UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before
BROOKHART, SCHASBERGER, and LEVIN
Appellate Military Judges

UNITED STATES, Appellee
v.
Specialist NICHOLAS J. WRIGHT
United States Army, Appellant

ARMY 20170486

Headquarters, Fort Campbell
Matthew A. Calarco and John Bergen, Military Judges
Colonel Andras M. Marton, Staff Judge Advocate

For Appellant: Lieutenant Colonel Tiffany D. Pond, JA; Major Todd W. Simpson,
JA; Captain Zachary A. Gray, JA (on brief).

For Appellee: Colonel Steven P. Haight, JA; Lieutenant Colonel Wayne H.
Williams, JA; Major Sandra L. Ahinga, JA (on brief).

9 August 2019

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.
LEVIN, Judge:

An enlisted panel sitting as a general court-martial convicted appellant,
contrary to his pleas, of two specifications of attempted abusive sexual contact, one
specification of abusive sexual contact, and one specification of wrongful underage
consumption of alcohol in violation of Tennessee law, in violation of Articles 80,
120, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 880, 920, and 934
[UCMJ]. The panel sentenced appellant to be discharged from the service with a
bad-conduct discharge, to perform hard labor without confinement for twenty-one
days, and to be reduced to the grade of E-1. The convening authority approved the
findings and sentence as adjudged.

This case comes before us for review under Article 66, UCMJ. Appellant
raises three assignments of error, one of which merits discussion and relief. Because
we conclude the military judge abused his discretion when he denied the challenge
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for cause against Lieutenant Colonel (LTC) CB for actual bias, we need not address
the remaining assignments of error, nor the matters personally raised by appellant.
For the reasons that follow, we set aside the findings and sentence and authorize a
rehearing.

BACKGROUND

During the preliminary voir dire of the members, the trial defense counsel
asked the following question: “Do you think it’s possible for a person to be mistaken
as to whether somebody consents to sexual activity?” All of the panel members
answered in the negative. In an effort to clarify the aforementioned question and the
members’ responses, and to follow-up on other matters raised during the general voir
dire, the military judge and the parties conducted individual voir dire with all of the
members, including the president of the panel, LTC CB.! The following colloquy
occurred:

MJ: So the question asked earlier was, ‘Do you think that
it is possible for a person to be mistaken as to whether
someone consented to sexual activity?’ If your answer to
that is ‘no,’ then I don’t think you can consider the
defense. So, given what I’ve told you, do you think it is
possible for a person to be mistaken as to whether
someone consents to sexual activity?

LTC CB: No.

MJ: You don’t think that’s possible?

LTC CB: No.

MJ: Why not, sir?

LTC CB: I think that there needs to be an agreement or a
reply or some kind of acknowledgement of consent; a
response for the person to verify that there is consent. If

there’s no response, then I don’t think there is a mistake.
If that makes sense, I guess.

 

! After the parties realized that they had neglected to clarify LTC CB’s answer about
the mistake of fact defense during his initial individual voir dire, LTC CB was
recalled and asked specific questions about the potential defense.
WRIGHT—ARMY 20170486

MJ: So what you are saying is, you would look for
evidence to determine whether or not something would
have specifically led the accused to believe that the victim
was consenting?

LTC CB: Yes, sir. I would say that if there’s no
response, then there’s no consent. So if the victim [sic]
thinks that the other person is consenting without a
response, then I don’t see how a normal person could
make that judgment, right? There’s no feedback. There’s
no mechanism for him to make a deliberate decision, so.

MJ: Is this assuming that somebody has already said no?
Are you assuming that in your answer?

LTC CB: I guess I’m going to the point that if -- there has
to be some acknowledgment of consent, I would think.

MJ: Does the acknowledgment have to be verbal or can it
be by words and actions or by actions?

LTC CB: I think it could be both. But there has to be
some kind of verbal or non-verbal signature or action.

MJ: Okay. So from what I am hearing then, if there was
some evidence that there was some non-verbal action on
the part of the alleged victims and the accused could have
reasonably relied upon that non-verbal action to take that
as a point of consent to go further, you would consider
that in making your determinations?

LTC CB: I don’t know. I guess I am relying that if there
is consent, there has to be some kind of action or signature
that would allow both people to acknowledge that, and if
there’s not, then I would say that there’s not consent.

