Petition for Writ of Certiorari — Simmons v. United States

rout, US.

NOV La 1989

No. JOSEPH F. SPANIOL, JR,

———

L

IN THE -

Supreme Court of the Hutted States

OctTosBeR TERM, 1985

Loyp Stmmons, II, Hospitalman, U.S. Navy,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF MILITARY APPEALS

JAMES J. QUIGLEY

Lieutenant Commander

J AGC, U.S. Navy

Counsel of Record

FREDERICK N. OTTIE

Lieutenant Commander

J AGC, U.S. Navy

Davin C. LARSON

Commander

J AGC, U.S. Navy

Appellate Defense Counsel

Navy—Marine Corps

Appellant Review Activity

Washington Navy Yard

Washington, D.C. 20374

(202) 433-2297

November 1985

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-6205

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QUESTION PRESENTED

Whether joinder of two unrelated and dissimilar

criminal offenses for trial by court-martial, a practice

permitted by military criminal law, but prohibited by

Federal criminal procedure, casts substantial doubt on

the ability of the court-martial members to render an

impartial verdict on the more serious offense untainted

by evidence admitted on the other and, thereby, denied

petitioner due process of law under the fifth amend-

ment to the Constitution of the United States.

3

TABLE OF CONTENTS

Page

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ConsTITUTIONAL Provisions INVOLVED ..........-+++-- 2

OrnHer PROVISIONS INVOLVED ......... 00s eee eeeeeees 2

STATEMENT OF THE CASB ..... 0... cece ec ccee ceeeees 2

Reasons ror GRANTING THE PETITION ..........+-+55: 8

ComeANOe .. aos 0500060enesenesenehenessaaseeuaen 19

APPENDICES :

A—Opinion of the U.S. Court of Military Appeals. la

B—Opinion of the U.S. Navy-Marine Corps Court

of Military Review ........ccscccccccceccees 2a

TABLE OF AUTHOE TIES

CasEs: Page

Betts v. Brady, 316 U.S. 455 (1942) ................ 15

Cataneo v. United States, 167 F.2d 820 (4th Cir. 1948). 13

Chambers v. Mississippi, 410 U.S. 284 (1973) ....... 15

Drew v. United States, 331 F.2d 85 (D.C. Cir. 1964) . 12,14

Dunn vy. United States, 307 F.2d 833 (5th Cir. 1962) ... 16

Estes v. Tezas, 381 U.S. 532 (1965) ..:............8. 17

Marshall v. United States, 360 U.S. 310 (1959) ....... 11

McElroy v. United States, 164 U.S. 76 (1896) ...... 10, 14

In re Murchison, 349 U.S. 133 (1955) ................ 16

Sheppard v. Maxwell, 384 U.S. 333 (1966) ........... 17

Spencer v. Texas, 385 U.S. 554 (1967) .............. 13

Tumey v. State of Ohio, 273 U.S. 510 (1927) ......... 17

United States v. Carter, 4 M.J. 758 (A.C.M.R. 1977) .. 9

United States v. Foutz, 540 F.2d 733 (4th Cir. 1976) . 12, 13,

14

United States v. Halper, 590 F.2d 422 (2d Cir. 1978). 13, 14

United States v. Keith, 1 U.S.C.M.A. 442, 4 C.M.R. 34

ERR A ae aS 8,9, 14

Umited States v. Lockwood, 15 M.J. 1 (C.M.A. 1983)... 9

United States v. Partridge, 41 C.M.R. 548 (A.C.M.R.

SER ae eR Gaus GhSd 500 kn bcece bnaaceasnce 9

United States v. Showalter, 15 U.S.C.M.A. 415, 35

a a oe nnn40n0ecebenhieneas 9

United States v. Smith, 4 M.J. 809 (A.F.C.M.R. 1977). 9

iv

Tas_e oF AuTHORITIES continued

ConstTITUTION AND STATUTES: Page

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MISCELLANEOUS:

Comment, Joint and Single Trials under Rules 8 and 14

of the Federal Rules of Criminal Procedure, 74

WD Rad. Gey Ge CED oc nscccvcccescccecacces 13

Executive Order 12473, 3 C.F.R. 201 (1984) ......... 8

Manual for Courts-Martial, 1984

EY dh cc tcawekianaskogayeescssases 8

Analysis, app. 21, R.C.M. 601 ...............4.. 8, 14

Manual for Courts-Martial, 1969 (Rev. Ed.)

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DUE GIIEEED acnccccsccceuccovaeecececes +s ee

PIED acdncdcciccnctbebadaccuaneuces 2

Note, Harmless Error and Misjoinder Under the Fed-

eral Rules of Criminal Procedure: A Narrowing

Division of Opinion, 6 Hofstra L. Rev. 533, 537-38

CRUE adNcnwedcubitecvussequesscesaesassactes 13

v

Tas_e or AUTHORITIES continued

Page

Note, Joinder of Criminal Offenses in Nebraska: Ju-

dicial Discretion v. Fair and Impartial Trial, 56

Nebraska L. Rev. 399, 404 (1977) ............... 12

Underhill’s Criminal Evidence § 180 (4th ed. 1935) ... 11

1 Wharton’s Criminal Evidence § 232 (12th ed. 1955) . 11

Federal Rules of Criminal Procedure

PED IS Seven edncceccccccdecessdecvseseaaeeuses 10

IN THE

Supreme Court of the Anited States

Octroser Term, 1985

No. —

Loyp Stumons, II, Hospitalman, U.S. Navy,

Petitioner,

v.

