United States v. Oxford

21 M.J. 953
CourtU.S. Navy-Marine Corps Court of Military Review
DecidedFebruary 28, 1986
DocketNMCM 85 1989
StatusPublished

This text of 21 M.J. 953 (United States v. Oxford) 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. Oxford, 21 M.J. 953 (usnmcmilrev 1986).

Opinion

DECARLO, Judge:

Contrary to his pleas, appellant was convicted by a general court-martial with members of wrongful use and distribution of cocaine in violation of Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934. He was sentenced to confinement for three months, forfeiture of $300.00 pay per month for three months, and a bad conduct discharge. The convening authority approved the findings and sentence.

The appellant contends that the military judge’s instructions were deficient. We agree and set aside the findings and sentence.

To adequately set out the context of the military judge’s instructions, a brief summary of the facts is necessary. Appellant’s conviction was based almost entirely on the testimony of Petty Officer Schmidt. Schmidt testified at trial that he and appellant shared cocaine together on approximately ten to twenty occasions between October 1982 and May 1984 and that appellant had distributed cocaine to him at least four times during the same period. The Government produced no other direct evidence supporting these incidents. Defense counsel did not request nor did the military judge give an instruction concerning accomplice testimony.

[955]*955The issue raised on appeal is whether, under the circumstances, the military judge’s failure to give an instruction sua sponte regarding accomplice testimony constituted plain error within the meaning of Rule for Courts-Martial (R.C.M.), 920(f). Resolution of this issue necessarily depends on whether Petty Officer Schmidt was in fact an accomplice of the appellant and, if so, whether trial defense counsel waived the instruction by failing to request that it be given.

When used to determine the need for appropriate instructions, an accomplice is defined as one who is culpably involved with the accused in the commission of the crime charged. United States v. Scoles, 14 U.S.C.M.A. 14, 33 C.M.R. 226, 231 (1963). In the case sub judice, Petty Officer Schmidt testified that he and appellant were close friends who frequently shared drugs together. According to Petty Officer Schmidt, he, and not the appellant, was the main supplier of cocaine. Nevertheless, the two apparently followed an unwritten agreement to share cocaine whenever either one was able to procure it. He testified that purchases were normally made on or about military paydays and actual usage very often took place in the commissary where they both worked. This cooperative buying arrangement, according to Schmidt, spanned a one and one-half year period from October 1982 through the early spring of 1984 and resulted in approximately ten or twenty instances in which cocaine was actually shared. Appellant’s testimony amounted to a complete denial of Schmidt’s accusations and confirmed only that the two were friends.

We find that Schmidt’s testimony concerning his relationship with the appellant describes what was in fact an informal criminal conspiracy to share drugs. For all practical purposes, according to Schmidt, he and the appellant were both distributors and users of the cocaine on each particular occasion. Both were culpably involved in, and essential to, the commission of the crimes charged against the appellant. As such, Petty Officer Schmidt should have been considered an accomplice as a matter of law for instructional purposes.

We next turn to whether the military judge erred by not giving an instruction on accomplice testimony. The Government argues first that under R.C.M. 920(f), defense counsel’s failure to request special instructions at trial precludes consideration of the issue by this Court, and second, that such instructions were not warranted in any event because the testimony of Petty Officer Schmidt was not self-contradictory, improbable, or uncertain. We disagree with both arguments.

We begin by noting that there is no sua sponte duty placed on the military judge to give accomplice testimony instructions in all cases where such a witness testifies. United States v. Stephen, 15 U.S.C.M.A. 314, 36 C.M.R. 286, 290 (1965). Generally, the absence of a request for special instructions precludes consideration of the issue upon appeal. United States v. Schreiber, 5 U.S.C.M.A. 602, 609, 18 C.M.R. 226, 233 (1955); Caminetti v. United States, 242 U.S. 470, 37 S.Ct. 192, 61 L.Ed. 442 (1916). There is, however, a duty to instruct on such testimony in situations where not to do so would constitute plain error. R.C.M. 920(f). Whether the failure to instruct constitutes plain error is a function of corroboration; more specifically, the determination hinges upon whether there is sufficient corroborating evidence supporting an accomplice’s testimony which would dispel the inherent skepticism with which accomplice testimony is viewed. See United States v. Scoles, supra; United States v. Lell, 16 U.S.C.M.A. 161, 36 C.M.R. 317 (1966); United States v. Stephen, supra; United States v. Winbom, 14 U.S.C.M.A. 277, 34 C.M.R. 57 (1964); United States v. Lee, 6 M.J. 96 (C.M.A.1978); United States v. Young, 11 M.J. 634 (A.F.C.M.R.1981). Where the accomplice’s testimony is sufficiently corroborated, there is no duty to instruct. Where, however, an accomplice’s testimony constitutes the only evidence as to some or all of the elements of proof and the accomplice is impeached, there does [956]*956arise a sua sponte duty to instruct. United States v. Lee, 6 M.J. 96, 97 (C.M.A.1978).1

Two cases are especially applicable to the situation before us. In United States v. Stephen, supra, the appellant was convicted of stealing five cylinder heads from Government warehouses. Virtually the entire prosecution case was dependent upon the testimony of an accomplice who was an admitted thief. There was no request made for an instruction on accomplice testimony. The court, in finding plain error in the military judge’s failure to instruct, stressed that an accomplice has “a built-in untrustworthiness” which, in the proper case, must be brought to the attention of the members. The fact that the accomplice was the only one who testified that Stephen was involved in the crimes alleged made it a matter of vital importance to the accused to have the benefit of the instruction. Stephen, 35 C.M.R. at 290.

In United States v. Lell, supra, the appellant was convicted of receiving stolen property which he knew to be stolen. An accomplice testified that he had stolen the property and had informed Lell that the items were purloined. The accomplice also testified that Lell had suggested the robbery as a means of settling a debt then existing between the two. The appellant denied having any knowledge that the items were stolen and the accomplice witness was thoroughly impeached on cross-examination. Defense counsel did not request an instruction on accomplice testimony. The court relying on Stephen, supra, held that the failure to instruct constituted plain error.

In both cases, the court found a duty to instruct on accomplice testimony where the government case relies on the credibility of an accomplice without any corroborating testimony. In that situation, the member’s attention must necessarily be called to matters specifically affecting the accomplice’s credibility, that is, the motive to falsify his testimony in whole or in part. See Lell, 36 C.M.R.

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Related

Caminetti v. United States
242 U.S. 470 (Supreme Court, 1917)
Morris Drew Starks v. United States
316 F.2d 45 (Ninth Circuit, 1963)
United States v. Schreiber
5 C.M.A. 602 (United States Court of Military Appeals, 1955)
United States v. Scoles
14 C.M.A. 14 (United States Court of Military Appeals, 1963)
United States v. Winborn
14 C.M.A. 277 (United States Court of Military Appeals, 1963)
United States v. Stephen
15 C.M.A. 314 (United States Court of Military Appeals, 1965)
United States v. Lell
16 C.M.A. 161 (United States Court of Military Appeals, 1966)
United States v. Lee
6 M.J. 96 (United States Court of Military Appeals, 1978)
United States v. Young
11 M.J. 634 (U S Air Force Court of Military Review, 1981)
United States v. Fisher
21 M.J. 327 (United States Court of Military Appeals, 1986)

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Bluebook (online)
21 M.J. 953, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-oxford-usnmcmilrev-1986.