United States v. Owens

16 M.J. 999, 1983 CMR LEXIS 786
CourtUnited States Court of Military Appeals
DecidedAugust 31, 1983
DocketCM 442375
StatusPublished
Cited by4 cases

This text of 16 M.J. 999 (United States v. Owens) is published on Counsel Stack Legal Research, covering United States Court of Military 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. Owens, 16 M.J. 999, 1983 CMR LEXIS 786 (cma 1983).

Opinion

OPINION OF THE COURT

BADAMI, Judge:

On appeal we have before us the conviction of Chief Warrant Officer Two Elmer G. (Gari) Owens, for the unpremeditated murder of his wife, Mary Owens, and his possession of an unregistered firearm, violations of Articles 118 and 92, Uniform Code of Military Justice, 10 U.S.C. §§ 918 and 892 (1976). A general court-martial composed of officer members sentenced appellant to a dishonorable discharge, confinement at hard labor for 25 years, and total forfeitures. The principal issues in this appeal concern the sufficiency of the evidence to sustain the conviction of unpremeditated murder and the admissibility of certain impeachment evidence. We affirm finding there is sufficient evidence to sustain the conviction and that the military judge did not abuse his discretion when he permitted trial counsel to examine appellant concerning false statements made on his warrant officer application. These statements included appellant’s arrest for assault and battery of his former wife.

I

On 4 September 1981, Gari Owens was apprehended for the murder of his wife, Mary Owens. She died in the early morning hours of 4 September as a result of a single gunshot which entered her back causing a large laceration of the liver and perforation of the breathing muscle. Death was due to excessive bleeding. At the time Mary Owens had been driving the couple’s Volkswagen Rabbit down the street from their quarters at Fort Campbell, Kentucky. Gari Owens held the 30.06 rifle mounted with a “Bushnell 4” telescopic sight which fired the fatal bullet.

At trial the government introduced evidence to show that Gari Owens fired the weapon in anger following a domestic quarrel and that Owens intended his wife’s death or grievous bodily harm. In defense Owens took the stand. An experienced hunter and marksman, Owens claimed that he had been standing in front of his house examining his rifle and that he had chambered a round and cleared the weapon by pulling the trigger. He maintained that his wife’s death was a tragic accident.

There are hundreds of pages of testimony by neighbors, acquaintances, hospital personnel and criminal investigative' agents. We deem it unnecessary to delineate all of it, however, a short summary is in order.

Gari and Mary Owens had been married approximately two years.' Although there was testimony that they were a couple who loved each other, there was also evidence that their marriage was filled with discord. Mary Owens had a habit of going out without her husband and staying out late. Owens was not happy with his wife’s behavior. Some months earlier Owens had gone to Colonel Wilburn McCormick, the Deputy Commander and Chief of Professional Services at Fort Leonard Wood, Missouri (Owens’ then station assignment), for the purpose of requesting leave in order to obtain a divorce or separation.

The night of the shooting Gari and Mary Owens had been at the Fort Campbell Officers’ Club. Acquaintances who accompanied them testified that Mary Owens had [1001]*1001decided to go out on the town without her husband even though the other women in the group had decided that it was too late for them to go out again that evening. The group departed the club shortly after 2325 hours.

At approximately 2330 hours, Mrs. Donna Parades was present in her home tending her three-year-old son who was sick. Mrs. Parades’ quarters face Shanan Drive which is but a short distance from the Owens’ quarters also on Shanan Drive. She testified that she heard loud voices in argument coming from in front of her quarters and recognized one of the voices as that of a woman.

Criminal investigators later discovered that Mary Owens had her own set of keys to her husband’s car in her purse and had taken her husband’s set of keys when she left their apartment. Normally, Gari Owens hung his set of keys for his car by the door. Also, although the night was cool, Mary Owens did not wear the vest she was wearing earlier that evening, nor was she wearing shoes when she drove away from their quarters in her husband’s car.

A fundamental proposition in the American system of justice is that one accused of a crime is presumed innocent until proven guilty beyond and to the exclusion of a reasonable doubt. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). It is the government’s responsibility to carry this burden. When the only proof of guilt is circumstantial, no matter how strongly the evidence suggests guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence. MacArthur v. State, 351 So.2d 972 (Fla.1977).

In order to prove its case against Gari Owens the government was obliged to demonstrate that Owens intended that his wife suffer death or grievous bodily harm. The triers of fact in their determination of this issue could infer that Gari Owens intended the natural and probable consequence of his voluntary act. Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). Indeed, the likelihood that an experienced hunter such as Owens would handle a dangerous weapon in such a negligent manner is beyond belief. Other evidence suggests that the appellant’s actions were willful and intentional and not accidental. The marital difficulties that Gari and Mary Owens experienced, the evidence that on the night of the shooting an argument had occurred, and that Mary had fled the house not wearing her shoes or vest, all points to the conclusion that Owens’ actions were deliberate and willful.

II

The remaining issue concerns the admissibility of certain impeachment evidence. An Article 39(a), UCMJ, 10 U.S.C. § 839(a), session was held in which trial counsel requested and was granted permission to question appellant concerning false statements in the appellant’s application for warrant officer. Pursuant to that ruling, the following exchange took place in the presence of the court members.

Questions by assistant trial counsel:
Q. Mr. Owens, isn’t it a fact that as to your application for appointment as a Warrant Officer in the United States Army and the statement of personal history attached to it, that you knowingly omitted the fact from questions 19 and 18, that you had been convicted in Daleville, Alabama, for the possession of marihuana and marihuana paraphernalia in 1976?
A. No Sir.
Q. Is it not a fact that you intentionally omitted from both of these documents the fact that you had been arrested in 1976 in Daleville, Alabama, for assault and battery on your second wife, Mrs. Jennifer Conant Braun?
A. No, sir.
Q. Is it not a fact that you omitted from both of these documents, the fact that you had been convicted in Enterprise, Alabama, for carrying a .22 caliber pistol in your automobile without a permit in 1976?
[1002]*1002A. It was admitted — it was omitted, rather.

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Related

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47 M.J. 742 (Navy-Marine Corps Court of Criminal Appeals, 1997)
United States v. Howard
25 M.J. 843 (U S Air Force Court of Military Review, 1988)
United States v. Owens
21 M.J. 117 (United States Court of Military Appeals, 1985)
United States v. Johnson
20 M.J. 610 (U S Air Force Court of Military Review, 1985)

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Bluebook (online)
16 M.J. 999, 1983 CMR LEXIS 786, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-owens-cma-1983.