Untrep States OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF MILITARY APPEALS

Hospitalman Loyd Simmons, II, U.S. Navy, respect-

fully petitions for a writ of certiorari to review the

judgment of the United States Court of Military Ap-

peals in this case.

OPINIONS BELOW

The decision of the United States Court of Military

Appeals (App. la) is reported at 21 M.J. 38 (C.M.A.

1985). The opinion of the United States Navy—Marine

Corps Court of Military Review (App. 2a) is an un-

reported decision, United States v. Simmons, No. 82

5474 (N.M.C.M.R. 30 Nov. 1983).

JURISDICTIO™

The judgment of the United State Court of Military

Appeals was entered on September 20, 1985, affirming

petitioner’s conviction for murder. The jurisdiction of

this Court is invoked under 28 U.S.C. § 1259(3).

CONSTITUTIONAL PROVISIONS INVOLVED

The Constitution of the United States providess

Amendment V: “No person .. . shall be . . . de-

prived of life, liberty, or property, without due

process of law.”’

OTHER PROVISIONS INVOLVED

Paragraphs 30g and 33h of the Manual for Courts-

Martial, United States 1969 (Revised Edition) state:

**Subject to jurisdictional limitations and at the dis-

cretion of the convening authority, charges against an

accused, if tried at all, ordinarily should be tried at

a single trial by the lowest court that has power to

adjudge an appropriate and adequate punishment.”’

STATEMENT OF THE CASE

Pursuant to his authority under the Uniform Code

of Military Justice (UCMJ),' the Commanding Gen-

eral, Marine Corps Air Station, Cherry Point, North

Carolina, convened a general court-martial to hear the

ease against petitioner. Petitioner was charged with

four offenses, two of which were dismissed by the mili-

tary judge prior to trial on the merits. The remaining

two charges were premeditated murder occurring on

February 13, 1982, and an unrelated aggravated assault

* Article 22, UCMJ, 10 U.S.C. § 822.

on November 20, 1981, violations of Articles 118 and

128 of the UCMJ, respectively."

Prior to trial, the defense moved to dismiss the

assault charge as being improperly joined with the

greater offense of premeditated murder. The defense

argued that petitioner could not receive a fair trial

if these two unrelated incidents were tried together;

the members of the court would not be able to keep

the evidence of the different offenses totally separate

in their deliberations. R. 9-10. This motion was denied.

R. 12-13.

Petitioner was accused of the premeditated murder

of George Mayo on February 13, 1982, by shooting him

in the face with a pistol. He was convicted of unpre-

meditated murder by the members of the general court-

martial. The petitioner contended that the killing was

an accident and that he did not have the intent to kill

the victim, Mayo.

Petitioner met the victim, Mayo, for the first time

on the day of the shooting. R. 616. Mayo was a large

man, 71 inches tall and weighing 250 pounds. P.E. 14.

He was well muscled, very strong, and lean. R. 524-25.

During the course of the evening, Mayo and a Marine

named Sergeant Davis began arguing. R. 621-22. The

victim hit Davis in the face with one punch (R. 625),

putting Davis in the hospital for ten days and causing

permanent injury to the nerves in the right side of

his face. R. 431-32. A short time after being hit, Davis

produced a gun and said he was going to shoot Mayo.

R. 391, 626. Davis was drunk. A friend persuaded

Davis to surrender the pistol, and it was eventually

returned to Davis’ van. R, 392, 405. Petitioner later

*10 U.S.C, §§ 918, 928

4

removed the weapon from the van. Davis asked peti-

tioner to give the gun to Davis’ wife, but petitioner

said he would give it to him the following day. R. 442.

The gun was placed in petitioner’s boot. R.442.

Petitioner later entered the house of a friend. Mayo

was in the living room. R. 312. An argument ensued

about Mayo’s fight with Davis. R. 313. Mayo wanted

to go outside, but petitioner did not want to go, and

this occasioned some threats by petitioner to shoot

Mayo. R. 317, 637. Petitioner eventually got up to

leave, but Mayo pushed him back down. R. 316-17, 351,

636-37. Petitioner again got up, and Mayo began to

push him down again. R. 317. The gun appeared in

petitioner’s hand, pointed at Mayo’s face, and was fired

from approximately fifteen inches away. R. 317-18.

Petitioner related that he was drunk at the time of

the shooting. R. 648. He believed the pistol to be un-

loaded. R. 637. During his argument with Mayo, he

took the gun out of his boot and placed it down beside

him. R. 636. As he arose to leave the second time, Mayo

pushed him again, grabbing his wrist and, while peti-

tioner was resisting, the gun discharged. R. 639-40.

The clip was not in the gun and petitioner did not

know there was a round in the chamber. R. 640. He

was not angry and had no intention to fight Mayo and

did not intend to shoot him. R. 640.

Petitioner was also charged in the same charging in-

strument with an unrelated aggravated assault upon

Jafas Haynes by striking him in the head with his fists

causing grievous bodily harm. He was convicted of a

simple assault of striking him in the head and face

with his fists. This offense occurred on November 20,

1981.

H)

Mr. Haynes was gathering supplies at the supply

locker of the United States Naval Hospital, Marine

Corps Air Station, Cherry Point, North Carolina. R.

