Petition for Writ of Certiorari — Rice v. United States

Jn the Supreme Court of the Gnited States

OCTOBER TERM, 1987

%

JAMES H. RICE, JR., PETITIONER,

y,

UNITED STATES, RESPONDENT.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

LEO L. SERGI

Colonel, Office of The

Judge Advocate General

United States Air Force

HO USAF/JAJD

Bldg 5683

Bolling AFB, DC 20332-6128

(202) 767-1562

Counsel of Record

and

FRANK J. SPINNER

Major, Office of The

Judge Advocate General

United States Air Force

QUESTION PRESENTED

Was petitioner denied due process of law when the trial

judge improperly relied on a fact not in evidence in

sentencing petitioner to life imprisonment?

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TABLE OF CONTENTS

so ht ed pak scene kia hs

Ne ee oa yo ewe kd wes A we

Manual for Courts-Martial Provision Involved .

ES re

Reasons for Granting the Writ ..................

a NRCS

TABLE OF AUTHORITIES

Cases:

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

Downey v. Peyton, 451 F.2d 236 (4th Cir. 1971)

Gardner v. Florida, 430 U.S. 349 (1977) .......

Llewellyn v. Stynchcombe, 609 F.2d 194 (Sth

alee wa eaee aes ss

United States v. Gutman, 725 F.2d 417 (7th Cir.

1984), cert. denied, 469 U.S. 880 (1984) .....

United States v. Howard, 506 F.2d 865 (Sth Cir.

ASE on 2 a Eh

United States ex rel. Owen vy. McMann, 435 F.2d

813 (2d Cir. 1970), cert. denied, 402 U.S. 906

re ok vw bua.

United States v. Rice, ACM 23506, slip op.

(A.F..M.R. February 4, 1963) ............

United States v. Rice, 20 M.J. 764 (A.F.C.M.R.

1985), aff'd, 25 M.J. 35 (C.M.A. 1987) ......

Washington v. Strickland, 673 F.2d 879, 693

F.2d 1243 (Sth Cir. 1982) (en banc), rev’d on

other grounds, 466 U.S. 668 (1984) .........

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(iv)

Constitution and Statutes: —

RE gO ES Se = an

10 U.S.C. § 867(h)(Supp III 1985) ...........

28 U.S.C. § 1259(3)(Supp III 1985) ..........

Rules of Evidence:

Ps We ND o's Sica dene eka vessuenes

BEM, Ws MONE UD Skane cece dacs cavvecdnes

Jn the Supreme Court of the Anited States

OCTOBER TERM, 1987

No.

JAMES H. RICE, JR., PETITIONER.

V.

UNITED STATES, RESPONDENT,

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

James H. Rice, Jr., respectfully prays that a writ of cer-

tiorari issue to review the judgment of the United States

Court of Military Appeals entered in his case on

September 23, 1987.

OPINIONS BELOW

The initial, unreported, decision of the United States

Air Force Court of Military Review remanding the case

was rendered on February 4, 1983, and is reproduced in

the appendix to this petition (“Pet. App.”) at page 28a.

United States v. Rice, ACM 23506, slip op. (A.F.C.M.R.

1983). The court’s final decision is reported at 20 M.J. 764

(A.F.C.M.R. 1985), Pet. App. 16a. The decision of the

United States Court of Military Appeals is reported at 25

M.J. 35 (C.M.A. 1987), Pet. App. la.

JURISDICTION

The jurisdiction of this Court is invoked under 28

U.S.C. § 1259(3) (Supp. III 1985) and 10 U.S.C. § 867(h)

(Supp. III 1985). The judgment of the United States Court

of Military Appeals was entered on September 23, 1987.

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CONSTITUTIONAL PROVISION INVOLVED

The Fifth Amendment provides:

No person shall . . . be deprived of life, liberty, or

property, without due process of law. .. .

MANUAL FOR COURTS-MARTIAL PROVISION INVOLVED

Rule 606 of the Military Rules of Evidence, Manual for

Courts-Martial, United States, 1969 (Revised edition)

(“M.C.M., 1969 (Rev.))”, Exec. Order No. 11476, pro-

vides in pertinent part:

(b) Jnquiry into validity of findings or sentence.

Upon an inquiry into the validity of findings or

sentence, a member may not testify as to any matter

-Or statement occurring during the course of the

deliberations of the members of the court-martial or

to the effect of anything upon the member’s or any

other member’s mind or emotions as influencing the

member to assent to or dissent from the findings or

sentence Or concerning the member’s mental process

in connection therewith, except that a member may

testify on the question whether extraneous prejudicial

information was improperly brought to the attention

of the members of the court-martial, whether any

ouiside influence was improperly brought to bear

upon any member or whether there was unlawful

command influence. Nor may the member’s affidavit

or evidence of any statement by the member concern-

ing a matter about which the member would be

precluded from testifying be received for these

purposes.

STATEMENT OF THE CASE

Petitioner was tried by a general court-martial, military

judge alone, in February, 1982, at Randolph Air Force

Base, Texas. Pursuant to his pleas, he was found guilty of

unpremeditated murder and aggravated assault. The court

sentenced him to life imprisonment, dismissal from the

service, and total forfeiture of pay.

In the course of plea negotiations with the general court-

martial convening authority, petitioner’s two civilian and

single military defense counsel met with the military judge

in a pretrial conference. This conference was also attended

by members of the prosecution. Petitioner was absent. As

a result of statements made by the judge during this ses-

sion concerning his sentencing philosophy, petitioner

elected to conclude a plea bargain with the convening

authority and request trial by judge alone. Thereupon, he

entered pleas of guilty to unpremeditated murder of

another Air Force lieutenant and aggravated assault upon

a security policeman. The plea agreement made no

reference to any limitations on the potential sentence

which included a maximum term of life imprisonment.

About three months after the trial and on appeal, peti-

tioner claimed that in a pretrial conference the judge

promised not to sentence him to more than 30 years con-

finement. The first appellate court, the United States Air

Force Court of Military Review (Court of Review),

remanded the case for a limited hearing on the providency

of petitioner’s pleas as a result of his claim. United States

v. Rice, ACM 23506, slip op. (A.F.C.M.R. February 4,

1983). During the hearing, the trial judge testified regard-

ing the pretrial conference. He said that an unresolved fac-

tor in his mind relevant to determining an appropriate

sentence was whether the victim’s hands were tied behind

his back at the time of death. He stated further that the

evidence presented at trial disclosed the victim’s hands

were, in fact, so tied. The implication flowing from these

remarks was that this fact justified the sentence to life

imprisonment.

Petitioner then claimed that the judge’s testimony raised

a new issue, because the evidence in the record of trial did

4

not support the judge’s recollection. Upon reviewing the

record of the limited hearing, the Court of Review, relying

on Military Rule of Evidence 606(b),' M.C.M., 1969

(Rev.), and citing Washington v. Strickland, 673 F.2d 879,

693 F.2d 1243 (Sth Cir. 1982) (en banc), rev’d on other

grounds, 466 U.S. 668 (1984), found the judge’s testimony

“inadmissible for the purpose of impeaching his sentence.”

Rice, 20 M.J. at 769. The court did not address whether

the evidence admitted at trial comported with the trial

judge’s recollection.

While agreeing with the lower court, the Court of

Military Appeals did examine the record of trial and deter-

mined that the fact of the victim’s hands being tied could

be reasonably inferred from a stipulation of fact (Pros.

Ex. 49) and was not necessarily inconsistent with peti-

tioner’s responses during the providency inquiry. Rice, 25

M.J. at 38. Petitioner submits that the Court of Military

Appeals erred by concluding that the inference was

reasonable and ruling that the judge’s testimony at the

post-trial hearing cannot be used to impeach the sentence

he adjudged.

REASONS FOR GRANTING THE WRIT

Petitioner maintains that the trial judge relied on a con-

clusion of fact not found in the evidence to determine a

sentence. In so doing, the judge denied petitioner due

process of law. See Chambers v. Mississippi, 410 U.S. 284

(1973); United States ex rel. Owen v. McMann, 435 F.2d

813, 817-818 (2d Cir. 1970), cert. denied, 402 U.S. 906

(1972). The fact in issue, if petitioner’s claim is accepted, is

in the nature of extraneous material. Improper introduc-

tion of extraneous material into jury deliberations is an ex-

ceptional basis for impeachment evidence. Mil. R. Evid.

606(b). Extraneous material is “information, whether

' Mil. R. Evid. 606(b) incorporated Fed. R. Evid. 606(b).

5

documentary or oral in nature, introduced into the jury

room but not put before [the jurors] at trial.” Downey v.

Peyton, 451 F.2d 236, 239 (4th Cir. 1971). Although in-

quiry may not be had into how extraneous material or in-

fluences operated upon a deliberator’s mind, either

testimonial or affidavit evidence is admissible to prove the

existence of such material or influence. United States vy.

Gutman, 725 F.2d 417, 422 (7th Cir. 1984), cert. denied,

469 U.S. 880 (1984); Llewellyn v. Stynchcombe, 609 F.2d

194, 196 (Sth Cir. 1980). The reviewing court shall rebut-

tably assume prejudice and the burden is on the govern-

ment to demonstrate the harmlessness of the intruding ex-

traneous material. United States v. Howard, 506 F.2d 865,

868 (Sth Cir. 1975).

The sentencing process, not simply the verdict itself,

must satisfy due process requirements. Gardner y.

Florida, 430 U.S. 349, 358 (1977). Petitioner’s case im-

parts a unique insight into a judge’s sentencing inclinations

and records a rare instance of factual error relied upon by

that judge. Admittedly, these circumstances may not hap-

pen again soon, however, where a sentence is so severe and

the error is so great, further denial of due process cannot

be called justice.

6

CONCLUSION

Petitioner submits that he has suffered a denial of due

process of law. Therefore, his petition for a writ of cer-

tiorari should be granted.

LEO L. SERGI

Colonel, Office of The

Judge Advocate General (OTJAG)

United States Air Force

HQ USAF/JAJD

Bldg 5683

Bolling AFB, DC 20332-6128

(202) 767-1562

Counsel of Record

and

FRANK J. SPINNER

Major, OTJAG

United States Air Force

NOVEMBER 1987

APPENDICES

APPENDIX

UNITED STATES, APPELLEE

Vv.

JAMES H. Rice, JR., SECOND LIEUTENANT

U.S. AIR FORCE

No. 52,924

ACM 23506

United States Court of Military Appeals

September 23, 1987

COUNSEL

For Appellant: Jay D. Terry, Esq. (argued); Captain

Timothy J. Malloy (on brief); Colonel Leo L. Sergi and

Major Alexander S. Nicholas.

For Appellee: Lieutenant Colonel Robert E.

Giovagnoni (argued); Colonel Joe R. Lamport and Major

Joseph §S. Kistler (on brief); Colonel Kenneth R. Rengert

and Major Robert E. Ferencik, Jr.

OPINION OF THE COURT

SULLIVAN, Judge: —

During February 1982 appellant was tried by general

court-martial, military judge sitting alone, at Randolph

Air Force Base, Texas. Pursuant to his pleas, he was

found guilty of unpremeditated murder and aggravated

assault, in violation of Articles 118(2) and 128(b)(1),

Uniform Code of Military Justice, 10 U.S.C. §§ 918(2)

and 928(b)(1), respectively. He was sentenced to dismissal,

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2a

confinement for life, and total forfeitures. The convening

authority approved, and the Court of Military Review af-

firmed, the findings and sentence. 20 M.J. 764 (1985).

This Court granted review of the following specified

issues:

WHETHER THE MILITARY JUDGE’S TESTIMONY AT A

POST-TRIAL HEARING MAY BE USED TO IMPEACH

THE SENTENCE HE HAD PREVIOUSLY IMPOSED IN

THIS CASE.

WHETHER DEFENSE COUNSEL’S ALLEGED MIS-

UNDERSTANDING OF THE MILITARY JUDGE’S COM-

MENTS AT THE UNRECORDED PRETRIAL CON-

FERENCE AFFECTED THE ACCUSED’S DECISION TO

SEEK TRIAL BY MILITARY JUDGE ALONE.

WHETHER DEFENSE COUNSEL’S ALLEGED. MIS-

UNDERSTANDING OF THE MILITARY JUDGE’S COM-

MENTS AT THE UNRECORDED PRETRIAL CON-

FERENCE AFFECTED HIS THEN INCHOATE ORAL

PRETRIAL AGREEMENT NEGOTIATIONS WITH THE

CONVENING AUTHORITY.

We hold that none of the specified exceptions found in

Mil. R. Evid. 606(b), Manual for Courts-Martial, United

States, 1969 (Revised edition), permit use of this judge’s

post-trial testimony to impeach his adjudged sentence.

Moreover, we conclude that no promise was made by the

military judge, and one could not be reasonably perceived,

that appellant would not be sentenced to life in prison.

Finally, we hold that defense counsel is estopped from

asserting any prejudice in his dealings with the convening

authority resulting from the irregular, defense-initiated,

pretrial conference with the military judge.

3a

A complete rendition of the facts of this case are

reported in the opinion below. United States v. Rice, supra

at 765-67. It suffices to note that on July 6, 1981, ap-

pellant murdered a fellow officer by strangulation. This

officer’s death followed an altercation resulting from a

perceived insult to the State of Texas and the deceased’s

“flipping him the finger.” During an aborted escape at-

tempt appellant also shot at one of the Security Policemen

who had blocked his escape path. Appellant was _ per-

suaded to surrender to the authorities approximately 2 to 3

hours after the police confrontation began.

Appellant was initially charged with premeditated

murder and assault with a deadly weapon, with the former

charge being referred as capital. Trial began on February

2, 1982, when he was arraigned, several motions were

litigated, and voir dire of several proposed members oc-

curred. On February 4, this case was continued until

February 10 due to “a death in the military judge’s

family.” During this time appellant and his counsel con-

cluded a pretrial agreement with the convening authority

in which appellant would plead guilty to unpremeditated

murder in a non-capital case in exchange for dropping the

premeditated-murder charge. The convening authority ac-

cepted this agreement with the provision that the military

judge and all counsel be advised of the pending agreement,

that appellant concur in the agreement, and that the agree-

ment be “reduced to writing, and signed by all parties.” 20

M.J. at 766.

Upon meeting with the military judge, the civilian

defense counsel initiated a discussion regarding the judge’s

disposition concerning life sentences. Defense counsel in-

timated that civilian judges could and did discuss sentenc-

ing during meetings of this type. The military judge par-

ticipated in the discussion. Furthermore, he stated his

general sentencing philosophy regarding a life sentence.

However, he clearly indicated to defense counsel that his

"

4a

decision in this case would await development of the facts

presented during trial. The trial resumed shortly after this

meeting, and appellant was subsequently sentenced to life

imprisonment for the unpremeditated murder of Lieu-

tenant Scherp. On appeal, appellant asserted that the

military judge effectively promised to sentence him to a

maximum of 30 years’ confinement.

This issue was first raised 3 months after trial. The

Court of Military Review, on February 4, 1983, remanded

the case for a limited post-trial hearing in order to deter-

mine if appellant’s guilty pleas were improvident due to an

unfulfilled sentencing agreement. After this hearing (see

appendix) that court ordered a new action. When the case

was finally returned to that court, it concluded that the

military judge’s post-trial testimony could not be used to

impeach the sentence adjudged by him and that the |

military judge made no promises or commitments regard- |

ing sentence limitations. United States v. Rice, supra at |

769.

ISSUE I

Appellant urges this Court to hold that the military

judge impermissibly relied on extraneous prejudicial infor- |

mation in sentencing appellant to life imprisonment. See

United States v. Witherspoon, 16 M.J. 252 (C.M.A.

1983); United States v. Bishop, 11 M.J. 7 (C.M.A. 1981).

In particular, appellant asserts that the judge admitted in

his post-trial testimony that he sentenced appellant to life

because he found that the victim’s hands were tied at the

time of death. Appellant contends that neither the stipula-

tion of fact nor his Care*-inquiry testimony gives any sup-

port for this finding by the military judge. Accordingly, he

submits that the judge must have relied on extra-record

evidence for this finding, and he asks for a rehearing on

sentence.

ener ee

Sa

We first note that the stipulation of fact agreed upon by

all parties does expressly say that the victim’s hands were

tied during the fatal struggle. It states:

During this time [while appellant was in the victim’s

room], there was a fight. At some point during the

hour, Lieutenant Rice tied Lieutenant Scherp’s hands

behind his back.

Lieutenant Scherp screamed for help for approxi-

mately thirty to sixty seconds. These screams were

heard by the person occupying the room directly

above Lieutenant Scherp’s room, Second Lieutenant

Scott E. Miner, at approximately 0330 hours. Lieute-

nant Miner immediately called the Security Police.

The Accused, at this point, with the intent to inflict

giievous bodily harm, placed his arm around Lieute-

nant Scherp’s neck in a choke hold and kept that hold

until Lieutenant Scherp died.

This stipulation does not state that the victim’s hands had

subsequently become untied. Therefore, it is broad

enough to support a reasonable inference that the victim’s

hands were tied at the time the fatal choke hold was ap-

plied. See generally E. Imwinkelried, P. Giannelli, F.

Gilligan, F. Lederer, Criminal Evidence 65-67 (1979).

Defense counsel attempts to combine this stipulation

with appellant’s Care-inquiry testimony to establish that

the victim’s hands were free at the time of the victim’s

death. However, it only provides an inference that the vic-

tim’s hands were untied at the time of death. At the Care

inquiry, the testimony by appellant was as follows:

ACC: Sir, we were both screaming, yes, sir.

MJ: Really loud? There was a lot of noise?

ACC: Yes, sir.

MJ: What did you do at that point then?

ACC: Sir, I attempted to leave the room.

MJ: What caused you to return?

meen |

6a

ACC: Sir, a blow to my head.

MJ: What was the source of the blow, do you

know?

ACC: Sir, I determined the source to be a toaster

that I had used the cord of which just to tie

the deceased with.

MJ: So what did you do at that point?

ACC: | Sir, at that point, I used a stronger method of

subduing the deceased. Further, the struggle

continued and, after a while, I put him in a

choke hold.

MJ: With your forearm?

ACC: Yes, sir.

MJ: Around the front part of his throat, is that

right?

ACC: Yes, sir.

MJ: All right. Did he subsequently go limp?

ACC: Yes, sir, he did.

MJ: Now, to the best of your belief, is Lieutenant

Scherp dead?

ACC: Yes, sir, to the best of my knowledge he is

dead.

MJ: And, also, to the best of your knowledge, this

resulted from this choke hold you put on him

in an attempt to subdue during the fight?

ACC: Yes, sir, it is.

MJ: Did you intend at that time to kill him or to in-

flict serious bodily harm on him when you put

the choke hold on him?

ACC: Sir, I did intend to commit serious bodily

harm at that time.

(Emphasis added.)

Defense counsel argues that since the victim had thrown

the toaster, his hands could not have been bound at that

time. Moreover, he asserts that there was no evidence that

his hands were subsequently retied. Accordingly, he con-

7a

cludes that the record established that the victim’s hands

were not tied at the later time of his death. Such an in-

ference is reasonable, but it is not mandatory as a matter

of law or common sense. In any event, the military judge

was not required to believe the additional facts averred by

appellant which were not necessary for acceptance of his

pleas. United States v. Snipes, 18 M.J. 172, 175 (C.M.A.

1984); see generally United States v. Chambers, 12 M.J.

442 (C.M.A. 1982); United States v. Moglia, 3 M.J. 216

(C.M.A. 1977). As a trier of fact and sentencing body, the

military judge could disbelieve appellant’s self-serving

testimony and conclude that the victim remained bound.

Para. 76a(2), Manual, supra. See Anderson v. City of

Bessemer City, 470 U.S. 564, 573-76, 105 S.Ct. 1504,

1511-13 (1985); United States v. Williams, 21 M.J. 360,

362 (C.M.A. 1986).

Assuming the military judge disbelieved this portion of

appellant’s testimony, an equally reasonable scenario

could be drawn from the entire record in this case. Ap-

pellant had a number of hours to rearrange the crime

scene. The body of the deceased was discovered in bed

with blankets partially covering the body from the chest

down. The toaster, with its cord still attached, was found

under the bed. Under these circumstances, a reasonable in-

ference could be drawn that the victim was bound at the

time of death, and appellant untied the victim’s hands and

placed the body in the bed after being surrounded by the

police. Thus, we cannot say that the military judge relied

on extraneous prejudicial information in concluding that

the victim’s hands were tied at the time of his death.

In summary, we conclude that the military judge was

not asked and did not testify that extraneous prejudicial

information was considered in his deliberations on ap-

pellant’s sentence. See Mil.R.Evid. 606(b). Instead, ap-

pellant has belatedly attempted to infer such reliance from

the military judge’s post-trial testimony on a different

8a

matter. In view of the posture of this record, we find such

an appellate tactic is no more than an attempt to ac-

complish the precise inquiry into the trial judge’s mind

which is prohibited by Mil.R.Evid. 606. See Washington

v. Strickland, 693 F.2d 1243, 1263 (Sth Cir. 1982) (en

banc), rev’d on other grounds, 466 U.S. 668, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984); Proffitt v. Wainwright, 685

F.2d 1227, 1255 (11th Cir. 1982), cert. denied, 464 U.S.

1002 (1983).

ISSUES 11 & Il

The second granted issue questions the impact of

defense counsel’s alleged misunderstanding of the military

judge’s pretrial comments on appellant’s decision to seek

trial by military judge alone. The third granted issue asks

whether this alleged misunderstanding affected his “in-

choate” pretrial agreement negotiations with the conven-

ing authority. Appellant asserts that the judge’s comments

which purportedly suggested that no life sentence would

be imposed induced him to request trial by judge alone

and discontinue his plea bargaining efforts. A similar

post-trial claim concerning his decision to plead guilty was

rejected as a matter of fact and law by the Court of

Military Review. We agree with that court’s resolution of

that question, which is also applicable to the present

claims before this Court.

We particularly note that the comments of the judge

were made at an irregular, unrecorded, post-arraignment

conference requested by appellant’s defense counsel.

United States v. Gray, 7 M.J. 296 (C.M.A. 1979); United

States v. Priest, 19 U.S.C.M.A. 446, 42 C.M.R. 48 (1970);

cf. R.C.M. 802, Manual for Courts-Martial, United

States, 1984. In addition, appellant’s civilian lawyers were

assisted by military defense counsel at this meeting and

throughout the entire trial. Presumably, they knew that

the convening authority, not the military judge, makes

———————

9a

sentence-limitation agreements. See United Slates v.

Caruth, 6 M.J. 184 (C.M.A. 1979). Finally, the military

judge’s comments at this pretrial conference, as well as his

later statements and appellant’s statements during the

guilty-plea inquiry, and counsel’s lack of timely objection

at the announcement of sentence make clear that no deal

existed or could be reasonably perceived to exist in this

case. Any prejudice or detriment suffered by appellant in

this context was self-induced and, accordingly, waived.

The decision of the United States Air Force Court of

Military Review is affirmed.

Chief Judge EVERETT and Judge COX concur.

* United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969).

10a

APPENDIX

FINDINGS

1. The post-trial hearing in the case of United States v.

2dLt James H. Rice, Jr., 455-78-7767, directed by the Air

Force Court of Military Review on 4 February 1983 was

conducted at Fort Leavenworth, Kansas, on 13-14 April

1983. A verbatim transcript was prepared and is authenti-

cated by me on this date. I reviewed the record of the trial

conducted on 2-18 February 1982 and the allied

documents accompanying that record including the post-

trial review. Also both counsel at the limited hearing sub-

mitted summations and they are attached to this record.

The submission of Jay Terry, Esq., is Hearing Exhibit 8

and the submission of Major George Cato is Hearing Ex-

hibit 9. All of the above described documents have been

considered.

2. Pursuant to the Court of Military Review opinion

the following findings of fact are entered:

a. Timing of significant events: Negotiations with

respect to a pretrial agreement began before 2 February

1982 with a series of offers from Mr. Frank Wright to

plead guilty to lesser included offenses of involuntary and

voluntary manslaughter made to BG (then Colonel)

Rhoten, the convening authority, through the trial

counsel, Major Fiore, and the staff judge advocate, Lt

Colonel Penater. These offers were totally rejected by BG

Rhoten before the trial began on 2 February 1982. The

decision of the convening authority was duly relayed to

Mr. Wright and the defense team. This series of offers and

the rejection of them were not reduced to writing. The trial

began on 2 February 1982 with no negotiations pending

and the trial was proceeding as a capital case. A session

pursuant to Article 39a, U.C.M.J., was in progress on 4

February 1982 when a recess was declared due to the ill-

ness (and subsequent death) of the father of the military

~ lla

judge, Colonel Kenneth Randall. Procedural matters in-

cluding arraignment and entry of not guilty pleas, several

motions of the defense, and voir dire of four panel

members had been accomplished at the time of the recess.

The trial was scheduled to resume on the morning of 10

February 1982 with a continuation of voir dire of panel

members. On 8 February 1982 during a telephone conver-

sation between Mr. Wright and Major Fiore on other mat-

ters, a discussion occurred regarding plea negotiations.

Major Fiore considered the discussion to be an offer to

plead guilty to unpremeditated murder and aggravated

assault in return for the government amending the charges

to conform with such pleas. The principal effect would be

to make the case non-capital. Major Fiore contacted Lt

Colonel Penater and a meeting with the convening

authority was set for 9 February 1982. The offer was pre-

sented to the convening authority on 9 February 1982 and

he stated he would advise them of his decision later in the

day after returning from a scheduled flight. The convening

authority decided to accept the offer and advised his staff

judge advocate of his decision that same day. The SJA in-

formed Major Fiore of the decision also on 9 February

shortly after Colonel Randall’s return to San Antonio and

advised him that plea negotiations were in progress and

that there was no need to begin the proceedings early in the

morning of 10 February as scheduled. Major Fiore prob-

ably informed one of the defense counsel of the convening

authority’s decision on the 9th also, but if not, did so on

the morning of the 10th before the meeting between

counsel and the military judge. I find that all counsel and

the convening authority understood that any pretrial

agreement would have to be concurred in by the accused

and thereafter reduced to writing and signed by the par-

ties. Thus the negotiations were contingent in this respect.

An agreement as contemplated would enable the accused

to submit a request for trial before the military judge alone

12a

and counsel were aware of this effect and comments were

made regarding such a possibility. However, such a re-

quest was not a term of the negotiations and was under-

stood by all counsel to be a separate matter. Thus at the

time of the 10 February meeting between all counsel and

the military judge, a pretrial agreement had _ been

negotiated subject to acceptance by the accused to plead

guilty to unpremediated murder and aggravated assault

and for the government to amend the charges in conform-

ance therewith. The agreement had not been reduced to

writing nor signed by any parties nor had a stipulation of

fact been signed although a stipulation was in the process

of being prepared. The option of the accused to request a

bench trial, assuming amendment of charges, was not part

of the negotiations, and it was this option that the defense

counsel were concerned with in requesting the meeting.

b. The 10 February meeting: The meeting was at-

tended by all six counsel [the three military trial counsel,

the trial defense counsel, Mr. Wright and Mr. Clancy] and

the military judge and lasted about 10 minutes. The first

comments were expressions of condolences to the military

judge. Mr. Wright then explained that a pretrial agree-

ment was anticipated with the accused pleading guilty to

unpremeditated murder and aggravated assault, and the

government would then move to amend the charges to

conform with the pleas. The procedure involved in ac-

complishing this was referenced during the explanation.

Mr. Wright commented that in civilian cases, it was not

uncommon to discuss sentencing with judges and if the

military judge was willing to do so, he had some questions.

The military judge stated that normally he did not do so

but consented to the questioning. Mr. Wright then ques-

tioned the military judge. The military judge stated that he

did not believe that every murderer should receive a life

sentence and that he could think in terms substantially less

than a life sentence depending on the extenuation and

13a

mitigation. He knew that there would be psychiatric testi-

mony forthcoming and anticipated other forms of ex-

tenuation and mitigation. He also made reference to learn-

ing more as to the facts and circumstances of the offense.

His comments were specifically directed to the case at

hand. The military judge made no promises and made it

clear that a sentence imposed by him would depend on the

facts and circumstances and the extenuation and mitiga-

tion presented. The military judge did make a statement to

the effect that “One life has been lost and I see no need to

lose another.” The exact timing and context of this state-

ment is difficult to fix but I believe it to have been in the

context that the proceeding would not be a capital case. It

was not intended to be nor could it reasonably have been

interpreted as being a statement that he definitely would

not give a life sentence in the case at hand. The discussion

was then turned by Mr. Wright to what the practical

equivalent of a life sentence would be in a fixed term,

parole considerations being the standard for comparison.

Opinions were expressed by Mr. Wright, Mr. Clancy, and

probably others, and it was generally agreed that 30-35

years was a practical equivalent. During this discussion the

counsel for the accused made statements that they felt the

military procedure in death penalty cases would be found

unconstitutional and that the defense did not wish to plead

if the accused was going to receive a life sentence in any

event. Throughout the meeting, the military judge ex-

pressed the position that a sentence adjudged by him

would depend on the evidence submitted and specific

references were made by him to psychiatric testimony and

other extenuation and mitigation he anticipated receiving.

He made no commitment, promise or agreement to im-

pose less than a life sentence. The impression or percep-

tion of the two civilian defense counsel as set forth in their

testimony that the military judge committed himself to less

than life imprisonment was not well founded and could

l4a

not have been reasonably based on the statements of the

military judge.

c. Trial counsel participation: All parties had put con-

siderable effort into preparing for the case and were in-

tensely involved. All recognized that the meeting was

unusual and that there were hazards, thus comments were

guarded and sometimes indirect. The concerns,

understandings, and objectives of the participants were

different during the meeting. All parties understood that

an agreement had been negotiated as to pleas between

counsel and the convening authority. The defense counsel

had not yet obtained concurrence of the accused and they

would shortly be presenting the agreement to him. They

were attempting to gather as much information as possible

to present to him. All parties recognized that plea bargains

are not final until the case was completed, thus all

recognized that the agreement could fall out. This was

especially true for the military participants who were more

acutely aware of the military procedure and requirements

a§ to guilty pleas and pretrial agreements. Defense counsel

were concerned with the question of a jury versus bench

trial and had not yet made a decision on that matter. The

military judge believed there would be a request for trial

before judge alone. He wished to assure the defense that

he was not “locked into” a life sentence and that a sentence

imposed by him would depend on the evidence and mat-

ters presented. The trial counsel recognized that the

defense was addressing that issue and that the defense had

not yet made a decision as-to it. They viewed the meeting

as unusual and were very concerned with what was said by

all parties. Their interests were to be present to keep the

meeting from being ex parte and to monitor what oc-

curred. Trial counsel made no significant substantive in-

put in the conversation. All three trial personnel were em-

phatic in their beliefs that the military judge made no com-

mitment as to sentencing and that the maximum imposable

lSa

sentence had not been reduced to something less than life

imprisonment. At no time during the trial did they believe

that there were any deals or understandings outside of the

formal agreement and they feit the inquiries of the accused

as to the plea and pretrial agreement were adequate and

appropriate. I find their beliefs to be reasonable and well-

founded. The presentation of the prosecution during the

sentencing phase of the trial was aggressive and most

vigorous and obviously they were seeking the maximum

imposable sentence. ;

d. Defense objections first raised: Mr. Wright and

Mr. Clancy testified that they immediately believed the

military judge had failed to abide by a commitment when

the sentence was announced. There is no evidence that

their feelings were made known by them or the accused to

the prosecution team, the military judge, Randolph AFB

SJA, convening authority or anyone else in a position of

authority regarding the trial before the matter was referred

to in the Goode response. Mr. Wright and Mr. Clancy ap-

parently took no further action regarding the case other

than prepare Exhibit 5. They considered themselves to be

“on the case” until 23 or 24 February 1982. The hiring of

civilian counsel for appellate purposes was contemplated

by or on behalf of the accused in March 1982. Negotia-

tions were begun with Mr. Goldstein by at least 9 March

and the military defense counsel was informed by Mr.

Goldstein that he had been retained on 19 March. A letter

from Mr. Goldstein in the post-trial review (p. 33) in-

dicates he was hired on 18 March by the accused’s family.

ALLAN C. SMITH, Colonel, USAF

Military Judge

l6a

UNITED STATES AIR FORCE COURT OF

MILITARY REVIEW

ACM 23506 (f rev)

UNITED STATES

V.

SECOND LIEUTENANT JAMES H. RICE, JR., 455-78-7767 FR

UNITED STATES AIR FORCE

20 JUNE 1985

Sentence adjudged 18 February 1982 by GCM convened at

Randolph Air Force Base, Texas. Military Judge: Kenneth

D. Randall (sitting alone).

Approved sentence: Dismissal, confinement at hard labor

for life, and forfeiture of all pay and allowances.

Appellate Counsel for the Accused: Mr. Jay D. Terry,

Esq., Dallas, Texas, Colonel George R. Stevens, Major

Alexander S. Nicholas and Captain Timothy J. Malloy.

Appellate Counsel for the United States: Colonel James P.

Porter, Colonel Kenneth R. Rengert, Major George D.

Cato, Major Michael J. Hoover, and Major Robert E.

Ferencik, Jr.

Before

RAICHLE, CANELLOS and CARPARELLI

Appellate Military Judges

DECISION

RAICHLE, Senior Judge:

The accused was convicted, pursuant to his pleas of

guilty, of unpremeditated murder and assault with a dan-

17a

gerous weapon, in violation of Articles 118 and 128,

U.C.M.J. The approved sentence extends to dismissal

from the service, forfeiture of all pay and allowances, and

confinement at hard labor for life.

The facts, as stipulated by the parties, are as follows.

Both the accused and the deceased, Lieutenant Scherp,

resided in the Bachelor Officer Quarters at Laughlin Air

Force Base, Texas. At approximately 0230 hours on 6 July

1981 the accused went to Lieutenant Scherp’s room. He

was upset with Lieutenant Scherp and wanted to confront

him about certain remarks the deceased had made a few

days before. When he entered Lieutenant Scherp’s room

he was carrying a .45 caliber automatic pistol and an am-

munition clip. The accused was in Lieutenant Scherp’s

room approximately one hour during which time a fight

occurred. At some point during the hour the accused tied

the deceased’s hands behind his back. The deceased

screamed -for help for approximately thirty to sixty

seconds. These screams were heard by a neighbor who

called the Security Police at about 0330 hours. At some

point during the fight, the accused, with the intent to in-

flict grievous bodily harm, placed his arm around the

deceased’s neck in a choke hold and kept the hold until the

deceased died. Shortly thereafter, two Security Policemen

arrived at the door of the deceased’s room, knocked on the

door and identified themselves. The accused turned off the

room light and put a round of ammunition into the pistol.

One of the Security Policemen, Staff Sergeant Flowers,

took a position near the guardrail on the second floor

overlooking the deceased’s room. The accused, in an at-

tempt to escape, climbed through the window. He was

spotted by Sergeant Flowers who ordered him to halt. The

accused fired at Staff Sergeant Flowers with his pistol and

retreated back into the room.

18a

At approximately 0500 hours a hostage-negotiation

team was dispatched to the BOQ area, headed by Captain

David L. Herres. During two conversations over the next

hour, the accused telephonically advised Captain Herres

that he did have a hostage who was a little hurt but would

not require an ambulance. Additional conversations be-

tween the accused and Captain Herres ensued until the ac-

cused finally indicated he was willing to surrender. At this

point, Captain Herres asked the accused about the hostage

and was told, “I do not know how he is, but he is not

breathing anymore.” At approximately 0630 hours the ac-

cused surrendered to the Security Police. The deceased

was found lying on the bed in his room and a .45 caliber

cartridge case was found under the window from which

the accused had fired at Sergeant Flowers.

Charges of premeditated murder and assault with a

dangerous weapon were preferred, the case was referred as

capital, and trial commenced on 2 February 1982. A

number of motions were litigated and ruled upon, pleas of

not guilty were entered, and voir dire of four court

members was accomplished. These proceedings lasted

through 4 February, at which time the case was continued

until 10 February because of a death in the military judge’s

family. During this interim period, discussions regarding a

pretrial plea agreement with the convening authority oc-

curred wherein the accused, through his counsel, orally of-

fered to plead guilty if the government would withdraw

the premeditated murder charge and substitute the lesser-

included offense of unpremeditated murder. The principal

effect would be to make the case non-capital. The conven-

ing authority indicated he would accept such an offer and

the existence of a pending agreement, although inchoate,

was cOMmunicated to the military judge and all counsel.

However, all counsel and the convening authority

understood that any pretrial agreement would have to be

19a

concurred in by the accused, reduced to writing, and

signed by all parties. Thus, the negotiations were con-

tingent in this respect. The option of the accused to re-

quest a bench trial, assuming amendment of charges, was

not part of the negotiations and it was this option with

which the defense was concerned in requesting a pretrial

meeting in chambers with the military judge. On appeal,

the accused alleged that during this unrecorded meeting

the military judge agreed that if the accused asked to be

tried by military judge alone and pled guilty, he would

sentence him to confinement not exceeding 30 years.

Because this meeting was off the record, we ordered a

limited post-trial hearing be conducted to determine

whether the accused’s guilty plea was improvident because

induced by a subsequently unfulfilled sentencing agree-

ment with the military judge. United States v. Rice, ACM

23506 (A.F.C.M.R. 4 February 1983) (unpublished opin-

ion).

Events occurring at that meeting were summarized by

the hearing officer as follows:

The meeting was attended by all six counsel and the

military judge and lasted about 10 minutes. The first

comments were expressions of condolences to the

military judge [regarding the death of his father]. Mr.

Wright then explained that a pretrial agreement was

anticipated with the accused pleading guilty to un-

premediated murder and aggravated assault, and the

government would then move to amend the charges to

conform with the pleas. The procedure involved in ac-

complishing this was referenced during the explana-

tion. Mr. Wright commented that in civilian cases, it

was not uncommon to discuss sentencing with judges

and if the military judge was willing to do so, he had

some questions. The military judge stated that nor-

mally he did not do so but consented to the question-

ing. Mr. Wright then questioned the military judge.

|

20a

The military judge stated that he did not believe that

every murderer should receive a life sentence and that

he could think in terms substantially less than a life

sentence depending on the extenuation and mitiga-

tion. He knew that there would be psychiatric

testimony forthcoming and anticipated other forms

of extenuation and mitigation. He also made

reference to learning more as to the facts and cir-

cumstances of the offense. His comments were

specifically directed to the case at hand. The military

judge made no promises and made it clear that a

senterice imposed by him would depend on the facts

and circumstances and the extenuation and mitigation

presented. The military judge did make a statement to

the effect that “[O]ne life has been lost and I see no

need to lose another.” The exact timing and context

of this statement is difficult to fix, but I believe it to

have been in the context that the proceeding would

not be a capital case. It was not intended to be nor

could it reasonably have been interpreted as being a

statement that he definitely would not give a life

sentence in the case at hand. The discussion was then

turned by Mr. Wright to what the practical equivalent

of a life sentence would be in a fixed term, parole con-

siderations being the standard for comparison. Opin-

ions were expressed by Mr. Wright, Mr. Clancy, and

probably others, and it was generally agreed that

30-35 years was a practical equivalent. During this

discussion the counsel for the accused made

statements that they felt the military procedure in

death penalty cases would be found unconstitutional

and that the defense did not wish to plead if the ac-

cused was going to receive a life sentence in any event.

Throughout the meeting, the military judge expressed

the position that a sentence adjudged by him would

depend on the evidence submitted and -specific

2la

references were made by him to psychiatric testimony

and other extenuation and mitigation he anticipated

receiving. He made no committment, promise or

agreement to impose less than a life sentence. The im-

pression or perception of the two civilian defense

counsel as set forth in their testimony that the military

judge committed himself to less than life imprison-

ment was not well founded and could not have been

reasonably based on the statements of the military

judge.

Additionally, the military judge indicated that he had

beén curious as to whether the evidence would show

whether or not the deceased’s hands were bound behind

his back at the time he was strangled. He further stated

that he learned that the hands were bound at the time of

death.

The court reconvened shortly after the meeting. Defense

counsel advised the military judge that the accused wished

to change his plea to guilty of unpremeditated murder and

aggravated assault. His plea was accepted, the government

moved to amend the specification, striking the words

“with premeditation”, and findings of guilty were entered.

The defense further requested that the trial proceed with

the military judge alone. At the conclusion of the sentenc-

ing portion of the trial, the military judge pronounced a

sentence of dismissal, confinement at hard labor for life,

and forfeiture of all pay and allowances.

The accused first asserts that a rehearing on sentence is

required because the military judge erroneously believed

that the victim’s hands were tied at the time of death. We

agree that the record of trial contains only limited cir-

cumstantial evidence that the victim’s hands were tied at

the time of death. We decline, however, to review the

deliberative processes of the military judge and, therefore,

resolve this issue against the appellant.

22a

It is well established in the sphere of jury verdicts that

the testimony of a jury member will not be allowed to im-

peach the validity of the jury’s verdict. McDonald vy. Pless,

238 U.S. 264, 35 S.Ct. 783, 59 L.Ed. 1300 (1915); Mattox

v. United States, 146 U.S. 140, 13 S.Ct. 50, 36 L.Ed. 917

(1892). As stated in United States v. D’Angelo, 598 F.2d

1002 (Sth Cir. 1979):

An attempt to use information extrinsic from the

jury’s verdict to ‘prove its process of deliberation and

find out how and why the jury reached its verdict. . .

is the one form of attack on a verdict that has always

been forbidden in Anglo-American criminal law.’

The reason for the rule was recently summarized as

follows:

The rule represents a compromise . . . [by] according

deference to those important policy considerations

which commend an inviolate jury process—(a) the

protection of jurors against annoyance and harass-

ment by losing parties; (b) the encouragement of free

and open discussion among jurors; (c) the reduction

of incentive for jury tampering; and (d) the promo-

tion of finality in a jury’s verdict.

United States v. Blackston, 547 F. Supp. 1200 at 1217

(D.C.S.D.Ga. 1982).

This general rule was effectively codified in Fed. R.

Evid. 606(b) as follows:

Upon inquiry into the validity of a verdict or indict-

ment, a juror may not testify as to any matter or

statement occurring during the course of the jury’s

deliberations or to the effect of anything upon his or

any other juror’s mind or emotions as influencing him

to assent to or dissent from the verdict or indictment

or concerning his mental processes in connection

therewith, except that a juror may testify on the ques-

tion whether extraneous prejudicial information was

: 23a

improperly brought to the jury’s attention or whether

any outside influence was improperly brought to bear

upon any juror. -

Fed.R.Evid. 606(b) was incorporated into Mil.R.Evid.

606(b) with only one significant addition. The military rule

added a third exception to include unlawful command in-

fluence as an appropriate subject of inquiry. M.C.M 1984,

Appendix 22, Analysis of the 1980 Amendments, Rule

606(b), P. 22-37. Thus, in the military this general rule is

subject to three exceptions: (1) when extraneous informa-

tion has been improperly brought to the attention of the

court members;~(2) when outside influence has been

brought to bear on a member; and (3) when unlawful com-

mand influence has occurred. United States vy. Accordino,

20 M.J. 102 (C.M.A. 1985); Mil. R. Evid. 606(b).

We believe that the same rule and its rationale apply to

verdicts or sentences imposed by judges. Cases in which

this issue is discussed are non-existent in military law and,

not surprisingly, few and far between in civilian

jurisprudence. We have located only a handful. See

Washington v. Strickland, 673 F.2d 879, 693 F.2d 1243

(Sth Cir.1982) (en banc), rev'd on other grounds,

U.S. ___, 104 S.Ct. ___, 80 L.Ed.2d 674 (1984), and

cases cited therein. However, the logic of applying the

same rule is irrefutable. As stated by the Fifth Circuit

Court of Appeals:

[T]here are strong policy reasons for prohibiting the

use of this sort of testimony. No doubt most judges

will remember the capital cases over which they have

presided more clearly than cases charging lesser of-

fenses. Yet it is unrealistic to expect that a trial judge

can, using nothing more than cold record and his own

recollections, completely and accurately reconstruct

his thought processes in one particular case that he

decided over four years earlier. In addition to these

24a

mental gymnastics, a judge would have to push aside

his natural human tendencies to justify his past ac-

tions with post hoc rationalizations. And it blinks

reality to assume that a trial judge can also describe

with any degree of certainty the process by which any

additional information would have factored into his

mental calculus had it been presented at the time of

sentencing. Our society demands much of trial judges

in this day and time; it cannot, however, fairly de-

mand that they be omniscient.

Washington v. Strickland, supra, at 905.

Accordingly, since the testimony of the trial judge does

not fall within any of the exceptions enumerated in

Mil.R.Evid. 606(b) we find it inadmissible for the purpose

of impeaching his sentence. Thus, this assignment of error

is without merit.

The accused next asserts that the military judge erred by

participating in an unrecorded sentencing meeting* and

discussing the particular case rather than just his general

sentencing philosophy, and .he: eby induced the accused to

plead guilty and led defense counsel to believe that he

would not impose a sentence in excess of 30 to 35 years.

We disagree.

After reviewing the events and discussions which oc-

curred at the 10 February meeting, as recounted by the

parties at the hearing ordered by this Court, we agree with

the hearing officer and find that the military judge made

no promises, agreements or commitments regarding the

* The area of pretrial conferences is now covered by R.C.M. 802.

All trial participants are encouraged to adhere to its provisions, in-

cluding the Discussion, especially with regard to when maiters dis-

cussed in conference must be placed on the record.

25a

sentence he would impose. We find that as of the morning

of 10 February, the defense had come to an oral agreement

with the convening authority regarding the accused’. plea,

although the agreement had not yet been reduced to

writing Or communicated to the accused. The only

unresolved issue at the time of the meeting was whether

the sentencing case would be presented to the military

judge alone or to the panel of members. Defense counsel

requested the meeting in order to acquire an impression of

the military judge’s sentencing proclivities. It appears

from the varying recollections of those present that each

participant heard only what he wanted to hear. However,

we note no words or actions on the part of the military

judge that would lead a reasonable person to believe that

the military judge had made any promises regarding the

sentence.

We further find that the military judge made no at-

tempts to persuade, influence or induce any of the tactical

decisions made by the defense. On the contrary, the

defense team aggressively pursued every avenue available

to them to minimize all risks at trial. They initiated the

pretrial agreement with the convening authority as well as

the very meeting with which we are now concerned. It is

apparent that they were endeavoring to obtain as much in-

sight as possible to make their tactical decisions. We find

that the pleas of guilty and the decision to proceed before

the military judge alone were not induced by any actions

on the part of the government or military judge. Accord-

ingly, based on all the evidence of record, we find this

assignment of error also to be without merit.

The accused next contends that the military judge erred

by failing to establish the providency of the guilty plea to

unpremeditated murder when he was put on notice of mat-

ters possibly inconsistent with the plea. He refers to the

response of the accused during the providency inquiry

wherein he stated that he was hit in the head with a toaster

26a

prior to strangling the accused. The defense contends that

this response was inconsistent with a plea of guilty to un-

premeditated murder since it raised the possibility that the

offense was committed in the heat of sudden passion

caused by adequate provocation. Again, we disagree.

As noted in the government’s brief concerning this issue,

the argument overlooks our opinion in United States v.

Baysinger, 11 M.J. 896 (A.F.C.M.R. 1981), wherein we

stated:

It is well established that if an accused, after a plea of

guilty, sets up matters inconsistent with that plea, the

trial judge must either resolve the inconsistency or re-

ject the guilty plea and enter a plea of not guilty.

However, the mere possibility of inconsistency is not

sufficient; there must be some substantial indication

of direct conflict between the accused’s plea and al-

leged inconsistent statements. (emphasis added.)

Adequate provocation is defined as provocation which

would excite uncontrollable passion in the mind of a

reasonable man. M.C.M. 1969 (Rev.), para. 198a. The ac-

cused’s statement that he continued the fight and killed the

deceased after he had been hit in the head with a toaster

was not a substantial indication that the accused respond-

ed in the heat of sudden passion caused by adequate pro-

vocation. We therefore find that the accused’s responses

during the providency inquiry did not raise the issue of

adequate provocation which might reduce the offense to

voluntary manslaughter. Accordingly, we find no conflict

between the accused’s plea and his alleged inconsistent

statement. United States v. Logan, 22 U.S.C.M.A. 349, 47

C.M.R. 1 (1973).

V

We have considered the remaining assignments of error

and resolved them adversely to the accused. Brady \

27a

United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d

747 (1970), United States v. Covington, 12 M.J. 932

(N.M.C.M.R. 1982). We conclude that, considering all the

facts and circumstances of this case, the accused’s sentence

was clearly appropriate.

Accordingly, the findings of guilty and the sentence are

AFFIRMED.

CANELLOS, Senior Judge, and CARPARELLI, Judge,

concur.

OFFICIAL

/s/ CHARLES L. WILLE

Charles L. Willie

Captain, USAF

Chief Commissioner

28a

UNITED STATES AIR FORCE COURT OF

MILITARY REVIEW

ACM 25506

UNITED STATES

V.

SECOND LIEUTENANT JAMES H. RICE, JR., 455-78-7767 FV

UNITED STATES AIR FORCE

4 FEBRUARY 1983

Sentence adjudged 18 February 1982 by GCM convened at

Randolph Air Force Base, Texas. Military Judge: Kenneth

D. Randall (sitting alone).

Approved sentence: Dismissal, confinement at hard labor

for life, and forfeiture of all pay and allowances.

Appellate Counsel for the Accused: Mr. Jay D. Terry,

Washington, D.C. 20036, Colonel George R. Stevens and

Major Alexander S. Nicholas. Appellate Counsel for the

United States: Colonel James P. Porter, Colonel Kenneth

R. Rengert, Major Michael J. Hoover and Major George

D. Cato.

Before

KASTL, RAICHLE and SNYDER

Appellate Military Judges

ORDER

PER CURIAM:

Lieutenant Rice was convicted by a general court-

martial, military judge alone, of murder and aggravated

29a

assault, in violation of Articles 118 and 128, U.C.M.J. His

approved sentence is dismissal, total forfeitures, and con-

finement at hard labor for life.

In an able oral argument and assignment of error, the

defense contends that the accused’s guilty plea was im-

provident because induced by a subsequently unfulfilled

sentencing agreement with the military judge.

The affidavits submitted generally agree that a meeting

occured where the military judge’s sentencing philosophy

arose and that a life sentence and a term of years were ad-

dressed. However, the affidavits so not sufficiently resolve

the issue, in our judgment. Accordingly, it is appropriate

to direct a limited hearing to develop this matter to the

fullest extent possible. See United States v. DuBay, 17

U.S.C.M.A. 147, 37 C.M.R. 411 (1967); United States v.

Fairchild, 14 M.J. 918 (A.F.C.M.R. 1982). Accordingly,

the case is returned to The Judge Advocate General of the

Air Force for such action as may be required to assure an

impartial hearing. The hearing may be ordered by any

convening authority designated by The Judge Advocate

General for such purpose, and conducted before any

military judge who may be detailed in the convening

order. Both the accused and the Government will be

represented by counsel. Any relevant documents will be

considered and copies attached. The military judge con-

ducting the hearing will be furnished the record of trial, to

include allied papers. At the conclusion of the hearing, the

military judge will make specific findings of fact in-

cluding, but not limited to, the following questions:

1. The 10 February 1982 meeting: Precisely what

occurred at the 10 February meeting? In particular, to

what degree do the participants support the affidavit

of Mr. Frank S. Wright, individual defense counsel?

Of particular import are the allegations that the

military judge stated, “One life has been lost and I see

no need to lose another;” and that the judge repeated

30a

such statement in addressing a possible sentence

limitation of 30-35 years’ confinement. Also of par-

ticular relevance is what, if anything, led to a defense

team perception that the military judge had reached a

“clear oral understanding” with the defense. Ali par-

ticipants should be encouraged to search their

recollections carefully to crystalize an accurate,

detailed reconstruction of exactly what was said in the

10 February meeting, including the manner in which

the words were spoken.

2. Timing of significant events: Precisely what

was the status of defense bargaining negotiations with

the convening authority prior to the 10 February

meeting with the military judge? Had a pretrial agree-

ment been negotiated with the convening authority

before the 10 February meeting? Was such an agree-

ment signed before that meeting?

3. Defense objections first raised: After sentenc-

ing in this case, when did defense counsel or the ac-

cused first raise the objection that an unfulfilled

sentencing agreement with the military judge existed?

Was the convening authority or staff judge advocate

made aware of such a defense contention at any time

earlier than its surfacing in the Goode response some

three months later? How long after trial did Mr.

Wright and Mr. Kevin Clancy continue as individual

defense counsel; when did Mr. Gerald Goldstein

begin to represent the accused (allied papers suggest

25 March 1982).

4. Trial Counsel participation: What input did

the prosecution team have to the 10 February meeting

with the military judge? After the meeting, did the

prosecution believe the maximum imposable sentence

had been, in practical working terms, reduced to

something less than confinement at hard labor for

life? At trial, at the time of the Care inquiry and

ss iccunrie oni

3la

discussion of pretrial agreement between the accused

and the military judge, were the members of the pros-

ecution aware of any sub rosa understandings or

“deals” with the accused? (See R. 200.)

This list of questions is not intended to be exhaustive.

As the facts unfold, the military judge holding this hearing

may call other witnesses who might have relevant data. See

generally United States v. Brown, 13 M.J. 253 (C.M.A.

1982); United States v. Kazena, 11 M.J. 28 (C.M.A.

1981); United States v. Cifuentes, 11 M.J. 385 (C.M.A.

1981); see also United States v. Caruth, 6 M.J. 184

(C.M.A. 1979); United States v. Williams, 13 M.J. 843

(A.C.M.R. 1982). ;

A verbatim record will be made of the proceedings

which, following proper authentication, will be submitted

to the Court for further review of the case.

OFFICIAL

/s/ RICHARD F. WHITNEY

Richard F. Whitney

Major, USAF

Chief Commissioner

U.S. GOVERNMENT PRINTING OFFICE: 1987— 196-657/62014