United States v. Carroll

30 M.J. 598, 1990 CMR LEXIS 244, 1990 WL 31793

• Court: U S Coast Guard Court of Military Review
• Decided: March 21, 1990
• Docket: CGCM 0022; Docket No. 926
• Status: Published

Opinions

BRIDGMAN, Judge:

Appellant was tried by General Court-Martial, judge alone. Pursuant to guilty pleas entered in accordance with a pretrial agreement, appellant was convicted of one specification of indecent assault, one specification of attempted indecent assault and one specification of communicating a threat in violation of Articles 80 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 880, 934. Thereafter, the military judge sentenced appellant to a Bad Conduct Discharge, confinement for eight months and reduction to pay grade E-l. That sentence fell within the terms of the pretrial agreement and was approved by the convening authority as adjudged. Before this Court, appellant has assigned two errors: that his pleas of guilty to indecent assault and attempted indecent assault were improvident; and that the staff judge advocate’s failure to respond to defense counsel’s post-trial submission deprived the convening authority of an informed decision on appellant’s sentence. After review of the record and full consideration of the well presented written and oral arguments, we have reached conclusions contrary to those advanced by appellant.

Appellant fully acknowledged his guilt to each offense and recited facts which support the offenses in every respect. Moreover, we discern no unresolved potential defenses that were raised by any of the appellant's answers, his unsworn statement, or any other evidence of record. In short, we have determined that the findings of guilty are in full accord with the pleas and the thorough inquiry by the judge and were properly found by the judge to be provident. For this reason, appellant’s first assignment is rejected.¹

With respect to the second assignment of error, we do not believe the Uniform Code of Military Justice or the Manual for Courts-Martial require the staff judge advocate to respond to a defense counsel’s post-trial clemency request. Accordingly, we find no error in the staff judge advocate’s failure to respond. Furthermore, in our view, the convening authority was not deprived of any advice needed to make an informed decision on appellant’s sentence. The clemency request from the defense counsel was available to the convening authority along with the record of trial and the staff judge advocate’s recommendation. No further guidance was needed by the convening authority to make an informed decision on the sentence. Accordingly, the second assignment of error is also rejected.

Left for decision is whether we consider the approved sentence appropriate for these offenses and the accused. The facts of this case fall within the category of offenses that have been characterized as “date rape”. In fact, the accused was charged with rape, assault with intent to commit rape, and attempted rape. In essence, the accused, victim Seaman Apprentice H, and another male shipmate EM3 K, went on liberty together. After all three had consumed various quantities of alcoholic beverages, Seaman Apprentice H, feeling the effects of the drinks she had consumed, wanted to return to the ship. The ensuing events can best be described by a redacted extract from the stipulation of facts entered into by the accused.

Seaman Carroll did not return directly to the ship. Instead he stopped the car alongside the road in Virginia Beach. Seaman Apprentice H ... and EM3 K ... were asleep or unconscious. Seaman Carroll then began kissing and fondling Seaman Apprentice H____ He also removed her trousers. Seaman Apprentice H ... appeared to be slipping in and out of consciousness during Seaman Carroll’s physical advances. At some point Seaman Carroll decided to have sexual intercourse with her. He removed a tampon from her vagina and threw it out the window of the car. He then had sexual intercourse with her. EM3 K ... remained asleep or unconscious in the back seat of the car all the while.

Record of Trial at 25.

Following this activity, the accused woke up EM3 K and invited him to have sexual relations with the victim. Although EM3 K accepted the accused’s invitation and proceeded to kiss and fondle Seaman Apprentice H, he ceased his activities when Seaman Apprentice H objected upon awakening or regaining consciousness.

During the inquiry into the providence of the plea the government indicated that it would not proceed on the original charges if the pleas to the lesser included charges were accepted. The military judge, recognizing the critical nature of the victim’s consent, or lack thereof, to both the charged offenses and the lesser included offenses, conducted a careful inquiry into this area. During the initial inquiry, and again when the military judge sought clarification following the accused’s unsworn statement, the accused admitted that Seaman Apprentice H was either asleep or unconscious when the acts constituting indecent assault occurred and when he falsely indicated to EM3 K that Seaman Apprentice H “wanted to see him”.