531, 560. He was housekeeping supervisor at the hos-

pital. R. 528. Petitioner worked at the supply locker

as a supply clerk, and his duties involved monitoring

outgoing supplies and comparing them with requisi-

tions. R. 544, 604. Mr. Haynes claims that he was in-

sulted by derogatory epithets and generally harassed

by petitioner while attempting to depart the supply

locker with his materials. R. 532. Petitioner impeded

his exit by placing his foot on Haynes’ supply cart,

whereupon Haynes grabbed him around the shoulders

and pulled him back. R. 533, 547. Petitioner fell to his

knees, and Haynes held him down with his hands. R.

533, 550. After petitioner agreed to let Mr. Haynes

leave, Haynes released his grip and, after a few threat-

ening remarks, petitioner hit Haynes repeatedly in

the face. R. 533-34.

Petitioner, on the other hand, claims that he did call

Haynes derogatory names, but this was the way they

always joked with each other. R. 607. He had never

had any difficulty with Haynes in the past. Id. On this

particular day Haynes was in a hurry, and he had

more supplies than were authorized by the requisition

form. R. 608-09. When questioned by petitioner,

Haynes became angry and tried to leave. R. 609. An

argument ensued, and Haynes grabbed petitioner by

the throat and slammed his head against a nail on a

nearby rack. R. 610-11. Haynes released his grip, but

he again came at petitioner. R. 611. Petitioner claimed

he only hit Haynes three times in the face, each strike

occurring after Haynes first swung at him. x. 611-12.

6

After the defense case-in-chief, the Government pre-

sented the testimony of two witnesses in rebuttal. They

both testified concerning petitioner’s reputation for

violence at the Navai Hospital where he worked. Dr.

Noland, staff obstetrician and gynecologist, told the

court members that petitioner had a reputation at the

hospital as a violent man. R. 683, 689. Lieutenant Selak,

clinical instructor, testifed that petitioner was con-

sidered a violent person and that her personal opinion

was that he was a violent individual. R. 693.

A mistrial was requested by the defense attorney

who claimed that petitioner’s character was not placed

in issue by the defense case and that this character

evidence had, in fact, eliminated the possibility of a

fair trial on both charges. R. 699. The trial judge

denied the request, and advised that the members of

the court would be instructed that this character and

opinion testimony related only to the aggravated as-

sault charge. Id. The members of the court were so

instructed. R. 751. The members were also instructed

to ‘‘treat these two alleged incidences [sic] as com-

pletely independent and separate.’’ R. 734.

After finding petitioner guilty of unpremeditated

murder and simple assault, the court-martial members

sentenced petitioner to reduction to the lowest enlisted

pay grade (E-1), forfeiture of all pay and allowances,

confinement at hard labor for twenty years, and a dis-

honorable discharge from the United States Navy.

The staff judge advocate for the convening authority

presented his review of the court-martial! prior to the

convening authority’s formal approval of the sentence.*

3 Article 61, UCMJ, 10 U.S.C. § 861.

7

The defense counsel again vigorously protested the

joinder of the unrelated assault charge to the murder

charge. He commented in his response to the staff judge

advocate’s review that the joinder of two separate of-

fenses which are totally unrelated may have a detri-

mental effect on the fairness and integrity of the court.

The convening authority nevertheless approved the

sentence pursuant to his review of the case.*

Petitioner again complained to the United States

Navy-Marine Corps Court of Military Review. The

Navy-Marine Corps Court did not address the im-

proper joinder issue, but nevertheless determined that,

regarding the assault charge, the fact that petitioner

testified that he never had any problems with the vic-

tim, Haynes, in the past, and that they were friends

was insufficient to put in issue the peacefulness of peti-

tioner so as to allow the Government to rebut with

evidence of reputation for violence and violent char-

acter. App. 6a. Accordingly, the United States Navy-

Marine Corps Court of Military Review dismissed the

finding of guilty to the assault, but allowed the sen-

tence to stand.°

Petitioner again complained to the United States

Court of Military Appeals concerning this prejudicial

joinder. The Court of Military Appeals granted the

petition for review, but after the review, the court

affirmed the findings and sentence.

Petitioner has followed all military and appellate

procedures in raising the question of improper joinder

and its substantial interference with his right to a

*10 U.S.C. § 860.

5 Article 66, UCMJ, 10 U.S.C. § 866.

8

fair trial. The question was considered at trial and

by all reviewing authorities. Petitioner’s claim was

rejected by all.

REASONS FOR GRANTING THE PETITION

Military procedures in effect at the time of peti-

tioner’s trial provided that existing charges against an

accused should be tried at a single trial by the lowest

court that has the power to adjudge an appropriate

punishment.* One exception is that minor derelictions

should not be joined with serious offenses.’

In United States v. Keith, 1 U.S.C.M.A. 442, 4

C.M.R. 34 (1952), the United States Court of Mili-

* Manual for Courts-Martial, United States, 1969 (Revised Edi-

tion), para. 30(¢). Manual for Courts-Martial rules are prescribed

by the President pursuant to his authority to prescribe pretrial,

trial, and post-trial procedures for cases triable in courts-martial.

