United States v. Moyar

24 M.J. 635, 1987 CMR LEXIS 290
U.S. Army Court of Military Review·Decided April 30, 1987·No. ACMR 8601157·Published·Cited by 30 cases

Opinion

OPINION OF THE COURT

O’ROARK, Chief Judge:

Pursuant to his pleas, appellant was convicted of committing an indecent act with his adopted daughter, who then was a female under sixteen years of age, and of committing an indecent act with her after she had attained age sixteen, both offenses in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. sec. 934 (1982). He was sentenced to a dishonorable discharge, confinement for three years, forfeiture of all pay and allowances, and reduction to the grade of Private E-l.

Appellant contends that the military judge abused his discretion by denying appellant’s challenge for cause of a court member whose sister had been the victim of indecent acts by his father. We find that the military judge did abuse his discretion in failing to liberally grant this challenge for cause as required by military decisional law.

During pre-sentencing voir dire of the court-martial members by defense counsel, Lieutenant Colonel (LTC) B revealed that his sister “was molested by my father” when she was in high school approximately twenty-six years ago and when she was about the same age as the victim in this case. When asked whether he had any doubt he could hear this case fairly and impartially, LTC B answered “No, or I wouldn’t have brought it up.” Defense counsel subsequently challenged LTC B for cause on the basis that LTC B’s answer demonstrated at best evasiveness on his [637] part. The military judge disagreed with this conclusion, stating, “I took his answer to mean that if he felt that it would impact upon his impartiality in this case, he would not have disclosed that matter to the court____” We find that this statement supports more than detracts from defense counsel’s concern with LTC B’s candor. Lieutenant Colonel B was recalled to explain his curious answer.

IDC: Colonel B, one of the questions that Captain Hutchins asked you — and forgive me if I don’t state it specifically — was that, would the fact that your father molested your sister have anything to do with your judgment or predisposition for sentence or something of this nature, and you stated, ‘No, or I would not have brought it up.’ What did you mean by, ‘I wouldn’t have brought it up.’
MEMBER (LTC B): I wasn’t sure when you asked the first question about it being an offense whether it was appropriate to bring up something of that nature, but because of the sensitivity of this kind of case and prior knowledge, I felt it was appropriate to bring it up and to surface it at this time.
IDC: Yes, sir, and of course, it was. But I am concerned about your indication to me, and perhaps no other person, that you would not have revealed it at all, if you thought it would tend to sway you one way or another.
MEMBER (LTC B): I have never admitted to this to anyone other than in this courtroom. That’s why the sensitivity of it, and that’s why I was reluctant to mention it.
DC: That’s all we have, Your Honor.
MJ: Colonel B, you indicated this occurred about twenty-six years ago, is that correct?
MEMBER (LTC B): Yes, sir.
MJ: And you indicated that there was no action taken against your father, is that correct?
MEMBER (LTC B): That’s correct.
MJ: Is there any reason why no action was taken against your father that you know of?
MEMBER (LTC B): My sister got married and left the family. My parents divorced. I continued to live with my father. My father retired from the Navy. He’s deceased now. There was no reason to bring it up.
MJ: Would the fact that your sister was molested by your father about twenty-six years ago affect your judgment in any way in this case?
MEMBER (LTC B): I do not feel it would, sir.
MJ: Do you feel that you can fairly listen to all the instructions in this case, all the evidence in this case, all the extenuation and mitigation, and impose a fair and appropriate sentence in this case based upon what happens in this courtroom?
MEMBER (LTC B): Yes, sir, I do.
MJ: You could put everything else out of your mind and adjudge a sentence based solely upon the evidence, the instructions, the extenuation and mitigation, and the matters brought up in this courtroom today?
MEMBER (LTC B): Yes, sir, I could.

The military judge subsequently denied the defense’s challenge of LTC B for cause, declaring that the fact that LTC B’s sister was molested twenty-six years ago by his father would not affect LTC B’s judgment in this case. This conclusion was reinforced by the trial judge’s expressed satisfaction with LTC B’s statement that he would adhere to instructions, listen to the evidence and the facts in this case, and based on the instructions, participate on the panel in an impartial manner.

Lieutenant Colonel B was then peremptorily challenged by defense counsel “in light of the military judge’s denial of LTC B’s challenge for cause.” Defense counsel preserved the issue for review by placing on the record that MAJ F would have been peremptorily challenged if it had not become necessary in his judgment to exercise the defense’s single peremptory challenge to excuse LTC B. See Manual for Courts-Martial, United States, 1984, Rule for Courts-Martial 912(f)(4) [hereinafter R.C. M.].

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United States v. Moyar, 24 M.J. 635, 1987 CMR LEXIS 290 (usarmymilrev 1987).

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