                        UNITED STATES, Appellee

                                     v.

                        Glenn E. HURN, Corporal
                     U.S. Marine Corps, Appellant


                               No. 00-0301


                         Crim. App. No. 98-0200



       United States Court of Appeals for the Armed Forces

                         Decided April 23, 2003

                                  Counsel
For Appellant: Captain Curtis M. Allen, USMC (argued); Lieutenant
   Marcus N. Fulton, JAGC, USN.

For Appellee: Major Mark K. Jamison, USMC (argued); Colonel Mark
   W. Fisher Jr., USMC, and Lieutenant Commander Philip L.
   Sundel, JAGC, USNR (on brief); Colonel Rose M. Favors, USMC,
   Commander Robert B. Taishoff, JAGC, USN, and Lieutenant Ross
   W. Weiland, JAGC, USNR.
Amicus Curiae: Douglas K. Yatter (law student)(argued); Steven
   H. Goldblatt (director), Wendy M. Marantz (supervising
   attorney), and Hilary C. Kivitz (law student)(on brief) – For
   the Georgetown University Law Center.

Military Judge:    J. A. Bukauskas


  This opinion is subject to editorial correction before final publication.
United States v. Hurn, No. 00-0301/MC


PER CURIAM:

      After the United States Navy-Marine Corps Court of Criminal

Appeals affirmed the Appellant’s conviction and sentence1 (United
States v. Hurn, 52 M.J. 629 (N-M. Ct. Crim. App. 1999)), this

Court remanded the record for a factfinding hearing regarding the

prosecution’s reasons for exercising its peremptory challenge

against the only non-Caucasian officer on the court-martial

panel, Lieutenant Colonel (LtCol) Ayala.       United States v. Hurn,
55 M.J. 446 (C.A.A.F. 2001).        Having reviewed the record of the

factfinding hearing, we now affirm the decision below.

      At trial, the trial counsel had responded to the defense’s

Batson2 objection to the peremptory challenge by stating that he

exercised it “to protect the panel for quorum.”       Id. at 448.3

The military judge did not ask for an explanation why one of the

four Caucasian officers was not peremptorily challenged instead

of the one non-Caucasian officer.



1
  Appellant was convicted of multiple sexual offenses with a
child and larceny of a motor vehicle, and sentenced to a
dishonorable discharge, total forfeitures, confinement for life,
and reduction to the lowest enlisted grade.
2
  Batson v. Kentucky, 476 U.S. 79 (1986), prohibits peremptory
challenges based on race. This Court has adopted a per se
application of Batson, placing the burden on the challenging
party, upon timely objection, to provide a race-neutral
explanation for the challenge. United States v. Moore, 28 M.J.
366, 368 (C.M.A. 1989). The proffered reason for the challenge
may not be one “that is unreasonable, implausible, or that
otherwise makes no sense.” United States v. Tulloch, 47 M.J.
283, 287 (C.A.A.F. 1997).
3
  After challenges for cause, the panel consisted of five officer
and three enlisted members. By using a peremptory challenge
against an officer, the prosecution ensured that a peremptory
challenge of an enlisted member would not cause the panel to fall
below the minimum one-third enlisted membership.


                                        2
United States v. Hurn, No. 00-0301/MC


      Over two-and-a-half years after the trial, while this case

was before the Court of Criminal Appeals, the trial counsel

submitted an affidavit, stating that when he notified LtCol Ayala

of his selection for court-martial duty (in accordance with

R.C.M. 502(d)(5) discussion), LtCol Ayala expressed hope that he

would not be seated on the panel because he was extraordinarily

busy.   However, at the court-martial, LtCol Ayala responded in

the negative when the military judge asked if any member had a

personal or professional obligation that might cause the member

to be unable to devote full attention to the court-martial.

      The trial counsel’s affidavit also stated that he had known

LtCol Ayala professionally for about two years, respected him,

and considered him to be fair.          The trial counsel “decided to do

him a favor and challenge him off the panel so he could return to

his duties.”    Hurn, 55 M.J. at 448.       Finally, the trial counsel
stated that the military judge cut off discussion before he had

an opportunity to fully explain his reasons for challenging LtCol

Ayala on the record.      Id. at 449.
      This Court declined to resolve the Batson issue based on
trial counsel’s ex parte affidavit, for the following reasons:

(1) the affidavit appeared to differ from LtCol Ayala’s response

to the military judge’s inquiry, (2) the affidavit had not been

tested in an adversarial setting, (3) the defense counsel had not

had an opportunity to dispute the affidavit, and (4) there had

been no factual determination by the military judge that the

trial counsel’s explanation was credible and race neutral.         Thus,

this Court ordered further inquiry into the reasons for the trial

counsel’s peremptory challenge.


