## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before MULLIGAN, FEBBO, and SCHASBERGER Appellate Military Judges

UNITED STATES, Appellee

v. Specialist CARL L. CAMPBELL

United States Army, Appellant

ARMY 20160215

Headquarters, III Cor ps and Fort Hood

Rebecca K. Connall y, Military Judge

Lieutenant Colonel T ravis L. Rogers, Staff Judge Advocate

For Appellant: Major Todd W. Sim pson, JA; Capta in Zachary A. G ray, JA (on brief and reply brief); Lieutenant Co lonel Tiffany D. Pond, JA; Major Todd W. Simpson, JA; Captain Zachary A. Gray, J A (on supplemental brief).

For Appellee: Lieutenant Colonel Eric K. Stafford, JA; Major V irginia Tinsley, JA; Captain Brian Jones, JA (on brief).

20 November 2018

-------------------------------- SUMMARY DISPOSITION

--------------------------------

Per Curiam:

At issue in this case is whether a military judge must sua spon te excuse a panel member who does not unequivocall y agree to apply the law, when neither the defense nor the prose cution challenge that member. Appellant a rgues the military judge abused her discretion whe n she did not remove a panel mem ber who answered equivocally to questions regardi ng whether he wou ld follow the military judge’s

instructions. We find the mil itary judge did not abuse her dis cretion. While she had the authority t o sua sponte excus e the panel member, she was no t required to do so.

A panel with enlisted members sitting as a general court-martia l convicted appellant, contrary to his pleas, of one specification each of making a false official statement, sexual assault, and indecent viewing, in violation o f Articles 107, 120, and 120c, Uniform Code of Militar y Justice (UCM J), 10 U.S.C. §§ 907, 920, and 920c. The panel sentenced appellant to a dishonorable discharg e, confinement for five years, and a re duction to the grade of E-1. T he convening authority approvedCAMPBELL—ARMY 20160215

2 only four years and eight months of confinement but approved th e remainer of the sentence as adjudged. Appellant ’s case is now b efore us under Article 66, UCMJ. 1

BACKGROUND

A. Appellant’s Misconduct

Appellant attended a barracks-r oom party on the fl oor where he lived. There, appellant and Specialist (SPC) Ch apman, spoke with Private (PV2 ) AV and other soldiers. At the part y, PV2 AV drank heav ily and became highly intoxicated. She slurred her speech a nd needed support to st and. She received h elp returning to her

room from another so ldier who was her fr iend. The friend helpe d PV2 AV up the stairs, helped her unlock her do or, and helped he r into her roo m. Private AV laid on her bed fully clothe d. As the friend lef t PV2 AV’s room, he pa ssed SPC Chapman in the common hallway. Sp ecialist Chapman ente red PV2 AV’s room, where he was joined by appellant a few minutes later . Appellant and SPC Cha pman had sexual intercourse with PV2 AV, who had only sketchy mem ories of what transpired. She remembered both soldiers having sex with her, moving her around , and placing her on a rug on her floor . She woke up on her be d without her clot hes. She filed a restricted report of s exual assault and un derwent a sexual assa ult forensic

examination. Late r, she changed he r report from restricted to unrestricted.

When questioned by investigators, appellant initi ally denied go ing to PV2 AV’s room after the p arty. He later made a second statement to investigators

wherein he admitted going to her room and e ngaging in sex with PV2 AV, but he

claimed the sex was consensual . Appellant later testified that , although he did not know PV2 AV well, he was “horny, ” so he “decide d to go up to he r room to see if she wanted to have sex.” Appe llant testified he was surprised to see SPC Chapman already there and ha ving sex with PV2 AV, but claimed PV2 AV di d not protest when appellant also began engagin g in sexual inter course with h er.

B. Appellant’s Court-Martial

During group voir dire, the defense counsel asked ques tions abo ut consuming

alcohol and c onsenting to sex. One pan el member, Lieutenant Co lonel (LTC) JD, answered that having one drink of alcohol could render a person unable to consent to sexual intercourse. When this response was further explored, h e stated that he thought it would depen d on the person. Aft er some discussion, LTC JD agreed that

1 Appellant was convic ted of sexual assault by performing sexua l intercourse upon Private (PV2) AV when he knew, or re asonably should have known, PV2 AV was incapable of consent due to impairment by al cohol. Under Rule for Courts-Martial 917, the military judge acquitted appellant of conspiring with Specialist Chapman to commit sexual assault. The pane l acquitted appe llant of three other specifications of sexual assault and one sp ecification of burglary.CAMPBELL—ARMY 20160215

3 he was “willing to apply the jud ge’s instructions to whatever [ his] final

determination of the outcome of the case.”

During individual voir dire, LTC JD again said he thought wheth er a person could consent to sex after one drink would depend on the person and the drink. He explained the size of the drink, type of drink, and the weight of the person would all factor into whether a person could consent after drinking alcoh ol.

During this colloquy, LTC JD was equivocal on whether he would apply the military judge’s instr uctions. In respons e to the question, “y ou would be able to listen to the judge’s instructio n regarding consent—all of the judge’s instructions[?],” LTC JD answer ed, “I think so, yes.” Later, i n response to “my question is can you listen to tho se instructions and apply them as [the military judge] instructs you to do?” LTC JD answered “I think I can. I mean, unless we had a disagreement. If s he thinks that one d rink means that you ca n’t consent no matter what, then I would dis agree because I thin k the size of the per son, size of the drink, all of those things ar e considered into co nsent or not. Does t hat make sense?”

The military judge entered the discussion and in response to h er questions regarding whethe r he could follow her in structions LTC JD answe red: “My answer is maybe. It depends on the evidence presented.”