Article 36, UCMJ, 10 U.S.C. § 836. The President, by Executive

Order 12473, 3 C.F.R. 210 (1984), has rescinded the Manual for

Courts-Martial, United States, 1969 (Revised Edition), in effect at

the time of petitioner’s trial, replacing it with the Manual for

Courts-Martial, United States, 1984, effective August 1, 1984. The

new joinder rule, found in Rule 601(e) (2) of the Rules for Courts-

Martial, provides that, ‘‘In the discretion of the convening au-

thority, two or more offenses charged against an accused may be

referred to the same court-martial for trial, whether serious or

minor offenses or both, regardless whether related.’’ The rationale

for this rule is stated that, ‘‘This rule is inconsistent with Fed.

R. Crim. P. 8(a), which requires (in general) separate trials for

each offense. Such a requirement is too unwieldy to be effective,

particularly in combat or deployment. Joinder is entirely within

the discretion of the convening authority.’’ Analysis, Appendix 21,

R.C.M. 601, Manual for Courts-Martial, United States, 1984.

7 Manual for Courts-Martial, United States, 1969 (Revised Edi-

tion), paragraph 26(c).

9

tary Appeals approved the practice of joining unre-

lated charges for trial at the same court:

[T]he joinder of entirely separate, distinct, and

completely unrelated offenses is not condemned by

military procedure. Instead, for practical reasons

of dispatch it has come to be the customary prac-

tice to join all known offenses against an accused

and to dispose of ail at a single trial. See Manual

for Courts-Martial, supra, paragraph 30f. How-

ever, in civilian practice it is unusual, and often

improper, to join unrelated offenses in the same

trial. See Rule 8(a), Federal Rules of Criminal

Procedure, 18 U.S.C. Rule 8(a). This rule provides

in substance that several offenses may be charged

in separate counts of the same indictment, if the

offenses are of the same or similar character, or

are based on the same transaction, or on two or

more connected transactions, or transactions con-

stituting parts of a common scheme. No such limi-

tation exists in the sphere of military practice.

Keith, 1 U.S.C.M.A. at 448, 4 C.M.R. at 40. This prac-

tice has been followed and repeatedly affirmed. See

United States v. Lockwood; 15 M.J.1,8 (C.M.A. 1983) ;

United Stutes v. Showalter, 15 U.S.C.M.A. 410, 35

C.M.R. 382 (1965); United States v. Smith, 4 M.J.

809, 813 (A.F.C.M.R. 1977); United States v. Carter,

4 M.J. 758, 760 (A.C.M.R. 1977); United States v.

Partridge, 41 C.M.R. 548 (A.C.M.R. 1969).

The military practice of permitting convening au-

thorities to charge unrelated offenses in the same

charging instrument had one primary effect under the

facts of this case. That effect was establishing the

likelihood that, because petitioner had engaged in an

assault three months earlier, he more likely than not

intended to murder George Mayo. This permissive

10

joinder practice proved a windfall to the Government

in petitioner’s case. The direct evidence on the assault

charge tended to show that petitioner was a individual

prone to commit offenses against the person of another.

This evidence, combined with the admission on the

assault charge of the reputation and character evi-

dence as to petitioner’s violent nature, ensured his con-

viction of a murder occurring one-quarter of a year

later irrespective of his claim of accident. The military

judge’s instructions to the members of the court-

martial directing them to keep the evidence on the

two charges separate in their minds was fruitless.

The critical issue in dispute in petitioner’s murder

case was whether he possessed the requisite intent to

kill. The reasonable possibility of prejudicial taint

from the admission of all the evidence erupting from

the unrelated assault charge is self-evident. There are

basic and fundamental principles of American juris-

prudence that have been violated here that are so

grave as to deprive petitioner of due process of law

guaranteed to him under the fifth amendment. In Mc-

Elroy v. United States, 164 U.S. 76 (1896), at 79-80,

this Court, in construing Rev. Stat. § 1024 (1875),*

stated :

[I]n our opinion, they [indictments for arson and

assault] were not for two or more acts or trans-

actions of the same class or crimes or offenses

which might be properly joined, because they were

substantive offenses, separate and distinct, com-

plete in themselves and independent of each other,

® The forerunner of Rules 8(a) and 14 of the Federal Rules of

Criminal Procedure.

11

committed at different times, and not provable by

the same evidence. In cases of felony the multi-

plication of distinct charges has been considered

so objectionable as tending to confound the accused

in his defense, or to prejudice him as to his chal-

lenges, in the matter of being held out to be habitu-

ally criminal, in the distraction of the attention

of the jury or otherwise, that it is the settled rule

in England and in many of our states, to confine

the indictment to one distinct offense or restrict

the evidence to one transaction.

Additionally, this Court has not hesitated, in the exer-

cise of its supervisory powers over the Federal courts,

to provide relief when members of the jury are exposed

to inadmissible, derogatory criminal information so

prejudicial that new trials were warranted. Marshall v.

United States, 360 U.S. 310 (1959). Petitioner is not

asserting mere prejudice. He is claiming that he was

deprived of a fair trial.

