                       UNITED STATES, Appellee

                                    v.

                   Keith M. TERRY, Staff Sergeant
                      U.S. Air Force, Appellant

                              No. 06-0314

                         Crim. App. No. 35801

       United States Court of Appeals for the Armed Forces

                       Argued October 24, 2006

                      Decided January 29, 2007

BAKER, J., delivered the opinion of the Court, in which EFFRON,
C.J., and ERDMANN, J., joined.

STUCKY and RYAN, JJ., did not participate.


                                 Counsel


For Appellant: Lieutenant Colonel Frank R. Levi (argued);
Lieutenant Colonel Mark R. Strickland and Major Sandra K.
Whittington (on brief).


For Appellee: Captain Kimani R. Eason (argued); Colonel Gerald
R. Bruce and Lieutenant Colonel Robert V. Combs (on brief).

Military Judge:   Barbara G. Brand


       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Terry, No. 06-0314/AF


     Judge BAKER delivered the opinion of the Court.

     Contrary to his pleas, Appellant was convicted by a general

court-martial composed of officer members of disobeying a lawful

no-contact order, and the rape of a female airman stationed at

the base in violation of Articles 92 and 120, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. §§ 892, 920 (2000),

respectively.    The adjudged and approved sentence included a

dishonorable discharge, confinement for eight years, forfeiture

of all pay and allowances, reduction to grade E-1, and a

reprimand.    The United States Air Force Court of Criminal

Appeals affirmed.   United States v. Terry, No. ACM 35801, 2005

CCA LEXIS 420, at *9, 2006 WL 13166, at *4 (A.F. Ct. Crim. App.

Dec. 6, 2005).

     On Appellant’s petition we granted review of the following

two issues:

     I.   WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION
          IN DENYING TWO CHALLENGES FOR CAUSE.

     II. WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION
         BY GIVING A CONSTRUCTIVE FORCE INSTRUCTION OVER
         OBJECTION.

     Although we resolve the second issue adverse to Appellant,

for the reasons that follow, we decide the first issue in his

favor.

     Appellant was tried by a court-martial consisting of two

officers and three enlisted personnel.   Two officer members,



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United States v. Terry, No. 06-0314/AF


Major (Maj) H and Captain (Capt) A, indicated during voir dire

that they knew family or friends who had been the victims of

sexual assaults.   Appellant challenged both members for cause.

The challenges were denied.   We conclude that Maj H properly sat

on Appellant’s court-martial.   Although Maj H’s wife had been

the victim of some form of sexual assault by a family member,

the record reflects that Maj H and his wife had not discussed

the incident for over five years.    Moreover, his wife had

reconciled with the family member responsible for the sexual

assault, which had occurred ten to twenty years earlier.

     In contrast, we conclude the military judge erred in not

granting the challenge for cause against Capt A.    Capt A’s

experience with rape was pronounced and distinct.   A long time

girlfriend, whom Capt A may have intended to marry, was raped

and became pregnant.   The experience caused the girlfriend to

break off her relationship with Capt A.   Further, the girlfriend

named the child after Capt A, indicating the nature of the bond

and the continuing feelings between the girlfriend and Capt A.

We believe that most persons in Capt A’s position would have

difficulty sitting on a rape trial, even given the passage of

six years.   Further, an objective observer might well have

doubts about the fairness of Appellant’s court-martial panel.

Applying the liberal grant mandate, the military judge erred in

not eliminating such doubts from Appellant’s court-martial at


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United States v. Terry, No. 06-0314/AF


the outset.   As we stated in United States v. Clay, the liberal

grant mandate exists not just to protect an accused’s right to a

fair trial, but also to protect society’s interest, including

the interests of the Government and the victims of crime, in the

prompt and final adjudication of criminal accusations.    __ M.J.

__ (7) (C.A.A.F. 2007).   Where military judges consider implied

bias and apply the liberal grant mandate on the record,

deference is warranted.   United States v. Downing, 56 M.J. 419,

422 (C.A.A.F. 2002).

     As this case illustrates, a prior connection to a crime

similar to the one being tried before the court-martial is not

per se disqualifying to a member’s service.   Capt A’s experience

with rape is too distinct to pass the implied bias muster.    If

there were additional factors that might have swayed the

military judge’s determination otherwise, these factors were not

placed on the record and subjected to an implied bias analysis.

