United States v. Martinez

42 M.J. 327, 1995 CAAF LEXIS 84, 1995 WL 541837

• Court: Court of Appeals for the Armed Forces
• Decided: September 13, 1995
• Docket: No. 94-0021; CMR No. 29440
• Status: Published

Opinions

Opinion of the Court

SULLIVAN, Chief Judge:

1. During the spring of 1991, appellant, a technical sergeant, was tried by a general court-martial at Zaragoza Air Base, Spain. The members of his court-martial found him guilty of negligent homicide, in violation of Article 134, Uniform Code of Military Justice, 10 USC § 934. On May 8,1991, he was sentenced to a bad-conduct discharge, a fíne of $1000, and reduction to E-l. The convening authority approved this sentence on August 9,1991. The Court of Military Review¹ affirmed on May 3, 1993.

2. On May 26, 1994, this Court granted review² on the following issue raised by appellate defense counsel:

WHETHER APPELLANT’S CONVICTION WAS ADJUDGED DUE TO UNLAWFUL COMMAND INFLUENCE WHEN THE WING COMMANDER CIRCULATED A LETTER TO ALL COMMANDERS AND AGENCIES ON ZARAGOZA AIR BASE, EIGHT DAYS BEFORE APPELLANT’S TRIAL BEGAN, WHICH ESSENTIALLY TOLD THE COMMANDERS TO GET TOUGH ON DUI CASES AND ADMONISHED THEM NOT TO MISPERCEIVE HOW SERIOUSLY THE “WING LEADERSHIP” TAKES SUCH MATTERS.

We also specified the following issue for review:

WHETHER APPELLANT MAY BE CONVICTED OF NEGLIGENT HOMICIDE UNDER THE FACTS OF THIS CASE.

We hold that any unlawful command influence in this case was shown by the Government to be harmless beyond a reasonable doubt. United States v. Thomas, 22 MJ 388 (CMA 1986), cert. denied, 479 U.S. 1085, 107 S.Ct. 1289, 94 L.Ed.2d 146 (1987). We also hold that the facts of this ease permit appellant’s conviction for negligent homicide, in violation of Article 134. See United States v. Gordon, 31 MJ 30 (CMA 1990); United States v. Brown, 22 MJ 448 (CMA 1986).

3. The Court of Military Review found the following facts concerning the granted and specified issues:

In the early morning hours of 3 November 1990, Technical Sergeant Jose L. Martinez gave his car keys to Sergeant Sauceda so Sauceda could drive the two to a disco in downtown Zaragoza, Spain. Traveling toward town at about 3:00 A.M., the car flipped over into the oncoming lanes. Sergeant Sauceda was thrown from the vehicle and died as a result of his injuries.

The appellant and Sergeant Sauceda gathered with some friends in Sauceda’s dormitory room on 2 November 1990, to celebrate Sauceda’s upcoming departure from Zaragoza Air Base. After sharing a one-liter bottle of whiskey, the group went to the Noncommissioned Officers’ (NCO) Club where they bought a few more rounds of drinks. Then, they went to the base dining hall for some food. When they left the dining hall, the appellant and Sauceda returned to Sauceda’s dormitory. Between 1:30 and 2:00 A.M., Sauceda was seen “staggering” in the dormitory’s shared bathroom. A female friend he called about 2:30 A.M., said he sounded “very drunk.” Soon thereafter, the appellant gam his keys to Sauceda who drove the two off the base in the appellant’s car.

On 5 March 1991, the Zaragoza wing commander issued a “We Care About You” letter to his command after a series of alcohol-related accidents, presumably including this one, resulted in several deaths. The letter expressed the wing leadership’s concerns and reviewed the administrative and nonjudieial measures being set in motion to reduce alcohol-related incidents.