The subject of “date rape” has received considerable attention, with various surveys decrying its prevalence in our society as a whole and in particular subsets of that society. It is clear that there exists a wide divergence of attitude as to the seriousness of this conduct, at least in the absence of excessive force or violence. As noted by Chief Judge Baum, it appears that the accused’s commanding officer and others in the command would have disposed of the case at a level lower than a General Court-Martial. In addition to the admirable goal of establishing the accused’s good performance, the testimony elicited by the defense from members of the command can be categorized as “Seaman H is a troublemaker and poor performer”, and “sailors (including females) will be sailors”. In addition, while the record reflects the commendable efforts of both counsel and military judge to comply with MRE 412, which restricts evidence of the victim’s past sexual behavior, it is clear that this was a factor affecting the attitude of some of these witnesses.² While recognizing the continued existence of these views, we reject them as a legitimate basis for assessing the seriousness of sexual assaults. Certainly the Convening Authority was free to reject them and refer the charges to a General Court-Martial.

This court has recently had other occasions to consider the appropriateness of a sentence which terminated the career of a person who, prior to conviction, had an exemplary record. We approved a Bad Conduct Discharge for a petty officer with “a spotless Coast Guard record”, who had “performed in an outstanding manner”, and who was “still considered worthy of retention” by her superior, a Lieutenant Commander, U.S. v. Santos, 29 M.J. 1064, (C.G.C.M.R.1990). We approved a sentence of dismissal for a Lieutenant Commander who had an “exemplary military record” spanning 18 years, including numerous medals and awards, acts of personal heroism, and the strong endorsement of his last commander, a Vice Admiral, stating “[W]e must balance this record against the very nature of the acts which constitute the offenses in this case.” U.S. v. Hardin, 29 M.J. 801, 802 (C.G.C.M.R.1989).

We are mindful of the fact that the accused stands convicted only of offenses involving indecent assault, not rape, however these offenses were committed on a defenseless shipmate. Without disagreeing with Chief Judge Baum’s observation that “in most cases the accused’s immediate superiors are likely to be the best judges [of appropriate action to be taken.]”, this is not one of those cases. The sentence adjudged was less than the limitations proposed by the accused. Despite the accused’s excellent record, the favorable mitigation testimony, and the circumstances leading up to the offenses which the accused believed to be extenuating, we can not say the sentence is disproportionate to the offense or for this accused.

Accordingly, the findings of guilty and sentence as approved below are affirmed.

Judge JOSEPHSON concurs.

1 . We are concerned that an accused may perceive the potential benefit to be gained through a plea bargain to be so great that the truth is obscured, even to the point of committing perjury to “save the plea". We find no evidence of this in the record of trial and are further assuaged in this regard by the Article 32 investigation. The report of this investigation indicates that the accused initially denied that any sexual activity took place, then admitted to consensual intercourse with a conscious and participating Seaman Apprentice H, and finally, after a consensual polygraph examination, admitted that Seaman Apprentice H was unconscious during the act of intercourse. Since the accused did not reduce this admission to writing and the civilian detective investigating the incident did not testify at trial, we have only the detective’s summary of the accused’s statement. Although differing somewhat concerning the degree of Seaman Apprentice H’s wakefulness during the accused’s initial sexual overtures, we find nothing in this summary to impugn the statements made by the accused during the inquiry into the providence of the plea. We note that the admission was made within 48 hours of the offense, prior to the decision to prefer charges, prior to the selection of a forum to dispose of the charges, and prior to negotiating the terms of the plea bargain.

2 . In addition to objections to testimony and discussions of anticipated testimony at Article 39(a) sessions, Seaman Apprentice H's reputation was alluded to in the accused’s unsworn statement during the sentencing phase of the trial. We are confident that the military judge was able to disregard the references made to such behavior.