United States v. Quintanilla

UNITED STATES, Appellee/Cross-Appellant
v.
Jessie A. QUINTANILLA, Sergeant
U.S. Marine Corps, Appellant/Cross-Appellee
Nos. 05-0274 and 05-5001
Crim. App. No. 9801632
United States Court of Appeals for the Armed Forces
Argued December 6, 2005
Decided March 28, 2006
EFFRON, J., delivered the opinion of the Court, in which GIERKE,
C.J., and CRAWFORD, BAKER, and ERDMANN, JJ., joined.
Counsel
For Appellant/Cross-Appellee: Lieutenant Commander Jason S.
Grover, JAGC, USN (argued); Lieutenant Colonel Joseph R. Perlak,
USMC, Lieutenant Elysia G. Ng, JAGC, USN, and Lieutenant Stephen
C. Reyes, JAGC, USNR (on brief); Captain Pamela A. Holden, JAGC,
USN.
For Appellee/Cross-Appellant: Major Wilbur Lee, USMC (argued);
Commander Charles N. Purnell II, JAGC, USN, and Captain Glen R.
Hines, USMC (on brief); Colonel William K. Lietzau, USMC.
Military Judge: J. F. Blanche
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Quintanilla, Nos. 05-0274/MC and 05-5001/MC
Judge EFFRON delivered the opinion of the Court.
At a general court-martial composed of officer and enlisted
members, Appellant/Cross-Appellee (Appellant) was convicted,
contrary to his pleas, of premeditated murder, in violation of
Article 118, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§ 918 (2000). In addition, the court-martial convicted
Appellant, contrary to his pleas, of attempted unpremeditated
murder (two specifications), violation of an order, aggravated
assault (two specifications), unlawfully carrying a concealed
weapon, communicating a threat, and obstruction of justice, in
violation of Articles 80, 92, 128, and 134, UCMJ, 10 U.S.C. §§
880, 892, 928, 934 (2000). Appellant was sentenced to death,
forfeiture of all pay and allowances, and reduction to the
lowest enlisted grade. The convening authority approved the
adjudged sentence. On appeal, the United States Navy-Marine
Corps Court of Criminal Appeals set aside the findings and
sentence and authorized a rehearing. United States v.
Quintanilla, 60 M.J. 852, 863, 868 (N-M. Ct. Crim. App. 2005).
The Judge Advocate General of the Navy certified the
following issues under Article 67(a)(2), UCMJ, 10 U.S.C. §
867(a)(2) (2000):
I. WHETHER THE NAVY-MARINE CORPS COURT OF
CRIMINAL APPEALS ERRONEOUSLY APPLIED A
HEIGHTENED STANDARD OF REVIEW IN
DETERMINING THAT THE MILITARY JUDGE
ABUSED HIS DISCRETION BY GRANTING THE
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United States v. Quintanilla, Nos. 05-0274/MC and 05-5001/MC
GOVERNMENT’S CHALLENGE FOR CAUSE
AGAINST MASTER SERGEANT BUCKHAM, A
VENIREMAN IN THE CASE.
II. WHETHER THE NAVY-MARINE CORPS COURT OF
CRIMINAL APPEALS IMPROPERLY CONSIDERED
A POST-TRIAL AFFIDAVIT FROM MASTER
SERGEANT BUCKHAM, A VENIREMAN IN THIS
CASE, IN DETERMINING THAT THE MILITARY
JUDGE ABUSED HIS DISCRETION BY GRANTING
THE GOVERNMENT’S CHALLENGE FOR CAUSE.
III. WHETHER THE NAVY-MARINE CORPS COURT OF
CRIMINAL APPEALS ERRED WHEN IT SET
ASIDE BOTH THE FINDINGS AND SENTENCE,
RATHER THAN THE SENTENCE ALONE, AS A
REMEDY FOR THE MILITARY JUDGE’S EXCUSAL
OF A VENIREMAN.
On Appellant’s petition, we granted review of the following
issues:
I. THE LOWER COURT FOUND ERROR IN THE
MILITARY JUDGE’S FAILURE TO SEQUESTER
THREE GOVERNMENT WITNESSES BUT HELD
THAT THE ERROR DID NOT PREJUDICE THE
APPELLANT. DID THE LOWER COURT
PROPERLY APPLY THE TEST FOR PREJUDICE
UNDER UNITED STATES v. LANGSTON, 53
M.J. 335 (C.A.A.F. 2000) AND UNITED
STATES v. SPANN, 51 M.J. 89 (C.A.A.F.