MJ: So if somebody, in some way -- if somebody did not
respond by pushing somebody away or by saying no, at
that -- then you could consider that as possibly leading to
a mistaken belief as to consent?

LTC CB: Okay. Maybe.
WRIGHT—ARMY 20170486

The military judge then proceeded to read the entire mistake of fact
instruction to LTC CB and continued his questioning:

MJ: I’m asking you, can you consider the possibility that
someone might be mistaken as to consent and apply the
instruction I just gave you.

After substantial hesitation, LTC CB responded, “Okay.”” The military judge
then asked, “You could do that?” Again, LTC CB hesitated and eventually
responded, “Yes.”?

Trial defense counsel attempted to exercise a challenge for cause to remove
LTC CB, based on both actual and implied bias, because LTC CB had articulated a
“standard that has come to be known in some circles as affirmative consent, where
he wanted an affirmative expression of consent from the accuser in order to establish
the consent existed. He continually used the term ‘signature.’ A signature action, in
order to manifest consent.” Trial counsel objected, and the military judge denied the
challenge for cause, stating:

MJ: ... I’m judging my ruling based upon both
opportunities that [LTC CB] had to face me on individual
voir dire and I believe he was very candid in his
responses. I don’t think he should be punished for being
candid. I think that once read [sic] the instruction, he did,
in fact, raise his hand before I even finished the
instruction, indicating that he understood now that it’s an
instruction that he has to follow. I specifically remember
him doing that, raising his hand before I even finished,
you know, that he would yes in the affirmative, follow that
instruction, and that he affirmatively does believe that
there is a possibility of mistake.*

 

? Trial defense counsel described the hesitation on the record. That description was
not rebutted.

3 See n.3.

4 The record is silent as to the basis for the military judge’s interpretation of LTC
CB’s raised hand. Moreover, this interpretation appears to be at odds with the
substantial hesitation between the military judge’s last two questions and LTC CB’s
answers.
WRIGHT—ARMY 20170486
LAW AND DISCUSSION

An accused enjoys the right to an impartial and unbiased panel. United States
v. Mack, 41 M.J. 51, 54 (C.M.A. 1994). This right is provided in the military justice
system by “the Constitution, federal statutes, regulations and directives, and case
law.” United States v. Terry, 64 M.J. 295, 301 (C.A.A. F. 2007) (citations omitted).
Impartial court-members “are a sine qua non for a fair court-martial.” United States
v. Wiesen, 56 M.J. 712, 174 (C.A.A.F. 2001) (citation 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.’” Jd. at 302 (quoting United
States v. Strand, 59 M.J. 455, 456 (C.A.A.F. 2004)) (brackets in original).

Actual bias and implied bias are “separate legal tests, not separate grounds for
a challenge.” United States v. Armstrong, 54 M.J. 51, 53 (C.A.A.F. 2000) (citations
omitted). More specifically, the right to an impartial and unbiased panel is upheld
through military judges’ determinations on the issues of actual bias, implied bias,
and the mandatory disqualifying grounds in the Rules for Courts—Martial (R.C.M.)
that preclude persons from serving on a panel. United States v. Nash, 71 M.J. 83, 88
(C.A.A.F. 2012).

Actual bias is personal bias which will not yield to the military judge’s
instructions and the evidence presented at trial. United States v. Reynolds, 23 M.J.
292, 294 (C.M.A. 1987). “Because a challenge based on actual bias involves
judgments regarding credibility, and because ‘the military judge has an opportunity
to observe the demeanor of court members and assess their credibility during voir
dire,’ a military judge’s ruling on actual bias is afforded great deference.” United
States v. Clay, 64 M.J. 274, 276 (C.A.A.F. 2007) (quoting United States v. Daulton,
45 M.J. 212, 217 (C.A.A.F. 1996)). “‘Great deference’ is not a separate standard.”
United States v. White, 36 M.J. 284, 287 (C.M.A. 1993). Rather, it is the
recognition that the legal question of actual bias rests heavily on the sincerity of an
individual’s statement that he or she can remain impartial, an issue approximating a
factual question on which the military judge is given greater latitude of judgment.
Nash, 71 M.J. at 88-89. The standard, however, remains an abuse of discretion.
United States v. Woods, 74 M.J. 238, 243 (C.A.A.F. 2015)

