United States v. Huitt

25 M.J. 136, 1987 CMA LEXIS 3985
CourtUnited States Court of Military Appeals
DecidedSeptember 30, 1987
DocketNo. 52,995; NMCM 84 3242
StatusPublished
Cited by3 cases

This text of 25 M.J. 136 (United States v. Huitt) 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. Huitt, 25 M.J. 136, 1987 CMA LEXIS 3985 (cma 1987).

Opinion

Opinion of the Court

COX, Judge:

Appellant was tried by a general court-martial composed of officer members and [137]*137found guilty, contrary to his pleas, of carnal knowledge; sodomy and forcible sodomy with girls under the age of 16; and taking indecent liberties with and committing lewd and lascivious acts upon girls under the age of 16, in violation of Articles 120,125, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 920, 925, and 934, respectively. He was sentenced to a dishonorable discharge, confinement for 25 years, total forfeitures, and reduction to E-l. The convening authority approved the sentence, and the Court of Military Review affirmed in an unpublished opinion.

This Court granted review of four issues, which we treat in the order they arose at trial. The first one we address is:

WHETHER THE COURT LACKED SUBJECT MATTER JURISDICTION TO TRY APPELLANT FOR CHARGE I, SPECIFICATION 1; CHARGE II, SPECIFICATION 1; AND CHARGE III, SPECIFICATION 2.

The charges brought against appellant, then a 22-year-old medical corpsman, resulted from romantic and sexual liaisons he had with four young girls who ranged in age from 11 to 13 years. All were the dependent children of military personnel stationed at the Marine Corps Air Ground Combat Center, Twentynine Palms, California. Six of the offenses of which appellant was convicted occurred on military installations, mostly at a stable where appellant kept his horse and where he became friendly with these girls. Those specifications are not in issue here.

The three offenses in question occurred off-base in nearby Twentynine Palms, California. At trial, appellant moved to dismiss these specifications for lack of subject matter jurisdiction, contending that there was no “service-connection.” O’Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969).

The recent Coast Guard case of United States v. Solorio, 21 M.J. 512 (C.G.C.M.R.1985), also involved off-base sex offenses with children of military personnel. Chief Judge Baum, in the Opinion of the Court, wrote:

Our ultimate legal conclusion ... is based on the following determinative factors: the common thread among all offenses of victims who are young dependent daughters accompanying and residing with their ... [military] parents; the violative nature of the offenses which invokes the responsibility and authority of the military commander for maintaining security, order, morale and discipline within his command; and the less than complete interest, concern and capacity of civil authorities in vindicating the military commander’s responsibility and authority in this regard. These factors impel us to conclude that the offenses are “service connected” and that the judge’s ruling dismissing for want of jurisdiction must be reversed.

Id. at 522.

On appeal to this Court, we noted that “O’Callahan’s [supra ] primary concern is with the impact of crimes on the armed services and their missions.” United States v. Solorio, 21 M.J. 251, 255 (C.M.A.1986). In that regard, we agreed with the Coast Guard court that

sex offenses against young children ... have a continuing effect on the victims and their families and ultimately on the morale of any military unit or organization to which the family member is assigned. This continuing effect tends to establish service-connection.

Id. at 256. See also United States v. Abell, 23 M.J. 99 (C.M.A.1986), cert. denied, — U.S. —, 107 S.Ct. 3263, 97 L.Ed.2d 762 (1987).

Of course, on certiorari from our opinion, the United States Supreme Court threw out the service-connection limitation on military jurisdiction. Solorio v. United States, — U.S. —, 107 S.Ct. 2924, 97 L.Ed.2d 364 (1987). We, however, decide this case on the narrower rationale of our Solorio decision. In so doing, we defer addressing the retroactive application of the Supreme Co'urt’s holding until that is[138]*138sue is properly framed before us.1 For the reasons stated in our Solorio opinion, we resolve this issue against appellant.

The next issue raised by appellant asks:

WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF THE ACCUSED BY DENYING DEFENSE CHALLENGES FOR CAUSE OF TWO MEMBERS.

This issue stems from the military judge’s denial of two defense challenges for cause against prospective court members. The defense contends that the challenges were improperly denied and that the judge abused his discretion in so ruling. The two members, Major Daugherty and Lieutenant Colonel Malinowski, were casual professional and social acquaintances of the father of one of the four victims, but the military judge did not believe that this fact would affect either member’s ability to perform their duties as court members without prejudice.

The standards for evaluating such challenges are well-settled:

What we ... [seek] to guard against is a member who harbors such bias toward the crime that he, based upon the facts as they develop and the law as it is given by the military judge, cannot put his personal prejudices aside in order to arrive at a fair sentence for the accused.

United States v. Davenport, 11 M.J. 242, 244 (C.M.A.1984).

The determination of whether or not to grant a challenge for cause is left to the military judge, and his decision will be tested by the touchstone of abuse of discretion.

United States v. Porter, 17 M.J. 377, 379 (C.M.A.1984).

[D]ue process does not require a new trial every time a juror has been placed in a potentially compromising situation____ [I]t is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote. Due process means a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen.

Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 946, 71 L.Ed.2d 78 (1982).

The fact that a court member has professional or social knowledge of a victim’s relative does not ipso facto mean that it would be impossible for the individual to be an impartial court member. The evidence presented in this record supports the military judge’s conclusion that these two members were able to exercise fair, free, and impartial judgment, united States v. Towers, 24 M.J. 143 (C.M.A.1987); Art. 25(d)(2), UCMJ, 10 U.S.C. § 825(d)(2). We agree with the judge’s ruling and hold that it was not error for him to allow the two members to sit.

We next consider:

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Bluebook (online)
25 M.J. 136, 1987 CMA LEXIS 3985, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-huitt-cma-1987.