United States v. Robinson

53 M.J. 749, 2000 CCA LEXIS 188, 2000 WL 1070947
CourtArmy Court of Criminal Appeals
DecidedAugust 4, 2000
DocketARMY 9800383
StatusPublished

This text of 53 M.J. 749 (United States v. Robinson) is published on Counsel Stack Legal Research, covering Army Court of Criminal 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. Robinson, 53 M.J. 749, 2000 CCA LEXIS 188, 2000 WL 1070947 (acca 2000).

Opinion

OPINION OF THE COURT

MERCK, Senior Judge:

Contrary to his pleas, appellant was found guilty by a general court-martial composed of officer and enlisted members of violating a lawful general regulation (three specifications), making a false official statement, and committing indecent acts with another (three specifications) in violation of Articles 92, 107, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 892, 907, and 934 [hereinafter UCMJ]. The convening authority approved the adjudged sentence of a bad-conduct discharge. The case is before the court for mandatory review pursuant to Article 66, UCMJ, 10 U.S.C. § 866.

We have considered the record of trial, appellant’s two assignments of error, the matter personally raised by appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.1982), and the government’s response thereto. In the first assignment of error, appellant asserts:

THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE GRANTED THE GOVERNMENT’S PEREMPTORY CHALLENGE OVER A DEFENSE OBJECTION BASED UPON UNITED STATES V BATSON [citations omitted], WHERE THE MILITARY JUDGE APPLIED THE WRONG LAW AND WHERE THE GOVERNMENT GAVE MERELY A PRETEXTUAL REASON FOR CHALLENGING THE MEMBER.

We find that this assignment of error has merit and will grant appropriate relief. Because of our disposition based on this assignment of error, we need not address the remaining assignment of error or appellant’s Grostefon matter.

FACTS SURROUNDING THE PEREMPTORY CHALLENGE

During preliminary questioning, the military judge asked the court members if the information contained in the convening order was correct. First Sergeant (1SG) Sanchez replied that his unit of assignment [B Company, 2nd Battalion, 60th Infantry] had changed, and it was “120th AG Battalion instead of B Company, 260th [sic].”

During voir dire, the military judge asked if there was any court member who was in the rating chain, supervisory chain, or chain of command of another member. Colonel (COL) Scully informed the military judge that 1SG Sanchez was a First Sergeant in his brigade. Colonel Scully stated that he would not feel embarrassed or restrained in any way in the performance of his duties as a court member if a person over whom he held a position of authority should disagree with him. First Sergeant Sanchez stated that he would not feel inhibited or restrained in any way in performing his duties as a court member including the full and free discussion of his views during deliberations because COL Scully held a position of authority over him.

[751]*751Appellant is an African-American male. Trial counsel exercised his peremptory challenge against 1SG Sanchez, a Hispanic male. Although unclear from the record, 1SG Sanchez was apparently the only Hispanic on the panel. The defense counsel objected and demanded a race-neutral reason for the challenge, citing Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The military judge mistakenly stated that, because appellant and 1SG Sanchez were not the same race, Batson1 did not apply. The military judge then informed trial counsel that he was not going to require a reason but he could state one if he desired. The following exchange occurred:

TC: [ ] First Sergeant Sanchez, is brand new to the — the TCC’s commander and his brigade commander is Colonel Scully. And for that reason, I would strike him from the panel.
MJ: I find that to be a reasonable and plausible basis for a challenge although I don’t think that any. — such explanation is required under Batson, Tulloch, or Wit-ham.

The military judge granted the government’s peremptory challenge of 1SG Sanchez and defense counsel’s peremptory challenge of COL Scully.

CIVILIAN APPLICATION OF BATSON

In evaluating a claim of race discrimination in a civilian trial, the Supreme Court established the following three-step process:

(1) a defendant must make a prima facie showing that the prosecutor has exercised a peremptory challenge on the basis of race; (2) the burden then shifts to the Government to articulate a race-neutral explanation for striking the jurors in question; and (3) the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination.

See Batson, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69.

BATSON AND ITS PROGENY’S APPLICATION TO THE MILITARY

I. Step One

Over twelve years ago, in United States v. Moore, 26 M.J. 692, 698-700 (A.C.M.R.1988)(en banc), this court stated:

The basic principles enunciated, i.e., elimination of racially discriminatory challenges, are consistent with and necessary to the proper administration of military justice. . . .
Application of the specific procedural formulation enunciated in Batson to trials by court-martial is neither required nor practicable, due to substantial legal and systemic differences between courts-martial and civil criminal prosecutions. . . .
The limitation at courts-martial to one peremptory challenge per party would render the burden of establishing a prima facie case under the Batson decision intolerably high. . . . Therefore, in those cases where ... the government peremptorily challenges a member of the court-martial panel who is [a member of a recognized racial group], we will require only that the accused state an objection to the prosecutor’s peremptory challenge. . . . The government will be required to provide an explanation for the challenge, notwithstanding the absence of defense evidence supporting the objection and without regard to the merits of any defense evidence.

Our superior court adopted our “per se rule for all the services.” Moore, 28 M.J. 366, 368 (C.M.A.1989); see also United States v. Tulloch, 47 M.J. 283, 286 (1997).

[752]*752 II. Step Two

Once the defense has raised a Batson challenge, the government is required to articulate a race-neutral explanation for the peremptory challenge. In Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995), the Supreme Court stated, a race-neutral explanation need not be either “persuasive or even plausible.” The Court found that the civilian prosecutor had complied with step-two when he peremptorily challenged two African-American men because he “did not like the way they looked,” “they looked suspicious,” and one of them had “long, unkempt hair, a mustache, and a beard.” The Supreme Court’s analysis does not focus on

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

Related

Batson v. Kentucky
476 U.S. 79 (Supreme Court, 1986)
Powers v. Ohio
499 U.S. 400 (Supreme Court, 1991)
Purkett v. Elem
514 U.S. 765 (Supreme Court, 1995)
United States v. Gray
51 M.J. 1 (Court of Appeals for the Armed Forces, 1999)
United States v. Tulloch
44 M.J. 571 (Army Court of Criminal Appeals, 1996)
United States v. Tulloch
47 M.J. 283 (Court of Appeals for the Armed Forces, 1997)
United States v. Ruiz
49 M.J. 340 (Court of Appeals for the Armed Forces, 1998)
United States v. Cruse
50 M.J. 592 (Army Court of Criminal Appeals, 1999)
United States v. Grostefon
12 M.J. 431 (United States Court of Military Appeals, 1982)
United States v. Moore
26 M.J. 692 (U.S. Army Court of Military Review, 1988)
United States v. Moore
28 M.J. 366 (United States Court of Military Appeals, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
53 M.J. 749, 2000 CCA LEXIS 188, 2000 WL 1070947, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-robinson-acca-2000.