We differ with the appellate defense counsel’s assessment that “this letter cast an atmosphere of command influence that hung over appellant’s trial like the Sword of Damocles.” The letter specifically says that “Punishment for DUI [driving under the influence] will be individualized under the guidelines of the UCMJ.” As counsel suggests, the letter was circulated across the base “eight days before the appellant’s trial began.” However, due to the delays ..., the members were not actually empaneled until almost 2 months after the letter was written. Then, in an extensive voir dire, the members stated repeatedly they would only consider the facts of the case before them. Their actions remained fair and impartial throughout the trial. We find nothing from the 5 March letter that had the impermissible effect of bringing “the commander into the deliberation room,” and nothing amounting to unlawful command influence over these proceedings. United States v. Kirkpatrick, 33 MJ 132, 133 (CMA 1991); United States v. Grady, 15 MJ 275, 276 (CMA 1983); United States v. Fowle, 7 USCMA 349, 351, 22 CMR 139, 141 (1956).

Unpub. op. at 1-2, 8 (emphasis added).

I

4. Appellant was charged with involuntary manslaughter, in violation of Article 119, UCMJ, 10 USC § 919. In particular, he was charged with “by culpable negligence, unlawfully kill[ing] Staff Sergeant Armando Sauceda by allowing Sergeant Armando Sauceda to drive [appellant’s] vehicle while under the influence of alcohol.” (Emphasis added.) The maximum punishment for this offense was a dishonorable discharge, confinement for 3 years, and total forfeitures.³ Para. 44e(2), Part IV, Manual for Courts-Martial, United States, 1984. The members, however, found appellant guilty of the lesser offense of negligent homicide, in violation of Article 134. In particular, he was found guilty of “unlawfully kill[ing] Sergeant Armando Sauceda by negligently allowing Sergeant Armando Sauceda to drive [appellant’s] vehicle while under the influence of alcohol.” (Emphasis added.) The maximum punishment for this offense is a bad-conduct discharge, confinement for 1 year, and total forfeitures. Para. 85e, Part IV, Manual, supra.

5. On appeal appellate defense counsel asserts that appellant cannot be convicted of negligent homicide for lending his car to a drunken driver who kills himself in an automobile accident. He first argues that such conduct is not criminal in any jurisdiction, civilian or military. Cf. United States v. Brown, 22 MJ 448 (CMA 1986)(conviction of servicemember for involuntary manslaughter upheld for death of a third person killed by drunken driver given keys by that service-member). He further contends that, even if such conduct was criminal in the military, he had no notice of its criminality. Finally, he asserts that “public policy” dictates that Article 134 should not be expansively construed by this Court to criminalize his conduct.

6. We note that it has long been established in military law that negligent homicide is a punishable service disorder under Article 134. See United States v. Kick, 7 MJ 82, 84 (1979). There, this Court said: court-martial practices with respect to the prosecution of negligent homicide under Article of War 96, and up to that time under Article 134, UCMJ, were noted in detail in that opinion. A more recent decision from the United States Army Court of Military Review clearly articulated the reasons for its prosecution under Article 134, UCMJ:

Article 134, UCMJ, and its statutory predecessor Article of War 96, proscribe all disorders and neglects by a member of the services which prejudice the good order and discipline in the armed forces and all conduct of a nature to bring discredit upon the armed forces. It must be construed in light of authoritative interpretations of military law, existing service customs and common usages. See Parker v. Levy, supra, 417 U.S. [733] at 753-54, 94 S.Ct. 2547 [at 2560-61], 41 L.Ed.2d 439 [ (1974) ]; Dynes v. Hoover, 61 U.S. (20 How.) 65, 15 L.Ed. 838 (1857). This Court in United States v. Kirchner, 1 USCMA 477, 4 CMR 69 (1952), specifically found that negligent homicide by a service member could be properly punished under Article 134, UCMJ, as such a disorder. Past

There is a special need in the military to make the killing of another as a result of simple negligence a criminal act. This is because of the extensive use, handling and operation in the course of official duties of such dangerous instruments as weapons, explosives, aircraft, vehicles, and the like. The danger to others from careless acts is so great that society demands protection.

United States v. Ballew, CM 434077 (unpublished), p. 2 (ACMR 16 July 1976).

