

   
   
   
   U.S. v. Simoy



United States, Appellee
v.
Jose F.S. SIMOY, Senior Airman
U. S. Air Force, Appellant
 
 
No. 97-7001
Crim. App. No. 30496

United States Court of Appeals for the Armed
Forces
Argued July 14, 1998
Decided October 20, 1998

CRAWFORD, J., delivered the opinion of the
Court,
in which COX, C.J., joined. SULLIVAN, GIERKE,
and EFFRON, JJ.,
each filed separate concurring opinions.

Counsel
For Appellant: Lieutenant Colonel Charles
L. Carpenter, USAFR, and Captain Harold M. Vaught (argued);
Lieutenant Colonel Kim L. Sheffield and Major Kevin P. Koehler
(on brief); Colonel Douglas H. Kohrt.
For Appellee: Lieutenant Colonel Michael
J. Breslin and
Captain Mitchel Neurock (argued); Colonel
Brenda J. Hollis
(on brief); Colonel Theodore J. Fink
and Major LeEllen Coacher.
Military Judge: Michael A. Kilroy
 
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE FINAL OPINION.
Opinion as amended Apr 9, 1999
 

Judge CRAWFORD delivered the opinion of the
Court.
Appellant was convicted in July 1992 at Andersen
Air Force Base, Guam, of attempted murder, conspiracy to commit robbery,
desertion terminated by apprehension, felony murder, and robbery, in violation
of Articles 80, 81, 85, 118, and 122, Uniform Code of Military Justice,
10 USC §§ 880, 881, 885, 918, and 922, respectively. He was sentenced
to be put to death, forfeit all pay and allowances, and be reduced to the
lowest enlisted grade. The convening authority approved the sentence, and
the Court of Criminal Appeals, in an en banc decision, affirmed
the findings and sentence. 46 MJ 592 (A.F.Ct.Crim.App. 1996). This case
is presented to this Court for mandatory review. Art. 67(a)(1), UCMJ, 10
USC § 867(a)(1). Appellant has assigned 49 issues in this case.
We agree with the court below as to all of
the issues related to the findings. We will discuss the following issue:



WHETHER THE MILITARY JUDGE COMMITTED REVERSIBLE
ERROR WHEN HE REPEATEDLY INSTRUCTED THE MEMBERS
THAT THEY WERE TO VOTE ON ANY SENTENCE PROPOSED
WHICH INCLUDED DEATH BEFORE ANY SENTENCE PROPOSALS
INCLUDING LIFE.



We hold that the military judge committed plain
error when he failed to instruct the members to vote first on the lightest
proposed sentence. United States v. Thomas, 46 MJ 311 (1997).

Discussion
RCM 1006(d)(3)(A), Manual for Courts-Martial,
United States (1995 ed.), states:



All members shall vote on each proposed
sentence in its entirety beginning with
the least severe and continuing, as
necessary, with the next least severe,
until a sentence is adopted by the con-
currence of the number of members required
under subsection (d)(4) of this rule.
 

The military judge instructed the members as follows:
 

If the aggravating circumstance has been
found unanimously by proof beyond
reasonable doubt, and if one or more
members proposed consideration of the
death sentence, begin your voting by
considering the death sentence proposal,
which have the lightest additional
punishment if any.



