

   
   
   
   U.S. v. Warden



IN THE CASE OF
UNITED STATES, Appellee
v.
Brian T. WARDEN, Sergeant
U.S. Army, Appellant
 
No. 98-0237
Crim. App. No. 9502034
 
United States Court of Appeals for the Armed
Forces
Argued December 3, 1998
Decided July 21, 1999
GIERKE, J., delivered the opinion of the
Court, in which COX, C.J., and SULLIVAN, CRAWFORD, and EFFRON, JJ., joined.

Counsel
For Appellant: Frank J. Spinner (argued);
Captain
Dirk Gifford and Captain John C. Einstman (on brief).
For Appellee: Major Lyle D. Jentzer
(argued); Colonel Russell S. Estey and Lieutenant Colonel Eugene
R. Milhizer (on brief).
Military Judge: Richard J. Hough
 

THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION.
 

Judge GIERKE delivered the opinion of the
Court.
A general court-martial composed of officer
members convicted appellant, pursuant to his pleas, of three specifications
of aggravated assault by engaging in unprotected sexual intercourse, knowing
that he was infected with HIV, without informing his sexual partner of
his infection; and one specification of willful disobedience of a "safe-sex"
order, in violation of Articles 128 and 90, Uniform Code of Military Justice,
10 USC §§ 928 and 890, respectively. He was convicted, contrary
to his pleas, of one specification of aggravated assault by having unprotected
sexual intercourse and one specification of adultery, in violation of Articles
128 and 134, UCMJ, 10 USC §§ 928 and 934, respectively. The adjudged
and approved sentence provides for a dishonorable discharge, confinement
for 10 years, total forfeitures, and reduction to the lowest enlisted grade.
The Court of Criminal Appeals affirmed the findings and sentence without
opinion.
This Court granted review of the following
issue:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION
BY DENYING APPELLANTS CHALLENGE FOR CAUSE AGAINST THE PANEL PRESIDENT,
COLONEL SASSER, WHO EXPRESSED A FAVORABLE OPINION ON THE CREDIBILITY OF
A PROSECUTION WITNESS, CORPORAL SMITH, WHO HAD BEEN HIS PERSONAL SECRETARY.

For the reasons set out below, we affirm.

Factual Background
During general voir dire of the
court members, the members were not asked if they knew any of the witnesses
who would be testifying, and the witnesses were not identified at that
time. After several prosecution witnesses had testified, trial counsel
announced that the next witness would be Sonja Smith. Colonel (COL) Sasser,
the senior member of the panel, interjected by asking the military judge,
"May I submit this to you?" The military judge asked if it was a question
for a witness, and COL Sasser responded, "No, not for a witness; its about
procedure." He then informed the military judge that he had a question
"concerning my knowledge of a witness thats about to come in."
All the members except COL Sasser were excused,
and the following dialogue took place among COL Sasser, the military judge
(MJ), trial counsel (TC), and defense counsel (DC):