                THE CONSTRUCTIVE FORCE INSTRUCTION

Background

     The facts of the rape offense were set forth in the opinion

of the court below:

     The appellant was a radiology technician working in
     the ultrasound department at the Offutt AFB hospital.
     In December 2002, he performed an ultrasound
     examination on Airman First Class (A1C) S to check for
     swelling in her right ovary. During the examination,
     the appellant talked with A1C S and told her he was
     taking classes at a local university. He asked if she


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United States v. Terry, No. 06-0314/AF


     would help him with one of his classes by letting him
     take ultrasound photos of the veins in her arms. She
     agreed to come into the hospital the next day, a
     Saturday, and help him with his study.

     When she arrived at 1200 the radiology clinic was
     relatively deserted, although it was a reserve
     training weekend. The appellant led her to the
     ultrasound examination room by a more circuitous route
     than they had taken the day before. He began to
     examine her arms, but then told A1C S that he was
     having trouble seeing her veins. He asked if he could
     examine the veins in her legs to see if he could get a
     better picture. She agreed, and the appellant left
     the room while she removed her pants and donned a
     hospital gown. The appellant returned and continued
     the examination. When he reached her groin area, he
     told her the picture was fuzzy and asked if she would
     mind removing her panties. She agreed. The appellant
     left the room again and A1C S removed her panties.

     When the appellant returned, he asked if he could take
     ultrasound pictures of her left ovary, because he
     needed pictures of female organs and already had
     pictures of her right ovary. A1C S agreed and placed
     her feet in the stirrups of the examining table. The
     appellant inserted an internal probe and continued the
     examination. When A1C S complained of some
     discomfort, the appellant apologized and adjusted his
     examination technique. Next, the appellant asked A1C
     S if she would mind turning over on her stomach. She
     complied.

     The appellant positioned himself between her legs and
     continued to manipulate the internal ultrasound probe.
     He then asked her if she had ever had sex with a black
     man. She said that she had not. He next asked if she
     had ever had a one-night stand. She said, “no.” He
     asked if she ever wanted to have a one-night stand,
     and she said she wanted to know a person before she
     “did anything” with him. Next he asked her what she
     would do if he had a condom. A1C S heard a “crinkling
     sound” turned her head and saw the skin of the
     appellant’s bare thighs. Then she felt the
     appellant’s penis penetrate her vagina. At the same
     time, he pressed his hands on her back and grabbed her
     breast with his right hand. He told her not to


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United States v. Terry, No. 06-0314/AF


     scream. A1C S crawled away from him and got up. She
     put her clothes on and before she left the appellant
     told her not to tell anyone what had happened.

Terry, 2005 CCA LEXIS 420, at *2-*4, 2006 WL 13166, at *1.

     At trial, the victim testified, among other things, that at

no time did she ever intend on having intimate contact with

Appellant.   When asked why she did not leave the room she

stated,

     I was just scared, and I felt like if I -- even if I
     would have done anything I couldn’t have -- the room
     was so small and it’s like I was trapped in-between
     the wall and the machine, and he was like in the way
     of my -- it’s just so cramped in there, you can’t help
     but feeling enclosed.

At the close of the evidence the defense objected when the

military judge indicated that he would provide the members with

an instruction on constructive force.    This objection was

overruled, with the military judge concluding that there was

some evidence that raised the issue that Appellant had

threatened or intimidated the victim.    The following

instruction, in relevant part, was then provided to the members:

     Where intimidation or threats of death or physical
     injury make resistance futile, it is said that
     constructive force has been applied, thus satisfying
     the requirement of force. Hence, when the accused’s
     actions and words or conduct, coupled with the
     surrounding circumstances, create a reasonable belief
     in the victim’s mind that death or physical injury
     would be inflicted on her and that resistance would be
     futile, the act of sexual intercourse has been
     accomplished by force.




                                 6
United States v. Terry, No. 06-0314/AF


Analysis

     Appellant, citing United States v. Simpson, 58 M.J. 368

(C.A.A.F. 2003), contends that an instruction on constructive

force should not have been given because neither his superior

rank, position of authority, or physical size were factors on

the issue of consent or the lack thereof.    It is true that these

factors were more at issue in Simpson.     However, we need not

rely on the factors that might have been relevant in that case

in resolving the issue in this case.   It has long been the law

with respect to the offense of rape that “[w]here intimidation

or threats of death or physical injury make resistance futile,

it is said that ‘constructive force’ has been applied.”     United

States v. Palmer, 33 M.J. 7, 9 (C.M.A. 1991).    Further,

constructive force “may consist of expressed or implied threats

of bodily harm.”   United States v. Hicks, 24 M.J. 3, 6 (C.M.A.