1999)?
II. THE LOWER COURT FOUND THAT THE MILITARY
JUDGE USED AN INCORRECT LEGAL TEST IN
GRANTING A GOVERNMENT CHALLENGE FOR
CAUSE BECAUSE A MEMBER MIGHT HAVE
“DIFFICULTY” IN VOTING FOR A DEATH
SENTENCE. DID THE LOWER COURT ERR IN
NONETHELESS CONCLUDING THAT THE
MILITARY JUDGE DID NOT ABUSE HIS
DISCRETION IN GRANTING THE CHALLENGE
FOR CAUSE?
III. THE LOWER COURT FOUND MULTIPLE
OCCASIONS OF PROSECUTORIAL MISCONDUCT
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United States v. Quintanilla, Nos. 05-0274/MC and 05-5001/MC
IN THE COURT-MARTIAL. DID THE LOWER
COURT ERR IN DETERMINING THAT THE
APPELLANT WAS NOT PREJUDICED BY THE
PROSECUTORIAL MISCONDUCT?
For the reasons set forth below, we conclude that the
military judge erred in granting a prosecution challenge to a
panel member. We also conclude that the lower court erred in
setting aside the findings as a remedy for the military judge’s
error. We affirm that portion of the lower court’s decision
ordering further proceedings on the sentence.
I. BACKGROUND
Appellant entered the office of his squadron executive
officer (XO), Lieutenant Colonel (LtCol) Daniel Kidd, at Camp
Pendleton, California, and shot him. LtCol Kidd staggered into
an adjacent room where the squadron commanding officer (CO),
LtCol Thomas Heffner, was preparing for an inspection.
Appellant entered the room, shot LtCol Heffner in the chest, and
shot LtCol Kidd again. LtCol Heffner was able to escape. LtCol
Kidd died shortly thereafter.
As Appellant pursued LtCol Heffner, he pointed his pistol
at two Marines but did not discharge the weapon. Appellant shot
at and missed a third Marine, who disarmed Appellant. Appellant
fled, encountered a number of Marines who were unaware of the
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United States v. Quintanilla, Nos. 05-0274/MC and 05-5001/MC
shootings, and said: “Gunnery Sergeant, apprehend me, I just
shot the CO and XO.” See Quintanilla, 60 M.J. at 854-55.
II. THE GOVERNMENT’S CHALLENGES FOR CAUSE
(CERTIFIED ISSUES I, II, AND III, AND GRANTED ISSUE II)
A. BACKGROUND
At the ensuing court-martial, the military judge granted
the prosecution’s challenge for cause against two members of the
panel, LtCol D’Ambra and Master Sergeant (MSgt) Buckham III.
The Court of Criminal Appeals ruled that the military judge
erred in granting the challenge as to MSgt Buckham but did not
err in granting the challenge as to LtCol D’Ambra. Id. at 860-
61. In Certified Issues I-III, the Government seeks to reverse
the court below with respect to MSgt Buckham, thereby sustaining
the ruling by the military judge. In Granted Issue II,
Appellant seeks to reverse the court below with respect to LtCol
D’Ambra, thereby overturning the military judge.
During voir dire, the military judge permitted counsel to
examine the panel members for the purpose of identifying
possible grounds for challenge. See Rule for Courts-Martial
(R.C.M.) 912(d). We shall consider below the statements by
LtCol D’Ambra and MSgt Buckham, the views of the parties at
trial, and the rulings of the military judge.
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1. Voir Dire of MSgt Buckham
In response to questions from trial counsel about his
religious beliefs, MSgt Buckham stated that he was a deacon in a
Baptist church that was part of the Baptist General Conference.
Trial counsel inquired as to the views of the Baptist General
Conference on the death penalty:
Q: Now, do you know what the church’s stand
or what their plank is on the death penalty?
A: Our -- to the best of my knowledge, our
church has no official position.
Trial counsel also asked whether the death penalty had been the
topic of conversation at the church:
Q: Have you ever discussed that in church
or discussed that in some Bible studies,
stuff like that, conversations like that,
the death penalty?
A: Not that I recall, sir.
After receiving these negative replies, trial counsel sought to
explore MSgt Buckham’s views on the Bible:
Q: Okay. Describe for me generally the
death penalty in the biblical context.
