United States v. Schap

44 M.J. 512, 1996 CCA LEXIS 110, 1996 WL 147631
CourtArmy Court of Criminal Appeals
DecidedMarch 29, 1996
DocketARMY 9400529
StatusPublished
Cited by2 cases

This text of 44 M.J. 512 (United States v. Schap) is published on Counsel Stack Legal Research, covering Army 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. Schap, 44 M.J. 512, 1996 CCA LEXIS 110, 1996 WL 147631 (acca 1996).

Opinion

OPINION OF THE COURT

JOHNSTON, Judge:

Contrary to his plea, the appellant was found guilty by a general court-martial composed of officer and enlisted members of premeditated murder in violation of Article 118, Uniform Code of Military Justice, 10 U.S.C. § 918 (1988) [hereinafter UCMJ]. Although the appellant was sentenced by the members to a dishonorable discharge, confinement for life, forfeiture of all pay and allowances, and reduction to Private El, they recommended that the confinement be reduced as a matter of clemency. The convening authority approved only so much of the sentence as provided for a dishonorable discharge, confinement for forty-five years, forfeiture of all pay and allowances and reduction to Private El.

The appellant contends, inter alia, that the evidence is legally and factually insufficient to support a conviction for any offense greater than voluntary manslaughter, that the military judge made numerous errors in regard to instructions to the members, and that the military judge abused his discretion in improperly limiting the testimony of a defense expert and in admitting evidence that was unduly prejudicial. We disagree and affirm.

Facts

This case involves a sordid tale of infidelity and murder by decapitation.

The appellant and his wife were married in 1989 after a six-month courtship. The appellant took his marriage seriously and wanted it to be a permanent commitment. Because his wife had suffered through three miscarriages during the marriage, the appellant obtained a vasectomy to preclude further suffering on her part.

By December 1991, the wife felt that her feelings for her husband “had pretty much died” and she decided that she could not continue with the marriage. Nevertheless, in December, 1992, she followed her husband to Fulda, Germany, where he was assigned after joining the Army in January, 1992. During 1993, she took advantage of the assignment to Germany and often traveled throughout Europe without him.

The appellant and the victim, Specialist (SPC) Glover, became friends in early 1993. On two or three occasions, SPC Glover visited the appellant and his wife in their quarters. In the summer of 1993, the appellant was required to attend a military leadership training course. While the appellant was away from home, SPC Glover went to the appellant’s quarters at least six times and had sexual intercourse with the appellant’s wife. The appellant wrote love letters to his wife while attending the course. Although by her own account she no longer loved the appellant at the time and she was having an affair with SPC Glover, she responded with equally passionate correspondence.

By October, 1993, the appellant’s wife learned that she was pregnant as a result of her sexual liaisons with SPC Glover. She did not tell the appellant about the pregnancy. She and her husband stopped having sexual relations that same month. In mid-November, 1993, she told the appellant that she no longer loved him and wanted a divorce. Over the Thanksgiving weekend, the couple talked about the details of a separation and divorce. Ultimately they agreed to [514]*514a separation and her early return to the United States.

Although the appellant’s wife assured him that there was no other man in her life, the appellant was suspicious. He intercepted a letter to her postmarked 29 November 1993, that suggested that she was pregnant. On 5 December 1993, the appellant found his wife’s secret diary that indicated she may have had many other lovers during their marriage. When the appellant confronted her, she tried to explain the journal entries as fantasies or innocent relationships. On 6 December 1993, they met with a chaplain as a prelude to the pending separation, and both claimed to have been faithful during the marriage.

On 7 December 1993, the appellant went to work as normal while his wife intended to go to the bank. On the way, she experienced very heavy vaginal bleeding. Because she was afraid she was having another miscarriage, she asked an acquaintance to take her to the local German hospital. After she arrived at the hospital, she was told she would be there for at least a week. She attempted to contact SPC Glover through a legal clerk at the legal assistance office where she had worked as a volunteer. Later in the morning, when the appellant coincidentally stopped by the legal assistance office to obtain some papers in connection with the pending marital separation, that same legal clerk told the appellant that his wife was in the hospital. The appellant was concerned and went to the hospital at approximately 1420 while dressed in his battle dress uniform.

When the appellant arrived at the hospital, his wife informed him that she was pregnant because of an extramarital affair with a person she did not identify. He remained calm and appeared to be concerned about her condition. The appellant left the hospital around 1500 and returned to his quarters to retrieve items his wife had requested for her stay at the hospital. When he had not returned by 1530, she called the quarters twice, but received no answer.

The appellant arrived back at the hospital at approximately 1610 wearing jeans and a jeans jacket. He appeared agitated and questioned his wife about the identity of her lover and the circumstances of the relationship. She told him that the child was conceived while she made love on a quilt in the appellant’s living room. The appellant and his wife agreed that the lover should come to the hospital where she was undergoing treatment for the possible miscarriage. She also informed him that she had made arrangements for a message to be delivered to her lover so he could come to her side. While the appellant was in the room with her, she called the legal clerk to see if the message had been delivered. Although the appellant did not learn of SPC Glover’s identity at that time, he learned that the lover held the rank of specialist.

Approximately ten minutes later, the appellant called the legal clerk and asked, “did you deliver the message to the specialist?” The legal clerk said he was going to do so, but did not reveal the identity of the intended recipient. He then asked the. appellant if he knew where a particular barracks was located.

The appellant immediately drove to the location of the barracks, approached the staff duty noncommissioned officer (NCO), and explained that he needed to find the legal clerk who was looking for a room and that he also needed to find that same room. When the staff duty NCO asked the appellant which soldier he was looking for, the appellant said, “forget it” and departed. At approximately the same time, the legal clerk found the correct room and placed a message under SPC Glover’s door. He also had SPC Glover paged to ensure that he was notified that the appellant’s wife wanted him to join her at the hospital.

The appellant, who by this time was aware that SPC Glover was the paramour, began looking for him. At some point the appellant had obtained a fighting knife with an eight-inch double-edged blade that he brought with him in his car. The appellant, acting normal, asked a soldier near the barracks dining facility if he had seen SPC Glover. The soldier informed the appellant that SPC Glover was in the telephone booth adjacent to [515]*515the dining facility. The appellant replied, “[w]ell, I guess he got the message.”

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Related

United States v. Schap
49 M.J. 317 (Court of Appeals for the Armed Forces, 1998)
United States v. Simmons
44 M.J. 819 (Air Force Court of Criminal Appeals, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
44 M.J. 512, 1996 CCA LEXIS 110, 1996 WL 147631, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-schap-acca-1996.