Evidence of the commission of unrelated crimes by

a defendant has traditionally been inadmissible to show

guilt or that the defendant would be likely to commit

the crime with which he is charged. 1 Wharton’s

Criminal Evidence § 232 (12th ed. 1955); Underhill’s

Criminal Evidence § 180 (4th ed. 1935). The military

joinder procedure is an easy way to circumvent this

longstanding precept that evidence of other crimes is

not admissible to prove commission of the crime

charged. ‘‘If the admission of evidence pertaining to

crimes of which the defendant has been convicted is

improper due to the prejudice which might result to

the defendant’s case, then how much more compelling

should be the policy behind refusing to allow the ad-

mission of evidence pertaining to crimes of which the

12

defendant has merely been accused!’ (emphasis

added).°

The joinder of unrelated offenses has the same effect

on the jury as evidence of other crimes whose only

relevance is to show propensity to commit criminal

acts. The Fourth Circuit found joinder of two bank

robberies improper when they occurred two and one-

half months apart. The court claimed that:

One inevitable consequence of a joint trial is that

the jury will be aware of evidence of one crime

while considering the defendant’s guilt or tnno-

eence of another. If the rationale of the ‘other

crimes’ rule is correct, it would seem that some

degree of prejudice is necessarily created by per-

mitting the jury to hear evidence of other crimes.

United States v. Foutz, 540 F.2d 733, 736 (4th Cir.

1976). In Drew v. United States, 331 F.2d 85 at 88

(D.C. Cir. 1964), Judge MeGowan wrote:

The argument against joinder is that the defend-

ant may be prejudiced for one or more of the

following reasons: (1) he may become embarrassed

or confounded in presenting separate defenses;

(2) the jury may use the evidence of one of the

erimes charged to infer a criminal disposition on

the part of the defendant from which is found his

guilt of the other crime or crimes charged; or

(3) the jury may cumulate the evidence of the

various crimes charged and find guilt when, if

considered separately, it would not so find. A less

tangible, but perhaps equally persuasive, element

of prejudice may reside in a latent feeling of tius-

* Note, Joinder of Criminal Offenses in Nebraska: Judicial Dis-

cretion v. Fair and Impartial Trial, 56 Neb. L. Rev. 399, 404

(1977).

13

tility engendered by the charging of several crimes

as distinct from only one.

Under some circumstances, there exist legitimate

purposes for admission of the prior criminal acts of

an accused. Such is not to demonstrate general crimi-

nal propensity, but to establish intent, prove an ele-

ment of the crime, show identity, malice, motive, or a

system of criminal activity, or when the defendant has

raised the issue of his character or when he has testified

and the Government seeks to impeach credibility. See

Spencer v. Texas, 385 U.S. 554, 560-61 (1967). Simi-

larly, joinder of offenses is considered proper for the

speed, efficiency, and convenience in the functioning of

Federal judicial machinery, but only as long as the

right of the defendant to a fair trial is preserved and

ne substantial prejudice to the defendant occurs.”

Cataneo v. United States, 167 F.2d 820, 823 (4th Cir.

1948) (analyzing Rule 8, Federal Rules of Criminal

Procedure). Rule 8(a) of the Federal Rules of Crimi-

nal Procedure," therefore, limits joinder to offenses

The argument that judicial economy and efficiency are served

in joining offenses of the same or similar character under Rule

8(a), Federal Rules of Criminal Procedure, has been questioned

when compared with the dangers of unfairness to a defendant.

United States v. Halper, 590 F.2d 422, 430 (2d Cir. 1978) ; United

States v. Foutz, 540 F.2d 733, 738 (4th Cir. 1976). Note, Harmless

Error and Misjoinder Under the Federal Rules of Criminal Pro-

cedure: A Narrowing Division of Opinion, 6 Hofstra L. Rev. 533,

537-38 (1978). Comment, Joint and Single Trials under Rules 8

and 14 of the Federal Rules of Criminal Procedure, 74 Yale L.J.

533, 560 (1965).

™ Rule 8(a) of the Federal Rules of Criminal Procedure reads:

Joinder of Offenses. Two or more offenses may be charged in

the same indictment or information in a separate count for

14

of the same or similar character,” offenses based on

the same act or transaction, or offenses based on more

than one transaction connected together or constituting

part of a common scheme or plan. It does not allow

joinder of unrelated offenses. In military practice, the

rationale for the permissive joinder of unrelated

charges in the same charging instrument is described

as ‘practical reasons of dispatch.’’ Keith, 1 U.S.C.M.A.

at 448, 4 C.M.R. at 40. This rationale has been defined

more explicitly to mean that a separate trial for each

offense is a procedure ‘‘too unwieldy to be effective,

particularly in combat or deployment.” Analysis, app.

21, R.C.M. 601, Manual For Courts-Martial, 1984.

Unlike the sundry and legitimate reasons for ad-

mission of proof of a defendant’s prior criminal] acts,

and unlike the permitted joinder situations under the

Federal rule, the joinder of unrelated offenses has little

purpose under the circumstances of this case other

than prosecutor convenience. The murder charge is

completely and utterly irrelevant to the assault charge,

and the evidence as to each is irrelevant to the other.

This was a conventional criminal trial held in North

each offense if the offenses charged, whether felonies or mis-

demeanors or both, are of the same or similar character or are

based on the same act or transaction or on two or more acts

or transactions connected together or constituting parts of a

common scheme or plan.

‘2 Serious and responsible criticism exists, disapproving of the

procedure of joining two or more offenses of the same or similar

character under Rule 8(a). Such joinder provides too great a rick

of prejudice to an accused. McElroy v. United States, 164 U.S. 76,

79-80 (1896) ; Halper, supra n. 10 at 430-431; Foutz, supra n. 10 at

736; Drew v. United States, 331 F.2d 85, 88 (D.C. Cir. 1964).

