United States v. Kawai

63 M.J. 591, 2006 CCA LEXIS 122, 2006 WL 1511016
CourtUnited States Air Force Court of Criminal Appeals
DecidedMay 15, 2006
DocketACM 35366
StatusPublished
Cited by4 cases

This text of 63 M.J. 591 (United States v. Kawai) is published on Counsel Stack Legal Research, covering United States Air Force 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. Kawai, 63 M.J. 591, 2006 CCA LEXIS 122, 2006 WL 1511016 (afcca 2006).

Opinion

OPINION OF THE COURT

JOHNSON, Judge:

After entering a plea of guilty to the lesser-included offense of attempted unpremeditated murder, as well as to larceny and obstruction of justice, the appellant was tried by a general court-martial composed of a military judge sitting alone, on the greater offense of premeditated murder. The military judge found the appellant guilty of premeditated murder, larceny,1 and obstruction of justice, in violation of Articles 118,121 and 134, UCMJ, 10 U.S.C. §§ 918, 921, 934. The military judge sentenced him to a dishonorable discharge, confinement for life with the possibility of parole, forfeiture of all pay and allowances, and reduction to E-l. The convening authority approved the findings and sentence as adjudged.

The case is before this Court for our review under Article 66, UCMJ, 10 U.S.C. § 866. On appeal, the appellant raises the following five issues for our consideration: (1) Whether his guilty pleas to attempted unpremeditated murder and obstruction of justice were improvident; (2) Whether the military judge was impartial; (3) Whether the addendum to the staff judge advocate’s recommendation (SJAR) contained “new matter” requiring service upon the appellant; (4) Whether the staff judge advocate (SJA) [589]*589provided erroneous advice to the convening authority concerning the sentence;2 and (5) Whether the appellant’s sentence is inappropriately severe.3 For the reasons set forth below, we find error and return the ease to The Judge Advocate General for corrective action consistent with this opinion.

Factual Background

This ease involves the death of Airman First Class (A1C) Charles Eskew, Jr., a 20-year-old who was assigned to the 18th Maintenance Squadron at Kadena Air Base, Okinawa, Japan. Although the appellant admitted killing A1C Eskew, the issue during the trial was whether he murdered A1C Eskew with premeditation.

The appellant and A1C Eskew, who were co-workers, socialized together on the evening of 16 November 2001. They visited a friend in the hospital who had just given birth to a baby. Thereafter they stopped to buy dinner and some alcoholic beverages. They returned to A1C Eskew’s dormitory room where they began drinking and watching movies. By late evening, A1C Eskew became very intoxicated, to the point that he vomited and soon thereafter fell asleep. The appellant and another airman4 helped A1C Eskew get into bed. While A1C Eskew lay on the bed, the appellant placed his hands around A1C Eskew’s neck and put a pillow over his face. Once dead, the appellant cut A1C Eskew’s wrist with a knife. Before leaving A1C Eskew’s room that night, the appellant took the victim’s TV, DVD player, VCR, DVDs, videos, and CDs.

Providency of the Plea

The appellant challenges the providency of his guilty plea to attempted unpremeditated murder and obstruction of justice. Specifically, he alleges the military judge failed to adequately inquire into the potential duress defense raised by the appellant’s testimony in findings. The appellant asks this Court to set aside both charges because his testimony in findings was inconsistent with his testimony during the providence inquiry.

During the providence inquiry, the appellant admitted that all the elements and definitions read by the military judge accurately described what he did. First, the appellant testified he placed his hands on A1C Eskew’s neck with the intent to kill him. Next, the appellant said that he slit A1C Eskew’s wrist with a knife to make it look like the victim had committed suicide to throw off any future investigation that might point in the appellant’s direction. The appellant also told the military judge that he took A1C Eskew’s TV, VCR, DVD player, DVDs, tapes, and CDs, before leaving his dormitory room that night. Additionally, the appellant told the military judge that he did not believe that he had any legal justification or excuse for what he did.

After the military judge accepted the appellant’s plea, the prosecution presented evidence to prove the greater charged offense of premeditated murder. After the prosecution rested, the defense presented its case. The appellant took the stand and gave a different version of his actions on the evening of 16 November 2001. He testified that he took A1C Eskew’s personal belongings and placed them in his car. When he returned to A1C Eskew’s room to retrieve wires for the electronic components he stole, he saw A1C Anthony Caluya, a member of his squadron, on the bed leaning over A1C Eskew. The appellant said A1C Caluya forced him to kill A1C Eskew when A1C Caluya told him to “finish him [A1C Eskew] off.” Although the appellant said he and A1C Caluya had engaged in homosexual relations approximately seven times, he claimed that he was afraid of A1C Caluya. The appellant testified that, as a result he strangled A1C Eskew because A1C Caluya threatened to hurt the appellant’s pregnant girlfriend, to tell her that the appellant was gay, and because A1C Caluya was armed with a knife. After the appellant strangled A1C Eskew, A1C Caluya told him to “cover your tracks.” In response, the appellant grabbed the knife from A1C Calu-[590]*590ya and cut A1C Eskew’s wrist to make it appear as though he had committed suicide.

The military judge found the appellant guilty of premeditated murder, obstruction of justice, and larceny. The military judge also made specific findings: “Pursuant to [Rule for Courts-Martial] 918(b), the Court finds the findings as to Charge III and its Specification [obstruction of justice] constitute a complete and separate act, which arose outside the commission of the offense, captured in Charge I and its Specification [premeditated murder]. Specifically, I find that the slashing of Airman Eskew’s wrist by the accused was not part of any plan, nor a component part of premeditation, attendant to the finding under Charge I.”

1. Attempted Unpremeditated Murder

The appellant avers that the military judge should have reopened the providence inquiry and addressed the potential duress defense. We agree. In United States v. Care, 40 C.M.R. 247, 1969 WL 6059 (C.M.A.1969), our superior court imposed an affirmative duty on military judges during providence inquiries to conduct a detailed inquiry into the offenses charged, the accused’s understanding of the elements of each offense, the accused’s conduct, and the accused’s willingness to plead guilty. “A guilty plea will be rejected only where the record of trial shows a substantial basis in law and fact for questioning the plea.” United States v. Hardeman, 59 M.J. 389, 391 (C.A.A.F.2004) (citing United States v. Prater, 32 M.J. 433, 436 (C.M.A.1991)). If an accused, after a plea of guilty, sets up matter inconsistent with the plea, “a plea of not guilty shall be entered in the record, and the court shall proceed as though he had pleaded not guilty.” United States v. Clark, 28 M.J. 401, 405 (C.M.A.1989) (quoting Article 45(a), UCMJ, 10 U.S.C. § 845(a)). See also Hardeman, 59 M.J. at 391. Furthermore, “an accused servicemember cannot plead guilty and yet present testimony that reveals a defense to the charge.”

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Related

In re Kawai v. United States
Air Force Court of Criminal Appeals, 2022
United States v. O'Connor
Air Force Court of Criminal Appeals, 2015
United States v. Wheeler
66 M.J. 590 (Navy-Marine Corps Court of Criminal Appeals, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
63 M.J. 591, 2006 CCA LEXIS 122, 2006 WL 1511016, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-kawai-afcca-2006.