Opinion of the Court
During October and November 1993, appellant was tried by a general court-martial composed of officer and enlisted members at Marine Corps Air Station, Iwakuni, Japan. He was found guilty of 2 specifications of rape and 2 specifications of assault, in violation of Articles 120 and 128, Uniform Code of Military Justice, 10 USC §§ 920 and 928. Appellant was sentenced to a bad-conduct discharge, confinement for 4 years, and reduction to E-l. The convening authority approved the sentence on April 25, 1994. The Court of Criminal Appeals, on July 31, 1996,
On July 25, 1997, this Court granted review on the following issues of law:
I.
WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN DENYING THE CHALLENGE OF MEMBERS, THUS DENYING APPELLANT A FAIR AND IMPARTIAL TRIAL.
II.
WHETHER THE MILITARY JUDGE ERRED IN SUPPRESSING CONSTITUTIONALLY REQUIRED EVIDENCE ESSENTIAL TO THE PRESENTATION OF APPELLANT’S DEFENSE.
We hold that the military judge did not abuse his discretion in denying appellant’s challenge for cause against Gunnery Sergeant (GySgt) Crenshaw and in not sua sponte removing First Lieutenant (IstLt) Beggs and GySgt Winn from appellant’s court-martial panel. See United States v. Dinatale,
The Court of Criminal Appeals addressed appellant’s claims against the court members who sat in his ease as follows:
The appellant argues that the military judge erred in denying the defense challenge of Gunnery Sergeant [GySgt] Cren-shaw for cause and in not sua sponte dismissing GySgt W[i]nn and First Lieutenant [IstLt] Beggs during the course of the trial, notwithstanding the fact that the defense never challenged the latter two members.
The fact that GySgt W[i]nn was casually acquainted with Mrs. W was not disqualifying where the member unequivocally stated that he would not be influenced in any manner as a result of that acquaintance. Record at 288. Similarly, IstLt Beggs disclosed that a Major to be called as a government rebuttal witness was his reviewing officer, but that their professional relationship would not affect his deliberations in any way. Record at 558. See Rules for Courts-Martial [ROM] 912(f), Manual for Courts-Martial, United States (1995 ed.)[MCM]. In any event, the appellant’s failure to challenge GySgt W[i]nn or IstLt Beggs at trial waived the issue of challenge as to these two members. ROM 912(f)(4).
With regard to GySgt Crenshaw, the defense challenged the member for cause on the basis that he had two friends who had been victims of sexual assault, and because he had a 15-year-old daughter. The defense argued that he could not, therefore, view the evidence impartially. However, GySgt Crenshaw stated without any prompting: “[I]n my own honest opinion, Sergeant Velez is innocent until proven guilty. This is his case, it is not anyone else’s.” Record at 136. Further, he stated that he would consider all the evidence in the case and follow the military judge’s instructions before making any determination as to guilt and sentence in the event of conviction. Record at 137-8. We conclude that the military judge did not abuse his discretion in denying the challenge for cause. United States v. White,36 MJ 284 , 287 (CMA 1993), cert. denied,510 U.S. 1090 ,114 S.Ct. 918 ,127 L.Ed.2d 212 (1994). The first assignment of error is without merit.
Unpub. op. at 5-6.
The appellate court below also delineated appellant’s exclusion-of-defense-evidence complaint as follows:
In a pretrial motion and offer of proof, the defense sought to introduce at trial evidence of specific instances of Mrs. H’s sexual behavior, under Military Rules of Evidence [Mil.R.Evid.] 404(b)(as proof of motive) and 412(b)(1) (as constitutionally required), Manual for Courts-Martial, United States, 1984 (1994 ed.). Appellate Exhibits V and VI. Record at 7 et seq.*223 More specifically, the defense sought to introduce evidence that Mrs. H was seen in a bar with her arms around a man not her husband; that she had made sexual advances toward other men; that she had an extramarital relationship with yet another man; and that she had in the past made a statement that she had been raped. The defense argued that Mrs. H had a motive to fabricate, based on revenge against the appellant’s wife who had struck her in an altercation, and that Mrs. H’s sexual behavior was relevant to her credibility.
We note that the defense theory of the case as to the charge of rape of Mrs. H was that Mrs. H’s report was a total fabrication, and that she had not even been in the appellant’s room on the night of the alleged rape. Following the evidentiary hearing and arguments, the military judge denied the defense motion, Record at 48 et seq., reasoning that there was no nexus between Mrs. H’s sexual behavior and a possible motive to fabricate because of an altercation with the appellant’s wife. Further, the military judge found that evidence of Mrs. H’s sexual conduct lacked relevancy and materiality as to the charged offense and faded to meet the standard that would constitutionally mandate admission of the evidence. The military judge entered his extensive essential findings and conclusions of law at Appellate Exhibit X.