1987).    Generally, a military judge is granted considerable

discretion in deciding which instructions to give.    United

States v. Damatta-Olivera, 37 M.J. 474, 478 (C.M.A. 1993).       The

military judge will generally instruct on matters that are “in

issue.”    “A matter is ‘in issue’ when some evidence, without

regard to its source or credibility, has been admitted upon

which members might rely if they chose.”    Rule for Courts-

Martial (R.C.M.) 920(e) Discussion.    The record in this case

contains “some evidence” that Appellant intimidated the victim


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United States v. Terry, No. 06-0314/AF


into sexual intercourse without consent and that the victim’s

perception of this intimidation and her attendant fear were

reasonable.   Among other things, there was some evidence that

Appellant, acting under the guise of an E-5 medical technician

in order to gain the victim’s trust for the purported test,

lured the victim to an isolated part of the hospital at off-duty

hours, that he told the victim “not to scream,” and that the

victim was “really scared.”   Thus, we discern no abuse of

discretion on the part of the military judge.

                     THE CHALLENGES FOR CAUSE

Background

     Appellant contends that the military judge erred in denying

his challenges for cause against two members, Maj H and Capt A.

In response to voir dire questioning by both the military judge

and trial counsel, Maj H indicated that he had a “family member,

friend, [or] acquaintance [who had] been the victim of . . .

rape or sexual assault . . . .”   The trial counsel pressed Maj H

on the specifics and the following colloquy ensued:

     TC: You had also indicated in the response to one of the
     judge’s questions [that you knew] some type of victim
     involved in a sex assault that’s an acquaintance, family
     member, [or] otherwise, can you explain in a little more
     detail who that was and what that was about?

     [Maj H]: I don’t know how to answer that. It was a family
     member and I’d rather not go into it in open court.

     TC: I understand that it’s uncomfortable and difficult . .
     . . [but] it’s important for both the government but also


                                  8
United States v. Terry, No. 06-0314/AF


     for [the accused] to understand what kind of life
     experience you may have had that you bring to the table.

     [Maj H]:   Sure.   It was my wife . . . .

     TC: Did this incident occur while she was your wife or
     before . . . ?

     [Maj H]:   Oh no, it was before, it was her stepfather.

     TC:   And this was before you ever knew her?

     [Maj H]:   Oh, yeah.

     TC:   Do you recall about how long ago it was?

     [Maj H]: She was still living at home so she must have
     been 16 or . . . maybe 18.

     TC:   [H]ow long have you been married?

     [Maj H]:   Ten years.

     TC: Has your wife talked to you in any detail about . . .
     this incident?

     [Maj H]: At one point, yes, but ages ago, but it’s
     obviously part of her makeup and her mother’s still married
     to her stepfather.

     TC: Okay, you say she talked to you about it just one
     time?

     [Maj H]: It probably would have been more than just one
     time . . . it hasn’t come up in five years, but it’s still
     part of who she is.

     TC:   How long has it been since you . . . have discussed
     it?   Do you think it’s been five years or more?

     [Maj H]:   Oh, yes.

     TC: [Do] you have a sense that this [past abuse] affects
     her life? Have there been times more recently when you’ve
     seen her act in a certain way and you thought . . . that
     [it] has to do with [her past assault]?



                                  9
United States v. Terry, No. 06-0314/AF

     [Maj H]: No, no. In fact, she and her mother both do a
     form of Indian dance and her stepfather takes pictures and
     they all went to India together . . . she and her mother
     and stepfather.

     TC:   Was there ever a formal allegation made?

     [Maj H]:   No, she just left home.

     TC: Do you know if your wife has ever disclosed this
     situation to anyone other than you?

     [Maj H]:   And her mother, no, probably not.

           . . . .

     TC: Knowing about the circumstance . . . do you think you
     have any . . . preconceptions about the issue of sex
     assault or rape or related offenses?

     [Maj H]:   No, no, I don’t think so . . . .

     TC: Do you think there’s anything about having heard your
     wife tell you about this situation that would cause you to
     not be able to sit fairly and impartially in this case?

     [Maj H]:   No.