A: Well, sir, I certainly haven’t formed a
conviction of what the Bible says about the
death penalty.
Following an extended discussion of a biblical passage, trial
counsel asked:
Q: Do you think from that parable of the
Bible and that story that Christ has
forbidden you, if you believe in
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Christianity from voting for the death
penalty?
A: I don’t believe that is particularly
something that would go into building a
conviction about the death penalty.
Q: Is there --
A: Not -- I do not -- I don’t believe that
that prohibits me from thinking that the
death penalty is a valid action.
Q: Okay. I got the impression there was
something else that you were going [to] say.
Is there maybe something else there that
would prohibit you from considering that?
A: No, sir.
Q: Nothing else in the New Testament?
Anything else in the Bible that you think
makes you kind of sit back and say, you
know, I’m not sure we should be doing this?
A: No, sir. I believe the death penalty is
a not often used means of -- of -- of a
penalty, that if -- if warranted, is just.
And I also think it is a -- is a factor in
society that would prohibit others from
doing like crimes.
Trial counsel then sought to explore whether MSgt Buckham might
pray before making a major decision, such as whether to impose
the death penalty:
Q: Let me ask you this: As a Christian, do
you pray about important decisions?
A: Yes, sir.
Q: Significant decisions, you seek
direction from God?
A: Yes, sir.
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United States v. Quintanilla, Nos. 05-0274/MC and 05-5001/MC
ADC: Sir, objection. At this point, I
think we’re getting way too personal with
the [Master Sergeant]. These are personal
convictions that don’t need to be aired in
this courtroom.
MJ: Sustained. Let’s move on.
ATC: Generally, sir -- I’ll back off from
that. But the one question I wanted to get
to, sir, was whether in this case the Master
Sergeant felt that when he voted for death
or not to vote for death, whether he would
consider that a decision he would need to
pray about.
MJ: All right. You can ask that question.
Q: Does that question kind of make sense to
you, Master Sergeant?
A: Sir, would you ask the question again,
please.
Q: When you go back in that deliberation
room and you’re all talking about -- if we
ever get to that point, okay, and you are
deciding whether to vote for the death
penalty for Sergeant Quintanilla or vote
against the death penalty, is that a
decision that you feel that is one of those
important decisions that we just talked
about that you would actually pray about and
seek direction from God about?
A: Sir, my -- my aim is to live my life in
prayer through the meditation of God’s word
and the application of that word on a daily,
even hourly basis. So in answer to that
question, yes, I would make it a matter of
prayer.
Q: I’m certainly not trying to give you the
impression that you shouldn’t do that at
all.
A: Understood, sir.
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Defense counsel then asked MSgt Buckham to elaborate on the
responses he had given to trial counsel’s questions about
religion:
ADC: [Master Sergeant], I take it from your
discussion [with trial counsel] that you
possess a great personal faith and that
faith is a very high priority in your life;
correct?
A: That’s correct, sir.
Q: And when asked about would you weigh
this -- would you have to pray about this
decision, I take it from the way you live
your life you pray about all weighty
decisions and that’s a part of who you are.
Fair enough?
A: Yes, sir.
. . . .
Q: And if [the military judge] tells you
how this case shapes up, if the death
penalty is a valid and authorized penalty,
then you have to be able to consider that
and be able to possibly do that. Are you
able to do that, [Master Sergeant]?
A: To consider what the judge --
Q: Right. Exactly. If [the military
judge] tells you that the death penalty may
be authorized in this case, and this [is] an
authorized punishment, you have to be able
to consider using the death penalty or
ordering the death penalty. Can you do
that?
A: Yes, I can, sir.
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2. Voir Dire of LtCol D’Ambra
Trial counsel asked LtCol D’Ambra about his willingness to
consider the death penalty: “If the government meets all of its
burdens in this case . . . can you seriously consider the death
penalty in this case?” LtCol D’Ambra responded: “I can
consider it.” Trial counsel noted that on his pretrial
questionnaire, LtCol D’Ambra stated that he had “mixed” feelings
about the death penalty, and asked: “Do you have any leanings
one way or another that you feel will give you trouble
considering the death penalty?” In response, LtCol D’Ambra said
that he was not sure what trial counsel was “driving at.” He
added:
Basically it would be religious -- for
religious reasons, whether I am -- I just
can’t make that decision at this time over
something I was afraid of whether I could
actually vote for a death penalty. I mean,
I certainly feel that it is justified but
it’s the other side that contradicts whether
it is ever warranted.
