Petition for Writ of Certiorari — Duncan v. United States
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supreme Court, uv.
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00-86'5 NOV 2.8 290
No. OEEICE OF IME GLERK
a
In The
SUPREME COURT OF THE UNITED STATES
October Term, 2000
TIMOTHY S. DUNCAN
PRIVATE FIRST CLASS, UNITED STATES MARINE CORPS,
Petitioner,
Vv.
UNITED STATES OF AMERICA,
Respondent.
Petition for a Writ of Certiorari to the
United States Court of Appeals for the Armed Forces
PETITION FOR A WRIT OF CERTIORARI
MICHAEL J. WENTWORTH
Lieutenant Commander
Judge Advocate General’s Corps
U.S. Navy
Counsel of Record
Navy-Marine Corps Appellate
Review Activity
716 Sicard St. SE, Suite. 1000
Washington Navy Yard, DC 20347 -
(202) 433-4161
SSP/P
QUESTIONS PRESENTED
I. Whether the military’s rule for severance of offenses deprived
Petitioner of his right to a fundamentally fair trial guaranteed by the
Due Process Clause of the Fifth Amendment.
II. Whether the military’s narrower rule for severance of offenses,
as compared to FED.R.CRIM.P. 14, violates the Equal Protection
component of the Fifth Amendment and Article 36(a), UCMJ.
III. Whether the Court of Appeals erred by holding that a judge
may instruct the members on eligibility for parole contrary to the
plain language of Rule for Courts-Martial 1005(e)(4).
IV. Whether the Court of Appeals erred in relying upon the
presumption that members can and will follow a judge’s
instructions to ignore highly prejudicial information, alone, to
conclude that denial of severance and instruction on parole were
harmless.
TABLE OF CONTENTS
QUESTIONS PRESENTED ooo. 5.5...2...5.1.sccsavassssanssibectodlasdios i
TABLE OF CORTE EIU ED i. iscikinsccsccsisiis anced ul
TABLE OF AUTRE 2050s edad esate il
COPENIGD NEGA iiss ai esate eel I
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CONSTITUTIONAL PROVISIONS ooo oocccccccccceeeeeseeee 2
STATUTORY PRVRII IB iii ais, 0s ae erent 2
RULES FOR COURTS-MARTIAL ooo ccceeeeee 2
STATEMENT OF ‘Elms GR... ....; cucu teeneneeaeeen 4
STATERIENT Ol Se PIM Re ics Ace nan 7
REASONS FOR GRANTING THE PETITION... 10
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AP PEINIIOIS ..hsasnasinisnnsncsagsicasdepias ace la
United States v. Duncan, 53 M.J.494(2000) la
United States v. Duncan, 48 M.J. 797
CN. Ce Cahn Rage TOY oo iinscscccieesionipecnioninbecwoeateanss 13a
United States v. Gambles, No. 9600352 (N.M.Ct.
Crim App. Qotoboat 3, 200 I) oo ccscsscssccsanenecenessusosse 34a
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TABLE OF AUTHORITIES
United States Supreme Court Cases
Bolling v. Sharp, 347 U.S. 497 (1954) ooo cccceeeeeeees 20
City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S.
IR RR Ra Be RO Beh ke EES 20
Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S.
RRR RE SEE TNS EEE POS Pa 27
Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) 0... 20
Kotteakos v. United States, 328 U.S. 750 (1946). 19
Krulewitch v. United States, 336 U.S. 440 (1949). 27
Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). 27
Middendorf v. Henry, 423 U.S. 25 (1975) ooo occeceees 21
Richardson v. Marsh, 481 U.S. 200 (1987). 27
Strickland v. Washington, 466 U.S. 668 (1984) 0... 20
United States v. Lane et al., 474 U.S. 438 (1986) a 19, 26
United States v. Scheffer, 523 U.S. 303 (1998) 0... 11, 23
United States Court of Appeals for the Armed Forces
United States v. Boone, 42 M.J. 308 (1995). 23
United States v. Boudreaux, 35 M.J. 291 (C.M.A 1992) 30
United States v. Duncan, 53 M.J. 494 (2000). passim
United States v. Greaves, 46 M.J. 133 (1997)... 23
United States v. Griffin, 25 M.J. 423 (C.M.A. 1988) 0... 23
United States v. Haagenson, 52 M.J. 34 (1999) 0. 29
United States v. Hilow, 32 M.J. 439(C.M.A. 1991). 29
United States v. Southworth, 50 M.J. 74 (1999). 19
United States Circuit Courts of Appeals Cases
Cross v. United States, 335 F.2d 987 (D.C. Cir. 1964) 14
United States v. Alexander, 135 F.3d 470 (7th Cir. 1998) 19
United States v. Archer, 843 F.2d 1019 (8th Cir. 1988) 15
United States v. Coleman, 22 F.3d 126 (7th Cir. 1994) 13, 21
United States v. Foutz, 540 F.2d 733 (4th Cir. 1976) 21
United States v. Lewis, 547 F.2d 1030 (8th Cir. 1976) 15
United States v. Vest, 116 F.3d 1179 (7th Cir. 1997) 17
Jnited States v. Werner, 620 F.2d 922 (2nd Cir. 1980) 15
United States Courts of Criminal Appeals Cases
United States v. Duncan, 48 M.J. 797 (N.M.Ct.Crim.App.
FPO: cinichicceencapnesiieaiiaice aiid areca 1, 6, 18, 21
United States v. Gambles, 1997 CCA LEXIS 541, No. 96-
0352 (N.M.Ct.Crim.App. October 3, 1997)
he eta rig, OT ER RE 18, 24
United States v. Knox, 46 M.J.688 (N.M.Ct.Crim.App.
neil PER LA Meee eA eI 27
United States v. McLaren, 34 M.J. 926 (A.F.C.M.R. 1992) 23
United States District Court Cases
United States v. Garey, 813 F. Supp. 1069 (D. Vt.1993). 15
United States Constitution
U.S. CONST., amend vo. is deveckanssiacnastecenkedconebalince Ou 2
Uniform Code of Military Justice
Article 25(d)(2), 10 U.S.C. § 825(d)(2) once. 29
Article 36fa), 10 U.S.C. § 836fa) ccc ccs ceeeeee 2,20
Other Federal Statutes
Fi 8 ALE OA RIOT NLC l
PI nn ea eases 19
Rules for Courts-Martial
RCM. 601(e)(2), MCM (1995 ed.) cee. 2, 19, 21
RCM. 906(b)(10), MCM (1995 ed.) oe. 3, 19, 20
R.C.M. 906(b)(9), MCM (1995 ed.) eee 19
R.C_M. 1005(e)(4), MCM (1995 ed.) 3, 6, 22
Military Rules of Evidence
MIL.R.EVID. 403, MCM (1995 ed.) cee eeeeee. 13
MIL.R.EVID. 404(b), MCM (1995 ed.) occa. 13
IV
Manual for Courts-Martial
Drafters’ Analysis of R.C.M. 601(e)(2), App. 21 MCM
ck * SAR nel eater ie orem nrurenicns rake hs !S
Drafters’ Analysis of RCM 906(b)(10), App. 21, MCM
CUD D OIF ia osc secic ieee seencenersoopnaponistciigaed
MANUAL FOR COURTS-MARTIAL, U.S. ARMY (1949 ed.),
PPOTTTTTTITITTTTITTTITT TT er a
Treatises and Law Review Articles
8 MOORE'S FEDERAL PRACTICE § 8.05(4] o00...cccccceo
25 MOORE’S FEDERAL PRACTICE §614.03[1][b] (3d ed.
apa fT SRD cn! A RR EHC 1 HOT ERM
Glazier, Major Guy P., He Called for His Pipe, and He
Called for His Bowl, and He Called for His
Members Three—Selection of Military Juries by
the Sovereign: Impediment to Military Justice,
RSF ROE Tc TOW BP icin cs csi)
Winthrop, William, MILITARY LAW AND PRECEDENTS (2d
ed. rev. 1920)
Other Authority
INTENTIONAL FORGETTING: INTERDISCIPLINARY
APPROACHES (Jonathan M. Golding & Colin M.
MacLeod eds., Lawrence Erlbaum Associations,
PU Fi ee
Kassin, S. & Studebaker, C., Instructions to Disregard
and the Jury: Curative and Paradoxical Effects,
in INTENTIONAL FORGETTING:
INTERDISCIPLINARY APPROACHES, ch. 15
(Jonathan M. Golding & Colin M. MacLeod eds.,
Lawrence Erlbaum Associations, Publishers 1998)
Tanford, S. & Penrod, S., Social Inference Processes in
Juror Judgments of Multiple Offense Trials, 47(4)
JOURNAL OF PERSONALITY AND SOCIAL
PSYCHOLOGY, 749-765 (1984)
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21
19
22
13
14
29
23
27
28
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In The
SUPREME COURT OF THE UNITED STATES
October Term, 2000
TIMOTHY S. DUNCAN
PRIVATE FIRST CLASS, UNITED STATES MARINE CORPS,
Petitioner,
v
UNITED STATES OF AMERICA,
Respondent.
Petition for a Writ of Certiorari to the
United States Court of Appeals for the Armed Forces
PETITION FOR A WRIT OF CERTIORARI
Private First Class Timothy S. Duncan, United States Marine
Corps, petitions for a writ of certiorari to review the judgment of the
United States Court of Appeals for the Armed Forces.
OPINIONS BELOW
The opinion of the Court of Appeals, published at 53 MJ.
494, is found in the Appendix, infra, at la. The opinion of the
Navy-Marine Corps Court of Criminal Appeals, published at 48
M.J. 797, is found in the Appendix, infra at 13a.
JURISDICTION
The Court of Appeals entered its judgment on August 31,
2000. This Court's jurisdiction is invoked under 28 U.S.C. § 1259(3).
2
CONSTITUTIONAL PROVISIONS
The Fifth Amendment to the Constitution reads, in part:
No person ... shall be compelled in any criminal case
to be a witness against himself nor be deprived of life,
liberty, or property, without due process of law....
STATUTORY PROVISIONS
Article 36(a), Uniform Code of Military Justice, 10 U.S.C. §
836(a) reads in relevant part:
(a) Pretrial, tnal, and post-trial procedures, including
modes of proof, for cases arising under this chapter
tnable in courts-martial ... may be prescribed by the
President by regulations which shall, so far as he
considers practicable, apply the principles of law
and the rules of evidence generally recognized in he
trial of criminal cases in the United States district
courts, but which may not be contrary to or
inconsistent with this chapter.
(emphasis added).
RULES FOR COURTS-MARTIAL'
Rule for Courts-Martial 601(e)(2), Manual for Courts-Martial,
United States (1995 ed.) [hereinafter R.C.M. 601(e)(2), MCM (1995
ed_)] reads in relevant part:
(2) Joinder of offenses. In the discretion of the
convening authority, two or more offenses charged
' These provisions of the MANUAL FOR COURTS-MARTIAL, UNITED STATES (1995
ed_) are identical to those in the 1998 and 2000 editions.
3
against an accused may be referred to the same
court-martial for trial, whether serious or minor
offenses or both, regardless whether related. [... ]
Discussion ?
Ordinarily, all known charges should be tried at
a single court-martial.
Rule for Courts-Martial 906(b)(10), Manual for Courts-
Martial, United States (1995 ed.) [hereinafter R.C.M. 906(b)(10),
MCM (1995 ed.)] reads in relevant part:
(b) Grounds for appropriate relief, The following
may be requested by motion for appropriate relief
|...](10) Severance of offenses, but only to prevent
manifest injustice.
Discussion
Ordinarily, all known charges should be tried at a
single court-martial. Joinder of minor and major
offenses, or of unrelated offenses is not alone a
sufficient ground to sever offenses. For example,
when an essential witness as to one offense is
unavailable, it might be appropriate to sever that
offense to prevent violation of the accused’s right
to a speedy trial.
(emphasis added).
Rule for Courts-Martial 1005(e)(4), Manual for Courts-
Martial, United States (1995 ed.) [hereinafter R.C.M. 1U05(e)(4),
MCM (1995 ed.) reads in part:
(ec) Required instructions. Instructions on
sentence shall include: [...| (4) A statement
informing the members that they are solely
responsible for selecting an appropriate sentence
and may not rely on the possibility of any
mitigating action by the convening or higher
authority
STATEMENT OF THE CASE
Petitioner was tried by a general court-martial at Camp
Pendleton, California, on various dates between November 4, 1994
and May 8, 1995. The court-martial was composed of officer
members and was convened by the Commanding General, Ist
Marine Division (Rein), Fleet Marine Force Pacific, Camp
Pendleton, California.
The offenses with which the Petitioner was charged arose
out of two separate incidents. The first occurred on June 17, 1994
and involved a Ms. [DR]. The second occurred on July 24, 1994
and involved Ms. [AM], Mr. [JM], and Mr. [RS].
The sets of charges were very similar in that both involved
violent rapes, forcible oral and anal sodomy, various other assaults,
and attempted murders. In addition, the incidents occurred about
one month apart and both involved the Petitioner and PFC Gambles.
Petitioner moved to sever the charges relating to Ms. [DR]
and alleged to have occurred on 17 June 1994 from the charges
relating to Ms. [AM] and alleged to have occurred on 24 July 1994.
Record at 95.
The military judge denied the motion.” Record at 111. The
military judge based his decision on the qualifications of military
members, the fact that the administration of justice is not the
military's primary business, and the benefit to the accused of
unitary sentencing.” Record at 103, 111.
Instead, the Judge ordered the Government to address each
? The military judge conceded that the motion would be granted almost
automatically in a civilian court. Record at 103.
* In the military, a single sentence is adjudged for all offenses of which an
accused is convicted. See Jackson v. Taylor, 353 US. 569 (1957).
3
of the sets of charges separately in its opening and closing
statements and the presentation of the evidence. United States v.
Duncan, 53 M.J. at 498. The military judge also gave “spillover”
instructions to the members during voir dire, during the
Government’s presentation of evidence, and again before
deliberations. Jd.
Contrary to his pleas, Petitioner was convicted of Article
80, UCMJ (three specifications of attempted murder while in
commission of a felony, one specification of attempted robbery, and
one specification of attempted forcible sodomy); Article 81 (three
specifications of conspiracy); Article 120 (three specifications of
rape); Article 121 (one specification of larceny); Article 125 (six
specifications of forcible sodomy); Article 134 (two specifications
of kidnapping, one specification of carrying a concealed weapon,
and one specification of communicating a threat). He was found
not guilty of one specification alleging a violation of Article 80 (an
unrelated attempted robbery) and one specification alleging a
violation of Article 134 (wrongful discharge of a firearm).
During sentencing deliberations, the members submitted the
following written questions to the military judge:
(1) Will rehabilitation/therapy be required if PFC Duncan
‘6 is incarcerated?
(2) In military justice, is parole granted or are sentences
reduced for good behavior? If so do these reductions
apply to a “life” sentence?
Record at 2035-2037 and Appellate Exhibit CXXXIV. These were
the only questions the members asked after being instructed on
sentencing.
The defense objected to answering both questions and
requested that the members be told that the questions were simply
off limits. Record at 2040. The military judge, however, announced
he would instruct on the existence of parole, list some factors
affecting the exercise of parole, and then tell the members they
should “not be concerned about the impact of parole.” Record at
6
2038-2039. —The defense renewed its objection to any instruction at
all. It then offered a counter-instruction that “for purposes of
determining an appropriate sentence at this court-martial, you must
assume that no parole or [time off for] good behavior exists,” which
the court rejected. Record at 2039. The military judge then gave his
own instructions informing the members that parole would be
available to Petitioner, even with life imprisonment. Record at
2043."
Forty minutes later, the members returned with a sentence
of life imprisonment, forfeiture of all pay and allowances, reduction
to the paygrade E-1, and a dishonorable discharge. Record at 2044,
2046.
On March 29, 1996, the Convening Authority approved the
sentence and, except for the dishonorable discharge, ordered it
executed. On July 31, 1998, the U.S. Navy-Marine Corps Court of
Criminal Appeals affirmed the findings and sentence. United States
v. Duncan, 48 M.J. 797 (N.M.Ct.Crim.App. 1998). On August 17,
1999, the Court of Appeals for the Armed Forces granted Petitioner
review on two issues. The case was argued on December 8, 1999.
Before the Court of Appeals, Petitioner argued that the
military judge had abused his discretion by instructing the court-
martial members on Petitioner’s eligibility for parole. Petitioner
contended that the military judge’s instruction, given over defense
objection and contrary to R.C.M. 1005(e)(4) and the judge’s own
ruling in the companion case, violated his right to due process of
law and a fundamentally fair sentencing hearing.
Petitioner also argued that the military judge abused his
discretion by denying Petitioner's motion to sever two sets of
similar, but unrelated, offenses. Petitioner contended that the
members improperly considered the much stronger evidence on the
first set of offenses to find Petitioner guilty of many of the second,
much weaker, set of allegations. Petitioner concluded by arguing
* The instruction is recounted verbatim in the Court of Appeals’ decision. 53
M.J. . 498-499. See Appendix at 9a-10a.
7
that the failure to sever confounded his defenses and that the
military judge’s spillover instructions and segregation of the
Government’s evidence into two discrete packages were inadequate
to prevent manifest injustice.
On August 31, 2000 the Court of Appeals affirmed the
decision of the Navy-Marine Corps Court's as to both issues.
United States v. Duncan, 53 M.J. 494 (2000).
