United States v. Henry

40 M.J. 722, 1994 CMR LEXIS 407, 1994 WL 372248

• Court: U.S. Navy-Marine Corps Court of Military Review
• Decided: May 31, 1994
• Docket: NMCM 93 1617
• Status: Published

Opinions

DeCICCO, Judge:

This ease is the latest of several that this Court has recently reviewed that involve inordinate delay after trial. Here, due to the loss of the original record of trial, the convening authority did not act under Article 60, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 860, until nearly eight years after trial. The appellant requests that we set aside the findings and the sentence because he has been denied his right to speedy review and because the prosecution failed to prove his guilt beyond a reasonable doubt at trial. Based on case law and the facts of this ease, we decline to do so and affirm.

Background

A special court-martial composed of officer and enlisted members convicted the appellant of damaging and wrongfully appropriating a two and a half ton cargo truck in violation of Articles 108 and 121, UCMJ, 10 U.S.C. §§ 908 and 921. His sentence included a bad-conduct discharge, confinement for 6 months, reduction to pay grade E-1, and forfeiture of $310.40 pay per month for 6 months.¹ Trial concluded on 20 September 1985, and the military judge authenticated the record of trial on 20 November 1985.²

At some point following these events, the original record of trial was lost. There is no explanation surrounding its loss, but a copy of the record was eventually located. The convening authority finally approved the sentence, and except for the part extending to the bad-conduct discharge, ordered it executed on 9 July 1993, or 2,849 days after trial.³ The case is now before us for review under Article 66, UCMJ, 10 U.S.C. § 866. The appellant has raised three assignments of error.⁴

Sufficiency of the Evidence

The appellant assigns as error that the prosecution failed to prove his guilt of the charged offenses beyond a reasonable doubt. This argument is based on the fact that there was some testimony at trial that there were two persons in the cab of the truck as it proceeded out the gate of the base, that another Sailor, who was upset, was present at the crash scene and that he, rather than the appellant, may have been the driver of the truck.

We are satisfied of the appellant’s guilt beyond a reasonable doubt. Article 66(c), UCMJ; United States v. Turner, 25 M.J. 324 (C.M.A.1987). Ample testimony established that on the day of the incident, the appellant became intoxicated after attending both a command party and a social function at another sailor’s home.⁵ After returning to the barracks at Naval Air Station, Bermuda, the appellant told Constructionman Raymond that he wanted to “call the States.” When the appellant learned that the base operator’s office had closed, he stated that he wanted to take a truck to an off-base residence to place the call. Raymond told the appellant he was not permitted to do so due to Ms Mtoxieated status. The appellant then asked for someone else to take him, but Raymond said they all had had too much to drink to be driving. The appellant then said that he would take the truck himself. Record at 130.

Petty Officer Engel testified that he saw the appellant alone in the truck while attempting to start it. Engel said he went out and told the appellant to get out of the truck, but the appellant drove off. Three Marines observed the truck as it passed the gate at a high rate of speed on its way off-base. One testified that he saw two persons in the truck, but he could not identify them. The second testified that he saw oMy one person in the truck and identified the appellant as that person. The third stated he did not see who was in the truck.

Moments after the truck left the base, it overturned and came to rest on its side. The personnel who responded to the accident all stated that they found the appellant alone in the cab of the truck. He was pinned inside. A corpsman who responded asked the appellant if he was the only one involved in the accident, and the appellant responded affirmatively. Record at 219-220.

Another individual was present at the accident site who witnesses described as an American male in civilian attire. TMs individual was screaming for assistance for the appellant. None of the witnesses ever saw tMs person in the truck or exiting from it. His identity remained unknown.

The appellant argues that reasonable doubt exists on these facts. Even though there was some evidence of a second person, it does not create reasonable doubt. Two eyewitnesses saw the appellant driving the truck, and he was alone in the truck at the crash site. Also, Ms statement to the corpsman that he was alone adds further weight to the Government’s position.

Given these circumstances, we are convmced of the appellant’s guilt beyond a reasonable doubt. Additionally, we agree with the finding of the court members that the degree of the appellant’s intoxication was not so severe that he was unable to form the requisite intent to wrongfully appropriate the truck.

Speedy Review

In arguing that Ms right to speedy review has been violated by the nearly eight-year delay for the convening authority to act, the appellant has not alleged or demonstrated any specific prejudice. Instead, he argues that the delay is so extreme as to create prejudice per se. Appellant’s brief at 4.

In order to obtain relief for unreasonable post-trial delay, an appellant must plead and demonstrate some real harm or legal prejudice flowing from the delay. United States v. Jenkins, 38 M.J. 287, 288 (C.M.A.1993); United States v. Dunbar, 31 M.J. 70 (C.M.A.1990); United States v. Sowers, 24 M.J. 429 (C.M.A.1987) (summary disposition); United States v. Bruton, 18 M.J. 156 (C.M.A.1984); United States v. Shely, 16 M.J. 431 (C.M.A.1983); United States v. Sutton, 15 M.J. 235 (C.M.A.1983); United States v. Gentry, 14 M.J. 209 (C.M.A.1982) (summary disposition); United States v. Clevidence, 14 M.J. 17 (C.M.A.1982); United States v. Banks, 7 M.J. 92 (C.M.A.1979); United States v. Randolph, 18 M.J. 633 (N.M.C.M.R.1984); United States v. Echols, 17 M.J. 856 (N.M.C.M.R.1984). Therefore, because the appellant has not pled or demonstrated any specific prejudice, he is not entitled to any relief on account of the delay.

