

   
   
   
   U.S. v. Belflower



United States, Appellee
v.
Bruce A. BELFLOWER, Staff Sergeant
U.S. Air Force, Appellant
 
No. 98-5025
Crim. App. No. 32612
 
United States Court of Appeals for the Armed
Forces
Argued February 9, 1999
Decided May 19, 1999

CRAWFORD, J., delivered the opinion of the
Court, in which COX, C.J., and GIERKE and EFFRON, JJ., joined. SULLIVAN,
J., filed an opinion concurring in the result.

Counsel
For Appellant: Captain Stephen P. Kelly
(argued); Colonel
Douglas H. Kohrt (on brief); Captain
W. Craig Mullen.
For Appellee: Major Bryan T. Wheeler
(argued); Lieutenant
Colonel Anthony P. Dattilo, Major
Ronald A. Rodgers, and Captain Martin J. Hindel (on brief).
Military Judge: James A. Young, III
 
 


THIS OPINION IS SUBJECT TO
EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.


Judge CRAWFORD delivered the opinion of the
Court.
Pursuant to his pleas, appellant was convicted
of attempted sodomy, committing indecent acts with a child (3 specifications),
and soliciting indecent acts, in violation of Articles 80 and 134, Uniform
Code of Military Justice, 10 USC §§ 880 and 934, respectively.
The convening authority approved the sentence of a dishonorable discharge,
10 years confinement, and reduction to the lowest enlisted grade. The
Court of Criminal Appeals affirmed the findings and sentence but directed
administrative relief under United States v. Gorski, 47 MJ 370 (1997).
We granted review of the following issue:



WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION
IN REFUSING INDIVIDUAL VOIR DIRE OF CERTAIN COURT MEMBERS.



We hold that the judge did not abuse his discretion
in refusing to permit individual voir dire of certain court
members.

FACTS
Appellant requested a trial by officer members.
Judge Young conducted the general voir dire of the members,
and then counsel each asked several questions. The defense request to conduct
individual voir dire of four members -- Lieutenant Colonel
(LTC) Russi, Major (MAJ) Burry, Captain (CPT) Dougherty, and CPT Ali --
is at issue here.
During Judge Young's voir dire,
LTC Russi stated that he had a degree in criminology. The following dialogue
ensued:



MJ: Okay, have you ever worked in a position
--
MBR: (LTC Russi) With that degree I worked
for an entire summer in a department within the court house, which was
the drug program for about two years.
MJ: How long ago was that?
MBR: (LTC Russi) That was just through college.
The last time I worked there was probably about 1977 -- in that time frame.
MJ: I take it you understand that whatever
system of justice you were working in before -- is completely different
-- I don't know about completely different, but it's different from what
you have here, and you ought not to take any of the knowledge that you
learned there when you are dealing with this case today.
MBR: (LTC Russi) Yes.



Defense counsel did not ask any questions of LTC
Russi while the entire panel was present. However, he asked for individual
voir
dire, which was denied, as follows:



ADC: . . . I want to explore a little bit
further on what his training was in criminology. Obviously, since it has
been brought in court that he has a degree in it and he worked in the summer
program, we need to explore that. We don't want -- I'll leave it as that
for now.
MJ: Well, I think I amply covered that. Denied.
ADC: Your Honor, could I re-approach that?
Since
it's on the record now --
MJ: I asked him. You had the opportunity to
ask
him questions about that --
ADC: Well, Your Honor --
MJ: in court here. We will do individual voir
dire for anything that comes up during the trial that seems to be a
problem. Now, I want to know what is it about what [Lieutenant] Colonel
Russi said that you need to talk to him individually?
ADC: The problem is, Your Honor, now on the
record all the members know that he has training in criminology. Now, when
they go to deliberate we should be allowed to explore what that training
is to determine whether that might influence the rest of the members.
MJ: Now, I talked to him about it. Do you remember
me asking him a question about it?
ADC: Yes, Your Honor. You asked about his work
experience.
MJ: No, I didn't. I asked about his work experience,
but I also asked him about whether he realized -- that he would just decide
this case on what was presented in court today. You had no questions of
him whatsoever regarding this --
ADC: Your Honor -- sorry for cutting you off,
Your Honor. The reason we did not pose questions at that time, because
in the event that we would challenge him for cause and you would deny that
challenge, we wanted to use our peremptory some place else. We didn't want
to poison the rest of the jury with the experience he may or may not have.
He may have a course in criminal psychology in which he profiled sex offenders
and now --
MJ: And, how does knowing he had a course --
how does that influence any other member? We're talking about here during
voir
dire. How does the fact that he profiled sex offenders, if he did,
we're not saying he did, but, if he did, how does the knowledge that he
did, how does that have anything to do with contaminating these other court
members?
ADC: If he remains on the panel, Your Honor,
they may turn to him for expertise in that area.
MJ: And, what I'm saying is, you could have
asked the question, you didn't.



With regard to MAJ Burry, assistant defense counsel
conducted the following voir dire:



ADC: Major Burry, you've been an intensive
care nurse for seven years; is that correct?
MBR: (MAJ Burry) Yes.
ADC: As a nurse, in general, have you ever
come in contact with children suspected of being sexually abused or otherwise?
MBR: (MAJ Burry) No. Strictly adults.
ADC: Now, when you say adult, do you deal with
adults that have been abused?
MBR: (MAJ Burry) No. Strictly adult ICU.
ADC: Have you had any training in regards to
dealing with people who have been sexually abused?
MBR: (MAJ Burry) Not beyond the reporting.
ADC: Any education or experience -- were you
ever provided any training concerning cases of child sexual abuse?
MBR: (MAJ Burry) Not specific cases, more support.



The defense team requested individual voir
dire of MAJ Burry, "to get a little bit more of her education, precisely
what her training was in the area." Without explanation, the military judge
denied the request.
Although no questions were asked of either
CPT Dougherty or CPT Ali during group voir dire, the defense
sought to question each of them out of the presence of the other members.
The assistant defense counsel stated that he wished to explore the fact
that CPT Dougherty was apparently a single parent, the nature of his separation,
and "if the impact of that would be difficult for him." The military judge
stated that the defense team could have asked such questions during open
court and denied the request.
Regarding CPT Ali, the defense noted that he
was of Pakistani origin and wished to ask him about his religious beliefs.
The judge inquired as to the relevance of such questions, to which the
assistant defense counsel replied:



Well, under certain Arabic and those countries
he may think, for example, if you're a thief, you cut your hand off, and
that type of thing there. I want to make sure there is no conflict between
his beliefs, firm beliefs and his responsibility here today.



The military judge denied this request as well.
The defense argues here that the judges denial
of individual voir dire casts substantial doubt on the legality,
fairness, and impartiality of the proceedings. See RCM 912(f)(1)(N),
Manual for Courts-Martial, United States (1998 ed.).

DISCUSSION
The Sixth Amendment to the United States Constitution
provides that "the accused shall enjoy the right to a . . . trial, by an
impartial jury." In Duncan v. Louisiana, 391 U.S. 145, 155 (1968),
the Supreme Court observed that the "right to jury trial is granted to
criminal defendants in order to prevent oppression by the Government."
Voir
dire is a tool used to preserve this right. Morgan v. Illinois,
504 U.S. 719, 729 (1992).
Generally, the appellate courts will not find
an abuse of discretion when counsel is given an opportunity to explore
possible bias or partiality. United States v. Millar, 79 F.3d 338,
342 (2d Cir. 1996)(no abuse of discretion for allowing inquiry into religious
bias of potential jurors in trial of priest); see also United
States v. Bourgeois, 746 F.2d 401, 405 (8th Cir. 1984).
In United States v. Jefferson, 44 MJ 312, 320-21 (1996), this Court
intimated that the parties must show that individual voir dire
is necessary because certain areas could not be covered in group questioning.
We said, "It is within the judges discretion whether to allow individual
or group questions.... Counsel could have requested a session under Article
39(a), UCMJ, 10 USC § 839(a), or a sidebar to set forth the reasons
for individual voir dire and make it a matter of record.
He chose not to utilize these options." Id.
As to LTC Russi, Judge Young did not abuse
his discretion in refusing to allow counsels request for individual voir
dire. LTC Russi did have some professional training in the area of
criminology. However, he had not worked in the area of law enforcement
in the Air Force, and had only limited exposure to the profession some
20 years prior to this trial. That professional experience was in a field
-- substance abuse -- which would appear to be unrelated to the incidents
in this case. Most importantly, LTC Russi specifically stated that he understood
that whatever prior knowledge he might have gained from this education
would not influence him in this trial and that he could follow the instructions
of the military judge.
Similarly, the failure to allow counsel to
further question MAJ Burry was not an abuse of discretion because she had
been specifically asked about her training in the area of treating or dealing
with sexually abused children. She related that she had little training
beyond the necessity of reporting such matters, and further stated that
she dealt only with adults in an intensive care setting.
As to CPT Dougherty, there was also no abuse
of discretion. As the military judge noted, the questions which counsel
wished to ask could have been asked in group voir dire. There
appears to have been nothing inherent in those questions which would have
been likely to produce a response which would have poisoned the remainder
of the panel. Even if such a risk existed, it was within the discretion
of the trial judge to take that risk. See United States v. Williams,
44 MJ 482, 485 (1996).
With regard to CPT Ali, questions concerning
punishment that would clearly be in violation of the Eighth Amendment do
not involve such intimate details about a members personal life that he
or she would refuse to give the details or speak freely in front of the
other court members. Cf. Commonwealth v. Flebotte, 630 N.E.2d
265, 269-70 (Mass. 1994)(intimate details concerning potential juror being
a child victim of a rapist); State v. Moody, 486 A.2d 122, 125 (Me.
1984)(jurors personal exposure to child abuse). While it is true that
some courts in capital cases have permitted the exploration of religious
views during individual voir dire, see, e.g.,
Hovey
v. Superior Court of Alameda County, 616 P.2d 1301, 1354 (Cal. 1980),
other courts have not. See, e.g., Curry v. State,
336 S.E.2d 762, 765-66 (Ga. 1985); Smith v. State, 465 N.E.2d 1105,
1115 (Ind. 1984); State v. Brown, 337 S.E.2d 808, 819 (N.C. 1985).
A number of options were available to the defense
counsel: (1) Defense counsel could have asked more detailed questions during
group voir dire regarding the issues now raised on appeal;
(2) defense counsel could have asked the military
judge to reopen group voir dire; or (3) if he was concerned
about the limited value of group voir dire alone,
defense counsel could have requested an Article 39(a) session to call the
military judge's attention to specific matters, thus making a record for
appeal. In the absence of such actions, the sparse record we are presented
in this case provides no basis for reversal.
The decision of the United States Air Force
Court of Criminal Appeals is affirmed.
 
 
SULLIVAN, Judge (concurring in the result):
The majority makes no attempt to reconcile
its decision today with its decision in United States v. Jefferson,
44 MJ 312, 322 (1996). Instead, the majority forgoes the Jefferson
"further inquiry . . . on a critical issue" test for an abuse of discretion
standard focusing on defense counsels failure in this case to ask the
challenged questions as part of group voir dire. This is
the point I made with my dissent in Jefferson, supra at 323
("Defense inaction simply does not establish a judicial abuse of discretion.").
In this light, I agree that no error occurred with respect to LTC Russi,
CPT Dougherty, and CPT Ali.
As for MAJ Burry, I agree that the military
judge did not abuse his discretion in refusing to allow additional voir
dire of this member on her prior training.
Home
Page  |  Opinions

|  Daily
Journal   |  Public
Notice of Hearings

