United States v. Dodson

21 M.J. 237, 1986 CMA LEXIS 19304

• Court: United States Court of Military Appeals
• Decided: January 27, 1986
• Docket: No. 47612; NMCM 82-3623
• Status: Published

Opinions

Opinion of the Court

COX, Judge:

Appellant was tried by a general court-martial composed of members in September and December 1981 at Camp Foster, Okinawa. Contrary to his pleas, he was found guilty of attempted robbery, conspiracy to commit robbery, premeditated murder, felony murder, robbery and wrongful communication of a threat, in violation of Articles 80, 81, 118(1), 118(4), 122, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 880, 881, 918(1), 918(4), 922, and 934, respectively. He was sentenced to a dishonorable discharge, confinement at hard labor for life, total forfeitures, and reduction to the lowest enlisted pay grade. The convening authority approved the findings of guilty and the sentence. The Court of Military Review affirmed. 16 M.J. 921 (1983).

This Court granted review on the following issue raised by appellate defense counsel.

WHETHER IT WAS PROPER TO ALLOW EXTRINSIC EVIDENCE OF STATEMENTS PURPORTEDLY MADE BY THE CO-ACCUSED GARRETT UNDER THE GUISE OF IMPEACHING GARRETT.

This Court also specified the following issue for review.

WHETHER SPECIFICATION 2, CHARGE III (FELONY MURDER) IS MULTIPLICIOUS WITH SPECIFICATION 1, CHARGE III (PREMEDITATED MURDER) AND SHOULD BE DISMISSED.

I

The facts surrounding the granted issue are fully detailed in the Court of Military Review’s decision cited above. Appellant basically asserts that the military judge erred in allowing trial counsel to impeach his own witness by extrinsic evidence of prior inconsistent statements. See generally United States v. Banker, 15 M.J. 207, 211 (C.M.A.1983). Such evidence, he argues, was unduly prejudicial within the meaning of Mil.R.Evid. 403 because it also constituted inadmissible substantive evidence of his guilt of the charged offenses. See generally United States v. Morlang, 531 F.2d 183 (4th Cir.1975). He also argues that the prosecution’s impeachment proffer under Mil.R.Evid. 613(b) was a subterfuge to put this inadmissible substantive evidence before the court members. See United States v. Dennis, 625 F.2d 782, 796 (8th Cir 1980).

We agree with the court below that such impeachment was proper under Mil.R.Evid. 607 and 613(b). See generally United States v. Hogan, 763 F.2d 697, 701-03 (5th Cir.1985). We also agree with the lower court’s finding that the trial judge did not abuse his discretion provided in Mil.R.Evid. 403 in permitting the admission of this impeachment evidence. See United States v. Dodson, supra at 928; see generally United States v. Martin, 20 M.J. 227 (C.M.A.1985).

* Finally, we conclude that the evidence of record supports the Court of Military Review’s finding that no bad faith existed on the part of the prosecution in the present case. Article 66, UCMJ, 10 U.S.C. § 866.

II

The specified issue in this case can be resolved on the basis of the decision of this Court in United States v. Teeter, 16 M.J. 68 (C.M.A.1983). “[T]he homicide elements of felony-murder are included within premeditated murder, and” the robbery “elements of felony-murder are the same as those of the separate” robbery offense. “[A]ll of the elements of felony-murder ... fall within the ... premeditated murder” and robbery offenses. “Therefore, we hold that the felony murder charge is multiplicious” (id. at 72) and must be dismissed. Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980). See Ball v. United States, — U.S. ---, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985); United States v. Baker, 14 M.J. 361 (C.M.A.1983). However, we are satisfied that this multiplicity did not prejudice appellant as to sentence.

III

The decision of the United States Navy-Marine Corps Court of Military Review is reversed as to specification 2 of Charge III. The finding of guilty thereon is set aside and that specification is dismissed. In all other respects the decision below is affirmed.

We disagree with appellant’s assertion that even the Court of Military Review used Robbins’ testimony as substantive evidence of his guilt. That court expressly referred to the testimony of Mrs. Gould in this regard. See United States v. Dodson, 16 M.J. 921, 928 (1983). We also do not agree that the limiting instructions given by the military judge in this case were insufficient to cure any undue prejudice which might result from the admission of this impeachment evidence. United States v. DeLillo, 620 F.2d 939, 946, 947 (2d Cir. 1980). Cf. United States v. Hogan, 763 F.2d 697, 702 (5th Cir.1985). See generally United States v. Abel, 469 U.S. 45, 105 S.Ct. 465, 471, 83 L.Ed.2d 450 (1984).