At the close of voir dire, the military jud ge asked if either side had any challenges. The gover nment made one chall enge for cause, and t he defense challenged three panel members for cause. Neither side challen ged LTC JD. The military judge asked a gain if there were a ny other challenges f or cause. Neither side had any. The militar y judge denied the gov ernment’s challenge for cause and the government used its peremptory c hallenge against the same membe r. The military judge granted appellant’s challenges against two panel members; after she denied appellant’s challenge against a third member, the defense used its peremptory challenge against th at third member.

Prior to starting the trial befo re the members, the military j udge returned to

the issue of LTC JD. She asked whether she correctly understoo d that nei ther the government nor defense were challenging him . Both the trial co unsel and the defense counsel agree d they did not want t o challenge LTC JD.

LAW AND DISCUSSION

Appellant alleges th at the military judge abused her discretio n by failing to excuse LTC JD from the panel sua sponte.

An accused has a right to an impartial and unbiased panel durin g his courtmartial. United States v. Mack , 41 M.J. 51, 54 ( C.M.A. 1994). Both the UCMJ and the Rules for Courts-Martial (R. C.M.) include pro visions to ens ure this right.CAMPBELL—ARMY 20160215

4 Article 25, UCMJ sets out the cri teria for the convening author ity to select best qualified panel members. The R .C.M. establish p rocedures furth er refining what members sit in any given case. T his process begins with voir d ire, wherein

information about the members is gathered by the prosecution, d efense, and military judge. R.C.M. 912(d). After voir dire, a ny party may challeng e an unlimited

number of members for cause under R.C.M. 912(f)(1). A member m ay be excused for cause for a variety of reaso ns, including the provision tha t a person “[s]hould not sit as a member in the interest of having a court-martial free from substantial doubt as to legality, fairn ess, and impartiality .” R.C.M. 912(f)(1)( N).

The military judge “ may , in the interest of justice , excuse a mem ber against whom a challenge for cause woul d lie.” R.C.M. 912 (f)(4) (empha sis added). Our superior court has recognized tha t the word “may” implies discr etion, giving a military judge the dis cretionary authority to, sua sponte, excu se a member against whom a challenge for cause would lie. United States v. McFadden , 74 M.J. 87, 90 (C.A.A.F. 2015) (citations omitte d). Put differently, a milita ry judge may excuse a panel member, against whom a challenge for c ause would be grant ed, even if neither party challenged that member. See United States v. Akbar , 74 M.J. 364, 395 (C.A.A.F. 2015).

While a military judge has the authority to excuse a panel memb er sua sponte, she “has no duty to do so.” See McFadden , 74 M.J. at 87; Akbar , 74 M.J. at 395. Appellant has not prov ided any citation to a uthority which woul d suggest our higher court’s holdings in McFadden and Akbar have been superseded o r overrule d in the short time since their publi cation. We are boun d by our superi or court’s precedent.

A military judge is ce rtainly within her authority to sua spont e excuse a panel member who does not unequivocally agree to be bound by the mili tary judge’s instructions. Our sup erior court has plai nly stated, however, that a mil itary judge has no duty to do so. 2 Therefore, there can be no abus e of discretion as argued by appellant. Further, in this case, the defense counsel plainly made a tactical decision not to challenge LTC JD. Requiring a m ilitary judge to overrid e the tactical

2 The military judge was in the b est position to as sess whether she should exercise her authority to sua sponte excuse LTC JD . A military judge is best equipped to

assess the demeanor and intonation of panel members during voir dire. These nuances may be ab sent from the record we receive on appeal. In this case, LTC JD

did not refuse to follow the mi litary judge’s instructions. Ra ther, in response to follow-up questions, he explained it was ha rd for him to answer questions in the abstract, and therefor e answered equivocally. With the benefit of her live, in-person observations, the military judge assessed LTC JD’s statements d id not warrant sua sponte excusal. No l aw requires a di fferent result.CAMPBELL—ARMY 20160215

5 decisions of defense c ounsel would un dermine the im partiality o f the military judge, and erode the fairness of the proceedings.

CONCLUSION 3

The findings and sen tence are AFFIRMED.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court

3 On brief, appellant also argued his trial defense counsel were ineffective for failing

to introduce evidence of PV2 AV’ s alleged motive to fabricate, and evidence to show PV2 AV’s injuries could have been cau sed by sexual activit y with another

individual. We have considered appellant’s argu ments and disag ree. Appellant essentially alle ges PV2 AV was motivate d to fabricate allegatio ns of sexual assault

because she did not want it known that she had sexual intercour se with two men at

the same time. We find this theory weak. I t is a quintessenti ally tactical decision to avoid raising such a weak argument. Further, the presentation of such evidence simply would not have changed the result in appellant’s case. The claim appellant’s

counsel failed to offer evidence of an alternate source of PV2 AV’s sexual injuries is even weaker. Appellant’s theory of defense was that he had con sensual sex with PV2 AV, not that he never had sex with PV2 AV.

Appellant further argued the mil itary judge abus ed her discreti on by issuing an overly-broad curative instruction after appellant’s counsel eli cited testimony prohibited by Mil. R. Evid. 412. Appellant ’s counsel elicited testimony that appellant had seen PV2 AV drin king on other oc casions. His cou nsel further elicited that appellant believed PV2 AV pr eviously had se x with another individual after drinking. As this was directly contrary to a prior Mil. R. Evi d. 412 ruling, the military judge stoppe d the line of question ing and instructed t he panel to d isregard appellant’s testimony about seei ng PV2 AV drinking before. Whi le we agree the military judge’s instr uction was too broad, we find the error w as harmless.

Appellant submitted furth er matters pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982), which we have considered and find do not mer it relief. MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: