United States v. Greene

36 M.J. 274, 1993 CMA LEXIS 4, 1993 WL 49272
CourtUnited States Court of Military Appeals
DecidedFebruary 25, 1993
DocketNo. 67,297; CM 8902961
StatusPublished
Cited by44 cases

This text of 36 M.J. 274 (United States v. Greene) 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. Greene, 36 M.J. 274, 1993 CMA LEXIS 4, 1993 WL 49272 (cma 1993).

Opinions

Opinion of the Court

SULLIVAN, Chief Judge:

In September 1989, appellant was tried by a general court-martial composed of officer and enlisted members at Kaiserslautern, Federal Republic of Germany. Contrary to his pleas, he was found guilty of rape and attempted sodomy, in violation of Articles 120 and 80, Uniform Code of Military Justice, 10 USC §§ 920 and 880, respectively. He was sentenced to a bad-conduct discharge, confinement for 10 years, total forfeitures, and reduction to the lowest enlisted grade. On January 30, 1990, the convening authority approved the sentence as adjudged. The Court of Military Review affirmed the findings and sentence in an unpublished opinion dated September 6, 1991.

This Court granted review of three assigned issues and specified review of three additional issues.1 The issue which we find dispositive of this appeal is:

WHETHER THE MILITARY JUDGE ERRED BY GRANTING TRIAL COUNSEL’S PEREMPTORY CHALLENGE OF SFC GOODE WHEN THE PEREMPTORY CHALLENGE WAS USED IN A DISCRIMINATORY FASHION AND THE EXPLANATION ARTICULATED BY TRIAL COUNSEL WAS NOT [RACE] NEUTRAL.

We hold that trial counsel did not meet his legal burden of coming forward with a race-neutral explanation for his peremptory challenge of Sergeant First Class (SFC) Goode, so the military judge erred as a matter of law in granting this challenge. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and Her[276]*276nandez v. New York, — U.S. -, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991). See generally United States v. Bishop, 959 F.2d 820 (9th Cir.1992).

Appellant is a black soldier accused of raping and sodomizing a white female soldier in her barracks. During his court-martial, trial counsel peremptorily challenged a “black-Panamanian” enlisted member, SFC Goode. No effort was made by trial counsel to challenge SFC Goode for cause.

During general voir dire of the proposed court-martial members and in response to a question from civilian defense counsel, SFC Goode stated that he had been in the Army for eighteen and one-half years and that he “grew up in Panama.” During the following individual voir dire, civilian defense counsel (CDC) asked SFC Goode to elaborate on his attitude towards findings and sentencing:

CDC: You also, I think answered affirmatively to a question. I want to make sure that you understand what was being asked.
I asked a question about a discharge, and the charge sheet, and the charge on the charge sheet. Are you saying that if Specialist Greene is found guilty on one of those charges on the charge sheet, without knowing anything else about the case, just the fact that he’s guilty, are you saying you would vote to eliminate him or are you saying that’s one of [the] things you would consider when you’ve heard all of the evidence?
SFC Goode: I figure that if he’s guilty— if we reach a verdict of guilty, that would entail everything that we have heard. And I’m saying that, “yes,” I think I would vote to eliminate him from the service.
CDC: All right.
SFC Goode: Go ahead, sir.
CDC: No, you explain, I didn’t mean to interrupt you.
SFC Goode: You said if he’s found guilty, if I would vote to have him eliminated?
CDC: Okay, you got to two areas here. One is a vote of guilty or not guilty and one is a vote on the punishment. Okay. You sat as juror before. You understand that. I mean a panel member.
SFC Goode: Yes.
CDC: My question was geared — was trying to take away and make it a little bit more sterile than what you just said. My question was are you saying, if you see the charge rape and you know he’s been convicted and you know nothing else about the case, nothing else but that rape and conviction. Are you saying that you would vote to eliminate him? Or are you saying that having heard all of the evidence in the case, both on findings and sentencing, that you would consider eliminating him or would vote to eliminate him even after hearing all the evidence.
SFC Goode: I would have to take that into consideration after hearing the circumstance of the case.
CDC: Okay. So that in that case you might vote to eliminate him but you might not. Depending upon everything you hear?
SFC Goode: Exactly.
CDC: Thank you, Your Honor.

Trial counsel then asked SFC Goode two questions as follows:

TC: Thank you, Your Honor. SFC Goode, without knowing anything about the case whatsoever except the flyer that you have in front of you, at this point in the trial do you think you would have to consider the accused to be guilty or innocent? Right now.
SFC Goode: Right now he’s innocent because a man is innocent until proven guilty.
TC: Back to this issue of sentencing and possible discharge. Again we’ve talked so much about it, going back and forth about it. I’d just like to ask you one more time. If he was convicted of either one of those charges or [277]*277both based on nothing else, no other evidence being presented would you say that a discharge is appropriate? Do you feel compelled to vote for a discharge, just based on the nature of the offense alone?
SFC Goode: I’m not trying to change what I’ve just said. Yes, I mean based on these articles right here, these charges. If I didn’t hear anything else and I was to make a judgment he should be eliminated if I was to do so. That’s what you’re asking?
TC: If you had to.
SFC Goode: Yes.
TC: Just based on the presumed serious nature of the offense. Thank you. I have no other questions.

In response to questions by the military judge, SFC Goode stated he could follow the military judge’s instruction and he would not be locked into any specific punishment. SFC Goode concluded his individual voir dire responses by stating to the military judge: “Now that you have put it that simply, sir, I would consider all sentences and make a determination when the time comes to [do] that.”

Trial counsel then sought to peremptorily challenge SFC Goode. Defense counsel objected; he noted that SFC Goode and appellant are black, and asked for “a showing by the prosecution as to why the peremptory challenge was offered.” Trial counsel offered two reasons in his explanation of his peremptory challenge:

TC: I asked the types of questions that the defense counsel would ask because I wanted to challenge him myself on the issue of predisposition of sentencing and in response to my questions he did show the somewhat inelastic attitude then, you yourself rehabilitated him and

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Cite This Page — Counsel Stack

Bluebook (online)
36 M.J. 274, 1993 CMA LEXIS 4, 1993 WL 49272, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-greene-cma-1993.