United States v. Klingensmith

17 M.J. 814, 1984 CMR LEXIS 4698
CourtU.S. Army Court of Military Review
DecidedJanuary 30, 1984
DocketCM 443353
StatusPublished
Cited by2 cases

This text of 17 M.J. 814 (United States v. Klingensmith) is published on Counsel Stack Legal Research, covering U.S. Army 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. Klingensmith, 17 M.J. 814, 1984 CMR LEXIS 4698 (usarmymilrev 1984).

Opinion

OPINION OF THE COURT

COHEN, Judge:

In accordance with his pleas, appellant was convicted by a general court-martial of making a false official statement, simple arson and three specifications of maliciously [815]*815conveying false information by telephone in violation of Articles 107, 126 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 907, 926 and 934 (1976). The offenses of maliciously conveying false information consisted of two bomb threats to the military police and one telephone call to the German police concerning the location of a dead body. Appellant was sentenced to a bad-conduct discharge, confinement at hard labor for one year, and reduction to the grade of Private E-l. The convening authority approved the sentence.

On appeal appellant contends that the military judge erred by denying his challenge for cause against a court member. Appellant alleges he was thus forced to exercise his peremptory challenge against the member. As a result, appellant was unable to exercise his peremptory challenge against another objectionable court member.

At trial, defense counsel challenged two court members, Lieutenant Colonel (LTC) H and Captain (CPT) K, for cause. Both of these individuals had indicated their wives had received threatening or obscene telephone calls. Lieutenant Colonel H stated that while he had never been personally threatened, during the last six or eight months of his previous assignment his wife had received threatening and obscene phone calls. When asked what effect the calls had on his life, LTC H stated that although the calls were not “devastating,” his home life was disrupted. Lieutenant Colonel H stated he understood that people have various motives for making such phone calls. Lieutenant Colonel H also indicated that he thought he could listen to the evidence in appellant’s case and render a just sentence based on the circumstances of the case.

Conceding that LTC H’s verbal responses reflected that his life had not been affected by the phone calls, trial defense counsel maintained that he perceived in LTC H a “stiffness of jaw, ... tightness of .. . lip” which indicated that LTC H had been disturbed by the calls. The Government responded that there was no evidence that LTC H had any bias or would not be a proper court member. The military judge denied the challenge for cause against LTC H.

The second challenged court member, CPT K, related that his wife had received a series of obscene phone calls in 1974, 1980 and just prior to appellant’s court-martial. Captain K described the most recent calls as very obscene and disturbing. These calls caused him “quite a bit of concern.” Asked whether these calls would affect his determination of an appropriate punishment in appellant’s case, CPT K stated he did not believe they would. When asked if he could disregard the incidents in his own life, CPT K said he could but added “if this were the individual involved it would definitely affect me. .. .” The military judge assured CPT K that he would not be sitting as a court member if that were the case. Neither counsel asked any further questions. Trial defense counsel challenged CPT K on the basis that he had verbally stated the telephone calls received by his wife had caused “great alarm and disruption.” The trial counsel opposed the challenge since CPT K stated he could evaluate the case on the evidence. Trial counsel also contended that appellant’s offense differed from the one suffered by CPT K since appellant made his calls to an “impersonal body.” The military judge denied the challenge for cause. Defense counsel stated he was “forced to use” his peremptory challenge against CPT K.

If one accepts the responses of each challenged member as accurately reflecting his state of mind, the record shows no bias against appellant. The challenges against these court members were based on their prior experiences with obscene telephone calls. Both members had their home lives disrupted because of harassing phone calls. Their status as “prior victims” was the only factor which arguably indicated that these court members may have held a bias against appellant. Neither LTC H nor CPT K admitted any bias against appellant in particular or against people who made harassing phone calls in general. Any bias held by these court members was a general [816]*816bias against obscene phone callers. Such a bias is shared by all law-abiding citizens and is not disqualifying if it will yield to the evidence and the instruction of the military judge. See United States v. Yarborough, 14 M.J. 968, 971 (A.C.M.R.1982), pet. granted, 15 M.J. 332 (C.M.A.1983).

Both challenged court members indicated that their experiences would not affect their determination of an appropriate sentence in appellant’s case. Appellant, however, citing United States v. Harris, 13 M.J. 288 (C.M.A.1982), argues that the assurances provided by CPT K were insufficient as a matter of law to remove the defense’s valid objection to CPT K’s presence as a court member. This assertion of error is based on two assumptions: (1) that CPT K’s answers gave rise to a presumption of bias

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Suire
827 So. 2d 569 (Louisiana Court of Appeal, 2002)
United States v. Inman
20 M.J. 773 (U.S. Army Court of Military Review, 1985)

Cite This Page — Counsel Stack

Bluebook (online)
17 M.J. 814, 1984 CMR LEXIS 4698, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-klingensmith-usarmymilrev-1984.