United States v. Williams

16 M.J. 333, 1983 CMA LEXIS 17523
United States Court of Military Appeals·Decided October 3, 1983·No. No. 43,799; CM 441286·Published·Cited by 2 cases

Opinion

Opinion of the Court

EVERETT, Chief Judge:

A general court-martial consisting of military judge alone convicted appellant of assault with intent to commit murder, in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934, and thereupon sentenced her to a dishonorable discharge, confinement at hard labor for 4 years, total forfeitures, and reduction to the lowest enlisted grade. The convening authority approved the trial results and the Court of Military Review affirmed. We granted review to determine whether the military judge erred by refusing to strike the victim’s testimony, upon timely defense motion, after the victim had invoked his fifth-amendment right to refuse to answer certain questions posed to him by defense counsel on cross-examination. We conclude that he did not.

I

After her arraignment on the charged offense of assault with intent to commit murder, Williams tendered a plea of guilty to the lesser-included offense of assault with a dangerous weapon. In the providence inquiry into this plea, appellant revealed that on the date of the incident, she “was on quarters” after having “just” been dismissed “from the hospital.” However, she left her quarters and went, instead, to her work station at the electronics shop. There she promptly approached the Non-commissioned-Officer-in-Charge (NCOIC)— the victim herein, Sergeant First Class McClelland. When just a few feet from [334]*334McClelland, she pulled a small, loaded .38-caliber derringer from her pocket and pointed it at him. She had picked up this weapon in her room; and, “as far as ... [she] knew,” it was in “working” condition. She admitted to the judge that she had acted intentionally and without justification or excuse. Satisfied that appellant appreciated and admitted all the elements of assault with a dangerous weapon, and that the guilty plea thereto was based in fact, the military judge accepted the plea.

At this point, the Government proceeded to offer evidence on the charged offense. Clearly, the only point in dispute between the parties was appellant’s intent when she pointed the derringer at McClelland. The Government, of course, urged that Williams intended to murder McClelland. The defense, on the other hand, seems to have proceeded on the theory that she either simply intended to frighten McClelland, so that she was guilty only of the aggravated assault which she admitted, or that, if she did intend to kill him, she acted in the heat of sudden passion caused by adequate provocation and was guilty only of assault with intent to commit voluntary manslaughter. See paras. 198a and 213f (l)(b), Manual for Courts-Martial, United States, 1969 (Revised edition).

Since, by her pleas, Williams already had admitted pointing the derringer at McClelland, the prosecution set out to carry its burden of proving her intent to kill by establishing (a) her motive for wanting to kill McClelland and, (b) the physical manifestations of her intent at the time of the assault. As to the former, the Government called as its first witness Military Police Investigator (MPI) Carol Downin. She testified that two days before the alleged assault she met and interviewed appellant at Irwin Army Hospital, Fort Riley, Kansas, where appellant then was a patient. Appellant reported that she and McClelland had had “a physical altercation,” during which the sergeant had thrown her to the floor, beaten her face, “held a knife to her” face, and threatened “to kill her.”1 Downin said that, when she saw appellant in the hospital, Williams seemed to be in pain. Moreover, appellant was wearing a neck brace and had scratches on her forehead caused by the knife and bruises on the eye and facial area that had resulted from the beating.

To demonstrate the manifestations of appellant’s intent, the prosecution relied principally on threats to kill McClelland uttered by Williams before, during, and after her assault on him. Downin, for instance, testified that during her interview of appellant in the hospital, Williams “was very upset, and ... angry” and “said she was going to kill” McClelland. According to Downin, appellant “said something to the effect that, ‘I’m going to kill the bastard,’ or ‘If it’s the last thing I do, I’m going to kill the bastard.’ ”2

Later in the trial, Specialist Five Johnnie R. Miller, a barracks neighbor of appellant and a member of her squad who had been present during the assault, testified that as she was pointing the derringer at McClelland, appellant uttered words to the “effect” of “ ‘I’m going to get you, you bastard you.’ ” Specialist Five Jeanette M. Aldrich, who also had been present, remembered that during the incident appellant said, ‘“I’m going to kill you, you bastard.’”

Staff Sergeant John C. Brown, appellant’s section chief and the last witness who saw the assault, testified that, to “the best of ... [his] recollection,” appellant told McClelland as she pointed the derringer at him, “ ‘I’m going to kill you before the end of the night,’ or ‘Before the end of the day, you are going to die.’ ”

CID Special Agent Mary Berens, called to the scene of the assault to investigate, testified that while she was preparing a waiver-[335]*335of-rights form before questioning appellant, Williams spontaneously stated, “ ‘I wish the gun would have went off, and then I would have shot him.’ ” Finally, Second Lieutenant Delinda Creal, a member of appellant’s company, testified that, when she “took ... [appellant] into a small office” and tried “to calm her down,” appellant began repeating, “ ‘I’m going to kill him, I’m going to kill him.’ ” When Creal asked appellant if she felt well, Williams replied “that she would be feeling all right when she seen him pushing daisies.”

As additional evidence of appellant’s intent to murder McClelland, rather than merely to frighten him, trial counsel elicited testimony from Sergeant Brown that the derringer was fully cocked during the incident. To explain why appellant had not actually fired the weapon during the several seconds it was trained on McClelland, Lieutenant Creal indicated that, when she “told ... [appellant] to sit down and calm” herself, appellant said, “ T forgot to pull the trigger.’ ” Upon examination by the military judge, Creal responded that appellant’s statement about pulling the trigger had been, “ T forgot how to pull the trigger.’ ” 3

After MPI Downin had testified but before any of the other prosecution witnesses had taken the stand, trial counsel called the victim as a witness. Besides describing the assault, which Williams herself admitted by her plea and described during the providence inquiry — and which also was fully treated by subsequent prosecution witnesses, McClelland contributed two pieces of evidence to the Government’s case. First, he testified that he “heard the gun cock” when appellant pointed it at him and that he saw the thumb of appellant’s right hand move backwards on the hammer of the pistol, so that it was cocked. However, as already has been indicated, Sergeant Brown also testified that during the assault the derringer was fully cocked. In fact, in removing the weapon from appellant’s hand, Brown had placed his thumb between the cocked hammer and the frame of the pistol to prevent it from firing.

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United States v. Williams, 16 M.J. 333, 1983 CMA LEXIS 17523 (cma 1983).

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