15

Carolina, and cannot reasonably be considered as con-

ducted under circumstances of ‘‘military necessity”’

where ‘‘practical reasons of dispatch’’ compel a single,

rapid, proceeding disposing of all existing charges

agcinst an accused. In petitioner’s proceeding, the mili-

tary rule of joinder purposely prejudices petitioner

for no justifiable reason.

Under conditions of combat or extended deployment

of operational units, this military rule of permissive

unrelated offense joinder may be proper and legiti-

mate, but under the circumstances of this case, this

joinder rule combined with the court-martial’s exten-

sive and prejudicial evidentiary presentations, de-

privea petitioner of a fair trial and tius, due process

of law. This Court has opined that otherwise proper

and legitimate criminal rules may be applied to a de-

fendant in such a manner and under such cireum-

stances as to deprive him of a fair trial. Chambers ¥.

Mississippi, 410 U.S. 284 (1973). A “rule may not be

applied mechanistically to defeat the ends of justice.”’

Td, at 302.

This Court has promulgated no formal rule for

identifying deprivations of due process of law:

The phrase [due process of law] formulates a

concept less rigid and more fluid than those en-

my in other specific and particular provisions

f the Bill of Rights. Its application is less a

matter of rule. Asserted denial is to be tested by

an appraisal of the totality of facts in a given case.

Betts v. Brady, 316 U.S. 455, 462 (1942). The totality

of the facts in petitioner’s case reveals that all the

evidence presented on the assault charge denied him

a fair opportunity to defend against the murder

16

charge; the presumption of innocence was reasonably

jeopardized. How can the members of the court-mar-

tial, when considering the murder charge, fairly and

impartially deliberate on the element of ‘“‘intent to

kill’? when those same members have been told that

this defendant so provoked a hospital employee to

engage in a fight during which the defendant struck

the employee repeatedly about the face ? How can those

court-martial members impartially consider the ele-

ment of ‘‘intent to kill’? when they had been improper-

ly told that this defendant has a reputation for vio-

lence and is a violent person? No defense of accident,

no matter how strong or convincing, could overcome

the bias created. ‘‘A fair trial in a fair tribunal is a

basic requirement of due process. Fairness of course

requires an absence of actual bias in the trial of cases.

But our system of law has always endeavored to pre-

vent even the probability of unfairness.’’ Jn re Murchi-

son, 349 U.S. 133, 136 (1955),

The military judge’s instructions to keep the offenses

separate cannot remedy the obvious effects of the

evidence admitted on the assault charge. Quoting old

maxims, Circuit Judge Gewin in Dunn v. United

States, 307 F.2d 883 (5th Cir. 1962), proclaimed

anew, ‘‘[O]ne ‘cannot unring a bell’; ‘after the thrust

of the saber it is difficult to say forget the wound’;

and finally, ‘if you throw a skunk into the jury box,

you can’t instruct the jury not to smell it.’ ’’ Jd. at 886.

Realistically, when a juror is faced with deciding on

whether petitioner possessed an intent to kill George

Mayo, it is impossible to remove from that juror’s

mind evidence from two impressive medical profes-

sionals testifying that petitioner’s reputation is one

of violence and that he is a viclent person.

17

The rationale behind the ban on “other crimes’’

evidence and the arguments against joinder of unre-

lated and dissimilar offenses are the same. They both

prejudice the minds of the factfinders so that a ver-

dict on a particular charge is based on more than just

the evidence presented on that charge. Impartiality is

gone. The Supreme Court has held that a grossly im-

proper and pervasive prejudicial influence on the fact-

finders of a criminal tria: will cause a deprivation of

the due process guaranteed to a defendant. In Shep-

pard Vv. Marwell, 384 U.S. 333 (1966), this Court found

such a prejudicial influence where the trial judge failed

in his duty to protect the defendant from inherently

prejudicial publicity saturating the community and to

eontrol the disruptive influences in the court room.

**Due process requires that the accused receive a trial

by an impartial jury free from outside influences.”’

Id. at 362. Similarly in Estes v. Teras, 381 U.S, 532

(1965), this Court, in reversing the defendant's con-

viction, determined that the permission given to tele-

vise and broadcast this widely publicized and notorious

criminal trial deniec the defendant due process of law.

Justice Clark wrote: ‘*‘ Nevertheless, at times a proce-

dure employed by the State involves such a probability

that prejudice will result that it is deemed inherently

lacking in due process.’’ 7d. at 542-43. In Estes, the

probability that such publicity affected the jury was

so great under the circumstances of that case that the

‘“‘appearance of justice’? was obliterated. Again the

impartiality of the factfinders was guaranteed. A

strong influence on the Estes Court was Chief Justice

Taft's 1927 decision in Tumey v. State of Ohio, 273

U.S. 510 (1927). In Tumey, the trial judge, who was

also the village mayor, had a direct, personal, and

substantial pecuniary interest in reaching a decision

18

against the defendant. Chief Justice Taft asserted that

any procedure which ‘‘would offer a possible tempta-

tion to the average man as a judge to forget the burden

of proof required to convict the defendant, er which

might lead him not to hold the balanee nice, clear, and

true between the state and the accused denies the latter

due process of law.’ Id. at 532. This Court has repeat-

edly affirmed the inviolability of the factfinder’s im-

partiality and upheld a defendant’s right to due pro-

cess of law when this impartiality was compromised.