     TC: Do you think that you’d be able to listen to all the
     evidence, even if it deals with testimony concerning a
     sexual assault, and receive and consider all the evidence?

     [Maj H]:   Yes.

     TC: Do you have any doubt at all about whether you’d be
     able to hear that evidence and consider it and sit fairly
     and impartially?

     [Maj H]:   No.

     TC: Do you think that you can apply any instructions . . .
     that the judge may give you concerning rape or sexual
     assault?

     [Maj H]:   Yes.

     TC:   Any doubt about that?


                                   10
United States v. Terry, No. 06-0314/AF



     [Maj H]:    No.

     Capt A indicated during initial questioning that he too had

known someone who was a victim of some type of sexual assault.

When asked to return to the courtroom for further questioning,

Capt A indicated that he had known two victims of assault.   He

was asked about each:

     TC: Can you explain in a little more detail who [you knew
     who were victims] and what that involved?

           . . . .

     [Capt A]: [My] [h]igh school . . . girlfriend for six
     years . . . . [A] guy that was supposed to be a friend of
     the family raped her, and . . . it was her first time . . .
     having intercourse, and she . . . became pregnant. And
     then later on another girlfriend [informed me that] before
     I met her, she was also raped . . . .

     TC: The first person you talked about, how long ago was it
     that this incident occurred?

     [Capt A]:   This occurred in [19]96 I believe.

     TC:   And you were boyfriend and girlfriend at the time?

     [Capt A]:   We were on and off for around five, six years .
     . . .

           . . . .

     [The rape happened] near the end of [the relationship].

     TC: How did you first come to find out about this
     incident?

     [Capt A]: [The victim had terminated our relationship] and
     she called me up . . . to tell me what had happened and the
     reason [she ended the relationship] . . . . [She told me
     that due] to the [rape and] pregnancy she felt guilty . . .



                                11
United States v. Terry, No. 06-0314/AF

     she felt she was unworthy of being with me and didn’t want
     to have anything to do with me because of the incident.

           . . . .

     TC: What was your reaction when she told you about what
     happened?

     [Capt A]: I was angry. I was angry at the person that did
     it obviously. . . . [T]his was her first type of
     intercourse, she [had] wanted to wait until she was married
     so it kind of ruined something that she had saved for her
     wedding day . . . . So it got me angry and upset . . . . I
     tried to stay in her life, but she pushed me and my family
     away.

     TC: At the point that she told you about this . . . . did
     you see staying together in a relationship [with her]?

     [Capt A]: Yes, I did . . . . [Though] looking back . . .
     [I don’t know if I meant it or not] . . . , I had mentioned
     to her sister . . . [that] “I’m going to marry your sister
     at some point.”

     TC:   What’s your contact been like since [19]96?

     [Capt A]: Probably a year we kept in sort of contact.
     When she gave birth to the baby we kept in kind of close
     contact. She actually named her son after me, that’s how
     close we were . . . .

           . . . .

     I’ve been married since late [19]97, and out of respect for
     my wife I don’t contact any of my old girlfriends.

     TC: How do you feel about that situation and that incident
     today as you sit here?

     [Capt A]: Every incident is different. I view everything
     for what it’s worth . . . . I’m impartial.

           . . . .

     TC: Can you go ahead and tell me again about the other
     person that you knew that was raped?



                                12
United States v. Terry, No. 06-0314/AF

     [Capt A]: I don’t know [about] the incident, I don’t know
     what happened, how she got raped, I have no clue. I didn’t
     get into details. We dated for maybe a couple of months.

           . . . .

     [She was] more of an acquaintance, and she had mentioned
     that she had been raped . . . .

     TC:   Previous to your relationship?

     [Capt A]:   [Yes], well previous.

           . . . .

     TC: [Is] there anything about either of those experiences
     that you think would cause you to not be able to sit fairly
     and impartially in this case?

     [Capt A]:   No, Sir.

           . . . .

     TC: Do you think you’re going to be able to apply that
     impartially to the law as the military judge instructs you
     and reach an unbiased finding?

     [Capt A]:   Yes, Sir.

     TC:   Do you have any doubt whatsoever about that?

     [Capt A]:   No, Sir.

     Upon the conclusion of voir dire the defense counsel made

four challenges for cause.   The military judge granted the

challenges with respect to two other potential members, one who

had “more than just a passing acquaintance” with the victim, and

the other who worried that if he sat on the panel he would have

flashbacks to the assault of his daughter, and stated only that




                                13
United States v. Terry, No. 06-0314/AF

he could be impartial “right now” rather than for the duration

of the trial process.

