United States v. Private E2 ROBERT A. LYON

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
SIMS, COOK, and GALLAGHER,
Appellate Military Judges
UNITED STATES, Appellee
v.
Private E2 ROBERT A. LYON
United States Army, Appellant
ARMY 20090792
Headquarters, United States Army Alaska
Michael J. Hargis and Donna M. Wright, Military Judges
Lieutenant Colonel John T. Rawcliffe, Acting Staff Judge Advocate
For Appellant: Captain Richard M. Gallagher, JA (argued); Colonel Mark Tellitocci,
JA; Lieutenant Colonel Jonathan F. Potter, JA; Major Laura R. Kesler, JA; Captain
E. Patrick Gilman, JA (on brief).
For Appellee: Captain Edward J. Whitford, JA (argued); Major Amber J. Williams,
JA; Major Sara M. Root, JA; Captain Christopher L. Simons, JA (on brief).
28 February 2012
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MEMORANDUM OPINION ON FURTHER REVIEW
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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.
Per Curiam:
A military judge, sitting as a general court-martial, convicted appellant,
contrary to his pleas, of two specifications of aggravated sexual assault of a child
who had attained the age of twelve years but had not attained the age of sixteen
years, one specification of sodomy, two specifications of willful disobedience of a
superior commissioned officer, one specification of wearing unauthorized insignia,
one specification of wrongful appropriation of a military motor vehicle, and one
specification of failing to go to his place of duty, in violation of Articles 86, 90,
120, 121, 125, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 886, 890,
920, 921, 925, and 934 [hereinafter UCMJ].
The military judge sentenced appellant to a bad-conduct discharge,
confinement for three years, and reduction to Private E-1. The convening authority
reduced the amount of confinement to two years and six months and otherwise
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approved the adjudged sentence. The convening authority also credited appellant
with forty-nine days of confinement credit against the sentence to confinement.
On 8 August 2011, this court issued a memorandum opinion which affirmed
the findings and sentence in this case. On 11 January 2012, our superior court
vacated our decision and returned the record of trial to The Judge Advocate General
of the Army for remand to this court for consideration in light of United States v.
Fosler, 70 M.J. 225 (C.A.A.F. 2011). Consequently, appellant’s case is once again
before this court for review under Article 66, UCMJ, 10 U.S.C. § 866 [hereinafter
UCMJ].
In addition to our review of this case in light of Fosler, we have also reviewed
appellant’s two assignments of error. The first alleges that the military judge
abandoned her impartial role and became an advocate for the prosecution; the second
asserts the approved sentence is disproportionate and inappropriately severe. We
find that these assignments of error lack merit, but agree with the opinion of Judge
Borgerding and our predecessor panel (as set out immediately below) that the first
assignment of error requires some discussion:
BACKGROUND
Appellant and K.A. began a sexual relationship in late December
2008 (after meeting on “MySpace”) that continued until early February
2009. At all times during this relationship, K.A. was fifteen years old
and appellant was nineteen years old. Appellant’s knowledge of K.A.’s
actual age was the primary point of litigation at the trial.
Appellant cites myriad reasons why he believes the military
judge abandoned her impartial role during his trial. In general, he
argues the military judge became an advocate for the prosecution when
she asked numerous questions of the trial witnesses, including
appellant, and when she treated appellant’s testimony with “disbelief”
and “incredulity.” We disagree.
LAW AND DISCUSSION
“A military judge’s impartiality is crucial to the conduct of a
legal and fair court-martial.” United States v. Foster, 64 M.J. 331, 332
(C.A.A.F. 2007) (citing United States v. Quintanilla, 56 M.J. 37, 43
(C.A.A.F. 2001)). The military judge may be an active participant in
the proceedings, but must take care not to become an advocate for
either party. Foster, 64 M.J. at 332-333 (citing United States v. Ramos,
42 M.J. 392, 396 (C.A.A.F. 1995)). Nevertheless, “[t]here is a strong
presumption that a military judge is impartial in the conduct of judicial
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proceedings.” Foster, 64 M.J. at 333 (citing Quintanilla, 56 M.J. at
44).
The test on appeal when a military judge’s impartiality is
questioned is “whether, ‘taken as a whole in the context of this trial,’ a
court-martial’s ‘legality, fairness, and impartiality’ were put into doubt
by the military judge’s questions.” United States v. Burton, 52 M.J.
223, 226 (C.A.A.F. 2000) (quoting Ramos, 42 M.J. at 396). This is an
objective test, judged from the viewpoint of a reasonable person
observing the proceedings. Id.
The military judge took an active role in this court-martial, but
she was within her discretion in doing so. United States v. Hill, 45
M.J. 245, 249 (C.A.A.F. 1996) (“[B]eing extremely active does not
equate to being biased.”). A military judge has “wide latitude” to call
and ask questions of witnesses. United States v. Acosta, 49 M.J. 14, 17
(C.A.A.F. 1998). See also UCMJ art. 46 (affords “equal opportunity”
to trial counsel, defense counsel, and the court-martial to “obtain
witnesses and other evidence in accordance with such regulations as the
President may prescribe”) (emphasis added); Military Rule of Evidence
614 (A military judge may “interrogate witnesses, whether called by the
military judge, the members, or a party.”). Of course, such questioning
should not be conducted in a manner that causes the military judge to
appear partisan in the case. Acosta, 49 M.J. at 17. “It is the tenor of
the military judge’s questions, rather than their sheer number, that is a
significant factor in determining whether the judge abandoned [her]
impartial role.” United States v. Johnson, 36 M.J. 862, 867 (A.C.M.R.
1993) (citing United States v. Shackelford, 2 M.J. 17, 19 (C.M.A.
1976)).
