United States v. Warner

33 M.J. 522, 1991 WL 115558
U S Air Force Court of Military Review·Decided June 17, 1991·No. ACM 28651·Published·Cited by 2 cases

Opinions

OPINION OF THE COURT

KASTL, Senior Judge:

Three issues challenge us in this case. They involve: (a) pretrial confinement; (b) multiplicity vis-a-vis serial larcenies; (c) and guidance in the staff judge advocate’s recommendation.

Airman Basic Warner wrongfully borrowed a master key to the rooms of his dormitory. He then embarked on a series of unlawful entries and larcenies. In accordance with his pleas1, he was found guilty at a general court-martial bench trial. His approved sentence is a bad conduct discharge, 18 months confinement, and total forfeitures.

When the case first reached us, we specified three questions to appellate counsel. Benefitting from perceptive briefs, we will address each.

I
DID THE MILITARY MAGISTRATE IMPERMISSIBLY RETAIN THE APPELLANT IN PRETRIAL CONFINEMENT SOLELY BECAUSE OF THE SERIOUSNESS OF THE OFFENSES OF WHICH THE APPELLANT WAS CHARGED?

We resolve this issue against the appellant on the basis of waiver — this question was not addressed at trial by Warner or his counsel. United States v. Gambini, 10 M.J. 618 (A.F.C.M.R.1980), sen. rev’d. on other grounds, 13 M.J. 423 (C.M.A. 1982); United States v. Mathieu, 29 M.J. 823 (A.C.M.R.1989); United States v. Walker, 27 M.J. 878 (A.C.M.R.1989). See also United States v. Palmiter, 20 M.J. 90, 100 (C.M.A.1985) (Everett, C.J., concurring).

Even were we to reach the merits, we would find no error. We are convinced by our review that Warner posed a continuing threat to the morale, discipline, and effectiveness of his unit; he was not placed in pretrial confinement solely because of the nature of his offenses. R.C.M. 305(h)(2)(B); United States v. Rios, 24 M.J. 809 (A.F.C.M.R.1987); United States v. Hitchman, 29 M.J. 951 (A.C.M.R.1990). See also United States v. Heard, 3 M.J. 14 (C.M.A.1977) and Note, “Preventive Detention: The ‘He’ll Do it Again’ Basis for Pretrial Confinement,” Army Lawyer (December 1986) 44.

II
IN REGARD TO MULTIPLICITY, WERE CHARGE I, SPECIFICATIONS 2, 3, AND 4 SO CLOSELY RELATED IN TIME AND PLACE AS TO CONSTITUTE BUT A SINGLE COURSE OF CRIMINAL CONDUCT?

[524] The initial question before us is whether this issue was waived by a defense failure to object. The answer is no. As we read United States v. Holt, 16 M.J. 393 (C.M.A.1983), failure of trial defense counsel to object to multiplicious charging will not bar appellate relief.

We now move on to face the issue foursquare. We are mindful of the precedential possibilities of United States v. Campbell, 22 M.J. 99 (C.M.A.1986) (Sum.Dis.) and United States v. Huggins, 17 M.J. 345 (C.M.A.1984) (Sum.Dis.). As best we can tell, both involved larcenies at the same time and place from different victims. We find today’s situation factually distinguishable from Campbell and Huggins.

The appellant lived on the third floor of the dormitory at the time. His offenses occurred on the first, second, and third floors. Even if Warner had the reputed speed of the comic book character “The Flash,” he would have had a reasonable opportunity between the separate offenses to reflect and choose to refrain from committing additional crimes. In sum, sufficient time and distance existed between the offenses so that each was separate for charging. It follows that this situation is not governed by the Manual for Courts-Martial rationale found in Part IV, para. 46c(l)(h)(ii) (“... if a thief steals a suitcase containing the property of several persons or goes into a room and takes property belonging to various persons, there is but one larceny, which should be alleged in but one specification.”); see also United States v. Jobes, 20 M.J. 506, 512 (A.F.C.M.R.1985), pet. denied, 21 M.J. 102 (C.M.A.1985); United States v. Fairley, 27 M.J. 582 (A.F.C.M.R.1988).

The appellant is entitled to no relief or consolidation of offenses. United States v. Collins, 16 U.S.C.M.A. 167, 36 C.M.R. 323 (1966); United States v. Swigert, 8 U.S.C. M.A. 468, 24 C.M.R. 278, 281 (1957); United States v. Clason, 48 C.M.R. 453 (N.C.M.R.1974) (good analysis of precedents). See also United States v. Ventegeat, 20 U.S.C.M.A. 32, 42 C.M.R. 224 (1970).

Ill
DID THE STAFF JUDGE ADVOCATE’S RECOMMENDATIONS MISLEAD THE CONVENING AUTHORITY BY COUNSELLING HIM THAT HIS ACTION ON FINDINGS AND SENTENCE SHOULD CONSIDER: “THE INTEREST OF JUSTICE, DISCIPLINE, MISSION REQUIREMENTS, CLEMENCY AND OTHER APPROPRIATE REASONS?”

In his recommendation to the convening authority, the staff judge advocate discussed what action the convening authority could take on the action and the sentence. Part of his wording is quoted here:

36. ACTION ON THE FINDINGS AND SENTENCE:

a. The action you take on the findings and sentence is within your sole discretion and is a matter of command prerogative. Your action should consider and be taken in the interest of justice, discipline, mission requirements, clemency, and other appropriate reasons.

When we specified the issue on this point, we were concerned about the staff judge advocate’s recommendation that the convening authority use considerations such as mission requirements and discipline to guide his decision on the findings and to a lesser extent the sentence in this case.

The language in the recommendation is drawn verbatim from R.C.M. 1107(b)(l)’s non-binding Discussion. It provides that the action of the convening authority: “... is taken in the interests of justice, discipline, mission requirement, clemency and other appropriate reasons.” These words appear verbatim in the staff judge advocate’s recommendation.

History may assist in an appreciation of this language. Before 1984, Article 64, UCMJ, authorized a convening authority acting on findings to approve “only such findings of guilty ... as he finds correct in law and fact and as he in his discretion determines should be approved.” That convening authority could weigh evidence, judge witness credibility, and decide contro[525] verted questions of fact. Unless he determined that guilt was established beyond a reasonable doubt by competent evidence of record, he was required to “disapprove the finding.” MCM, 1969, para. 87a(3). See generally DA Pam 27-175-1, Review of Courts-Martial, Initial Review (June 1961) 91-107.

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United States v. Warner, 33 M.J. 522, 1991 WL 115558 (usafctmilrev 1991).

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