STATEMENT OF THE FACTS
The Court of Appeals’ opinion begins by quoting a lengthy
excerpt from the opinion of the Navy-Marine Corps Court of
Criminal Appeals graphically describing the alleged offenses. 53
M.J. at 496-497. This recitation was not a summation of the
evidence before the court-martial. Rather it was the Court of
Criminal Appeals’ own assessment of the factual and legal
sufficiency of the evidence. 48 M.J. 804-806.”
The Court of Appeals failure to discuss, or even
acknowledge, the state of the evidence at trial is indicative of the
Court of Appeal’s outcome-oriented approach to this case. In
deciding whether Petitioner was denied his right to a fundamentally
fair trial because of the denial of severance, it is essential to look at
the relative strengths and weaknesses of the evidence relating to
both sets of offenses.
Events of June 17, 1994
On the evening of June 17, 1994, Petitioner and Private
First Class Glenis Gambles picked up Ms. Debra [DR] by the side
of U.S. Interstate 5 (I-5) in Oceanside, California, believing her to
be a prostitute. Record at 1673, 1676. Ms. [DR] wore black
* It also misrepresents the findings in the case. The second paragraph of this
recitation describes an attempted robbery with which Petitioner was charged but
subsequently acquitted. Record at 1876. Neither the Court of Criminal Appeals,
nor the Court of Appeals for the Armed Forces, mention the acquittal in their
decisions.
8
thongs, a black minidress, and a black leather riding jacket. Record
at 1328. From this point, Petitioner’s description of the facts and
Ms. [DR]’s diverge.
Petitioner testified that he and PFC Gambles asked Ms.
{DR] to perform simultaneous sexual acts of sexual intercourse and
fellatio with them. Record at 1680-1683. Ms. [DR] agreed and
they drove to a secluded location where Ms. [DR] unzipped
Petitioner's pants and performed fellatio on him while having
intercourse with PFC Gambles. Record at 1682-1683. PFC
Gambles became angry when Ms. [DR] secreted menstrual blood on
his penis during intercourse and began to beat and kick her while
she was lying on the ground. Record at 1683-84. Petitioner drove
away with PFC Gambles, leaving Ms. [DR] on the ground. Record
at 1685.
Ms. [DR] went to a hospital where she was given a sexual
assault examination and treated for bruises and scratches. Record
at 1558. The nurse in charge of the sexual assault intervention team
testified that the physical examination of Ms. [DR]’s genitalia was
“inconclusive, inconsistent” with rape by force. Record at 1562.
The nurse also found no evidence of injury as a result of oral or
anal copulation. Record at 1562-1563. Ms. [DR] refused to
provide information to medical personnel or investigators,
purportedly because she had an outstanding warrant for her arrest.
Record at 1455-1456.
Ms. [DR], however, testified that upon entering Petitioner’s
car, she informed him and PFC Gambles that she was not a
prostitute. Record at 1329. She testified that they drove for a while
and, when Petitioner and PFC Gambles allegedly refused to let her
out of the car, she panicked. Record at 1332. Ms. [DR] testified
that Petitioner purportedly hit her in the face and that PFC Gambles
pulled her from the car and beat her. Record at 1333. She further
testified that PFC Gambles then forced her back into the rear seat of
the car and raped her from behind while Petitioner allegedly forced
her to perform fellatio and threatened to kill her if she would not.
Record at 1335-1337. Finally, she testified that Petitioner and PFC
Gambles purportedly tned to murder her by driving over her with
9
the car. Record at 1338. She testified that she saw the car
headlights coming right at her and that she got up and ran from the
scene. Record at 1338.
Ms. [DR] testified that she had used crystal
methamphetamine prior to testifying. Record at 1346. She
admitted that she was a drug addict. Record at 1400. She testified
she had used methamphetamine the day of the offenses. Record at
1324. She testified that she uses the equivalent of $100 per day of
methamphetamine but doesn’t pay for it. Record at 1403.
Events of July 24, 1994
On the evening of July 24, 1994, Petitioner allegedly agreed
to go out with PFC Gambles. Record at 1047-48. PFC Gambles
retrieved a loaded pistol from his locker and brought it to
Petitioner’s room. Record at 1049. PFC Miller agreed to drive
them in his pickup truck to Oceanside, California. Record at 1050.
During this time, Petitioner was drinking alcohol. Record at 1053;
see also Record at 965-68, 992-93. In Oceanside, Petitioner and
PFC Gambles walked across the street to Buccaneer Beach, a
waterfront recreation area. The Petitioner allegedly broke a glass
liquor bottle on Mr. [JM]’s head and beat him. Record at 927, 929.
PFC Gambles held out the pistol and ordered Mr. [JM|’s
companion, Ms. [AM], to take her clothes off and walk to the
water's edge. Record at 928. A moment later, PFC Gambles turned
and fired a shot over his shoulder to scare away a Mr. [RS] who
was coming to the aid of Mr. [JM] and Ms. [AM]. Mr. [JM] also
fled the scene. Record at 989.
PFC Gambles then led Ms. [AM] across the street and into
a shaded area where he raped her. Record at 931. Petitioner
allegedly followed them and forced Ms. [AM] to perform fellatio on
him. Record at 931. Petitioner and PFC Gambles allegedly then
took [AM] to PFC Miller’s pickup truck. Record at 932. While
they drove around the area, Petitioner allegedly attempted to anally
sodomize Ms. [AM] and then allegedly raped her and forced her to
perform fellatio on both him and PFC Miller. Record at 939.
10
The truck pulled off into a forested area where Petitioner
allegedly forced her to perform fellatio on him while PFC Gambles
anally sodomized her. Record at 943. Ms. [AM] testified that the
two switched places. Record at 944. Eventually, PFC Gambles
returned to the truck. Allegedly, Petitioner remained and forced her
to perform fellatio on him again, and then kicked her backward so
that she fell halfway down a 15-foot, grassy ravine. Record at 944.
The three Marines then returned to Camp Pendleton. Record at
1067.
All other facts necessary for disposition of the issues are set
forth in the argument, infra.
REASONS FOR GRANTING THE PETITION
This petition presents four interrelated issues involving the
adequacy of military procedures to prevent court-martial members
from improperly considering extremely salient, but extremely
prejudicial, information in reaching their findings and sentence.
This Court should grant this petition because:
I. The manifestly prejudicial nature of joining these similar,
but unrelated, sets of particularly brutal offenses presents an
important question of federal law: When does such joinder amount
to a denial of due process? This question has not been, but should
be, settled by this court.
II. The constitutionality of the military's narrower rule for
severing similar, but unrelated, offenses is an important question of
federal law which has not been, but should be, settled by this Court.
III. The Court of Appeals’ decision abrogates R.C.M.
1005(e)(4) and substitutes its own regime of “truth-in-sentencing.”
The Court of Appeals made no findings that the President acted
irrationally by promulgating R.C.M. 1005(e)(4). Therefore its
decision conflicts with United States v. Scheffer, 523 U.S. 303
(1998) and calls for an exercise of this Court’s supervisory power.
IV. The reliability of the presumption that the court-martial
members followed the military judge’s instruction to ignore
11
prejudicial information, in light of the inherent bias of court-martial
members arising out of their appointment by the convening authority
and modern social science research, is an important question which
should be settled by this Court.
ARGUMENT
The Court of Appeals decision must be reversed because:
I. Petitioner’s conviction of all of the offenses, despite the
weakness of the evidence relating to the Ms. [DR] offenses, the
confounding of Petitioner’s defenses and the Government's strategy
to exploit the effects of prejudicial spillover, and the disparate
results in the companion case, are clear evidence that Petitioner was
denied a fundamentally fair trial under the Fifth Amendment.
II. There are no significantly special military interests,
necessitating a substantially narrower threshold for severance of
offenses in the military, that outweigh Petitioner’s right to equal
protection and justify a departure from the Federal Rules of
Criminal Procedure.
III. The Court of Appeals for the Armed Forces is not at
liberty to ignore the plain language of R.C.M. 100S(e)(5) or
sanction a military judge’s deliberate and intentional violation of
that rule.
IV. Common sense; empirical research into jury dynamics,
and the inherent bias of members appointed by the convening
authority, compel the conclusion that court-martial members ignored
the military judge’s spillover instructions on findings, as well as his
instruction to disregard the possibility of parole on sentencing.
Petitioner was denied a fundamentally fair trial as the result of
the military judge’s refusal to sever the offenses.
This Court has recognized that if the prejudice from joinder
12
of offenses is so great, it can deny a defendant his Fifth Amendment
right to a fair trial. United States v. Lane et al., 474 U.S. 438, 446
(1986). This case presents just such a degree of prejudice as
evidenced by: (A) The accentuated the risk of spillover arising out
of the strong-weak nature of the unrelated sets of allegations; (B) the
confounding of Petitioner’s defenses, and (C) the disparate results
between Petitioner's court-martial and the companion case.
A.
The risk of spillover, and the likelihood of prejudice, were
accentuated by the strong-weak character of the two sets of offenses
in this case.” The evidence admitted on the Ms. [AM] set of
charges was much stronger than that admitted on the Ms. [DR]
charges.’ The Court of Appeals’ acknowledged that “the evidence
of Ms. AM’s rape and brutalization would not be admissible to
show appellant’s rape and brutalization of Ms. DR, one month
earlier” United States v. Duncan, 53 MJ. at 498. Thus
admissibility under MIL.R.EVID. 404(b), MCM (1995 ed.) and the
MIL R-EVID. 403, MCM (1995 ed.) balancing test are not at issue
in this case
* Compare with United States v. Southworth, 50 M.J. 74, 77-78 (1999) (“The
evidence itself does not suggest spillover. Instead of a strongly supported
allegation joined with a weakly supported one, the Government presented strong
and independent factual cases with respect to each victim.”’)
"The Ms. [AM] charges relating to July 24, 1994 were supported by direct
evidence from the testimony of several credible witnesses, in addition to the
alleged victim, and from physical evidence in the form of the victim’s medical
examination results. In contrast, the evidence for the Ms. [DR] charges relating
to June 17, 1994 was much weaker. Medical evidence taken from Ms. [DR]
showed no signs of forcible intercourse or oral or anal sodomy. Record at 1462-
1463. The Government’s evidence consisted mainly of Ms. [DR]’s own
testimony, whose credibility was attacked with evidence of contemporaneous
drug abuse, previous false official statements to police and state authorities, and
her unwillingness to be examined or interviewed by the police, medical
personnel, and defense attorneys. Record at 1324, 1419-1424, 1455-1456.
13
Under such circumstances, the substantial risk of
prejudicial spillover of proof in cases of similar, but unrelated,
offenses is heightened. United States v. Haye, 29 MJ. at 215
(“[W]here the criminal intent involved in two offenses is similar
(although the offenses themselves are unrelated) and, significantly,
where the proof of one would not be admissible to prove the other,
there is a serious danger that overwhelming proof on-one will “spill
over” and prejudice a legitimate defense to another.”), see also
United States v. Alexander, 135 F.3d at 477 (“where joinder is
based upon the "similar character" of the indictment's charges, the
risk of potential prejudice to the defendant from a joint trial is
enhanced”); United States v. Coleman, 22 F.3d 126, 134 (7th Cir.
1994) (“[W]hen offenses are joined because of their ‘same or
similar character,” the risk of unnecessary unfaimess infiltrating the
joint trial is elevated.”) (citing 8 MOORE'S FEDERAL PRACTICE §
8.05[4] (citations omitted)); United States v. Smith, 112 ¥.2d 83,
85 (2d Cir. 1940) ("juries are apt to regard with a jaundiced eye a
person charged with two crimes than a person charged with one.").
Moreover the Government deliberately chose to enhance the
risk of spillover by presenting its case on the stronger Ms. |AM|]
charges first, even though that set of offenses was alleged to have
occurred more than one month after the alleged assault on Ms.
{DR}. Record at 922.
Noticeably absent from the Court of Appeals’ opinion is
any indication tat the Court of Appeals found the evidence as to
both sets of offenses to be “overwhelming,” i.¢. no possibility of
prejudice. See United States v. Lane et al., 474 US. at 450. Also
absent from the Court of Appeals decision is any evaluation of
whether spillover actually occurred. See e.g. United States v.
Southworth, 50 M.J. at 77-78 (1999).
Instead the Court of Appeals relied exclusively upon its
confidence that the members were able to follow the military
judge’s instructions to consider the two sets of offenses separately.
United States v. Duncan, 53 M.J. at 498.
Perhaps in a case involving more esoteric, non-violent,
offenses the members could compartmentalize the evidence, afford
4
the accused his presumption of innocence, and hold the Government
to its burden of proving cach offense beyond a reasonable doubt. It
was, however, asking too much of the members in this case to
compartmentalize the evidence in the face of two separate women
alleging, as the Navy-Marine Corps Court observed, “crimes of
violence the brutality of which we perceive as far exceeding the
common experience of most court members.” United States v.
Duncan, 48 MJ. at 808 (emphasis added)“
In United States v. Foutz, the Fourth Circuit rejected the
presumption that a jury will follow a limiting instruction under
sumilar circumstances, holding that “the prejudice to the defendant,
arising from the weakness of the government's one case and strength
of the other, |were] so marked that we cannot presume that the jury
adhered to limiting instructions and properly “segregate{d] [the]
evidence into separate intellectual boxes.” 540 F 2d at 738 (internal
citations omitted)
Prejudice also occurs when joinder of similar offenses
embarrasses or confounds an accused in making his defense. Cross
v. United States, 335 F.2d 987, 989 (D.C. Cir 1964) (citations
omitted), See, also, 25 MOORE'S FEDERAL PRACTICE
$614.03{1][b] (3d ed. 1999) (prejudice may arise from the joinder
of offenses occurs when an accused wishes to testify as to only one
count of a multi-count indictment
The test for prejudice adopted by the federal courts under
FED.R.CRIM.P. 14 requires a defendant to make a convincing
showing that he has important testimony to give concerning one
count, and a strong need to refrain from testifying on the other. See
United States v. Werner, 620 F.2d 922, 930 (2nd Cir. 1980). "[Aj
* The Court of Appeals took pains to repeatedly characterize the allegations as
“brutal” and “heimous.” United States v. Duncan, 53 M.J. at 496, 498, and 500.
It even rationalized its approval of the military judge's instruction to the
members on Petitioner's eligibility for parole based upon “the sheer brutality of
appellant's crimes.” /d. at 500
15
defendant may be willing to take the stand and testify as to one
count but might prefer to remain silent and put the government to its
proof on another count." United States v. Lewis, 547 F.2d 1030,
1033 (8th Cir. 1976), cert. denied, 429 U.S. 1111, 51 L. Ed. 2d-
566, 97 S. Ct. 1149 (1977); see also United States v. Garey, 813
F. Supp. 1069, 1074 (D. Vt. 1993) aff'd without opinion 19 F.3d 8
(2d Cir. 1994). A defendant who makes such a showing may be
entitled to severance. United States v. Archer, 843 F.2d 1019, 1022
(8th Cir. 1988).
At trial Petitioner moved to sever, in part, because he
intended to testify as to the Ms. [DR] charges but remain silent as
to the Ms. [AM] charges and put the Government to its proof.
Record at 98-101. Petitioner argued that, regardless of any
instruction that the members must not infer guilt from an accused's
silence, his taking the stand to rebut one set of charges and
remaining silent as to the other set of charges would inevitably taint
the members’ ability to not infer guilt from his silence. /d. at 99
in fact, Petitioner testified at trial as to the [DR] charges, arguing
that she consented to the sexual acts. Record at 1668-1717
Petitioner did not testify as to the [AM] charges, and relied on
reasonable doubt and voluntary intoxication to rebut many of the
charges, or specific intent elements, thereof, involving Ms. [AM].
Record at 1765-1772: United States v. Duncan, 53 MJ. at 498.
The fact that he testified on one set of charges necessarily
highlighted his failure to testify on the other charges. The Court of
Appeals’ opinion that he was not prejudiced by this dilemma flies | in
the face of the military judge’s own concession. Record at 101.”
The Court of Appeals’ decision also neglects to mention the
prosecution’s use of cross-examination to prejudice Petitioner's
decision to not take the stand with regard to the Ms. [AM] offenses.
Petitioner did not testify concerning the Ms. [AM] offenses. The
* “MJ. No. I mean, I think you have a good point here. {I}f the accused
testifies as to one set of offenses, however, and not the other, | mean, what
you're really saying is that is going to sharpen the fact that he didn’t testify as to
one set of offenses and despite any instructions the members would simply infer
that this is an admission of guilty by silence.”
16
defense did, however, elicit testimony that Petitioner had been
drinking alcoholic beverages prior to those offenses. Later, during
cross-examination of Petitioner’s testimony regarding the Ms. [DR]
offenses, the prosecutor asked whether Petitioner had any alcohol
on the evening of the alleged offenses against Ms. [DR]. Record at
1689. The prosecutor followed up Petitioner's negative reply by
asking: “You didn’t need it [alcohol] that night, correct?” Record at
1689." The clear implication of the prosecutor’s question, that if
Petitioner were not intoxicated on June 17th the members should not
believe he was intoxicated on July 24th, was planted.
This attempt by the prosecution to undermine the accused’s
right to remain silent as to the Ms. [AM] charges was not lost on
the members, one of whom then asked Petitioner, “Do you have a
drinking problem?” Record at 1704.'' This was exactly the
prejudice that the military judge had presciently anticipated and for
which he, paradoxically, refused to grant relief. Record at 105
(““[the members] may find an inconsistency between the two and ask
themselves like, well, why wasn’t he...intoxicated both times or
why wasn't there consent both times. And the defense would
perhaps illicitly suffer some erosion of their position that way.”).
