                       UNITED STATES, Appellee

                                    V.

               Joseph L. R. GRIJALVA, Senior Airman
                     U.S. Air Force, Appellant

                              No. 00-0558


                         Crim. App. No. 33169


       United States Court of Appeals for the Armed Forces

                        Argued April 19, 2001

                        Decided July 10, 2001

    GIERKE, J., delivered the opinion of the Court, in which
 CRAWFORD, C.J., and SULLIVAN, EFFRON, and BAKER, JJ., joined.

                                 Counsel
For Appellant: Captain Kyle R. Jacobson (argued); Colonel James
   R. Wise, Lieutenant Colonel Timothy W. Murphy, and Captain
   Karen L. Hecker (on brief); Captain Michael J. Apol.

For Appellee: Lieutenant Colonel Michael E. Savage (argued);
   Colonel Anthony P. Dattilo, Major Lance B. Sigmon, and
   Captain Suzanne Sumner (on brief); Lieutenant Colonel Ronald
   A. Rodgers and Major Thomas C. Taylor.

Amicus Curiae: Rebecca Copeland (law student) (argued); David A.
   Schlueter (supervising attorney), Mikel Eggert, and Julie K.
   Nelson (law students) (on brief) - For St. Mary’s University
   School of Law.

Military Judge:   Keith L. Roberts
    This opinion is subject to editorial correction before publication.
United States v. Grijalva, No. 00-0558/AF


      Judge GIERKE delivered the opinion of the Court.

      Before a military judge sitting as a general court-martial,

appellant entered pleas of guilty to attempted premeditated

murder and desertion, in violation of Articles 80 and 85, Uniform

Code of Military Justice, 10 USC §§ 880 and 885, respectively.

The military judge accepted the plea of guilty to desertion but

rejected appellant’s plea of guilty to attempted premeditated

murder.   Appellant then entered a plea of guilty to the lesser-

included offense of aggravated assault by intentional infliction

of grievous bodily harm, in violation of Article 128, UCMJ, 10

USC § 928.    After a trial on the merits on the greater offense,

the military judge convicted appellant of attempted premeditated

murder.   The adjudged and approved sentence provides for a

dishonorable discharge and confinement for 30 years.     The Court

of Criminal Appeals affirmed the findings and sentence.    53 MJ

501 (2000).

      This Court granted review of the following issue:

      WHETHER THE MILITARY JUDGE IMPROPERLY USED APPELLANT’S
      ADMISSIONS DURING HIS GUILTY PLEA INQUIRY TO A LESSER-
      INCLUDED OFFENSE AS PROOF THAT HE WAS GUILTY OF THE GREATER
      OFFENSE, IN VIOLATION OF THE FIFTH AMENDMENT TO THE
      CONSTITUTION, MILITARY RULE OF EVIDENCE 410, ARTICLE 45,
      UCMJ, THE INTENT OF CONGRESS, AND CASE LAW.1
For the reasons set out below, we affirm.




1
 We heard oral argument in this case at the St. Mary’s University
School of Law in San Antonio, Texas, as part of this Court’s
Project Outreach. See United States v. Allen, 34 MJ 228, 229 n.1
(CMA 1992).



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United States v. Grijalva, No. 00-0558/AF


                            Factual Background

      Appellant’s offer to plead guilty to attempted premeditated

murder and desertion was pursuant to a pretrial agreement that

capped confinement at 25 years.           The charges arose from a long

period of marital discord and mutual accusations of infidelity

that culminated when appellant shot his sleeping wife in the back

with a .380 caliber handgun.

      During the inquiry into the providence of appellant’s plea

of guilty to attempted premeditated murder, appellant told the

military judge that he did not intend to kill his wife when he

purchased the handgun and ammunition on the day before the

shooting.    He said that when he entered the house, his wife was

sleeping on the living room floor, with their infant daughter

lying beside her.     He saw a number of photographs of himself and

his wife that were torn up.       The sight of the torn photographs

made him angry.     He said that he sat down for a while, trying to

decide whether to awaken his wife or leave the house.           After a

while, he “just got up and just took the gun and [he] pulled the

trigger.”    He said that he moved their daughter into a bedroom

“[b]ecause I didn’t want her inside the same room in case we

started arguing or in case I shot the gun off or in case -- I

just didn’t want her in the same room if anything happened.”

After he shot his wife, his daughter came out of the bedroom.             He

grabbed his daughter and left.

