United States v. Yarborough

14 M.J. 968, 1982 CMR LEXIS 775
CourtU.S. Army Court of Military Review
DecidedNovember 30, 1982
DocketNo. CM 442223
StatusPublished
Cited by4 cases

This text of 14 M.J. 968 (United States v. Yarborough) is published on Counsel Stack Legal Research, covering U.S. Army Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Yarborough, 14 M.J. 968, 1982 CMR LEXIS 775 (usarmymilrev 1982).

Opinion

OPINION OF THE COURT

KUCERA, Judge:

The appellant was convicted by a general court-martial of unlawful entry and indecent assault, in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934 (1976). The convening authority approved the adjudged sentence of a bad-conduct discharge, confinement at hard labor for two years, total forfeitures, and reduction to the grade of Private E-l.

I

The first assignment of error mandates a lengthy exposition of facts leading up to the appellant’s present contention that the military judge abused his discretion by denying the defense an opportunity to explore in its voir dire examination, the biases of the court members.

At trial, both sides conducted the voir dire examination. The trial counsel first asked the court members collectively if they realized that they were to base their decision only on the evidence and not on any preconceived sympathies or biases. All members replied affirmatively. Counsel then asked four individual members different questions and obtained their individual responses concerning whether a soldier’s room in the barracks is entitled to the same protection as any other dwelling, their willingness to convict based on testimony of only one but truthful eyewitness, and reasonable doubt and its application to each element of the offense as well as its nonapplicability to “unimportant facts.”

The trial defense counsel asked some thirty questions of the members about: (1) their personal knowledge of her (defense counsel), the prospective witnesses and officers who preferred and forwarded the charges against the appellant; (2) the members’ prior legal training and experience as law enforcement officials; (3) their prior service on courts-martial; (4) whether any of their friends or family were a victim of a crime against their person; (5) any problems which they may experience by sitting on the case; (6) presumption of innocence; (7) burden of proof; (8) meaning of reasonable doubt; (9) willingness to follow military judge’s instructions; (10) right of the appellant to remain silent and not to put on a defense; (11) consideration of each witness’ sincerity, conduct, intelligence, and ability to observe and accurately remember; and (12) assessment of the victim’s credibili[970]*970ty in the light of certain factors of her anticipated testimony.

In an effort to guide the defense voir dire along its due course, the military judge interposed himself six different times. On one such occasion he warned the trial defense counsel that he was not going to let her incorporate and repeat all of his instructions. Counsel then focused her questioning on the credibility of Private Matthes’ (victim) testimony. When in her third such question she asked:

Do you each agree to consider the anticipated testimony of Private Matthes that she had been to a party that evening [and] she had consumed some quantity of alcoholic beverages. . ..

The military judge interrupted and advised the court members that:

You’re going to have to consider all of evidence that you hear throughout the trial and based upon all the evidence that’s presented and the instructions I give you, you’re going to have to go into the deliberation room and have a full and free discussion, and each of you resolve individually in your mind the issue as to guilt or innocence. Now is there any member who will not be able to consider all of the evidence presented whether it’s by the government or the defense?

There being no response from any of the members, the military judge asked the trial defense counsel to “[p]lease move on to some other area.” When she continued to persist that her questions were appropriate to be asked, the military judge asked that she submit any further voir dire questions in writing. He would not allow her to personally propound any more questions directly to the members. He then sent the members into the deliberation room, and informed the trial defense counsel that:

Voir dire has its purpose, opening statements have their purpose and the presentation of evidence has its purpose and closing arguments and instructions — each have their purpose. Now, you’ve gone far beyond what I consider to be proper realms of voir dire. I’ll let you present any other questions that you want to me in writing and I’ll decide and then I’ll ask them. But you’re done as far as oral questions are concerned.

The trial defense counsel responded by giving to the military judge 32 written questions for him to ask. The military judge examined all such questions but agreed to propound only a part of them to the court members.

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Related

United States v. Adams
36 M.J. 1201 (U.S. Navy-Marine Corps Court of Military Review, 1993)
United States v. Inman
20 M.J. 773 (U.S. Army Court of Military Review, 1985)
United States v. Yarborough
18 M.J. 452 (United States Court of Military Appeals, 1984)
United States v. Klingensmith
17 M.J. 814 (U.S. Army Court of Military Review, 1984)

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Bluebook (online)
14 M.J. 968, 1982 CMR LEXIS 775, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-yarborough-usarmymilrev-1982.