United States v. Lambert ( 2001 )

UNITED STATES, Appellee
V.
Ricky L. LAMBERT, Lieutenant Junior Grade,
U.S. Navy, Appellant
No. 00-0319
Crim. App. No. 97-2027
United States Court of Appeals for the Armed Forces
Argued November 9, 2000
Decided August 15, 2001
BAKER, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., and SULLIVAN, GIERKE, and EFFRON, JJ., joined.
Counsel
For Appellant: Lieutenant Jonathan R. Goodman, JAGC, USNR
(argued).
For Appellee: Major Edward C. Durant, USMC (argued); Colonel
Marc W. Fisher, Jr., USMC, and Lieutenant Commander Philip L.
Sundel, JAGC, USNR (on brief); Colonel Kevin M. Sandkuhler,
USMC, and Lieutenant Kevin S. Rosenberg, JAGC, USNR.
Military Judge: J. F. Blanche
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
United States v. Lambert, No. 00-0319
Judge BAKER delivered the opinion of the Court.
Appellant was tried by a general court-martial composed of
officer members on August 19, September 13, and October 21,
1996, and February 4, February 24-28, and March 3-4, 1997. He
was found guilty of one specification of indecent assault in
violation of Article 134, Uniform Code of Military Justice, 10
USC § 934. Appellant was sentenced to a dismissal, 30 days’
confinement, and a reprimand. The convening authority approved
the adjudged sentence. The Court of Criminal Appeals affirmed
the findings and sentence in an unpublished opinion. This Court
granted review of the following issue:
WHETHER THE MILITARY JUDGE ERRED IN FAILING TO
ADEQUATELY VOIR DIRE THE MEMBERS, AND FAILING TO
ALLOW CIVILIAN DEFENSE COUNSEL TO VOIR DIRE THE
MEMBERS, AFTER A MEMBER INTRODUCED A BOOK
ENTITLED “GUILTY AS SIN” INTO THE DELIBERATION
ROOM.
We hold that the military judge did not err under these
facts.
FACTS
Immediately following the rendering of the verdict, the
civilian defense counsel made the following comment on the
record:
CC: Yes, sir. I have one matter I think we need to
discuss before we move to other procedural
aspects of the sentencing in this case.
It has come to my attention that throughout the
deliberations, one of the members has had a book
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in the deliberation room with him entitled,
“Guilty as Sin.” I have not read the book and I
don’t know what it is, and I don’t know exactly
who it belongs to, other than that it belongs to
one of the members and has been out in full view
during the deliberations. I know that the cover
of the book has a picture of a judge, a jury, and
a witness; and on the witness stand is written
“Liar.” I believe at this point we should voir
dire the members and find out whose book it is
and what, if any, influence it has. I think - -
and I don’t recall specifically that the military
judge in preliminary instructions said that they
should not have any outside materials in there,
or consult any outside material.
MJ: All right. We’ll discuss that when we come back
in.
(Emphasis added.)
Following a short recess, the military judge conducted the
following inquiry:
MJ: One matter that the parties have asked me to
inquire about is, it was observed in the
deliberation room that somebody brought to the
deliberation room a novel or book called, “Guilty
as Sin.” Who brought that particular book there?
(Captain [P] raised her hand.)
The members then withdrew from the courtroom, with the
exception of Captain P. Captain P was then questioned by the
military judge as follows:
MJ: Captain [P], the parties are not familiar with
this particular book or novel. Is this a fiction
novel?
MBR (CAPT P): Yes, sir.
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MJ: Okay; and did you just bring it with you to read
during down time in administrative breaks when we
were not deliberating?
MBR (CAPT P): Yes, sir. I haven’t brought it for the
last two days.
MJ: Okay; and did you share its contents with any
other member of the panel?
MBR (CAPT P): No, sir.
MJ: Did any other panel member request to read it?
MBR (CAPT P): No, sir.
MJ: Okay. Did it play any part whatsoever in your
deliberations process?
MBR (CAPT P): No, sir.
MJ: And again, you were instructed - - or recall my
instructions that you were not to consult any
written source, whether it be the Manual for
Courts-Martial, the UCMJ, or anything else, in
deciding any of the issues in this case. Have
you explicitly followed my instructions in that
regard?
MBR (CAPT P): Yes, sir.
Following these questions, the defense requested an
opportunity to voir dire the member. The request was denied by
the military judge. No offer of proof was made by the defense
as to any proposed voir dire questions, nor did the defense
raise a motion for a new trial or a mistrial.
The instructions given to the members by the military judge
were standard Benchbook1 instructions occurring both before and
1
Military Judges’ Benchbook (Dept. of the Army Pamphlet 27-9 (April 1,
2001)).
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after general voir dire. Before, the military judge instructed
the members: “You are required to follow my instructions on the
law, and may not consult any other source as to the law
pertaining to this case unless it is admitted into evidence.”