Severance, rather than a curative instruction, was the
appropriate remedy here where joinder of the two sets of charges
confounded Petitioner's defenses and prejudiced his Fifth
Amendment night to remain silent.
c.
Had petitioner been acquitted of some of the charges
involving Ms. [DR] or Ms. [AM], the Court of Appeals’ conclusion
that the members followed the military judge’s instructions might
'° The military judge sustained the defense’s objection to the question as
argumentative.
'' In military practice, court-martial members may ask questions directly of the
witnesses. The military judge, in this instance, sustained the defense’s objection
to the question as outside the scope of direct examination. Record at 1704.
17
have merit. See e.g. United States v. Southworth, 50 M.J. at 78
(“The court members obviously distinguished between the two rape
allegations, finding appellant not guilty of raping AL but guilty only
of indecent assault.”); United States v. Vest, 116 F.3d1179, 1190
(7th Cir. 1997) (“The jury, moreover, seems to have taken the
instruction to heart because it returned not guilty verdicts on two
counts.”’). Instead, Petitioner was convicted of every offense arising
out the alleged assaults on both Ms. [DR] and Ms. [AM].
The fact that his co-accused, PFC Gambles, was not
convicted of all the offenses on substantially the same evidence
offers clear evidence that the members in Petitioner’s court-martial
did not follow the military judge’s instructions to separate the two
sets of offenses.
For example, Petitioner was convicted of the attempted
murder of Ms. [DR] by allegedly trying to drive over her with a car.
In the companion case of United States v. Gambles, PFC Gambles
was acquitted on the same evidence.'’ That evidence consisted only
of Ms. Roebuck’s own testimony that she thought she saw
headlights coming at her. Record at 1447. She admitted that the
car was never closer than 30 to 45 feet away. Record at 1447,
1464. Moreover, she was testifying to events observed after having
been badly beaten by PFC Gambles and while under the influence
of methamphetamine. Record at 1338
Nor did the prejudicial impact extend exclusively to the Ms.
{DR] charges. Petitioner was convicted, and his conviction
affirmed by the lower court, of the attempted murder of Ms. [AM].
The only evidence consisted of Petitioner allegedly kicking Ms.
[AM] and causing her to fall halfway down the grassy slope of a
15-foot deep ditch. Record at 944. A separate panel of the Navy-
Marine Corps Court set aside co-conspirator Gambles’ conviction
for the same attempted murder of Ms. [AM]. United States v.
Gambles, 1997 CCA LEXIS 541 at 9-10, No. 96-0352 at 11
(N.M.Ct.Crim.App. October 3, 1997) (unpublished) aff'd 50 M.J.
49 (May 26, 1998) (summary disposition).
? See Appendix at 33a.
18
This is noteworthy because Gambles was convicted for the
actions of Petitioner as a co-conspirator. The panel of the Navy-
Marine Corps Court which set aside Gambles’ conviction did so
because it found the evidence factually insufficient to prove
Petitioner actually intended to kill Ms. [AM]. Conversely, the panel
which considered Petitioner's record concluded on substantially
identical evidence that Petitioner did intend to kill Ms. [AM].
United States v. Duncan, 48 M.J. at 804-806.
The alleged offenses in this case are heinous and brutal.
The requirements of the Due Process Clause, however, “inescapably
imposes upon this Court an exercise of judgment upon the whole
course of the proceedings [resulting in a conviction] in order to
ascertain whether they offend those canons of decency and fairness
which express the notions of justice of English-speaking peoples
even toward those charged with the most heinous offenses. Malinski
v. New York, 324 U.S. 401, 416-417 (1945).
WHEREFORE this honorable Court should grant this
petition to consider whether denial of severance amounted to a
denial of due process where prejudicial spillover of evidence led to
Petitioner's wrongful conviction of at least two specifications of
attempted murder and confounded Petitioner's defenses.
Petitioner was denied equal protection of the law because of the
military’s narrower rule for severance of offenses.
Military accused, including Petitioner, are denied equal
protection of the law under the Fifth Amendment and Article 36,
UCMS, because the military rule for severing similar, but unrelated,
offenses is substantially narrower than its federal counterpart.
Both the military and federal rules favor joinder of similar,
though unrelated, offenses. The military rule is, however, broader
because it permits joinder of both major and minor offenses
regardless of whether they are related. Compare R.C.M. 601(e)(2)
with FED.R.CRIM.P. 8(b); see also United States v. Southworth, 50
19
M.J. 74, 76 (1999).
Conversely, the military rule governing severance of
offenses “roughly parallels FED.R.CRIM.PROC. 14, but is much
narrower because of the general policy in the military favoring trial
of all known charges at a single court-martial.” Drafters’ Analysis
of R.C.M. 906(b){10), App. 21 at A21-53, MCM (1995 ed.)
(emphasis added).
Under FED.R.CRIM.P. 14, the “first hurdle” to obtaining
severance is a showing of prejudice. United States v. Lane et al.,
474 U.S. at 449. If the district court nevertheless declines to grant
severance, the judge’s decision is reviewed for abuse of discretion to
determine whether the decision had a substantial influence on the
outcome of the proceedings. /d.(citing Kotteakos v. United States,
328 U.S. 750 (1946)); United States v. Alexander, 135 F.3d 470,
477 (7th Cir. 1998) cert. denied 525 U.S. 855 (1998).
Under R.C.M. 906(b)(10), however, the standard for
granting a motion to sever is “to prevent manifest injustice.” The
Court of Appeals has never defined “manifest injustice” but,
instead, has chosen to define what it is not. See e.g. United States
v. Curry, 31 M.J. at 375 (no manifest injustice where evidence of
one offense admissible against other); United States v. Southworth,
50 M.J. at 77-78 (no manifest injustice where evidence and findings
do not suggest spillover). Now the Court of Appeals has concluded
that, regardless of the nature of the charges or the state of the
evidence and findings, there can be no manifest injustice so long as
the members are properly instructed.
The practical import of this narrower standard is that
severance is not available in the military, no matter how prejudicial
and unfair the joinder. See United States v. Haye, 29 M.J. 213,
215 (C.M.A. 1989) (“Military practitioners rarely move for
'’ This narrower standard, however, does not apply to motions to sever joint
trials involving multiple defendants. For multiple defendants, the military rule
tracks FED.R.CRIM.P. 14. See R.C.M. 906(bX(9), MCM (1995 ed.) (“Severance
of multiple accused, if it appears that an accused or the government is prejudiced
by a joint or common tnal.”’)
20
of offenses. custom and tradition have shown that such motions
are likely to be futile.”’).
The equal protection component of the Fifth Amendment
mandates uniform treatment by the federal government of all
persons “similarly situated”. Bolling v. Sharp, 347 U.S. 497
(1954). Congress has specifically directed the President to “so far
as he considers practicable, apply the principles of law ... generally
recognized in the tnal of criminal cases in the United States district
courts.” Art. 36(a), UCMJ. 2 .
Where disparate government actions disadvantage a suspect
class, or impinge on fundamental rights, this Court reviews under a
standard of strict scrutiny. City of Cleburne v. Cleburne Living
Ctr, Inc., 473 U.S. 432, 440 (1985). The government must then
demonstrate that the disparate treatment 1s narrowly tailored to
serve a compelling state interest. /d
— The mght to a fundamentally fair tral is a “fundamental”
nght. See e.g. Gentile v. State Bar of Nevada, 501 U.S. 1030,
1075 (1991) (“Few interests under the Constitution are more
fundamental than the nght to a fair tnal by impartial jurors.”);
Strickland v. Washington, 466 U.S. 668, 684 (1984) (“The
Constitution guarantees a fair tnal through the Due Process
Clauses...."). Consequently, the government must demonstrate
that this disparate treatment 1s narrowly tailored to serve a
compelling state interest. 2
R.C.M. 906(b)(10) was drafted more narrowly than its
federal counterpart “because of the general policy in the military
favoring tnal of all known charges at a single court-martial.”
Drafters’ Analysis, supra. This general policy, embodied in
R.C_M. 601(e)(2), ts inconsistent with Fed. R.Crim.P. 8(a) because
the federal rule is “too unwieldy to be effective, particularly in
‘* Because the severance of joined offenses for prejudice is not an area of law
peculiar to the military, this Court should not apply its traditionally deferential
standard of review. See Middendorf v. Henry, 423 U.S. 25, 43 (1975) (“Dealing
with areas of law pecuhar to the military branches, the Court of Military
Appeals’ judgments are normally entitled to great deference.”’).
21
combat or deployment.” Drafters’ Analysis of R.C.M. 601(e)(2),
App. 21 at A21-31, MCM (1995 ed.)
This case, however, was not tried on deployment or during
combat. It was tried over the course of seven months, on 25
separate days, in southern California, and only after the companion
case had been tried months before. '° The military judge’s essential
findings of fact in support of his decision to deny severance do not
list any military exigency that necessitated joinder. Supra at 4.
In cases which involve “offenses joined on the ground that
they ‘are of the same or similar character’, but where evidence of
one offense would not be admissible to prove another, the saving of
time effected by a joint trial ts minimal.” United States v. Foutz,
540 F.2d 733, 738 (4th Cir. 1976); see also United States v.
Coleman, 22 F.3d 126, 132 (7th Cir. 1994) (Separate counts that
for the most part depend on separate evidence save fewer steps
when tned together). In fact, the military judge's order to
bifurcate the presentation of evidence necessitated calling witnesses
to both sets of charges to testify on separate occasions. United
States v. Duncan, 48 M.J. at 803. Thus the military judge's
“remedy” of bifurcation, in lieu of severance, defeated the very
argument for joinder, i.c. efficiency.
WHEREFORE, this honorable Court should issue a writ of
certiorari to require the Government to demonstrate which
compelling military interests justify the narrower standard for
severance of offenses in the military.
'S Since the alleged offenses occurred off-base, involve civilian victims, are not
uniquely military, one is left to wonder why the military elected to expend the
time and resources to prosecute these offenses over which the State of California
would clearly have had jurisdiction. It would be ironic if the expansive court-
martial jurisdiction this Court has so deferentially accorded the military is being
used to circumvent procedural protections afforded civilians, rather than to
promote good order and discipline within the services.
22
Hl
The Court of Appeals’ Erred By Denying Petitioner Relief
From a Fundamentally Unfair Sentencing Hearing.
The military judge instructed the members, over defense
objection, that Petitioner would be eligible for parole if sentenced to life
imprisonment. As a result, Petitioner was denied a fundamentally fair
sentencing hearing because the members were unlawfully encouraged to
adjudge life imprisonment instead of a lesser term of years.
The Court of Appeals’ decision has used this case to advance
its own beliefs and agenda for sentencing in courts-martial and is clearly
erroneous because: (A) R.C.M. 1005(e)(4) prohibits the members from
considering the possibility of parole in arriving at a sentence, (B) the
mulitary judge was secking to influence the members to return a harsher
sentence against the Petitioner than otherwise, and (C) a military judge
should not be able to intentionally prejudice the members deliberations
and then cloak his error in the guise of “harmlessness” by instructing
the members to “not be concerned about” about what he intentionally
clected to bring to their attention.
A.
Instructions on sentencing at courts-martial are largely left to
the discretion of the military judge. R.C.M. 1005(a), MCM (1995 ed.).
R.C.M. 1005(e)(4), however, requires the military judge to instruct the
members that “they are solely responsible for selecting an appropriate
sentence and may not rely on the possibility of any mitigating action by
the convening or higher authority.”
The President has declared, through R.C.M. 1005(e)(4)
that the members’ questions about parole and good time are not
related to the members’ duty to adjudge an appropriate sentence.
Until the Court of Appeals’ decision in this case, military courts-martial
have always been prohibited from speculating about future mitigating
23
action when adjudging a sentence.'* In addition, military judges were
precluded from instructing members on collateral consequences of the
court-martial over defense objection.”
Now, for the first time, the Court of Appeals has concluded
that the members’ inquiry into the availability of parole in this case
was “reasonably related to consideration of the heinous nature of
appellant’s offenses.” United States v. Duncan, 53 M.J. at 500.
The Court of Appeals’ decision is clearly contrary to the President’s
direction in R.C.M. 1005(e)(5), wach the Court’s opinion fails to
distinguish or even mention.
Judge Sullivan’s opinion uses this case as a vehicle to
implement the Court of Appeal’s own specific agenda to ensure the
members arrive at the harshest possible sentences. See United
States v. Boone, 42 M.J. 308, 314 (1995) (Sullivan, J., dissenting)
(“The parole authorities probably will reduce the ultimate sentence
even more. Nobody tells the members this. The judge--learned in the
law and its operation--knows that an accused rarely serves the full
time of sentence, but the jury is uneducated on this point. Perhaps it
is time to have “truth in sentencing.”). See also n.18, infra.
This Court recently affirmed the authority of the President to
promulgate rules of procedure for courts-martial and has clearly
indicated that the Court of Appeals for the Armed Forces is not free to
ignore them. Cf United States v. Scheffer, 523 U.S. 303 (1998).
'® MANUAL FOR COURTS-MARTIAL, U.S. ARMY (1949 ed.), 80a at 80 (“Courts
will be instructed, however, to exercise their own discretion and will not
adjudge sentences known to be excessive in reliance upon the mitigating action
of the reviewing or higher authority.”), William Winthrop, MILITARY LAW AND
PRECEDENTS at 402 (2d ed. rev. 1920) (“T]he court may not trench directly upon
the remitting or mitigating power of the commander.”).
” See United States v. Greaves, 46 M.J. 133, 137 (1997\defense objected to
military judge not giving instruction on punitive discharge’s effect on retirement
eligibility), United States v. Griffin, 25 M.J. 423, 424 (C.M.A. 1988\"It is
certainly not error for the judge to answer the members’ questions if an accused
agrees." (emphasis in original)), United States v. McLaren, 34 M.J. 926, 934, n.
9 (A.F.C.M.R. 1992) (The judge may answer members’ questions regarding
collateral consequences, but only with the accused permission).
24
This Court has an obligation to ensure that all of the President's
rules are obeyed, even those that inure to the benefit of an accused.
The Court of Appeals’ subversion of the military
sentencing scheme is further evidenced by the absence of any
mention of the military judge’s contrary ruling in the companion
case. The military judge in this case also presided over the
companion case of PFC Gambles tried several weeks earlier.
United States v. Gambles, 1997 CCA LEXIS 541 at 1, No. 96-
0352 at 1.
In Gambles the members also raised the question, in the
midst of sentence deliberations, as to whether parole was available
and when a prisoner would become eligible for parole. Gambles
Record at 1960. The prosecutor requested the military judge give
them a full and complete answer. Gambles Record at 1960. The
defense counsel objected, requesting the military judge decline to
even answer the question and tell the members that they may not
speculate as to why. Gambles Record at 1960. The defense
predicated its objection on the belief that the members “may believe
that since there is a possibility of parole that they should jack up
any sentence so to speak of confinement in order to cover any
eventuality...” Gambles Record at 1961.
The judge stated that he agreed with the defense and
instructed the members that they must “adjudge what they consider
a legal, just, and appropriate sentence, and, you know, not to
speculate about what if anything may be done to that sentence in the
future.” Gambles Record at 1961. Twenty minutes later, the
members returned with a sentence that included confinement for 40
years. Gambles Record at 1963-1964.
Companion cases. Same judge. Diametrically opposed
sentencing instructions. Vastly disparate sentences. No member of
the public, looking at these facts, could conclude that the judge’s
actions in this case were anything other than a calculated effort to
increase Petitioner’s sentence. No member of the public, looking at
25
these facts, can have confidence in the integrity of the military
justice system or of the military appellate courts which could affirm
such an outcome.
C.
The Court of Appeals’ concluded any error was harmless
because the members were presumed to follow the military judge’s
instruction to “not be concerned about” parole. United States v.
Duncan, 53 M.J. at 500. This was to no more than a “wink, wink,
nudge, nudge” invitation to factor in the possibility of parole and good
time in formulating their sentence. Such an invitation from the military
judge who, unlike the parties must give every appearance of neutrality
and impartiality, is intolerable.
questions asked by the members. They originated with the senior
member, Colonel Coulman, a fact probably not lost on the junior
members. United States v. Duncan, 53 M.J. at 499. The Court of
concem|s]”. Jd at 500. To nevertheless presume the members were
capable of, much less willing to, ignore the answers defies logic.
The Court of Appeals’ decision, if allowed to stand, gives
military judges the license to intentionally instruct the members on
matters they are clearly not permitted to consider under R.C.M.
1005(e)(4)."" He or she will then be able to render such errors
“harmless” by the simple instruction to “ignore what I just told you.”
WHEREFORE this honorable Court should grant this petition
for certiorari to decide whether the Court of Appeals’ decision is
contrary to R.C.M. 1005(e)(4) and the requirements of due process.
‘* “The availability of parole and rehabilitation programs are issues of general
knowledge and concern, and as such, they may be instructed upon, especially
when requested by the members. See generally RCM 1005(a)....” United States
v. Duncan, 53 M.J. at 500. Note the absence of any reference to R.C.M.
1005(b\4).
26
“ IV.
The presumption that court-martial members will follow a
judge’s instructions to ignore prejudicial information is not a
reliable basis for concluding their exposure to that information
was harmless.
The Court of Appeals’ rejected Petitioner’s challenge to the
prejudicial joinder of offenses, and to the judge’s instruction on
parole eligibility, based solely upon the presumption that the court-
martial members followed the military judge's instructions. oi
If the presumption is unreliable, and the members did
consider the prejudicial evidence in arriving at their findings and
sentence, then Petitioner was denied his fundamental right to a fair
trial and sentencing hearing guaranteed by the Fifth Amendment.”