Unpub. op. at 6-7 (footnote omitted).
I
Appellant’s first assigned issue centers on his contention that the military judge should have excused three members from the court-martial panel which tried his case. He asserts that one member, GySgt Crenshaw, was personally biased against him because he admitted on voir dire that two close friends had been victims of rape during the past year and that his impartiality might be affected by the fact that he had a 15-year-old daughter. He also argues that a second member, GySgt Winn, should have been excused because he admitted that he knew one of the victims and was more apt to believe her. Finally, he claims that a third member, IstLt Beggs, should have been removed because he admitted having a professional duty relationship with a rebuttal witness for the prosecution.
Article 41, UCMJ, 10 USC § 841, provides a military accused the right to challenge for cause detailed members of a court-martial. RCM 912(f)(l)(N), Manual for Courts-Martial, United States, 1984, more particularly states:
(f) Challenges and removal for cause.
(1) Grounds. A member shall be excused for cause whenever it appears that the member:
(N) Should not sit as a member in the interest of having the court-martial free from substantial doubt as to legality, fairness, and impartiality.
Discussion
Examples of matters which may be grounds for challenge under subsection (N) are that the member: has a direct personal interest in the result of the trial; is closely related to the accused, a counsel, or a witness in the case; has participated as a member or counsel in the trial of a closely related case; has a decidedly friendly or hostile attitude toward a party; or has an inelastic opinion concerning an appropriate sentence for the offenses charged.
(Emphasis added.)
Turning to the present case, we note that GySgt Crenshaw was not disqualified because two of his friends were raped in the past year. Appellant himself concedes that “a member is not automatically disqualified because of exposure to a particular offense.” Final Brief at 9; see United States v. Reynolds,
TC: Were there any trials in those cases?
MEMBER (GYSGT CRENSHAW): Negative.
TC: Were they victims — did they know the aggressors?
MEMBER (GYSGT CRENSHAW): Yes, they did.
TC: Do you think that that experience, or your knowledge of those experiences, would influence you one way or the other in this case, or could you maintain impartiality through this trial?
MEMBER (GYSGT CRENSHAW): Only to the extent, sir, that I have a 15-year-old daughter that that definitely touched on it for me, yes, sir.
TC: But, that — does your experience with any of those cases, or knowledge of your 15-year-old daughter, cause you to think that Sergeant Velez would be more guilty or less guilty?
MEMBER (GYSGT CRENSHAW): No, sir.
Actual bias is a question of fact to be decided by the trial judge on the basis of the responses of the member and any other evidence presented at the court-martial. The military judge is afforded great deference on an actual bias question, greater deference than that afforded him on a question of implied bias. See United States v. White,
Turning to appellant’s post-trial challenge of GySgt Winn, we conclude that appellant fares no better. The record shows this court member initially stated that, if he knew one of the alleged rape victims in this case, he would be inclined to believe that witness. The concern on the member’s part regarding this past relationship was ejqmessed as follows:
TC: Yes, sir. Obviously we haven’t established specifically whether you know the Mrs. [W] that might come here or not. If you were to see this person, and it was in fact the person you know, would that in any way affect your opinion of their testimony, make it more believable or less believable, or could you maintain an open mind about the trial?
MEMBER (GYSGT WINN): That’s hard to say. I would like to think that I would be able to be impartial. But, when you know somebody, and you’ve dealt with them and you’ve talked to them and you’ve played with their kids, it does — it may have an effect on an individual. I guess to be on the safe side, I would have to say yes, it would.
TC: So you think that you could not put your past dealings out of your mind with respect to listening to their testimony?
MEMBER (GYSGT WINN): I think I could, but it’s hard to say without hearing all the evidence and the proceedings and all that. Again, I would like to think I could.
(Emphasis added.)
Nevertheless, the record shows that, later, GySgt Winn himself brought to the attention of the trial court that he did in fact know one of the alleged victims. It states:
MJ: This 39(a) session is called to order. All persons present when the court recessed are again present. The members are absent.
Captain Lietzau, I believe you have a matter to bring to my attention.
TC: Yes, sir. Just as we were entering the courtroom one of the members mentioned that he was concerned because apparently during voir dire it had been de*225 termined that he didn’t know the Mrs. [W] of this case, and he said, having seen her in the hallway, he apparently put face with name and realized he had met her before, or something to that effect. I thought it might be appropriate to address. I believe the member was the one sitting on the far right here, Gunnery Sergeant Winn.
MJ: Bailiff, ask Gunnery Sergeant Winn to step inside the courtroom please.
Moreover, the record shows the innocuous nature of his connection to the alleged victim:
DC: Gunny, my question would be, how did you become acquainted with the [W]?
