                        UNITED STATES, Appellee

                                    v.

                  Eric J. LEONARD, Airman First Class
                       U.S. Air Force, Appellant

                              No. 05-0445

                         Crim. App. No. 35444

       United States Court of Appeals for the Armed Forces

                         Argued April 4, 2006

                        Decided August 9, 2006

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

                                 Counsel

For Appellant: Gary Myers, Esq. (argued); Lieutenant Colonel
Mark R. Strickland and Captain Anthony D. Ortiz (on brief);
Colonel Carlos L. McDade, Major Sandra K. Whittington, and Major
James M. Winner.

For Appellee: Major Michelle M. Lindo McCluer (argued);
Lieutenant Colonel Gary F. Spencer and Major Matthew Ward (on
brief); Lieutenant Colonel Michael E. Savage and Major John C.
Johnson.

Military Judge:    Thomas W. Pittman


       This opinion is subject to revision before final publication.
United States v. Leonard, No. 05-0445/AF


      Chief Judge GIERKE delivered the opinion of the Court.1

     A servicemember does not have a Sixth Amendment right to

trial by jury.2    However, “Congress has established the court-

martial as the institution to provide military justice to

service members.”3     Congress has also afforded every

servicemember the right to have a court-martial of panel members

for both a general and a special court-martial.4

      This Court has stated that the “cornerstone of the military

justice system” is the “right to members who are fair and

impartial.”5    Indeed, this right to fair and impartial members is

so important that the process of selecting a court-martial panel

enjoys protections under the Constitution,6 statute,7

regulations,8 and case law.9


1
  We heard oral argument in this case at the United States Air
Force Academy in Colorado Springs, Colorado, as part of the
Court’s “Project Outreach.” See United States v. Mahoney, 58
M.J. 346, 347 n.1 (C.A.A.F. 2003). This practice was developed
as part of a public awareness program to demonstrate the
operation of a federal court of appeals and the military justice
system.
2
  United States v. Kemp, 22 C.M.A. 152, 154, 46 C.M.R. 152, 154
(1973).
3
  United States v. Dowty, 60 M.J. 163, 169 (C.A.A.F. 2004).
4
  Articles 16, 25, and 41, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. §§ 816, 825, 841 (2000).
5
  Dowty, 60 M.J. at 169 (citing United States v. Roland, 50 M.J.
66, 68 (C.A.A.F. 1999); United States v. Hilow, 32 M.J. 439, 442
(C.M.A. 1991)).
6
  See U.S. Const., amend. V (Due Process Clause); U.S. Const.,
amend. XIV (Equal Protection Clause); Frontiero v. Richardson,
411 U.S. 677, 680 (1973) (concept of equal protection of the
laws applies to members of the armed forces through the Due
Process Clause of the Fifth Amendment); United States v.
Downing, 56 M.J. 419, 421 (C.A.A.F. 2002) (“As a matter of due

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United States v. Leonard, No. 05-0445/AF


        The present case requires this Court to address two issues

related to the member selection process.10    First, whether




process, an accused has a constitutional right, as well as a
regulatory right, to a fair and impartial panel.”) (quoting
United States v. Wiesen, 56 M.J. 172, 174 (C.A.A.F. 2001));
United States v. Santiago-Davila, 26 M.J. 380 (1988) (finding no
reason to exclude members of the armed forces from equal
protection analysis of Batson v. Kentucky, 476 U.S. 79, 91
(1986), which prohibits discriminatory use of peremptory
challenges in jury selection).
7
   Article 25(d)(2), UCMJ (providing for the convening authority
to select members who “are best qualified by reason of age,
education, training, experience, length of service, and judicial
temperament”).
8
   Rule for Court-Martial (R.C.M.) 502(a) (concerning
qualifications of court-martial members); R.C.M. 503(a)
(concerning procedures for the selection of members); R.C.M.
912) (addressing voir dire procedures and challenges to court
members).
9
   Wiesen, 56 M.J. at 174 (quoting United States v. Modesto, 43
M.J. 315, 318 (C.A.A.F. 1995) (“Impartial court-members are a
sine qua non for a fair court-martial.”); United States v.
Tulloch, 47 M.J. 283, 287 (C.A.A.F. 1997) (applying a different
standard for assessing the validity of trial counsel’s proffered
race-neutral explanation as required by the equal protection
analysis of Batson, 476 U.S. at 91); Dowty, 60 M.J. at 172
(finding error to inject into the panel selection process the
irrelevant variable of a servicemember volunteering to be a
member).
10
    This Court granted review on five issues. Because of our
disposition based solely on Issue I, we do not address the other
granted issues. The granted issues are:

   I.     IN LIGHT OF UNITED STATES V. MILES, 58 M.J. 192 (C.A.A.F.
          2003),
             A. WHETHER THE MILITARY JUDGE ERRED BY NOT GRANTING TWO
                DEFENSE CHALLENGES FOR CAUSE AGAINST A MEMBER WHOSE
                DAUGHTER HAD BEEN RAPED FIVE YEARS EARLIER AND A
                MEMBER WHO HAD FREQUENT INTERACTION WITH THE ALLEGED
                RAPE VICTIM;
             B. WHETHER IT IS APPROPRIATE TO APPLY WAIVER WHERE THE
                DEFENSE USED ITS PEREMPTORY CHALLENGE AGAINST ONE OF
                THE TWO MEMBERS CHALLENGED FOR CAUSE AND, DURING
                CLEMENCY, MADE IT CLEAR THAT IT WOULD HAVE USED THAT

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United States v. Leonard, No. 05-0445/AF


Appellant preserved any issue related to the denial of his

challenge in light of the waiver provision of R.C.M. 912(f)(4).

Second, if an appellate issue is preserved, whether the military

judge erred in denying a defense causal challenge based on

either actual or implied bias.

      We hold that Appellant waived review of the issue related

to the military judge’s denial of a causal challenge of one

member but preserved a similar issue as to another member.    Also

we hold that the military judge abused his discretion and

violated the liberal grant mandate as to a causal challenge and




              PEREMPTORY CHALLENGE ON THE OTHER CHALLENGED MEMBER
              BUT FOR THE MILITARY JUDGE’S ERROR;
           C. WHETHER – IF WAIVER APPLIES – TRIAL DEFENSE COUNSEL
              PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL BY NOT
              PROPERLY PRESERVING THE CHALLENGES FOR CAUSE.
   II. WHETHER THE MILITARY JUDGE ERRED BY APPLYING MRE 412 TO
        SUPPRESS DEFENSE EVIDENCE OF THE ALLEGED VICTIM’S MOTIVE
        TO LIE AND PRIOR SEXUAL BEHAVIOR WITH APPELLANT.
   III. WHETHER THE MILITARY JUDGE ERRED BY DENYING A DEFENSE
        MOTION TO SUPPRESS A WRITTEN CONFESSION TO THE AIR FORCE
        OFFICE OF SPECIAL INVESTIGATIONS (AFOSI) WHERE - PRIOR TO
        AN IMMINENT INTERROGATION – APPELLANT USED A THIRD PARTY
        TO INVOKE HIS RIGHTS TO REMAIN SILENT AND REQUEST
        COUNSEL.
   IV. WHETHER THE MILITARY JUDGE ERRED BY NOT PROVIDING THE
        MEMBERS A MISTAKE-OF-FACT INSTRUCTION WHERE SOME EVIDENCE
        RAISED THE AFFIRMATIVE DEFENSE BUT APPELLANT’S COUNSEL
        DID NOT RELY ON THAT THEORY.
   V.   WHETHER THE EVIDENCE IS LEGALLY SUFFICIENT TO CONVICT
        APPELLANT OF RAPE WHERE THE ALLEGED VICTIM CLAIMED TO
        SLEEP THROUGH THE ENTIRE INCIDENT EVEN THOUGH SHE WAS NOT
        DRUNK, DRUGGED, OR SUFFERING FROM A SLEEP DISORDER.

United States v. Leonard, 62 M.J. 387, 388 (C.A.A.F. 2005).



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United States v. Leonard, No. 05-0445/AF


improperly denied Appellant’s causal challenge of the second

panel member based on implied bias.

                            Factual Background

              A.   General Background of the Alleged Rape

       Appellant and a female servicemember, Airman First Class

(A1C) CH, engaged in a social evening of drinking with friends

and acquaintances at an on-base club.        Although Appellant and CH

knew each other, they were not close friends.        Appellant drank

heavily and became intoxicated.        CH had only one drink.

