**UNITED STATES ARMY COURT OF CRIMINAL APPEALS**

Before

ZOLPER, COOK and BAIME

Appellate Military Judges

**UNITED STATES, Appellee**

**v.**

**Specialist RYAN M. SMITH**

**United States Army, Appellant**

ARMY 20060177

For Appellant:  Captain Michael E. Korte, JA (argued); Colonel Christopher J. O’Brien, JA; Lieutenant Colonel Steven C. Henricks, JA; Major Sean F. Mangan, JA; Lieutenant Colonel Jonathan F. Potter, JA (on brief). 

For Appellee:  Captain Sarah J. Rykowski, JA (argued); Lieutenant Colonel Francis C. Kiley, JA; Major Michael C. Friess, JA; Captain Sarah J. Rykowski, JA (on brief). 

31 October 2008

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SUMMARY DISPOSITION

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Per Curiam:

This case is before the court for review pursuant to Article 66, Uniform Code of Military Justice.  Appellant asserts the military judge erred in denying the defense challenges for cause against Major (MAJ) Hastings and Captain (CPT) Brashears based on their implied bias.  We disagree.  The military judge’s rulings in this case were reviewed for an abuse of discretion; however, since the “military judge’s otherwise thorough voir dire does not reflect that he applied the correct legal standard [liberal-grant mandate] to appellant’s challenge[s] for implied bias” we review those determinations with less deference.  *United States v. Downing*, 56 M.J. 419, 422 (C.A.A.F. 2002); *See United States v. Clay*, 64 M.J. 274, 277 (C.A.A.F. 2007).  However, as our superior court has consistently held, and we note now, “in the absence of actual bias, implied bias should be invoked rarely.”  *Clay*, 64 M.J. at 277 (internal citations omitted).  

First, after reviewing the challenge made against MAJ Hastings, this court found she was properly rehabilitated regarding any potential predisposition that she might have had toward the honesty of military police (MP) soldiers.  Appellant’s case presents facts substantially similar to those analyzed by our superior court in *United States v. Townsend*, 65 M.J. 460, 465 (C.A.A.F. 2008).  Similar to the conclusion in *Townsend*, we find that MAJ Hastings’ position on the honesty of MPs was “not so inflexible that it would not yield to the military judge’s instructions on credibility.”  *Id*.  Furthermore, as in *United States v. Napoleon*, 46 M.J. 279, 282 (C.A.A.F. 1997), the credibility of the law enforcement witness was not at issue in this case as his testimony was solely for foundational purposes.  Therefore, we feel confident in holding that the military judge did not abuse his discretion when he denied defense’s challenge of MAJ Hastings for implied bias.  

Second, concerning the potential bias of CPT Brashears, this we find her rehabilitation sufficient to clarify any confusion she might have had concerning the proper use of mitigation and extenuation evidence.  These rehabilitation efforts were not so extensive or numerous as to “have created substantial doubts about the fairness of this proceeding.”  *Townsend*, 65 M.J. at 466.  Therefore, we find again that, under these circumstances, the military judge did not abuse his discretion on the question of implied bias.  After careful review, we feel confident that the participation of MAJ Hastings and CPT Brashears in appellant’s court-martial “would not cast doubt in the eyes of the public upon the fairness of this proceeding.”  *Id*.

On consideration of the entire record, we hold the findings of guilty and the sentence as approved by the convening authority correct in law and fact.  Accordingly, those findings of guilty and the sentence are AFFIRMED.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court 

CF:JALS-DAJALS-CR3

JALS-GAJALS-CCZ

JALS-CCR

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