United States v. Duncan

48 M.J. 797, 1998 CCA LEXIS 297, 1998 WL 433689
CourtNavy-Marine Corps Court of Criminal Appeals
DecidedJuly 31, 1998
DocketNMCM 96 00701
StatusPublished
Cited by2 cases

This text of 48 M.J. 797 (United States v. Duncan) is published on Counsel Stack Legal Research, covering Navy-Marine Corps Court of Criminal Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Duncan, 48 M.J. 797, 1998 CCA LEXIS 297, 1998 WL 433689 (N.M. 1998).

Opinion

CLARK, Senior Judge:

At the appellant’s general court-martial, a panel of members convicted him, contrary to his pleas, of several offenses1 which consti[801]*801tuted two veritable crime sprees separated in time by about 5 weeks. The members adjudged a sentence which included confinement for life, forfeiture of all pay and allowances, reduction to pay grade E-l, a fine of $200.00, and a dishonorable discharge. The convening authority approved the adjudged sentence.

The appellant has submitted 17 assignments of error,2 of which we will discuss several in detail. The supplemental assignment of error3 is without merit and warrants no discussion. See Manual of the Judge Advocate General, Judge Advocate General Instruction 5800.7C of 3 Oct. 1990, [802]*802§ 0120a(l); Post-Trial Affidavit of Colonel Dnrrett.

Assignment of Error I

During deliberations on the sentence the members presented an inquiry to the military judge. Appellate Exhibit CXXXIV contains the following two questions from the members:

(1) Will rehabilitation/therapy be required if PFC Duncan is incarcerated?
(2) In military justice, is parole granted or are sentences reduced for good behavior? If so do these reductions apply to a “life” sentence?

The military judge and counsel discussed the questions at a Rule for Courts-Martial 802, Manual for Courts-Martial, United States (1995 ed.)[hereinafter R.C.M.] conference, which is summarized in the Record at 2038-41. The military judge instructed the members, in pertinent part, as follows:

Now, members of the court, in answering this second question first, it is important to remind you of the nature of a court-martial in the military justice system. It is a completely independent agency temporarily created to determine the issue of guilt or innocence in a case and impose an appropriate sentence in the event of a conviction.
After trial a variety of reviewing and higher authorities review the case. As an independent agency, you must not adjudge an excessive sentence in reliance upon possible mitigating action by the convening or other authority. You must do what you think is right today.
Now, parole is available to an accused sentenced by a military court to serve confinement, including life imprisonment. The exercise of parole, however, depends upon several factors, including but not limited to the length of sentence to confinement, the nature of the convicted crimes, and the conduct of the accused during the period of confinement.
You should determine, in terms of confinement, what you feel is appropriate for this accused. Under these circumstances, do not, and I say again, do not be concerned about the impact of parole. When selecting an appropriate sentence, you should select a sentence which will best serve the ends of good order and discipline, the needs of the accused, and the welfare of society.
Now, I’m turning to your second [sic] question, which is: Will rehabilitation/therapy be required if PFC Duncan is incarcerated? Members of the court, you are advised that there are appropriate alcohol and sex offense rehabilitation programs available to the accused should he be confined as a result of the sentence in this case. The accused is not required to participate in any program of rehabilitation and treatment, but there are strong and usually effective incentives for him to do so while confined.

Record at 2043-44. The members deliberated another 40 minutes before returning with the sentence.

The defense had proposed the following instruction:

A question has been posed regarding the availability of parole and good behavior credit in the military correctional system. You are instructed that the military justice system has within it different integral parts that make up the whole. As a sentencing authority at a court-martial, you now perform just one of the functions that make up the military justice system as a whole. In determining an appropriate sentence in this case, you should determine what you feel is appropriate for this accused. As your role in the military justice system as a whole is a limited one, you should not concern yourselves about the impact of a possible parole or good behavior credit sometime in the future. For purposes of determining an appropriate sentence at this court-martial, you must assume that no parole or good behavior exists. Your part in the military justice system is an integral one, but it is essential that you perform only that function which is within your purview. As I have previously instructed you, you should select a sentence which will best serve the ends of [803]*803good order and discipline, the needs of the accused, and the welfare of society.

Appellate Exhibit CXXXV.

The propriety of a collateral consequences instruction depends upon the particular facts and circumstances of a case. United States v. Greaves, 46 M.J. 133, 139 (1997). The military judge has the discretion to determine whether such an instruction is appropriate. Id.

The gist of the appellant’s argument seems to be that the military judge provided the members more information than they needed. We need not resolve that issue. The pertinent issue is whether the military judge provided the members proper guidance for determining an appropriate sentence. We find that he did. In addition to instructing the members as to the criteria for an appropriate sentence, the military judge emphasized to them that they should not be concerned about the impact of parole. This was not an abuse of his discretion.

Absent evidence to the contrary, we may presume that the members followed the military judge’s instructions. United States v. Loving, 41 M.J. 213, 235 (1994), aff'd, 517 U.S. 748, 116 S.Ct. 1737, 135 L.Ed.2d 36 (1996); United States v. Holt, 33 M.J. 400, 408 (C.M.A.1991); United States v. Rushatz, 31 M.J. 450, 456 (C.M.A1990). The appellant has not shown that he was prejudiced by the military judge’s instruction. We find no prejudice.4 This assignment has no merit.

Assignment of Error II

The military judge denied the defense motion to sever the charges relating to the 17 June 1994 incidents from those relating to the 24 July 1994 incidents. Afterwards, the military judge and the trial counsel took considerable measures to prevent spillover of evidence from one set of charges to the other.

The Government’s brief does a good job of describing the steps taken by both the military judge and the prosecution to bifurcate the evidence relating to the two dates of the offenses:

The military judge took great care to ensure that spillover between offenses did not occur. First, during voir dire, the military judge specifically instructed the members that each offense was required to stand on its own and that evidence of each offense must be kept separate. (R. 700-01). He repeated the spillover instruction before the members began to deliberate on findings. (R. 1835).

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Related

United States v. Duncan
53 M.J. 494 (Court of Appeals for the Armed Forces, 2000)
United States v. Myers
51 M.J. 570 (Navy-Marine Corps Court of Criminal Appeals, 1999)

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Bluebook (online)
48 M.J. 797, 1998 CCA LEXIS 297, 1998 WL 433689, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-duncan-nmcca-1998.