       Appellant asked CH to take care of him.       CH agreed and took

the intoxicated Appellant to her dorm room where they both fell

asleep on her bed.     That evening Appellant engaged in sexual

intercourse with CH.      The following day, CH accused Appellant of

raping her while she was sleeping.         Appellant was charged with

rape in violation of Article 120, UCMJ,11 and the case was

referred to a general court-martial.

                    B. Trial Developments Related to
                    Selection of the Two Panel Members

       As Appellant elected a court-martial consisting of officer

and enlisted members, the court-martial proceeded, through the

voir dire process, to screen the panel members and to identify

and provide the parties a fair and impartial panel.        During voir

dire, Lieutenant Colonel (LTC) D disclosed that his daughter had

been “raped by a friend of hers” while she was in high school.

11
     10 U.S.C. § 920 (2000).

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United States v. Leonard, No. 05-0445/AF


He stated that the incident occurred five years prior to this

court-martial.     He further explained that he and his wife had

urged their daughter to press charges but she had refused to do

so.   LTC D also stated that he was a neighbor of the staff judge

advocate involved in this case.

      Captain (CPT) P, a pilot, disclosed that he worked with CH

in the same unit.     CPT P stated that he and CH only exchanged

pleasantries in the hallway.       He also revealed that CH was

responsible for his flight equipment and was entrusted to pack

his parachute.     Over a period of six to twelve months, he would

bring his “professional flying gear,” that is, his flight helmet

or parachute, to her for servicing.        However, CPT P claimed that

he had not formed an opinion as to her credibility.

      After voir dire was complete, trial defense counsel

challenged LTC D for actual and implied bias.       Trial defense

counsel supported his challenge with the following argument:

      [O]ne can almost not envision a more traumatic
      psychological effect than having one of your children
      victimized of the same serious crime that Airman Leonard is
      accused of. What’s noteworthy here too, is he tried to get
      his daughter to pursue prosecuting that particular crime,
      and she didn’t want to. If I was in [Lieutenant] Colonel
      [D’s] position I don’t know how I would go home at the end
      of the day and never be able to tell my daughter that I sat
      on a rape case and acquitted the individual, and I don’t
      know that -– that anyone viewing this trial could possibly
      believe considering what Lieutenant Colonel [D] and his
      family have gone through that Airman Leonard is getting a
      fair trial.




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United States v. Leonard, No. 05-0445/AF


       As to CPT P, trial defense counsel challenged him based on

implied bias and made the following argument to support this

challenge:

       [CPT P] knows [CH], the victim in this case. He has
       contact with her on a weekly basis. Again, the mere fact
       that he knows her. They work together, he has contact with
       her, and that she is the critical witness in this case
       against Airman Leonard, we believe would raise eyebrows and
       would –- would cause a third party looking on this trial to
       wonder with a juror like that if Airman Leonard is getting
       the fair and impartial panel he’s entitled to, sir.

       The military judge denied both challenges.   As to LTC D,

the military judge explained that his ruling was based on the

fact that the rape of LTC D’s daughter occurred five years ago

and his view that the unemotional demeanor LTC D displayed in

discussing the matter demonstrated LTC D’s fairness.    Regarding

CPT P, the military judge opined that the interaction of the

member with the victim was infrequent, even as it related to

obtaining life-support gear, and that CPT P had not formed an

opinion as to the credibility of the victim.

       Trial defense counsel then used his sole peremptory

challenge to remove LTC D, but did not state that he would have

used his peremptory challenge against any other member or CPT

P.12    Appellant pleaded not guilty, and the trial proceeded on




12
     R.C.M. 912(f)(4).

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United States v. Leonard, No. 05-0445/AF


the merits.    The panel convicted Appellant of the rape offense

and sentenced him.13

                                 Discussion

      R.C.M. 912(f)(1)(N) provides that a member “[s]hould not

sit” where his service would raise “substantial doubt as to

[the] legality, fairness, and impartiality” of the proceedings.

“This rule includes challenges based on actual bias as well as

implied bias.”14    Recognizing the distinction between these two

concepts, this Court has stated:

      “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.’” Napoleon, 46 M.J. at 283, quoting United
      States v. Reynolds, 23 M.J. 292, 294 (CMA 1987). “While
      actual bias is reviewed through the eyes of the military
      judge or the court members, implied bias is reviewed under
      an objective standard, viewed through the eyes of the
      public.” Id., quoting Daulton [45 M.J. 212, 217 (C.A.A.F.
      1996]. The focus “is on the perception or appearance of
      fairness of the military justice system.” Dale, 42 M.J.
      [384, 386 (C.M.A. 1995)]. At the same time, this Court has
      suggested that the test for implied bias also carries with
      it an element of actual bias. Thus, there is implied bias
      when “most people in the same position would be
      prejudiced.” United States v. Armstrong, 54 M.J. 51, 53-54
      (2000), quoting United States v. Warden, 51 M.J. 78, 81
      (1999); United States v. Smart, 21 M.J. 15, 20 (CMA 1985).
      This Court has also determined that when there is no actual



13
   The court-martial convicted Appellant, contrary to his plea,
of one specification of rape in violation of Article 120, UCMJ.
The adjudged and approved sentence provides for a reduction to
E-1, forfeiture of all pay and allowances, confinement for two
years, and a dishonorable discharge from the service. The Court
of Criminal Appeals affirmed the findings and sentence. United
States v. Leonard, No. ACM 35444, 2005 CCA LEXIS 68, at *8, 2005
WL 486358, at *3 (A.F. Ct. Crim. App. Feb. 28, 2005).
14
   United States v. Youngblood, 47 M.J. 338, 341 (C.A.A.F. 1997).

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United States v. Leonard, No. 05-0445/AF


      bias, “implied bias should be invoked rarely.”    United
      States v. Rome, 47 M.J. 467, 469 (1998).15

      The two purposes of R.C.M. 912(f)(1)(N) are to protect the

actual fairness of the court-martial and to bolster the

appearance of fairness of the military justice system in the

eyes of the public.16

      To further serve these purposes, and in light of the one

peremptory challenge provided for in R.C.M. 912(g), this Court

has repeatedly emphasized the need for a military judge to

follow a “liberal grant” mandate in ruling on challenges for

cause.17   A military judge’s decision whether to grant a

challenge for cause based on actual bias is reviewed for an

abuse of discretion.18     This deferential standard exists because

“we recognize that he has observed the demeanor of the

participants in the voir dire and challenge process.”19     However,

we give a military judge less deference on questions of implied




15
   Wiesen, 56 M.J. at 174.
16
   United States v. Dale, 42 M.J. 384, 386 (C.A.A.F. 1995)(citing
R.C.M. 912(f)(1)(N)).
17
   Miles, 58 M.J. at 194; Wiesen, 56 M.J. at 174; Youngblood, 47
M.J. at 341; Dale, 42 M.J. at 386; United States v. Moreno, 63
M.J. 129, 134 (C.A.A.F. 2006).
18
   United States v. James, 61 M.J. 132, 138 (C.A.A.F. 2005).
19
   Youngblood, 47 M.J. at 341 (citing United States v. Lavender,
46 M.J. 485, 488 (C.A.A.F. 1997)); see also Miles, 58 M.J. at
194-95.



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United States v. Leonard, No. 05-0445/AF


bias.20     Implied bias is reviewed through the eyes of the

public.21

      Another important part of the challenge process of R.C.M.

912 is the specific procedure to preserve issues for appellate

review.     R.C.M. 912(f)(4) states:

      When a challenge for cause has been denied, failure by the
      challenging party to exercise a peremptory challenge
      against any member shall constitute waiver of further
      consideration of the challenge upon later review. However,
      when a challenge for cause is denied, a peremptory
      challenge by the challenging party against any member shall
      preserve the issue for later review, provided that when the
      member who was unsuccessfully challenged for cause is
      peremptorily challenged by the same party, that party must
      state that it would have exercised its peremptory challenge
      against another member if the challenge for cause had been
      granted.

      The analysis to R.C.M. 912(f)(4) explains that the

requirement of preserving the objection for the record is

“designed to prevent a ‘windfall’ to a party which had no intent

to exercise its peremptory challenge against any other member.”22

When the requirements of R.C.M. 912(f)(4) are met, this Court

will not apply waiver.