By affirming the decision of the United States Navy-

Marine Corps Court of Military Review, the United

States Court of Military Appeals decided an impor-

tant question of fairness and due process in military

proceedings. That decision has ensured that military

servicemen and women will be subject to trial on as .

many unrelated charges as the Government can amass,

thereby depriving them of their right to be tried on

the facts of each charge of which they are accused,

unaffected by extraneous evidence.

19

CONCLUSION

This petition for a writ of certiorari should be

granted.

Respectfully submitted,

JAMES J. QUIGLEY

Lieutenant Commander

JAGC, U.S. Navy

Counsel of Record

FREDERICK N. OTTIE

Lieutenant Commander

J AGC, U.S. Navy

Davin C. LARSON

Commander

JAGC, U.S. Navy

Appellate Defense Counsel

Navy—Marine Corps

Appellant Review Activity

Washington Navy Yard

Washington, D.C. 20374

(202) 433-2297

November 1985

APPENDIX

la

APPENDIX A

UNITED STATES COURT OF MILITARY APPEALS

USCMA Dkt. No. 48380/NA

CMR Dkt. No. 82-5474

Unrrep States, Appellee

Vv.

Loyp Simmons, IT (463-90-7521), Appellant

ORDER

Upon further consideration of the granted issues, it is

by the Court this 20th day of September, 1985,

ORDERED:

That the decision of the United States Navy-Marine

Corps Court of Military Review is affirmed.

For the Court,

/s/ John A. Cutts, IIT

Deputy Clerk of the Court

ec: The Judge Advocate General of the Navy

Appellate Defense Counsel (OTTIE,

Appellate Government Counsel (STRATTON)

2a

APPENDIX B

DEPARTMENT OF THE NAVY

OFFICE OF THE JUDGE ADVOCATE GENERAL

200 Stovall Street

Alexandria, VA 22332

In tHe U.S. Navy-Marine Corps Court or Mrmitrary Review

BEFORE

A. W. Eorr IT MicwHaet D. Rapp A. F. Mrevozarskr

Unirep States

v.

Loyp Simmons, II, 463 90 7521, Hospitalman (E-3),

U.S. Navy

NMCM 82 5474 Decided 30 November 1983

Sentence adjudged 29 June 1982

Review pursuant to Article 66(c), UCMJ of General Court-

Martial convered by Commanding General, Marine Corps

Air Station, Cherry Point, North Carolina 28533

IL.CDR Georgia L. Winstead, JAGC, USNR, Appellate

Defense Counsel

LCDR Robert T. Gerken, JAGC, USN, Appellate

Government Counsel

PER CURIAM:

Appellart was tried by general court-martial consisting

of members. He was found guilty contrary to his pleas of

unpremeditated murder and assault and battery under

Articles 118 and 128, Uniform Code of Military Justice

(UCMJ). He was sentenced to confinement at hard labor

3a

for 20 years, to be reduced to pay grade E-1, to forfeit all

pay and allowances and to be discharged from the service

with a dishonorable discharge. The convening authority

approved the findings and sentence without change. Appel-

lant assigns ten errors, three of which we will discuss (I,

II, and V).

The Appellant Was Denied His Right To An Impartial Panel

Of Court Members.

Thirteen members were originally named to the court

by the convening authority. After more than a day of voir

dire, seven members had been excused for cause and the

prosecution and defense had each exercised a peremptory

challenge reducing the panel below a quorum to four. The

convening authority appointed four new members. One of

those members was also excused for cause. Appellant’s

counsel sought an additional peremptory challenge against

the newly appointed members but it was denied by the

military judge. Appellant has assigned as error the mili-

tary judge’s failure to grant five of the defense challenges

for cause and his refusal to give the defense an additional

peremptory challenge. Colonel Gress and Lieutenant Col-

onel MeMullin were challenged based on their bias towards

the credibility of prosecution witnesses and because Col-

onel McMullin had read newspaper articles about this case.

Warrant Officer Gaskell was challenged on a supposed pre-

disposition to reject an intoxication defense and his having

read a newspaper article on the murder of Mayo. Major

Palmer was challenged on a number of grounds ranging

from his having overheard a discussion about a superior

being excused from the court to his religious beliefs con-

cerning the death penalty. Major Stimler was challenged

on five grounds extending from his hostile demeanor to-

ward defense counsel to his opinions about drinking and

drinkers.

4a

The decision to grant challenges for cause is imparted

to the military judge. Article 41(a), (b), UCMJ, 10 U.S.C.

§ 841(a) (1976) ; United States v. Harris, 13 MJ 288 (CMA

1982). The test which the military judge must apply in

reaching his decision was set out by the Court of Military

Appeals in United States v. Parker, 6 USCMA 274, 19

CMR 400 (1955). That test is whether the court member

‘is mentally free to render an impartial finding and sen-

tence based on the law and the evidence.’’ See United

States v. Boyd, 7 MJ 282 (CMA 1979). Appellate courts

will reverse judges’ decisions on challenges, only when

there is a clear abuse of discretion. Boyd, supra at 282;

United States v. Deain, 5 USCMA 44, 17 CMR 44 (1954).

After a careful study of the voir dire and applying the

tests as set out above, we conclude that the military judge

correctly disallowed the challenges for cause. We also find

that the military judge ruled correctly when he denied the

appellant an additional peremptory challenge against the

newly appointed members.

The Evidence Was Insufficient To Establish Appellant’s Guilt

Of Unpremeditated Murder Beyond A Reasonable Doubt.