The Court of Appeals erred in relying upon this presumption
to conclude that denial of severance and instruction on parole were
harmless because: (A) The presumption lacks a reliable basis in
knowledge and experience when applied to the facts of this case; and
(B) the manner in which courts-martial members are selected
undermines the presumption’s reliability in military practice.
'° United States v. Duncan, 53 M.J. at 498 (“Regardless of which offenses were
proven first, we are confident that the military members were able to follow
their instructions to consider them separately.”), id. at 500 (“In any event, any
error by the judge in instructing on these matters was clearly harmless.... The
military judge also instructed the members that, although parole existed in the
military justice system, they could not consider it in arriving at an appropriate
sentence for appellant.”’) (internal citations omitted).
” See e.g. United States v. Lane_et al., 474 U.S. at 446 (1986), Romano v.
Oklahoma, 512, U.S. 1, 12-3 (discussing whether the erroneous admission of
evidence so infected the sentencing proceeding with unfairness as to render the
jury's sentence a denial of due process. ).
27
A.
As this Court has observed, “t]he rule that juries are
presumed to follow their instructions is a pragmatic one, rooted less
in the absolute certitude that the presumption is true than in the
belief that it represents a reasonable practical accommodation of the
interests of the state and the defendant in the criminal justice
process.” Richardson v. Marsh, 481 U.S. 200, 211 (1987).
This Court recently held, in the context of expert testimony,
that such testimony based upon specialized experience must have “a
reliable basis in the knowledge and experience of [the relevant]
discipline.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149
(1999) (quoting Daubert v. Merrill Dow Pharmaceuticals, Inc.,
509 U.S. at 592). By the same token, if the presumption that
members follow a judge’s instructions lacks a reliable basis in
knowledge and experience under particular circumstances, then trial
courts and appellate courts should not rely upon it in assessing
prejudice or harmlessness.
Courts have recognized the presumption’s unreliability
under certain circumstances, for example expert assessments of
victim credibility in child sexual abuse cases. See e.g. United States
v. Knox, 46 M.J.688, 691 (N.M.Ct.Crim.App. 1997) (‘Not-
withstanding the cautionary instruction given in the appellant’s
case, we will not indulge in “[t]he naive assumption that all
prejudicial effects can be overcome by instructions to the jury,
[that] all practicing lawyers know to be unmitigated fiction... . .”)
(quoting Krulewitch v. United States, 336 U.S. 440 (1949)
(Jackson, J., concurring)).
Modern social science research into jury dynamics, has
produced results which are clearly to the contrary to the
presumption that jurors follow instructions to disregard salient, yet
prejudicial, information that is before them. See, generally
INTENTIONAL FORGETTING: INTERDISCIPLINARY APPROACHES
(Jonathan M. Golding & Colin M. MacLeod eds., Lawrence
Erlbaum Associations, Publishers 1998); Tanford, S. & Penrod, S.,
Social Inference Processes in Juror Judgments of Multiple
28
Offense Trials, 47(4) JOURNAL OF PERSONALITY AND SOCIAL
PSYCHOLOGY, 749-765 (1984).”"
This tently of ceentuith, Ainwnibiabisieibine deleaiaedi a
only ignore instructions to disregard salient, yet highly prejudicial,
evidence, but that they accord such evidence an even greater degree
of value than they might otherwise. The more salient the
information, the less able jurors or court-martial members are to
ignore it. See Kassin, S. & Studebaker, C., /nstructions to
Disregard and the Jury: Curative and Paradoxical Effects, in
INTENTIONAL FORGETTING: INTERDISCIPLINARY APPROACHES, ch.
15 at 420-22 (Jonathan M. Golding & Colin M. MacLeod eds.,
Lawrence Erlbaum Associations, Publishers 1998) (Studies
showing that instructions to disregard inadmissible evidence either
have no effect on jurors, i.e. they continue to consider the
information, or result in a greater reliance on the evidence than if no
instruction had been given (‘boomerang effect’).
The information the members were instructed to disregard
did not involve procedural matters or evidence tangential to their
purpose. Rather, the military judge asked the members to do the
impossible--ignore salient information that went to their core
functions, i.e. weighing the credibility of witnesses and deciding
upon an appropriate punishment. Record at 102.” In the same
way, the member’s consideration of whether life imprisonment was
an appropriate punishment was irrevocably colored by the military
judge’s disclosure that Petitioner would be eligible for parole.
*! These articles and studies, though unmentioned by the Court of Appeals in its
opinion, were provided to it and discussed during oral argument. See Letter
Citation to Supplement Authorities of 3 December 1999.
* DC: Right. But given, sir, that these would not be admissible under 404(b) if,
in fact, the trials are joined, then you have the fact with the [AM] offense there,
you have they're going to lend less credibility to PFC Duncan's testimony on
the [DR] offense.
MJ: Well, that’s possible. But I suppose that would be kind of a matter of
human nature, if you will.
29
B.
Reliance upon courts-martial members to follow a judge’s
instruction to ignore highly prejudicial evidence is further
complicated by the manner in which courts-martial members are
to trial also handpicked the members. Article 25(d)(2), UCMJ, 10
U.S.C. § 825(d)(2). Four of the members, including the senior
member, were on the convening authority’s personal staff or had
just completed a tour there. Appellate Exhibit LX.
In United States v. Hilow, 32 M.J. 439 (C.M.A. 1991), the
convening authority’s staff selected members based on whether they
were perceived to support “a command policy of hard discipline.”
Id. at 441. Other examples of court-stacking abound. See Glazier,
Major Guy P., He Called for His Pipe, and He Called for His
Bowl, and He Called for His Members Three—Selection of Military
Juries by the Sovereign: Impediment to Military Justice, 157 Mil.
L. Rev. 1, 51-53 (1998). Abuse of the member selection process to
affect cases’ outcomes “is difficult to see and harder to prove.”
United States v. Haagenson, 52 M.J. 34, 37 (1999) (Sullivan, J.,
concurring). ,
Even if the convening authority did not overtly attempt to
influence the outcome of the trial or sentencing hearing through his
selection of members, the specter of unlawful command influence
looms over these proceedings. The members knew they had been
detailed to the case by the same superior officer who has directed
that the accused be tried on all the charges before them. It would be
obvious to the members that following the judge’s instructions
might result in an outcome contrary to that which the convening
authority would expect based upon ai/ the evidence. The risk that
the members followed their intuition, rather than the instructions of
a judge outside the convening authority's chain-of-command, was
therefore elevated.
A “jury” selection system that is so vulnerable to conscious
and subconscious manipulation is insufficiently fair and reliable to
entitle the Government to a presumption that court-martial members
30
wili follow the judge’s instructions.
WHEREFORE, this honorable Court should issue a writ of
certiorari to review the correctness of the Court of Appeal’s
harmlessness determinations in light of its reliance on the
presumption.
CONCLUSION
If this Court declines to act now, the Court of Appeals’ can
effectively preclude future review by this Court by declining to
grant petitions for review in subsequent cases. United States v.
Boudreaux, 35 M.J. 291 (C.M.A. 1992) (“[A]n accused can only
seek review by the Supreme Court if the Court of Military Appeals
has decided his case. Art. 67a, Uniform Code of Military Justice,
10 USC § 867a.”).
Military members are entitled to a system of justice that is
fundamentally fair. Petitioner’s court-martial was not fair. The
Court of Appeals’ decision enshrines this unfairness into two
critical components of military procedure, severance of offenses and
sentencing instructions, for all courts-martial that follow. This
honorable Court should grant this petition for certiorari to review
the Court of Appeals’ decision.
Respectfully submitted,
MICHAEL J. WENTWORTH
Lieutenant Commander
Judge Advocate General's Corps
U.S. Navy
Counsel of Record
Navy-Marine Corps Appellate
Review Activity
716 Sicard St. SE, Suite. 1000
Washington Navy Yard, DC 20347
(202) 433-4161
la
APPENDIX
United States v. Duncan, 53 M.J. 494* (2000)
UNITED STATES,
V. is
Timothy S. DUNCAN, Private First Class £
U.S. Marine Corps, Appellant
No. 99-0109
Crim. App. No. 96-00701
United States Court of Appeals for the Armed Forces
Argued December 8, 1999
Decided on August 31, 2000
[*495] SULLIVAN, J., delivered the opinion of the Court, in which
peo sreppaag C.J, GIERKE, and EFFRON, JJ., and COX, S.J,
Counsel
For Appellant: Lieutenant Commander Michael J. Wentworth,
JAGC, USN (argued).
For Appellee: Lieutenant Timothy E. Curley, JAGC, USNR
(argued); Colonel Kevin M. Sandkuhler, USMC, and Commander
Eugene E. Irwin, JAGC, USN (on brief); Lieutenant Commander
JoAnn W. Melesky, JAGC, USN.
2a
Military Judge: Theodore G. Hess
This opinion is subject to editorial correction before
publication.
Judge SULLIVAN delivered the opinion of the Court.
Appellant was tried on various dates between November 4,
1994, and May 8, 1995, by a general court-martial composed of
officer members at Camp Pendleton, California. Contrary to his
pleas, he was found guilty of 3 specifications of attempted murder;
attempted robbery; attempted forcible sodomy; 3 specifications each
of conspiracy and of rape; larceny; 6 specifications of forcible
sodomy; 2 specifications of kidnapping; carrying a concealed
weapon; and communicating a threat, in violation of Articles 80,
81, 120, 121, 125, and 134, Uniform Code of Military Justice, 10
USC §§ 880, 881, 920, 921, 925, and 934, respectively. He was
sentenced to a dishonorable discharge, confinement for life, total
forfeitures, a fine of $200, and reduction to E-!. On March 29,
1996, the convening authority approved the sentence as adjudged.
The United States Navy-Marine Corps Court of Criminal Appeals
affirmed the findings and sentence as approved on review below.
United States v. Duncan, 48 MJ 797 (N.M. Ct. Crim. App. 1998).
On September 8, 1998, the Navy-Marine Corps Court of Criminal
Appeals denied appellant's motion for reconsideration.
On August 17, 1999, this Court granted review on the
following issues:
I
WHETHER THE LOWER COURT ERRED IN AFFIRMING
THE MILITARY JUDGE’S RULING NOT TO SEVER THE
CHARGES CONCERNING MS. [DR] AND MS. [AM].
3a
[*496} II
WHETHER THE LOWER COURT ERRED IN AFFIRMING
THE SENTENCE WHERE THE MILITARY JUDGE ABUSED
HIS DISCRETION BY INSTRUCTING THE MEMBERS ON
THE AVAILABILITY OF PAROLE AND REHABILITATION
PROGRAMS OVER DEFENSE OBJECTION.
;
We hold that the military judge did not abuse his discretion in
refusing to sever the charges in this case (see United States v.
Southworth, 50 MJ 74 (1999)) or in giving his sentencing
instructions on the possibility of parole and the existence of
rehabilitation programs (see generally United States v. Greaves, 46
MJ 133 (1997)).
Private First Class (PFC) Duncan was charged with a series of
brutal crimes against Ms. DR, including rape, forcible sodomy, and
attempted murder, which were alleged to have occurred on June 17,
1994. He was also charged with a series of brutal crimes against
Ms. AM, which again included rape, forcible sodomy, and
attempted murder, on July 24, 1994. Finally, he was charged with
several additional offenses against Ms. AM’s male companicn and
RS, a bystander.
The Court of Criminal Appeals stated:
The evidence establishes that on 17 June 1994, the
appellant and PFC Glenis Gambles rented a small, white, two-
door Mazda 323. With Gambles driving, they picked up [Ms.
DR] who was hitchhiking in Oceanside. She immediately
announced to them that she was not a prostitute. She had
become concerned upon realizing that the driver of the car was
a Black man, since she had experienced some troubles before
with Black men. After they refused to stop and let her out where
she asked, she became panicked and begged them to let her out.
She was being told that they were going to kill her. She tried to
4a
kick out the window of the back seat where she was riding.
Eventually, the appellant and Gambles stopped in a remote
area. Both the appellant and Gambles struck [Ms. DR] several
times with their fists and kicked her. She was forced to remove
her clothes, except for her underpants. The appellant forced her
to orally copulate him while simultaneously Gambles raped her
from the rear and attempted to anally sodomize her, after
ripping off her underpants. After Gambles got menstrual fluid
on his clothing, he became enraged, pulled her from the car and
beat her. Gambles then forced her back into the car, drove to
another area, parked and beat her some more. She went limp
and “played dead.” They got into the car and started as if they
were driving away, then turned and drove toward where she
was lyinz on the ground. She jumped up and ran away. All of
her possessions that she was carrying were taken away in the
car. The appellant later gave her pager to his aunt and asked
her to change the number. The appellant also bragged to some
of his fellow Marines about having robbed and raped a girl
whom he and Gambles had picked up.
The evening of 24 July 1994, the appellant, PFC_Miller,
and PFC Gambles agreed to go out and rob someone of their
money. They set out on this expedition with Miller driving his
pickup truck. After driving around, they spotted two females at
a phone booth and approached them to rob them, but the
females got into a car and left before the robbery could be
completed. Apparently frustrated, the trio drove to Buccaneer
Beach in Oceanside. There [Ms. AM] and her friend, Jordan
McLean, were sitting on the beach. Richard Schnittger and his
eight months-pregnant wife were sitting in a car nearby, but not
close enough for Schnittger to recognize [Ms. AM] whose
family he’d known for 8 years. The appellant and Gambles
walked past [Ms. AM] and McLean with the appellant carrying
a 40-ounce bottle of St. Ides beer. They turned and approached
the couple and the appellant strack McLean on the head with
the bottle with sufficient force to break it. While the appellant
Sa
beat up McLean, Gambles forced [Ms. AM] along the beach
and forced her to strip off her clothing, threatening her with the
.380 Colt handgun which he had thoughtfully brought along.
Schnittger [*497] saw the appellant beating McLean and got
out of his car to try to intervene. Gambles, who was dragging a
naked {Ms. AM] along the beach, saw him approaching and
fired the gun in his direction, motivating Schnittger to return to
his car and depart the area. After patting down McLean’s
pockets, the appellant joined Gambles and struck [Ms. AM]
with his fist. He then forced [Ms. AM] to orally copulate him
while Gambles raped her from the rear. They then forced [Ms.
AM] into Miller’s truck and drove her to another area, beating,
raping and sodomizing her repeatedly along the way. They told
her that they were going to kill her. They parked in a dark
place, forced [Ms. AM] out of the truck, and repeatedly raped
and sodomized her. After they completed their sexual
degradation of [Ms. AM], the appellant lined her up and kicked
her off a cliff.
About 5 days later the appellant learned that Miller was an
unauthorized absentee. The appellant told Corporal Swenson
that Miller had been messed up by them having hit a guy over
the head with a bottle and raped a girl the previous week. He
said that if Miller went to the police he would kill him.
48 MJ at 804-05.
SEVERANCE
The first issue we will address is whether the military judge
erred in refusing to sever the trial of the offenses concerning Ms.
AM from those concerning Ms. DR. Appellant notes that severance
is required under RCM 906(b)(10), Manual for Courts-Martial,
United States (1994 ed.), to prevent “"manifest injustice" and, citing
6a .
the decision of this Court in United States v. Southworth, supra at
76, he asserts that a manifest injustice occurred in his case. He
argues that evidence of the offenses against Ms. AM was not
admissible to show his guilt of the offenses against Ms. DR; the
military judge’s limiting instructions and other bifurcation measures
were ineffective; and impermissible crossover was a real possibility
in his case. He also argues that_refusal to sever these offenses
violated his right against self-incrimination. We disagree.
Our starting point in resolving this case is recognition of the
fact that joinder of offenses at a court-martial is more permissive
than joinder in federal district courts. United States v. Southworth,
supra at 76; see RCM 601(e)(2) (" two or more offenses . . . . may
be referred to the same court-martial for trial, whether serious or
minor offenses or both, regardless whether related"). Cf.
Fed.R.Crim.P. 8 ("Two or more offenses may be charged in the
same indictment . . . . if the offenses charged, whether felonies or
misdemeanors 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."). See generally United States v. Keith, 1 USCMA
442, 448, 4 CMR 34 (1952). However, in view of "the same or
similar character" of the charged offenses in this case, there was no
joinder problem under either rule. See United States v. Coleman, 22
F.3d 126, 131-134 (7th Cir. 1994); United States v. Alexander, 135
F 3d 470, 475-76 (7th Cir.), cert. denied, 525 U.S. 855 (1998).
We also note that a military judge, like a federal district judge,
has power to sever the trial of offenses in certain circumstances. See
RCM 906(b)(10); cf. Fed.R.Crim.P. 14. This Court has recognized
the difference in wording between the military judge’s power ("only
to prevent manifest injustice") and the federal district judge’s power
("[i]f it appears that a defendant or the government is prejudiced by
a joinder"). See United States v. Southworth, supra at 76; cf. United
States v. Curry, 31 MJ 359 374 (1990). In any event, federal
courts, both military and civilian, have been concerned with
Ta
preventing impermissible spillover in various ways from the proof
of one offense into the trial of another offense. See United States v.
Southworth, supra at 76; see United States v. Foutz, 540 F.2d 733,
736 (4th Cir. 1976). In oniaesk: "an abuse of discretion will be
found only where the defendant is able to show that the denial of a
severance [*498] cause:| him actual prejudice in that it prevented
him from receiving a fair trial; it is not enough that separate trials
may have provided him with a better opportunity for an acquittal.
Vest, 116 F.3d at 1190; United States v. Moya-Gomez, 860 F.2d
706, 754 (7th Cir. 1988), cert. denied, 492 U.S. 908, 109 S.Ct.
