United States v. Watson

54 M.J. 779, 2001 CCA LEXIS 39, 2001 WL 204757
CourtUnited States Air Force Court of Criminal Appeals
DecidedFebruary 6, 2001
DocketACM 33124
StatusPublished
Cited by1 cases

This text of 54 M.J. 779 (United States v. Watson) is published on Counsel Stack Legal Research, covering United States Air Force 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. Watson, 54 M.J. 779, 2001 CCA LEXIS 39, 2001 WL 204757 (afcca 2001).

Opinions

OPINION OF THE COURT

LOVE, Judge:

Court members convicted appellant of one specification of violating a lawful order and two specifications of false official statement. Article 92, 107, UCMJ, 10 U.S.C. §§ 892, 907. His approved sentence was a bad-conduct discharge, confinement for 6 months, and reduction to E-l. The appellant claims that the military judge erred by granting the government’s peremptory challenge of a female court member and that his sentence is inappropriately severe. Although we believe the judge should have more clearly addressed the basis for his ruling, his ultimate decision on the peremptory challenge was not clearly erroneous, and the sentence is appropriate.

I. FACTS

The appellant was a first-term airman stationed at Fairchild Air Force Base, Washington. During his enlistment, the appellant encountered financial difficulties that he attributed to his car. After unsuccessfully attempting to reduce this burden by restructuring his car insurance coverage, the [781]*781appellant began to consider more creative ways to solve the problem. This included asking friends how the destruction of a car would impact one’s insurance obligation. Shortly thereafter, a fire destroyed the appellant’s car outside of his dormitory.

The appellant explained to investigators that several hours before the fire, he picked up a hitchhiker who smoked. The appellant surmised that the hitchhiker’s carelessly-handled cigarette touched off the blaze. A short time later, a friend, with whom the appellant discussed his car insurance problems, told investigators about his suspicion that the appellant had started the fire. In a subsequent interview, the appellant reiterated his hitchhiker story and denied ever discussing the destruction of his car.

During the course of the investigation, the appellant was ordered to have no contact with a former girlfriend who was expected to testify against him at the court-martial. He violated this order by talking with her and giving her a notebook containing written communications.

II. PEREMPTORY CHALLENGE

Originally, the court-martial panel was composed of nine officers-six men and three women. Prior to trial, one male court member was excused. After voir dire, trial counsel exercised a peremptory challenge against a female panel member. Defense counsel objected to the challenge based upon “Bat-son” (Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986)), and the judge asked the trial counsel to explain the basis for his challenge. Trial counsel explained that his challenge was based on his observation of the member’s demeanor in response to voir dire questions. He characterized her reactions as non-responsive and exasperated. The record of trial states:

TC: [T]he other members would at least make some affirmative head nod that was very clear or some sound.... [The member] made no indication or acknowledgment one way or the other. It was only after I stared at her for a significant length of time, several seconds, that she would finally nod. I also sensed a look of exasperation on a couple of my questions to her; that caused me some concern.

The defense counsel did not object to trial counsel’s explanation. The military judge accepted trial counsel’s explanation and sustained the challenge without comment.

Analysis

The standard of review is whether the military judge’s factual determination regarding the presence or absence of discrimination underlying a peremptory challenge is clearly erroneous. United States v. Chaney, 53 M.J. 383 (2000); United States v. Greene, 36 M.J. 274, 281 (C.M.A.1993).

Rule for Courts-Martial (R.C.M.) 912(g)(1) simply provides that each party may challenge one member of a panel peremptorily. At one time, a party’s use of a peremptory challenge was virtually unassailable. In recent years, however, civilian and military courts have refined this practice to ensure that it is not used to further discrimination in violation of the Due Process Clause of the Fifth Amendment to the Constitution of the United States. Now, “[n]either the prosecutor nor the defense may engage in purposeful discrimination on the basis of race or gender in the exercise of a peremptory challenge.” Chaney, 53 M.J. at 384 (citing Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994); United States v. Witham, 47 M.J. 297 (1997); United States v. Moore, 28 M.J. 366 (C.M.A.1989)).

In courts-martial, the party exercising a peremptory challenge against a female court member must explain it if the other party objects. United States v. Ruiz, 49 M.J. 340 (1998). The challenging party’s explanation must be neutral regarding gender. The judge must then assess counsel’s explanation and make a factual determination on its neutrality. “[A] peremptory challenge will be sustained unless the proffered reason is ‘unreasonable, implausible, or otherwise makes no sense.’” Chaney, 53 M.J. at 385 (citing United States v. Tulloch, 47 M.J. 283, 297 (1997)).

[782]*782In this case, the defense objected to the government’s challenge to the female member based upon the Batson line of cases. The prosecutor explained that he viewed the challenged member as reluctantly responsive and exasperated at the questioning. The defense did not challenge the prosecutor’s assessment of the member, nor did the defense object when the judge sustained the challenge. Therefore, the appellant has waived his right to raise this issue on appeal. United States v. Gray, 51 M.J. 1 (1999).

The facts of this case, however, compel us to reiterate that judges and counsel must take care in handling peremptory challenges to racial minorities and females when the sole basis of the challenge is the member’s demeanor. In United States v. Jackson, 52 M.J. 756 (A.F.Ct.Crim.App.1999), this court held that when a military judge rules on a peremptory challenge that is opposed under Batson and the neutral basis is purported to be the member’s demeanor, the judge should follow a 3-step process in making findings of fact. First, that the behavior giving rise to the peremptory challenge in fact occurred. Second, that the party wishing to exercise the strike has proffered a supporting reason that (a) is clear, reasonably specific and gender/race neutral; (b) is not unreasonable, implausible, or nonsensical; and (c) demonstrates some connection to the member’s ability to faithfully execute court-martial duties. Third, that the party’s proffer is sincere, based on the military judge’s knowledge of counsel, his observation of counsel’s demeanor at trial, and his evaluation of other available evidence. Jackson, 52 M.J. at 758.

Although the military judge did not make these specific findings on the record (this case was tried prior to Jackson), we can presume that he weighed counsel’s assertions and relied upon his own in-court observations of the panel member in sustaining the challenge in this case. See Gray,

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Bluebook (online)
54 M.J. 779, 2001 CCA LEXIS 39, 2001 WL 204757, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-watson-afcca-2001.