United States v. Dale

39 M.J. 503, 1993 CMR LEXIS 565, 1993 WL 442485
CourtU S Air Force Court of Military Review
DecidedNovember 1, 1993
DocketACM 29794
StatusPublished
Cited by7 cases

This text of 39 M.J. 503 (United States v. Dale) is published on Counsel Stack Legal Research, covering U S Air Force 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. Dale, 39 M.J. 503, 1993 CMR LEXIS 565, 1993 WL 442485 (usafctmilrev 1993).

Opinions

OPINION OF THE COURT

KEAN, Judge:

Before a general court-martial composed of officer members, the appellant pleaded guilty to one specification each of rape and sodomy, and two specifications each of indecent acts, the victim in each case being his minor daughter. He was convicted in accordance with his pleas and sentenced to a dishonorable discharge, 20 years confinement, total forfeitures, and reduction to E-l. The convening authority reduced the forfeitures pursuant to a pretrial agreement, but otherwise approved the sentence as adjudged.

Before this court, appellant initially assigned as error the military judge’s denial of defense challenges for cause against two court members. We permitted appellant to file, out of time, a supplemental assignment of errors asserting ineffective representation by trial defense counsel, and a second supplemental assignment of error asserting that his guilty pleas were coerced. United States v. Grostefon, 12 M.J. 431 (C.M.A.1982). Both supplemental assignments of error were accompanied by affidavits of the appellant. The government has responded with, inter alia, affidavits of trial defense counsel. All issues now are joined and the case is ripe for decision.

Appellant’s first assigned error has to do with challenges for cause against two court members, Colonel Rensler and Captain Blankinship. Colonel Rensler, responding to a question during group voir dire, said that he knew of another case involving an officer convicted of child sexual abuse. He said that officer’s ease had been handled by the civilian court system, and the officer was sentenced to participate in a treatment program. The Air Force then administratively discharged the officer. Colonel Rensler felt that the treatment of this officer was “excessively lenient” and that “justice would have been better served had he been tried in the military courts.” He said, though, that he did not think incarceration was necessarily [505]*505required in such cases, and denied having formed any idea of an appropriate sentence in appellant’s case. Later, in response to individual questioning by the military judge, Colonel Rensler asserted that he would not “have to” adjudge confinement or any other particular sentence and that he could and would listen to all the evidence. He viewed the appellant’s case as not “tied together” with the earlier case he remembered.

Appellant challenged Colonel Rensler on the ground that he had a fixed predisposition to adjudge confinement.

Voir dire of Captain Blankinship disclosed that he was a career security police officer serving as Operations Officer of the security police squadron. He was in charge of security police investigations on base, but was not familiar with the appellant’s case since it had been investigated by the Office Of Special Investigations, not the security police. He said that he attended the base “cops and robbers” meeting in his commander’s absence, but, being aware of his assignment to the court-martial scheduled to try appellant, he had excused himself from the meeting when appellant’s case was briefed. Appellant challenged Captain Blankinship on the stated ground that “putting cops in law enforcement on a jury does not appear to be very fair.”

An accused is entitled to be tried by court members whose minds are open as to what is an appropriate sentence. A member who asserts, without wavering, that he necessarily will adjudge a particular type of sentence (e.g., confinement, or a punitive discharge), or that he will not, under any circumstances, consider adjudging some type of lenient sentence, is by implication saying that he will disregard the evidence, arguments of counsel, the judge’s instruction, and the views of other court members, to the extent they do not comport with the member’s fixed ideas. Such a member should be excused. United States v. Heriot, 21 M.J. 11 (C.M.A. 1985). But the burden of proof to show that the challenged member holds such fixed ideas is on the party propounding the challenge; he “must raise the contention of bias from the realm of speculation to the realm of fact.” United States v. Dawdy, 17 M.J. 523, 526 (A.F.C.M.R.1983) rev’d in part, 19 M.J. 69 (C.M.A.1984). This the appellant has not done with respect to Colonel Rensler. Despite several attempts by trial defense counsel to get Colonel Rensler to commit himself on the subject of confinement, he declined to do so. His only statements on the subject suggest the absence, not the presence, of an inelastic attitude toward confinement.

Appellant’s sole reason for challenging Captain Blankinship appears to be that he is a security police officer; defense counsel stated on the record that “Captain Blankinship himself appears to be fair and open-minded.” But there is no per se rule that bars present or former law enforcement officials from serving as court members. United States v. Berry, 34 M.J. 83, 88 (C.M.A. 1992) (Cox, J. concurring). Appellant does not point to any evidence raising “substantial doubt as to the legality, fairness, and impartiality” of Captain Blankmship’s participation as a member of the court. R.C.M. 912(f)(l)(N).

In our independent review of the record we have found none.

We have in the past admonished military judges that challenges for cause are to be granted liberally. United States v. Job-son, 28 M.J. 844 (A.F.C.M.R.1989); United States v. Moyar, 24 M.J. 635 (A.C.M.R.1987); United States v. Dawdy, supra. We reiterate that admonition here, but liberality need not extend to crediting mere speculation, or to the minute dissection of voir dire testimony concerning hypothetical situations. See United States v. Tippit, 9 M.J. 106, 107 (C.M.A.1980). Military judges are expected to exercise their sound discretion in determining whether a challenged member can sit “free from substantial doubt as to legality, fairness and impartiality.” Absent clear abuse, we will not disturb that exercise of discretion. United States v. Reynolds, 23 M.J. 292 (C.M.A.1987); United States v. Smart, 21 M.J. 15 (C.M.A.1985); United States v. McQueen, 7 M.J. 281 (C.M.A.1979). We find no abuse of discretion in empaneling Colonel Rensler and Captain Blankinship.

Appellant’s first supplemental .assignment of error asserts that trial defense counsel [506]*506were ineffective in a number of particulars. In summary, these encompass allegation of failure to adequately investigate and prepare the case, failure to assert certain objections and challenges, failure to properly advise the appellant of certain of his rights and the consequences of certain of his decisions; and coercion of the appellant to plead guilty and offer an inaccurate stipulation and testimony in support of that plea. He also asserts that his original detailed defense counsel, upon separation from the service, solicited money from him to continue representation.

In response, the government has filed affidavits of trial defense counsel rebutting each of the appellant’s allegations. We do not deem it necessary to recount the allegations, and the government’s rebuttal thereto, in detail. Having considered appellant’s submissions, the affidavits of trial defense counsel, and the record of trial as a whole, we have no reason to doubt counsel’s explanation. What the appellant seems to see as evidence of ineffective representation appears to us as prudént trial tactics in the face of overwhelming evidence of guilt.

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Bluebook (online)
39 M.J. 503, 1993 CMR LEXIS 565, 1993 WL 442485, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-dale-usafctmilrev-1993.