United States v. Smith

24 M.J. 859, 1987 CMR LEXIS 555
U.S. Army Court of Military Review·Decided July 31, 1987·No. CM 448913·Published·Cited by 3 cases

Opinion

OPINION OF THE COURT

CARMICHAEL, Judge:

Appellant was charged with the premeditated murder of his wife in violation of Article 118, Uniform Code of Military Jus[861]*861tice, 10 U.S.C. sec. 918 (1982) [hereinafter UCMJ]. His case was referred for trial by a general court-martial as noncapital. Contrary to his plea, an officer and enlisted court found appellant guilty of premeditated murder. He was sentenced by the court members to confinement for life as required by statute, forfeiture of one-half his pay per month for life, and reduction to the grade of Private E-l. The convening authority approved the sentence.

Two assignments of error have been made by appellant, one of which was heard by this court in oral argument. In the latter assignment, appellant contends that the military judge erred by not allowing him to inform the court members during voir dire that a conviction of premeditated murder mandated a punishment of confinement for life. The remaining assignment of error which was not argued — that the evidence of record was insufficient to sustain appellant’s conviction of premeditated murder — is without merit and does not warrant discussion. We are satisfied that the admissible evidence of record is sufficient to establish appellant’s guilt beyond a reasonable doubt.

Appellant asserts that he should have been allowed to inform the members during voir dire that the minimum period of confinement in the event he was convicted of premeditated murder was confinement for life. At trial, defense counsel mentioned several reasons why he should be allowed to then inform the members. One was “court member” nullification, that is, the members might refuse to find appellant guilty of premeditated murder once they knew that such a finding would by law preclude them from determining what period of confinement should be adjudged. A second reason was to gather knowledge of the members’ sentencing philosophy to assist appellant in intelligently exercising challenges for cause. During oral argument, appellate defense counsel linked this second reason to the limited peremptory challenge right of a military accused rather than continuing to focus solely on the need to develop information to assist in exercising challenges for cause. The essence of appellate defense counsel’s argument was that since an accused normally has only one peremptory challenge in a court-martial, defense counsel must be given the broadest possible latitude by the military judge to assure that no member’s sentencing philosophy is tainted by a preconceived bias. A third reason advanced at trial for being allowed to impart this information to the court members was to impress upon them the gravity of their responsibility. The military judge subsequently ruled that no mention of the minimum sentence could be made to the court members during the prefindings stage of the trial.

At the outset let us make one point clear. Although we recognize the diversity of opinion that exists among federal and state courts on this issue, we do not accept that jury or “court member” nullification is in any way to be encouraged or condoned by jurists in military trial practice.

The examination of court members or “voir dire” may be personally conducted by the military judge or he may permit counsel to question the members. Manual for Courts-Martial, United States, 1984, Rule for Courts-Marital [hereinafter R.C.M.] 912(d). The discussion of subsection (d) of R.C.M. 912 plainly states that “[t]he opportunity for voir dire should be used to obtain information for the intelligent exercise of challenges.” R.C.M. 912(d) discussion. Thus, we believe the standard for measuring the legitimacy of voir dire is a question’s relevance in the context of laying a foundation for possible challenges. See ABA Standards, The Defense Function sec. 4-7.2(c) commentary (2d ed. 1979) (defense lawyer should limit questions to those which are reasonable to assure a fair and impartial jury); R. Holdaway, Voir Dire — A Neglected Tool of Advocacy, 40 Mil.L.Rev. 1, 3 (1968) (counsel is “obliged to frame the question so that it appears relevant to a possible challenge”). In reviewing for prejudice a military judge’s refusal to allow the defense to ask a question during voir dire, an appellate court, in order to achieve a fair result when applying the relevance standard to a partic[862]*862ular set of facts, must adhere to the following principles in completing its analysis.

First, an accused must be allowed that degree of latitude during voir dire which he is able to show is reasonably related to making a wise choice in the exercise of a challenge. Second, military judges are vested with broad discretion in deciding whether particular questions must be answered by members during voir dire, and they should be reversed by appellate courts only on a finding of a clear abuse of discretion resulting in prejudice. United States v. Parker, 19 C.M.R. 400, 406 (C.M.A.1955). See United States v. Smart, 21 M.J. 15, 21 (C.M.A.1985) (Cox, J., concurring) (“I would test court-member qualification on a case-by-case basis and would, almost always, defer to the discretion of the military judge.”); R.C.M. 912(d) discussion (nature and scope of examination within military judge’s discretion). Third, and finally, the rule of liberality with respect to ruling on challenges for cause cannot be given effect unless it also is applied with respect to the questions allowed on voir dire. Cf. United States v. Smart, 21 M.J. at 21 (trial judges must be heedful of a “mandate for liberality in passing on challenges”); United States v. Moyar, 24 M.J. 635, 639 (A.C.M.R.1987) (“threshold for clear abuse of discretion in denying challenge for cause is lower”). However, the rule of liberality is accompanied by a caveat. It is only to be applied where there is a reasonable doubt as to the propriety of a question, not where a question clearly is improper on its face and counsel’s efforts to bring it within the bounds of propriety prove unsuccessful.

In the case at bar, we find nothing in the record which would legitimize trial defense counsel’s desire to inform the court members of the mandatory punishment. Civilian counsel, in requesting permission to so advise the members during voir dire, expressly stated that his purpose was not to remove a member, but simply to place all members on notice of their responsibility. After ascertaining that the trial counsel opposed the defense request and hearing argument by both sides, the military judge ruled that the members were not to be informed of the mandatory life sentence either during voir dire or pre-findings arguments. He did state, however, that he would inform the members that the case had been referred for trial as noncapital. Thereafter, a comprehensive voir dire was conducted with questions by the military judge, the trial counsel, and the defense. Of the nine court members who were present at trial, five were questioned individually by the defense. Three of the five who were questioned individually were challenged for cause by the defense and all challenges were granted. A fourth court member was removed when the defense exercised its peremptory challenge. Since the government did not initiate a challenge, the court-martial was left with five members — the minimum required for jurisdiction.

Voir dire is part of the procedure whereby counsel determines whether to challenge a member, and the inquiries that counsel propose to make during voir dire must be relevant to the exercise of such challenges.

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United States v. Smith, 24 M.J. 859, 1987 CMR LEXIS 555 (usarmymilrev 1987).

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