3221, 106 L.Ed.2d 571 (1989)." United States v. Alexander, 135
F.3d at 477.
In light of the three-pronged test of Southworth, we conclude
that the military judge did not abuse his discretion in holding that
appellant could receive a fair trial on all the charges in this case. (R.
111) Admittedly, the judge recognized that the evidence of Ms.
AM’s rape and brutalization would not be admissible to show
appellant’s rape and brutalization of Ms. DR, one month earlier.
However, this evidentiary judgment alone did not require that he
grant the severance motion. See United States v. Southworth, supra
at 77-78. In response to this problem, the military judge gave
limiting instructions three times to the members to consider these
offenses separately. (R. 700-701) (R. 1322) (R. 1835). 50 MJ at
77; United States v. Dixon, 184 F.3d 643, 646 (7th Cir. 1999).
He also took steps to bifurcate the presentation of evidence and
argument by the prosecution to avoid the risk of impermissible
spillover. (R.901-902, 1799-1806). 50 MJ at 77; United States v.
Dixon, supra at 646. In our view, regardless of which offenses
were proven first, we are confident that the military members were
able to follow their instructions to consider them separately. Id. at
646 ("The ability of a jury to follow instructions is instrumental to
our theory of trial."); see also United States v. Coleman, 22 F.3d at
134-35 (elevated concern for unfairness when "same or similar
character" offenses are joined, but severance not mandated); United
States v. Hogan, 20 MJ 71, 73 (CMA 1985) ("chances of their
8a
cumulating the evidence . . . substantially diminished" by proper
instructions from judge).
We also conclude that the military judge did not abuse his
discretion in holding that appellant’s defenses would not be
"confounded" or destroyed by a joint trial. Appellant’s defense to
the alleged rape of Ms. DR was that she consented to the act of
sexual intercourse with appellant. Appellant’s defense to the alleged
rape of Ms. AM was voluntary intoxication and evidentiary
insufficiency. These defenses, raised on different occasions with
respect to different alleged victims, were neither logically nor
practically inconsistent. Moreover, the mere fact that appellant
asserted his right of self-incrimination with respect to his alleged
crime against Ms. AM, but not with respect to the alleged crimes
against Ms. DR, did not require a severance. See United States v.
Dixon, supra at 646. Based on all the circumstances of this case, we
conclude that the military judge did not abuse his discretion in
denying the defense motion for severance. United States v. Foster,
40 MJ 140, 148 (CMA 1994); see also United States v. Kerr, 51
MJ 401, 406-07 (1999) (entire record should be considered in
evaluating judge’s ruling on spillover questions).
‘ SENTENCE INSTRUCTIONS
The other issue in this case is whether the military judge erred
in instructing the members over defense objection concerning
availability of parole and rehabilitation programs in the military
justice system. These instructions came in response to questions by
the members addressed to the military judge. The specific questions
were: "Will rehabilitation/therapy be required if PFC Duncan is
incarcerated?” and "In military justice, is parole granted or are
sentences reduced for good behavior? If so, do these reductions
apply to a life sentence?" (R. 2035-37) Defense counsel objected to
answering both questions because they concerned collateral
consequences, and he requested that the members be simply told
that these questions were "off-limits." (R. 2040)
9a
The military judge agreed in part with defense counsel but
rejected his suggested instruction. (R. 2039) Instead, he gave the
following ae
instructions: ee
q
Just to refresh your recollection, there have been two questions a
that have been asked. I’m going to answer the second question a
first and then the first question. [*499] I'll advise you what the a
questions were before I answer them. The first question is: In
military justice, is parole granted or are sentences reduced for
good behavior? If so, do these reductions apply to a life
sentence?
Now, members of the court, in answering this second question
a first, it is important to remind you of the nature of a court-
martial in the military justice system. It is a completely
independent agency temporarily created to determine the issue
of guilt or innocence in a case and impose an appropriate
sentence in the event of a conviction.
After trial a variety of reviewing and higher authorities review
the case. As an independent agency, you must not adjudge an
excessive sentence in reliance upon possible mitigating action
by the convening or other authority. You must do what you
think is right today.
Now, parole is available to an accused sentenced by. a military
court to serve confinement, including life imprisonment. The
exercise of parole, however, depends upon several factors,
including but not limited to the length of sentence to
confinement, the nature of the convicted crimes, and the
conduct of the accused during the period of confinement.
You should determine, in terms of confinement, what you feel is
appropriate for this accused. Under these circumstances, do not,
x 10a
and I say again, do not be concerned about the impact of parole.
When selecting an appropriate sentence, you should select a
sentence which will best serve the ends of good order and
discipline, the needs of the accused, and the welfare of society.
Now, I’m turning to your second question, which is: Will
rehabilitation/therapy be required if PFC Duncan is
incarcerated? Members of the court, you are advised that there
are appropriate alcohol and sex offense rehabilitation programs
available to the accused should he be confined as a result of the
sentence in this case. The accused is not required to participate
in any program of rehabilitation and treatment, but there are
strong and usually effective incentives for him to do so while
confined. 3
Now, Colonel Colemen, do these responses answer your
questions?
Pres: Yes, sir.
(R. 2044) (Emphasis added.)
On appeal, appellant again argues that the military judge erred
in giving the instructions noted above because parole and
rehabilitation programs are "collateral consequences" of a court-
martial sentence. He asserts that the general rule at courts-martial is
that it should concern itself “with the appropriateness of a particular
sentence for an accused an:! bs offense, without regard to the
collateral administrative effects of the penalty under consideration."
Appeliant’s Final Brief at 9. He contends, therefore, that the
military judge should "[{o]rdinarily . . . reply that ‘collateral
consequences are not germane”"; and he cites United States v.
Gniffin, 25 MJ 423, 424 (CMA), cert. denied, 487 U.S. 1206
(1988), and United States v. Quesinberry, 12 USCMA 609, 612, 31
CMR 195, 198 (1962), for this rule, at least where the accused
opposes the instruction. See United States v. Gnffin, supra at 424.
ae ee
lla
We thiskcthls\ennsin cians aurenusumeueas dan
United States v. Greaves, 46 MJ 133 (1997). There, we rejected a
bright-line rule prohibiting instructions on collateral consequences
of a court-martial and instead adopted a more flexible approach
focusing on the military judge’s responsibility to give "appropriate
sentence instructions." While the military judge’s discretion in
choosing whether to instruct upon such "collateral" matters is
broad, he or she is required to give legally correct instructions that
are tailored to the facts and circumstances of the case. United States
v. Greaves, 46 MJ at 139 (citing United States v. Cook, 11 __
USCMA 579, 581, 29 CMR 395, 397 (1960), and United States v.
Slaton, 6 MJ 254, 255 (CMA 1979)). Most importantly, military
judges must give members answers which are clear. United States
v. Griffin, 25 MJ at 424. When the members ask whether an
accused will be required to participate in a rehabilitation program,
as they did in this [*500] case, it is appropriate for the judge to
answer if he or she can draw upon a body of information that is
reasonably available and which rationally relates to the sentencing
considerations in RCM 1005(e)(5). The availability of parole and
rehabilitation programs are issues of general knowledge and
concern, and as such they may be instructed upon, especially when
requested by the members. See generally RCM 1005(a) ("The
nnlitary judge shall give the members appropriate instructions on
sentence") and RCM 801(a)(5) (duty of military judge to "[i]nstruct
members on questions of law and procedure which may arise").
In the case at bar, the members themselves interrupted their
deliberations to inquire about the possibility of parole and the
existence of rehabilitation programs. See RCM 1005(b); see
generally Article 46, UCMJ, 10 USC § 846, and RCM 913(c)(1)(F)
(power of members to seek instructions from military judge and
further evidence). Moreover, these inquiries were reasonably related
to consideration of the heinous nature of appeli :nt’s offenses (see
generally RCM 1001(b)(4) (evidence in aggraution)) and the
possibility that he might be released in the future unreformed into
12a
civilized society. See generally RCM 1001(b)(5) (evidence of
rehabilitative potential). In view of the sheer brutality of appellant’s
crimes, it is quite clear that these were “crucial military concern{s]}"
which were properly addressed by the military judge. See United
States v. Greaves, 46 MJ at 139. In any event, any error by the
judge in instructing on these matters was clearly harmless. Article
59a), UCMJ, 10 USC § 859(a). The military judge also instructed
the members that, although parole existed in the military justice
system, they could not consider it in arriving at an appropriate
sentence for appellant. Moreover, his instruction on rehabilitation
programs also benefited appellant because it strongly suggested that
such programs did exist and that appellant would likely participate
in them as a matter of prison exigency. Accordingly, we conclude
that these instructions, even if erroneous, did not materially
prejudice appellant's substantial rights.
The decision of the United States Navy-Marine Corps Court of
Criminal Appeals is affirmed.
13a
United States v. Duncan, 48 M.J. 797* (1998)
IN THE U.S. NAVY-MARINE CORPS COURT OF
CRIMINAL APPEALS
WASHINGTON NAVY
- YARD
WASHINGTON D.C.
BEFORE
E.D. CLARK LARRY D. WYNNE R.B. LEO
UNITED STATES
v.
Timothy S. DUNCAN, 484 94 7277
Private First Class (E-2), U.S. Marine Corps
PUBLISH
NMCM 96 00701 Decided 31 July 1998
Sentence adjudged 4 May 1995. Military Judge: T.G. Hess.
Review pursuant to Article 66(c), UCMJ, of General Court-Martial
convened by Commander, Ist Marine Division (Rein), FMF, Camp
Pendleton, CA.
[*800] LT SYED N. AHMAD, JAGC, USNR, Appellate Defense
Counsel
LCDR NANCY B. JONES, JAGC, USN, Appellate Government
Counsel
CLARK, Senior Judge:
At the appellant’s general court-martial, a panel of members
144°
convicted him, contrary to his pleas, of several offenses” which
® Charge I Violation of the Uniform Code of Military Justice [hereinafter
UCM], Article 80
Specification 2: 24 July 1994, attempted armed robbery and strong-arm
robbery of Jordan M. McLean, with a firearm and by striking him in the head
with a 40-ounce beer bottle, in the body with fists, and kicking him in the
head and body with feet, searching his clothing, and firing a weapon.
Charge II: Violation of the UCMJ, Article 81
Specification 1: 24 July 1994, conspire with Gambles and Miller to rob
Jordan M. McLean and to kidnap [M]};
Specification 2: 24 July 1994, conspire with Gambles to commit rape
and forcible oral and anal sodomy of [M],
Charge III: Violation of the UCMJ, Article 120
Specification 1: 24 July 1994, in an area adjacent to Pacific Street, rape
{M]},
Specification 2: 24 July 1994, in a pickup truck, rape [M],
Charge IV: Violation of the UCMJ, Article 125
Specification 1: 24 July 1994, in an area adjacent to Pacific Street,
commit forcible sodomy of [M] by placing Duncan's penis in {M]'s mouth,
Specification 2: 24 July 1994, in a pickup truck, commit forcible sodomy
of [M] by placing Duncan's penis in [M]'s anus,
Specification 3: 24 July 1994, in a pickup truck, commit forcible sodomy
of [M] by placing Miller's penis in [M]'s mouth,
Specification 4: 24 July 1994, in an area adjacent to State Street, commit
forcible sodomy of [M] by placing Gambles' penis in [M]'s mouth;
Specification 5: 24 July 1994, in an area adjacent to State Street, commit
forcible sodomy of [M] by placing Duncan's penis in [M]'s mouth, then in
{M]'s anus, then in [M]'s mouth,
Charge V: Violation of the UCMJ, Article 134
Specification |: 24 July 1994, kidnap [M],
Specification 3: 24 July 1994, unlawfully carry a Colt .380 semiauto-
matic handgun concealed on or about his person,
Additional Charge I: Violation of the UCMJ, Article 80
Specification 1: 24 July 1994, while attempting to perpetrate a robbery
and a rape, attempt to murder Richard A. Schnittger by pointing and shooting
at him with a Colt .380 semiautomatic handgun;
Specification 2: 24 July 1994, while perpetrating a rape, attempt to
murder [M] by kicking her backwards over a cliff,
15a
consti- [*801] tuted two veritable crime sprees separated in time by
about 5 weeks. The members adjudged a sentence which included
confinement for life, forfeiture of all pay and allowances, reduction
to pay grade E-1, a fine of $200.00, and a dishonorable discharge.
The convening authority approved the adjudged sentence.
The appellant has submitted 17 assignments of error,”* of which
Specification 3: 17 June 1994, while perpetrating a rape, attempt to
murder [R] by repeatedly striking her in the head and body with feet and fists,
and by attempting to run over her body with an automobile as she lay on the
ground;
Specification 4: 17 June 1994, attempt to commit forcible anal sodomy
of [R] by placing Gambles' penis against the opening and trying to push it
inside [R]'s anus;
Additional Charge II: Violation of the UCMJ, Article 81
Specification: 17 June 1994, conspire with Gambles to rob, kidnap, and
rape [R];
Additional Charge III: Violation of the UCMJ, Article 120
Specification: 17 June 1994, rape [R];
Additional Charge IV: Violation of the UCMJ, Article 121
Specification: 17 June 1994, steal one purse containing miscellaneous
items, $40.00 in U. S. currency, a clear plastic pager, a gold chain and tocket,
and miscellaneous items of women's clothing, value in excess of $100.00;
Additional Charge V: Violation of the UCMJ, Article 125
Specification: 17 June 1994, commit forcible sodomy of [R] by placing
Duncan's penis in [R]'s mouth;
Additional Charge VI: Violation of the UCMJ, Article 134
Specification 1: 17 June 1994, kidnap [R];
Specification 2: 29 July 1994, communicate to LCpl Swenson a threat
to kill Miller.
* |. THE MILITARY JUDGE ERRED WHEN HE INSTRUCTED THE
MEMBERS ABOUT COLLATERAL CONSEQUENCES OF THE
SENTENCE.
Il. THE MILITARY JUDGE ERRED WHEN HE DENIED THE
MOTION TO SEVER THE CHARGES CONCERNING [R] AND [M].
Ill. THE MILITARY JUDGE ERRED WHEN HE DENIED
APPELLANT'S CHALLENGE FOR CAUSE.
l6a
IV. THE MILITARY JUDGE ERRED WHEN HE DENIED
APPELLANT'S REQUEST TO DEPOSE MS. [M].
V. THE CONVENING AUTHORITY WAS DISQUALIFIED FROM
ACTING ON THIS COURT-MARTIAL.
VI. APPELLANT'S SENTENCE TO CONFINEMENT FOR LIFE IS
INAPPROPRIATELY SEVERE.
Vil. THE GOVERNMENT FAILED TO PROVE BEYOND A
REASONABLE DOUBT THAT APPELLANT ATTEMPTED TO
MURDER MR. SCHNITTGER.
Vill. THE GOVERNMENT FAILED TO PROVE BEYOND A
REASONABLE DOUBT THAT APPELLANT ATTEMPTED TO
MURDER MS. [M].
IX. THE GOVERNMENT FAILED TO PROVE BEYOND A
REASONABLE DOUBT THAT APPELLANT ATTEMPTED TO
MURDER MS. [R].
X. APPELLANT WAS PUNISHED BEFORE TRIAL BY BEING
ASSIGNED TO MAXIMUM CUSTODY CONFINEMENT.
XI. THE MILITARY JUDGE ERRED WHEN HE ADMITTED, AS
AGGRAVATION, EVIDENCE THAT MS. [M] HAD TO TESTIFY AT
THE COURTS-MARTIAL, THAT SHE WAS TESTIFYING TO PROTECT
OTHER WOMEN FROM APPELLANT, AND THAT SHE BELIEVED
THAT SHE NEEDED THERAPY FOR THE REST OF HER LIFE.
(Citations omitted.)
XIl. THE MILITARY JUDGE ERRED WHEN HE DENIED
APPELLANT'S REQUEST TO ADMIT EVIDENCE OF PROSTITUTION
BY MS. [R] TO CORROBORATE APPELLANT'S TESTIMONY THAT
SHE APPEARED TO BE A PROSTITUTE AND AGREED TO COMMIT
SEXUAL ACTS AFTER BEING PICKED UP AS A HITCHHIKER, AND
TO REBUT HER TESTIMONY THAT SHE WAS NOT A PROSTITUTE.
(Citations omitted.)
XII. THE MILITARY JUDGE ERRED WHEN HE DENIED
APPELLANT'S MOTION TO CONSOLIDATE CHARGE _ III,
SPECIFICATIONS 1 AND 2 (RAPE OF [M]), CHARGE IV,
SPECIFICATIONS 1 . (SODOMY OF [M]), ADDITIONAL CHARGE
I, SPECIFICATION 4 AND ADDITIONAL CHARGE V AND THE
SPECIFICATION THEREUNDER (SODOMY OF [R]), BECAUSE THE
OFFENSES WERE COMMITTED IN A CONTINUOUS-COURSE-OF-
CONDUCT ON THE SAME DAY WITH NO APPRECIABLE
17a
we will discuss several in detail. The supplemental assignment of
error” is without merit and warrants no discussion. See Manual of
the Judge Advocate General, Judge Advocate General Instruction
5800.7C of 3 Oct. 1990, [*802] § 0120a(1); Post-Trial Affidavit of
Colonel Durrett.
SEPARATION OF TIME. (Citations omitted.)
XIV. THE MILITARY JUDGE ERRED WHEN HE DENIED
APPELLANT'S MOTION TO SUPPRESS HIS STATEMENTS MADE TO
CORPORAL (THEN-LANCE CORPORAL) SWENSON BECAUSE
CORPORAL SWENSON SUSPECTED APPELLANT OF AN OFFENSE,
AND WAS IN HIS IMMEDIATE CHAIN-OF-COMMAND. (Citations
omitted.)
XV. THE MILITARY JUDGE ERRED WHEN HE DENIED
APPELLANT'S REQUEST FOR A NEW TRIAL AFTER LEARNING
THAT ONE OF THE MEMBERS, DURING THE TRIAL, HAD SPOKEN
WITH THE GOVERNMENT'S SOLE REBUTTAL WITNESS OUTSIDE
THE COURTROOM. (Citations omitted.)
XVI. THE GOVERNMENT FAILED TO PROVE BEYOND A
REASONABLE DOUBT THAT APPELLANT IS GUILTY OF RAPING
[R], WHERE A MEDICAL EXAMINATION CONDUCTED
IMMEDIATELY AFTER THE INCIDENT REVEALED THAT THERE
WAS NO PHYSICAL EVIDENCE OF A RAPE, AND WHERE THE
VICTIM WITNESS WAS INHERENTLY INCREDIBLE IN HER
IDENTIFICATION OF APPELLANT DUE TO HER ADMITTED DRUG
ADDICTION AND THE FACT THAT SHE WAS UNDER THE
INFLUENCE OF DRUGS ON THE NIGHT OF THE ALLEGED
INCIDENT. (Citations omitted.)
XVII. THE TRIAL COUNSEL COMMITTED PLAIN ERROR WHEN
HE ARGUED THAT APPELLANT WAS "EVIL INCARNATE; THAT HE
GIVES WHOLE NEW MEANING TO THE TERMS 'VICIOUS' AND
‘MONSTER." (Citation omitted.)
* APPELLANT WAS ‘TRIED AND CONVICTED BY AN
IMPROPERLY CONVENED COURT-MARTIAL ON CHARGES THAT
WERE IMPROPERLY REFERRED TO IT, RENDERING SAID
PROCEEDINGS VOID.
18a
Assignment of Error I
During deliberations on the sentence the members presented an
inquiry to the military judge. Appellate Exhibit CXXXIV contains
the following two questions from the members:
(1) Will rehabilitation/therapy be required if PFC
Duncan is incarcerated?
(2) In military justice, is parole granted or are
sentences reduced for good behavior? If so do
these reductions apply to a "life" sentence?
The military judge and counsel discussed the questions at a RULE
FOR COURTS-MARTIAL 802, MANUAL FOR COURTS-MARTIAL,
UNITED STATES (1995 ed.)[hereinafter R.C.M.] conference, which
is summarized in the Record at 2038-41. The military judge
instructed the members, in pertinent part, as follows:
Now, members of the court, in answering this
second question first, it is important to remind you
of the nature of a court-martial in the military
justice system. It is a completely independent
agency temporarily created to determine the issue
of guilt or innocence in a case and impose an -
appropriate sentence in the event of a conviction.
After trial a variety of reviewing and higher
authorities review the case. As an independent
agency, you must not adjudge an excessive
sentence in reliance upon possible mitigating action
by the convening or other authority. You must do
what you think is right today.
Now, parole is available to an accused sentenced
by a military court to serve confinement, including
life imprisonment. The exercise of parole,
19a
however, depends upon several factors, including
but not limited to the length of sentence to
confinement, the nature of the convicted crimes,
and the conduct of the accused during the period of
confinement.
You should determine, in terms of confinement,
what you feel is appropriate for this accused.
Under these circumstances, do not, and I say again,
do not be concerned about the impact of parole.
When selecting an appropriate sentence, you
should select a sentence which will best serve the
ends of good order and discipline, the needs of the
accused, and the welfare of society.
Now, I’m turning to your second [sic] question,
which is: Will rehabilitation/therapy be required if
PFC Duncan is incarcerated? Members of the
court, you are advised that there are appropriate
alcohol and sex offense rehabilitation programs
available to the accused should he be confined as a _
result of the sentence in this case. The accused is
not required to participate in any program of
rehabilitation and treatment, but there are strong
and usually effective incentives for him to do so
while confined.
Record at 2043-44. The members deliberated another 40 minutes
before returning with the sentence.
The defense had proposed the following instruction:
A question has been posed regarding the
availability of parole and good behavior credit in
the military correctional system. You are
instructed that the military justice system has
20a
within it different integral parts that make up the
whole. As a sentencing authority at a court-
martial, you now perform just one of the functions
that make up the military justice system as a whole.
In determining an appropriate sentence in this
case, you should determine what you feel is
appropriate for this accused. As your role in the
military justice system as a whole is a limited one,
you should not concern yourselves about the
impact of a possible parole or good behavior credit
sometime in the future. For purposes of
determining an appropriate sentence at this court-
martial, you must assume that no parole or good
behavior exists. Your part in the military justice
system is an integral one, but it is essential that you
perform only that function which is within your
purview. As I have previously instructed you, you
should select a sentence which will best serve the
ends of [*803] good order and discipline, the needs
of the accused, and the welfare of society.
Appellate Exhibit CXXXV.
The propriety of a collateral consequences instruction depends
upon the particular facts and circumstances of a case. United
States v. Greaves, 46 M.J. 133, 139 (1997). The military judge has
the discretion to determine whether such an instruction is
appropriate. Jd.
The gist of the appellant’s argument seems to be that the military
judge provided the members more information than they needed.
We need not resolve that issue. The pertinent issue is whether the
military judge provided the members proper guidance for
determining an appropriate sentence. We find that he did. In
addition to instructing the members as to the criteria for an
appropriate sentence, the military judge emphasized to them that
2la
they should not be concerned about the impact of parole. This was
not an abuse of his discretion.
Absent evidence to the contrary, we may presume that the
members followed the military judge’s instructions. United States
v. Loving, 41 M.J. 213, 235 (1994), affd, 517 U.S. 748 (1996);
United States v. Holt, 33 M.J. 400, 408 (C.M.A. 1991): United
States v. Rushatz, 31 M.J. 450, 456 (C.M.A. 1990). The appellant
has not shown that he was prejudiced by the military judge’s
instruction. We find no prejudice.” This assignment has no merit.
Assignment of Error II
The military judge denied the defense motion to sever the charges
relating to the 17 June 1994 incidents from those relating to the 24
July 1994 incidents. Afterwards, the military judge and the trial
counsel took considerable measures to prevent spillover of evidence
from one set of charges to the other.
The Government’s brief does a good job of describing the steps
taken by both the military judge and the prosecution to bifurcate the
evidence relating to the two dates of the offenses:
The military judge took great care to ensure
that spillover between offenses did not occur.
First, during voir dire, the military judge
specifically instructed the members that each
offense was required to stand on its own and that
evidence of each offense must be kept separate.
(R. 700-01). He repeated the spillover instruction
26
We do not find that the disparity between the appellant's sentence,
which included confinement for life, and that of PFC Gambles, which
included confinement for 40 years, constitutes evidence that the members
ignored the military judge's instructions.
22a
before the members began to deliberate on findings.
(R. 1835). Moreover, he emphasized that the
burden of proof is always on the Government to
prove each and every element of each offense
beyond a reasonable doubt. /d.
Answer on Behalf of the Government at | 1.
During the opening statement as well as the closing arguments,
the trial counsel emphasized the separateness of the 17 June
incidents from the 24 July incidents. After completing presentation
of evidence relating to the 24 July incidents, the trial counsel
announced, in the presence of the members, that presentation of
evidence on the 24 July incidents had been concluded. Record at
1317. Before other evidence was presented, the military judge
instructed the members of the separate and discrete nature of the
sets of offenses. He emphasized that they "must keep the evidence
of each offense and each set of offenses separate." Record at 1322.
The members all indicated that they understood the instruction.
Record at 1322-23. The prosecution then presented evidence
relating to the 17 June incidents. Government witnesses who
testified on both sets of offenses, i.e., the nurse who examined both
rape victims and a co-conspirator in the 24 July incidents, each
testified on separate occasions to further ensure that their testimony
would be considered in the proper context.
Upon a motion for appropriate relief, a military judge may grant a
severance of offenses, but only to prevent manifest injustice.
R.C.M. 906(b)(10); United States v. Curtis, 44 M.J. 106, 128
(1996). In the appellant’s case, the record does not indicate [*804]
that severance was necessary to prevent manifest injustice. It was
within the discretion of the military judge to employ less radical
measures to ensure the fairness of the proceedings. We find that the
military judge did not abuse his discretion.
23a
Assignment of Error III
One of the members, Lieutenant Colonel Hammes, stated during
voir dire that he had seen an article in a newspaper concerning three
Marines involved in a rape and an assault in town. Following
extensive questioning of the members, during which the member
indicated he had no predisposition as to the guilt or innocence of the
accused, the military judge denied the defense’s challenge for cause
of the member.
The fact that a member is acquainted with a case is not
disqualifying. United States v. Anderson, 36 M_J. 963, 969
(A.F.C.M.R. 1993), aff'd, 39 M.J. 431, cert denied, 513 U.S. 819
(1994). A qualified juror need not be totally ignorant of the facts
and issues involved. United States v. Jobson, 31 M.J. 117, 121
(C.M.A. 1990)(quoting Murphy v. Florida, 421 U.S. 794, 799-800
(1975)).
We find that the military judge did not abuse his discretion in
denying the challenge for cause against Lieutenant Colonel
Hammes. This assignment of error has no merit.
Assignment of Error IV
Before the appellant obtained civilian counsel, his military
defense counsel interviewed [M]. Afterwards, she would not agree
to a pretrial interview by the appellant’s civilian counsel. The
military judge denied the defense motion for an order directing [M]
to permit a pretrial interview and refused to prevent her from
testifying. The appellant’s claim that this constituted error is
without merit. A witness has no obligation to submit to a pretrial
interview. United States v. Alston, 33 M. J. 370, 373 (C.M.A.
1991); United States v. Morris, 24 MJ. 93, 95 (C.M.A. 1987).
24a
Assignment of Error V
One of the appellant’s accomplices in the crimes committed on 24
July 1994 was a Private Miller. At his own general court-martial,
Private Miller pleaded guilty to certain offenses pursuant to a
pretrial agreement. Private Miller testified at the appellant’s
general court-martial. The same convening authority convened both
the appellant’s court-martial and that of Private Miller. The
appellant claims that the convening authority was disqualified from
taking post-trial action on his case. This assignment of error is
without merit. United States v. Newman, 14 M.J. 474, 482
(C.M.A. 1983).
Assignment of Error VI
We are not convinced that the appellant’s sentence is
inappropriately severe. The appellant’s argument that there is too
great a disparity between his sentence and that of Gambles is also
not persuasive.
The appellant and Gambles were accomplices in both of the crime
sprees. Both pleaded not guilty at general courts-martial. Although
the findings were similar, the facts establish different levels of
participation by the two in the attempted murders of [M] and [R].
During the attempted murder of [Rj, the appellant was driving the
car with which they attempted to run over her. The appellant was
the one who actually kicked [M] over a cliff in the attempt to
murder her. Although the trial court convicted Gambles of that
offense, this court found insufficient evidence to affirm that finding.
We are satisfied that there are good and cogent reasons for the
disparity between the appellant’s sentence and that of Gambles.
This assignment of error is without merit.
25a
Assignments of Error VII-IX, XVI
The appellant claims that there is insufficient evidence of his guilt.. |
to the attempted murders of Richard Schnittger, [MJ], and [R] and to a
the rape of [R]. We find no merit to these claims. i
The evidence establishes that on 17 June 1994, the appellant and
PFC Glenis Gambles rented a small, white, two-door Mazda 323. a
With Gambles driving, they picked up [R] [*805] who was
hitchhiking in Oceanside. She immediately announced to them that
she was not a prostitute. She had become concerned upon realizing
that the driver of the car was a Black man, since she had
experienced some troubles before with Black men. After they
refused to stop and let her out where she asked, she became
panicked and begged them to let her out. She was being told that
they were going to kill her. She tried to kick out the window of the
back seat where she was riding. Eventually, the appellant and
Gambles stopped in a remote area. Both the appellant and Gambles
struck [R] several times with their fists and kicked her. She was
forced to remove her clothes, except for her underpants. The
appellant forced her to orally copulate him while simutianeously
Gambles raped her from the rear and attempted to anally sodomize
her, after ripping off her underpants. After Gambles got menstrual
fluid on his clothing, he became enraged, pulled her from the car
and beat her. Gambles then forced her back into the car, drove to
another area, parked and beat her some more. She went limp and
"played dead." They got into the car and started as if they were
driving away, then turned and drove toward where she was lying on
the ground. She jumped up and ran away. All of her possessions
that she was carrying were taken away in the car. The appellant
later gave her pager to his aunt and asked her to change the number.
_ The appellant also bragged to some of his fellow Marines about
having robbed and raped a girl whom he and Gambles had picked
up.
26a
The evening of 24 July 1994, the appellant, PFC Miller, and PFC
Gambles agreed to go out and rob someone of their money. They
set out on this expedition with Miller driving his pickup truck.
After driving around, they spotted two females at a phone booth and
approached them to rob them, but the females got into a car and left
before the robbery could be completed. Apparently frustrated, the
trio drove to Buccaneer Beach in Oceanside. There [M] and her
friend, Jordan McLean, were sitting on the beach. Richard
Schnittger and his eight months-pregnant wife were sitting in a car
nearby, but not close enough for Schnittger to recognize [M] whose
family he’d known for 8 years. The appellant and Gambles walked
past [M] and McLean with the appellant carrying a 40-ounce bottle
of St. Ides beer. They turned and approached the couple and the
appellant struck McLean on the head with the bottle with sufficient
force to break it. While the appellant beat up McLean, Gambles
forced [M] along the beach and forced her to strip off her clothing,
threatening her with the .380 Colt handgun which he had
thoughtfully brought along. Schnittger saw the appellant beating
McLean and got out of his car to try to intervene. Gambles, who
was dragging a naked [M] along the beach, saw him approaching
and fired the gun in his direction, motivating Schnittger to return to
his car and depart the area. After patting down McLean’s pockets,
the appellant joined Gambles and struck [M] with his fist. He then
forced [M] to orally copulate him while Gambles raped her from the
rear. They then forced [M] into Miller’s truck and drove her to
another area, beating, raping and sodomizing her repeatedly along
the way. They told her that they were going to kill her. They
parked in a dark place, forced [M] out of the truck, and repeatedly
raped and sodomized her. After they completed their sexual
degradation of [M], the appellant lined her up and kicked her off a
cliff.
About 5 days later the appellant learned that Miller was an
unauthorized absentee. The appellant told Corporal Swenson that
Miller had been messed up by them having hit a guy over the head
with a bottle and raped a girl the previous week. He said that if
27a
Miller went to the police he would kill him.
Article 66(c), Uniform Code of Military Justice, 10 U.S.C. §
866(c){1994)[hereinafter UCMJ], requires this court to determine
not only the legal sufficiency of the evidence, but also its factual
sufficiency. The test for legal sufficiency is "whether, after viewing
the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt." Jackson v. Virginia, 443 US.
307, 319 (1979); see also United States v. T; urner, 25 M.J. 324,
324 (C.M.A. 1987). Applying this test we must "draw every
reasonable infer- [*806] ence from the evidence of record in favor
of the prosecution." United States v. McGinty, 38 MJ. 131, 132
(C.M.A. 1993)(quoting United States v. Blocker, 32 M.J. 281, 284
(C.M.A. 1991)). In doing so, appellate cousts acknowledge "the
responsibility of the trier of fact to resolve conflicts in the
testimony, to weight [sic] the evidence, and to draw reasonable
inferences from basic facts to ultimate facts." United States v.
Hart, 25 M.J. 143, 146 (C.M.A. 1987)(quoting Jackson, 443 U.S.
at 319).
The test for factual sufficiency is "whether, after weighing the
evidence in the record of trial and making allowances for not having
personally observed the witnesses, . . . [we are] convinced of the
accused's guilt beyond a reasonable doubt." Turner, 25 MJ. at
325.
We are convinced beyond a reasonable doubt of the appellant’s
guilt, legally and factually, of all of the offenses of which he was
convicted.
Assignment of Error X
The appellant has not established that any of the conditions of his
confinement were meant as punishment. We are satisfied that the
limitations placed on the appellant’s freedom were directly related
28a
to the orderly operation of the brig, served a legitimate
governmental function, and were no more rigorous than were
required to ensure the appellant’s presence at trial. This assignment
of error has no merit.
Assignment of Error XI
A Family and Marriage Therapist who had met with [M] for
about 20 hours testified in aggravation that the testimony was
becoming progressively more traumatizing for [M]. She testified
that [M]’s expressed motivation for continuing to testify was to
protect herself and to protect other women from the appellant. Her
prognosis was that [M] would require therapy for the remainder of
her life. The military judge did not abuse his discretion in admitting
this testimony. R.C.M.*4001(b)(4). This assignment of error is
without merit.
Assignment of Error XII
The appellant testified that as soon as [R] entered the rental car
she indicated that she was not a prostitute. Record at 1675. Later
he testified that he could only assume that she was either a
prostitute or a street girl, the difference being that a prostitute gets
paid for sex. Record at 1711. He testified that he did not offer
money to [R] and she did not request any. Record at 1712.
Whether [R] had a history of prostitution is not relevant to any
issue of fact that the court-martial had to determine. The appellant
testified as to his perception that the sex with [R] was consensual.