After, the military judge instructed the members that they “may
not consult any source, written or otherwise, as to matters
involved in this case.”
DISCUSSION
The Sixth Amendment provides: “In all criminal
prosecutions, the accused shall enjoy the right to a speedy and
public trial, by an impartial jury of the State and district
wherein the crime shall have been committed. . . .” A military
accused has no Sixth Amendment right to a trial by jury, Ex
Parte Quirin, 317 U.S. 1, 39-40 (1942). However, “Congress has
provided for trial by members at a court-martial.” United
States v. Witham, 47 MJ 297, 301 (1997).
Further, the Sixth Amendment requirement that the jury be
impartial applies to court-martial members and covers not only
the selection of individual jurors, but also their conduct
during the trial proceedings and the subsequent deliberations.
See RCM 912 and 923, Manual for Courts-Martial, United States
(1995 ed.).2 This case involves the latter aspect of
2
All Manual provisions are cited to the version in effect at the time of
appellant’s court-martial. The current version is unchanged unless otherwise
indicated.
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impartiality: specifically, the conduct of an individual member
during deliberations who may have introduced extraneous
information into the deliberative process.
It is long-settled that a panel member cannot be questioned
about his or her verdict but can be questioned about the
introduction of extraneous information into the deliberative
process. Tanner v. United States, 483 U.S. 107 (1987); United
States v. Witherspoon, 16 MJ 252, 253 (CMA 1983); Mil.R.Evid.
606(b), Manual, supra. That, however, is not the question
before us. The appellant here challenges the procedure by which
the members were questioned. Specifically, appellant alleges
that the military judge erred by inadequately questioning the
members and by failing to allow civilian defense counsel to
question the members.
RCM 923 provides that findings may be impeached when
“extraneous prejudicial information was improperly brought to
the attention of a member, outside influence was improperly
brought to bear upon any member, or unlawful command influence
was brought to bear upon any member.” Further, the Discussion
to RCM 923 provides that
when a showing of a ground for impeaching the
verdict has been made, members may be questioned
about such a ground. The military judge
determines, as an interlocutory matter, whether
such an inquiry will be conducted and whether a
finding has been impeached.
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In making the determination whether to investigate and what
kind of investigation to make, as well as whether and to what
extent the conduct was prejudicial, the trial court has wide
discretion. 2 Steven A. Childress & Martha S. Davis, Federal
Standards of Review § 12.06 at 12-36 (3rd ed. 1999), citing
United States v. Boylan, 898 F.2d 230, 258 (1st Cir. 1990), cert.
denied, 498 U.S. 849 (1991); United States v. Ianniello, 866
F.2d 540, 543 (2d Cir. 1989); United States v. Soulard, 730 F.2d
1292 (9th Cir. 1984); United States v. Manning, 509 F.2d 1230 (9th
Cir. 1974), cert. denied, 423 U.S. 824 (1975). Discretionary
decisions will be reviewed for abuse only. Id. at 12-37.
With respect to the adequacy of the questions asked by the
military judge, the court below noted, and we agree, that
[t]he military judge established that the novel
played no role in deliberations, that no member
other than its owner possessed the novel, that no
member inquired of the contents of the novel,
that the novel was present for only 2 of the 10
hours of deliberations, and that the novel was
not referred to at any time during the
deliberations.
Unpub. op. at 6. Based upon his questions, the military judge
was able to determine that neither Captain P nor any other juror
violated the instructions he gave them to not “consult any other
source as to the law pertaining to this case” and not “consult
any source, written or otherwise, as to matters involved in this
case.” The book in question was fiction, did not relate to the
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case, was not consulted by anyone, and was present only for 2 of
the 10 hours of deliberation. Therefore, we hold that the
military judge’s questions were adequate.
Appellant asserts, nevertheless, that the military judge
should have allowed civilian defense counsel to question the
members. We disagree. In the context of questioning members
before they are empaneled, as a precursor to challenges for
cause and peremptory challenges, this Court has held: “Neither
the UCMJ nor the Manual. . . gives the defense the right to
individually question the members.” United States v. Dewrell,
55 MJ 131, 136 (2001), citing United States v. Jefferson, 44 MJ
312, 317-19 (1996). We find this to be just as true with
respect to questioning members concerning their conduct during
the proceedings and deliberations.
As for the standard of review, we hold that in the context
of inquiring into members’ conduct during the proceedings or
deliberations, a military judge’s decision is reviewed for an
abuse of discretion. There was no evidence that any of the
other members even saw the book in question. Additionally,
defense counsel did not articulate any particular way in which
the military judge’s voir dire questions were inadequate, nor
did she make an offer of proof as to other areas that would be
addressed in her proposed questioning. Hence, we hold that the
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military judge did not abuse his discretion in declining to
allow civilian defense counsel to voir dire the members.
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is affirmed.
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