In order for the death penalty to be imposed in
the military, four gates must be passed:
(1) Unanimous findings of guilt of an offense
that authorizes the imposition of the death penalty, RCM 1004(a)(2);
(2) Unanimous findings beyond a reasonable
doubt that an aggravating factor exists, RCM 1004(b)(7);
(3) Unanimous concurrence that aggravating
factors substantially outweigh mitigating factors, RCM 1004(b)(4)(C); and
(4) Unanimous vote by the members on the death
penalty, RCM 1006(d)(4)(A). See Loving v. Hart, 47 MJ 438,
442 (1998).
If at any step along the way there is not a
unanimous finding, this eliminates the death penalty as an option. The
instructions to the members should make these four gates clear and also
note that, even if gates (1), (2), and (3) are passed, they may not vote
on the death penalty first if there is a proposal by any member for a lesser
punishment, i.e., life in prison.
The failure to give the instruction requiring
voting on the lightest proposed sentence first is a plain, clear, obvious
error that affected the substantial rights of appellant. United States
v. Thomas, supra. We reject the Governments argument and also
the opinion below, insofar as it holds that the failure to object to the
instruction and the submission of a defense-requested instruction constitute
a waiver or forfeiture of this issue.
Some of those members who voted for the death
penalty in this case might have agreed with life in prison. Thus, unless
they held out on their vote for the lesser punishment of life, three-fourths
might very well have agreed on life in prison rather than death. Thus,
it was important for the members to understand that, because of requirements
for unanimous votes, any one member at any stage of the proceeding could
have prevented the death penalty from being imposed.
The decision of the United States Air Force
Court of Criminal Appeals is affirmed as to findings but is reversed as
to the sentence. The record of trial is returned to the Judge Advocate
General of the Air Force. A rehearing on the sentence may be ordered.
 
 
SULLIVAN, Judge (concurring):
The first issue in this case should also be
resolved in appellants favor. It asks:



WHETHER THE MILITARY JUDGE ERRED BY EXCLUDING
MITIGATION EVIDENCE INFORMING THE MEMBERS THAT THE ACTUAL KILLER, DENNIS
SIMOY, WOULD NOT FACE THE DEATH PENALTY.



The right of a capital defendant to present mitigation
evidence under the Constitution is very broad. See Boyd v. French,
147 F.3d 319, 325-26 (4th Cir. 1998). Moreover, as a matter
of federal statutory law, it is a mitigation factor that "[a]nother defendant
or defendants, equally culpable in the crime, will not be punished by death."
18 USC § 3592(a)(4) and 21 USC § 848(m)(8). See United
States v. Beckford, 962 F.Supp. 804, 811-813 (E.D. Va. 1997) (discussing
state and federal case law). RCM 1004(b)(3), Manual for Courts-Martial,
United States, 1984, likewise provides a military accused facing the death
penalty a broad right to present mitigation evidence.
I strongly disagree with the military judge
and the Court of Criminal Appeals that some general doctrine against the
comparison of court-martial sentences undermines the relevance
of the proffered evidence in this capital case. Admittedly, appellant is
not legally entitled to the same or a lesser sentence as his brother, the
actual triggerman in this case. See Hatch v. State of Oklahoma,
58 F.3d 1447, 1466-67 (10th Cir. 1995). However, to hold the
triggermans fate is irrelevant in appellants case, a nontriggerman participant
in the same murder, ignores applicable federal practice without reason.
See generally Article 36, Uniform Code of Military Justice,
10 USC §
836 (apply the principles of law and the rules of evidence generally recognized
in the trial of criminal cases in the United States district courts). This
is a capital case, and Mil.R.Evid. 401, Manual, supra, must be applied
consistently with RCM 1004(b)(3). See generally RCM 1001(c)(3)(rules
of evidence relaxed during sentencing).
 
 
GIERKE, Judge (concurring)
I agree completely with the majority opinion.
I write separately to express my views on Issue I, in order to avoid another
reversible error at any sentence rehearing that may be ordered.
In my view the military judge erred by excluding
evidence that the actual killer would not face the death penalty. Dennis
Simoy, the triggerman, was facing trial by the same sovereign for his participation
in appellant's crime. While 18 USC § 3592(a)(4) and 21 USC §
848(m)(8) are not directed at courts-martial, they are persuasive authority
that Congress considers the sentence of a co-actor relevant in federal
capital cases.
 
 
EFFRON, Judge (concurring):
I agree that it is appropriate to limit the
holding on sentencing to Issue III, which is dispositive. With respect
to Issue I, which is addressed by Judges Sullivan and Gierke, I note that
our opinion in United States v. Grill, 48 MJ 131 (1998), as well
as the practice in federal civilian death penalty cases, in light of Article
36, Uniform Code of Military Justice, 10 USC § 836, see 18
USC § 3592(a)(4) and 21 USC § 848(m)(8), raise serious questions
as to the validity of the ruling by the military judge excluding information
about the sentence of a co-actor.
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