United States v. Smith

27 M.J. 25, 1988 CMA LEXIS 2592, 1988 WL 97080
United States Court of Military Appeals·Decided September 28, 1988·No. No. 58,768; CM 448913·Published·Cited by 12 cases

Opinions

Opinion of the Court

SULLIVAN, Judge:

In December 1985, appellant was tried by a general court-martial composed of officer and enlisted members at Fort Hood, Texas. Contrary to his pleas, he was found guilty of premeditated murder, in violation of Article 118, Uniform Code of Military Justice, 10 USC § 918. He was sentenced to confinement for life, forfeiture of one-half pay [26]*26per month for life, and reduction to the lowest enlisted grade. The convening authority approved the sentence as adjudged. The Court of Military Review affirmed. 24 M.J. 859 (1987).

This Court granted review of the following two issues:

I
WHETHER THE MILITARY JUDGE IMPROPERLY LIMITED VOIR DIRE BY NOT ALLOWING TRIAL DEFENSE COUNSEL TO INQUIRE INTO THE MEMBERS’ ATTITUDES AS TO THE MANDATORY SENTENCE OF LIFE IMPRISONMENT FOR THE CRIME OF PREMEDITATED MURDER.
II
WHETHER THE MILITARY JUDGE VIOLATED APPELLANT’S RIGHT TO MILITARY DUE PROCESS BY PRECLUDING HIM FROM A WISE EXERCISE OF HIS SINGLE PEREMPTORY CHALLENGE.

We hold that the military judge did not abuse his discretion by limiting defense counsel’s voir dire, and he did not deny appellant the right to intelligently exercise his peremptory challenge. See generally United States v. Parker, 6 U.S.C.M.A. 274, 19 C.M.R. 400 (1955).

The facts of this case are not in dispute. It was conceded at trial that appellant shot and killed his wife. Appellant’s premeditation was the critical issue contested at trial as well as the lesser offenses, if any, for which appellant could be found guilty if premeditation were not found. On appeal, appellant challenges the military judge’s actions during voir dire.

Before conducting voir dire of the members, appellant’s civilian defense counsel made the following motion:

Further, Your Honor, the defense would request permission to, during the course of voir dire, to advise the panel members of a mandatory life sentence as a part of punishment for premeditated murder and our reasoning behind that, Your Honor, in that premeditated murder does, in fact, require mandatory life, that there may be panel members who, in fact, being not aware of that issue, that may, in fact, affect their judgment. Further, to take it to the extent, the Sixth Amendment agrees and grants to the defendant his right to a jury of his peers, then what thought process they may utilize or prejudged bias that they may have, i.e., a life for a life or an eye for an eye type philosophy, then we — we feel that we would be entitled to know in the same capacity that governmental juries and state juries are allowed to be voir dired on their support or defense or denial of the death penalty case. We feel that by not being able to inquire to their position on punishment, if the[y’re] forced to compel to vote a punishment, not being able to advise them of mandatory life would deny us sufficient knowledge to conduct a proper challenge and/or voir dire to a member. I realize that this matter is currently before the Court of Military Review and I further realize that no judgment has been rendered in it and it’s only been approached in one other matter. We are not asking the court to make new law, but simply give us an opportunity to conduct a full voir dire to determine preconceived notions or positions of panel members and further advise them of the extent and magnitude that their verdict may carry. We are not utilizing this to remove a member of the panel, but simply place them on notice of the — of their responsibility.

(Emphasis added.)

Trial counsel opposed the motion on the basis that this type of questioning during voir dire was limited to death-penalty cases. Counsel for the defense responded:

We have no objection to advising the panel this is not a capital case, but it would be the defense’s position that, by Manual, the punishment for premeditated murder is set at mandatory life. Therefore, the panel is no longer deliber[27]*27ating a term of incarceration because that is predetermined. Their only issue would be the terms and conditions that the mandatory sentence would be complied with. We feel that a major item that they would consider in any other aspect had been denied to them and they should be aware that, in fact, their verdict has been terminated by action of law, with the exception of forfeitures or reductions in rank. Therefore, we feel that it’s very necessary that they be advised of that. Thank you.
The military judge then ruled as follows: I will inform the members that the case is referred as non-capital. I will not inform the members that, in the event of a finding of guilty as charged, the — of the mandatory life sentence and I will ask counsel to refrain from informing them of that in argument or voir dire.

Subsequently during voir dire, defense counsel asked the assembled members if there was anyone present whose “religious or personal values would dictate an eye for an eye or a tooth for a tooth, that is, severe punishment simply because a human life was taken.” Before the members answered, the military judge then informed them that this was “a non-capital case” and that “the death penalty” could “not be imposed” in this case. All the members responded negatively.

After individual voir dire had been conducted, appellant successfully challenged three members for cause. Moreover, the defense then exercised its peremptory challenge, thereby reducing the panel to five members, the minimum necessary to continue the trial.

Our first step in resolving this appeal is to identify the precise questions which defense counsel hoped to ask the prospective members. We note that the proposed questions concerning the mandatory sentence were not submitted in writing to the judge. Cf. United States v. Slubowski, 7 M.J. 461 (C.M.A.1979). However, defense counsel’s oral request at trial indicates that he wanted to advise the members that a mandatory life sentence existed for premeditated murder and then elicit each member’s “position” on this sentencing reality. See United States v. Karnes, 1 M.J. 92 (C.M.A.1975). The stated purpose of this inquiry was to determine the members’ biases and preconceived notions and to impress on them the seriousness of their task.

The judge refused to permit defense counsel to pursue this line of questioning on voir dire. See Discussion, R.C.M. 912(d), Manual for Courts-Martial, United States, 1984. The propriety of the defense request should be measured at trial under principles of military law announced long ago in United States v. Parker, 6 U.S.C.M.A. at 279, 19 C.M.R. at 405. There, this Court said:

When a member is examined with a view to challenge, it is to be remembered that he may be asked any pertinent question tending to establish a disqualification for duty on the court. Statutory disqualifications, implied bias, actual bias, or other matters which have some substantial and direct bearing on an accused’s right to an impartial court, are all proper subjects of inquiry. The accused should be allowed considerable latitude in examining members so as to be in a position intelligently and wisely to exercise a challenge for cause or a peremptory challenge. Accordingly, when there is a fair doubt as to the propriety of any question, it is better to allow it to be answered.

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United States v. Smith, 27 M.J. 25, 1988 CMA LEXIS 2592, 1988 WL 97080 (cma 1988).

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