          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                        UNITED STATES

                                                    v.

                          Staff Sergeant WILLIAM J. MATTHIS
                                  United States Air Force

                                             ACM 38312

                                           14 August 2014

         Sentence adjudged 14 December 2012 by GCM convened at Joint Base
         Charleston, South Carolina. Military Judge: Michael J. Coco.

         Approved Sentence: Bad-conduct discharge, confinement for 9 months,
         and reduction to E-3.

         Appellate Counsel for the Appellant: Captain Michael A. Schrama.

         Appellate Counsel for the United States: Lieutenant Colonel Katherine E.
         Oler; Lieutenant Colonel C. Taylor Smith; Captain Thomas J. Alford; and
         Gerald R. Bruce, Esquire.

                                                 Before

                             HECKER, SANTORO, and TELLER
                                 Appellate Military Judges

                                   OPINION OF THE COURT

                   This opinion is subject to editorial correction before final release.

SANTORO, Judge:

       A general court-martial composed of officer and enlisted members convicted the
appellant, contrary to his pleas, of one specification of assault consummated by a battery
for striking his 10-year-old stepson’s buttocks, legs, and back with a belt; three
specifications of assault consummated by a battery for striking and choking his wife,
pushing her into a wall, and grabbing her arm and pinning it between a door and door
frame; and one specification of service discrediting conduct for endangering the mental
health of his stepson, in violation of Articles 128 and 134, UCMJ, 10 U.S.C.
§§ 928, 934. He was acquitted of three additional specifications alleging assault
consummated by a battery upon that stepson and another stepson and of communicating a
threat to his wife. The adjudged and approved sentence consisted of a bad-conduct
discharge, confinement for 9 months, and reduction to E-3. Before us, the appellant
asserts: (1) his sentence is inappropriately severe, (2) the military judge erroneously
denied a challenge for cause, (3) his trial defense counsel were ineffective, and
(4) cumulative error calls into question the fairness of his trial.1 We disagree and affirm.

                                                     Background

       The appellant and his wife, CM, met and began dating in 2006, and they married
in 2007. CM brought with her into the relationship two sons and a daughter, who at the
time were ages 5, 4, and 1. At the time of trial in 2012, the children were ages 12, 11,
and 7.

       CM testified that the appellant was a “nice person” when the relationship began
but quickly became controlling and violent, and drank to excess. Although CM was the
children’s primary caregiver, the appellant was the disciplinarian. He would “ground”
the children for what CM perceived to be trivial reasons such as spilling things on the
floor. When grounded, the children were required to go to their rooms and be on the bed
for the duration of the punishment. The appellant spanked the children with his belt, also
for what CM believed were insignificant transgressions. Groundings were normally
accompanied by spankings with the belt. CM several times told the appellant that she felt
the groundings and belt spankings were both too harsh and ineffective. The appellant
told her he was not going to stop.

       During a family gathering, the appellant’s mother saw bruises on the children and
told the appellant to stop punishing them so harshly. On another occasion, after the
appellant had spanked one of the children, CM threatened to report him to his first
sergeant. According to CM, the appellant replied that she could do that if she wanted but
the military would take her children away from her and throw her out of base housing.

       IM was the middle child and had been diagnosed with Attention Deficit
Hyperactivity Disorder (ADHD). Although CM described IM as a “pretty good kid,” he
tended to be more impulsive and difficult to parent than the others. The appellant
repeatedly called IM stupid and a “retard” and punished him more harshly and more
frequently than the other children.

       One weekend in March 2012, IM was in his bedroom and called out to CM, saying
his legs were hurting. When she asked what he was talking about, IM said, “From daddy
spanking me.” CM saw welts on her son’s legs and decided then that she was going to
report the abuse. She took a photograph of the bruises and went to the appellant’s first
sergeant the next duty day.

