UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                          Before
                                YOB, KRAUSS, and BURTON
                                 Appellate Military Judges

                              UNITED STATES, Appellee
                                           v.
                             Sergeant DARRICK GARNER
                             United States Army, Appellant

                                      ARMY 20100684

                              Headquarters, V Corps
                Lieutenant Colonel Wendy P. Daknis, Military Judge
           Lieutenant Colonel Randolph Swansiger, Staff Judge Advocate


For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Richard E. Gorini, JA; Captain Matthew T. Grady, JA (on brief).
Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M. Jamison, JA; Major
Richard E. Gorini, JA; Captain James P. Curtin, JA (on reply brief).

For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Catherine L. Brantley,
JA; Captain Edward J. Whitford, JA (on brief).


                                      28 February 2013

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                                  MEMORANDUM OPINION
                                ------------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

YOB, Senior Judge:

       A panel of officer and enlisted members, sitting as a general court-martial,
convicted appellant, contrary to his pleas, of two specifications of rape of a child
under the age of twelve, and one specification of aggravated sexual contact with a
child, in violation of Article 120, Uniform Code of Military Justice, 10 U.S.C. §
920 (2006) [hereinafter UCMJ]. The panel sentenced appellant to confinement for
eighteen months and reduction to the grade of E-1. The convening authority
approved only so much of the adjudged sentence as provided for confinement for
seventeen months and twenty days and reduction to the grade of E-1.
GARNER -- ARMY 20100684

       This case is before this court for review under Article 66, UCMJ. We have
considered the record of trial, appellant’s sole assignment of error alleging the
military judge erred in denying a defense challenge for cause against a panel
member, written briefs submitted by the parties on this issue, and additional matters
personally raised by the appellant pursuant to United States v. Grostefon, 12 M.J.
431 (C.M.A. 1982).

      For the reasons set forth below, we find appellant’s assignment of error merits
discussion but no relief. We further find the matters raised by appellant, pursuant to
Grostefon, do not merit relief. However, the issue alleging an improper sentencing
argument by the trial counsel merits discussion as set forth below.

                             LAW AND DISCUSSION

                   Challenge for Cause Against a Panel Member

       During voir dire, one of the panel members, Chief Warrant Officer Two
(CW2) ET, indicated she knew appellant and had some prior knowledge of the facts
and events of the case. During individual voir dire, CW2 ET stated she was assigned
to the same unit as appellant, had known him for about two years, and only saw him
approximately once a week during work hours when she would take documents for
him to sign. She never saw appellant outside the work environment. Chief Warrant
Officer Two ET also said she was aware appellant formerly held the rank of Staff
Sergeant. She disavowed any knowledge of why he was reduced in rank, promised
not to hold this against appellant on findings or sentencing, and to not share this
information with the other panel members.

       Chief Warrant Officer Two ET indicated in voir dire that she heard rumors
from other soldiers in the unit that appellant returned early from downrange for
inappropriate behavior with his daughter but she could disregard any rumors she
heard and decide the case based on the evidence produced at trial. Defense counsel
asked no questions about the member’s knowledge of the demotion but did ask her to
expound on her prior knowledge of the case. In response, CW2 ET stated that on
one or two occasions she heard these rumors about appellant’s misconduct from
lower-enlisted soldiers.

        Chief Warrant Officer Two ET also stated, in response to the military judge’s
questions, she had previously been a panel member on a different case involving a
similar charge and circumstances but there was nothing in that case that would
prevent her from deciding appellant’s case based solely on the evidence presented at
his trial.

      At the conclusion of voir dire, defense counsel made a challenge for cause
against CW2 ET. The basis for this challenge was implied bias due to the member’s



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awareness that appellant had been reduced in rank, her prior knowledge of facts of
the case, and her service as a panel member on a similar case in the past.

       In her ruling, the military judge stated she “considered the challenge for cause
on the basis of both actual and implied bias and also considered the mandate to
liberally grant defense challenges.” In denying the challenge, the military judge
specifically found no actual or implied bias. The judge’s findings referenced the
answers CW2 ET gave to questions and her demeanor during voir dire indicating she
did not give the rumors she heard any credibility, she really didn’t know anything
specific about the case, and she could disregard anything she’d heard and decide this
case solely on the evidence. The military judge further noted the member was
adamant she would not hold appellant’s previous reduction in rank against him. The
judge further found the member’s prior experience as a panel member on a similar
case and her knowledge of rumors did not “lend to implied bias that someone on the
outside would not think was fair.”

       Actual bias is a question of fact to be decided by the trial judge on the basis
of the responses of the member and any other evidence presented at the court-
martial. The military judge is afforded great deference on an actual bias question,
greater deference than that afforded him on a question of implied bias. United
States v. Velez, 48 M.J. 220, 224 (C.A.A.F. 1998) (citing United States v. White, 36
M.J. 284, 287 (C.M.A. 1993)).

       In light of this standard, there is no basis for us to disturb the trial judge’s
finding that CW2 ET exhibited no actual bias. This judge was able to question the
member about possible bias, gauge her responses, and assess her demeanor and
sincerity. We conclude the trial judge did not abuse her discretion in denying the
challenge for cause on actual bias grounds.