MEMBER (GYSGT WINN): Mrs. [W] worked at the credit union, of which I am a member. Through that is how I associated with her, dealing on a financial basis. Her husband I’ve met off and on through the years in the Marine Corps. I couldn’t put a name with the face when it was first brought up, but we do see each other in passing. And that’s just it, passing. I bring this up because I wanted to let the judge make a decision on what should or should not be—
MJ: I understand.
The record further contains his repeated disavowals that this tenuous relationship would actually influence him in any way in this case. Finally, the record shows that defense counsel did not even challenge this member on this basis. See RCM 912(f)(4). In view of all these circumstances, we conclude that the military judge did not commit any error in allowing this member to sit on this court-martial. See United States v. Dinatale, supra (record provides reason for trial judge’s acceptance of disclaimer); see also White, supra at 288 (voir dire disclosed in full the innocuous nature of the contact).
Next, we consider IstLt Beggs and his post-impanelment disclosure of a professional relationship with a government rebuttal witness. Initially, we note that this rebuttal witness had a professional relationship with three members and that such a relationship, in and of itself, does not require that a challenge for cause be granted. See United States v. Lake,
Finally, as an additional appellate claim, appellant asserts that the military judge had a duty sua sponte to remove all three members noted above on the basis of “implied” bias. See generally United States v. Minyard,
II
The second assigned issue in this case asks whether appellant was denied his constitutional right to present a defense when the military judge prevented him from cross-examining one of the alleged victims about
We initially note that appellant expressly stated that the above-noted sexual-conduct evidence was not offered to show the alleged victim was promiscuous and, thus, probably consented to sex with him on the night in question. Not only is such evidence irrelevant and inadmissible for such a purpose under Mil.R.Evid. 412, Manual, swpra, but it would seriously undermine appellant’s testimony in this case that the alleged victim did not have sex or even come to his barracks room that night. Moreover, this sexual-behavior evidence was not offered to show the alleged victim had a motive to fabricate her complaint against appellant. Other evidence unrelated to this sexual behavior evidence was admitted to show the alleged victim’s feud with appellant’s wife and intent to get even.
Instead, the defense asserted that it wanted to cross-examine the alleged victim on these matters in order to attack or impeach the credibility of her complaint. See generally United States v. Banker,
While the right to cross-examination is broad, it is not unlimited in scope; nor can it be conducted without due regard for applicable rules of evidence. Id. Reasonable limits on cross-examination intended to attack a witness’s credibility may be based on concerns such as harassment, prejudice, confusion of issues, witness safety, repetitiveness, or marginal relevancy. See Delaware v. Van Arsdall,
Turning first to the pool-playing incident, appellant argues that it was relevant to assess the alleged victim’s credibility with respect to her later complaint against him. He notes that her report concerning the earlier incident indicated that she was both intoxicated and playing pool with a Marine who was not her husband. He further notes that her complaint against him likewise asserted that she was drinking and wanted to play pool with a Marine who was not her husband. He argues that the similarity between the underlying circumstances of both stories is “curious” and “tends to go towards her credibility and should be considered by a court or jury, in terms of the possibility or the likelihood that a similar situation should reoccur.” We reject this argument.
Appellant concedes that the alleged victim’s prior story of waking up naked in another Marine’s bed does not include a claim of rape. Thus, its relevance in showing the truth or falsity of her complaint of rape against him is not obvious. See generally Wood v. State of Alaska,
Appellant next argues that evidence of the alleged victim’s prior sexual “assault” on a civilian while intoxicated was admissible under Mil.R.Evid. 404(b) on the issue of the victim’s credibility. At trial, he argued that such sexually aggressive conduct while intoxicated contradicted her testimony in his case that she was unable to resist him because of her intoxicated state on the night in question. Further, he asserted that her sexual aggressiveness towards the person amounted to a crime of sexual “assault” and that it was “indicative of some mode of a lack of credibility.” He argued:
It’s probative on her credibility of being the victim of a sexual assault and we would — the inference we would ask the members to draw on this is that; is it reasonable to believe that a woman who says she was sexually assaulted by the accused in this case is capable of visiting a similar type of forcible or aggressive, unwanted, offensive, sexual touching on another, on one man in particular, Mr. M.
We note that appellant was required to articulate clearly a reason why the prior sexual aggressiveness of the alleged victim towards another man undermined her credibility with respect to her charge of rape against him. See generally United States v. Brannan,
Turning to the evidence of a prior complaint of rape against another Marine, we are again struck by the absence of cogent argument from appellate defense counsel on the relevance of this evidence. More importantly, however, trial defense counsel’s argument that this evidence shows that “really she’s predisposed to making a statement of this nature” is logically and legally unsupported. See 2 Federal Evidence, supra, § 156 at 197. Moreover, we note that defense counsel at trial conceded that there was no evidence that the prior complaint of rape was false. Cf. United States v. Bahr,
The decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.
Chief Judge COX and Judges CRAWFORD, GIERKE, and EFFRON concur.