United States v. Berry

34 M.J. 83, 1992 CMA LEXIS 8, 1992 WL 28315
CourtUnited States Court of Military Appeals
DecidedFebruary 21, 1992
DocketNo. 66,098; NMCM 90 0167
StatusPublished
Cited by15 cases

This text of 34 M.J. 83 (United States v. Berry) is published on Counsel Stack Legal Research, covering United States Court of Military 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. Berry, 34 M.J. 83, 1992 CMA LEXIS 8, 1992 WL 28315 (cma 1992).

Opinions

Opinion of the Court

SULLIVAN, Chief Judge:

On September 20 and 23, 1989, appellant was tried by a special court-martial consisting of officer and enlisted members at the Naval Legal Service Office, Treasure Island, San Francisco. Contrary to his pleas, he was found guilty of three specifications of larceny, in violation of Article 121, Uniform Code of Military Justice, 10 USC § 921. He was sentenced to a bad-conduct discharge, confinement for 89 days, and reduction to E-l. The convening authority approved the sentence on January 5, 1990. The Court of Military Review affirmed these results on January 14, 1991, in an unpublished opinion.

This Court granted review on the following issue of law:

WHETHER THE NAVY-MARINE CORPS COURT OF MILITARY REVIEW ERRED IN APPLYING THE “LIBERAL GRANT MANDATE” ESPOUSED BY THIS HONORABLE COURT WHEN IT FOUND THAT THE GRANTING OF A CHALLENGE FOR CAUSE “WOULD PROBABLY HAVE BEEN ADVISABLE,” YET RULED THAT FAILURE TO DO SO WAS NOT REVERSIBLE ERROR.

We hold that the military judge erred in denying the defense challenge for cause under the particular circumstances of this case. See United States v. Reichardt, 28 MJ 113 (CMA 1989).

The following excerpts from the record of trial in this case contain the voir dire [84]*84concerning the questioned challenge for cause:

INDIVIDUAL VOIR DIRE OF MA2 ZABALA
Questions by the defense:
Q. Petty Officer Zabala, when I asked the question [during general voir dire ], “Do you work at a job which involves arresting people,” you nodded affirmatively.
A. Yes.
Q. Could you please explain the details on that job, what you did and where you did it?
A. I am a command duty investigator for NAS Alameda security and my job is to interview and interrogate suspects and also to interview witnesses concerning a variety of charges and complaints. And some times I do have to apprehend people. Do you want to know procedure for apprehending persons?
Q. No. I’d just like to know how many people you have apprehended. .
A. I’d have to say between 45 to 60.
Q. And do you know why you apprehended them?
A. They were at the time suspected of either a military offense or a civilian offense.
Q. I should rephrase the question. What were some of the offenses of the arrested people?
A. I arrested people for assault or larceny or sexual conducts, a variety of charges.
Q. Have you ever testified in court or at mast?
A. No, sir.
Q. You said that you interrogated people.
A. Yes, sir.
Q. Did you work for NIS [Naval Investigative Service]?
A. I’ve worked in correlation with NIS.
Q. What does correlation mean?
A. I have worked undercover NIS at my last duty station.
Q. Why—for drugs?
A. Trying to locate servieemembers that were dealing and using drugs.
Q. Were you successful?
A. Yes, sir.
Q. Now you said that you interrogate people.
A. Yes, sir.
Q. What do you mean? What do you do?
A. What we try to do is try to have them give us the truth. We try to not coerce, but we try to verify the facts that we receive from complainants and witnesses with what they are stating. And all we do is just try to get to the truth.
Q. Do you work in tandem with NIS?
A. Yes sir.
Q. Roughly, guesstimate, how often are you successful—truth—
A. I would not know exactly, sir, because we do our interrogations and we do our reports or supplemental reports and we sent them up to the command and either UCMJ or NJP. We receive responses but I usually don’t check out the responses we get from commands. So I don’t know at this time.
DC: I have no further questions, Your Honor.
MJ: All right.
Lieutenant Hoffman, any questions? Questions by the prosecution:
Q. Petty Officer Zabala, you indicated on your questionnaire for this court-martial that you knew nothing about the case. Is that correct?
A. I believe so, sir.
Q. Have you interviewed or discussed anything with Petty Officer Odom concerning this case?
A. The name doesn’t sound familiar, sir. I’ve interviewed approximately six to eight hundred people since April.
Q. I am just going to give you some names. See if any of them sound familiar that you think you have talked to. How about Petty Officer Lavallee?
A. No, sir.
[85]*85Q. How about a Petty Officer Serrano?
A. No, sir.
Q. Do you know Special Agent Noble?
A. Yes, sir.
Q. How do you know him?
A. He’s our Naval Investigative Service agent, NAS Alameda. I have worked not with him but I have talked to him numerous times on the phone and a couple times I’ve worked with him just where we had damage to Government— and he’d show up and we would allow them to take over the case.
Q. Have you discussed anything concerning this case with Special Agent Noble?
A. No, sir, I believe not, sir.
Q. Is there anything that would keep you from making a determination on the facts of this case as to what happened and what didn’t happen?
A. No, sir.
Q. Anything that would prevent you from sitting as a court-martial member on this case?
A. No, sir.
Q. Do you have any reservation about being a court-martial member in this case?
A. No, sir.
TC: Nothing further, Your Honor.
MJ: Lieutenant Doherty, do you have any more questions?
DC: No questions, Your Honor. Questions by the military judge:
Q. Petty Officer Zabala, you could hear the evidence in this case and be impartial as to weighing the evidence and coming out with an outcome?
A. Yes, sir.
Q. Just because Petty Officer Berry is accused of committing these crimes, do you think he is guilty of them?

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Bluebook (online)
34 M.J. 83, 1992 CMA LEXIS 8, 1992 WL 28315, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-berry-cma-1992.