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United States v. Hurn, No. 00-0301/MC


       At the factfinding hearing, the trial counsel was summoned

as a witness, as required by this Court’s mandate.            At the

hearing, trial counsel testified consistently with the record of

trial and his earlier affidavit.            He testified that when LtCol

Ayala expressed concern about his “pressing workload,” he “gave

him the standard advice that [he] gave all prospective members

for the panel, that the general nominated him, that he would have

to appear.”    He informed LtCol Ayala that he could inform the

court about his workload concerns, but that he was still required

to appear at the first day of trial.            The trial counsel testified

that no other officer member had expressed concerns to him about

conflicting workload.      He testified that LtCol Ayala’s negative

response to the military judge’s inquiry did not appear to be

inconsistent with his own conversation with LtCol Ayala.            To the

contrary, it was consistent with the trial counsel’s

understanding of LtCol Ayala: “that if he had to work here at a

court-martial for 10 hours and then go back to his office for

four or five hours, that’s what Lieutenant Colonel Ayala would

do.”

       An affidavit from Colonel (then LtCol) Ayala was received in

evidence without objection from either side.            Colonel Ayala

explained his answer to the military judge’s inquiry about

conflicting obligations as follows:

            I do not remember clearly the judge’s questions and my
            responses during “voir dire,” but I remember feeling by
            then that although I had a lot on my plate, the
            Commanding General had selected me and in essence had
            ordered me to set aside those duties and do the court-
            martial.




                                        4
United States v. Hurn, No. 00-0301/MC


      The military judge made detailed findings of fact and

conclusions of law.      He specifically found that the trial

counsel’s explanation at trial, “although it was incomplete, is

not inconsistent with his fuller explanation at this hearing.”

He found the trial counsel to be “both credible and forthcoming.”

      The military judge found Colonel Ayala’s affidavit

consistent with the trial counsel’s testimony.      He “accept[ed] as

credible” Colonel Ayala’s explanation for his response to the

military judge’s inquiry regarding conflicting workloads.       He

concluded by finding:

            I find that [the trial counsel], in deciding on whom he
            would exercise his peremptory challenge, focused first
            on officers because of his concern regarding quorum,
            and then on Colonel Ayala because of the previous
            communication he had with Colonel Ayala regarding his
            schedule and desire not to be a member. I find this
            explanation to be race-neutral and specific,
            reasonable, and plausible, given all the circumstances
            of this case.

      The military judge’s determination that the trial counsel’s

peremptory challenge was race-neutral is entitled to “great

deference” and will not be overturned absent “clear error.”

United States v. Williams, 44 M.J. 482, 485 (C.A.A.F. 1996).         We
hold that the military judge’s ruling at the factfinding hearing

was not “clear error.”      Accordingly, the decision of the United

States Navy-Marine Corps Court of Criminal Appeals is affirmed.




                                        5
United States v. Hurn, No. 00-0301/MC


      CRAWFORD, Chief Judge (concurring in the result):

      I concur in the result.       This case is fact specific, thus

it is not inconsistent with our prior case law and federal

practice, which provide that “in the event . . . post-trial

proof becomes necessary to decide a Batson [v. Kentucky1] issue,

we [should] not rule out consideration of a clearly articulated

affidavit.”2    Where there is no challenge to the reason given or

to the party’s credibility, an affidavit,3 sidebar conference,4

or in camera procedure may be sufficient5 without ordering a

hearing pursuant to United States v. DuBay.6




1
  476 U.S. 79 (1986).
2
  United States v. Moore, 28 M.J. 366, 368 n. 7 (C.M.A. 1989).
3
  United States v. Davis, 809 F.2d 1194, 1202 (6th Cir. 1987); see also United
States v. Cox, 23 M.J. 808, 811 (N-M Ct. Crim. App. 1986)(prosecutor’s post-
trial affidavit met government’s burden under Batson v. Kentucky, 476 U.S. 79
(1986)).
4
  United States v. Romero-Reyna, 867 F.2d 834 (5th Cir. 1989).
5
  See, e.g., United States v. Tindle, 860 F.2d 125 (4th Cir. 1988).
6
  17 C.M.A. 147, 37 C.M.R. 411 (1967).