The victim Mayo was a civilian who had come to Marine

Corps Air Station, Cherry Point, to help his brother-in-

law Corporal Simmons move his household goods. Mayo

was going to spend the night at the quarters of Corporal

Taylor, a nearby neighbor of Corporal Simmons. At about

2000 on the evening cf his death, Mayo was at the Taylor

home with Corporal Taylor and his wife. Appellant and

his friend Sergeant Davis came to the Taylor home to

visit, later to be joined by another neighbor Corporal

Flowers. An argument broke out between Mayo and Ser-

geant Davis. At the insistence of Corporal Taylor, Mayo

and appellant moved into the back yard. Appellant indi-

cated if there was to be a fight, they would have to fight

him first. Davis came into the back vard and was punched

5a

in the face by Mayo. Davis produced a pistol from his van

and stated he intended to shoot Mayo. Appellant took the

pistol away from Davis and later told Davis he would

return the pistol to him in the morning. Appellant there-

after placed the pistol in his boot. Later that night appel-

lant went to Corporal Taylor’s home to pick up his coat.

Mayo was now sleeping in the living room. Appellant and

Mayo started to argue as to why Mayo had hit Sergeant

Davis. Mayo suggested they go outside and fight. Mayo

was a much larger man than appellant. Appellant indicated

he was going to leave, but Mayo pushed him back on the

sofa when he stood. Appellant stated ‘‘don’t push me no

more or [’ll shoot you.’’ Mrs. Taylor had seen the pistol

in appellant’s left hand, against his left leg, while he sat

on the sofa. Appellant again attempted to stand only to

be pushed back by Mayo. The pistol discharged and the

bullet hit Mayo in the lower left eye lid. Appellant fled the

Taylor home, going to the home of Sergeant Davis and

his wife. Appellant told Mrs. Davis to get rid of the pistol

he was holding and to give him a ride. She refused to give

him a ride but took the pistol and put it in a dresser

drawer. Appellant entered Sergeant Davis’ van parked in

front of the house, where he was apprehended by the Naval

Investigative Service later in the morning.

The issues of self-defense, accident, provocation, and

negligence were presented to the members, who rejected

them and found appellant guilty of unpremeditated murder.

We find that there was sufficient evidence to sustain the

members’ finding, and we reject this assignment of error.

Tl

The Military Judge Erred To The Substantial Prejudice

Of The Appellant By Allowing The Trial Counsel To

Introduce Evidence Of The Appellant’s Bad Character

For Peacefulness.

Upon conclusion of the defense case, the military judge

permitted the Government to call two witnesses in rebuttal

6a

who testified that the appellant had a reputation in the

hospital community where he worked as a violent person.

Military Rules of Evidence 404(a)(1) permits the Govern-

ment to rebut evidence of a pertinent character trait of

the accused offered by an accused. No guidance has been

supplied as to what constitutes evidence of a character

trait, so as to raise the issue and permit the prosecution

to rebut. Appellant testified that he had never had any

problems with Mr. Haynes in the past, that they were

friendly and that he only struck Mr. Haynes because he

was trying to hurt him. We hold that this was insufficient

to put in issue the peacefulness of appellant so as to allow

the Government to rebut. The military judge, therefore,

erred when he allowed opinion evidence to the effect that

appellant’s reputation at the hospital where he works was

that of a violent person. However, the military judge spe-

cifically instructed the members that they were to disregard

this testimony as to Charge I, since the evidence was ad-

mitted only as to Charge II, the assault and battery at the

hospital. We can presume the members did as instructed.

United States v. Hurt, 9 USCMA 735, 27 CMR 3 (1958).

In view of the military judge’s limiting instruction, we

find that the error goes only to Charge IT and its specifi-

cation.

Vv

The Instructions Of The Military Judge On Self-Defense

On The Murder Charge Were Insufficient And Misleading

Where They Focused Only On The Self-Defense Test

Which Would Justify Use Of Deadly Force And Failed To

Address Self-Defense In Use Of Less Than Deadly Force

Which Unexpectedly Results In Death.

The evidence of record established that during the period

leading up to the shooting, appellant did not brandish the

pistol at the victim at any time. To the contrary, the ap-

pellant’s own testimony indicates that he was only attempt-

ing to put the pistol in his back pocket when it went off.

7a

The military judge .ustructed the members on the use of a

weapon as a deterrent and distinguished such a use from

one in which the appellant may have feared grievous bodily

harm was about to be inflicted upon him, thus allowing him

to use deadly force in self-defense. The military judge’s

instructions were very detailed and more inclusive than

was dictated by the evidence. We find no merit in this as-

signment of error.

We find that the remaining assignments of error are

without merit. The findings of guilty to Charge II and its

specification are disapproved. In view of the fact that

appellant was found guilty only of an assault consummated

by a battery, a relatively minor offense in comparison to

unpremeditated murder, we do not believe that a rehearing

is in the interests of justice or judicial economy. Charge IT

and its specification as modified by the findings of the

Court are therefore dismissed. Article 66(d), UCMJ. Upon

reassessment we find the sentence appropriate for the re-

maining findings of guilty to unpremeditated murder.

Accordingly, the remaining findings of guilty and the sen-

tence as approved on review below are affirmed.

/s/ Avpert W. Eorr II

Albert W. Eoff II, Chief Judge

/s/ Micwast D. Rapp

Michael D. Rapp, Judge

/s/ A. F. Mrevczarski

A. F. Mielezarski, Judge