United States v. Carns

OPINION OF THE COURT CARMICHAEL, Judge: Pursuant to his negotiated pleas, appellant was found guilty of making and uttering worthless checks (four specifications) totaling over $8,000.00 in violation of Article 123a, Uniform Code of Military Justice, 10 U.S.C. § 923a (1982). An officer and enlisted panel sentenced appellant to a dishonorable discharge, confinement for thirty months and forfeiture of $500.00 pay per month for thirty months. The convening authority, consistent with the pretrial agreement, reduced the term of confinement and forfeitures to twenty-four months and otherwise approved the sentence. Appellant alleges personally and through counsel that the military judge abused his discretion by denying two defense challenges for cause. We disagree. Prior to the beginning of individual vior dire, Lieutenant Colonel (LTC) G requested to make a statement out of the hearing of the other court members. Lieutenant Colonel G revealed that, in his official capacity, he had come across appellant’s name in a case regarding civilian misconduct. Lieutenant Colonel G stated that appellant had apparently rented a television and YCR using his military identification (ID) card and had later given these items to a civilian couple. Such conduct by appellant was an abuse of his ID card privileges. Lieutenant Colonel G had not come into contact with appellant, but was familiar with the facts of the alleged incident. In addition, as the Director of Personnel and Community Activities (DPCA), LTC G took a personal as well as a professional interest in trying to reduce the number of bad checks that were written, emphasizing the need to educate soldiers regarding proper banking procedures.1 In response to questioning by the military judge, LTC G said he felt he could make a determination regarding sentence based solely upon the evidence admitted before the court. Another court member, Master Sergeant (MSG) C, in his capacity as the noncommissioned officer (NGO) in charge of the Finance Office, supervised the section responsible for securing reimbursement from soldiers who uttered bad checks to the Army and Air Force Exchange Service. Additionally, he had a working relationship with Major (MAJ) G, Commander of the 59th Finance Support Unit, who endorsed his enlisted evaluation reports. Major G was going to be called as a government witness to testify regarding the passing on of costs when bad checks could not be collected. Master Sergeant C stated that he felt no qualms about disagreeing with MAJ G and firmly believed that MAJ G would not hold any differences of opinion against him. [822] Defense counsel challenged LTC G for cause on the grounds of his knowledge of appellant’s uncharged misconduct and his personal interest in bad check cases. Defense counsel also challenged MSG C due to his expertise in the area of bad check collections and his duty relationship with MAJ G, the witness to be called by the government. In denying the challenges, the military judge noted LTC G’s demeanor and candor in voluntarily disclosing his personal knowledge, the lack of any subjective cues by MSG C indicating that he would be other than objective regarding MAJ G’s testimony, and the technical nature of MAJ G’s probable testimony. Defense counsel peremptorily struck MSG C without stating that any other member would have been stricken in the wake of the military judge’s denials of the challenges for cause.2 Military judges should be liberal in granting challenges for cause. United States v. Reynolds, 23 M.J. 292 (C.M.A.1987); United States v. Smart, 21 M.J. 15, 21 (C.M.A.1985); United States v. Moyar, 24 M.J. 635, 638-39 (A.C.M.R.1987). This mandate does not and should not require all such challenges be granted. In the case sub judice, the military judge had ample opportunity to observe both LTC G and MSG C; moreover, he asked both of them questions regarding the areas of sensitivity brought out in voir dire to determine whether there was any risk of prejudice to appellant, and he explained with specificity the rationale for his denial of both challenges. I find no abuse of discretion in the military judge’s denial of the defense challenges for cause.3 See United States v. Smith, 25 M.J. 785, 787-88 (A.C.M.R.1988). Accordingly, the findings of guilty and the sentence are affirmed. Footnotes [1] Lieutenant Colonel G stated he thought it was "very important that [soldiers] receive training on how to write checks and maintain their checkbooks and things of that nature,” and he "certainly" could understand how some soldiers got into trouble when using personal checking accounts. These statements, rather than indicating a predilection on the part of LTC G to impose a harsh sentence because appellant uttered worthless checks, appear to indicate just the opposite. [2] Technically speaking, defense counsel’s phrasing of her peremptory challenge may not have been sufficient to preserve the issue under Manual for Courts-Martial, United States, 1984, Rule for Courts-Martial 912(f)(4). In this instance, however, I am persuaded by Senior Judge Thornock's eminently sensible analysis that waiver does not apply (see Thornock, S.J., concurring in part and dissenting in part, infra). [3] "Although military judges have broad discretion in passing on challenges, they must exercise that discretion ever mindful of ‘the mandate for liberality’ ..., which results in a lower ‘threshold for clear abuse of discretion in denying a challenge.’” Smith, 25 M.J. at 785, 787 (citations omitted).