# Petition for Writ of Certiorari — Simmons v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1072%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1986 - **Citation:** 475 U.S. 1011 ## Text 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 4 o a ‘ 5 7 es 7 sD - te: Mn 4 eee 40 LJ = = oe Te = a i 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 QUESTIONS PRESENTED ...... 2.6... see ee eect e ee eeeees i T sBtR OF AUTMORITIBS 2... ccc ccc ccc cece cc cccccnns ii oo, 2 Serr rer rr sry 1 UNNOEE oo ooo. v00knbboieeues eb eee enseessenetes 2 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 CE, Cem, GE, YF oo nc cisc cece iesscencetcuasese 2 Bp Bs WEE GK bbcececccccddvancdeseceucesestacen 2 PD Ps RU on hah ede cceecckacccsccecsnsdccncius 8 SD ED ck canis sedescdeeeansbaseteccenes ene 7 es UE no x nec bdncdénsnseccecasadadsanense 6 Oy ED 4 enna ecccdndeck~ $0ks0060060046RKs 7 Se I, EE n-n nc on cnccweescccasavcsusccpasucent 3 ED so h4 oc 0 nn cdcaebaecanquesceebensnens 3 ie RED ng cn guccesedsduadadaeseu can base 2 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.) PE IEE oc conccccccncecsucxccessencens 8 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1072%3A1. Public record. Not legal advice.