United States v. Dockery

76 M.J. 91, 2017 CAAF LEXIS 108, 2017 WL 626827
CourtCourt of Appeals for the Armed Forces
DecidedFebruary 14, 2017
Docket16-0296/AF
StatusPublished
Cited by27 cases

This text of 76 M.J. 91 (United States v. Dockery) 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. Dockery, 76 M.J. 91, 2017 CAAF LEXIS 108, 2017 WL 626827 (Ark. 2017).

Opinions

Chief Judge ERDMANN

delivered the opinion of the court,

Contrary to his pleas, a general court- ■ martial panel composed of officer and enlisted members convicted Master Sergeant Joseph R, Dockery III of sexual assault and adultery, in violation of Articles 120 and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 920, 934 (2012). The panel sentenced Dockery to one year of confinement and a reduction to E-4. The convening authority approved the sentence as adjudged and the United States Air Force Court of Criminal Appeals (AFCCA) affirmed the findings and sentence.

Rule for Courts-Martial (R.C.M.) 912(f)(l)(N) provides that a court-martial panel member shall be excused for cause [93]*93whenever it appears that the member “[s]hou!d not sit as member in the interest of having the court-martial free from substantial doubt as to legality, fairness, and impartiality.” We granted review in this case to determine whether the military judge erred when he removed a challenged member on the basis of implied bias and, if the removal was in error, whether a prejudice analysis was appropriate.1 We hold that the military judge erred in his determination that implied bias existed in regard to the challenged member. We further hold that a' prejudice analysis is required in this situation and that Dockery was not prejudiced by the error. Therefore, we reverse the decision of the APCCA to the extent that it affirmed the military judge’s determination of implied bias, but uphold the lower court’s holding that Dockery suffered no material prejudice due to the error.

Background

The underlying facts which form the basis of the charges in this case are not at issue in this appeal. The case before us arises out of the military judge’s sua sponte removal of a panel member on the basis of implied bias.

Prior to voir dire, the military judge was informed that one of the panel members, Senior Master Sergeant (SMSgt) DC, was listed as a witness on the defense’s witness list. When questioned by the military judge as to his knowledge of the case, SMSgt DC responded that he had an intimate knowledge of the case and the facts surrounding it. When asked if he believed it would be appropriate for him to sit on the panel, SMSgt DC answered, “No, sir, I do not,” SMSgt DC confirmed that he had not discussed any details of the case with any other members,

Both the defense and trial counsel agreed that SMSgt DC, who was African American, should be excused for actual bias and he was subsequently released by the military judge. When reading the composition of the court in the presence of the members, trial counsel noted that SMSgt DC had been excused by the military judge.

During individual voir dire, the trial counsel asked Master Sergeant (MSgt) LW if she had had any sexual assault training. She stated that, as a junior enlisted airman, she had volunteered at a rape crisis center, which entailed her sitting with women in medical facilities as they awaited and underwent medical examination for sexual assault. The trial counsel then asked about her positive response during group voir dire to the defense counsel’s question concerning intoxication and whether slurred speech meant an individual could not consent to sex. He was able to get MSgt LW to agree that she would not automatically base her decision on slurred speech, but would consider all the facts about the individual’s condition and the military judge’s instructions on consent.

Later, during the individual voir dire of MSgt LW, the following colloquy occurred:

[DC:] Okay. I’m going to go into some questions that I didn’t ask when all you guys were on the panel, and we think the evidence in this case is going to show that Master Sergeant Dockery had sexual intercourse with Ms. [AR], Master Sergeant Dockery, as you can see, is black, and you’ll see that Ms. [AR] is white. Do you have any strong opinions on interracial relationships or interracial sex, anything like that?
[MSgt LW:] I certainly don’t. I’m Hispanic myself, black and Hispanic. So to me that has absolutely nothing to do with anything.
[[Image here]]
[DC:] Okay. The last question I have for you is, knowing we’re dealing with a sexual assault, which is obviously a very important topic, and Master Sergeant Dockery’s career and future are—you know—hang[94]*94ing on this, knowing those facts, if you were in his shoes right now, would you want someone like you on this jury?
[MSgt LW:] I would think yes, be fair, not from nothing, but for some reason an African American person already got dismissed, so really I would think—not that it wouldn’t be—oh god—I would say yes. You would want—you would want somebody like me to be fair for both parties, to judge. I will think that I will be fair, listening to all the facts, either way.
[[Image here]]
[DC:] [A]ny other things in terms of you thinking you’d be a good fit for the panel, you would want somebody like you if you were in that position? Anything else beyond what you’ve already said?
[MSgt LW:] If I was in a position of—
[DC:] Yeah, if—would you want somebody like you on a jury if you were in that position? You discussed your ability to be fair. I was just curious if there was anything else.
[MSgt LW:] No, sir. I think I’ll be fair.
[DC:] Okay, all right, thank you so much.
[MSgt LW:] No problem.
[MJ:] Trial Counsel, any follow up questions?
[TC:] Briefly, Your Honor. [MSgt LW], I just wanted to clarify one thing that you just said. You made a comment, I believe—maybe I heard it incorrectly—you made a comment when he asked you about whether or not you could be fair, you made a comment about one person had already gotten dismissed, or one African American already got dismissed. Is that what you stated?
[MSgt LW:] Yes, sir.
[TC:] What were you—what was your point, or what—are you concerned that he was dismissed and that he’s African American?
[MSgt LW:] No, sir, no. Just if—well, I don’t know—I’m assuming there’s supposed to be 12 individuals, and I was just wondering if—you know—if he was going to be replaced.
[[Image here]]
[TC:] Sir, would you mind instructing her on that?
[MJ:] Sure, I can do that. So, for military courts, there’s no requirement to have 12 folks. The minimum requirement is five. Okay? So it’s different than what you see on TV, and what you see in the movies on Netflix or Hulu. So for any number of reasons, me, as the military judge can excuse court members for a number of i-easons. And there was an issue that was brought up to me, I made a judgment call as the military judge, sort of like an official on a football—called an official time out and I said, “You know what? This person is not going to sit on the panel as a juror.”
[MSgt LW:] Okay, sir.
[MJ:] You are not to speculate as to why I excused that person from the panel.

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Cite This Page — Counsel Stack

Bluebook (online)
76 M.J. 91, 2017 CAAF LEXIS 108, 2017 WL 626827, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-dockery-armfor-2017.