     The military judge denied the challenge to Maj H stating

that though he “was [initially] uncomfortable when answering the

questions [about his wife’s experiences with sexual abuse] . . .

. as the questioning went on he was [more] forthright in

answering . . . .”   The military judge also stated that Maj H

indicated that he “had no predisposition . . . . [and] that he

could be fair and impartial . . . .”

     The military judge also denied the challenge to Capt A

using similar reasoning, concluding that she saw no indication

that Capt A had any feelings about rape “[that could not be] put

aside” so that he could be impartial.    Appellant preserved the

issue for appeal by subsequently using his peremptory challenge

against another member, Colonel H.    See United States v.

Leonard, 63 M.J. 398, 403 (C.A.A.F. 2006) (trial defense counsel

not required to state that he would use a non-existent

peremptory challenge against another member).

     Appellant contends that the liberal grant mandate required

the military judge to grant the challenges for cause for both

Maj H and Capt A.    Appellant further argues that Maj H’s and

Capt A’s experiences actually biased them and/or that their

experiences presented an implied bias.   Appellant asserts that




                                 14
United States v. Terry, No. 06-0314/AF

since both should have been removed, their participation in the

court-martial denied him a fair trial.

     The Government argues, among other things, that both Maj H

and Capt A affirmed that they could be fair, there were

differences between the Appellant’s case and the events

described by the challenged members during voir dire, and there

was a “significant time lapse” between the court-martial and the

events discussed during voir dire.   Further, Capt A “only dated

the rape victims.”   Finally, “trial defense counsel declined to

inquire into this area of their backgrounds when given the

opportunity.”

                            DISCUSSION

     The impartiality of members is a core principle of the

military justice system, and “the sine qua non for a fair court-

martial.”   United States v. Wiesen, 56 M.J. 172, 174 (C.A.A.F.

2001) (citation and quotation marks omitted).   Its importance is

emphasized by the fact that the mandate for disinterested,

evenhanded members is echoed across the central sources of

military law:   the Constitution, federal statutes, regulations

and directives, and case law.   Leonard, 63 M.J. at 399

(citations omitted); see also Downing, 56 M.J. at 421 (finding

that “[a]s a matter of due process, an accused has a

constitutional right, as well as a regulatory right, to a fair




                                15
United States v. Terry, No. 06-0314/AF

and impartial court-martial panel”) (citation and quotation

marks omitted).

     A military judge’s determinations on the issue of member

bias, actual or implied, are based on the “totality of the

circumstances particular to [a] case.”    United States v. Strand,

59 M.J. 455, 456 (C.A.A.F. 2004).     Such determinations are

guided by this Court’s longstanding and often-stated holding

that challenges for cause are to be liberally granted.    Clay, __

M.J. at __ (7); United States v. Moreno, 63 M.J. 129, 134

(C.A.A.F. 2006); United States v. Miles, 58 M.J. 192, 194

(C.A.A.F. 2003); United States v. Youngblood, 47 M.J. 338, 341

(C.A.A.F. 1997);   United States v. White, 36 M.J. 284, 287

(C.M.A. 1993).

Actual and Implied Bias

     The requirement for impartiality necessitates inquiry into

both the actual bias and implied bias of potential members, with

each type of bias distinct and reviewed under a different

standard.   Youngblood, 47 M.J. at 341.

     “The test for actual bias is whether any bias ‘is such that

it will not yield to the evidence presented and the judge’s

instructions.’”    United States v. Napoleon, 46 M.J. 279, 283

(C.A.A.F. 1997) (citation omitted).    The existence of actual

bias is a question of fact, and we consequently provide the

military judge with significant latitude in determining whether


                                 16
United States v. Terry, No. 06-0314/AF

it is present in a prospective member.   United States v. Warden,

51 M.J. 78, 81 (C.A.A.F. 1999).    That the military judge, rather

than the reviewing court, has been physically present during

voir dire and watched the challenged member’s demeanor makes the

military judge specially situated in making this determination.

Id.   (noting that actual bias is viewed “subjectively, ‘through

the eyes of the military judge or the court members’” (quoting

Napoleon, 46 M.J. at 283)).

