIRMATIVE DUTY TO SUA SPONTE REMOVE THE
SENIOR OFFICER OF THE PANEL FOR IMPLIED BIAS
BECAUSE HE WAS THE SON OF THE CONVENING
AUTHORITY.
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 October 15, 1998, the Commanding General of Marine
Corps Base Hawaii, Kaneohe Bay, Brigadier General (BGen)
Fields, signed convening order number 5-98 which convened a
general court-martial “to try such persons as may be
brought before it.” First Lieutenant (1stLt) M. L. Olson,
Jr., was one of the ten officer members originally detailed
to this court-martial panel. On December 28, Appellant’s
case was referred to trial under convening order 5-98. On
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February 25, 1999, however, the convening order was
modified due to Appellant's written request for enlisted
members. As a result, eight of the original ten officers
detailed to the court-martial were relieved leaving only
Major (Maj) J. R. Armour and 1stLt Olson. The modified
convening order was signed by “M. L. Olson, U.S. Marine
Corps, Commander.” Colonel (Col) Olson was serving as the
acting commander at the time and is the father of 1stLt
Olson.
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.
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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.
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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 New York City
police officer and he challenged Maj Armour due to his
“experience as the Family Service Center Director.” He
challenged Captain (Capt) S. on the ground that Capt S’s
spouse had been the victim of a rape. Finally, defense
counsel challenged Chief Warrant Officer 3 (CWO3) Gandy for
cause on account of his service as personnel officer with
Combat Service Support Group 3 since this service may have
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United States v. Strand, No. 03-0557/MC
exposed him to allegations involving a potential witness in
the case. After hearing argument from both sides regarding
each challenge, the military judge granted defense
counsel’s challenges to Maj. Armour, Capt S, and CWO3
Gandy, but denied his challenge to Maj Kelly. Defense
Counsel subsequently used his peremptory challenge against
Maj Kelly. At no point throughout this entire process did
defense counsel seek to challenge 1stLt Olson.
Nonetheless, after defense counsel had completed his
challenges, trial counsel once again raised concern
regarding 1stLt Olson’s presence with the military judge.
The record reflects the following dialogue:
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?
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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, 8 March 1999.]
[The court was called to order at 1504, 8
March 1999.]
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 March 11, 1999. After
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trial, defense counsel submitted matters pursuant to Rule
for Courts-Martial 1105 [hereinafter R.C.M.] to the
convening authority, but did not raise the issue of 1stLt
Olson’s membership on the panel or otherwise seek relief on
account of the panel’s membership. BGen Fields took action
on Appellant’s court-martial on January 12, 2000. Col
Olson did not take action on the record, and is not
otherwise identified in the record or by the parties as
having taken any further action in regard to Appellant’s
court-martial other than signing his October 15 order
modifying the original court-martial panel.
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
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United States v. Strand, No. 03-0557/MC
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.” United States v. Wiesen, 56
M.J. 172, 174 (C.A.A.F. 2001). Thus, “Rule for Courts-
Martial 912(f)(1)(N) . . . requires that a member be
excused for cause whenever it appears that the 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.’” United States v. Miles, 58
M.J. 192, 194 (C.A.A.F. 2003). While this rule applies to
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both actual and implied bias, the thrust of this rule is
implied bias. United States v. Minyard, 46 M.J. 229, 231
(C.A.A.F. 1997). Moreover, “the focus of this rule is on
the perception or appearance of fairness of the military
justice system[,]” United States v. Dale, 42 M.J. 384, 386
(C.A.A.F. 1995), since “the rule ‘reflects the President’s
concern with avoiding even the perception of bias,
predisposition, or partiality.’” Minyard, 46 M.J. at 231
(citing United States v. Lake, 36 M.J. 317, 323 (C.M.A
1993)).
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. United
States v. Downing, 56 M.J. 419, 422 (C.A.A.F. 2002); United
States v. Armstrong, 54 M.J. 51, 53 (C.A.A.F. 2000). This
Court has given the “military judge great deference when
deciding whether actual bias exists because it is a
question of fact, and the judge has observed the demeanor
of the challenged member.” United States v. Napolitano, 53
M.J. 162, 166 (C.A.A.F. 2000). See United States v.
Warden, 51 M.J. 78, 81 (C.A.A.F. 1999). This Court,
however, gives less deference to the military judge when
reviewing a “finding on implied bias because it is
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United States v. Strand, No. 03-0557/MC
objectively ‘viewed through the eyes of the public.’”
Napolitano, 53 M.J. at 166 (quoting Warden, 51 M.J. at 81).
“Implied bias is viewed through the eyes of the public,
focusing on the appearance of fairness.” United States v.
Rome, 47 M.J. 467, 469 (C.A.A.F. 1998). As a result, an
objective standard is used when reviewing the judge’s
decision regarding implied bias.
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 U.S. 209, 217 (1982)). Instead, this Court has
observed that “implied bias exists when, regardless of an
individual member’s disclaimer of bias, ‘most people in the
same position would be prejudiced [i.e. biased].’”
Napolitano, 53. M.J. at 167 (citations omitted). In making
judgments regarding implied bias, this Court looks at the
totality of the factual circumstances.
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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.
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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.
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See United States v. Velez, 48 M.J. 220, 225 (C.A.A.F.
1998).
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
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United States v. Strand, No. 03-0557/MC
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
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abuse his discretion, there was no plain error. The
decision of the United States Navy-Marine Corps Court of
Criminal Appeals is affirmed.
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