1
    The third and fourth issues are raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).


                                                            2                                             ACM 38312
       CM and each of her three children testified at trial, as did law enforcement and
medical experts. The appellant was ultimately convicted of striking IM on his buttocks
and leg with his belt during the incident that precipitated the report to the first sergeant.
He was also convicted of striking CM’s head, choking her, pushing her into a wall, and
grabbing her arm and pinning it between a door and the door frame, during various
incidents occurring between 2008 and 2011. He was additionally convicted of
endangering the mental health of IM by screaming at him, calling him names, and
ordering that he be confined to bed for lengthy periods of time between 2010 and 2012.

                                 Sentence Appropriateness

        This Court reviews sentence appropriateness de novo. United States v. Lane,
64 M.J. 1, 2 (C.A.A.F. 2006); United States v. Baier, 60 M.J. 382, 383–84 (C.A.A.F.
2005). We “may affirm only such findings of guilty and the sentence or such part or
amount of the sentence, as [we find] correct in law and fact and determine[], on the basis
of the entire record, should be approved.” Article 66(c), UCMJ, 10 U.S.C. § 866(c). We
assess sentence appropriateness by considering the appellant, the nature and seriousness
of the offenses, the appellant’s record of service, and all matters contained in the record
of trial. United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982); United States v.
Bare, 63 M.J. 707, 714 (A.F. Ct. Crim. App. 2006), aff’d, 65 M.J. 35 (C.A.A.F. 2007).

       While we have a great deal of discretion in determining whether a particular
sentence is appropriate, we are not authorized to engage in exercises of clemency.
United States v. Lacy, 50 M.J. 286, 288 (C.A.A.F. 1999); United States v. Healy,
26 M.J. 394, 395–96 (C.M.A. 1988). Moreover, while we are required to examine
sentence disparities in closely related cases, we are not required to do so in other cases.
United States v. Christian, 63 M.J. 714, 717 (A.F. Ct. Crim. App. 2006) (citing
United States v. Wacha, 55 M.J. 266, 267–68 (C.A.A.F. 2001)).

       The maximum sentence which could be imposed for the appellant’s offenses was a
dishonorable discharge, confinement for 4 years and 6 months, and reduction to E-1. The
approved sentence of a bad-conduct discharge, confinement for 9 months, and reduction
to E-3 was clearly within the discretion of the convening authority. While the appellant
urges us to look at the strength of his military career, which we have done, we cannot
ignore the violent and repeated nature of his offenses—especially when committed
against those who looked to him for support and safety. Accordingly, we hold that the
approved sentence is not inappropriately severe for a noncommissioned officer who
physically abused his special-needs stepson and his wife on multiple occasions.




                                             3                                     ACM 38312
                                  Challenge for Cause

      Next, the appellant argues that the military judge erroneously denied a challenge
for cause against Lieutenant Colonel (Lt Col) MP, arguing that his answers about
corporal punishment in group and individual voir dire suggested both actual and implied
bias.

       Trial defense counsel asked the following question during group voir dire: “Does
anyone have a problem—people have different feelings about what corporal punishment
means. Does anyone have a problem with corporal punishment or a negative feeling
about it or think it should be outlawed if the parent uses a belt as the implement of
corporal punishment?” Several members, including Lt Col MP, responded in the
affirmative.

       During individual questioning, Lt Col MP and trial counsel engaged in the
following dialogue:

      STC:           Sir, I believe you also said that you believe that it should be
                     a crime to use a belt to punish a child.

      [LT COL MP]: No, I think the question wasn’t necessarily a crime but did I
                   have issue with it and I do. I think anything besides a hand,
                   me personally, I believe that’s too much but not necessarily
                   a crime by definition. I would have to read the definition of
                   what a crime is to make that assessment.

      STC:           If the military judge gave you an instruction as to what
                     constituted corporal punishment or what constituted a crime
                     in this case would you have any problem following that
                     instruction as given to you by the military judge?

      [LT COL MP]: None.

      STC:           If that definition allowed for the use of a belt as being a
                     non-criminal action would you have any problem following
                     the definition?

      [LT COL MP]: I would have no problem following the definition.

      STC:           Thank you, sir. Sir, did you also answer affirmatively that
                     you had a negative experience with corporal punishment?