      Therefore, when counsel unsuccessfully challenges a member

for cause and then peremptorily challenges that member, the

issue is waived, unless counsel states on the record that the


20
   Youngblood, 47 M.J. at 341.
21
   Lavender, 46 M.J. at 488; United States v. Napoleon, 46 M.J.
279, 283 (C.A.A.F. 1997).
22
   Manual for Courts-Martial, United States, Analysis of the
Rules for Courts-Martial app. 21 at A21-61 (2005 ed.) (citing
United States v. Harris, 13 M.J. 288 (C.M.A. 1982)).

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United States v. Leonard, No. 05-0445/AF


peremptory challenge would have been used against another member

if the challenge for cause had been granted.23

      In the present case, trial defense counsel did not make

this mandatory statement on the record.       Because Appellant used

his sole peremptory challenge to remove LTC D from the panel,

and did not state on the record that the peremptory challenge

would have been exercised against another member if the

challenge for cause had been granted, any error as to LTC D was

waived.24   Accordingly, we will not address the merits of

petitioner’s claim that the military judge erred by not granting

the challenge as to LTC D.

      How the waiver provision of R.C.M. 912(f)(4) affects the

denial of the challenge for cause of CPT P requires its own

analysis.    As quoted above, R.C.M. 912(f)(4) provides, “However,

when a challenge for cause is denied, a peremptory challenge by

the challenging party against any member shall preserve the

issue for later review. . . .”        The requirement, to state on the

record that the objecting party would have exercised its

peremptory challenge against another member if the challenge for

cause had been granted, applies only when a member who was

unsuccessfully challenged for cause is peremptorily challenged

by the same party.     Therefore, the challenge against CPT P was


23
   See United States v Eby, 44 M.J. 425, 427 (C.A.A.F. 1996);
R.C.M. 912(f)(4).
24
   R.C.M. 912(f)(4).

                                     11
United States v. Leonard, No. 05-0445/AF


preserved for later review because the peremptory challenge was

used on someone other than CPT P.

      The Government’s position, that the issue is waived for

failure to state on the record that the challenge would have

been used elsewhere, is flawed.        The waiver provision could not

apply to CPT P, because Appellant used his single peremptory

challenge against LTC D and did not have an additional

peremptory challenge to use.       Trial defense counsel could not be

required to state that he would have used a nonexistent

peremptory challenge against another member.        Moreover, R.C.M.

912(f)(4) requires that “when a challenge for cause has been

denied, failure by the challenging party to exercise a

peremptory challenge against any member shall constitute waiver.

. . .”   Defense counsel used his peremptory challenge against

LTC D (“any member”), thus he preserved his challenge for cause

against CPT P.

      Therefore trial defense counsel preserved for appellate

review the issue relating to the military judge denying the

defense causal challenge to CPT P.         We now turn to the question

of whether the military judge abused his discretion in denying

the causal challenge to CPT P.

      Again, we note that this Court has enjoined military judges

to follow a liberal grant mandate in evaluating challenges for

cause because implied bias is reviewed under an objective



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United States v. Leonard, No. 05-0445/AF


standard,25 through the “eyes of the public” and “focusing on the

appearance of fairness.”26      Applying this standard, we hold that

the military judge abused his discretion and violated the

liberal grant mandate.27

       CPT P acknowledged that he had encountered CH at least once

a week.    Most importantly he revealed that her responsibilities

for his flying gear included packing his parachute and servicing

his pilot helmet.     This relationship must have been one of

trust.    In this acquaintance rape case where the credibility of

the alleged victim is the linchpin of the case, CPT P’s

significant relationship of trust with CH diminishes public

perception of a fair and impartial court-martial panel.       This

situation undermines the appearance of fairness in the military

justice system and, therefore, the military judge erred in

failing to follow the liberal grant mandate.

                                  Decision

       The decision of the United States Air Force Court of

Criminal Appeals is reversed.        The findings and sentence are set

aside and a rehearing is authorized.




25
     United States v. Daulton, 45 M.J. 212, 217 (C.A.A.F. 1996).
26
     United States v. Rome, 47 M.J. 467, 469 (C.A.A.F. 1998).
27
     See Miles, 58 M.J. at 195.

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