United States v. Hutchinson

15 M.J. 1056, 1983 CMR LEXIS 919
CourtU.S. Navy-Marine Corps Court of Military Review
DecidedApril 22, 1983
DocketNMCM 82 0203
StatusPublished
Cited by10 cases

This text of 15 M.J. 1056 (United States v. Hutchinson) 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. Hutchinson, 15 M.J. 1056, 1983 CMR LEXIS 919 (usnmcmilrev 1983).

Opinion

ABERNATHY, Senior Judge:

Contrary to his pleas, appellant was convicted at a general court-martial composed of officer and enlisted members of: two separate conspiracies to commit murder and three separate conspiracies to commit robbery; premeditated murder and felony murder; robbery; and, solicitation to commit robbery and solicitation to commit murder; in violation of Articles 81, 118, 122, and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 881, 918, 922, and 934, respectively. Appellant was sentenced to reduction to E-l, total forfeitures, and death. By implication, a sentence to death carries a dishonorable discharge. Paragraph 126a, Manual for Courts-Martial, 1969 (Rev.) (MCM).

Appellant was stationed at Camp Lejeune, North Carolina. During the month of January 1981, appellant decided that he wanted to kill PFC McCrae, basically because he did not like McCrae, he thought it would be an easy way to steal money from McCrae, and he wanted to use McCrae’s rifle card to obtain a Marine Corps issue rifle for his own use. Appellant’s friend, LCPL Haught, agreed to join him in this venture. The two of them conceived a plan whereby they would lure McCrae through a fake drug deal out to an ammo dump in the woods, appellant would shoot McCrae, and they would both then bury the body. McCrae, however, was not interested in their drug deal. Undaunted, appellant and Haught decided to seek out other criminal ventures. On payday night, 30 January 1981, they were joined by PVT Spencer and rode around Camp Lejeune in appellant’s Mustang looking for hitchhikers to rob. The addition of PVT Spencer brought success to this venture: Spencer “punched out” two hitchhikers, obtaining $20 from the first, and a watch and $7 from the second. The proceeds of these transactions apparently did not satisfy appellant and Haught for too long, as three days later they set up a plan to assault and rob PFC Morton in the woods at night. Appellant jumped Morton from behind a tree and the plan would have succeeded, but Morton fought off appellant. Appellant identified himself to Morton and said it was just a joke, an explanation then accepted by Morton. Up to this point, appellant’s adventures in crime had not been [1060]*1060particularly rewarding, but on 6 February 1981 he hit upon a grandiose idea. Appellant told seven Marines in his Company that he knew a drug dealer who was selling marijuana for $100 a pound. Four Marines each gave appellant $100 with the understanding that one of them, PFC Gunter, would meet appellant and the drug dealer that night to consummate the deal. Appellant approached Haught with the scheme of killing Gunter in the woods, burying his body, leaving Gunter’s car (which Gunter had borrowed from one of the other three Marines) at the bus station, thereby making it appear that Gunter had gone UA with the drugs, and then appellant and Haught could split the $400. Haught replied that it was okay with him as long as he would not have to do the killing or see any blood. This was the substance of a conversation leading to the taking of a human life. Unfortunately for appellant and Haught, things once again did not go quite according to plan. Appellant drove his Mustang to the Verona Loop area of the base, where he was to allegedly set up the deal, and Gunter and Haught were to follow an hour or so later. Appellant waited in the bushes with a 12 gauge shotgun and then shot Gunter as planned, but the shot merely grazed Gunter’s shoulder. Gunter fled back towards his car screaming “Oh God, Oh Hutch, Don’t”, but appellant caught up with Gunter and fired another blast from his shotgun. This shot, although it propelled Gunter into the open car and caused his innards to protrude through the wall of his abdomen, still did not instantaneously kill Gunter. Haught and appellant pulled the moaning Gunter from the car; Haught punched Gunter in the face to stop him from moaning; Haught, upon appellant’s instruction, took Gunter’s wallet; and then Haught, when given the shotgun with the advice from appellant “it is all set,” fired a final shot directly into Gunter’s face. Appellant and Haught seemed to have been overwhelmed by this sequence of events because they then both fled in appellant’s Mustang. Appellant thereafter had the presence of mind to return for Gunter’s car, which he then attempted to wipe clean before leaving it at a nearby grocery store. The course of events then flowed in predictable and logical fashion: the body was found two hours later by hunters; appellant’s Mustang had been seen at the scene; the police traced the Mustang to appellant; appellant authorized a search of his house which uncovered the shotgun; and Haught then confessed (albeit a self-serving and not totally truthful confession).

In return for his guilty plea, Haught received a pretrial agreement limiting his sentence to fifty years. He was not obligated to testify at appellant’s trial, but he did so under a grant of immunity. Based upon his testimony and the other extensive evidence produced by the government, we are convinced that, with the exception of the charge of conspiracy to rob Gunter, appellant is guilty beyond a reasonable doubt of the offenses as found by the general court-martial. Appellant raises fourteen assignments of error, which we shall discuss in the order assigned.

I

Appellant’s first assignment of error is that his challenges for cause against prospective member Captain Peche, who was later peremptorily challenged by the defense, and against members Major Plantz and Gunnery Sergeant Maddox were improperly denied. It is our conclusion that the military judge did not abuse his discretion in determining that these three individuals could sit as fair and impartial members. As background, we would note that the military judge conducted a painstaking, careful, and attentive member selection. He allowed counsel wide latitude in examining the members, and he allowed seven defense challenges for cause. The military judge’s concern for the magnitude of the member’s voir dire and selection is self-evident by the detailed and conscientious manner in which voir dire was conducted.

Captain Peche made a statement to the effect that he would place the burden on appellant to show why the death penalty should not be imposed. Upon questioning [1061]*1061by the military judge and trial counsel, however, he clarified this statement to indicate that he did indeed have an open mind and that he would not make a decision until all the evidence was in and he had heard the other members’ views. He stated he could see himself voting for life imprisonment. The Court of Military Appeals held in United States v. Tippit, 9 M.J. 106 (C.M. A.1980), that the test for inelastic attitude toward imposition of sentence is whether the member’s attitude is of such a nature that he will not yield to the evidence presented and the judge’s instructions. Under this standard, it is clear to us that Captain Peche is not an individual uncommonly willing to condemn a man to death; rather, since he was willing to consider all of the penalties provided by law, we find that he was not irrevocably committed before the trial had begun to vote either for or against the death penalty, regardless of the facts or circumstances.

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Cite This Page — Counsel Stack

Bluebook (online)
15 M.J. 1056, 1983 CMR LEXIS 919, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-hutchinson-usnmcmilrev-1983.