United States v. Mayhugh

41 M.J. 657, 1994 CCA LEXIS 8, 1994 WL 700909
CourtNavy-Marine Corps Court of Criminal Appeals
DecidedNovember 28, 1994
DocketNMCM 92 01141
StatusPublished
Cited by1 cases

This text of 41 M.J. 657 (United States v. Mayhugh) 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. Mayhugh, 41 M.J. 657, 1994 CCA LEXIS 8, 1994 WL 700909 (N.M. 1994).

Opinion

McLaughlin, Judge:

This case was sent to us by order of the Judge Advocate General under Article 69, Uniform Code of Military Justice [UCMJ], 10 U.S.C. § 869, to be reviewed under Article 66, UCMJ, 10 U.S.C. § 866.

The appellant is one of three accused who were tried jointly at a general court-martial by officer members. Contrary to their pleas, they were found guilty of conspiracy to commit assault, breach of the peace, and two specifications of assault and battery in violation of Articles 81, 116, and 128, UCMJ, 10 [659]*659U.S.C. §§ 881, 916, 928. The charges arise out of the foot-pursuit and assault of the victim who had left a civilian bar in New Jersey on his way back to his ship. The victim was kicked and otherwise assaulted by several assailants. The victim had had harsh words at and near the bar with the appellant, his co-conspirators, and others. The appellant was adjudged a sentence to confinement for 6 months, forfeiture of $785.00 pay per month for 6 months, and reduction to pay grade E-l. Although the appellant was not adjudged a punitive discharge, he was adjudged forfeitures greater than those that could be adjudged by a special court-martial, and he is entitled to a verbatim transcript.1

The other two accused were adjudged sentences which included, inter alia, a punitive discharge, and those cases are before us for factual and legal review under Article 66(c), UCMJ, 10 U.S.C. § 866(c). Among the assignments of error contained in the briefs of the other two accused is that:

THE MILITARY JUDGE ERRED AS A MATTER OF LAW IN DENYING THE MOTION FOR SEVERANCE.

This same issue was submitted to us by the Judge Advocate General for our review in appellant’s case, and the appellant has adopted this issue as his first assignment of error. Because it is the entire case that is to be reviewed by under the authority of Article 69, UCMJ, and not just the certified issue, the appellant has submitted 15 other assignments of error. Due to their length and number, the list of those assigned errors are attached as an Appendix. We find merit in Assignment of Error II, and, because of our disposition of that assigned error, Assignment of Error V is moot. The remaining assignments of error are without merit. Assignments of Error I, II, VII, and VIII are further discussed below.

Our review under Article 69, UCMJ, is limited in that “the Court may take action only with respect to matters of law.” We do not have the expansive powers granted us by Article 66(c), UCMJ.2 See United States v. Parker, 36 M.J. 269 (C.M.A.1993); United States v. Claxton, 32 M.J, 159 (C.M.A.1991); United States v. Cole, 31 M.J. 270 (C.M.A.1990); United States v. Jones, 34 M.J. 899, 905 (N.M.C.M.R.1992).

SEVERANCE

As to the issue sent to us by the Judge Advocate General (Assignment of Error I), we conclude that the military judge did not err as a matter of law in denying the appellant’s motion to sever his case from the other joined accused. The military judge did not abuse his discretion in denying the motion, and no actual prejudice resulted from the joint trial.

Rule for Courts-Martial [R.C.M.] 601(e)(3) provides, in part, that: “[a]llegations against two or more accused may be referred for joint trial if the accused are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses____” See also United States v. Fears, 11 U.S.C.M.A. 584, 29 C.M.R. 400 (1960).

The discussion under R.C.M. 906(b)(9) indicates that motions for severance are to be liberally considered and granted for good cause shown. If prejudice to an accused would result from a joint trial, the defense motion should be granted. If prejudice would result to the Government, the Government motion should also be granted, rather than more draconian measures such as denying admission of evidence. Notwithstanding the hortatory admonition to the military judge to be liberal in considering a severance motion, we test the military judge’s ruling for an abuse of discretion. [660]*660The analysis to R.C.M. 906(b)(9) indicates that the severance provision is derived from the 1969 Manual for Courts-Martial and Federal Rule of Criminal Procedure 14. Manual for Courts-Martial, United States, 1984, App., A21-49. Under the Federal Rule the resolution of a motion to sever is left to the sound discretion of the judge. United States v. Perkins, 926 F.2d 1271, 1280 (1st Cir.1991). Denial of a motion to sever will be reversed “only upon the appellant’s maintenance of the heavy burden of showing substantial prejudice as a result of joint trial, amounting to a miscarriage of justice.” Id. In our resolution of the remaining assignments of error, most particularly Assignment of Error VIII, we find no unfair prejudice to the appellant in this joint trial, nor any abuse of discretion by the military judge in denying the severance. We note that, in view of the lenient sentence, the joint trial may have allowed the appellant to reap that “advantage[] which sometimes operate[s] to the defendant’s benefit” in assessing relative culpability, a recognized benefit for the defendant in a joint trial. Richardson v. Marsh, 481 U.S. 200, 210, 107 S.Ct. 1702, 1709, 95 L.Ed.2d 176 (1987).

There are pro forma circumstances under which the appellant would warrant a separate trial. These circumstances are suggested in the discussions following R.C.M. 812 and 906. They include, in part, when different elections as to forum are made,3 when a party has a defense antagonistic to another party (i.e., alibi for one and entrapment for the other), when evidence as to any other accused will improperly prejudice the moving accused, and when the moving party wishes to use the testimony of one or more of the coaccused. The use of a confession of one accused that is not admissible against the other accused is not a pro forma basis for separate trial. The argument that it should be a basis for severance is directly eontradieted in Richardson v. Marsh, where the Supreme Court stated:

It would impair both the efficiency and the fairness of the criminal justice system to require, in all these cases of joint crimes where incriminating statements exist, that prosecutors bring separate proceedings, presenting the same evidence again and again, requiring victims and witnesses to repeat the inconvenience (and sometimes the trauma) of testifying, and randomly favoring last-tried defendants who have the advantage of knowing the prosecution’s case beforehand. Joint trials generally serve the interests of justice by avoiding inconsistent verdicts and enabling more accurate assessment of relative culpability— advantages which sometimes operate to the defendant’s benefit.

481 U.S. at 210, 107 S.Ct. at 1709.

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Related

United States v. Mayhugh
44 M.J. 363 (Court of Appeals for the Armed Forces, 1996)

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Bluebook (online)
41 M.J. 657, 1994 CCA LEXIS 8, 1994 WL 700909, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-mayhugh-nmcca-1994.