      Appellant vacillated on the issues of premeditation and

intent.   Several times he told the military judge he intended to

kill his wife.     At other times, he said he did not know what he

intended.    He also told the military judge that he lost control


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United States v. Grijalva, No. 00-0558/AF


and acted in the heat of passion.           At one point, he told the

military judge that he intended to shoot his wife and then shoot

himself, but that he knew his wife was not going to die and

“whatever happened would happen afterwards.”           He said he intended

to shoot his wife but “really didn’t want her to die.”           Upon

further questioning by the military judge, he said that he did

not intend to kill his wife, but he gave the military judge

answers necessary to support a guilty plea because he “wanted to

get this over with.”      He said that he “didn’t want to go to

trial,” and he “wanted to get this done as quick [sic] as

possible.”    At that point, the military judge rejected the plea

of guilty to attempted premeditated murder, and the Government

withdrew from the pretrial agreement.

      After a short recess, appellant’s counsel informed the

military judge that appellant desired to plead guilty to

aggravated assault by intentional infliction of grievous bodily

harm, a lesser-included offense of attempted premeditated murder.

Appellant adhered to his earlier request for a bench trial.

Defense counsel sua sponte announced that appellant did not
desire to challenge the military judge based on information

obtained during the previous plea inquiry.

      The military judge began his inquiry into appellant’s guilty

plea to aggravated assault by advising him that some of his

admissions during the plea inquiry could be used by the

prosecution to prove the greater offense of attempted

premeditated murder.      He also advised appellant that he might

consider anything appellant told him regarding the elements of




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United States v. Grijalva, No. 00-0558/AF


the lesser offense in deciding whether appellant was guilty of

the greater offense.

      During this second plea inquiry, the military judge told

appellant, “Let’s go back then similar to the discussion we had

this morning and I want you to tell me in your own words the

facts and circumstances surrounding the offense you’ve now pled

guilty to, aggravated assault by intentionally inflicting

grievous bodily harm with a loaded firearm.”          When appellant did

not respond, the military judge said, “Tell me about it again,

please.”    Appellant then described the shooting as follows:

            When I went to the house I had the gun and when I
            walked in at first I was going to shoot her and then
            shoot me. I didn’t think she was going to die. There
            was no way she was going to die after I shot her. When
            I walked in I moved the baby and I put the baby in the
            middle room. And that’s when I came back and sat down
            for a while. And I guess after sitting there for a
            while I got up and took the gun and shot it at her
            direction. I wasn’t aiming. I just shot and I thought
            to myself whatever happens happens. And that’s when --
            after the gun went off that’s when the baby came out.
            I grabbed the baby and I left.

      In response to questioning by the military judge, appellant

repeated that his wife was asleep on the floor with her back to

him when he shot at her.       He told the military judge that his

wife said she could not feel her legs, and that he later learned

the gunshot damaged her spine.        Asked about his specific intent

when he shot his wife, he said, “Well, when I shot I just -- I

didn’t know what was going to happen.          I just shot.   It was just

whatever happened happened was what was going through my mind.           I

just picked up the gun and shot.”           Asked to describe again why he

shot his wife, appellant said:

            I was just mad because of all the stuff that was going
            on, all the arguing, all the fighting. And we were


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United States v. Grijalva, No. 00-0558/AF


            arguing about who was going to take care of the kids,
            and who got custody of the kids. And just all -- like
            I said all the arguing, the divorce, talking about
            divorce. All that was going through my mind.

      Finally, he told the military judge that he did not see

where the gunshot hit his wife because he did not look.          He

learned afterwards about the nature and extent of her injuries.

The military judge accepted appellant’s plea of guilty to

aggravated assault but did not enter findings because the

prosecution intended to present evidence on the greater charged

offense.    The only contested issues were premeditation and

intent.    The prosecution presented the following evidence to

prove premeditation and intent to kill.

      Appellant and his wife quarreled on Thursday, September 11,

1997.   The quarrel ended when the security police were called,

apparently by both appellant and his wife, and appellant left the

house and stayed with friends.        As a result of the quarrel,

appellant’s commander ordered him to stay away from the house for

72 hours.

      On Saturday, September 13, appellant requested termination

of telephone service to his home, and it was terminated on the

same day.    On Sunday, September 14, his wife requested that

service be restored, but restoration was not scheduled to be

accomplished until September 17.

      On Saturday night, appellant went to the Noncommissioned

Officers’ (NCO) Club with a friend.          At the NCO Club, he saw his

wife with several female friends.           He became upset, had tears in

his eyes, and was trembling.        His friend took him to a diner to

calm him down.     They drank coffee and talked for about three



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United States v. Grijalva, No. 00-0558/AF


hours.    Appellant’s friend was afraid that appellant would

attempt suicide, as he had done previously.

      On Friday, Saturday, and Sunday, appellant withdrew $100,

$200, and $300, respectively, from his on-base credit union

account.    On Sunday, September 14, appellant purchased travel-

sized toiletries and a handgun and ammunition.