During the trial, the testimony elicited during direct and cross-
examinations was, at times, unclear or incomplete. The military judge
evenly elicited clarifying facts from witnesses called by both the
government and the defense to ensure that she, as the fact finder,
understood the facts of the case. A military judge “can and sometimes
must ask questions in order to clear up uncertainties in the evidence or to
develop the facts further.” Ramos, 42 M.J. at 396 (citations omitted).
The military judge in this case did nothing more than this. Overall, we
find the military judge maintained her “fulcrum position of impartiality”
and her questions of the witnesses, including appellant, “did not suggest
any judicial preference or belief.” Acosta, 49 M.J. at 18.
Moreover, trial defense counsel never objected to any of the
military judge’s questions; he neither requested that the military judge
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recuse herself, nor did he request a mistrial. At no point during the
trial did trial defense counsel make any comment or complaint as to the
military judge’s tone or treatment of the parties. Significantly, after
the military judge finished her questioning of appellant, trial defense
counsel rested his case without an attempt to rehabilitate his client.
Even if the defense failure to object at trial was a strategic attempt to
avoid further perceived ire from the military judge, we note that trial
defense counsel also failed to challenge the impartiality of the military
judge in his post-trial clemency matters. We will infer from this lack
of complaint that the defense believed the military judge remained
impartial at trial. Burton, 52 M.J. at 226 (citing Hill, 45 M.J. at 249).
Appellant also alleges the military judge treated trial defense
counsel with “disdain.” We disagree. The military judge was equally
abrupt with both trial and defense counsel. For example, at one point
in the trial, the military judge sharply told trial counsel “you are not
getting these documents in” as counsel was attempting to offer some
counseling statements during sentencing. Further, several of
appellant’s examples of purported “disdain” toward the defense team
were simply rulings adverse to the defense. In addition, appellant
complains that when trial defense counsel called appellant to the stand,
the military judge stated “so you really don’t want to do that,” as if to
suggest counsel was a “fool.” This is a mischaracterization of the
military judge’s words. When viewed in context, we find that the
military judge was trying to accommodate the defense by allowing a
recess to avoid calling appellant out of order when the first defense
witness was not present in the courtroom. The full exchange is as
follows:
MJ: Fine. Do you have another witness you can call, in
the meantime?
DC: The---Private Lyon, Your Honor.
MJ: So you really don’t want to do that?
(Pause.)
MJ: Well, I mean, it’s up----
DC: We’d rather wait.
MJ: ---it’s up to you. Do you want to take a recess and
wait for this guy? I mean----
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DC: Yes, ma’am.
MJ: All right. Fine. He works on post. Right?
ATC: Yes, Your Honor, he does.
MJ: Okay. Well, let’s try to get him here, as soon as
possible.
ATC: Yes, ma’am.
MJ: All right. Court’s in recess.
Abrupt comments from a military judge do not necessarily impact the
fairness of the trial, especially when they are intended to exercise
control over the proceedings. See United States v. Reynolds, 24 M.J.
261, 264 (C.M.A. 1987). See also Foster, 64 M.J. at 339.
We are satisfied that “taken as a whole in the context of this
trial,” the military judge’s actions did not “raise substantial doubt” as
to the court-martial’s “legality, fairness, and impartiality.” Reynolds,
24 M.J at 265. We are also satisfied that a reasonable person viewing
the trial would not have had any doubts about the fairness of the trial.
Ramos, 42 M.J. at 396. *
Fosler Issue
We have also considered and find, in light of our superior court’s decision in
Fosler, that the Article 134, UCMJ, charge and its specification are not so defective
as to warrant dismissal in this case. Although appellant contested his guilt, he did
not object to the language of The Specification of Charge IV, which specification
did not expressly allege the terminal elements of wrongful wearing of an
unauthorized insignia, decoration, badge, ribbon, device, or lapel button. “[A]
charge and specification challenged for the first time on appeal is liberally construed
*
We also disagree with appellant’s misplaced assertion that the military judge “felt
the need to justify her holding” by announcing an “unreasonable,” “unsupported by
the record,” and “unnecessary” special finding of fact. After announcing her
findings, the military judge quite properly noted that she found the government had
disproved appellant’s affirmative defense beyond a reasonable doubt. See UCMJ art.
120(t)(16). This special finding is especially helpful to this court in light of the
recent decisions by the Court of Appeals for the Armed Forces in United States v.
Prather, 69 M.J. 338 (C.A.A.F. 2011) and United States v. Medina, 69 M.J. 462(C.A.A.F. 2011).
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and will not be held invalid absent a clear showing of substantial prejudice to the
accused-such as a showing that the indictment is so obviously defective that by no
reasonable construction can it be said to charge the offense for which conviction was
had.” United States v. Roberts, 70 M.J. 550, 553 (Army Ct. Crim. App. 2011)
(quoting United States v. Watkins, 21 M.J. 208, 209-210 (C.M.A. 1986)(internal
quotations omitted)); cf. Fosler, 70 M.J. at 230. Facially, the language of The
Specification of Charge IV in this case, combined with the charge, a violation of
Article 134, UCMJ, necessarily implies service-discrediting conduct by alleging
appellant wrongfully wore an unauthorized Ranger tab on his military uniform. This
textual relationship, when liberally construed, establishes that appellant was on
notice of the charge and specification against him and the factual allegations within
the specification, along with the record of trial, sufficiently protect him against
double jeopardy.
CONCLUSION
On consideration of the entire record, we hold the findings of guilty and the
sentence as approved by the convening authority correct in law and fact.
Accordingly, the findings and sentence are AFFIRMED.
FORTHE
FOR THECOURT:
COURT:
JOANNE P. TETREAULT ELDRIDGE
Deputy
JOANNEClerk of
P.Court
TETREAULT
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