(Footnotes omitted.)

7. Appellant asserts, however: “There is no known case in any jurisdiction of anyone being convicted of homicide for letting an intoxicated person drive his vehicle where that person then died as a result of his own negligence.” Final Brief at 10. Be that as it may, we noted in United States v. Kick, supra at 83-84, that the absence of civilian law proscribing this conduct is not determinative. Instead, our concern is whether this conduct violates substantive military law which in turn rests on military tradition, necessity, and experience. See Parker v. Levy, 417 U.S. 733, 749-51, 94 S.Ct. 2547, 2558-59, 41 L.Ed.2d 439 (1974). The decisions of this Court in United States v. Brown, 22 MJ 448 (1986), and United States v. Gordon, 31 MJ 30 (1990), clearly recognized the negligence inherent in appellant’s conduct⁴ and the appropriateness of including such hazardous conduct toward a fellow soldier⁵ within the scope of Article 134. See generally Solorio v. United States, 483 U.S. 435, 107 S.Ct. 2924, 97 L.Ed.2d 364 (1987) (Uniform Code of Military Justice applies to servicemember’s conduct no matter where it occurs.)

8. Appellant next asserts that even if his conduct was proscribed by Article 134, he had no notice of its criminality. This argument must be rejected for the reasons stated by the Supreme Court in Parker v. Levy, supra. Appropriate notice was provided by our decisions noted above and paragraph 85, Part IV, Manual, supra.

9. Appellant’s final argument is that the criminalization of his conduct by this Court would be “against public policy.” He notes the absence of statutes creating criminal liability for behavior such as appellant’s and suggests that it is “undesirable" to “have a duty to protect the health and safety of another who chooses, and is allowed, to drink and drive____” and “kill[s] themselves as a result of their own negligence.” He urges that this Court leave such policy decisions to Congress in its future modifications of the Uniform Code of Military Justice. Final Brief at 20-22.

10. Appellant’s argument ignores the fact that this Court does not make or set public policy. That is Congress’ job under Article I, § 8, Clause 14 of the United States Constitution, and it has performed its duty in this regard by enacting Article 134 and its statutory predecessors. That legislative body placed the responsibility on the factfinder at a court-martial to determine whether conduct such as appellant’s is a service disorder punishable at a court-martial. The Supreme Court has also held that this statute is constitutional, assuming adequate notice is provided with respect to the particular offenses punished under it. See Parker v. Levy, supra. Finally, the President in the Manual for Courts-Martial has long recognized the offense of negligent homicide as a punishable service disorder. See Appendix 6c, Sample Specification 144, Manual for Courts-Martial, United States, 1951. Our authority is limited to examining the findings of guilty entered under this codal provision and ensuring that they comply with existing law. Art. 67(c), UCMJ, 10 USC § 867(c)(1989). They do here.

II

11. The second issue in this case is whether appellant’s wing commander unlawfully influenced his court-martial such that its findings and sentence should be set aside. See Art. 37(a), UCMJ, 10 USC § 837(a); United States v. Kirkpatrick, 33 MJ 132 (CMA 1991). The basis for this attack on appellant’s conviction is a “We Care About You” letter dated March 5, 1991, signed by Colonel Mangis, Commander, 406th Tactical Fighter Training Wing (USAFE). This letter was issued 8 days before the initial Article 39(a), UCMJ, 10 USC § 839(a), session in this case and essentially announced “a get tough on DUI cases” policy for Zaragoza Air Base. (See appendix.)

12. Appellate defense counsel asserts that “the decision of the Air Force Court of Review evidences a complete failure to conduct a thorough review of the record and meaningful analysis of this issue.” Final Brief at 25. He notes that all the members of appellant’s court-martial admitted that they were aware of the “get tough” policy and, therefore, it was readily apparent to any reasonable person that the commander was “dictating the results” of his client’s trial. Final Brief at 31, 32. He finally asserts that “this case would not have gone to court if it occurred at any other time or at any other base in the military.” Final Brief at 34. We disagree.