He did not testify that he based this belief on her history of
prostitution, but rather on his assumption that she was a prostitute
or street girl. Therefore, even if she had a history of prostitution,
evidence of it would not have been relevant. MIL. R. EVID. 401,
MANUAL FOR COURTS-MARTIAL, UNITED STATES (1995 ed.). The
military judge did not abuse his discretion by refusing to admit such
evidence. MIL. R. EVID. 402.
29a
Assignment of Error XIII
The military judge did not abuse his discretion when he denied the
defense motion to consolidate charges of rape and sodomy for
offenses which occurred at different times and places. United
States v. Teters, 37 M.J. 370 (C.M.A. 1993).
Assignment of Error XIV
The appellant summarily claims that the military judge erred by
denying the defense motion to suppress statements the appellant
made to his roommate, Lance Corporal [LCpl] Swenson, asserting
that LCpl Swenson suspected the appellant of an offense and was in
his chain of command. This assignment of error is without merit.
Although the military judge neglected to include his essential
findings relating to this motion, we are able to determine the
relevant facts employing our Article 66(c), UCMJ, 10 U.S.C. §
866(c), fact-finding powers. United States v. Spriddle, 20 M.J.
804, 806 (N.M.C.M.R. 1985).
[*807] The statements the appellant made in LCpl Swenson’s
presence_on 29 July 1994 were spontaneous. There is no indication
of prompting or interrogation by LCpl Swenson. There is no
indication that LCpl Swenson suspected the appellant of any crime,
with the possible exception of public drunkenness. Lance Corporal
Swenson was not required to advise the appellant to not brag about
his evening exploits. Article 31(b), UCMJ, 10 U.S.C. § 831(b).
On 29 July 1994, LCpl Swenson suspected PFC Miller, their
other roommate, of being UA. His colloquy with the appellant was
to try to determine the reason for Miller’s absence. He had no
reason to believe that Miller’s absence was related to any crime
committed by the appellant. He had no reason to believe that the
appellant was guilty of anything more serious than being a braggart
30a
and a loud-mouth. His conversation with the appellant was not an
interrogation about crimes he suspected the appellant of
committing. The incriminating statements volunteered by the
appellant were non-responsive to the queries of LCpl Swenson.
They were, in effect, spontaneous exclamations. Article 31(b),
UCMSJ, 10 U.S.C. § 831(b) warnings were not required. United
States v. Brown, 40 M.J. 152 (C.M.A. 1994); United States v.
Davis, 36 M.J. 337, 340 (C.M.A. 1993), aff'd, 512 U.S. 452
(1994).
Assignment of Error XV
During the testimony of the rebuttal witness, Cpl Kruse, one of
the members, First Lieutenant Shelton, recognized that the two of
them had served in the same unit. During a recess, the member and
the witness encountered each other in the vicinity of the courtroom.
During a post-trial Article 39(a), UCMJ, 10 U.S.C.
§ 839(a) session, the member testified that he was not influenced by
this contact with Cpl Kruse and that he followed the military
judge’s instructions. They briefly talked about people they knew
from the unit. Neither mentioned the appellant’s case.
The presumption of prejudice arising from communications
between a member and a witness is a rebuttable one. United States
v. Elmore, 33 M.J. 387, 394 (C.M.A. 1991)(quoting United States
v. Adamiak, 4 C.M.A. 412, 417, 15 C.M.R. 412, 417 (1954)). The
presumption is rebutted by a clear and positive showing that the ~—
communication did not and could not operate in any way to
influence the decision of the members. Elmore, 33 M.J. at 394
(quoting Adamiak, 4 C.M.A. at 418, 15 C.MLR. at 418).
We are satisfied that the presumption of prejudice was rebutted in
the appellant’s case. The military judge did not err in denying the
defense motion for a new trial.
3la
Assignment of Error XVII
The appellant’s civilian defense counsel, in his first opening
statement before the government’s case-in-chief, characterized the
trial counsel’s opening statement as portraying the appellant as a
"vicious, evil, awful human being." Record at 915. In his second
opening statement, after the government had rested its case but
before presentation of any defense evidence, the civilian defense
counsel told the members that the evidence would show that the
accused was a "pretty good guy." Record at 1603. The defense
then presented testimony from three witnesses and the appellant, the
gist of which was that the appellant was a "pretty good guy." See
Testimony of Mrs. Atkins, Record at 1606-1 1; Testimony of Mrs.
McLaurin, Record at 1611-17: Testimony of Miss Gaceta, Record
at 1618-26; Testimony of the appellant, Record at 1668-1717.
In rebuttal, the Government presented evidence that characterized
the appeilant as worthless as a Marine, as someone who referred to
women in profanely derogatory terms, and as an untruthful person.
Record at 1719-27.
In the Government’s argument on the sentence, the trial counsel
referred to both of the civilian counsel’s arguments and the efforts
to show "Duncan the man, Duncan the Marine," to refute the
evidence of the appellant’s viciousness. Trial counsel stated, "I
submit to this court that he is evil incarnate; that he gives whole
new meaning to the terms ‘vicious’ and ‘monster.’” Record at 2019.
The appellant claims that this part of [*808] the trial counsel’s
argument was plain error. We disagree.
The trial counsel’s arguments must be based on a fair reading of
the record of trial. United States v. Kropf, 39 M.J. 107, 108
(C.M.A. 1994). "[A] trial counsel is well within his rights to strike
hard blows by forcefully commenting on the evidence presented at
trial." United States v. Waldrup, 30 M.J. | 126, 1132
(N.M.C.M.R. 1989).
32a
We need not reiterate our summary of the sufficiency of the
evidence of the appellant’s guilt. Our earlier summary does not
adequately reflect the brutality, the callousness, the viciousness of
what the appellant did to his victims. We do not portray as
graphically as did the witnesses and the evidence the harm that the
appellant did to his victims. The record, however, does establish
that the appellant committed crimes of violence the brutality of
which we perceive as far exceeding the common experience of most
court members.
The trial counsel’s characterization of the appellant as "evil
incarnate" is a fair comment upon what the evidence had established
and what the members had found to be fact, as was reflected in the
verdicts. Such a statement merely portrayed the appellant as a
personification of an entity which causes injury or harm. See THE
RANDOM HOUSE COLLEGE DICTIONARY 458, 672 (rev. ed. 1980). .
Saying that the appellant’s conduct was monstrous merely
recognized what the members had found; it "deviat[ed] grotesquely
from what is natural or normal." Jd. at 865. Calling the appellant
"vicious" was appropriate, if redundant. Jd. at 1466.
a
The challenged statement was a single sentence appearing near
the end of an argument which was transcribed over seven single-
spaced pages. Having considered that single sentence in context,
we are satisfied that the appellant has assigned to it far more
significance than the members ever did. We are satisfied that the
members did not sentence the appellant for what the trial counsel
said. They sentenced the appellant for what he did.
33a
Conclusion .
Accordingly, we affirm the findings and the sentence as approved if
on review below. if
E.D. CLARK
Judge WYNNE and Judge LEO concur.
CONCURRED PRIOR TO DEPARTURE
LARRY D. WYNNE
R.B. LEO
34a
United States v. Gambles, No. 9600352 (N.M.Ct.Crim.App.
October 3, 1997)
IN THE U.S. NAVY-MARINE CORPS COURT OF
CRIMINAL APPEALS
WASHINGTON NAVY YARD
WASHINGTON D.C.
BEFORE
WILLIAM J. LUCAS W.F.GRANT JOHN T. OLIVER
UNITED STATES
V.
Glenis L. GAMBLES, Jr., 557 25 2135
Private First Class (E-2), U.S. Marine Corps
NMCM 96 00352 Decided 3 October 1997
Sentence adjudged 23 January 1995. Military Judge: T.G. Hess.
Review pursuant to Article 66(c), UCMJ, of General Court-Martial
convened by Commanding General, Ist Marine Division (Rein),
FMF, Camp Pendleton, CA.
LT JAMES T. MAHONEY, JAGC, USNR, Appellate Defense
Counsel
LT BENNETT J. LEE, JAGC, USNR, Appellate Government |
Counsel
AS AN UNPUBLISHED DECISION, THIS OPINION DOES
NOT SERVE AS PRECEDENT.
LUCAS, Senior Judge:
35a
We have examined the record of trial, the assignments of
error, and the Government’s response thereto. Except as
e! I. THE GOVERNMENT FAILED TO PROVE, BEYOND A
REASONABLE DOUBT, THAT APPELLANT ATTEMPTED TO
MURDER RICHARD A- SCHNITTGER.
Il. THE GOVERNMENT FAILED TO PROVE BEYOND A
REASONABLE DOUBT THAT APPELLANT ATTEMPTED TO
MURDER AMY MAGGARD.
Ill. THE MILITARY JUDGE ABUSED HIS DISCRETION BY
DENYING THE DEFENSE MOTION TO SEVER THE CASE INTO TWO
SEPARATE TRIALS FOR THE ROEBUCK AND MAGGARD
INCIDENTS, WHERE THERE WAS A SIGNIFICANT RISK THAT THE
EVIDENCE OF GUILT FROM THE MAGGARD CASE WOULD
IMPROPERLY SPILL OVER TO THE ROEBUCK CASE, CAUSING
MANIFEST INJUSTICE TO APPELLANT.
IV. THE MILITARY JUDGE ERRED IN DENYING THE
DEFENSE MOTION FOR A NEUROLOGICAL EXAMINATION OF
APPELLANT WHERE SIGNIFICANT EVIDENCE WAS OFFERED BY
THE DEFENSE OF THE EXISTENCE OF A GENETIC MENTAL
DEFECT AND THE COURT-APPOINTED 706 BOARD WAS
INSUFFICIENT TO PROTECT APPELLANT'S SUBSTANTIAL RIGHTS.
V. THE FINDING OF THE COURT THAT APPELLANT IS
GUILTY OF CONSPIRING TO ROB ROEBUCK (ADDITIONAL
CHARGE II), IS INCONSISTENT WITH THE COURT'S FINDING THAT
APPELLANT DID NOT STEAL FROM ROEBUCK (ADDITIONAL
CHARGE IV), AND FURTHER FAILS ON THE GROUNDS OF
FACTUAL INSUFFICIENCY.
VI. APPELLANT'S SENTENCE TO 40 YEARS OF
CONFINEMENT IS UNDULY SEVERE UNDER = THE
CIRCUMSTANCES OF THIS CASE.
VIL. AFTER APPELLANT RAISED THE ISSUE OF
UNREASONABLE MULTIPLICATION OF CHARGES, THE MILITARY
JUDGE ERRED IN FAILING TO CONSOLIDATE THE TWO
CONSPIRACY SPECIFICATIONS UNDEF CHARGE II INTO ONE
CONSPIRACY INVOLVING KIDNAPPING, ROBBERIES, RAPE, AND
SODOMIES. THE EVIDENCE DOES NOT SUPPORT THE
FORMATION OF TWO SEPARATE CONSPIRACIES, AND THE
EVIDENCE DOES NOT DISTINGUISH THE MAGGARD CONSPIRACY
[ies] FROM THE ROEBUCK CONSPIRACY, ADD'L CHARGE Il,
36a
explained below for Specification 2 under Additional Charge I, we
have concluded that the findings and the sentence are correct in law
and fact and that no error materially prejudicial to the substantial
rights of the appellant was committed.
In a f. lly contested case before a general court-martial,
officer and enlisted members, the appellant was convicted, as a
WHICH WAS PROPERLLY CHARGED AS ONLY ONE SPECIFICATION
INCLUDING KIDNAPPING, ROBBERY AND RAPE. (Citations omitted.)
Vill. THE EXTENT TO WHICH THE GOVERNMENT WAS
ALLOWED TO USE LEADING QUESTIONS TO OBTAIN DEBRA
ROEBUCK'S TESTIMONY WAS PLAIN ERROR. (Footnote omitted.)
IX. THE GOVERNMENT FAILED TO PROVE BEYOND A
REASONABLE DOUBT THAT APPELLANT IS GUILTY OF RAPING
DEBRA ROEBUCK, WHERE A MEDICAL EXAMINATION
CONDUCTED IMMEDIATELY AFTER THE INCIDENT REVEALED
THAT THERE WAS NO PHYSICAL EVIDENCE OF A RAPE, AND
WHERE THE VICTIM WITNESS WAS INHERENTLY INCREDIBLE IN
HER IDENTIFICATION OF APPELLANT DUE TO HER ADMITTED
DRUG ADDITION, THE FACT THAT SHE WAS UNDER THE
INFLUENCE OF DRUGS ON THE NIGHT OF THE ALLEGED
INCIDENT, FAILED TO POSITIVELY IDENTIFY THE APPELLANT IN
A PHOTO ARRAY, AND BLATANTLY ADMITTED TO DISTRUSTING
ALL BLACK MEN AS CRIMINALS. (Citations and footnote omitted.)
X. THE MILITARY JUDGE ERRED IN FAILING SUA SPONTE
TO REQUIRE A CHANGE OF VENUE DUE TO EXTENSIVE MEDIA
COVERAGE OF THIS CASE IN LOCAL MEDIA, AND ERRED IN
FAILING SUA SPONTE TO RELIEVE MAJOR DeGUZMAN FROM THE
MEMBERS PANEL WHERE HE ADMITTED DURING VOIR DIRE
THAT HE HAD BEEN EXPOSED TO MEDIA COVERAGE AND FELT
IT WAS NEGATIVE PUBLICITY FOR THE MARINE CORPS. (Citation
and footnote omitted.)
XI. THE GOVERNMENT FAILED TO PROVE BEYOND A
REASONABLE DOUBT THAT APPELLANT IS GUILTY AS A CO-
CONSPIRATOR OR AS AN AIDER AND ABETTOR TO THE RAPE
AND SODOMY OF AMY MAGGARD BY PFC DUNCAN WHICH
OCCURRED IN PFC MILLER'S PICKUP TRUCK. (Footnote omitted.)
37a
perpetrator, aider-and-abetter, or co-conspirator, of committing
multiple rape, and multiple forcible sodomy of two young women
(Ms. M and Ms. R); the attempted murder of one of those women
(Ms. M); the attempted robbery of Ms. M’s male companion; the
attempted murder of a witness to the assaults on Ms. M and her
companion; and several related conspiracy offenses.
The adjudged sentence, approved by the convening
authority, consists of a dishonorable discharge, total forfestures,
reduction to pay grade E-1, and confinement for 40 years:
Confinement for life was authorized at trial.
Assignments of Error 1, I], V, LX, and XI all contend, for
different reasons and for different offenses, that the Government
failed to adequately establish the guilt of the appellant. Except for
Specification 2 under Additional Charge I, we disagree. °
This Court may affirm only such findings of guilty as it
finds correct in law and fact. Art. 66(c), Uniform Code of Military
Justice, 10 U.S.C. § 866(c)(1994)[hereinafter UCMJ]. The test for
legal sufficiency is whether, considering the evidence in the light
most favorable to the Government, a rational factfinder could have
found all the essential elements of the offense beyond a reasonable
doubt. United States v. Turner, 25 M.J. 324 (C.M.A. 1987).
When applying this test, we are bound to draw every reasonable
inference from the record in favor of the prosecution. United States
v. McGinty, 38 M.J. 131, 132 (C.M.A. 1993)(quoting United
States v. Blocker, 32 M.J. 281, 284 (C.M.A. 1991)). The test for
factual sufficiency is whether we are convinced of the appellant’s
guilt beyond a reasonable doubt after weighing the evidence in the
record and making allowances for not having personally observed
the witnesses. Turner, 25 M.J. at 325.
All of the guilty findings, including Specification 7 under
Additional Charge I, are legally sufficient.
—
38a
Regarding the issue of factual sufficiency, except for
Specification 2 under Additional Charge I, which alleges the
attempted murder of Ms. M, seldom do we see such overwhelming
evidence of guilt in a contested case. Except for that attempted
murder of Ms. M, we have no doubt whatsoever of the appellant’s
guilt. Assignments of Error I, V, LX, and XI are therefore without
merit.
Assignment of Error II, which pertains to the alleged
attempted murder of Ms. M, does have merit. The Government
alleged and attempted to prove that the appellant, by a theory of
vicarious liability, attempted to commit what is commonly referred
to as felony-murder™ during the rape of Ms. M when one of the
appellant's partners-in-crime kicked her over a cliff (in actuality a
15-foot-deep ravine).
Although the issue was not raised at trial or before this
court, we have concerns about the viability of a charged offense of
attempted felony murder. Felony murder, a violation of Article
118(4), UCMJ, 10 U.S.C. § 918(4) requires no intent to kill. See
MANUAL FOR COURTS-MARTIAL, UNITED STATES (1995 ed.), Part
IV, § 43b(4) [hereinafter MCM]. However, attempted murder, a
violation of Article 80, UCMJ, 10 U.S.C. § 880, and as correctly
instructed by the trial judge in this case, requires a specific intent to
kill. See MCM, Part IV, §4b; United States v. Roa, 12 M.J. 210,
212 (C.M.A. 1982). These two concepts conflict.
We have been unable to find any reported military cases
recognizing the crime of attempted felony-murder, an attempted
Article 118(4), UCMJ, 10 USC. § 918(4) violation. However, in -
United States v. Ruffin, 46 M.J. 657 (N.M.Ct.Crim.App. 1997), we
* We use the term “felony murder” even though military jurisprudence
does not use the terms misdemeanor or felony.
39a
held that there is no such offense as an attempted Article 118(3),
UCMJ, 10 U.S.C. § 918(3) offense. An Article 118(3), UCMJ, 10
U.S.C. § 918(3) offense, like the Article 118(4), UCMJ, 10 U.S.C.