      In analyzing implied bias, however, appellate courts

provide less deference to the military judge.   Id.   Here, the

military judge’s privileged position at trial is less important

because the test for implied bias is objective, and asks

whether, in the eyes of the public, the challenged member’s

circumstances do injury to the “perception of appearance of

fairness in the military justice system.”   Moreno, 63 M.J. at

134 (citations omitted).    In considering this question, courts

also consider whether “most people in the same position would be

prejudiced [i.e. biased].”    Strand, 59 M.J. at 459 (citation and

quotation marks omitted).    Consequently, “‘issues of implied

bias are reviewed under a standard less deferential than abuse

of discretion but more deferential than de novo.’”    Id. at 458

(quoting Miles, 58 M.J. at 195).




                                  17
United States v. Terry, No. 06-0314/AF

Was There Actual Bias on the Part of Maj H or Capt A?

     In this case, Appellant claims that given Maj H’s and Capt

A’s experiences with the crime of rape, it “was asking too much

of them” to be truly impartial.    In her denial of the challenges

against both Maj H and Capt A, the military judge emphasized the

importance of the demeanor of each member in making her

decision.   Regarding Maj H, the military judge emphasized that

“having [had] the opportunity to personally observe” Maj H, she

was confident based on his “forthright and honest” answers that

he could be fair and impartial regardless of his wife’s history

with sexual abuse.

     The military judge made a similar finding regarding Capt A,

introducing her decision to deny the challenge by stressing that

“each decision [on challenges for cause] is being made on an

individual basis [based on my having] watch[ed] each individual

talk.”   “[After] watching [Capt A] answer the questions,” the

military judge believed “he was very sincere, very forthright”

and she did not see “a demeanor” that would impact his ability

to “be fair and impartial.”

     That the military judge unambiguously based her findings on

her personal examination of witness demeanor brings the decision

in line with this Court’s precedents.    We have held that “mere

declarations of impartiality [on behalf of potential members],

are not sufficient by themselves to insure legal propriety.”


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United States v. Terry, No. 06-0314/AF

United States v. Harris, 13 M.J. 288, 292 (C.M.A. 1982).

However, “[w]e . . . recognize that the military judge is in the

best position to judge the sincerity and truthfulness of the

challenged member’s responses on voir dire.”    Youngblood, 47

M.J. at 341 (citing United States v. Daulton, 45 M.J. 212, 217

(C.A.A.F. 1996)); see also, Miles, 58 M.J. at 194-95 (holding

that “a challenge for cause for actual bias . . . essentially

[requires a determination] . . . of credibility”).

     This Court has frequently addressed the specific concern

for the bias at issue here:    the potential for actual bias

stemming from a member’s exposure to a crime similar to the one

to be litigated before them.   In our analyses of actual bias

resulting from such contact we have been guided by two

principles.   First, the fact that a member was close to someone

who had been a victim of a similar crime is not grounds for per

se disqualification.   United States v. Velez, 48 M.J. 220, 223-

24 (C.A.A.F. 1998).    Likewise, “[m]ere distaste for certain

offenses is not automatically disqualifying.”    United States v.

Schlamer, 52 M.J. 80, 92 (C.A.A.F. 1999) (citing United States

v. Bannwarth, 36 M.J. 265, 268 (C.M.A. 1993)).

     Second, regardless of a member’s prior exposure to a crime,

it is often possible for a member to rehabilitate himself before

the military judge by honestly claiming that he would not be

biased.   Even in light of a member’s extensive exposure to the


                                 19
United States v. Terry, No. 06-0314/AF

same sort of crime that the member is being asked to adjudge at

court-martial, we have regularly found the absence of actual

bias when the military judge reported that following voir dire

she was satisfied with the honesty of the member and convinced

that the member was neither “inflexible” nor resistant to the

evidence or the military judge’s instructions.   See, e.g.,

United States v. Brown, 34 M.J. 105, 111 (C.M.A. 1992) (in a

case dealing with a sodomy charge, the military judge

appropriately denied the challenge against a member whose young

son had been the victim of a homosexual assault after

“evaluat[ing] and accept[ing] this prospective member’s . . .

disclaimer on the basis of a careful examination of this

person’s demeanor . . . .”).

