UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                        MULLIGAN, FEBBO, and SCHASBERGER
                              Appellate Military Judges

                            UNITED STATES, Appellee
                                         v.
                          Specialist CARL L. CAMPBELL
                           United States Army, Appellant

                                   ARMY 20160215

                        Headquarters, III Corps and Fort Hood
                         Rebecca K. Connally, Military Judge
              Lieutenant Colonel Travis L. Rogers, Staff Judge Advocate


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

For Appellee: Lieutenant Colonel Eric K. Stafford, JA; Major Virginia Tinsley, JA;
Captain Brian Jones, JA (on brief).


                                  20 November 2018
                               --------------------------------
                               SUMMARY DISPOSITION
                               --------------------------------

Per Curiam:

       At issue in this case is whether a military judge must sua sponte excuse a
panel member who does not unequivocally agree to apply the law, when neither the
defense nor the prosecution challenge that member. Appellant argues the military
judge abused her discretion when she did not remove a panel member who answered
equivocally to questions regarding whether he would follow the military judge’s
instructions. We find the military judge did not abuse her discretion. While she had
the authority to sua sponte excuse the panel member, she was not required to do so.

       A panel with enlisted members sitting as a general court-martial convicted
appellant, contrary to his pleas, of one specification each of making a false official
statement, sexual assault, and indecent viewing, in violation of Articles 107, 120,
and 120c, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 907, 920, and
920c. The panel sentenced appellant to a dishonorable discharge, confinement for
five years, and a reduction to the grade of E-1. The convening authority approved
CAMPBELL—ARMY 20160215

only four years and eight months of confinement but approved the remainer of the
sentence as adjudged. Appellant’s case is now before us under Article 66, UCMJ. 1

                                  BACKGROUND

                             A. Appellant’s Misconduct

        Appellant attended a barracks-room party on the floor where he lived. There,
appellant and Specialist (SPC) Chapman, spoke with Private (PV2) AV and other
soldiers. At the party, PV2 AV drank heavily and became highly intoxicated. She
slurred her speech and needed support to stand. She received help returning to her
room from another soldier who was her friend. The friend helped PV2 AV up the
stairs, helped her unlock her door, and helped her into her room. Private AV laid on
her bed fully clothed. As the friend left PV2 AV’s room, he passed SPC Chapman in
the common hallway. Specialist Chapman entered PV2 AV’s room, where he was
joined by appellant a few minutes later. Appellant and SPC Chapman had sexual
intercourse with PV2 AV, who had only sketchy memories of what transpired. She
remembered both soldiers having sex with her, moving her around, and placing her
on a rug on her floor. She woke up on her bed without her clothes. She filed a
restricted report of sexual assault and underwent a sexual assault forensic
examination. Later, she changed her report from restricted to unrestricted.

      When questioned by investigators, appellant initially denied going to PV2
AV’s room after the party. He later made a second statement to investigators
wherein he admitted going to her room and engaging in sex with PV2 AV, but he
claimed the sex was consensual. Appellant later testified that, although he did not
know PV2 AV well, he was “horny,” so he “decided to go up to her room to see if
she wanted to have sex.” Appellant testified he was surprised to see SPC Chapman
already there and having sex with PV2 AV, but claimed PV2 AV did not protest
when appellant also began engaging in sexual intercourse with her.

                            B. Appellant’s Court-Martial

      During group voir dire, the defense counsel asked questions about consuming
alcohol and consenting to sex. One panel member, Lieutenant Colonel (LTC) JD,
answered that having one drink of alcohol could render a person unable to consent to
sexual intercourse. When this response was further explored, he stated that he
thought it would depend on the person. After some discussion, LTC JD agreed that

1
  Appellant was convicted of sexual assault by performing sexual intercourse upon
Private (PV2) AV when he knew, or reasonably should have known, PV2 AV was
incapable of consent due to impairment by alcohol. Under Rule for Courts-Martial
917, the military judge acquitted appellant of conspiring with Specialist Chapman to
commit sexual assault. The panel acquitted appellant of three other specifications of
sexual assault and one specification of burglary.


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CAMPBELL—ARMY 20160215

he was “willing to apply the judge’s instructions to whatever [his] final
determination of the outcome of the case.”

       During individual voir dire, LTC JD again said he thought whether a person
could consent to sex after one drink would depend on the person and the drink. He
explained the size of the drink, type of drink, and the weight of the person would all
factor into whether a person could consent after drinking alcohol.

        During this colloquy, LTC JD was equivocal on whether he would apply the
military judge’s instructions. In response to the question, “you would be able to
listen to the judge’s instruction regarding consent—all of the judge’s
instructions[?],” LTC JD answered, “I think so, yes.” Later, in response to “my
question is can you listen to those instructions and apply them as [the military
judge] instructs you to do?” LTC JD answered “I think I can. I mean, unless we had
a disagreement. If she thinks that one drink means that you can’t consent no matter
what, then I would disagree because I think the size of the person, size of the drink,
all of those things are considered into consent or not. Does that make sense?”

      The military judge entered the discussion and in response to her questions
regarding whether he could follow her instructions LTC JD answered: “My answer is
maybe. It depends on the evidence presented.”

       At the close of voir dire, the military judge asked if either side had any
challenges. The government made one challenge for cause, and the defense
challenged three panel members for cause. Neither side challenged LTC JD. The
military judge asked again if there were any other challenges for cause. Neither side
had any. The military judge denied the government’s challenge for cause and the
government used its peremptory challenge against the same member. The military
judge granted appellant’s challenges against two panel members; after she denied
appellant’s challenge against a third member, the defense used its peremptory
challenge against that third member.