MJ: All right, sir, whats on your mind?
COL Sasser (MBR): Just that the witness thats
about to come in, his  if its who I think it is, you said Sonja Smith?
TC: Yes, sir. Its Corporal Smiths wife.
MBR: Corporal Smith worked directly for me
as my secretary in my headquarters previous to going to Korea. Therefore,
I know him and I know his wife. I want to make sure procedurally thats
not a problem with anything.
MJ: All right. Let me make sure Ive got this
straight. Corporal Smith worked for you, not his wife. Is that correct?
MBR: Thats correct.
MJ: And you met his wife apparently during
the course --
MBR: I have met her on more than one occasion,
only through him.
MJ: . . . Do you believe, sir, that you would
be able to scrutinize her testimony like the testimony of any other witness?
MBR: Certainly.
MJ: And you could question her testimony and
would you be willing to consider all the facts and circumstances that tended
to support or to refute what she had to say and make a determination as
to weight if any to give her testimony based on all the circumstances?
MBR: Yes, sir.
MJ: Do you feel that you would necessarily
be compelled to believe her any more than any other witness just because
of your knowledge of her as being the wife of a soldier who used to work
for you?
MBR: No, certainly not.
MJ: Counsel for either side, do you have any
questions you would like to ask Colonel Sasser concerning his 
TC: No, sir, but it may be that Corporal Smith
testifies also.
MJ: Well, I ask you the same questions concerning
Corporal Smith.
MBR: To answer honestly, Id have to say that,
obviously, I would have faith in what he said, yes.
MJ: Well, if you heard his testimony and you
believe that there is other evidence in the case, would you be willing
to consider the other evidence in weighing the credibility of Corporal
Smith?
MBR: I would consider all the evidence.
MJ: Okay. Could you consider other factors
such as the opportunity to observe an incident, to recall  - the opportunity
to recall all the other matters that would pertain to credibility. Could
you consider that in arriving at a determination as to how much weight
you would give his testimony?
MBR: Yes, sir.
MJ: All right. Are there further questions
by either counsel based on my questions?
TC: No, sir.
DC: Sir, you said you have faith in what he
would tell you?
MBR: What I meant was, he worked for me in
a trusted position and obviously, I had some trust in him as my personal
secretary, 71 Lima.
DC: So you had interactions with him everyday?
MBR: Everyday.
DC: So, you built up a trust for him?
MBR: Well, yes.
DC: Okay. And --
MBR: Confidence. I guess I would say just confidence
in him that if I told him to do something, he did it, or if he was supposed
to do something, that he would do it.
DC: Sir, if he were to testify here today,
would you have that same confidence in him?
MBR: Im sorry?
DC: That same confidence that you built up
during his work performance or his working with you, would you have that
same trust for him while he was on the stand?
MBR: I think I would, yes. I mean, I would
have some trust in what he says, yes.
DC: Sir, if Corporal Smith is up there testifying
and then we have another witness come up and testify to something that
is contrary to what Corporal Smith testified. Would you give Corporal Smiths
any more weight?
MBR: I would certainly try to listen to both
of them and make a judgment call on credibility, yes.
DC: But would you give his testimony any more
weight, sir, because of this confidence, because of this trust?
MBR: I would try not to.
DC: But deep down inside sir. Do you think
you would be able to?
MBR: I think I can, based on what Im hearing,
yes.
MJ: Okay. As I told you earlier, way earlier,
when we were going through our general voir dire, I told you that in weighing
and evaluating the testimony of witnesses, you are required to use the
same standard in evaluating the testimony of each witness and not on -
- not give more or less weight to the testimony of a particular witness
solely because of that witness position or status and that applied to
a witness such as Corporal Smith.
MBR: Yes, I understand, thats why I brought
it up. I wanted to make sure.
MJ: And the court appreciates that, sir, but
my understanding is, that you believe that you can evaluate his testimony
and scrutinize it?
MBR: As well as I could with anyone elses,
yes.
MJ: You wouldnt just automatically believe
it because he happens to be in the witness stand. Is that right?
MBR: Yes.

Defense counsel challenged COL Sasser for cause,
contending that he would not be able to properly evaluate Corporal (CPL)
Smiths testimony. The military judge denied the challenge.
During trial on the merits, appellant presented
an alibi defense. The victim, LKL, testified that appellant came to her
house between 10:15 and 10:30 p.m. on May 19, 1995, and that they had sexual
intercourse shortly thereafter. Appellant presented the testimony of three
witnesses, Linda Byes, William Byes, and Linda Taylor, who testified that
appellant was with them at a bowling alley until shortly after 11:00 p.m.
on May 19.
To rebut the alibi, the prosecution called
CPL Smith. He testified that Linda and William Byes left the bowling alley
between 8:00 and 8:30 p.m. CPL Smith testified that he left the bowling
alley at around 10:00 p.m., and that he did not see appellant. Because
appellant "was making his good-byes" earlier, CPL Smith presumed that appellant
"had already left." Defense counsel presented witnesses and suggested in
cross-examination and argument that CPL Smith disliked appellant and was
jealous of him. In closing argument, trial counsel argued that CPL Smiths
"integrity" and professionalism were critical issues for the prosecution.

