United States v. Cox

23 M.J. 808, 1986 CMR LEXIS 2935
CourtU.S. Navy-Marine Corps Court of Military Review
DecidedDecember 19, 1986
DocketNMCM 86 0968
StatusPublished
Cited by8 cases

This text of 23 M.J. 808 (United States v. Cox) is published on Counsel Stack Legal Research, covering U.S. Navy-Marine Corps Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Cox, 23 M.J. 808, 1986 CMR LEXIS 2935 (usnmcmilrev 1986).

Opinion

PER CURIAM:

At a general court-martial composed of officer members, appellant was found guilty, contrary to his pleas, of 1 specification of sodomy, 5 specifications of indecent assault, 1 specification of indecent exposure, and 1 specification of communication of indecent language, in violation of Articles 125 and 134 of the Uniform Code of Military Justice, 10 U.S.C. sections 925 and 934. He was sentenced to confinement for 7 years, total forfeitures, reduction to pay grade E-l, and to be dishonorably discharged from the Naval Service. The convening authority approved the sentence as adjudged.

The charges in the instant case arose from sexual assaults perpetrated by the appellant upon three patients and a coworker during the time he was performing duties as a hospital corpsman at Naval Hospital, Naval Air Station, Corpus Christi, Texas, from April thru June 1985. Before this Court appellant asserts (1) that the military judge erred in failing to sustain the defense objection to the Government’s use of its peremptory challenge to strike the court-martial panel’s lone black member; (2) that the military judge abused his discretion in allowing a rape trauma expert to testify on the merits of the case; (3) that the military judge erred in permitting that same rape trauma expert to state that she believed the victim was telling the truth; and (4) that the military judge’s failure to sua sponte instruct on the lesser included offense of attempted sodomy constituted prejudicial error. Finding no prejudicial error, we affirm the findings and sentence.

GOVERNMENT'S PEREMPTORY CHALLENGE OF THE COURT’S LONE BLACK MEMBER

The appellant is a black male who was charged with committing sexual assaults upon four white women. He chose to be tried by a forum consisting of officer members. The members detailed to the general court-martial to which the instant charges were referred consisted of two Navy Captains, a Marine Lieutenant Colonel (LtCol), [810]*810a Navy Commander (CDR), two Navy Lieutenant Commanders (LCDR), and two Navy Lieutenants. After the parties had conducted voir dire, the military judge sua sponte challenged LtCol A, defense counsel peremptorily challenged CDR B, and trial counsel peremptorily challenged LCDR B, the panel’s lone black member. The military judge excused the three challenged members and recessed the court until the following morning. At the inception of that next morning’s Article 39(a), 10 U.S.C. section 839(a), session, the defense counsel moved “that the exercise of a peremptory challenge to exclude the only black that would have been eligible for this court was an unconstitutional exercise” of the Government’s peremptory challenge and asked that the military judge recall the previously excused LCDR B to sit on the court-martial panel. The military judge denied the defense motion and the court-martial proceeded without the participation of LCDR B or any substitute black panel members.

Before this Court, appellant renews his argument concerning the allegedly discriminatory peremptory challenge and asserts that the Supreme Court case of Batson v. Kentucky, 476 U.S.-, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), decided on 30 April 1986, some 6 months subsequent to the trial in the instant case, should be given retroactive effect and requires that appellant’s conviction be set aside and a new trial granted. We disagree.

In Batson, the Supreme Court reexamined the evidentiary burden placed on an accused claiming a deprivation of equal protection due to the Government’s use of peremptory challenges to exclude members of his race from the petit jury. Up until Batson, a number of lower courts had determined, based upon their interpretation of Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), “that proof of repeated striking of blacks over a number of cases was necessary to establish a violation of the Equal Protection Clause.” Batson, 106 S.Ct. at 1720 (emphasis added). Because of the “crippling burden of proof” this evidentiary formulation placed on criminal defendants alleging discriminatory peremptory challenge practice, the Batson Court made clear that “a defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor’s exercise of peremptory challenges at the defendant's trial.” Id. at 1722-1723. In order to establish such a case, the Court determined that the accused

first must show that he is a member of a cognizable racial group ... and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. Second, the defendant is entitled to rely on the fact ... that peremptory challenges constitute a jury selection practice that permits “those to discriminate who are of a mind to discriminate.” ... Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.

Id. at 1723 (quoting Avery v. Georgia, 345 U.S. 559, 562, 73 S.Ct. 891, 892, 97 L.Ed. 1244 (1953)). After advising that, “[i]n deciding whether the defendant has made the requisite showing, the trial court should consider all the relevant circumstances,”1 the Court concluded that “[i]f the trial court decides that the facts establish, prima facie, purposeful discrimination and the prosecutor does not come forward with a neutral explanation for his action, our precedents require that petitioner’s conviction be reversed.” Id. at 1725.

In the instant case, appellant urges that (1) the Batson rule applies to courts-martial; (2) the Batson rule should be applied retroactively to cases on direct appeal; and (3) the appellant is entitled to a new trial based upon Batson. We need not address the issue of court-martial applica[811]*811bility or retroactivity.2 Even assuming arguendo the applicability of the Batson rule to the case at bar, we find that the record does not reflect a discriminatory purpose on the part of trial counsel in challenging the lone black member, and, even if it can be said that the defense did establish such a prima facie case, government counsel has since come forward with a neutral explanation for his action.

Appellant maintains that the Batson three-pronged test3

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Private First Class DAVID L. JORDAN
Army Court of Criminal Appeals, 2019
United States v. Hurn
58 M.J. 199 (Court of Appeals for the Armed Forces, 2003)
United States v. Ruppel
45 M.J. 578 (Air Force Court of Criminal Appeals, 1997)
United States v. Lawrence
30 M.J. 1140 (U S Air Force Court of Military Review, 1990)
United States v. Savage
30 M.J. 863 (U.S. Navy-Marine Corps Court of Military Review, 1990)
United States v. Moore
26 M.J. 692 (U.S. Army Court of Military Review, 1988)
United States v. White
23 M.J. 891 (U.S. Army Court of Military Review, 1987)

Cite This Page — Counsel Stack

Bluebook (online)
23 M.J. 808, 1986 CMR LEXIS 2935, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-cox-usnmcmilrev-1986.