     Despite this, and the fact that this Court has found

members lack bias in cases in which members have themselves been

victims of crimes, see, e.g., Daulton, 45 M.J. at 217; United

States v. Lavender, 46 M.J. 485, 489 (C.A.A.F. 1997); United

States v. Reichardt, 28 M.J. 113, 116 (C.M.A. 1989); United

States v. Porter, 17 M.J. 377, 379-80 (C.M.A. 1984), we have

found actual bias when members have been victims of similar,

particularly violent or traumatic crimes, or if other unique

circumstances pertained.

     For instance, in United States v. Smart, this Court held

that it was an abuse of discretion to deny a challenge for cause


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of a member sitting on an armed robbery case.     21 M.J. 15, 20

(C.M.A. 1985).   The member had been subjected to robbery at

knife-point on at least six occasions, and his father had been

robbed at gunpoint, the same crime for which the accused was

charged.   Id. at 17.   Despite the potential member’s assurances

to the military judge that he could be impartial, the distress

of his repeated robbery and his father’s assault led this Court

to “disagree that this assertion sufficed to permit his

inclusion on the panel.”   Id. at 20.

     In Miles, this Court found error in a case concerning

wrongful use of cocaine.   58 M.J. at 195.    In Miles, the

military judge erred when he denied a challenge of a member

whose nephew had died due to complications associated with his

mother’s prenatal use of cocaine.     Id.   It was not just the

member’s exposure to this misfortune that was determinative, but

that the trial counsel himself commented that the event had

evidently been traumatic for the member, and that the member had

recently written an article for the base newspaper -- due to be

published four days after the court-martial was to convene --

recounting his nephew’s story and admonishing readers not to use

drugs.   Id.

     Without similar exacerbating circumstances present in the

stories of either Maj H or Capt A, and in light of the military

judge’s assessment of the members’ demeanor and truthfulness


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during voir dire, we conclude the military judge did not err in

finding an absence of actual bias in both Maj H and Capt A.

“Their answers disclaimed any bias or partiality, and we do not

fault the military judge for finding that the members exhibited

no actual bias.”   Youngblood, 47 M.J. at 342.

Possible Implied Bias on the Part of Either Member

     There are a number of factors in Maj H’s situation that

tend to ameliorate his exposure to the crime, dispelling the

appearance of implied bias.   First, though an exact chronology

is not clear from the record, the crime against Maj H’s wife

took place at least ten, and perhaps as many as twenty years,

prior to the court-martial and, significantly, before Maj H even

knew his wife.   It was never reported to law enforcement, nor

was it cause for his wife to receive any counseling.    As a

couple they had spoken about the event only a few times, and the

subject had not been broached for at least five years.

     Further, Maj H’s mother-in-law remains married to the man

who assaulted his wife, and it appears some measure of intra-

family reconciliation has been made.   Maj H reports that his

wife and her stepfather participate in a dancing club together,

and shortly before the court-martial, Maj H’s wife, her mother,

and her stepfather had even traveled abroad together.

     Finally, taking the record of Maj H’s voir dire as a whole,

the military judge’s interpretation of Maj H’s initial


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United States v. Terry, No. 06-0314/AF

discomfort in speaking about his wife’s abuse was justifiably

described as emanating from his concern for his wife’s

reputation in the community, rather than any distress he

personally suffered due to his wife’s experiences.

     Capt A’s situation is different.    He reported that he knew

two people who were victims of rape.    The first was a woman who

he had “dated for a couple months . . . in college.”   Capt A

reported that he was not particularly close with the victim,

calling her “more of an acquaintance.”   She had been raped “well

previous” to their relationship, and had provided Capt A with no

details as to what happened.   Capt A had “no clue” about the

incident.   It appears the impact on Capt A of this rape is

attenuated, and we find no implied bias here.

     In contrast, the impact on Capt A of the rape of a

longstanding girlfriend is more significant, and that situation

“offers facts of clarity and consequence on both sides of the

implied bias equation.”   Strand, 59 M.J. at 459.

     On the one hand, the rape occurred more than seven years

before the court-martial and Capt A had not spoken with the

victim for more than six years.    Further, Capt A reported that

his lack of contact with the victim during this time was not

because of uneasiness with what had happened or because of some

particularly powerful lingering emotional attachment. Rather, it

was “out of respect for [his] wife,” that he did not “contact


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United States v. Terry, No. 06-0314/AF

any of [his] old girlfriends.”    Moreover, Capt A described his

relationship with the victim as “on and off” and at the time of

the rape the relationship was “off.”    Indeed, the victim was not

living in the same country as Capt A.

