United States v. Stark

19 M.J. 519, 1984 CMR LEXIS 3601
CourtU.S. Army Court of Military Review
DecidedSeptember 24, 1984
DocketCM 444038
StatusPublished
Cited by11 cases

This text of 19 M.J. 519 (United States v. Stark) is published on Counsel Stack Legal Research, covering U.S. Army 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. Stark, 19 M.J. 519, 1984 CMR LEXIS 3601 (usarmymilrev 1984).

Opinion

OPINION OF THE COURT

RABY, Senior Judge:

Contrary to his pleas, appellant was convicted of the unpremeditated murder of his wife in violation of Article 118, Uniform Code of Military Justice [hereinafter cited as UCMJ], 10 U.S.C. § 918 (1976). He was sentenced to a dishonorable discharge, confinement at hard labor for 50 years, forfeiture of all pay and allowances, and reduction to the lowest enlisted grade. The convening authority approved the findings and the adjudged sentence.

I. THE FACTS

Appellant’s wife, Emily, had been in Germany only ten days at the time of her death. Prior to her arrival on or about 8 August 1982, the appellant had received permission for Emily to stay with Sergeant Worth’s family and had phoned Emily from Sergeant Worth’s home. While it is apparent that Emily and the appellant were experiencing marital difficulties prior to Emily’s arrival in Germany (Sergeant Worth overheard telephone conversations regarding divorce), contradictory evidence regarding the nature and degree of this discord was adduced at trial (appellant informed Specialist Four McBride that Emily wanted a divorce, but Emily told Mrs. Worth that she loved her husband and wanted to stay with him). Emily lived with Sergeant and Mrs. Worth from the, time she arrived in Germany until her death.

On the evening of 18 August 1982, Emily was at the Worth’s home and the appellant was at the Pinder and Nashville clubs. At about 2350 hours, Emily called appellant because she was worried about him. Although appellant indicated he would come home shortly, he did not return until about 0120 hours, 19 August. Emily appeared worried but not angry that the appellant was late. Mrs. Worth went to bed just as appellant arrived and did not overhear any conversation.

During an interview conducted on 19 August 1982, appellant gave an agent of the Criminal Investigation Command (CID) the following information. He claimed that upon his late return to the Worths’ quarters his wife became upset, criticized him, and left the house. Approximately 20 minutes later, when Emily failed to return, appellant searched for her and reported to the military police that she was missing. In a subsequent confession (Prosecution Exhibit 2) which we find properly admitted at trial (see IY, infra), appellant claimed he thereafter continued to search for Emily and found her walking along the road near the canal. Appellant asked Emily to get into the car and she refused. When appellant persisted, Emily became verbally abu[375]*375sive. She called appellant “a nobody,” a “pompous ass,” and other names. She insulted appellant’s father and deceased mother, praised her family, and made remarks calculated to anger appellant and to hurt him emotionally. Appellant told Emily to stop saying these things, grabbed her, and shook her, but Emily persisted in her remarks. When appellant grabbed Emily a struggle ensued. Emily scratched appellant and he pushed her to the ground. She hit the pavement hard, and appellant told her to get in the car. Emily refused and again insulted appellant and his family. Appellant begged Emily to stop and put his hand over her mouth to silence her. Appellant denies knowing how long he held Emily or if she struggled against him. When he let her go, she fell to the ground. Appellant knelt beside Emily and realized she wasn’t breathing. He attempted to revive her by both cardio-pulmonary and mouth-to-mouth resuscitation, but his efforts were unsuccessful. Appellant moved Emily’s body and laid it “in the bushes next to the road,” because he did not want her body lying in the street. Appellant maintains that he then returned to the Worths’ quarters.

At approximately 0330 hours, appellant entered the Worths’ bedroom and announced that Emily had left the house following a discussion with him and that she had taken her purse. Mrs. Worth observed that appellant’s eyes “were kind of glaring —dazed” and she found it odd that Emily had taken her purse as Emily had not taken her purse on other occasions when she walked. Appellant then left, saying that he was going to look for Emily.

Sergeant Forth informed the court that at about 0330 hours, during his duty as desk sergeant, appellant had entered the station and reported Emily missing. Sergeant Forth noted that appellant had appeared to be agitated, hurried, and quite excited. He also noticed that there were three scratches on the outside of appellant’s left bicep, which Sergeant Forth believed to be “fingernail scratches.” Appellant did not appear intoxicated at that time.

The Chief of the Department of Pathology at the U.S. Army Hospital at Nürnberg, Major Roger M. Fossum, MC, conducted the autopsy on Emily’s body. Emily weighed between 160 and 170 pounds, as compared to the accused who then weighed 157 pounds. Major Fossum placed Emily’s time of death between 0300 and 0600 hours, 19 August 1982, noting that, based upon his experience, he “would lean toward the earlier time frame within that” period, somewhere from 0300 to 0500 hours. The cause of death was asphyxia due to suffocation. Major Fossum identified numerous external abrasions or scrapes of the skin in the facial area and a few such marks on the right arm of the body. There were numerous petechial hemorrhages1 within Emily’s eyes and eyelids, on her neck, and on her left shoulder. Two superficial, parallel, linear scratches or abrasions were found on her left nostril. Other minor abrasions were located on both cheeks and also over the bridge of her nose. Two slight, reddish areas of discoloration were detected on the top of her scalp. There was a large abrasion, about six centimeters long, on her right mid-forearm and there were several small abrasions and scratches around the front and back elbow area of her right arm. There was a large area of contusion and abrasion inside her mouth and there were contusions and abrasions on the inside of her upper and lower lips. The fingernails on the middle and small fingers of her left hand were broken and one of these breaks appeared to be fresh.

Major Fossum stated that the injuries to Emily’s lips and mouth, in the “greatest likelihood,” were caused by forcibly placing a hand across Emily’s mouth and, perhaps, her nose. The scratches on Emily’s nose were likely caused either by the appellant or by Emily’s fingernails when she attempted to pull the appellant’s hands from her face. The presence of certain petechial hemorrhages on both sides of Emily’s neck, coupled with the damage to the inside of [376]*376both her upper and lower lips and to her right cheek, is evidence that two separate though interrelated forces were applied to her body. The primary force, most likely, was caused by the placement of the left arm “around the neck from behind with the crook of the elbow towards the front of the neck with considerable pressure ... causing obstruction, perhaps collapse, of the trachea ... or closure of the jugular veins ... and quite possibly also the carotid arteries.” Major Fossum opined that quite likely both of these forces (the hand over the mouth and the left arm around the neck) occurred at the same time. The damage to Emily’s inner mouth would require a moderate to severe amount of force. It would require fair to considerable pressure on the mouth to prevent a person from talking, but only slight pressure on the throat to do so.

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Bluebook (online)
19 M.J. 519, 1984 CMR LEXIS 3601, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-stark-usarmymilrev-1984.