13. Taking his last argument first, we note that the decision to refer this case to trial by court-martial was that of Major General Daniel, Commander, Sixteenth Air Force (USAFE), Torrejon Air Base, Spain. It is not clear how a “get tough on DUI eases” letter from Colonel Mangis, a commander of lower grade, would influence his superior officer’s referral decision. United States v. Johnston, 39 MJ 242 (CMA 1994). Furthermore, we have reviewed this letter, which is attached as an appendix to this opinion, and conclude that it conveys no express or implied message that appellant or any other presumably innocent servicemember should be found guilty without regard to the evidence presented at a court-martial. Finally, with respect to sentence, we note this policy letter was not directed at this court-martial to ensure that severe punishments for drunk-driving offenses be imposed by the court-members. See United States v. Kropf, 39 MJ 107, 109 (CMA 1994); cf. United States v. Kirkpatrick, 33 MJ 132 (CMA 1991)(military judge instructs members on command policy); United States v. Grady, 15 MJ 275 (CMA 1983)(trial counsel argued command policy to members).

14. Admittedly, this policy letter suggests to potential court members reading it what their court-martial sentences for a drmkmg-and-driving offense should be. This is unlawful command influence in violation of Article 37. Nevertheless, in United States v. Thomas, 22 MJ 388 (1986), cert. denied, 479

U.S. 1085, 107 S.Ct. 1289, 94 L.Ed.2d 146 (1987), this Court rejected a per se reversal rule where the members of a court-martial were simply exposed to comments suggesting unlawful command influence. See also United States v. Allen, 33 MJ 209 (CMA 1991)(re-jected per se rule where applied to military judge), cert, denied, 503 U.S. 936, 112 S.Ct. 1473, 117 L.Ed.2d 617 (1992). Instead, this Court has held that full disclosure of the matter on the record; assessment of the members’ ability to render an impartial judgment; and proper instruction on the members’ judicial duty would normally suffice to ensure a military accused has a fair trial. This case complies with that decision.⁶

15. Nevertheless, we are puzzled by the wing staff judge advocate (SJA)’s apparent failure to make it “absolutely clear” to the members of this command that courts-martial were not covered by this letter. Cf. United States v. Sullivan, 26 MJ 442 (CMA 1988). When one reads paragraph 2(d) of this letter (see appendix), one might think that the commander is setting out a minimum punishment schedule for courts-martial. Where was the SJA? We know the typical SJA is not a “potted plant.”⁷ SJAs should be constantly vigilant to avoid such loose or ambiguous language in a command-wide policy letter from the commander. In any event, we are satisfied beyond a reasonable doubt that appellant was not prejudiced by the wing commander’s letter. United States v. Thomas, supra.

The decision of the United States Air Force Court of Military Review is affirmed.

Judges COX, CRAWFORD, and GIERKE concur.

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b. Unit commanders and first sergeants will review the records of all assigned personnel to Identify those with ooor driving history. They will also attempt to Identify those with Droven poor driving attitudes. These individuals will be counseled and disciplined, as necessary. A record of counseling will be kept.

c. Unit commanders will document a counseling session with all personnel reaching two months from PCS or upon Early Return of Dependents, which emphasizes the high risk during these periods. They and unit first sergeants will monitor the off-duty actions of these Individuals to Identify excessive behaviors.

d. The NCO Club bar will stop serving alcoholic drinks at midnight. Non-alcoholic drinks, food, and entertainment may continue as late as desired.

e. A senior NCO will be assigned duty to observe the NCO Club bar. The duties will include:

1) Advising people who are getting drunk to take it easy.

2) Advising people leaving who appear to be under the influence to not drive.

3) Calling the Security Police if people fail to take advice.

f. We will Institute a process of driving through cones/random checks of people entering and departing Base as sobriety tests.

g. Security police and selected officers/NCOs will join in random checks for seat belt use. Warnings will not be given. Violators of mv seat belt policy letter will be given the five day/30 day/one year driving suspension.

