## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before MULLIGAN, HERRING, and BURTON Appellate Military Judges

UNITED STATES, Appellee

v. Private First Class ERICK A. MEDRANO United States Army, Appellant

ARMY 20140167

Headquarters, 2d In fantry Division Colonel Wendy Daknis , Military Judge Lieutenant Colonel Lance S. Hamilton, Staff Judge Advocate

For Appellant: Capt ain J. David Hammond, JA (arg ued); Lieutena nt Colonel Jonathan F. Potter, JA; Ma jor Christopher D. Coleman, JA; J. David Hammond (on brief and petition for new trial).

For Appellee: Captain Anne C. Hsieh, JA (argued); Major Dani el D. Derner, JA; Captain Anne C. Hsieh, JA (on brief); Major A.G. Cour ie III, JA; MAJ Steven J. Collins, JA; Captain Anne C. Hsieh, JA (on an swer to petition for new trial).

29 December 2016

-------------------------------------------------------------------------------------------- MEMORANDUM OPINION AND ACTION ON PETITION FOR NEW TRIAL

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This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

MULLIGAN, Senior Judge:

A panel composed of o fficer and enlisted member s convicted appellant, contrary to his plea s, of attempted voluntary mans laughter, damaging nonmilitary property, and drunk and disorderly conduct in violation of Articles 80, 109, and 134

Uniform Code of M ilitary Justice [herei nafter UCMJ], 10 U. S.C. §§ 880, 909 and 934 (2012). The pa nel sentenced appellan t to a bad-conduct di scharge, confinement for thirty months, forfeiture of all pay and allowances, an d reduction to the grade of

E-1.

This case comes before us both for review under Ar ticle 66, UCMJ, and as a petition for new trial und er Article 73, UCMJ and Ru le for Courts-MartialMEDRANO—ARMY 20140167

2 hereinafter R.C.M.] 1210. 1 Of appellant’s three assi gnments of error, and his personally assigned issues pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982), none me rit discussion or relief. Ap pellant’s petiti on for new trial warrants discussion, but no relief.

BACKGROUND

A. Private First Clas s Medrano’s Misconduct

In the early morning hours of 3 September 2013, appe llant returned to his barracks room on Camp Casey, Korea, after a night of drin king. Appellant called his wife and began to argue with her on the ph one. At this time, appellant’s roommate Private (PVT) JW, and their mutual frie nd, Private First Class (PFC) BM were watching television in the room. Appellant asked PVT JW to turn the television off, because his wife thought he was watching it instead of pa ying attention to the phone
conversation. Private JW lowere d the television’s volume, bu t he did not turn it off. Upset, appellant turned the television off and threatened to punch it if it was turned on again. Private JW turned the televi sion back on, and ap pellant pun ched and shattered the screen. Appella nt and PVT JW bega n arguing and star ted to wrestle. Private JW held appellant in a “rear naked choke” hold until appellant “tapped out.” Appellant then picked up a knife and stabbed PVT JW . Private JW threw the appellant onto the bed and ju mped on top of him. Appe llant continued to stab PVT
JW while on the bed until PFC BM interven ed. Private JW ran from the room and collapsed in the stairwell. Appellant st abbed PVT JW eleven times, resulting in multiple injuries, to include a punctured lung and punctured spleen. Private JW was hospitalized for nine days.

B. Private First Class Medran o’s Court-Martial Voir Dire

On 5 March 2014, ap pellant proceeded to a genera l court-martial composed of
officer and enlisted members. The court-ma rtial flyer listed the following charges: one specification of damaging non-military property; one specification of aggravated assault causing grievous bodil y harm; one specification of aggravated assault with a means likely to cause death or grievous bodily harm; one specif ication of drunk and disorderly conduct; a nd one specification of attempted murder.

First Sergeant RJ (1SG) sat as one of th e enlisted panel memb ers. At the time of PFC Medrano’s court-martial trial, 1SG RJ was not th e subject of any investigation or pend ing any criminal charges. Ap proximately eigh t months after appellant’s court-martial, 1SG RJ was charged with, among other things, multiple assaults against his es tranged wife that, with the exception of one, occurred prior to

1 The Court heard oral argum ent on the petition for a new trial at the George Washington University School of Law in Washington, DC.MEDRANO—ARMY 20140167

3 his service as a panel member. 2 The most recent allegati on of assault charged prior
to his service on the court- martial panel was No vember 2012, approximately sixteen months prior to appell ant’s court-martial.

At the beginning of voir di re the military judge aske d the prospect ive members to state “any matter which he or she believes may be a ground for challenge by
either side.” No matters were raised by the members. Th e military judge then asked the following questions:

MJ: Having seen the accused and having read the charges and specifications, does anyone feel that you cannot give
the accused a fair tr ial for any reason? [Negative Response from all panel members]

[. . .]