The dialogue then turned to LtCol D’Ambra’s religion:
Q: Sir, I notice from your questionnaire
you are -- you’re a practicing Catholic.
A: Yes.
Q: Is there anything about that, your
religion, that will prevent you from
seriously considering the death penalty
should the government, again, meet all of
its burdens in this case?
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A: Well, as far as I know the Catholic
church does -- is against the death penalty.
But, again, it all goes to a conscious
decisions [sic] I’ll have to make and it’s
just something that I’ll have to wait and
consider.
Trial counsel asked specifically about the relationship between
LtCol D’Ambra’s religious affiliation and the application of the
death penalty in the present case:
Q: Will you have difficulty considering the
death penalty, should the government meet
all of its burdens, because of your
religion?
A: I don’t know if I’ll have difficulty but
it’s going to be something that I’ll have to
wrestle with, yes.
In response to questions by defense counsel, LtCol D’Ambra
confirmed that he would not rule out the death penalty. LtCol
D’Ambra responded affirmatively when defense counsel asked
whether he would be able to weigh and consider the death penalty
“if the military judge instructs you that the death penalty may
be a valid option of punishment in this case.”
3. The Government’s challenges to LtCol D’Ambra and MSgt
Buckham
Following voir dire, trial counsel challenged several
members of the panel for cause, including LtCol D’Ambra and MSgt
Buckham. With respect to LtCol D’Ambra, trial counsel argued:
Our basis would be in his discussion about
his religious faith and that he would need
to pray about his decision in regard to the
death penalty. It’s an obvious notation
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United States v. Quintanilla, Nos. 05-0274/MC and 05-5001/MC
that he’s a practicing Catholic and the
Catholic churches oppose to [sic] the death
penalty.
We believe that would certainly leave the
impression that he could not consider that -
- the fact -- I think it works both ways in
this case. The fact if he’s praying about
this decision or feels his religious
decision is that, in fact, he should give
the death penalty or shouldn’t give it,
that’s not going to be based on the evidence
presented in this case but on a more
personal side of the house in his prayer
life, I guess is better words.
Defense counsel responded by highlighting the statement by LtCol
D’Ambra that he could consider the death penalty. Defense
counsel also took the position that a panel member should not be
excused for praying over a major decision: “Simply by the fact
that he may need to pray over a big decision shouldn’t excuse
him, sir. We take that into court when we make our decisions.
Members take their real life experiences and use that to make
their decisions.”
Trial counsel next challenged MSgt Buckham, stating:
“Again, same similar issues on that one, sir. Again, he
discusses about seeking guidance from God, praying about that
decision.” Noting that MSgt Buckham reacted emotionally when
faced with questions regarding his religious beliefs, trial
counsel said: “If he’s having a difficult time at this point
certainly when we’re at that stage of the trial he’s going to be
faced with that same or similar difficulty.”
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United States v. Quintanilla, Nos. 05-0274/MC and 05-5001/MC
In response, defense counsel said:
We object to that, sir. It’s not a basis
for a challenge for cause. He states he
feels the death penalty is a deterrent.
He’s not prohibited from imposing the death
penalty by any religious beliefs. There’s
nothing in his biblical studies that would
restrict him from imposing the death
penalty. He could consider it. Simply
because he’s emotional and he may pray about
something, the same arguments before with
the Lieutenant Colonel, sir. You shouldn’t
excuse him. It’s not a basis for any
challenge for cause.
The military judge then asked defense counsel about MSgt
Buckham’s visual emotional reaction during voir dire. Defense
counsel responded:
Sir, there’s no substantial doubt as to if
he’s sitting on the court as a member as to
legality, fairness and impartiality, and
that’s what R.C.M. 912 says as a basis for a
challenge. He simply was somewhat emotional
realizing it’s going to be an important
decision but in no way -- no which prohibit
him and it’s not a basis for a challenge,
sir.
4. The military judge’s ruling on the Government’s challenges
for cause
The military judge granted the challenges for cause against
LtCol D’Ambra and MSgt Buckham. The military judge focused his
ruling on the religious beliefs of the two challenged members:
Based on the guidelines of R.C.M.
