United States v. Dinatale

44 M.J. 325, 1996 CAAF LEXIS 37, 1996 WL 494258
CourtCourt of Appeals for the Armed Forces
DecidedAugust 29, 1996
DocketNo. 95-0053; CMR No. 30000
StatusPublished
Cited by15 cases

This text of 44 M.J. 325 (United States v. Dinatale) is published on Counsel Stack Legal Research, covering Court of Appeals for the Armed Forces primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Dinatale, 44 M.J. 325, 1996 CAAF LEXIS 37, 1996 WL 494258 (Ark. 1996).

Opinions

Opinion of the Court

EVERETT, Senior Judge:

At his general court-martial at George Air Force Base, California, for committing indecent acts on minors with intent to satisfy his lust (2 specifications), see Art. 134, Uniform Code of Military Justice, 10 USC § 934, appellant pleaded guilty in each instance to a lesser-included offense. After a contested trial on the greater offenses, however, the officer members convicted him as charged and sentenced him to a bad-conduct discharge, confinement for 2 years, and reduction to airman first class. The convening authority approved these results, and the Court of Military Review1 affirmed.

In this Court, appellant complains that the military judge abused his discretion by denying the defense challenge for cause against the president of the court-martial panel, Colonel David. Appellant argues that the president’s earlier review of the privileged report and findings of his sanity board, in her capacity as Chief of Hospital Services at George Air Force Base, “raises substantial doubt as to the fairness and impartiality of Colonel David as a court member.” Final Brief at 2. See RCM 912(f)(l)(N), Manual for Courts-Martial, United States (1995 ed.). On this record,, however, we do not find any clear abuse of discretion.

I

When the charges against appellant were referred to a general court-martial for trial, appellant requested a sanity board inquiry. See RCM 706. The board’s conclusion was “Axis I: ... Adult antisocial behavior as manifested by performing sexually indecent acts upon his children” and “Axis II: ... No diagnosis, although avoidant traits are evidenced.” This report was published on March 10, 1992; sometime thereafter it was reviewed by the Chief of Hospital Services, Colonel David, and then by the hospital commander.

Approximately one month later — on April 14, 1992 — this same Colonel David sat as the president of appellant’s court-martial. After general voir dire of the panel2, defense counsel asked to question Colonel David individually. During that examination, Colonel David acknowledged that she reads the “summary” of each sanity board report from that hospital; but she indicated that she did not “recall” appellant’s report specifically. Defense counsel then asked, “[I]f information were brought out about the results of that or maybe some background information with regards to him or the offenses, is there á possibility that it might trigger some recollection?” Colonel David responded, “I don’t know.”

At this point, attention turned to defining exactly what Colonel David’s review encompassed:

TC What exactly do you review in regard to your report, ma’am?
MEM (Col David): Okay, I review what the psychologist writes down, essentially saying, “So and so was interviewed. Psychologic testing done,” and she gives her determination: “This active duty member is sane or is not sane.”
TC Do you actually review any of the tests or anything like that?
MEM (Col David): No.

[327]*327In a capsule, she explained that her review included only “a summary of the psychologist.”

The voir dire of Colonel David culminated with this exchange between her and the military judge:

MJ Colonel, in reviewing these, and in this instance, you don’t recall whether or not there was or was not a report done on Sergeant Dinatale?
MEM (Col David): I don’t recall, sir.
MJ If in some form or fashion, medical evidence or psychological evidence was presented on findings or sentence, do you feel that that would cause you to be unable to decide the facts in this case?
MEM (Col David): No, sir.
MJ So you would be able to make your decision based on the evidence presented in court and the instructions that I’ll give you?
MEM (Col David): Yes, sir.

After Colonel David had retired from the courtroom, defense counsel stated:

Sir, the defense would challenge for cause, Colonel David, for the fact that there has been a sanity inquiry in this case and she has reviewed it. I obviously know that she does not recall that. The defense’s fear is as the trial goes on and some more evidence is presented, that that may trigger something and on the ... I guess for the sake of guarding against that happening and how she reacts to the information or how she reacts to her recollection of it, we would ask that she be challenged for cause.

Denying the challenge, the military judge explained:

Well, in this case, the review by Colonel David is obviously an administrative one. There is no issue of sanity being raised before the members on the findings. I’m not certain whether or not the defense intends to present matters during the sentencing portion, but the colonel’s responses were she has no recollection of any matters involving the accused and would be able to make her determination based solely on the evidence presented by counsel and the instructions and, if there is any evidence presented by the defense on sentencing. It would not be anything that would be influenced by her administrative review, if there was that in this case. There is no indication that there was. And I don’t see that that administrative review would have covered anything that would not be presented as evidence; therefore, I don’t see that there’s anything that would prevent her .from making an impartial decision in this case and the challenge for cause is denied.

Thereupon, defense counsel peremptorily challenged another member of the panel and thereby preserved for appellate review Colonel David’s suitability as a member of this panel. See RCM 912(f)(4).

II

In part from recognition that each party has only one peremptory challenge in a court-martial, see RCM 912(g)(1), this Court frequently has reiterated the President’s articulated policy that military judges should grant challenges for cause liberally. See, e.g., United States v. Hamilton, 41 MJ 22, 25 (CMA 1994); United States v. Glenn, 25 MJ 278, 279 (CMA 1987). This policy was stated expressly in early versions of the Manual for Courts-Martial. See para. 62h(2), Manual for Courts-Martial, United States, 1969 (Revised edition); para. G2h (2), Manual for Courts-Martial, United States, 1951. It has been continued implicitly through more recent versions, see Drafters’ Analysis, Manual for Courts-Martial, United States (1995 ed.), at A21-59; Drafters’ Analysis, Manual for Courts-Martial, United States, 1984, at A2154; United States v. Smart, 21 MJ 15, 18-19 and n. 1 (CMA 1985).

Our standard of review of a military judge’s denial of a causal challenge is clear abuse of discretion. United States v. Hamilton, supra at 25; United States v. White, 36 MJ 284, 287 (CMA 1993); see S. Childress & M. Davis, Federal Standards of Review § 4.09 at 4-70 (2d ed. 1992). Commenting on the relationship between this appellate standard of review and a military judge’s liberal-grant charge, this Court has said:

[328]

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Bluebook (online)
44 M.J. 325, 1996 CAAF LEXIS 37, 1996 WL 494258, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-dinatale-armfor-1996.