United States v. Daugherty ( 2021 )

This opinion is subject to administrative correction before final disposition.
Before
GASTON, HOUTZ, and MYERS
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Micole A. DAUGHERTY
Machinist’s Mate Third Class (E-4), U.S. Navy
Appellant
No. 202000133
Decided: 18 August 2021
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge:
Benjamin C. Robertson
Sentence adjudged 4 March 2020 by a special court-martial convened
at Naval Station Mayport, Florida, consisting of officer and enlisted
members. Sentence in the Entry of Judgment: reduction to E-1, con-
finement for 7 months, and a bad-conduct discharge.
For Appellant:
Lieutenant Megan E. Horst, JAGC, USN
For Appellee:
Lieutenant Commander Jeffrey S. Marden, JAGC, USN
Lieutenant Joshua C. Fiveson, JAGC, USN
United States v. Daugherty, NMCCA No. 202000133
Opinion of the Court
_________________________
This opinion does not serve as binding precedent, but
may be cited as persuasive authority under
NMCCA Rule of Appellate Procedure 30.2.
_________________________
PER CURIAM:
Appellant was convicted, contrary to her pleas, of conspiracy to obstruct
justice, failure to go to her appointed place of duty, and false official
statement, in violation of Articles 81, 86, and 107, Uniform Code of Military
Justice [UCMJ], 1 for conspiring with another Sailor to manufacture injuries
and falsely reporting she was drugged and raped to avoid getting in trouble
for missing a training class.
Appellant asserts two assignments of error: (1) the military judge abused
his discretion by denying Appellant’s challenge to all members detailed to her
court-martial panel, which resulted in one member sitting on the panel who
knew facts about the case, three members sitting on the panel who knew
Appellant, and one member sitting on the panel who knew Appellant’s co-
conspirator; and (2) Appellant’s trial defense counsel was ineffective for
failing to individually challenge the three members who knew Appellant on
grounds of implied bias. We find no prejudicial error and affirm.
I. BACKGROUND
After drinking alcohol at a nightclub with Seaman Recruit Warren, 2
Appellant overslept the next morning and missed a pre-deployment fire-
fighting class. Panicked that her tardiness would get her in trouble, she had
Seaman Recruit Warren punch her in the face and drive her to a wooded area
near base, where she rolled around in the dirt to make it look as though she
had been in a struggle. Appellant then went to the base gate and told the
security personnel she had been drinking with a man at a club and later
woke up in the bushes outside the gate with pain in her vagina. She
subsequently reported to the Naval Criminal Investigative Service [NCIS]
1 10 U.S.C. §§ 881, 886, 907.
2 All names in this opinion, other than those of Appellant, the judges, and coun-
sel, are pseudonyms.
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United States v. Daugherty, NMCCA No. 202000133
Opinion of the Court
that she had been drugged and raped, and underwent a sexual assault
forensic examination at a nearby hospital. Seven NCIS agents and forensic
analysts then spent over 400 hours investigating the case—including
identifying and extensively interviewing another Sailor as a possible suspect,
collecting his DNA and fingerprints, and searching his cell phone and
vehicle—before determining through security camera footage that Appellant’s
report was false.
At trial, Seaman Recruit Warren testified that after waking up late
Appellant told Seaman Recruit Warren to “bruise her up” because she could
not “go in this late without something being wrong with [her].” 3 Appellant
admitted making the false report, but testified that it was Seaman Recruit
Warren’s idea and that she only participated in the scheme because she was
afraid of Seaman Recruit Warren. The members found Appellant guilty of all
charges and specifications.
II. DISCUSSION
After voir dire of the members, Appellant’s trial defense counsel requested
an entirely new panel citing Article 25, UCMJ, and arguing that many of the
members knew Appellant and the facts of the case and “had far too much
involvement in her situation.” 4 The defense counsel stated, “In the alterna-
tive, we will be challenging all but three members of the panel.” 5 The military
judge denied the request to order the convening authority to issue a new
panel and stated he would address challenges to the panel members
individually. He then granted five Government challenges for cause, four
Defense challenges for cause, and a Defense peremptory challenge. This left
the panel with only three members—one below the required quorum of four
for a special court-martial.
The three members who were not challenged by the Defense were Lieu-
tenant Junior Grade [LTJG] Oscar, Ensign Charlie, and Senior Chief Foxtrot.
