United States v. Velez

48 M.J. 220, 1998 CAAF LEXIS 52
CourtCourt of Appeals for the Armed Forces
DecidedJuly 13, 1998
DocketNo. 97-0425; Crim.App. No. 94-0959
StatusPublished
Cited by42 cases

This text of 48 M.J. 220 (United States v. Velez) is published on Counsel Stack Legal Research, covering Court of Appeals for the Armed Forces primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Velez, 48 M.J. 220, 1998 CAAF LEXIS 52 (Ark. 1998).

Opinion

Opinion of the Court

SULLIVAN, Judge:

During October and November 1993, appellant was tried by a general court-martial composed of officer and enlisted members at Marine Corps Air Station, Iwakuni, Japan. He was found guilty of 2 specifications of rape and 2 specifications of assault, in violation of Articles 120 and 128, Uniform Code of Military Justice, 10 USC §§ 920 and 928. Appellant was sentenced to a bad-conduct discharge, confinement for 4 years, and reduction to E-l. The convening authority approved the sentence on April 25, 1994. The Court of Criminal Appeals, on July 31, 1996, [222]*222set aside one finding of guilty of assault but approved the remaining findings of guilty and sentence in an unpublished opinion.

On July 25, 1997, this Court granted review on the following issues of law:

I.
WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN DENYING THE CHALLENGE OF MEMBERS, THUS DENYING APPELLANT A FAIR AND IMPARTIAL TRIAL.
II.
WHETHER THE MILITARY JUDGE ERRED IN SUPPRESSING CONSTITUTIONALLY REQUIRED EVIDENCE ESSENTIAL TO THE PRESENTATION OF APPELLANT’S DEFENSE.

We hold that the military judge did not abuse his discretion in denying appellant’s challenge for cause against Gunnery Sergeant (GySgt) Crenshaw and in not sua sponte removing First Lieutenant (IstLt) Beggs and GySgt Winn from appellant’s court-martial panel. See United States v. Dinatale, 44 MJ 325, 328 (1996)(record as a whole provides ample basis for deferring to trial judge’s rulings on actual and implied bias). We also hold that the military judge committed no error in refusing to admit defense-proffered evidence concerning the alleged victim’s past sexual conduct and prior complaint of rape. See generally United States v. Carter, 47 MJ 395, 396 (1998).

The Court of Criminal Appeals addressed appellant’s claims against the court members who sat in his ease as follows:

The appellant argues that the military judge erred in denying the defense challenge of Gunnery Sergeant [GySgt] Cren-shaw for cause and in not sua sponte dismissing GySgt W[i]nn and First Lieutenant [IstLt] Beggs during the course of the trial, notwithstanding the fact that the defense never challenged the latter two members.
The fact that GySgt W[i]nn was casually acquainted with Mrs. W was not disqualifying where the member unequivocally stated that he would not be influenced in any manner as a result of that acquaintance. Record at 288. Similarly, IstLt Beggs disclosed that a Major to be called as a government rebuttal witness was his reviewing officer, but that their professional relationship would not affect his deliberations in any way. Record at 558. See Rules for Courts-Martial [ROM] 912(f), Manual for Courts-Martial, United States (1995 ed.)[MCM]. In any event, the appellant’s failure to challenge GySgt W[i]nn or IstLt Beggs at trial waived the issue of challenge as to these two members. ROM 912(f)(4).
With regard to GySgt Crenshaw, the defense challenged the member for cause on the basis that he had two friends who had been victims of sexual assault, and because he had a 15-year-old daughter. The defense argued that he could not, therefore, view the evidence impartially. However, GySgt Crenshaw stated without any prompting: “[I]n my own honest opinion, Sergeant Velez is innocent until proven guilty. This is his case, it is not anyone else’s.” Record at 136. Further, he stated that he would consider all the evidence in the case and follow the military judge’s instructions before making any determination as to guilt and sentence in the event of conviction. Record at 137-8. We conclude that the military judge did not abuse his discretion in denying the challenge for cause. United States v. White, 36 MJ 284, 287 (CMA 1993), cert. denied, 510 U.S. 1090, 114 S.Ct. 918, 127 L.Ed.2d 212 (1994). The first assignment of error is without merit.

Unpub. op. at 5-6.

The appellate court below also delineated appellant’s exclusion-of-defense-evidence complaint as follows:

In a pretrial motion and offer of proof, the defense sought to introduce at trial evidence of specific instances of Mrs. H’s sexual behavior, under Military Rules of Evidence [Mil.R.Evid.] 404(b)(as proof of motive) and 412(b)(1) (as constitutionally required), Manual for Courts-Martial, United States, 1984 (1994 ed.). Appellate Exhibits V and VI. Record at 7 et seq. [223]*223More specifically, the defense sought to introduce evidence that Mrs. H was seen in a bar with her arms around a man not her husband; that she had made sexual advances toward other men; that she had an extramarital relationship with yet another man; and that she had in the past made a statement that she had been raped. The defense argued that Mrs. H had a motive to fabricate, based on revenge against the appellant’s wife who had struck her in an altercation, and that Mrs. H’s sexual behavior was relevant to her credibility.
We note that the defense theory of the case as to the charge of rape of Mrs. H was that Mrs. H’s report was a total fabrication, and that she had not even been in the appellant’s room on the night of the alleged rape. Following the evidentiary hearing and arguments, the military judge denied the defense motion, Record at 48 et seq., reasoning that there was no nexus between Mrs. H’s sexual behavior and a possible motive to fabricate because of an altercation with the appellant’s wife. Further, the military judge found that evidence of Mrs. H’s sexual conduct lacked relevancy and materiality as to the charged offense and faded to meet the standard that would constitutionally mandate admission of the evidence. The military judge entered his extensive essential findings and conclusions of law at Appellate Exhibit X.

Unpub. op. at 6-7 (footnote omitted).

I

Appellant’s first assigned issue centers on his contention that the military judge should have excused three members from the court-martial panel which tried his case. He asserts that one member, GySgt Crenshaw, was personally biased against him because he admitted on voir dire that two close friends had been victims of rape during the past year and that his impartiality might be affected by the fact that he had a 15-year-old daughter. He also argues that a second member, GySgt Winn, should have been excused because he admitted that he knew one of the victims and was more apt to believe her. Finally, he claims that a third member, IstLt Beggs, should have been removed because he admitted having a professional duty relationship with a rebuttal witness for the prosecution.

Article 41, UCMJ, 10 USC § 841, provides a military accused the right to challenge for cause detailed members of a court-martial. RCM 912(f)(l)(N), Manual for Courts-Martial, United States, 1984, more particularly states:

(f) Challenges and removal for cause.
(1) Grounds. A member shall be excused for cause whenever it appears that the member:
(N) Should not sit as a member in the interest of having the court-martial free from substantial doubt as to legality, fairness, and impartiality.
Discussion

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Cite This Page — Counsel Stack

Bluebook (online)
48 M.J. 220, 1998 CAAF LEXIS 52, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-velez-armfor-1998.