        On the other hand, in regards to this rape, Capt A --

unlike his minimal awareness of the rape of his other

girlfriend, or in apparent contrast to Maj H’s sparse knowledge

of his wife’s assault -- was familiar with the details of the

rape.    He was aware of exactly when the crime occurred, the

circumstances of who assaulted her, and how the rapist had

managed to gain access to her.    Further, Capt A was aware of

specific aggravating circumstances of the attack, such as the

fact that the rape was the victim’s first sexual experience,

that the victim had wished to save herself for marriage, and

that the rape resulted in a pregnancy and a child.

        Capt A’s connection to this victim and this crime appear

noteworthy and lasting even after their relationship ended.

When asked how he felt about the incident by the trial counsel,

Capt A expressed that he was incensed, and whether or not their

relationship was ongoing at the time of the incident, he was

angry that his “very close friend” had been hurt.    Though it is

not clear whether Capt A still harbored these feelings or was

merely recounting his past emotions to the court, it is likely

that given the strength of his relationship with the victim he


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United States v. Terry, No. 06-0314/AF

may well have maintained this resentment.    In fact, Capt A had

been close enough to the victim and her family to have been made

a part of her sister’s wedding party.    It was at the wedding

that Capt A informed the victim’s sister that he was going to

marry the victim “at some point.”     Finally, Capt A reported that

the rape was the reason that the victim broke up with him and

that following the assault the victim was wracked by feelings

that “she was unworthy” and she did not want to be with Capt A

“because of the incident.”   Despite this, they kept in close

contact through the birth of the victim’s son; indeed, Capt A

reported that they were so close that the victim named her son

after him.   Capt A “tried to stay in her life, but [the victim]

pushed [him and his] family away.”

     Though the military judge was correct in basing her finding

of a lack of actual bias on her impressions of Capt A’s demeanor

and statements during voir dire, the record does not reflect the

application of an objective implied bias test.     Indeed, there

was no indication that the military judge “intended to address

implied bias at all.”   Downing, 56 M.J. at 422.

     This Court recognizes that “[t]he military judge may well

have intellectually applied the . . . test.    However, the law is

clear in this area . . . .   We do not expect record

dissertations but, rather, a clear signal that the military

judge applied the right law.”   Id.


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United States v. Terry, No. 06-0314/AF

     Such an examination would have explicitly brought the

distinct features of Capt A’s situation to bear and would have

compelled the military judge to “squarely address the essential

question [of an implied bias analysis] -- was [she] satisfied

that an objective public observer would find [Capt A’s service

on the panel notwithstanding his acute involvement with the

crime of rape as] consonant with a fair and impartial system of

military justice?”   Id.

     As previously stated, a prior experience with or connection

to the crime in question is not per se disqualifying, as the

circumstances involving Maj H demonstrate.   However, the events

described by Capt A go well beyond the circumstances described

by Maj H.    We have no reason to doubt the military judge’s

determination that Capt A was capable of compartmenting his life

history and impartially hearing Appellant’s case.   However,

applying the liberal grant mandate and cognizant of case law

finding “implied bias ‘when most people in the same position

would be prejudiced,’” Wiesen, 56 M.J. at 174 (citations

omitted), we hold that the military judge erred in denying the

challenge for cause as to Capt A.

     Whatever Capt A’s individual character and emotional

capacity, we believe most people in Capt A’s circumstance would

be hard pressed with such a background to sit impartially in a

rape case.   The totality of circumstances in this case include


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United States v. Terry, No. 06-0314/AF

the circumstances in which Capt A’s relationship with his

longtime girlfriend ended, the suggestion that Capt A would

otherwise have married this girlfriend, and the subsequent

choice of the girlfriend to name the resulting child after Capt

A.   In such circumstances, it “was ‘asking too much’ of him and

the system” for Capt A to sit.∗    See Miles, 58 M.J. at 195

(citations omitted); Daulton, 45 M.J. at 218 (citation omitted).

                              DECISION

      The decision of the United States Air Force Court of

Criminal Appeals is reversed and the findings and sentence are

set aside.    The record of trial is returned to the Judge

Advocate General of the Air Force.     A rehearing may be

authorized.




∗
 “Although military or national security exigencies may create
personnel circumstances relevant to the liberal grant analysis,
there is no indication in the record that this was the reason
for the military judge’s denial of Appellant’s challenge for
cause.” Clay, __ M.J. at __ (11, n.2).

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