Document Info

DocketNumber: 08-0375-AF

Judges: Per Curiam

Filed Date: 11/13/2008

Status: Precedential

Modified Date: 11/9/2024

  •                        UNITED STATES, Appellee
    v.
    Michael V. MARTINEZ, Airman First Class
    U.S. Air Force, Appellant
    No. 08-0375
    Crim. App. No. S31080
    United States Court of Appeals for the Armed Forces
    Decided November 13, 2008
    PER CURIAM
    Counsel
    For Appellant: Lieutenant Colonel Mark R. Strickland and
    Captain Griffin S. Dunham (on brief).
    For Appellee: Colonel Gerald R. Bruce, Major Donna S. Rueppell,
    and Major Jeremy S. Weber (on brief).
    Military Judge:   James B. Roan
    THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
    United States v. Martinez, No. 08-0375/AF
    PER CURIAM:
    In accordance with his pleas, Appellant was convicted at a
    court-martial of one specification of drug use in violation of
    Article 112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
    § 912a (2000).   The adjudged and approved sentence included a
    bad-conduct discharge, confinement for ninety days, partial
    forfeitures, and reduction to E-1.     Following a decision by the
    United States Air Force Court of Criminal Appeals affirming the
    findings and the sentence, Appellant petitioned for review at
    this Court.   United States v. Martinez, No. ACM S31080, 
    2008 CCA LEXIS 9
    , 
    2008 WL 179274
     (A.F. Ct. Crim. App. Jan. 2, 2008) (per
    curiam).   On consideration of the petition for grant of review
    of the decision of the Court of Criminal Appeals, we grant the
    petition on the following issue:
    WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE
    DENIED APPELLANT’S CHALLENGE FOR CAUSE AGAINST A MEMBER WHO
    STATED THAT A SENTENCE TO NO PUNISHMENT WAS NOT AN OPTION AND
    THAT “THERE’S NO ROOM IN MY AIR FORCE FOR PEOPLE [WHO] ABUSE
    DRUGS.”
    Upon consideration of the granted issue, the decision of the
    Court of Criminal Appeals is reversed.
    The record reflects that after Appellant’s guilty plea to a
    single specification of drug use was accepted, the following
    responses were elicited from the president of the court-martial
    during voir dire for sentencing:
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    United States v. Martinez, No. 08-0375/AF
    DC: Does anyone on the panel hold a moral or maybe a
    philosophical or perhaps a religious belief against
    drug use so much that they would be biased against
    [Appellant] in coming to a sentence today?
    [The members indicated a negative response.]
    DC:   That’s a negative response from all members.
    DC: I guess –- Colonel Donovan –- I sensed a little
    bit of hesitation. I don’t want my question to be
    confusing, so I just want to clarify with you that
    you wouldn’t have any moral or philosophical or
    religious conviction.
    MBR (Lieutenant Colonel Donovan): No -- just as an
    ex-squadron commander -– former squadron commander -–
    I mean -– my guideline has always been that there’s
    no room in my Air Force for people that abuse drugs -
    – you know -– violate the articles and laws that we
    have set forth.
    Later on during general voir dire, defense counsel explained
    that the sentencing worksheet would include “no punishment” as
    an option in Appellant’s case.     Defense counsel asked Lieutenant
    Colonel (Lt Col) Donovan, “I’m just kind of throwing this out
    there -– just to see what your thoughts on it are -– but is no
    punishment an option for you to consider in a case such as
    this?”    Lt Col Donovan responded, “[n]o,” and explained,
    “[Appellant] used the drug.     He admitted he used it.   He
    obviously knew it was wrong and came forward with his guilt, and
    there has to be punishment for it.”     Defense counsel countered,
    “So, [no punishment] couldn’t be a consideration?”      Lt Col
    Donovan responded, “No.”     The military judge then explained:
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    United States v. Martinez, No. 08-0375/AF
    You don’t have to come to a decision in your mind -–
    after you’ve deliberated -– to no punishment based on
    this question. Legally, the only thing you have to
    do is be able to consider it as an option -– to weigh
    it against the evidence and the law and instructions
    as I give them to you -– to be willing to say that -–
    I will consider whether no punishment is appropriate
    in this case. Whether you ultimately come out with
    that decision is completely up to you -– it’s just -–
    I need to know whether you are so predisposed that -–
    I will consider nothing in the possibility of no
    punishment -– that you can’t sit impartially in this
    trial. You may ultimately decide -– in your own mind
    -– that no punishment is not appropriate -– if that’s
    what you think is the right answer -– but I just need
    to know whether you will or will not consider the
    evidence -– and consider the possibility of no
    punishment.
    . . . .
    It’s an open-mind issue.
    When asked whether he could maintain an open mind on considering
    no punishment as an option, Lt Col Donovan agreed, “Yes, I can
    do that.”
    During individual voir dire of Lt Col Donovan, the
    following exchange took place between the military judge and Lt
    Col Donovan:
    MJ: I believe you said -– in response to a question
    that was asked of you by counsel -– you said
    something to the effect of -– no room for people in
    the Air Force -– or -– there was no room in the Air
    Force for people who may have used drugs?
    MBR: In my Air Force -– is what I believed I
    answered.
    MJ: In your Air Force -– okay. Again, as I’ve
    mentioned before -– a couple of times now -– one area
