United States v. Moore, 1989 CMA LEXIS 2997

United States v. Moore

1989 CMA LEXIS 2997

United States Court of Militar...

1989

Check Treatment

*367 Opinion of the Court

COX, Judge:

Appellant was convicted, despite his pleas, of a series of offenses, including attempted murder, robbery, assault, wrongful appropriation, and drunk driving, in violation of Artiсles 80, 122, 128, 121, and 111, Uniform Code of Military Justice, 10 USC §§ 880, 922, 928, 921, and 911, respectively. The issue on appeal concerns use by trial counsel of a peremptory challenge to exсuse a panel member of the same race as the accused, who is black.1

The convening authority had selected two black officers among the seven оn the panel. Both the military judge and trial counsel conducted a general voir dire of the entire panel. Defense counsel conducted a voir dire of specific panel members. At the voir dire, the officer who would later be challenged by the Government, Major Harris, first responded “nо” when the military judge asked the court members the following question:

Will each of you use the same standards in weighing and evaluating the testimony of each witness and not give more or less weight to the testimony of a particular witness solely because of the witness’ position or status?

Upon clarification, he changed his answer to “yes.” He did not respond affirmatively when asked if he had received legal advice from any of the counsel in the case, but he later stated that he knew trial counsel “on a profеssional basis.”

After trial counsel challenged Major Harris, the defense objected and brought to the attention of the military judge the case of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).2 Trial counsel offered to state his reasons for the challenge on the record, but the military judge opted to take a recess to study Batson and determine its applicability to the “military system.” After the recess, the military judge held that Batson did not apply to the military and, if it did, the defense had not made out a prima facie case of discrimination. Thus, he did not require trial counsel to state his reasons for using the peremptory challenge against ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Major Harris. Nonetheless, trial counsel then declined the military judge’s invitation to state his reasons for the challengе.

A panel of the Court of Military Review initially considered the case and ordered a limited hearing to determine trial counsel’s reasons for striking Major Harris. 26 MJ 714 (1987). Thereaftеr, upon its own motion, the Court of Military Review, sitting en banc, ordered trial counsel to produce an affidavit stating his reasons for the challenge. The en banc court held that those reasоns were sufficient to rebut the suggestion that the challenge was used to discriminate based on race. 26 MJ 692 (1988). We granted review, and we now remand for a hearing on trial counsel’s use of the challenge.

Batson v. Kentucky, supra, overruled Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), concerning discrimination on the basis of race in the selection of a petit jury in a criminal trial. In United States v. Santiago-Davila, 26 MJ 380 (CMA 1988), we applied Batson to the military. In the event of an objection to the use of a gоvernment peremptory challenge against a member of the same race as the accused, Batson held that the Constitution requires3 the trial court to *368inquire into the use of a peremptory challenge. The inquiry described there is in two parts:

1. If the defense makes out a prima facie ease of discrimination, considering all the facts and circumstances available, then the trial court will require government counsel to givе an explanation for the use of the challenge.

2. If the trial court is not convinced that the explanation is racially ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍neutral, the peremptory challengе will be disallowed. 476 U.S. at 96-98, 106 S.Ct. at 1722-24. Having stated the constitutional mandate, the Supreme Court left it to the lower courts to determine the procedure to be used to distinguish between peremptory challenges that are discriminatory and those which are not. 476 U.S. at 99, 106 S.Ct. at 1724.

The en banc Court of Military Review in this case simplified the inquiry into just one part, adopting a per se rule as establishing a prima facie case of discriminаtion. Upon the Government’s use of a peremptory challenge against a member of the accused’s race and upon timely objection, trial counsel must give his reasons for the challenge. Today, we adopt a per se rule for all the services.

We do so in order to simplify this process for members of courts-martial and, more importantly, to make it fairer for the accused. In military trials, it would be difficult to show a “pattern” of discrimination from the use of one peremptory challenge in each court-martial. As a matter of judicial administration, the per se rule has become recognized as the superior procedure for Batson challenges. State v. Jones, 293 S.C. 54, 358 S.E.2d 701, 703 (1987). See Note, Nature of Peremptory Challenges Altered, 40 S.C. L.Rev. 41, 43-44 (1988).4 After today, every peremptory challenge by the Government of a member of the accused’s race, upon objection, must be explained by trial counsel.5

Having ruled that the record must contain an explanation from trial counsel, the Court of Military Review ordered that an explanation be рrovided by affidavit. Appellant has objected to this procedure. Upon review of the affidavit,6 we conclude that it does not sufficiently complete the record to determine if trial counsel’s explanation meets the standard of Batson. Thus, even if we consider the affidavit, we must still remand for a limited proceeding under United States v. DuBay, 17 USCMA 147, 37 CMR 411 (1967).7

At the DuBay proceeding, trial counsel will be required to state, as an officer of the court, his reasons for using the per-

*369emptory challenge as he did. “[A]s a general rule,” trial counsel “cannot be ‘called to ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the stand by every criminal defendant for cross-examination as to their motives____’” United States v. Hagen, 25 MJ 78, 85 (CMA 1987), cert. denied, — U.S. -, 108 S.Ct. 1015, 98 L.Ed.2d 981 (1988), quoting United States v. Falk, 479 F.2d 616, 620 (7th Cir.1973) (en banc). Typically, argument by the defense will be enough to complete the record. In appropriate cases, the military judge may fashion more extensive proceedings in order to make a proper record.8

Once the limited proceeding is held, the judge must determine whether trial counsel has articulated a neutral explanation relative to this particular case, giving a clear and reasonably specific explanation of legitimate reasons to challenge this member. Batson v. Kentucky, 476 U.S. at 98-99, 106 S.Ct. at 1723-24. Although the reasons stated need not rise to the level justifying a challenge for cause, trial counsel cannot assume or intuit that race makes the member partial to the accused and cannot merely affirm his good fаith or deny bad faith in the use of his challenge.