912(f)(1)(N), it is my mandate as military
judge to ensure that this court-martial be
free from substantial doubt as to fairness
and impartiality of the members. Applying
this guidance based on the responses by
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United States v. Quintanilla, Nos. 05-0274/MC and 05-5001/MC
Lieutenant Colonel D’Ambra and Master
Sergeant Buckman . . ., the court opines
that based on their strongly held religious
beliefs they will have difficulty in
considering the entire range of punishments
in this case.
B. DISCUSSION
1. Standard of review
We review a military judge’s decision on a challenge for
cause for a “clear abuse of discretion.” United States v.
James, 61 M.J. 132, 138 (C.A.A.F. 2005). An abuse of discretion
occurs if the military judge’s findings of fact are clearly
erroneous or if the decision is influenced by an erroneous view
of the law. United States v. Gore, 60 M.J. 178, 187 (C.A.A.F.
2004).
A “military judge’s ruling on a challenge for cause is
given great deference.” United States v. Rolle, 53 M.J. 187,
191 (C.A.A.F. 2000) (internal quotation marks omitted). In the
course of reviewing the military judge’s ruling on a challenge
for cause, it is “appropriate to recognize the military judge’s
superior position to evaluate the demeanor of court members.”
James, 61 M.J. at 138.
Although we take into account the views of the Court of
Criminal Appeals on challenges for cause, we typically employ a
direct review of the ruling of the military judge. See United
States v. Siroky, 44 M.J. 394, 399 (C.A.A.F. 1996); James, 61
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United States v. Quintanilla, Nos. 05-0274/MC and 05-5001/MC
M.J. at 139. In that context, it is appropriate at this point
to address Certified Issues I and II, which involve two aspects
of the opinion issued by the Court of Criminal Appeals.
Certified Issue I asks whether the court below erred in
declining to apply the standard set forth in Rolle, 53 M.J. at
191. See Quintanilla, 60 M.J. at 859. We answer that question
in the affirmative. Rolle addresses the degree of deference
that should be applied by an appellate court after scrutinizing
the record. Id. at 192-93. The careful scrutiny that
accompanies capital cases is not incompatible with applying the
Rolle standard of review after that scrutiny has been completed.
In any case, because we are reviewing the decision of the
military judge, any error by the court below in employing a
standard of review does not affect our review.
Certified Issue II asks whether it was appropriate for the
court below to rely on a post-trial affidavit of MSgt Buckham to
assess the validity of the ruling by the military judge on the
challenge to that member. See Quintanilla, 60 M.J. at 861-62.
The court below did not identify any reason to depart from the
normal practice of relying on the factual information developed
in the record of trial when addressing challenges for cause.
See United States v. Vangelisti, 30 M.J. 234, 237 (C.M.A. 1990).
Accordingly, we answer the second certified question in the
affirmative. As we noted with respect to Certified Issue I, any
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United States v. Quintanilla, Nos. 05-0274/MC and 05-5001/MC
error by the court below in this regard is immaterial to our
direct review of the decision at trial by the military judge.
2. Standard applicable to rulings on challenges for cause
R.C.M. 912(f)(1)(N) sets forth the applicable provision of
law. Under the rule, a panel member shall be excused for cause
when the member should not sit “in the interest of having the
court-martial free from substantial doubt as to legality,
fairness, and impartiality.” Id. Under this provision, a
member who has “an inelastic opinion concerning an appropriate
sentence for the offenses charged” may be challenged. R.C.M.
912(f)(1)(N) Discussion; James, 61 M.J. at 138.
When the issue of an inelastic opinion arises in a capital
case with respect to the imposition of the death penalty, the
Supreme Court’s decision in Wainwright v. Witt, 469 U.S. 412(1985), supplies the applicable legal standard. In Wainwright,
the Supreme Court articulated the following standard for
determining whether a prospective juror could be excluded for
cause because of his or her views on capital punishment:
“whether the juror’s views would prevent or substantially impair
the performance of his duties as a juror in accordance with his
instructions and his oath.” Id. at 424 (internal quotation
marks omitted); see also United States v. Gray, 51 M.J. 1, 31-32
(C.A.A.F. 1999).
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3. Review of the military judge’s ruling on MSgt Buckham
The military judge cited MSgt Buckham’s religious beliefs
in granting the Government’s challenge. The military judge did
not apply the standard in Wainwright or otherwise identify any
aspects of MSgt Buckham’s beliefs that would satisfy the
Wainwright standard.
The Government suggests that we should treat the military
judge’s ruling as incorporating trial counsel’s argument that
MSgt Buckham warranted excusal because of his emotional
demeanor. The military judge’s ruling, however, did not cite or
rely upon trial counsel’s argument, which was rebutted by the
defense, and did not address the disagreement between the
parties.
Instead, the military judge focused erroneously on the
“religious beliefs” of MSgt Buckham. MSgt Buckham repeatedly
emphasized that no restrictions on voting for the death penalty
flowed from his religious affiliation. MSgt Buckham simply
noted that, as a religious person, he would pray in the course
of making an important decision. That statement contains no
suggestion that his “religious beliefs” would preclude him from
following and applying the instructions of the military judge in
accordance with his oath as a panel member. See James, 61 M.J.
at 138. Accordingly, the military judge erred in granting the
Government’s causal challenge against MSgt Buckham. In view of
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our conclusion, we need not decide the related issue concerning
the military judge’s decision granting the prosecution’s
challenge for cause against LtCol D’Ambra.
4. Remedy
The lower court set aside the findings as well as the
sentence. Quintanilla, 60 M.J. at 863, 868. Certified Issue
III asks whether the court below erred in setting aside the
findings. The Government contends that the appropriate remedy
would be to affirm the findings, set aside the sentence, and
authorize a rehearing on the sentence. We review the question
of whether the remedy developed by the lower court was
appropriate for an abuse of discretion. See United States v.
Manuel, 43 M.J. 282, 288 (C.A.A.F. 1995).
The military judge granted the challenges at issue because
of his concerns regarding the members’ ability to impose a
certain sentence, the death penalty. In Witherspoon v.
Illinois, 391 U.S. 510, 516-18 (1968), the Supreme Court
addressed whether the findings as well as the sentence should be
set aside when jurors were improperly excused due to their views
on the death penalty. The Supreme Court held that only the
sentence should be reversed, stating: “We simply cannot
conclude, either on the basis of the record now before us or as
a matter of judicial notice, that the exclusion of jurors
opposed to capital punishment results in an unrepresentative
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jury on the issue of guilt or substantially increases the risk
of conviction.” Id. at 517-18. Although the Supreme Court has
subsequently modified other aspects of Witherspoon, see
Wainwright, 469 U.S. at 418-26, the Court has not altered its
view as to the appropriate remedy for improper exclusion. See,
e.g., Gray v. Mississippi, 481 U.S. 648, 668 (1987); Adams v.
Texas, 448 U.S. 38, 51 (1980).
Supreme Court precedents developed in cases arising outside
the military justice system are applied as precedents in the
military justice system unless distinguishable based upon unique
military justice considerations. See, e.g., United States v.
Matthews, 16 M.J. 354, 369 (C.M.A. 1983); Article 36, UCMJ, 10
U.S.C. § 836 (2000). The defense suggests that Witherspoon is
not applicable in the military justice system, relying on our
decision in United States v. Giles, 48 M.J. 60 (C.A.A.F. 1998).
In Giles, we set aside the findings and sentence after
concluding that the military judge abused his discretion by
denying a defense challenge for cause against a member. Id. at
63. Giles, however, addresses consequences that are not at
issue in the present case, related primarily to the fact that
the parties in the military justice system are limited to a
single peremptory challenge. See id. at 62; Article 41(b),
UCMJ, 10 U.S.C. § 841(b) (2000).
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If a defense challenge to a panel member is denied, as in
Giles, the defense must decide whether to allow the disqualified
member to sit on the panel or to use its single peremptory
challenge against that member. Under such circumstances, the
erroneous denial of a defense causal challenge creates a
significant burden on the statutory right of the defense to
exercise a peremptory challenge to remove a member objectionable
to the defense. In that context, we concluded in Giles that the
appropriate remedy required reversal of the findings and the
sentence. Id. at 63.
Here, however, the military judge’s erroneous ruling had no
impact on the defense’s right to exercise a peremptory
challenge. Additionally, there has been no allegation that any
of the members who sat on the panel held a bias against
Appellant or otherwise should have been disqualified. See id.A departure from Witherspoon is not warranted by our
precedent or by the unique aspects of the military justice
system. Accordingly, we reverse the lower court’s decision to
the extent that it set aside the findings as a remedy for the
military judge’s erroneous grant for the prosecution’s challenge
for cause.
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III. FAILURE TO SEQUESTER WITNESSES (GRANTED ISSUE I)
In a pretrial session pursuant to Article 39(a), UCMJ, 10
U.S.C. § 839(a) (2000), trial counsel moved to allow the widow
and brother of LtCol Kidd and the wife of LtCol Heffner to
remain in the courtroom as spectators. Trial counsel
acknowledged that all three were likely to be called as
Government witnesses during sentencing but argued that a federal
statute allowed their presence at trial. Despite defense
counsel’s objection under Military Rule of Evidence (M.R.E.)
615, which provides for the exclusion of witnesses at the
request of either party, the military judge allowed the three to
sit in on the trial, and they later testified during sentencing.
In the present appeal, Appellant maintains that the failure
to sequester the witnesses was prejudicial error under M.R.E.
615. The Government concedes that there was error but argues
that no prejudice arose from the error because the witnesses’
testimony was limited to victim impact evidence, which was not
affected by the trial proceedings. See United States v. Spann,
51 M.J. 89, 93 (C.A.A.F. 1999) (holding that the military judge
erred by applying the federal statute instead of M.R.E. 615 but
finding no prejudice); United States v. Langston, 53 M.J. 335,
338-39 (C.A.A.F. 2000) (finding no prejudice arising from the
military judge’s failure to sequester witnesses); Article 59(a),
UCMJ, 10 U.S.C. § 859(a) (2000) (“A finding or sentence of a
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United States v. Quintanilla, Nos. 05-0274/MC and 05-5001/MC
court-martial may not be held incorrect on the ground of an
error of law unless the error materially prejudices the
substantial rights of the accused.”).
It is not necessary to address the merits of Appellant’s
argument to determine that no additional relief can arise from
this claim. Prejudice under M.R.E. 615 is determined by
considering whether the witness’s testimony was affected by the
trial proceedings that the witness heard. See Langston, 53 M.J.
at 338; Spann 51 M.J. at 93. The three witnesses at issue
testified only on sentencing. Therefore, even if their
testimony was altered by what they heard at trial, the effect
would not have been relevant to the members’ determination of
guilt. In view of our decision to reverse the sentence on other
grounds, we need not address the question of prejudice.
IV. PROSECUTORIAL MISCONDUCT (GRANTED ISSUE III)
Appellant alleges that the findings and sentence should be
set aside as a remedy for various incidents of prosecutorial
misconduct that took place before, during, and after his trial.
Appellant claims that the lower court erred in its ruling on
this issue because, despite finding that prosecutorial
misconduct occurred, the lower court concluded that the
misconduct did not result in prejudice and declined to grant
relief on this basis. See Quintanilla, 60 M.J. at 863-67.
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United States v. Quintanilla, Nos. 05-0274/MC and 05-5001/MC
Because we have concluded that the sentence should be set aside,
we consider this issue only with respect to findings.
The lower court addressed the allegations of prosecutorial
misconduct “to discourage any repetition of these actions in a
rehearing.” Id. at 863. We agree that it was appropriate for
the lower court to comment on the conduct of Government counsel.
For the following reasons, we also agree with the conclusion of
the lower court that the actions of Government counsel did not
prejudice the findings in this case. See United States v. Meek,
44 M.J. 1, 5 (C.A.A.F. 1996).
Prior to trial, assistant trial counsel engaged in an ex
parte communication with the Article 32, UCMJ, 10 U.S.C. § 832(2000), Investigation Officer. See Quintanilla, 60 M.J. at 863.
Appellant raised this issue at trial as part of the basis for
his request to have the Article 32, UCMJ, investigation
reopened. After hearing testimony from the Investigation
Officer and a witness to the conversation, the military judge
denied the request, stating that the conversation gave rise to
an “appearance of impropriety” but finding that the conversation
had no impact on the Article 32, UCMJ, investigation. The lower
court found that “this conversation did not just appear to be
improper, it was improper.” Id. at 864. We agree, however,
with the determination of both the military judge and the lower
court that the improper conversation did not result in
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United States v. Quintanilla, Nos. 05-0274/MC and 05-5001/MC
prejudice, particularly in light of the military judge’s finding
that the conversation had no bearing on the Article 32, UCMJ,
investigation. See United States v. Argo, 46 M.J. 454, 457, 459
(C.A.A.F. 1997).
