UNITED STATES, Appellee
v.
Glenn E. HURN, Corporal
U.S. Marine Corps, Appellant
No. 00-0301
Crim. App. No. 98-0200
United States Court of Appeals for the Armed Forces
Decided April 23, 2003
Counsel
For Appellant: Captain Curtis M. Allen, USMC (argued); Lieutenant
Marcus N. Fulton, JAGC, USN.
For Appellee: Major Mark K. Jamison, USMC (argued); Colonel Mark
W. Fisher Jr., USMC, and Lieutenant Commander Philip L.
Sundel, JAGC, USNR (on brief); Colonel Rose M. Favors, USMC,
Commander Robert B. Taishoff, JAGC, USN, and Lieutenant Ross
W. Weiland, JAGC, USNR.
Amicus Curiae: Douglas K. Yatter (law student)(argued); Steven
H. Goldblatt (director), Wendy M. Marantz (supervising
attorney), and Hilary C. Kivitz (law student)(on brief) – For
the Georgetown University Law Center.
Military Judge: J. A. Bukauskas
This opinion is subject to editorial correction before final publication.
United States v. Hurn, No. 00-0301/MC
PER CURIAM:
After the United States Navy-Marine Corps Court of Criminal
Appeals affirmed the Appellant’s conviction and sentence1 (United
States v. Hurn, 52 M.J. 629 (N-M. Ct. Crim. App. 1999)), this
Court remanded the record for a factfinding hearing regarding the
prosecution’s reasons for exercising its peremptory challenge
against the only non-Caucasian officer on the court-martial
panel, Lieutenant Colonel (LtCol) Ayala. United States v. Hurn,
55 M.J. 446 (C.A.A.F. 2001). Having reviewed the record of the
factfinding hearing, we now affirm the decision below.
At trial, the trial counsel had responded to the defense’s
Batson2 objection to the peremptory challenge by stating that he
exercised it “to protect the panel for quorum.” Id. at 448.3
The military judge did not ask for an explanation why one of the
four Caucasian officers was not peremptorily challenged instead
of the one non-Caucasian officer.
1
Appellant was convicted of multiple sexual offenses with a
child and larceny of a motor vehicle, and sentenced to a
dishonorable discharge, total forfeitures, confinement for life,
and reduction to the lowest enlisted grade.
2
Batson v. Kentucky, 476 U.S. 79 (1986), prohibits peremptory
challenges based on race. This Court has adopted a per se
application of Batson, placing the burden on the challenging
party, upon timely objection, to provide a race-neutral
explanation for the challenge. United States v. Moore, 28 M.J.
366, 368 (C.M.A. 1989). The proffered reason for the challenge
may not be one “that is unreasonable, implausible, or that
otherwise makes no sense.” United States v. Tulloch, 47 M.J.
283, 287 (C.A.A.F. 1997).
3
After challenges for cause, the panel consisted of five officer
and three enlisted members. By using a peremptory challenge
against an officer, the prosecution ensured that a peremptory
challenge of an enlisted member would not cause the panel to fall
below the minimum one-third enlisted membership.
2
United States v. Hurn, No. 00-0301/MC
Over two-and-a-half years after the trial, while this case
was before the Court of Criminal Appeals, the trial counsel
submitted an affidavit, stating that when he notified LtCol Ayala
of his selection for court-martial duty (in accordance with
R.C.M. 502(d)(5) discussion), LtCol Ayala expressed hope that he
would not be seated on the panel because he was extraordinarily
busy. However, at the court-martial, LtCol Ayala responded in
the negative when the military judge asked if any member had a
personal or professional obligation that might cause the member
to be unable to devote full attention to the court-martial.
The trial counsel’s affidavit also stated that he had known
LtCol Ayala professionally for about two years, respected him,
and considered him to be fair. The trial counsel “decided to do
him a favor and challenge him off the panel so he could return to
his duties.” Hurn, 55 M.J. at 448. Finally, the trial counsel
stated that the military judge cut off discussion before he had
an opportunity to fully explain his reasons for challenging LtCol
Ayala on the record. Id. at 449.