      [LT COL MP]: I did not, not that I recall.


                                            4                                    ACM 38312
       STC:            Okay. Yes, sir, there were a lot of questions and I just
                       wanted to make sure I capture what you said correctly. It
                       must’ve been a negative feeling towards corporal
                       punishment. Is that possible?

       [LT COL MP]: No, only a negative feeling towards using anything besides
                    a hand to inflict that corporal punishment.

       Although given the opportunity, trial defense counsel did not further question
Lt Col MP on this issue.

       In denying the defense challenge for cause, the military judge stated:

       On the issue of the belt, [Lt Col MP] did state that he had an issue with
       using a belt, that he personally believed it was too much but he would have
       to read the definition to decide if it was a crime or not. He would have no
       problem following the definitions. Given his answers and the demeanor
       that I witnessed of him I have considered – I find no actual bias, I find no
       implied bias and even given the liberal grant mandate, as there is no bias,
       just because he personally does not believe in using a belt he does not
       automatically find it a crime and that challenge is denied.

       Rule for Court-Martial (R.C.M.) 912(f)(1)(N) provides that a member shall be
excused for cause whenever it appears that the member should not sit as a member in the
interest of having the court-martial free from substantial doubt as to legality, fairness, and
impartiality. This rule encompasses challenges based upon both actual and implied bias.
United States v. Elfayoumi, 66 M.J. 354, 356 (C.A.A.F. 2008) (citing United States v.
Clay, 64 M.J. 274, 276 (C.A.A.F. 2007)).

       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.” United States v. Terry, 64 M.J. 295,
302 (C.A.A.F. 2007) (quoting United States v. Napoleon, 46 M.J. 279, 283 (C.A.A.F.
1997)) (internal quotation marks omitted). Because the existence of actual bias is a
question of fact, we provide the military judge with significant latitude in determining
whether it is present in a prospective member. Id. (citing United States v. Warden,
51 M.J. 78, 81 (C.A.A.F. 1999)). Actual bias is reviewed “subjectively, through the eyes
of the military judge or the court members.” Warden, 51 M.J. at 81 (quoting Napoleon,
46 M.J. at 283) (internal quotation marks omitted). A challenge based on actual bias is
essentially one of credibility, and because the military judge has an opportunity to
observe the demeanor of court members and assess their credibility on voir dire, a
military judge’s ruling on actual bias is afforded deference. United States v. Briggs,



                                              5                                    ACM 38312
64 M.J. 285, 286 (C.A.A.F. 2007) (citing United States v. Daulton, 45 M.J. 212, 217
(C.A.A.F. 1996)).

        The test for assessing an R.C.M. 912(f)(1)(N) challenge for implied bias is
“objective, viewed through the eyes of the public, focusing on the appearance of
fairness.” United States v. Bagstad, 68 M.J. 460, 462 (C.A.A.F. 2010) (quoting Clay,
64 M.J. at 276) (internal quotation marks omitted). The hypothetical public is assumed to
be familiar with the military justice system. Id. (citing United States v. Downing,
56 M.J. 419, 423 (C.A.A.F. 2002)). We review issues of implied bias under a standard
less deferential than abuse of discretion, but more deferential than de novo. United States
v. Strand, 59 M.J. 455, 458 (C.A.A.F. 2004) (citing United States v. Miles, 58 M.J. 192,
195 (C.A.A.F. 2003)). “[M]ilitary judges must follow the liberal-grant mandate in ruling
on challenges for cause, but we will not overturn the military judge’s determination not to
grant a challenge except for a clear abuse of discretion in applying the liberal-grant
mandate.” United States v. White, 36 M.J. 284, 287 (C.M.A. 1993). “The liberal grant
mandate recognizes the unique nature of military courts-martial panels, particularly that
those bodies are detailed by convening authorities and that the accused has only one
peremptory challenge.” United States v. Moreno, 63 M.J. 129, 134 (C.A.A.F. 2006)
(citing United States v. James, 61 M.J. 132, 139 (C.A.A.F. 2005)).