In the case before us, the convemng authority was the commanding officer of a deployed Seabee umt. We know that the original record of trial was lost, but there is no explanation how it was lost, when it was lost, or why it took so long to realize that it was lost.

We have considered and rejected the appellant’s request to find prejudice per se in light of the extreme delay in this case. But we view with concern the post-trial delays in this and other recent cases.⁶ Even though the appellant is not entitled to any relief, such dilatory and slipshod practices cannot be condoned.

Fortunately, the incredible delay in this case is the exception rather than the rule in Navy and Marine Corps courts-martial. But we are troubled and frustrated by the frequency that this occurs in spite of repeated condemnations from this Court and the U.S. Court of Military Appeals. There ought to be an effective system in place to monitor the review of courts-martial in the naval service, a type of post-trial “chain of custody” of the case that is centrally controlled. The automated case tracking system mentioned by Chief Judge Everett in Bruton⁷ was apparently never fully operational, and a new system is still in the process of being established. We recommend that the Judge Advocate General do everything in his power to make this tracking system an effective tool as soon as possible. We also strongly encourage all those responsible for the post-trial processing of Navy and Marine Corps cases not to adopt or adhere to a lackadaisical attitude in completing convening authorities’ actions and forwarding records for review because of the lack of a judicially imposed time deadline.⁸ The net result of such an attitude can only be “a loss of respect for military law among Americans, in and out of uniform.” United States v. Prater, 20 C.M.A. 339, 43 C.M.R. 179, 184, 1971 WL 12753 (1971) (Ferguson, J., dissenting).

The final assignment of error lacks merit. United States v. Mitchell, 39 M.J. 131 (C.M.A.1994).

Disposition

Accordingly, the findings of guilty and only so much of the sentence as includes a bad-conduct discharge, confinement for 6 months, reduction to pay grade E-1, and forfeiture of $310.00 pay per month for 6 months are affirmed.

Senior Judge MOLLISON concurs.

1 . We have noted that the adjudged amount of forfeitures of pay was not stated in whole dollars as required by Rule for Courts-Martial 1003(b)(2), and that this was not addressed in the convening authority’s action. We will correct this error in our decretal paragraph.

2 . Upon reviewing the record, it was noted that the initial session of this case, consisting of 8 pages of the record, was not authenticated by the first military judge assigned to the case. His authentication has been obtained. The authentication referred to above is by the second military judge assigned who presided over the rest of the trial.

3 . Upon review of the submitted copy of the original record, we noted that it lacked the reverse side of the charge sheet, the convening order and the first modification to the convening order. The copy of the record did contain a second modification to the convening order. Pursuant to an Order of the Court, the Government produced the reverse side of the charge sheet, but was not able to produce either the convening order or the first modification. Four of the five members who sat in the appellant’s case were named on the second modification. The remaining member (LTJG Endress) was most likely appointed by the original convening order dated 29 July 1985. There was no objection to his presence at trial, and when the military judge asked the members to examine the convening orders to ensure their names were correctly indicated, no problems were noted. Record at 47. Thus, we are not faced with the situation of a known interloper who was not detailed to the court-martial, and whose absence would reduce the court-martial below the statutory minimum. United States v. Harnish, 12 C.M.A. 443, 31 C.M.R. 29, 1961 WL 4515 (1961); United States v. Caldwell, 16 M.J. 575 (A.C.M.R.1983). We therefore find no jurisdictional error due to the absence of these documents. See United States v. Gebhart, 34 M.J. 189 (C.M.A.1992).

4 . I. APPELLANT WAS DENIED HIS RIGHT TO A SPEEDY REVIEW OF HIS COURT-MARTIAL BY THE APPROXIMATELY EIGHT YEAR DELAY BETWEEN THE SENTENCING AND THE CONVENING AUTHORITY’S ACTION.

II. THE DAMAGE TO THE CARGO TRUCK AND WRONGFUL APPROPRIATION OF THE CARGO TRUCK ALLEGED IN THE CHARGES AND THEIR SPECIFICATIONS WAS NOT PROVEN BEYOND A REASONABLE DOUBT.

III. THE JUDGE ADVOCATE GENERAL OF THE NAVY’S PREPARATION OF NAVY-MARINE CORPS COURT OF MILITARY REVIEW JUDGES’ FITNESS REPORTS VIOLATES APPELLANT’S RIGHT TO AN IMPARTIAL JUDICIAL FORUM. (CITATION OMITTED.)

5 . The parties stipulated that the appellant's BAC was .158 in the early morning hours the day after the incident. Prosecution Exhibit 1.

6 . In addition to the cases cited, this Court has recently encountered a 4-year delay in United States v. Harrah, No. 93 01522 (N.M.C.M.R. 28 February 1994), a 7-year delay in United States v. Roose, No. 93 02060 (N.M.C.M.R. 14 February 1994), a 3-year delay in United States v. Newberry, No. 93 00644 (N.M.C.M.R. 31 January 1994), and a 5-year delay in United States v. Hager, No. 93 02059 (N.M.C.M.R. 24 January 1994). The inordinate delays in these cases took place in forwarding the records of trial after the convening authorities had taken their actions.

7 . 18 M.J. at 157, n. 2.

8 . In this regard, see Article 98, UCMJ, 10 U.S.C. § 898.