This Court declined to resolve the Batson issue based on
trial counsel’s ex parte affidavit, for the following reasons:
(1) the affidavit appeared to differ from LtCol Ayala’s response
to the military judge’s inquiry, (2) the affidavit had not been
tested in an adversarial setting, (3) the defense counsel had not
had an opportunity to dispute the affidavit, and (4) there had
been no factual determination by the military judge that the
trial counsel’s explanation was credible and race neutral. Thus,
this Court ordered further inquiry into the reasons for the trial
counsel’s peremptory challenge.
3
United States v. Hurn, No. 00-0301/MC
At the factfinding hearing, the trial counsel was summoned
as a witness, as required by this Court’s mandate. At the
hearing, trial counsel testified consistently with the record of
trial and his earlier affidavit. He testified that when LtCol
Ayala expressed concern about his “pressing workload,” he “gave
him the standard advice that [he] gave all prospective members
for the panel, that the general nominated him, that he would have
to appear.” He informed LtCol Ayala that he could inform the
court about his workload concerns, but that he was still required
to appear at the first day of trial. The trial counsel testified
that no other officer member had expressed concerns to him about
conflicting workload. He testified that LtCol Ayala’s negative
response to the military judge’s inquiry did not appear to be
inconsistent with his own conversation with LtCol Ayala. To the
contrary, it was consistent with the trial counsel’s
understanding of LtCol Ayala: “that if he had to work here at a
court-martial for 10 hours and then go back to his office for
four or five hours, that’s what Lieutenant Colonel Ayala would
do.”
An affidavit from Colonel (then LtCol) Ayala was received in
evidence without objection from either side. Colonel Ayala
explained his answer to the military judge’s inquiry about
conflicting obligations as follows:
I do not remember clearly the judge’s questions and my
responses during “voir dire,” but I remember feeling by
then that although I had a lot on my plate, the
Commanding General had selected me and in essence had
ordered me to set aside those duties and do the court-
martial.
4
United States v. Hurn, No. 00-0301/MC
The military judge made detailed findings of fact and
conclusions of law. He specifically found that the trial
counsel’s explanation at trial, “although it was incomplete, is
not inconsistent with his fuller explanation at this hearing.”
He found the trial counsel to be “both credible and forthcoming.”
The military judge found Colonel Ayala’s affidavit
consistent with the trial counsel’s testimony. He “accept[ed] as
credible” Colonel Ayala’s explanation for his response to the
military judge’s inquiry regarding conflicting workloads. He
concluded by finding:
I find that [the trial counsel], in deciding on whom he
would exercise his peremptory challenge, focused first
on officers because of his concern regarding quorum,
and then on Colonel Ayala because of the previous
communication he had with Colonel Ayala regarding his
schedule and desire not to be a member. I find this
explanation to be race-neutral and specific,
reasonable, and plausible, given all the circumstances
of this case.
The military judge’s determination that the trial counsel’s
peremptory challenge was race-neutral is entitled to “great
deference” and will not be overturned absent “clear error.”
United States v. Williams, 44 M.J. 482, 485 (C.A.A.F. 1996). We
hold that the military judge’s ruling at the factfinding hearing
was not “clear error.” Accordingly, the decision of the United
States Navy-Marine Corps Court of Criminal Appeals is affirmed.
5
United States v. Hurn, No. 00-0301/MC
CRAWFORD, Chief Judge (concurring in the result):
I concur in the result. This case is fact specific, thus
it is not inconsistent with our prior case law and federal
practice, which provide that “in the event . . . post-trial
proof becomes necessary to decide a Batson [v. Kentucky1] issue,
we [should] not rule out consideration of a clearly articulated
affidavit.”2 Where there is no challenge to the reason given or
to the party’s credibility, an affidavit,3 sidebar conference,4
or in camera procedure may be sufficient5 without ordering a
hearing pursuant to United States v. DuBay.6
1
476 U.S. 79 (1986).
2
United States v. Moore, 28 M.J. 366, 368 n. 7 (C.M.A. 1989).
3
United States v. Davis, 809 F.2d 1194, 1202 (6th Cir. 1987); see also United
States v. Cox, 23 M.J. 808, 811 (N-M Ct. Crim. App. 1986)(prosecutor’s post-
trial affidavit met government’s burden under Batson v. Kentucky, 476 U.S. 79
(1986)).
4
United States v. Romero-Reyna, 867 F.2d 834 (5th Cir. 1989).
5
See, e.g., United States v. Tindle, 860 F.2d 125 (4th Cir. 1988).
6
17 C.M.A. 147, 37 C.M.R. 411 (1967).