United States v. Anderson

25 M.J. 342, 1987 CMA LEXIS 4194, 1987 WL 23872

Opinions

PER CURIAM:

A military judge sitting as a general court-martial at Fort McPherson, Georgia, convicted Anderson, pursuant to his pleas, of willfully suffering military property to be damaged beyond repair (hereafter referred to as willful destruction of military property), drunk driving with injuries, and involuntary manslaughter, in violation of Articles 108, 111, and 119 of the Uniform Code of Military Justice, 10 U.S.C. §§ 908, 911, and 919, respectively. These findings and the sentence to a dishonorable discharge, confinement for 3 years, total forfeitures, and reduction to Private E-l were approved by the convening authority and affirmed by the Court of Military Review in a short-form opinion. This Court granted review of three issues.

Footnotes

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I

The conviction for willful destruction of military property concerned damage beyond repair to an Army truck which appellant was driving in a convoy and which veered off the road and struck a disabled civilian vehicle. Willful destruction of military property requires a specific intent. From its earliest days this Court has recognized that intoxication may be of a kind and extent likely to affect the accused’s ability to entertain a specific intent. See, e.g., United States v. Backley, 2 U.S.C.M.A. 496, 9 C.M.R. 126 (1953); United States v. Roman, 1 U.S.C.M.A. 244, 2 C.M.R. 150 (1952). However, voluntary intoxication does not always signify that an accused lacked specific intent. Therefore, even though Anderson admitted that he had been driving while drunk, the military judge was not required to reject his pleas of guilty to the willful-destruction charge.

The problem is that a specific intent to drive a vehicle while drunk does not equate to the specific intent to damage or destroy said vehicle. Indeed, all the circumstances reflected in the record of trial suggest that, although appellant was negligent in driving in a convoy while drunk, he never intended to have an accident or otherwise damage the Army truck. Cf. United States v. Hendley, 17 C.M.R. 761 (A.F.B.R.1954). Indeed, under the circumstances of this case, if Anderson had intended to collide with the other vehicle, he might well have been guilty of murder — rather than involuntary manslaughter. However, appellant’s admissions during the providence inquiry clearly would support a finding that he was guilty of the lesser-included offense of negligent destruction of military property.

II

The drunk driving was alleged to have resulted in injury to appellant and his assistant driver, Sergeant Franklin Pickett. The involuntary manslaughter was predicated on allegations of culpable negligence “by operating a military vehicle, a three-quarter ton truck, without proper rest and while under the influence of alcohol and causing said vehicle to strike and kill Mrs. Vernell Victoria Shead.” In light of these allegations, we conclude that the drunk-driving charge is not included within the involuntary-manslaughter charge, so it need not be dismissed. Cf. United States v. Zayas, 24 M.J. 132 (C.M.A.1987); United States v. Baker, 14 M.J. 361 (C.M.A.1983); United States v. Jordan, 17 M.J. 528 (A.C.M.R.1983).

III

After the recommendations of the staff judge advocate were served on trial defense counsel pursuant to R.C.M. 1106(f), Manual for Courts-Martial, United States, 1984, defense counsel submitted a petition for clemency to the convening authority. Thereupon, the staff judge advocate filed a supplemental recommendation in which he adhered to his initial recommendation that the convening authority approve the sentence imposed by the military judge. However, the staff judge advocate also noted for the first time that Anderson’s misconduct “gave rise to a 5 million dollar claim against the United States.” There is no indication that the supplemental recommendation containing this new matter was ever served on trial defense counsel.

In United States v. Narine, 14 M.J. 55 (C.M.A.1982), this Court held that an addendum to the post-trial review which contains new matter must be served on the defense counsel, so that he may have an opportunity to comment thereon. This decision is now embodied in R.C.M. 1106(f)(7). The reference by the staff judge advocate to the large civil claim against the United States was not so trivial that it can be disregarded as a nonprejudicial violation of R.C.M. 1106(f)(7). A new recommendation should be prepared by the staff judge advocate, after which the defense should have an opportunity to comment thereon.

IV

The specification of Charge II is amended by striking the word “willfully” and substituting the words “through neglect.” The decision of the United States Army Court of Military Review is affirmed as to Charges II (as amended), III, and IV, and is set aside as to the sentence. The record of trial is returned to the Judge Advocate General of the Army for submission to an officer exercising general court-martial jurisdiction for a new recommendation, and after an opportunity for defense counsel to comment thereon, a convening authority’s action; thereafter, Article 66, UCMJ, 10 U.S.C. § 866, applies.

I

WHETHER THE MILITARY JUDGE ERRED IN ACCEPTING AS PROVIDENT APPELLANTS PLEA OF GUILTY TO WILLFUL DESTRUCTION OF GOVERNMENT PROPERTY (CHARGE II).

II

WHETHER THE MILITARY JUDGE ERRED BY FAILING TO FIND CHARGES III (DRUNK DRIVING) AND TV (INVOLUNTARY MANSLAUGHTER) MULTIPLICIOUS FOR FINDINGS.

Ill

WHETHER THE GOVERNMENTS FAILURE TO SERVE TRIAL DEFENSE COUNSEL WITH THE ADDENDUM TO THE STAFF JUDGE ADVOCATE’S POST-TRIAL RECOMMENDATION, WHICH CONTAINS NEW AGGRAVATING MATTER, ENTITLES APPELLANT TO A NEW REVIEW AND ACTION.