United States v. Pimienta

66 M.J. 610, 2008 CCA LEXIS 195, 2008 WL 2174460
CourtNavy-Marine Corps Court of Criminal Appeals
DecidedMay 22, 2008
DocketNMCCA 200600788
StatusPublished

This text of 66 M.J. 610 (United States v. Pimienta) 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. Pimienta, 66 M.J. 610, 2008 CCA LEXIS 195, 2008 WL 2174460 (N.M. 2008).

Opinion

PUBLISHED OPINION OF THE COURT

MITCHELL, Judge:

A general court-martial, consisting of officer and enlisted members, convicted the appellant, contrary to his court-entered pleas,1 [612]*612of making a false official statement and involuntary manslaughter, in violation of Articles 107 and 119, Uniform Code of Military Justice, 10 U.S.C. §§ 907 and 919. The appellant was sentenced to a dishonorable discharge, confinement for 12 years, forfeiture of all pay and allowances, and reduction to pay grade E-l. The convening authority (CA) mitigated the dishonorable discharge to a bad-conduct discharge, but otherwise approved the sentence as adjudged. In an act of clemency, the CA suspended confinement in excess of six years for a period of two years from the date of his action.

We have considered the record of trial, the six assignments of error,2 the Government’s response, the appellant’s reply to the Government’s response, and the oral argument in this matter.3 We conclude that the findings and sentence are correct in law and fact and that no error was committed that was materially prejudicial to the substantial rights of the appellant. Arts. 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a) and 866(e).

Facts

The appellant was assigned to a Marine Division forward deployed to Camp Bull Dog, Bagram Airfield, Afghanistan. The appellant’s primary responsibility was guard duty on the base perimeter. On 20 June 2004, after the appellant and his squad returned to the barracks from guard duty, he and three other Marines, Sergeant (Sgt) Scolly, Lance Corporal (LCpl) Groover, and LCpl White, watched the squad’s weapons while other members took showers. Sgt Scolly exited the barracks to go to the head, leaving the other three Marines behind, cleaning weapons and talking amongst themselves. While cleaning his M-16 service rifle, LCpl Groover heard the “crack” of a weapon being discharged and looked up in the direction of the sound. He then turned to see that the M9 pistol in the appellant’s possession had discharged, striking LCpl White in the left side of his head. LCpl Groover and the appellant ran out of the barracks looking for a corpsman to render medical assistance to LCpl White. The appellant frantically pleaded with LCpl Groover, “Don’t tell anybody what happened; I’m going to jail; I’m going to jail. Just tell him [Sgt Scolly] that the pistol was laying [sic] on the rack, and it went off whenever I sat down.” Record at 218. Medical assistance was provided to LCpl White, but he died as a result of his injury.

During the investigation into the death of LCpl White, the appellant told the Naval Criminal Investigative Service (NCIS) agent that he threw himself onto his rack and picked up the pistol. When he tried to sit up to place the pistol in its holster, the weapon discharged. The appellant additionally indicated that minutes before he picked the weapon up off the rack, LCpl White had it in his possession and had been playing with it, to include dry-firing it at the ceiling.

[613]*613Military Rule of Evidence 404(b)

Over defense objection, and as part of the Government’s case-in-chief, the military judge allowed the trial counsel to call seven junior Marines as witnesses to attest to the fact that they had seen the appellant handle his M9 pistol in an unsafe manner. Their testimony included that they had seen the appellant spin the weapon on his finger, remove it from its holster in “quick-draw” fashion, chamber a round in the weapon while in the barracks, and point the firearm at other Marines while it was loaded. One of these Marines testified that he counseled the appellant on safe weapon handling procedures after witnessing some of these improprieties. Additionally, in response to reports of the appellant mishandling his weapon, another Marine, Sgt Seolly, testified that he counseled the appellant on the proper handling of weapons.

In his first assignment of error, the appellant avers that admission of this evidence by the military judge was error. Specifically, the appellant contends that the evidence showing lack of mistake or accident is inadmissible unless the defendant specifically defends on that ground. In the case sub judice, the appellant rested his case at the end of the Government’s case-in-chief, having put on no evidence. The appellant contends that because he did not raise mistake during trial, there was not a defense of lack of mistake or accident to rebut, and this evidence was, therefore, inadmissible. We disagree with both contentions.

The Law

Military Rule of Evidence 404(b), Manual for Courts-Martial, United States (2005 ed.), provides:

Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident....

The test for admissibility of uncharged acts is “whether the evidence of the misconduct is offered for some purpose other than to demonstrate the accused’s predisposition to crime and thereby to suggest that the fact finder infer that he is guilty, as charged, because he is predisposed to commit similar offenses.” United States v. Castillo, 29 M.J. 145, 150 (C.M.A.1989); see also United States v. Ruppel, 49 M.J. 247, 250 (C.A.A.F. 1998); United States v. Miller, 46 M.J. 63, 65 (C.A.A.F.1997).

A military judge’s decision to admit evidence is reviewed for an abuse of discretion. United States v. McCollum, 58 M.J. 323, 335 (C.A.A.F.2003). A military judge abuses his discretion if his findings of fact are clearly erroneous or if his conclusions of law are incorrect. United States v. Ayala, 43 M.J. 296, 298 (C.A.A.F.1995). In United States v. Barnett, 63 M.J. 388 (C.A.A.F.2006), our superior court summarized the required analysis for the admission of Mil. R. Evid. 404(b) evidence at trial using the test set out in United States v. Reynolds, 29 M.J. 105, 109 (C.M.A.1989). First, the evidence must reasonably support a finding by the court members that the appellant committed prior crimes, wrongs or acts; second, the evidence must show a fact of consequence is made more or less probable by the existence of this evidence; and third, the probative value of the evidence must not be substantially outweighed by the danger of unfair prejudice. Barnett, 63 M.J. at 394.

Analysis

In applying the Reynolds factors to the instant case, we find the testimony describing each incident of the appellant mishandling his weapon reasonably supports a finding by the court members that the appellant committed each of these alleged prior acts. We next address whether this evidence makes a fact of consequence more or less probable.

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Cite This Page — Counsel Stack

Bluebook (online)
66 M.J. 610, 2008 CCA LEXIS 195, 2008 WL 2174460, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-pimienta-nmcca-2008.