       Prior to starting the trial before the members, the military judge returned to
the issue of LTC JD. She asked whether she correctly understood that neither the
government nor defense were challenging him. Both the trial counsel and the
defense counsel agreed they did not want to challenge LTC JD.

                              LAW AND DISCUSSION

      Appellant alleges that the military judge abused her discretion by failing to
excuse LTC JD from the panel sua sponte.

      An accused has a right to an impartial and unbiased panel during his court-
martial. United States v. Mack, 41 M.J. 51, 54 (C.M.A. 1994). Both the UCMJ and
the Rules for Courts-Martial (R.C.M.) include provisions to ensure this right.


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CAMPBELL—ARMY 20160215

Article 25, UCMJ sets out the criteria for the convening authority to select best
qualified panel members. The R.C.M. establish procedures further refining what
members sit in any given case. This process begins with voir dire, wherein
information about the members is gathered by the prosecution, defense, and military
judge. R.C.M. 912(d). After voir dire, any party may challenge an unlimited
number of members for cause under R.C.M. 912(f)(1). A member may be excused
for cause for a variety of reasons, including the provision that a person “[s]hould not
sit as a member in the interest of having a court-martial free from substantial doubt
as to legality, fairness, and impartiality.” R.C.M. 912(f)(1)(N).

       The military judge “may, in the interest of justice, excuse a member against
whom a challenge for cause would lie.” R.C.M. 912(f)(4) (emphasis added). Our
superior court has recognized that the word “may” implies discretion, giving a
military judge the discretionary authority to, sua sponte, excuse a member against
whom a challenge for cause would lie. United States v. McFadden, 74 M.J. 87, 90
(C.A.A.F. 2015) (citations omitted). Put differently, a military judge may excuse a
panel member, against whom a challenge for cause would be granted, even if neither
party challenged that member. See United States v. Akbar, 74 M.J. 364, 395
(C.A.A.F. 2015).

       While a military judge has the authority to excuse a panel member sua sponte,
she “has no duty to do so.” See McFadden, 74 M.J. at 87; Akbar, 74 M.J. at 395.
Appellant has not provided any citation to authority which would suggest our higher
court’s holdings in McFadden and Akbar have been superseded or overruled in the
short time since their publication. We are bound by our superior court’s precedent.

       A military judge is certainly within her authority to sua sponte excuse a panel
member who does not unequivocally agree to be bound by the military judge’s
instructions. Our superior court has plainly stated, however, that a military judge
has no duty to do so. 2 Therefore, there can be no abuse of discretion as argued by
appellant. Further, in this case, the defense counsel plainly made a tactical decision
not to challenge LTC JD. Requiring a military judge to override the tactical



2
 The military judge was in the best position to assess whether she should exercise
her authority to sua sponte excuse LTC JD. A military judge is best equipped to
assess the demeanor and intonation of panel members during voir dire. These
nuances may be absent from the record we receive on appeal. In this case, LTC JD
did not refuse to follow the military judge’s instructions. Rather, in response to
follow-up questions, he explained it was hard for him to answer questions in the
abstract, and therefore answered equivocally. With the benefit of her live, in-person
observations, the military judge assessed LTC JD’s statements did not warrant sua
sponte excusal. No law requires a different result.



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CAMPBELL—ARMY 20160215

decisions of defense counsel would undermine the impartiality of the military judge,
and erode the fairness of the proceedings.

                                   CONCLUSION 3

      The findings and sentence are AFFIRMED.

                                        FORTHE
                                       FOR  THECOURT:
                                                COURT:




                                       MALCOLM
                                        MALCOLMH.    H.SQUIRES,
                                                        SQUIRES,JR.
                                                                 JR.
                                       Clerk
                                        ClerkofofCourt
                                                  Court




3
  On brief, appellant also argued his trial defense counsel were ineffective for failing
to introduce evidence of PV2 AV’s alleged motive to fabricate, and evidence to
show PV2 AV’s injuries could have been caused by sexual activity with another
individual. We have considered appellant’s arguments and disagree. Appellant
essentially alleges PV2 AV was motivated to fabricate allegations of sexual assault
because she did not want it known that she had sexual intercourse with two men at
the same time. We find this theory weak. It is a quintessentially tactical decision to
avoid raising such a weak argument. Further, the presentation of such evidence
simply would not have changed the result in appellant’s case. The claim appellant’s
counsel failed to offer evidence of an alternate source of PV2 AV’s sexual injuries is
even weaker. Appellant’s theory of defense was that he had consensual sex with
PV2 AV, not that he never had sex with PV2 AV.

Appellant further argued the military judge abused her discretion by issuing an
overly-broad curative instruction after appellant’s counsel elicited testimony
prohibited by Mil. R. Evid. 412. Appellant’s counsel elicited testimony that
appellant had seen PV2 AV drinking on other occasions. His counsel further elicited
that appellant believed PV2 AV previously had sex with another individual after
drinking. As this was directly contrary to a prior Mil. R. Evid. 412 ruling, the
military judge stopped the line of questioning and instructed the panel to disregard
appellant’s testimony about seeing PV2 AV drinking before. While we agree the
military judge’s instruction was too broad, we find the error was harmless.

Appellant submitted further matters pursuant to United States v. Grostefon, 12 M.J.
431 (C.M.A. 1982), which we have considered and find do not merit relief.


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