Discussion
RCM 912(f)(1)(N), Manual for Courts-Martial,
United States (1995 ed.),*
provides: "A member shall be excused for cause whenever it appears that
the member . . . [s]hould not sit as a member in the interest of having
the court-martial free from substantial doubt as to legality, fairness,
and impartiality." RCM 912(f)(1)(N) encompasses "both actual bias and implied
bias." United States v. Rome, 47 MJ 467, 469 (1998). RCM 912(f)(3)
provides: "The burden of establishing that grounds for a challenge exist
is upon the party making the challenge." Military judges should be "liberal
in granting challenges for cause." Rome, supra at 469.
"The test for actual bias [in each case] 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 MJ
279, 283 (1997), quoting United States v. Reynolds, 23 MJ 292, 294
(CMA 1987). "[A]ctual bias is reviewed" subjectively, "through the eyes
of the military judge or the court members." Napoleon, supra
at 283, quoting United States v. Daulton, 45 MJ 212, 217 (1996).
Actual bias is a question of fact. Accordingly,
the military judge is given great deference on issues of actual bias, recognizing
that he or she "has observed the demeanor of the" challenged party. "[W]e
will not overturn the military judges" denial of a challenge unless there
is "a clear abuse of discretion in applying the liberal-grant mandate."
Napoleon,
supra at 283, quoting United States v. White, 36 MJ 284,
287 (CMA 1993).
On the other hand, implied bias is "viewed
through the eyes of the public." Napoleon, supra at 283.
"The focus is on the perception or appearance of fairness of the military
justice system." Id., quoting United States v. Dale, 42
MJ 384, 386 (1995). There is implied bias "when most people in the same
position would be prejudiced." Rome, supra at 469, quoting
Daulton,
supra at 217. We give the military judge less deference on questions
of implied bias. United States v. Youngblood, 47 MJ 338, 341 (1997).
On the other hand, we recognize that, when there is no actual bias, "implied
bias should be invoked rarely." Rome, supra at 469.
We hold that the military judge did not abuse
his discretion. There was no evidence of actual bias in this case.
See
United States v. Ai, 49 MJ 1, 5, (1998) (no actual or implied bias
based on prior working relationship between officer and enlisted member).
COL Sassers prior professional relationship with CPL Smith was not
disqualifying per se. See Napoleon,
supra
at 283. COL Sassers statement that he "would have faith" in what CPL Smith
said reflects no more confidence in his testimony than that of any other
witness who testified under oath. COL Sassers statement that he "had some
trust" in CPL Smith was further explained as "confidence" - "if I told
him to do something, he did it." In other words, CPL Smith followed orders
and performed his duty -- a trait expected of any soldier. The entire dialogue
with the military judge and counsel for both sides demonstrated that COL
Sasser was very concerned with being fair and that he was capable of weighing
the evidence objectively and following the military judges instructions.
Likewise, the record does not reasonablysuggest
implied bias. To the contrary, it reflects the appearance of fairness.
COL Sasser initiated the inquiry into his relationship with CPL Smith.
The significant difference between COL Sassers position as a senior officer
and CPL Smiths position as a junior enlisted soldier enhanced the perception
that the relationship between COL Sasser and CPL Smith was purely official
rather than personal. There is no evidence of a personal or confidential
relationship. The temporal gap between their prior professional relationship
and the time of trial attenuated any impact of the relationship. Most importantly,
COL Sasser's obvious candor, forthright responses, and obvious concern
about being fair greatly enhanced the perception that appellant received
a fair trial. See United States v. Ai, supra.

Decision
The decision of the United States Army
Court of Criminal Appeals is affirmed.
FOOTNOTE:
* This version was
in effect at the time of trial. The current version is unchanged.

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