United States v. Scranton

30 M.J. 322, 1990 CMA LEXIS 1019, 1990 WL 114669
CourtUnited States Court of Military Appeals
DecidedAugust 27, 1990
DocketNo. 62,991; ACM 27387
StatusPublished
Cited by12 cases

This text of 30 M.J. 322 (United States v. Scranton) 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. Scranton, 30 M.J. 322, 1990 CMA LEXIS 1019, 1990 WL 114669 (cma 1990).

Opinion

Opinion of the Court

SULLIVAN, Judge:

During September and November 1988, appellant was tried by a general court-martial composed of members at George Air Force Base, California. Contrary to his pleas, he was found guilty of four specifications of drunken driving and one specification of negligent homicide, in violation of Articles 111 and 134, Uniform Code of Military Justice, 10 USC §§ 911 and 934, respectively. He was sentenced to confinement and forfeiture of $300 pay per month for 18 months and reduction to the lowest enlisted grade. The convening authority approved the sentence as adjudged. The Court of Military Review affirmed the findings of guilty and the sentence in a short-form opinion dated May 11, 1989.

On September 15,1989, this Court denied appellant’s petition for review which presented his case “on its merits” without [323]*323specific assignment of error. On September 28, 1989, we sua sponte rescinded the order denying the petition for grant of review (29 MJ 321) and specified the following issue for review:

WHETHER THE MILITARY JUDGE ERRED BY FAILING TO FIND SPECIFICATIONS 1 THROUGH 4 OF CHARGE I (DRUNK DRIVING CAUSING INJURY) MULTIPLICIOUS WITH EACH OTHER FOR FINDINGS.

We resolve this issue in favor of appellant by consolidating the four drunken-driving specifications and remanding this ease to the Court of Military Review for reassessment of sentence. See United States v. Guerrero, 28 MJ 223, 227 (CMA 1989). See generally United States v. Sorrell, 23 MJ 122 n.1 (CMA 1986).

The facts surrounding the granted issue are not in dispute and were accurately summarized by appellate defense counsel substantially as follows. On Friday, May 6, 1988, George Air Force Base (AFB) was holding an athletic day. Appellant and his fellow airmen participated in the day’s events, including a game of softball. He was observed drinking beer during the game. After the game, appellant returned to his barracks and offered to take five fellow airmen “four-wheeling” in his Chevy Blazer in the desert. These persons were Amn Myrick, A1C Isenhart, A1C Anderson, A1C Brisson and A1C White. Appellant purchased some beer before leaving for the desert.

Appellant and his passengers drove to a desert location about 20 miles from George AFB. Appellant was the driver; Amn Myrick and A1C Isenhart were in the front seat; and A1C Anderson, A1C Brisson, and A1C White were in the back seat. Appellant and his passengers rode around in the desert for about 2 hours. During this time, appellant drank one beer. As they rode around in the desert, the Blazer developed “strange noises.” They thought that the differential had been damaged. After checking the vehicle on two separate occasions, appellant decided to return to George AFB.

Appellant drove back to the base using paved roads. When he tried to negotiate a sharp curve that followed a long straightaway, the vehicle skidded, spun sideways, and rolled over four times. As a result, Amn Myrick was killed and appellant and his remaining passengers sustained various injuries.

A subsequent blood alcohol test showed that appellant’s level was 0.16 ml. The skid mark analysis indicated that appellant’s speed was about 72 MPH, while the posted speed limit at the curve was only 40 MPH.

Appellant was originally charged with four specifications of drunken and reckless driving resulting in injury to each surviving passenger. He was also charged with involuntary manslaughter in the death of Amn Myrick. The defense moved to dismiss the reckless-driving portion of each specification, which motion was granted. Multiplicity was not an issue raised during findings, and both counsel stated that they saw no multiplicity issue on sentencing.

Appellant was found guilty of the following specifications of drunken driving under Article 111:

SPECIFICATION 1: In that [appellant] did, in Southern California, on or about 6 May 1988, on Mariposa Road operate a vehicle, to wit: a passenger car, while drunk and did thereby cause the said vehicle to overturn and injure A1C Lynn C. Brisson.
SPECIFICATION 2: In that [appellant] did, in Southern California, on or about 6 May 1988, on Mariposa Road operate a vehicle, to wit: a passenger car, while drunk and did thereby cause the said vehicle to overturn and injure A1C Patricia A. White.
SPECIFICATION 3: In that [appellant] did, in Southern California, on or about 6 May 1988, on Mariposa Road operate a vehicle, to wit: a passenger car, while drunk and did thereby cause the said vehicle to overturn and injure A1C Cheryl Isenhart.
[324]*324SPECIFICATION 4: In that [appellant] did, in Southern California, on or about 6 May 1988, on Mariposa Road operate a vehicle, to wit: a passenger car, while drunk and did thereby cause the said vehicle to overturn and injure A1C Duane P. Anderson.

(Emphasis added.)

The evidence of record shows that all four specifications resulted from a single incident of drunken driving and a single accident resulting therefrom. Our concern is whether it was plain error for the judge and the Court of Military Review to allow these four specifications to stand. See generally United States v. Eckhoff, 27 MJ 142 (CMA 1988); cf. United States v. Jones, 23 MJ 301, 303 (CMA 1987); United States v. Fisher, 21 MJ 327 (CMA 1986); United States v. Webel, 16 MJ 64 (CMA 1983).

The obvious question arising from these specifications is whether Congress intended for four separate convictions for drunken driving under Article 111 to be approved under the circumstances of the present case. See United States v. Guerrero, 28 MJ at 226; United States v. Baker, 14 MJ 361 (CMA 1983); see generally Grady v. Corbin, — U.S. -, 110 S.Ct. 2084, 2091 n.8, 109 L.Ed.2d 548 (1990). The Government says multiple convictions should be upheld because four different persons were injured as a result of appellant’s drunk driving. See generally United States v. Stepter, 17 USCMA 549, 38 CMR 347 (CMA 1968); United States v. Peterson, 17 USCMA 548, 38 CMR 346 (1968); United States v. Parker, 17 USCMA 545, 38 CMR 343 (1968). We must reject the Government’s “different-victims” rationale in determining the appropriate unit of prosecution for the military offense of drunken driving. Cf. United States v. Brett, 25 MJ 720 (ACMR 1987).1

Our starting point in determining legislative intent is the language of the statute under which these convictions purportedly lie. See Ladner v. United States, 358 U.S. 169, 173, 79 S.Ct. 209, 211, 3 L.Ed.2d 199 (1958); Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955); United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 73 S.Ct. 227, 97 L.Ed. 260 (1952); United States v. Guerrero, supra; United States v. Baker, supra at 367 n.4. Article 111 now states:

§ 911. Art. 111. Drunken or reckless driving

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Cite This Page — Counsel Stack

Bluebook (online)
30 M.J. 322, 1990 CMA LEXIS 1019, 1990 WL 114669, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-scranton-cma-1990.