Each of these members knew that Appellant was stationed with them aboard
USS Fort McHenry (LSD 43), an amphibious ship with a company of
approximately 300 Sailors. LTJG Oscar vaguely remembered hearing about
some Sailors who did not show up to school prior to deployment the year
3 R. at 314.
4 Id. at 184.
5 Id.
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Opinion of the Court
before, but was not familiar with any specific facts, including whether
Appellant was involved, and did not have any negative impression of
Appellant based on anything she had heard or seen of Appellant’s interac-
tions with other Sailors on the ship. Ensign Charlie knew Appellant from
working on the ship during deployment, but never worked with her personal-
ly and did not have any opinion of her, positive or negative. Senior Chief
Foxtrot knew Appellant and Seaman Recruit Warren in passing from the
ship, did not have a negative opinion of either of them, and was not aware of
any disciplinary issues involving Appellant.
Because the panel only had three members, the convening authority
detailed eight additional members. After voir dire of the new members, the
military judge granted two more Government challenges for cause, three
more Defense challenges for cause, and another Defense peremptory chal-
lenge. One of the remaining two new members became the fourth member of
the panel.
A. Challenge to the Entire Venire
Appellant asserts the military judge abused his discretion by denying the
Defense’s request for a new court-martial panel. We disagree.
Pursuant to Rule for Courts-Martial [R.C.M.] 912(b), before voir dire, “or
at the next session after a party discovered or could have discovered by the
exercise of diligence, the grounds therefor, whichever is earlier, that party
may move to stay the proceedings on the ground that members were selected
improperly.” 6 Such a motion includes “an offer of proof of matters which, if
true, would constitute improper selection of members.” 7 Improper selection of
members can occur if the selection process relies on criteria other than those
stated in Article 25, UCMJ, which provides that the convening authority
shall detail members who “in his opinion, are best qualified for the duty by
reason of age, education, training, experience, length of service, and judicial
temperament.” 8
Alternatively, pursuant to R.C.M. 912(f), members may be challenged and
removed for cause. “A member shall 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
6 R.C.M. 912(b)(1).
7 R.C.M. 912(b)(2).
8 Article 25, UCMJ.
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Opinion of the Court
impartiality.” 9 Members may be excused on grounds of either actual or
implied bias. 10 The test for implied bias is an objective one that considers “the
public’s perception of fairness in having a particular member as part of the
court-martial panel.” 11 “[A]t its core, implied bias addresses the perception or
appearance of fairness of the military justice system.” 12 The totality of the
circumstances are considered in making this assessment. 13 Defense
challenges for cause must be liberally granted. 14 We review a military judge’s
ruling on a challenge for cause for an abuse of discretion. 15 While rulings
based on actual bias are afforded a high degree of deference, “issues of
implied bias are reviewed under a standard less deferential than abuse of
discretion, but more deferential than de novo.” 16
Here, Appellant concedes the Defense motion for a new court-martial
panel was ultimately not a challenge to the member selection process under
R.C.M. 912(b), but was rather a collective implied-bias challenge to all panel
members under R.C.M. 912(f). 17 Construed in this light, the military judge’s
decision to address the parties’ challenges individually rather than collective-
ly is consistent with R.C.M. 912(f), which contemplates that challenges and
removal for cause will be assessed and determined for each panel member.
The bias asserted by the Defense was the extent to which the members knew
Appellant or had prior knowledge of the facts of the case—an inquiry
9 R.C.M. 912(f)(1)(N).
10 United States v. Downing, 56 M.J. 419, 422 (C.A.A.F. 2002).
11 United States v. Woods, 74 M.J. 238, 243 (C.A.A.F. 2015) (quoting United
States v. Peters, 74 M.J. 31, 34 (C.A.A.F. 2015)).
12 Downing, 56 M.J. at 422 (citation omitted).
13 Woods, 74 M.J. at 243 (citation omitted).
14 United States v. James, 61 M.J. 132, 139 (C.A.A.F. 2005).
15 Woods, 74 M.J. at 243.
16 Id. (quoting Downing, 56 M.J. at 422).
17 Appellant’s Reply at 6 (“[T]hough defense counsel stated ‘Article 25’ at one
point, she did not argue that the members were improperly selected or excluded by
the convening authority. Thus, since defense counsel’s substantive argument was an
implied bias challenge, this Court should find that the essence of defense counsel’s
motion was an implied bias challenge to the entire panel.”). We agree with this
assessment.
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Opinion of the Court
requiring assessment for each member individually. 18 We are aware of no
authority, and Appellant cites none, requiring the trial court to address such
challenges collectively rather than individually; thus, it was not error for the
military judge to decline to do so. Even if it were, as explained below, the
three members who remained on the panel after the initial challenges were
not subject to excusal for cause.
B. Ineffective Assistance of Counsel
Appellant asserts her trial defense counsel was ineffective for failing to
individually challenge the three members who knew Appellant based on
implied bias. We review claims of ineffective assistance of counsel de novo. 19
Our review uses the two-part test outlined in Strickland v. Washington. 20
“In order to prevail on a claim of ineffective assistance of counsel, an
appellant must demonstrate both (1) that [her] counsel’s performance was
deficient, and (2) that this deficiency resulted in prejudice.” 21 When a claim of
ineffective assistance of counsel is premised on trial defense counsel’s failure
to move the court to take some action, “an appellant must show that there is
a reasonable probability that such a motion would have been meritorious.” 22
“Failure to raise a meritless argument does not constitute ineffective
assistance.” 23
We find no deficiency in the failure to individually challenge LTJG Oscar,
Ensign Charlie, or Senior Chief Foxtrot for actual or implied bias, as
Appellant’s trial defense counsel correctly determined that the Defense
“didn’t really have an articulate challenge for cause beyond the general
18 See Woods, 74 M.J. at 243 (stating the inquiry into implied bias looks at “the
public’s perception of fairness in having a particular member as part of the court-
martial panel”) (quoting United States v. Peters, 74 M.J. 31, 34 (C.A.A.F. 2015))
(emphasis added).
19 United States v. Mazza, 67 M.J. 470, 474 (C.A.A.F. 2009) (citations omitted).
20 466 U.S. 668, 687 (1984).
21United States v. Green, 68 M.J. 360, 361-62 (C.A.A.F. 2010) (citing Strickland,
466 U.S. at 687).
22 United States v. McConnell, 55 M.J. 479, 482 (C.A.A.F. 2001) (citation and
internal quotation marks omitted).
23United States v. Napoleon, 46 M.J. 279, 284 (C.A.A.F. 1997) (quoting Boag v.
Raines, 769 F.2d. 1341, 1344 (9th Cir. 1985)).
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Opinion of the Court
objection that they were all part of the same command.” 24 The limited
professional interactions the three members had with Appellant or Seaman
Recruit Warren onboard the ship—which had produced no negative opinions
of them and amounted essentially to knowing who they were—provided no
basis for the members’ excusal on grounds of actual or implied bias. 25 Nor did
LTJG Oscar’s vague recollection of overhearing some prior discussion about
personnel not showing up to school amount to a disqualifying awareness of
the specific facts of the case, where she maintained she could remain fair and
impartial notwithstanding anything she might have heard. 26 Based on the
record before us, and considering the liberal-grant mandate, we find any
causal challenge against these three members would have been meritless
and, therefore, the defense counsel’s failure to challenge them did not
constitute ineffective assistance.
III. CONCLUSION
After careful consideration of the record and briefs of appellate counsel,
we have determined that the findings and sentence are correct in law and
fact and that no error materially prejudicial to Appellant’s substantial rights
occurred. 27
The findings and sentence are AFFIRMED.
24 Decl. of Appellant at 2.
25 Personal knowledge of a witness based on a professional relationship is “not
disqualifying per se.” United States v. Warden, 51 M.J. 78, 82 (C.A.A.F. 1999). The
same rule applies to collegiality between members, in this case LTJG Oscar and
Ensign Charlie, who were “friendly at work” and had “h[u]ng out maybe once a
month outside of work, but nothing super close” that would impede or inhibit their
“free and frank discussion” of the evidence as panel members. R. at 100–01. See
Downing, 56 M.J. at 423 (distinguishing between “officers who are professional
colleagues and friends based on professional contact and those individuals whose
bond of friendship might improperly find its way into the members’ deliberation
room”).
26 See United States v. Lake, 36 M.J. 317, 324 (C.A.A.F. 1993) (“[Q]ualified jurors
need not . . . be totally ignorant of the facts and issues involved in the case before
them.”) (citation and internal quotation marks omitted); United States v. Akbar, 74
M.J. 364, 397 (C.A.A.F. 2015) (“[P]anel members are not automatically disqualified
simply because they have learned facts about an accused from outside sources,”
where they have “expressed their ability to lay aside their knowledge of [the] events
in rendering a verdict in [the] case.”) (citation omitted).
27 Articles 59, 66, UCMJ.
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Opinion of the Court
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
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