    that I can’t allow a member to sit on is if they have
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    United States v. Martinez, No. 08-0375/AF
    that inelastic predisposition, so if you’ve already
    made up your mind that -– because [Appellant] was
    convicted of using meth, which, in fact, has
    happened, that he automatically must be discharged
    from the Air Force because you don’t have room in the
    Air Force for that type of conduct, I need to know
    about it -–
    MBR:   All right, sir.
    MJ: -- so, is that the case? Have you already made
    up your mind that he must automatically be
    discharged?
    MBR: No, I think -– what I -– what I was probably
    more alluding to in my response on that was -– more
    of -– okay -– he’s guilty -– I mean -– he’s done it -
    – all right? So, there has to be a punishment to fit
    the crime -– whatever that case may be. Now, he’s
    guilty to his use -– hear all the evidence -– and
    we’ll weigh it from no punishment to the max. I can
    do that, but something has to be done. We’re going
    through the process, so that’s the part that has to
    be done, and -– I guess -– that was more where my
    response was being directed.
    The defense challenge of this member for cause was denied.
    In denying the challenge, the military judge did not
    indicate whether or not he had considered the issue of implied
    bias.    Consistent with our cases dealing with implied bias and
    the liberal grant mandate, we hold that the military judge
    erred.    See United States v. Clay, 
    64 M.J. 274
     (C.A.A.F. 2007);
    United States v. Leonard, 
    63 M.J. 398
     (C.A.A.F. 2006); United
    States v. Strand, 
    59 M.J. 455
     (C.A.A.F. 2004); United States v.
    Downing, 
    56 M.J. 419
     (C.A.A.F. 2002); United States v. Rome, 
    47 M.J. 467
     (C.A.A.F. 1998).     “[I]n close cases military judges are
    enjoined to liberally grant challenges for cause.”    Clay, 64
    5
    United States v. Martinez, No. 08-0375/AF
    M.J. at 277.   The issue is whether Lt Col Donovan possessed an
    inelastic attitude with respect to punishment, including with
    respect to whether Appellant should be punitively discharged
    from the service.
    An accused is entitled to a fair and impartial panel of
    members.   United States v. James, 
    61 M.J. 132
    , 138 (C.A.A.F.
    2004) (quoting Strand, 
    59 M.J. at 458
    ).    Consistent with that
    enjoinder, the accused is entitled to have his case heard by
    members who are not predisposed or committed to a particular
    punishment, or who do not possess an inelastic attitude toward
    the punitive outcome.   
    Id.
     (citing Rule for Courts-Martial
    (R.C.M.) 912 Discussion).
    On the one hand, Lt Col Donovan expressed what appeared to
    be an inelastic attitude with respect to Appellant’s punitive
    discharge from the service when he said, “there’s no room in my
    Air Force for people that abuse drugs -– you know -– violate the
    articles and laws that we have set forth.”   Upon further
    questioning by the military judge, Lt Col Donovan also said,
    “So, there has to be a punishment to fit the crime.”
    On the other hand, the military judge questioned Lt Col
    Donovan during individual voir dire and probed his views.
    “Again, as I’ve mentioned before -– a couple of times now -– one
    area that I can’t allow a member to sit on is if they have that
    inelastic predisposition . . . .”    In response, Lt Col Donovan
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    United States v. Martinez, No. 08-0375/AF
    stated:   “All right, sir.”   Moreover, when the military judge
    asked, “Have you already made up your mind that he must
    automatically be discharged?”, Lt Col Donovan responded, “No.”
    Lt Col Donovan also stated that he could keep an open mind on
    whether to discharge Appellant.
    However, the problem with this second line of argument is
    that the rehabilitation of Lt Col Donovan fell short.   First, Lt
    Col Donovan’s responses to the military judge were qualified, if
    not hesitant.   More importantly, while he may have disavowed an
    inelastic attitude toward a punitive discharge, he did not
    disavow an inelastic attitude toward punishment.   To the
    contrary, given repeated opportunities to do so, Lt Col Donovan
    said, “So, there has to be a punishment to fit the crime -–
    whatever that case may be. . . . [W]e’ll weigh it from no
    punishment to the max.   I can do that, but something has to be
    done.”
    Lt Col Donovan’s views went directly to the issue of what
    sentence, if any, should be imposed on Appellant, in a case
    involving a single specification of use of methamphetamines.
    His response was qualified and inelastic as to the necessity of
    some punishment.   These responses, combined with the fact that
    Lt Col Donovan was the senior member of the panel, in our view,
    would lead an objective observer to question whether Appellant
    received a fair sentencing hearing.   In turn, we are left with
    7
    United States v. Martinez, No. 08-0375/AF
    substantial doubt as to the fairness or impartiality of the
    member in question and conclude that the military judge abused
    his discretion in not granting the challenge for cause.∗
    The decision of the United States Air Force Court of
    Criminal Appeals is affirmed as to the findings but is reversed
    as to the sentence.   The sentence is set aside and the record of
    trial is returned to the Judge Advocate General of the Air
    Force.   A rehearing on sentence may be ordered.
    *
    As a result, we need not and do not address the question of
    actual bias.
    8