United States v. Cowan

39 M.J. 950, 1994 CMR LEXIS 348, 1994 WL 116601
CourtU.S. Navy-Marine Corps Court of Military Review
DecidedMarch 31, 1994
DocketNMCM 91 01767
StatusPublished
Cited by4 cases

This text of 39 M.J. 950 (United States v. Cowan) is published on Counsel Stack Legal Research, covering U.S. Navy-Marine Corps Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Cowan, 39 M.J. 950, 1994 CMR LEXIS 348, 1994 WL 116601 (usnmcmilrev 1994).

Opinions

DeCICCO, Judge:

Appellant was charged with the unpremeditated murder of another sailor in violation of Article 118, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 918. Contrary to his pleas, a general court-martial composed of officer members convicted him of the lesser included offense of involuntary manslaughter in violation of Article 119, UCMJ, 10 U.S.C. § 919 and sentenced him to a dishonorable discharge, confinement for 3 years, reduction to pay grade E-l and forfeiture of $753.90 pay per month for 24 months.1 The convening authority approved the sentence as adjudged. Upon initial review before this Court, appellant assigned a single error.2 We subsequently specified additional issues.3

[952]*952After consideration of the briefs and oral argument of the parties,4 we are satisfied beyond a reasonable doubt of appellant’s guilt of involuntary manslaughter. The evidence clearly established that appellant stabbed his victim, that this stabbing constituted culpable negligence under the facts of this case, and the stabbing was the proximate cause of the victim’s death. We do not reach the question of whether appellant’s failure to obtain timely assistance constitutes an independent basis upon which a finding of involuntary manslaughter may rest because the stabbing alone is sufficient to support the conviction. In light of these determinations, we affirm that portion of the specification regarding the stabbing as well as the sentence as modified herein.

Facts

The facts in this case are bizarre. On the date of the incident, appellant, Fireman Hernandez (the victim) and Petty Officer Armas were drinking heavily at an area near their barracks at Naval Station, Guam. When they had finished drinking, Hernandez and Armas returned to their respective rooms and went to sleep. Hernandez was very intoxicated. Appellant returned to his room with Seaman Recruit Harp. Appellant’s room and Hernandez’ room adjoined one another and were connected by a common restroom.

A short time later, appellant went to Hernandez’ room to check on him but was unable to wake him. Appellant then obtained the help of Armas and a Petty Officer Johnson in attempting to wake Hernandez, but they were unsuccessful. Appellant became upset and told Harp that he did not like drunks. Harp testified that appellant was left alone in the room with Hernandez for a few minutes. She saw him leave the room, drink a shot of tequila and return to Hernandez’ room for another 3 or 4 minutes. During this time, Harp received an intercom call for the appellant. When she entered Hernandez’ room to tell appellant about his call, she testified that appellant had the look of “a kid being caught in a candy jar” and that “[h]is eyes were big on Hernandez’ bed.” Record at 207. She saw appellant sitting on the bed next to Hernandez. Appellant then left, smoked a cigarette and returned the call. After he returned to Hernandez’ room, he immediately rushed out and called for an ambulance. No other persons besides the appellant were seen entering or exiting Hernandez’ room after Armas and Johnson left.

Hernandez was lying on his bed in his blood that had soaked through the mattress and had formed a puddle on the floor under the bed. Within minutes of appellant’s call, emergency medical personnel responded and rushed Hernandez to the nearby clinic. All possible emergency life-saving measures were taken, but Hernandez was pronounced dead approximately a half hour after arrival at the clinic. The cause of death was exsanguination.

As strange as it may seem, examination of the body disclosed several long superficial wounds on his chest. The scratches on the body were long and uniform. According to expert testimony, they were inflicted by dragging a razor or sharp knife on the skin. There were also shallow puncture wounds as if poked with the point of a sharp knife on his torso, arm and leg. The lethal wound was a cut in the thigh about one and a half inches [953]*953deep that punctured the femoral artery and vein. A pathologist opined that the wounds could not have been self-inflicted and that the manner of death was homicide. Other expert testimony revealed that it would have taken as long as 10-30 minutes or as little as 5-10 minutes for Hernandez to bleed to death following the injury to his blood vessels. Given the nature of his injury, without immediate application of a tourniquet, his death was virtually certain. Had the blood vessels not been injured, he would have had an excellent chance of recovery.

Harp also testified that Hernandez had previously given appellant a diving knife. This knife was later found in a dresser drawer of appellant’s roommate and had been wiped off. Laboratory analysis was able to identify blood on it, but not the blood type.

Appellant and Hernandez had been good friends. Shortly after the incident, appellant became so despondent over Hernandez’ death that he was referred to a psychiatrist for counselling. The psychiatrist testified that he spoke with appellant the day after the incident. Appellant told him that when he re-entered Hernandez’ room, he found Hernandez with a knife in his thigh. Appellant said he removed the knife and applied a towel to compress the wound. The medical personnel who responded to the emergency call found a towel on Hernandez’ leg but it had no blood on it, leading them to conclude that it was placed there after Hernandez had stopped bleeding.

At trial, appellant was arraigned on a charge of unpremeditated murder. The specification read:

In that Seaman Apprentice Jesse Mark Cowan, U.S. Navy, U.S. Naval Station, on active duty, did, on board U.S. Naval Station, Guam at Barracks 13, Room 101, on or about 16 December 1990, with intent to inflict great bodily harm, unlawfully murder HTFN James R. Hernandez by means of stabbing him with a knife, and by wrongfully, intentionally, omitting to render timely assistance after said HTFN Hernandez had been stabbed, then well knowing that said HTFN Hernandez was in immediate peril of bleeding to death and was unable to help himself, which assistance under the circumstances he was required to provide.

After all of the evidence was submitted to the members, the military judge discussed proposed instructions with counsel. He referred to an 802 conference5 in which they had discussed whether he would instruct the members that they had to find both the act of stabbing and the failure to render timely assistance in order to convict the appellant of unpremeditated murder or a lesser included offense, or whether a finding of only one or the other would suffice for a conviction. During an Article 39(a), UCMJ, 10 U.S.C. § 839(a), session, the military judge said, “[I]n my opinion it does not have to be both. They could find the accused guilty of the charge or a lesser offense by accepting [sic] either the act or the failure to act.” Record at 339. He again proposed a similar instruction at a later session. Record at 355. Counsel never objected to the proposed instructions.

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Related

United States v. Oxendine
54 M.J. 508 (Navy-Marine Corps Court of Criminal Appeals, 2000)
United States v. Nelson
52 M.J. 516 (Navy-Marine Corps Court of Criminal Appeals, 1999)
United States v. Goddard
47 M.J. 581 (Navy-Marine Corps Court of Criminal Appeals, 1997)
United States v. Cowan
42 M.J. 475 (Court of Appeals for the Armed Forces, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
39 M.J. 950, 1994 CMR LEXIS 348, 1994 WL 116601, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-cowan-usnmcmilrev-1994.