On six occasions, LTC CB was asked about the mistake of fact defense. The
trial defense counsel asked him once if a person could be mistaken as to whether
someone consents to sexual activity, and the military judge asked him twice. On all
three occasions, even after the military judge advised him that his answer meant that
LTC CB could not “consider the defense,” LTC CB answered in the negative. On
the fourth occasion, when provided with an example of a mistake of fact defense,
LTC CB indicated that “maybe” he could consider it.
WRIGHT—ARMY 20170486

The colloquy that resulted after the military judge read the mistake of fact
instruction was ineffectual. In response to hearing the instruction and being asked a
fifth time if he could consider the defense, LTC CB, after substantial hesitation,
answered “okay.” Finally, and only after being asked a leading question (“you could
do that?”), did LTC CB provide the predictable answer (“yes”), once again after
some hesitation.

While the military judge is in the best position to judge the demeanor of a
member, in certain contexts a mere declaration of a willingness to follow the
instructions may not be sufficient. See Nash, 71 M.J. at 89. This is such a case.
Here, the discussion that followed LTC CB’s negative responses did not relieve the
concern that LTC CB required some sort of affirmative expression of consent. His
substantial hesitation before answering “okay” and then a begrudging “yes” to a
leading question were inadequate to resolve the question of his personal bias.
Consequently, the military judge abused his discretion when he denied trial defense
counsel’s challenge for cause.

Because we find actual bias, we need not determine whether there was implied
bias that would have also warranted LTC CB’s excusal.

CONCLUSION
The findings and sentence are SET ASIDE and a rehearing is authorized.
Judge SCHASBERGER concurs.
Judge BROOKHART, concurring in result:

I concur in result, however, I would have found implied bias rather than
actual bias. In ruling on actual bias, the trial judge articulated his thought process
on the record. He did so by highlighting the significance of his first-hand
observations to that ruling. The considered process observed by the military judge
is entitled to great deference from this Court in recognition of his superior
perspective on critical matters such as sincerity, tone, and demeanor which do not
readily translate to the written record. United States v. Clay, 64 M.J. 274, 276-77
(C.A.A.F. 2007); see also, United States v. Terry, 64 M.J. 295, 302 (C.A.A.F. 2007);
United States v. Daulton, 45 M.J. 212, 217 (C.A.A.F. 1996). Honoring that
deference, I do not find sufficient evidence to conclude that the military judge
clearly abused his discretion in finding no actual bias.

Implied bias, on the other hand, stems from “historic concerns about the real
and perceived potential for command influence” in courts-martial. United States v.
Peters, 74 M.J. 31, 34 (C.A.A.F. 2015) (quoting Clay, 64 M.J. at 277). In analyzing
implied bias, the key question is whether “the risk that the public will perceive that
WRIGHT—ARMY 20170486

the accused received something less than a court of fair, impartial members is too
high.” United States v. Woods, 74 M.J. 238, 243-44 (C.A.A.F. 2015) (citation
omitted). Accordingly, in the military context, the test for implied bias is “one of
public perception.” Jd. at 243.

Implied bias is reviewed on the basis of a “totality of the circumstances.”
United States v. Rogers, 75 M.J. 270, 273 (C.A.A.F. 2016) (citation omitted). It
“exists when, regardless of an individual member’s disclaimer of bias, ‘most people
in the same position would be prejudiced [i.e., biased]’”. United States v. Strand, 59
M.J. 455, 459 (C.A.A.F. 2004). Moreover, “while it will often be possible to
‘rehabilitate’ a member on a possible question of actual bias, questions regarding the
appearance of fairness may nonetheless remain.” Woods, 74 M.J. at 243. Finally,
the liberal grant mandate obligates military judges “to err on the side of granting a
challenge” where the issue of implied bias results in a close call. Peters, 74 M.J. at
34.

In this case, while the military judge satisfied his concerns regarding LTC
CB’s actual bias, I am not convinced that under a totality of the circumstances the
public would be equally satisfied that the trial was fair. Accordingly, I find that it
was a clear abuse of discretion not to grant this challenge for implied bias under the
liberal grant mandate.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.
Clerk of Court