       The military judge did not abuse his discretion in denying the challenge for cause
against Lt Col MP on the basis of actual bias. Lt Col MP stated that he could follow the
military judge’s instructions and the judge found that assertion to be credible. Likewise,
we discern no error in the military judge’s denial of the challenge on an implied bias
theory. The trial defense counsel’s question that triggered individual questioning was
actually three questions wrapped into one. The member’s initial affirmative response did
not indicate which of trial defense counsel’s three questions he was answering. During
individual questioning, Lt Col MP clarified that his personal limit on corporal
punishment was using a hand, but stated he had not concluded that use of a belt was a
crime and that he would follow the military judge’s instructions on the law. Even
applying the liberal grant mandate, we reject this assignment of error.

                             Ineffective Assistance of Counsel

        The appellant alleges that his trial defense counsel were ineffective by (1) failing
to call two witnesses whom he believed would offer negative testimony about his wife;
(2) not properly cross-examining another witness regarding the nature of the witness’s
relationship with the appellant’s wife; (3) failing to cross-examine his wife on the details
of her other relationships; (4) failing to highlight perceived lies during the testimony of a
witness; and (5) having lunch with trial counsel. We ordered the submission of affidavits
from both trial defense counsel. Having reviewed the appellant’s and counsel’s
affidavits, we conclude that we need not order additional fact-finding to resolve the
assigned error. See United States v. Ginn, 47 M.J. 236, 248 (C.A.A.F. 1997).


                                             6                                     ACM 38312
       We review claims of ineffective assistance of counsel de novo. United States v.
Tippit, 65 M.J. 69, 76 (C.A.A.F. 2007). To establish ineffective assistance of counsel,
“an appellant must demonstrate both (1) that his counsel’s performance was deficient,
and (2) that this deficiency resulted in prejudice.” United States v. Green, 68 M.J. 360,
361 (C.A.A.F. 2010) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). The
deficiency prong requires an appellant to show the performance of counsel fell below an
objective standard of reasonableness, according to the prevailing standards of the
profession. Strickland, 466 U.S. at 688. The prejudice prong requires a “reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. at 694.

       We have fully examined the appellant’s assertions and trial defense counsel’s
responses. The vast majority of the questions the appellant wishes his counsel had asked
at trial would have been irrelevant or impermissible under the Military Rules of
Evidence. While some of the appellant’s desired questioning would have been
permissible under the rules, his trial defense counsel pointed out that the appellant had no
proof of any alleged prior activities that could overcome the witnesses’ expected denials.
Similarly, in his affidavit before us, the appellant also offers no proof of these assertions.
We conclude that trial defense counsel had sound tactical reasons for each of the
decisions appellant challenges. This assignment of error is therefore without merit. See
United States v. Anderson, 55 M.J. 198, 202 (C.A.A.F. 2001) (observing that the Court
“will not second-guess the strategic or tactical decisions made at trial by defense
counsel”).

                                     Cumulative Error

       Finally, the appellant contends that even if none of his multiple assignments of
error entitle him to relief, he is nevertheless entitled to relief under the cumulative error
doctrine. We review such claims de novo. United States v. Pope, 69 M.J. 328, 335
(C.A.A.F. 2011). Under the cumulative error doctrine, “a number of errors, no one
perhaps sufficient to merit reversal, in combination necessitate the disapproval of a
finding.” Id. (quoting United States v. Banks, 36 M.J. 150, 170–71 (C.M.A. 1992)). As
we have found no merit in any of the appellant’s assigned errors, the cumulative error
doctrine provides the appellant with no basis for relief. See United States v. Gray,
51 M.J. 1, 61 (C.A.A.F. 1999) (“Assertions of error without merit are not sufficient to
invoke this doctrine.”).

                                         Conclusion

       The approved findings and sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of the appellant occurred. Articles 59(a)
and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c).


                                              7                                    ACM 38312
Accordingly, the approved findings and the sentence are

                                     AFFIRMED.



             FOR THE COURT


             STEVEN LUCAS
             Clerk of the Court




                                           8              ACM 38312