In a separate pretrial matter, the assistant trial counsel
sent two e-mail messages to the prospective members of the
panel. The e-mails advised the members of the trial schedule
but were not sent to the defense. In a post-trial lecture to a
capital litigation course at the Naval Justice School, the
assistant trial counsel explained that he wrote the e-mail with
the goal of establishing favorable opinions and trust from the
members. Although this may demonstrate that assistant trial
counsel had a subjective ulterior motive, an objective reading
of the e-mails does not reveal this motive. Furthermore,
considering the extent and strength of the evidence against
Appellant in this case, these e-mails would not have influenced
the members’ determination of guilt.
During the court-martial, trial counsel testified on a
motion and then argued the motion, relying on his own testimony.
See Quintanilla, 60 M.J. at 864-65 (detailing the background of
the motion). The lower court correctly concluded that this
amounted to a violation of the ethical rule prohibiting
attorneys from acting as both an advocate and a witness on the
same matter. Id. at 865. See Dep’t of the Navy, Judge Advocate
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United States v. Quintanilla, Nos. 05-0274/MC and 05-5001/MC
General Instr. 5803.1A, Professional Conduct of Attorneys
Practicing Under the Supervision of the Judge Advocate General
[hereinafter JAGINST 5803.1A], Rule 3.7(a) (July 13, 1992),
replaced by JAGINST 5803.1B (Feb. 11, 2000). This motion,
however, was argued in an Article 39(a), UCMJ, session outside
the presence of the members, so it would not have impacted the
members’ findings.
Appellant also points to the assistant trial counsel’s
sentencing argument, which the counsel later described as
“highly objectionable” during his post-trial lecture to the
Naval Justice School. He engaged in tactics such as sitting on
the witness stand, screaming at Appellant, and using words such
as “bad hombre,” “animal,” and “gang-banging.” Again, however,
this argument did not prejudice the findings because the
sentencing argument was made after the findings were entered.
The court below noted that these problems persisted after
trial. Quintanilla, 60 M.J. at 865. An investigation
undertaken by the Naval Criminal Investigative Service revealed
that the trial counsel and assistant trial counsel impermissibly
withheld evidence from the evidence custodian. Id. Given the
post-trial timing of this conduct, however, it did not prejudice
Appellant’s court-martial. See Article 59(a), UCMJ.
Although we agree with the court below that there was no
prejudice, we note that the court expressly concluded that
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United States v. Quintanilla, Nos. 05-0274/MC and 05-5001/MC
Government counsel violated a number of ethical norms
promulgated by the Navy in JAGINST 5803.1A, including: Rule
3.5a -- the prohibition against certain ex parte communications;
Rule 3.7(a) -- the prohibition against an attorney acting as an
advocate and attorney in the same case; and Rule 8.4 -- the
prohibition against an attorney engaging in illegal and
unethical conduct. Quintanilla, 60 M.J. at 864-65. The court
also stated that the prosecution’s sentencing argument
“violat[ed] various ethical canons.” Id. at 866 (citing
American Bar Association Standards for Criminal Justice:
Prosecution Function and Defense Function, Standards 3-5.2, 3-
5.8(c) (3d ed. 1993)). The court observed that Government
counsel’s “unethical conduct . . . . besmirched the military
justice system . . . .” Id. at 867.
The court took note of the responsibilities of the Judge
Advocate General with regard to the administration of attorney
discipline, id. at 865 n.4, but it is not clear whether the
specific matters, strongly condemned by the court as egregious,
were referred to the Judge Advocate General for review and
action. Accordingly, we direct the Clerk of the Court to
transmit our opinion and the opinion of the court below to the
Judge Advocate General of the Navy for appropriate
consideration.
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United States v. Quintanilla, Nos. 05-0274/MC and 05-5001/MC
V. CONCLUSION
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is reversed to the extent that it set aside
the findings of guilty. The findings of guilty dismissed below
are reinstated. The decision of the Court of Criminal Appeals
is affirmed to the extent that it set aside the sentence and
authorized a sentence rehearing. The record of trial is
returned to the Judge Advocate General of the Navy for remand to
an appropriate convening authority for a sentence rehearing.
Thereafter, Articles 66(c) and 67(c), UCMJ, 10 U.S.C. §§ 866(c),
867(c) (2000), will apply.
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