United States v. Douglas

2 M.J. 1091, 1977 CMR LEXIS 901

• Court: U.S. Army Court of Military Review
• Decided: January 18, 1977
• Docket: CM 434452
• Status: Published

Opinions

OPINION OP THE COURT

DONAHUE, Judge:

A general court-martial that included enlisted members convicted the appellant of premeditated murder of his wife (20 May 1975), two specifications of unlawfully striking his wife (25 April and 14 May 1975) , unlawfully striking another soldier (14 May 1975) and wrongfully communicating a threat to injure his wife (25 April 1976) , in violation of Articles 118, 128 and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 918, 928 and 934, respectively. The convening authority approved the court’s sentence to bad conduct discharge, confinement at hard labor for life, forfeiture of all pay and allowances and reduction to the grade of E-l. We affirm.

The facts bearing on the Article 128 and 134 offenses are relatively simple and need not be repeated here. However, the facts relating to the murder and the extreme complexity of gathering evidence pertaining to it needs to be set forth in some detail in view of appellant’s claims at trial and before us that the Army lacked jurisdiction to prosecute him and that he was denied a speedy trial under the standards set forth in United States v. Burton, 21 U.S.C.M.A. 112, 44 C.M.R. 166 (1971).

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Several witnesses saw the appellant during the evening of 19 May 1975. He was dressed in fatigues, accompanied by a girl named Maria, and had been drinking. Specialist Fields'. was with the appellant until about 2245 hours. Specialist Hatcher, the CQ runner in appellant’s unit, saw the appellant in the orderly room during the period of 2300 until 2330 hours.

One of the victim’s children testified that during the evening of 19 May 1975 the victim took her children to an ice cream parlor and returned home about 2130 hours. The witness went to bed about 2230 hours. While she was in bed she heard her mother talking on the telephone. A neighbor talked to the victim on the telephone about 2245 hours.

Just before midnight of 19 May 1975 SSG James, his wife and child drove to the Baker Beach area of the Presidio. While parked at the beach he noticed that the interior light was on in a nearby Chevrolet automobile. Upon approaching this automobile, he saw the blood covered body of a heavy-set woman. Fearing for the safety of his family, he decided to take them home to their government quarters and notify the police. On the way home he saw a black man wearing fatigues walking away from the beach. Once home he called the police and then returned to the crime scene. He determined that the victim was still alive. The police did not arrive so he returned home and called them again. Returning to the beach, accompanied by his wife, he found a policeman present.

On the evening of 19 May 1975, Park Police Officers Kellison and Vrabel were on duty in the Baker Beach area. At about 2347 hours they saw the victim at the beach in an automobile with a black male. At about 0015 they returned to the area and saw other police and the body.

Among others present at the crime scene after the body was discovered was CW2 White, a CID agent. Based on photographs in the victim’s wallet and other information available to him, he went to the appellant’s quarters, found him in bed, and arrested him. The appellant’s fatigue uniform was on the floor next to his bed when he was arrested. The appellant stated that he had seen his wife at 2315 hours. A military police investigator found a weapon on the ground outside of the appellant’s quarters. Later tests showed this weapon to be the one that killed Mrs. Douglas.

Several factors indicated that the appellant was the killer and, consequently, he was placed in pretrial confinement soon after his arrest. He was promptly charged with the offenses that eventually resulted in his conviction.

Numerous complications precluded the immediate convening of a meaningful Article 32 investigation.

The jurisdictional status of Baker Beach was unclear without considerable research. We have determined that military jurisdiction to try the appellant clearly existed. However, diligent research by the office of the staff judge advocate was necessary on this point and it was time consuming.

In many offenses the Article 32 investigation alone functions as a primary means of gathering the evidence necessary for an intelligent disposition of the charges. However, when, as in the case sub judice, the charges are particularly serious and complex, there must be a high degree of reliance on professional investigators and preparers of scientific evidence. When premeditated murder is charged, the stakes are high and the degree of thoroughness of the approach must be correspondingly high. Both the government and accused persons benefit thereby.

Among the matters that needed to be accomplished in this case was the performance of various medical and laboratory tests. Of the three major types of tests, only one was by a military organization. The Necropsy Report by local civilian authorities was accomplished immediately. On 11 June 1975 the Army’s CID laboratory at Fort Gordon, Georgia, accomplished various scientific tests including one that showed that the weapon found near the appellant’s quarters was the weapon used in the murder. This report would have been received at the Presidio several days later. The Federal Bureau of Investigation performed neutron activation analysis tests on swabs containing samples from the appellant’s hands. The report of the tests was dated 10 July 1975 and presumably arrived at the Presidio several days after that date. Its results were negative, making it a useful piece of defense evidence.

Once laboratory tests established that the weapon found near the appellant’s quarters was the murder weapon, tracing the ownership of that weapon became of critical importance. Efforts before and during the investigation were unsuccessful due to lies and evasions by various witnesses. Eventually, it was established that the original owner of the weapon was a man named Rush at Fort Polk, Louisiana. Rush gave the weapon to Edwards who gave it to Evans. Evans sold the weapon to Brick-house. Brickhouse sold the weapon to the appellant a few minutes before the murder of Mrs. Douglas. The tracing of the weapon was completed only after a world-wide search for the witnesses and Brickhouse’s testimony became available only after both parties had rested and the case was reopened. It is quite conceivable that without Brickhouse’s testimony that members of the court would not have been convinced beyond a reasonable doubt of appellant’s guilt even though the other evidence of guilt was legally sufficient to convict. Although the CID conducted one of the most efficient and competent investigations we have ever observed, there was no opportunity to identify and make Brickhouse available earlier.

We hold that the facts in the record clearly establish that due to both the serious and the complex nature of the premeditated murder charge, “due care required more than a normal time to gather the evidence.” United States v. Henderson, 24 U.S.C.M.A. 259, 51 C.M.R. 711, 1 M.J. 421 (1976). The government met its burden of showing extraordinary reasons for not proceeding within 90 days.

The appellant avers that the Army transferred its jurisdiction of the Baker Beach area of the Presidio to the Department of the Interior. In its brief the Government maintains that the Army merely granted a use and occupancy permit to the Department of the Interior, but that the beach remained within its jurisdiction. We agree with the Government’s position.

We have considered and find non-meritorious the appellant’s other assignment of error. The sentence is appropriate for the offense.

The findings of guilty and the sentence are affirmed.

Senior Judge CLAUSE concurs.

After approximately 100 days of pretrial confinement the appellant was released. Approximately 120 days elapsed between the date of the offense and the commencement of trial.