4. Finally, the positive is that we will initiate a "We Care About You" program which encompasses all of the present programs plus:

a. Publishing a "Safe Partying" guideline.

b. Developing a safe presentation on the effects/dangers of alcohol use, indicators of alcohol abuse, intelligent wavs to use alcohol, and smart ways to party which will be given at all unit commander's calls.

c. Increasing emphasis on Identifying potential alcohol abusers before a serious problem develops or the person gets into trouble.

d. Placing specific emphasis on removing peer pressure to drink or drink more.

e. Establishing a wing policy that the unit commander/DCS will personally approve the type/ouant1 ty of alcohol served at unit functions. Non-alcoholic beverages will not only be offered, but pushed. Non-alcoholic wine will be available on every table where wine is offered.

5. These actions are sharp, but not extreme. I believe, however, that they take advantage of the very unfortunate opportunity that our fine .young comrades gave us. No program will prevent a reoccurrence. Onlv a significant change 1n the social mindset of our people can accomplish that most desirable of ends. We must decide, as a community and as Individuals, that Irresponsible drinking and Irresponsible driving are just not acceptable. I have done mv part as commander. Now I plead with each of you to join me as Individuals to make sure that we never suffer tragedies like these again.

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1 . See 41 MJ 213, 229 n. * (1994).

2 . This case was argued at the Air Force Academy. See 34 MJ 233, 234 n. * (CMA 1992).

3 . This has been changed effective for offenses committed after December 9, 1994. Exec. Order No. 12, 936, § 4(c), 59 Fed.Reg. 59081.

4 . Judge Cox aptly noted the nature of this negligence in United States v. Brown, 22 MJ 448, 450 (CMA 1986). He said:

Heedlessly turning over the keys to his chariot of death, appellant did not even take the elemental precaution of inquiring how much alcohol Robinson [the driver] had actually consumed.

5 . The Bible (Genesis 4:9) asks the question, "Am I my brother’s keeper?” In my personal view, within the confines of this case, this question is to be answered in the affirmative. There are instances in military life where the high standards set for membership in the profession of arms require that Armed Forces members not only take care of themselves but also their fellow warriors. See United States v. Lawson, 36 MJ 415 (CMA 1993); cf. the national slogan "Friends don’t let friends drive drunk” (somewhat related civilian concept). I think the high standards of conduct are traits of the American soldier. I think these standards are major factors in the high regard that America’s Armed Forces enjoy in the world today. Again, in my view, the instant case reflects these high standards of conduct that the American military sets for itself under the authority granted in the Uniform Code of Military Justice.

6 . The military judge stated to counsel:

All right. I have previously denied your motion for a change of venue until we had a chance to voir dire the panel members. Having heard the members' responses, I again will deny the motion for a change of venue. I am aware that all the members perceive the wing commander's policy as a result of all these deaths from DWIs as a serious matter and a get tough policy. I don’t find that, in itself, disqualifying. It would be disqualifying if any of these members felt that as a result of that policy they had to vote in a particular way or reach a particular finding. I think of those members of whom that question was asked, I don’t think we have any members who feel constrained by that commander’s policy to have to vote or decide in a particular manner. So, I don't see in this particular case, as a result of what knowledge the members do have, if any, of the accused and this accident, of the commander’s policy, that there is such a great prejudice that the accused cannot obtain a fair and impartial trial. For that reason, the motion for a change of venue is denied.

7 . The term "potted plant” is used in America’s image-based society to distinguish passive non-players ("is a potted plant”) from people of action ("is not a potted plant”). It is derived from Brendan V. Sullivan, Jr.’s, response to Senator Inouye, when the Senator was attempting to limit Mr. Sullivan's role in protecting his client (Oliver North) from what Mr. Sullivan perceived as unfair questioning by the Senate staff during the 1987 Irangate Hearings: "Well sir, I’m not a potted plant. I’m here as the lawyer. That’s my job.”