       The test for implied bias is objective. Viewing the circumstances through the
eyes of the public and focusing on the perception or appearance of fairness in the
military justice system, we ask whether, despite a disclaimer of bias, most people in
the same position as the court member would be prejudiced. United States v.
Moreno, 63 M.J. 129, 134 (C.A.A.F. 2006) (citing United States v. Napolitano, 53
M.J. 162, 167 (C.A.A.F. 2000)); United States v. Warden, 51 M.J. 78, 81 (C.A.A.F.
1999). “We look to determine whether there is ‘too high a risk that the public will
perceive’ that the accused received less than a court composed of fair, impartial,
equal members.” Moreno 63 M.J. at 134 (citing United States v. Weisen, 56 M.J.
172, 176 (C.A.A.F. 2001)).

       The standard for reviewing rulings on challenges involving implied bias is
“less deferential than abuse of discretion, but more deferential than de novo review.”
Moreno, 63M.J. at 134 (citing United States v. Armstrong, 54 M.J. 51, 54 (C.A.A.F.
2004), United States v. Napoleon, 46 M.J. 279, 283 (C.A.A.F. 1997)). Where a



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military judge has addressed implied bias by applying the liberal grant mandate on
the record, that military judge will accordingly be granted “more deference on
review than one that does not.” United States v. Clay, 64 M.J. 274, 277 (C.A.A.F.
2007).

       We also conclude the trial judge did not err in refusing to grant the challenge
against this member on the basis of implied bias. The trial judge clearly articulated
her consideration of the liberal grant mandate in her rejection of the challenge on
implied bias grounds. Thus, we grant more deference to her decision than we would
if she had failed to articulate her consideration of this principle.

       During voir dire, CW2 ET was forthcoming about her limited prior knowledge
of appellant and the case. She pledged to not discuss appellant’s prior reduction in
rank with other panel members and not hold this against appellant in her decisions
on the findings and sentence. Chief Warrant Officer Two ET also committed to
disregard the rumors she might have heard and decide the case by considering only
the evidence presented at trial. Further, defense counsel did nothing in his voir dire
questioning to further develop an argument supporting a challenge for an implied
bias of CW2 ET. In fact, defense counsel’s questions during individual voir dire
highlighted CW2 ET only heard about appellant’s misconduct once or twice, and this
was in the form of vague rumors from junior enlisted soldiers as opposed to official
reports within the chain of command.

       In light of her assurances during voir dire, CW2 ET’s prior knowledge of
appellant’s apparent demotion and the allegations against him do not require excusal
of this member for implied bias. Nor does the fact that CW2 ET served on a prior
unrelated case invoke implied bias. We do not find that most people in CW2 ET’s
situation would be prejudiced by this prior knowledge. We do not believe that
members of the public would cast doubt on the fairness and impartiality of the panel
because CW2 ET was one of the members. Therefore, we conclude that under the
facts and circumstances of this case, the military judge did not err in denying the
challenge of this member for implied bias. For this reason we reject appellant’s
allegation of error on this issue.

                               Improper Sentencing Argument

        In matters personally raised by appellant pursuant to Grostefon, he alleges the
trial counsel improperly commented on appellant’s right to remain silent in his
sentencing argument. Specifically, appellant claims it was error for trial counsel to
have argued appellant had no rehabilitative potential because, “he has refused to say
anything; [h]e’s refused to apologize.” The trial counsel made this sentencing
argument at the conclusion of a trial during which appellant never testified on the
merits and never testified or provided any unsworn statement during the sentencing
phase of his trial. In fact, appellant rested without presenting any evidence in his



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case-in-chief and again rested without presenting any evidence during the sentencing
phase of the trial. During its case-in-chief and sentencing case, the government
never presented any evidence that appellant failed to express remorse or made any
statements that would be inconsistent with remorse.

       In cases such as this one, where defense counsel fails to make a timely
objection to the trial counsel’s sentencing argument, raising the issue for the first
time on appeal, we will not find error unless we conclude that the argument
constituted plain error and materially prejudiced the rights of the accused. United
States v. Paxton, 64 M.J. 484, 487 (C.A.A.F. 2007) (citing United States v. Haney,
64 M.J. 101, 105 (C.A.A.F. 2006)).

       Given the failure of the government to lay any foundation at trial concerning
appellant’s lack of remorse, * we find trial counsel’s sentencing argument, to the
extent it claimed appellant refused to say anything and refused to apologize,
constituted error which was plain and obvious. Paxton, 64 M.J. at 487 (citing
United States v. Edwards, 35 M.J. 351, 355 (C.M.A. 1992)).

       We further consider the effect this error had on the sentence. After our
review of the record, we are convinced the sentence adjudged was appropriate in
relation to the affirmed findings of guilty and was no greater than that which would
have been imposed if the error had not been committed. United States v. Sales, 22
M.J. 305 (C.M.A. 1986). Therefore, no relief is warranted on this issue.

                                   CONCLUSION

       On consideration of the entire record, the assignment of error raised, and the
issues personally specified by appellant, pursuant to Grostefon, 12 M.J. 431, we hold
the findings and sentence as approved by the convening authority are correct in law
and fact. Moreover, the sentence as approved by the convening authority is
appropriate.




*
  “As a general rule, the predicate foundation is that an accused has either testified
or has made an unsworn statement, and has either expressed no remorse or his
expression of remorse can arguably be construed as being shallow, artificial or
contrived.” Other evidence in the record may also give rise to the inference that an
accused is not remorseful, but the inference may not be drawn from his decision not
to testify or from his pleas of not guilty. Edwards, 35 M.J. at 355.




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    Judge KRAUSS and Judge BURTON concur.


                               FOR THE COURT:




                               MALCOLM H.
                               MALCOLM     H. SQUIRES,
                                              SQUIRES, JR.
                                                       JR.
                               Clerk of Court
                               Clerk of Court




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