The decision of the United States Army Court of Military Review is set aside. The record of trial is returned to the Judge Advocate General of the Army for submission to a convening authority for further proceedings to determine fully the reasons for trial counsel’s use of the peremptory challenge against a member of the same race as appellant. After such proceedings are concluded, the record, along with the judge’s findings and conclusions, will be returned directly to this Court.

Chief Judge EVERETT and Judge SULLIVAN concur.

Notes

. This Court granted review of the following issues:

I

WHETHER THE ARMY COURT OF MILITARY REVIEW ERRED BY FAILING TO PROPERLY APPLY THE PRECEPTS OF BATSON V KENTUCKY TO APPELLANT’S CASE.

II

WHETHER THE ARMY COURT OF MILITARY REVIEW ERRED IN ACCEPTING AND CONSIDERING TRIAL COUNSEL’S AFFIDAVIT PURPORTEDLY EXPLAINING THE REASONS FOR CHALLENGING MAJOR HARRIS.

. At the time of trial, Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), had been decided, but United States v. SantiagoDavila, 26 MJ 380 (CMA 1988), expressly applying Batson to the military, had not.

. The holding in Batson, as in Santiago-Davila, is grounded on equal protection as applied to the Government through the Fifth Amendment, *368as opposed to the right to a jury under the Sixth Amendment.

. In any event, the Government has requested the per se rule, and appellant benefits from it, not having to bear the burden of proving a prima facie case.

. Although the Batson prohibition is constitutionally ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍mandated and is retroactive, Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987); United States v. Avila, 27 MJ 62 (CMA 1988), the per se rule is not.

. Trial counsel’s affidavit reads, in pertinent part, as follows:

I had previous dealings with MAJ Harris on military justice matters, to include one occasion where I believe he was assigned as an Article 32(b) investigating officer. Although that prоceeding ultimately was waived, I had more than one discussion with MAJ Harris on procedural matters. In addition, MAJ Harris responded with quizzical looks to several of the standard questions posed by the military judge during voir dire. Since the case against SP4 Moore involved numerous charges and several complicated issues, the government desired a pаnel that was least likely to be confused by the complexities of the trial. The challenge was thus exercised against MAJ Harris.

The Court of Military Review found the affidavit to be "a reasonable, racially neutral explanation for the challenge, with no indices of racial motivation.” 26 MJ 692, 703 (1988). While we do not find "indices of racial motivation,” neither do we find an "explanation.” Therefore, the affidavit is insufficient.

. Because of the per se rule, post-trial proof of a trial counsel’s motives should become obsolete. However, in the еvent that, as in this case, post-trial proof becomes necessary to decide a Batson issue, we do not rule out consideration of a clearly articulated affidavit. United States v. Crawford, 15 USCMA 31, 35, 35 CMR 3, 7 (1964) (affidavits used to describe panel-selection process). See also cases cited below at n.8.

. The Supreme Court left the form of the Batson proceeding to the discretion of the lower courts. Accordingly, various means have been used to examine peremptory challenges. See United States v. Garrison, 849 F.2d 103 (4th Cir.), cert. denied, — U.S.-, 109 S.Ct. 566, 102 L.Ed.2d 591 (1988) (affidavit, adversary hearing, and argument allowed, but evidentiary hearing denied); United States v. Cartlidge, 808 F.2d 1064 (5th Cir.1987) (prosecutor’s affidavit ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍used without objection); United States v. Davis, 809 F.2d 1194, 1202 (6th Cir.), cert. denied, 483 U.S. 1007, 107 S.Ct. 3234, 97 L.Ed.2d 740 (1987) (ex parte and in camera explanation by prosecutor allowed); United States v. Tucker, 836 F.2d 334, 340 (7th Cir.), cert. denied, — U.S. -, 109 S.Ct 143, 102 L.Ed.2d 115 (1988) (ex parte review of notes acceptable, but adversary proceeding preferred); United States v. Baker, 855 F.2d 1353 (8th Cir.1988) (proceeding left to discretion of trial court); Garrett v. Morris, 815 F.2d 509 (8th Cir.), cert. denied, — U.S. -, 108 S.Ct. 233, 98 L.Ed.2d 191 (1987); and State v. Jackson, 322 N.C. 251, 368 S.E.2d 838 (1988) (defendant permitted to submit evidence); People v. Freeman, 162 Ill.App.3d 1080, 114 Ill.Dec. 285, 516 N.E.2d 440 (1987) (affidavit from counsel used to rebut allegation of government-bought testimony); People v. Williams, 177 Ill. App.3d 787, 127 Ill.Dec. 215, 532 N.E.2d 1044 (1988) (prosecutor gave statement and defense not permitted to call excused juror); People v. Cartagena, 128 A.D.2d 797, 513 N.Y.S.2d 497 (N.Y.App.1987) (affidavit used). But see United States v. Alcantar, 832 F.2d 1175 (9th Cir.1987) (adversary proceeding required); United States v. Brown, 817 F.2d 674 (10th Cir.1987) (prosecutor cross-examined).