MJ: Has anyone or a ny member of your family, or anyone close to you personally ever b een the victim of an offense similar to any of those charged in this case? [Negative response from all members]

[. . .]

MJ: Is any member aware of any matter which might raise a substantial question concerning your participation in this
trial as a court member? [Negative response from all members]...

First Sergeant RJ answered the fo llowing questions affirmatively:

ATC: “[H]as anyone ever been in a fight?”

[. . .]

ADC: “Have you ever worked with victim s of assault in any capacity?”

[. . .]

2 On 19 March 2015, 1SG RJ pleaded guilty to three specif ications of a violation of Article 128, UCMJ, assault, by pushing his wife on the ch est with his hand, striking
her on her head with his ha nd, and grabbing her arm and throwing her on a bed. He additionally plea ded guilty to one specif ication of a violation of Article 134, UCMJ, by failing to pa y a just debt.MEDRANO—ARMY 20140167

4 ADC: “Have you, a close friend, or relative ever been
accused of somethin g you did not do?”

First Sergeant RJ clarified his answer to these question s during individual voir dire. He explained that he was in a fight in high school. He also explained he
worked with victims of assa ult in a professiona l capacity as a pl atoon sergeant, and he was mistakenly suspected as an altercation particip ant with German locals in
1994. He also disclosed that he was trained in boxing te chniques, but he never used those techniques outside of tr aining. First Serg eant RJ did not di sclose any instance
of the domestic assaults for which he was later convicted. No challenges for cause, nor any peremptory challenges, were brought ag ainst 1SG RJ.

LAW AND DISCUSSION

Standard of Review

A motion for a new trial is normally ad dressed “to the sound discretion of a trial judge and his ruling is not subject to review except in case of abuse...”. United
States v. Thomas , 3 U.S.C.M.A. 161, 11 C.M.R. 161, 164 (1953). As the court of first instance in regards to this petition, we ma y exercise de nov o discretion in determining whether “s ufficient grounds exist for gran ting” a new trial, but “this
broad discretion must not be abused.” United States v. Bacon , 12 M.J. 489, 492 (C.M.A. 1992).

A. Article 73, Peti tion for a New Trial

In the case of a petition fo r a new trial, “[i]f the acc used’s case is pending before a Court of Criminal Appeals . . . the Judge Advocate General shall refer the petition to the appropriate court for ac tion.” UCMJ Art. 73. The appellant may “petition for a new trial on th e grounds of newly discovered eviden ce or fraud on the
court.” A new trial will not be granted to “per mit the accused to relitigate general matters which were presented belo w and decided adversely to him.” United States v.

Bacon , 12 M.J. 489, 492 (C .M.A. 1982) (citing United States v. Troutt , 24 C.M.R. 246, 248 (1957); United States v. Johnson , 28 C.M.R. 662, 686 (N.B.R.1959)). Appellant’s petition alleges fraud on the court-martial by the willful concealment of a material ground for challe nge. A new trial may be ordered when “the basis for challenge or disqualification was not known to the defense at the time of trial” due to “willful concealment of a material grou nd for challenge of the [panel] member.” R.C.M. 1210(f) disc ussion at A21-98.

A hearing pur suant to United States v. DuBay , 17 U.S.C.M.A. 147, 37 C.M.R. 411 (1967), is generall y the appropriate meth od for finding facts re lating to a panel
member’s failure to disclose. United States v. Mack , 41 M.J. 51, 55, (C.A.A.F. 1994) ; United States v. Humphreys, 57 M.J. 83, 96 (C.A.A.F. 2002). Here, appellantMEDRANO—ARMY 20140167

5 does not request a DuBay hearing, and we can rely on supplement al extracts from
1SG RJ’s court-martial.

B. The McDonough Power Eq uip., Inc. Legal Test: Frau d on the Court-Martial

In addressing the question of whether a court member ’s failing to respond or giving an incorrect response prejudiced the rights of the appellan t, we are guided by the U.S. Supreme Court’ s established test in McDonough Power Eq uip., Inc v. Greenwood, 464 U.S. 548 (1984). On a petiti on for new trial based on a juror’s alleged fraud:

[A] party must first demonstr ate that a juror failed to answer honestly a material question on voir dire, and then
further show that a correct re sponse would have provided
a valid basis for a challenge for cause.

464 U.S. at 556. This test is two parts that fi rst requires a find ing that the juror failed to answer honestly a material question before we move to consider whether a valid basis for a challenge for cause exists.

Consistent with our superior court’s analysis in United States v. Taylor, 44 M.J. 475 (C.A.A.F. 1996), we must first es tablish whether 1SG RJ failed to answer voir dire questions honestl y, or willfully concealed his misconduct involving the
assaults on his wi fe. Using the Taylor framework, if we find 1SG RJ’s answers were not dishonest, we do not proceed to the second prong of the analysis.

The issue in Taylor involved a colonel on an officer panel who, six months after sitting as a panel member in a premed itated murder, burgla ry, and larceny case, was convicted pursuant to his pleas of several sex of fenses. These offenses included: seven sp ecifications of sodomy (two in volving a child under the age of 16); one specification of conduct unbecoming an offi cer by having an illicit relationship with a male st aff sergeant assigned to the colonel’s unit; five specifications of indecent acts upon a male under the age of 16; six specifications of indecent acts with an adult male; and three specifications of in decent act with a staff sergeant. The allegati ons were not known at trial and there was “no evidence
that at the time he was em paneled he knew he was unde r investigation, nor is there
evidence of either his actual prejudice against [appellant ] or words or actions that show he might be prejudiced.” Taylor , 44 M.J. at 477.

The court’s reasoning in Taylo r followed that in United States v. Aguon, 851 F.2d 1158 (9 th Cir. 1988), where the defendant discov ered a juror in her case had pleaded guilty, subsequent to her trial, to si milar charges involving “taking of
kickbacks in connection with the letting of pavi ng contracts.” 851 F.2d at 1170. InMEDRANO—ARMY 20140167

6 both Aguon and Taylor the juror/panel member was as ked variations of the general fairness voir dire questions. In Taylor the questions were:

(1) Is any member of the court aware of any other matter which the member believes may be a grounds for challenge by ei ther side ag ainst him? Negative response;

(2) [D]o all of you have the frame of mind that you would want court
members to have if the roles were reversed a nd you were accused of committing a crime? Are all of you in that impartial mindset? Affirmative response from all members.

44 M.J at 477.

This court distinguishes dishonesty from answering qu estions narrowly.
United States v. Robinson , ARMY 20120993, 2014 CCA LEXIS 917 , at *3 (Army Ct. Crim. App. Dec. 23, 2014) (I n a case alleging sexual as sault of an adult victim, members were asked if a family member or somebody close to th em were ever the
victim of a “similar” offense. One member’s failure to di sclose his daughter was the
victim of child sex offense wa s not dishonest; ra ther, he did not co nsider an offense against an adult and an offense ag ainst a child as “similar.”).

In United States v. Albaaj, 65 M.J. 167 (C.A.A.F 2007 ), our superior court dealt with the dishonest juror. During in itial voir dire by the military judge the panel was specifically asked “Does anyone know anyone na med Emad, in any of the specifications?” Emad was th e accused’s brother and a witn ess at the court-martial. When Emad testified, a panel member re cognized that his pr evious answer was
incorrect and that in fact he did know him and worked with him. The panel member, however, did not correct his pr evious answer by informi ng the military judge. The
court concluded that the fail ure by the panel member to correct his original answer regarding knowledge of a witness “violate d his duty of candor ” and the first prong
of McDonough Power Equip. was satisfied. There was l ittle room to quibble-the panel member either knew the witness with a unique name or he did not.

In consonance with our holding in Robinson , we find that 1SG RJ answered the questions narrowly rather than dishonestly. We disa gree with appellant’s view
that the domestic assaults to which 1S G RJ pleaded guilty we re similar to the charges on the flyer, thereby making hi s answers during voir dire wrong or
dishonest. A domestic assault between a husband and wife cons ummated by a chest push, head slap, and arm pull is drastically different from an as sault with a deadly weapon and attempted murder of a fellow soldier in th e barracks. The flyer the panel members were pr esented with outlined charges th at included attempted murder “by repeated stabbing with a knife.” Whil e not minimizing the serious nature of domestic assault, but rather comparing the assault offenses for which 1SG RJ wasMEDRANO—ARMY 20140167

7 convicted 3 with attempted murder, we do not find them sufficiently similar to appellant’s charges.

Additionally, we find it is reasonable th at 1SG RJ’s physical interactions with his wife sixteen months pr evious would not come to mind as “similar” when the flyer described a physi cal altercation between two men that ended with an attempted murder. While lawyers may view appellant ’s charges and the charges of which 1SG RJ was convicted as escalating gradations of an assaultive offens e, it is reasonable that the lay panel members woul d not view the offens es as similar. It is simply not
intuitive that a “similar offense” to assault would be attempted mu rder by stabbing.

Given that we find 1SG RJ’s answers were not dishon est, we find appellant has failed the first prong of McDonough Power Equip. and we conclude our analysis.

CONCLUSION

On consideration of the entire record, and the assi gned errors, th e petition for
a new trial is DENIED. The find ings and sentence are AFFIRMED.

Judge HERRING and Judge BURTON concur.

FOR THE COURT:

JOHN P. TAITT Acting Clerk of Court

3 First Sergeant RJ was orig inally additionally charged wi th two aggravated assaults on his wife, one in April 20 11 by placing a knife to he r neck, and the second by strangling her neck with hi s hands in November 2012, but t hose specifications were
dismissed. JOHN P. TAITT Acting Clerk of Court FOR THE COURT: