United States v. Barrow

42 M.J. 655, 1995 CCA LEXIS 140, 1995 WL 310819
CourtUnited States Air Force Court of Criminal Appeals
DecidedMay 10, 1995
DocketACM 30442
StatusPublished
Cited by17 cases

This text of 42 M.J. 655 (United States v. Barrow) is published on Counsel Stack Legal Research, covering United States Air Force Court of Criminal Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Barrow, 42 M.J. 655, 1995 CCA LEXIS 140, 1995 WL 310819 (afcca 1995).

Opinion

OPINION OF THE COURT

PEARSON, Judge.

After a lengthy and hotly litigated trial, court members convicted appellant of sexually abusing his adopted stepdaughter, KDB, while she was under the age of 16, and having an adulterous affair with a female staff sergeant in his unit, BW, which included [659]*659sexual intercourse, oral sodomy and one ménage á trois with his wife. The members sentenced appellant to a dishonorable discharge, 5 years confinement, and reduction to E-4.

During the post-trial review of the case, the convening authority set aside two of the convictions: (1) showing sexually explicit magazines to KDB, due to insufficient evidence regarding the place of the offense, and (2) soliciting Staff Sergeant BW to commit indecent acts with his wife, because the members acquitted appellant of a contemporaneous offense alleging he solicited his wife to commit indecent acts with BW. Reassessing the sentence, the convening authority approved only a bad-conduct discharge, 4 years confinement, and reduction to E-4. See R.C.M. 1107.

ISSUES

Appellant asserts the military judge erred in denying challenges for cause against two court members, denying a motion to sever the offenses involving KDB and Sergeant BW, allowing the prosecutor to argue a linkage between the offenses involving the two females, denying a motion to suppress evidence, and allowing the government expert to give inadmissible opinion evidence about child sexual abuse. Appellant also asserts the evidence is factually insufficient to support the convictions for sexually abusing KDB and engaging in oral sodomy with Sergeant BW. We do not find any error materially prejudicial to appellant’s substantial rights and affirm. See Article 59(a), UCMJ, 10 U.S.C. § 859(a).

GENERAL BACKGROUND

Master Sergeant M, one of appellant’s coworkers, began a sexual relationship with KDB in early 1991 when she was 17. KDB told Sergeant M that appellant had sexually abused her since she was very young and, ultimately, M reported the allegations to authorities. The ensuing criminal investigation also revealed appellant’s sexual affair with Sergeant BW and culminated in appellant’s court-martial for various sexual offenses with KDB, including rape, and a slew of offenses involving sexual acts with Sergeant BW.

CHALLENGES FOR CAUSE

Background

During voir dire, Majors C and D both stated they had close family members who had been sexually abused as children. Defense counsel unsuccessfully challenged both members for cause.

Major C stated his adopted son made sexual advances toward his adopted sister, and both children were undergoing therapy. Major C candidly described the intense emotional turmoil his family underwent after the incident and stated local authorities had “adjudicated charges against [his] son.” Major C also discussed two cases of child sexual abuse brought against members of his unit when he was a commander. He stated civilian authorities handled both cases, and he did not prefer charges against an airman for abusing a B-month-old child because he felt “the individual would get more fair treatment downtown.”

Major D stated his wife, sister-in-law, and brother-in-law had all been victims of sexual abuse as children, some 20 to 30 years ago. Major D related the acts involving his wife did not include intercourse, she did not receive any psychological counseling, and criminal charges were not filed. However, Major D pointed out that his sister-in-law, a successful business woman, had been “undergoing psychotherapy for quite some time.” Based on personal reading about child sexual abuse, he realized “it’s a very common occurrence and that in addition, there is potential for a lot of psychological harm later on in life.” Major D also said he had a bachelor degree in psychology and had completed 16 hours of graduate study including an internship in social work.

Both court members stated they could be impartial, would not let personal experiences impact on appellant’s case, and had not formed any conclusions regarding allegations of rape or child sexual abuse. Major C even stated he found himself “a little more forgiving” toward his son than his wife was, and knew how it felt “to be on both sides of the fence.” In the same vein, Major D agreed “as a matter of fact, some of the recent [660]*660things on TV and other media is that perhaps some of the allegations are not necessarily true simply because they are allegations.”

In challenging Major C, defense counsel conceded she had “no doubts about Major [C’s] integrity and willingness to be impartial.” This prompted the military judge to ask, “Then on what basis are you challenging it?” In answering the judge, defense counsel seemed to focus on the appearance of fairness if Major C continued to sit, as she did with Major D. The military judge concluded the members’ demeanor and answers to individual voir dire questions showed they would be impartial. The judge also concluded each member’s expertise in child sexual abuse matters was not sufficient to disqualify the member in and of itself, and each member agreed their personal beliefs would yield to the evidence and judge’s instructions.

Later in the trial (at page 706 in this 1065 page record), defense counsel renewed her challenges after the two members extensively questioned the defense expert on child sexual abuse. As defense counsel put it, “They have both just presented multiple questions that are victim-oriented questions revealing knowledge of theories that tend to support the credibility of the victim.” Once again, the military judge denied the challenges, this time summarily.

During oral argument, appellate defense counsel focused mainly on the challenge to Major C, conceding there was “less of an argument as to Major D.”

Standard of Review

Both the prosecution and defense are entitled to court members who will keep an open mind, decide the case on the evidence presented in court, and follow the judge’s instructions on the law. While the side that raises a challenge for cause has the burden of proving the grounds for it, the military judge should view challenges for cause with a liberal eye. However, we will reverse the military judge’s denial of a challenge for cause only for a clear abuse of discretion. United States v. Hamilton, 41 M.J. 22 (C.M.A.1994), cert. denied, — U.S. -, 115 S.Ct. 738, 130 L.Ed.2d 640 (1995); United States v. McLaren, 38 M.J. 112 (C.M.A.1993), cert. denied, — U.S.-, 114 S.Ct. 1056, 127 L.Ed.2d 377 (1994); United States v. Reynolds, 23 M.J. 292 (C.M.A.1987).

Discussion

As the military judge astutely pointed out at trial, an individual is not disqualified from serving as a court member in a case involving child sexual abuse solely because the individual possesses some expertise in that field. United States v. Towers, 24 M.J. 143 (C.M.A.1987). Likewise, an individual is not disqualified from serving as a court member solely because the individual, or a family member, has been the victim of a crime similar to the one charged against the accused. United States v. Reichardt, 28 M.J. 113 (C.M.A.1989); United States v. Smart, 21 M.J. 15 (C.M.A.1985). Instead, the military judge must determine whether an actual or implied bias exists which disqualifies the member.

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Cite This Page — Counsel Stack

Bluebook (online)
42 M.J. 655, 1995 CCA LEXIS 140, 1995 WL 310819, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-barrow-afcca-1995.