§ 918(4) offense, also requires no intent to kill. Following the
rationale of Ruffin, we would conclude that there is no such offense
as attempted felony-murder. However, we need not resolve that
issue here. Instead, we conclude more fundamentally that the
evidence does not establish attempted murder under any theory
because we are not convinced beyond a reasonable doubt that there
was the requisite intent to kill Ms. M. :
Factually, the kicking of Ms. M into a ravine was the last
brutal act in a series of truly horrific crimes committed against her
that night. The appellant and another Marine named Duncan had
already battered, indecently assaulted, kidnapped, repeatedly raped
and sodomized Ms. M, and forced her to sodomize them.
When the appellant and Duncan finally were finished with
their sexual attacks on Ms. M, Duncan kicked her, causing her to
fall over the edge of, then slide down, a 15-foot ravine (alleged as a
cliff). Although the appellant was not with Duncan and Ms. M
when she was kicked into the ravine, his criminal responsibility
properly resulted from his being an aider-and-abetter and co-
conspirator, and not the perpetrator. See Art. 77 and 81, UCMJ, 10
U.S.C. §§ 877 and 881; MCM, Part IV, #9 1 and 5. We have no
quarrel with that theory. However, the facts do not support a
conviction for attempted murder. |
The appellant, Duncan, and a third Marine named Miller,
were driving around off-base late one night, searching
unsuccessfully for victims to rob. The appellant was armed with a
loaded pistol. Duncan had a large unopened bottle of beer in his
possession and intended to use it as a weapon.
Shortly before midnight, the three Marines finally spotted a
young woman (Ms. M) and her male companion sitting together on
40a
an otherwise empty public beach. The Marines parked their vehicle
in the beach lot and Miller, the driver, remained with the vehicle.
The appellant and Duncan left the vehicle and walked past Ms. M
and her male companion. The appellant had his loaded pistol and
Duncan carried the unopened bottle of beer inside a paper bag. The
appellant and Duncan then walked directly back to Ms. M and her
friend. Without any warning, Duncan struck Ms. M’s male friend
on the head with the bottle of beer. The force of the blow was so
great that the bottle shattered. Duncan then began a violent
physical attack on the male, beating and kicking him.
Simultaneously, the appellant immediately pointed his
loaded pistol at Ms. M, forced her towards the water-line, and
ordered her to remove her clothing.
A young man who had been sitting in his car with his
pregnant wife when the appellant’s group parked their vehicle, saw
Ms. M’s friend being beaten and approached to investigate.
Duncan saw the young man, pretended that he had a pistol behind
his back, and warned that witness to stay away. At the same time,
the appellant also saw the witness, aimed his pistol directly at him,
and fired one shot at the young man. Luckily, the witness was not
hit, but he heard the shot, ran back to his car, and sped away.
While Duncan beat and kicked Ms. M’s male companion,
the appellant forced Ms. M to a more hidden location and began
raping her. Duncan soon arrived and forced Ms. M to perform oral
sodomy on him while she was being raped by the appellant. The
appellant then forced Ms. M into the waiting vehicle and the three
Marines sped off, kidnapping Ms. M.
While in the vehicle, Ms. M was raped and anally
sodomized by Duncan, forced to perform oral sodomy on the driver,
and indecently assaulted by the appellant.
Ms. M was threatened with death several times by the
4la
appellant and Duncan while at the beach area and in the vehicle if
she refused or failed to comply with their demands. _-
The Marines drove to a remote public park and the
appellant and Duncan forced Ms M to a dark, secluded area. She
was raped and anally sodomized again by both the appellant and
Duncan and forced to simultaneously perform oral sodomy on both
of those Marines. The appellant then returned to the vehicle and
Duncan forced Ms. M to perform oral sodomy on him one last time.
When he was finished with her, Duncan kicked Ms. M, causing her
to fall into, and then slide down, a 15-foot-deep ravine. The slope
of the side of that ravine was later estimated as moderate to severe
(about 45 degrees to about 70 degrees). However, the Government
presented no evidence that the appellant, Duncan, or Ms. M knew
how deep the ravine was or how steep the side of the ravine was
before Ms. M was kicked, causing her to fall into the ravine, and
there is no evidence that Duncan told Ms. M that she was about to
die as he kicked her or any other direct evidence that Duncan, the
appellant, or Miller intended to kill Ms. M.
In his findings instructions, the trial Judge required the
members to find that Duncan’s act of kicking Ms. M was done with
the specific intent to kill her. In his findings argument, the trial
counsel contended that the only reason Duncan would have kicked
Ms. M, causing her to go into the ravine after she had been
subjected to the rapes and sodomies, would be to kill her. Then and
now, we find such an argument speculative, misleading, inaccurate,
and unpersuasive.
Despite the repeated conditional threats to kill Ms. M
earlier that evening if she failed to comply with their demands, we
are not convinced beyond a reasonable doubt that Duncan or the
appellant actually intended to kill Ms. M. Instead, when he kicked
her, we conclude that Duncan was subjecting Ms. M to one final
indignity after her night of terror by discarding her as no longer of
any sexual use to the Marines. Although we hold that the appellant
42a
is not guilty of the charged offense of attempted murder of Ms. M,
we are convinced beyond any doubt that the appellant is guilty of
the lesser included offense of aggravated assault. Corrective action
will be addressed in our decretal paragraph.
In Assignment of Error III, the appellant contends that the
trial judge committed prejudicial error by denying the appellant’s
timely motion to sever the offenses relating to Ms. M from those
relating to Ms. R. We hoid that the trial judge’s ruling on the
motion was correct.
In addition to the many terrible crimes described above
pertaining to Ms. M, the appellant was also charged with
kidnapping, raping, sodomizing, and attempting to murder another
young woman, Ms. R. As is customary in severance motions, the
appellant contended that, absent severance of the allegations
regarding these two victims, the members would likely improperly
convict the appellant of all offenses even if the evidence only
supported the appellant’s guilt with respect to one of the victims.
The trial defense counsel contended specifically that the evidence
regarding Ms. R was extremely weak, especially as compared to the
evidence regarding Ms. M. The defense counsel argued that if the
members were convinced that the appellant committed the offenses
against Ms. M, they would be likely to conclude that the appellant
was a very bad person and probably convict on the offenses
involving Ms. R, even if the evidence was deficient. Additionally, —
the appellant argued that if the two events were not severed, the
members would be hopelessly confused by the evidence. Based
upon the facts of this case and because of the extraordinary
prophylactic measures taken by the trial judge to prevent a spillover
problem, we hold that there was no possibility of prejudice in trying
all the offenses together.
Traditionally, in military practice, all known charges
against a servicemember are tried together at a single court-martial.
See RULE FOR COURTS-MARTIAL 307(c)(4), MANUAL FOR
43a
COURTS-MARTIAL, UNITED STATES (1995 ed.) [hereinafter
R.C.M.]; R.C.M. 601(e)(2) and the discussion following that rule;
the discussion following R.C.M. 906(b){10); and United States v.
Silvis, 31 M.J. 707, 709 (N.M.C.M.R. 1990), aff'd, 33 M.J. 135
(C.M.A. 1991). There is a single exception to that rule. To justify
severance, the charged servicemember must meet the very heavy
burden of establishing that a manifest injustice would result from
trying the offenses together. R.C._M. 906(b)(10); Silvis, 31 M.J. at
709.
About 45 days before Ms. M was brutally attacked, Ms. R
was hitch-hiking alone late one evening in the same general area.
The appellant and a person we conclude to be Duncan drove past
Ms. R, spotted her, made a U-turn, and offered her a ride. The
appellant was driving. Duncan was in the front passenger seat in
the two-door vehicle. Duncan allowed Ms. R into the back seat.
The appellant then drove off and both Marines pushed their seats
towards the rear seat. Ms. R was thus effectively trapped in the
rear seat. Instead of dropping Ms. R off where she requested, the
appellant ran a stop sign and headed away from the requested drop-
off point. Ms. R knew immediately that she was in serious trouble
and asked to be let out of the car. The appellant and Duncan
refused. Ms. R then begged to be let out, indicating that she was a
mother of a small child. Her request was again refused. Ms. R
then attempted to kick out a rear window to attract attention. For
those efforts, Duncan punched her in the face. Ms. R then began to
pray. A
When the vehicle arrived at a more remote location, Ms. R
was forced to orally sodomize Duncan while the appellant raped
her. Ms. R was then dragged from the vehicle, beaten, and kicked.
The physical assault on her was so savage that Ms. R concluded
that she had to go limp and feign death in order to survive. She did,
but was subsequently kicked at least twice more in the head. Ms. R
simply let her head flop with each kick, hoping that her attackers
would believe her to be dead. aia ‘
44a
The appellant and Duncan then returned to the vehicle and
drove directly towards Ms. R, who was still lying on the ground.
Ms. R was conscious enough to see the car coming towards her and
feared that she was going to be run over. She was able to roll out
of the way and run to a near-by house for help. Just as Ms. M had
done, Ms. R, without any hesitation, made a positive in-court
identification of the appellant as one of her attackers.
Ms. R’s credibility was attacked by the appellant because
of evidence that she had abused methamphetamines for the previous
8 years, had used that substance early in the morning of her attack,
and had ingested the drug earlier in the day she testified. Ms. R
also admitted to what appears to have been an unrelated
misdemeanor conviction.
Contrary to the claims made by the appellant at trial and to
this Court that the case involving Ms. R was very weak, we
conclude that the evidence of the appellant’s guilt regarding both
victims is strong. His is not a case in which members might have
used spillover ta convict on all offenses. In fact, the members’
findings rebut the appellant’s assertion that spillover from the -
stronger case involving Ms. M would lead to conviction on ali the
offenses regarding Ms. R. Although we have concluded that the
evidence supporting the charge of attempted murder of Ms. Ris .
very strong, the members found the appellant not guilty of that
charged offense but guilty only of a lesser included offense. We
have also concluded that the evidence of attempted murder of Ms.
M is fatally deficient, yet the members were convinced beyond a
reasonable doubt that the appellant committed that offense. These
are indicators to us that spillover did not control the members at all.
Because the offenses against the two women were separated
by about 45 days, and because the evidence was so very clear with
respect to each victim, we see no possibility of confusion on the part
of the members or a spillover problem.
45a
We reach this conclusion also because of the extraordinary .
and commendable prophylactic measures taken by the trial judge to
ensure that the appellant was not prejudiced by trying the offenses
together. In his preliminary instructions before any evidence was
presented, see R.C.M. 913(a), the trial judge cautioned the
members to keep the offenses regarding the two women victims
separate. The appellant was permitted, during voir dire, to explore
the issue of spillover. The trial counsel was required to bifurcate
his opening statement, presentation of evidence on the merits, and
findings argument so that the cases involving each woman were
clearly distinguished and compartmentalized. At the close of the
presentation of the Government’s evidence pertaining to Ms. M, and
before-any prosecution evidence relating to Ms. R was offered, the
trial judge again provided a cautionary spillover instruction.
Finally, in his findings instructions, the trial judge once again
provided a good spillover instruction.
We conclude that there was no possibility of prejudice from
trying all the offenses together. The trial Judge correctly denied the
severance motion. Assignment of Error IH is without merit.
In Assignment of Error IV, the appellant contends that the
trial judge erred by not granting his request for a neurological
examination.
Prior to trial and pursuant to R.C.M. 706, the appellant
was examined by a Navy psychiatrist, who concluded that the
appellant had the mental capacity to stand trial and that, at the time
of the alleged offenses, the appellant had no severe mental disease
or defect. He therefore concluded that the appellant was mentally
responsible at the time of the alleged offenses. The Navy
psychiatrist was also of the opinion that, at most, the appellant
merely had a personality disorder.
The trial defense counsel then asked the convening
46a
authority to direct neurological testing of the appellant to determine 32
if there was any physical (as opposed to purely mental) defect that
rendered tiie appellant unable to assist in his defense. The request
referred in detail to the appellant’s entire medical history, including
the fact that his mother smoked marijuana while pregnant with the
appellant, childhood physical and emotional trauma, and his recent
irrational and unusual behavior. The trial defense counsel did not
ask that the issue of mental responsibility be revisited. The
convening authority denied the request for neurological testing.
At trial, the appellant orally moved that the trial judge order r
the neurological examination. The trial defehse counsel referred to
the same detailed medical history and recent irregular behavior as
was in his request to the convening authority. The trial defense
counsel also referred to an article in a psychiatric journal and
suggested that the appellant might suffer from a medical condition
that would result in him being unable to determine right from
wrong. Even though the request made to the convening authority
only addressed the appellant’s capacity to stand trial, and even
though the oral motion expressly addressed only a concern about
mental capacity, the trial defense counsel soon expanded his
concerns to also include the issue of mental responsibility.
The trial judge directed that the Navy psychiatrist
reconsider his earlier R.C.M. 706 conclusions regarding mental
capacity and responsibility after considering the appellant’s
complete medical history and recent irrational behavior as provided
by the trial defense counsel. See R.C.M. 706(c)(4). The trial judge
also directed that the Navy psychiatrist conduct any neurological
testing he believed necessary. The Navy psychiatrist subsequently
indicated that although he conducted neurological testing for some
R.C.M. 706 examinations, such testing was not medically
warranted in the appellant’s case. The Navy psychiatrist’s ultimate
conclusions regarding mental responsibility and capacity did not
change after considering the material offered by the appellant. The
trial judge then declined to order neurological testing.
Pe cs
47a
Lack of mental responsibility was offered as a defense to
the crimes committed against Ms. M and her male companion. See
Art. 50a, UCMJ, 10 U.S.C. § 850a ; R.C.M. 701(b){2), 916(k>.
An experienced clinical psychologist testified as a defense expert
and indicated that, because of at least one severe mental disease or
defect, the appellant lacked mental responsibility for those offenses
but had the mental capacity to stand trial. The defense expert also
concluded that the appellant had no personality disorder. Although
the defense expert testified at length about the many psychological
tests she had administered to the appellant, she did not indicate a
need for neurological testing or that she had conducted such testing
on the appellant.
In effect, the appellant had two R.C_M. 706 examinations
prior to trial on the merits, both resulting in the same conclusions
regarding mental capacity and responsibility. Except for the article
from the medical journal, the appellant presented no evidence to
rebut the conclusion of the Navy psychiatrist that neurological
testing was unwarranted in this case. The appellant therefore failed
to establish that neurological testing was necessary. All the
appellant did was make a bald assertion that such testing should be
done. The trial judge did not err in not ordering such testing.
Assignment of Error IV is therefore without merit.
Assignment of Error VII is without merit. We need not
comment on this assigned error, except to state that the record
clearly supports two entirely separate conspiracies on 24 July 1994.
Assignment of Error VIII, contending that plain error
resulted when the trial counsel was permitted to use leading
questions during his examination of Ms. R, is also without merit.
No leading questions were posed by the trial counsel to Ms. R
during her direct examination and there was not a single objection
to any of those questions. Arguably, there was just one leading
question posed during redirect. There was an objection that the
48a
question was leading and the trial counsel rephrased his question.
The trial judge did not rule on the objection. The appellant has
failed to carry his burden of establishing plain error, United States
v. Olano, 507 U.S. 725 (1993), first, because we find no error, and
second, even assuming error, we find no plain error as that term is
defined by Olano. We also can find no prejudice.
Assignment of Error X requires no comment other than to
note that it has absolutely no merit.
In Assignment of Error VI, the appellant contends that his
sentence to confinement for 40 years is inappropriately severe. We
disagree. After considering the nature and circumstances of the
terrible crimes committed by the appellant; all the defense evidence
relating to the appellant’s character, medical history, and childhood;
and even the post-trial clemency material, we conclude that the
sentence is most certainly not inappropriately severe.
The appellant’s crimes are extraordinary because of their
savageness and brutality. Ms. M and Ms. R had to endure
nightmarish, almost unspeakable terror at the hands of this
appellant. No person should have to endure what these two victims
went through. The power to grant clemency lies in the hands of the
members and convening authority, not ours. United States v.
Healy, 26 M.J. 394 (C.M.A.:1988). Even if we had the power to
grant clemency, we certainly would not do so in this case. Our
mandate under Article 66(c), UCMJ, 10 U.S.C. § 866(c), is to
ensure that an approved sentence is appropriate: correct in law and
fact and one that should be affirmed. Sentence appropriateness is
based upon the concept of ensuring that justice is done and that an
accused gets no more than the punishment he or she deserves.
Healy, 26 M.J. at 395. The appellant’s approved sentence falls into
that category.
Accordingly, the finding of guilty for Specification 2 under
Additional Charge I (attempted murder of Ms. M) js set aside. We
49a
substitute therefor a finding of guilty to an Article 128, UCMJ, 10
U.S.C. § 928 lesser included offense of aggravated assault with a
means or force likely to produce grievous bodily harm (kicking Ms.
M into a ravine). All other guilty findings are affirmed. Taken out
of context, setting aside a guilty finding to attempted murder would.
tend to lead us towards a sentencing rehearing. However, under the
unique facts of this case, where that attempted murder finding was
only a small part of the case, and after applying the principles of
United States v. Dresen, 40 M.J. 462, 464 (C.M.A. 1994): United
States v. Jones, 39 M.J. 315, 317 (C.M.A. 1994); United States v.
Peoples, 29 M.J. 426 (C.M.A. 1990); and United States v. Sales,
22 M.J. 305 (C.M.A. 1986), we reassess. After doing so, we have
no difficulty affirming the sentence approved below.
WILLIAM J. LUCAS
Judge GRANT and Judge OLIVER concur.
W.F. GRANT
JOHN T. OLIVER
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