      On Monday morning, September 15, after the no-contact order

had expired, appellant went to his house.          When he left his place

of duty, he lied to a co-worker, telling him that he was going to

talk to his lawyer.      His wife was sleeping on the living room

floor, with their two-year-old daughter sleeping next to her.

His wife was awakened when she felt and heard the gunshot.           She

saw appellant standing over her, holding a pistol and a pillow.

There was no evidence that the pillow was used as a silencer.

      When appellant’s wife asked him why he shot her, appellant

said nothing, but he shook his head from side to side and sat

down on a loveseat.      Appellant’s wife lost the feeling in her

legs.    Appellant asked her why she did not talk to him at the NCO

Club.    She was crying and asked appellant to get help.        He

responded that it was too late.           Their infant daughter ran into

the room and also started crying.           Appellant sat on the loveseat

for about 20 minutes.      Then he took their infant daughter and

departed, leaving his wounded wife on the floor.          He returned to

his duty station for a short time and then fled to Arizona, where

he was apprehended four days later.

      Appellant’s wife picked up the pistol and fired five shots

out a window in an effort to attract attention.          She began having

difficulty breathing, but she dragged herself into the kitchen


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United States v. Grijalva, No. 00-0558/AF


and shouted for help.      She tried to summon help on the telephone,

but it was not working.

      Eventually, a neighbor called the security police, and

medical personnel were called to the scene.         Medical examination

revealed a single bullet wound in her back, slightly to the right

of the spinal column.      There was no exit wound.    She suffered a

collapsed lung, a wound to the left wall of her liver and front

side of her stomach, and a hole in her left diaphragm.        She was

in critical condition when medical help arrived and probably

would have died soon thereafter if help had not arrived.

      The defense rested without presenting any evidence on the

merits.   After entering findings of guilty, the military judge

announced special findings on the issues of premeditation and

intent to kill.     His special findings included the following:

            On 15 September, the accused went to the couple’s home
            within a few hours after the no-contact order from his
            commander expired and found Mrs. Grijalva and their
            youngest daughter asleep on the floor. As he stated
            during the providency inquiry, the accused went to the
            house with the intent to shoot his wife. He moved
            their daughter in the bedroom so that she wouldn’t be
            injured when he shot his wife. He came back from the
            bedroom, sat down for 10-15 minutes, pulled the handgun
            out of his BDU [battle dress uniform] pants and shot
            his wife in the back. . . .

                                     *      *   *

            As I stated above and should be obvious from the
            court’s findings, I found that the government proved,
            beyond a reasonable doubt, that the accused shot his
            wife with the premeditated design to kill her. His own
            admission that he intended to shoot his wife; his
            action prior to the shooting; the removal of their
            daughter from the line of fire; the actual shooting of
            her in the back while she slept; his refusal to get
            medical attention for her, knowing that she was shot in
            the back and could not move her legs . . .; and her
            life threatening injuries all established beyond a
            reasonable doubt that the accused had the premeditated



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United States v. Grijalva, No. 00-0558/AF


            design and intent to kill his wife on 15 September
            1997, and he attempted to do so.

(Emphasis added.)

                                 Discussion

      Appellant contends that the military judge violated Article

45(a), UCMJ, 10 USC § 845(a), Mil. R. Evid. 410, Manual for

Courts-Martial, United States (1995 ed.),2 and his Fifth

Amendment privilege against self-incrimination by convicting him

of attempted premeditated murder based in part on his admissions

during the inquiry into his failed guilty plea and his guilty

plea to the lesser-included offense.          The Government argues that

appellant waived any violation of Mil. R. Evid. 410 by failing to

object when the military judge elicited and considered admissions

that went beyond the elements of the lesser-included offense.

The Government concedes that the military judge improperly

considered appellant’s statements that he removed his infant

daughter from the area and watched his wife for a while before

shooting her, both of which were elicited on the issue of

premeditation during the inquiry into the rejected guilty plea to

the greater offense.      The Government argues, however, that this

error was harmless beyond a reasonable doubt.

      Amicus curiae argue that the military judge was not
permitted to use appellant’s statements in the first plea inquiry

as the foundation for questions during the inquiry into the

second guilty plea to a lesser-included offense.         They argue that



2
 The current version of this Manual provision is the same as the
one in effect at the time of appellant’s court-martial.



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United States v. Grijalva, No. 00-0558/AF


by relying on appellant’s statements during the first plea

inquiry, the military judge was improperly making derivative use

of appellant’s statements, in violation of Article 45 and Mil. R.

Evid. 410.    Finally, amicus curiae argue that the military judge

erred by considering appellant’s admissions regarding the lesser-

included offense as substantive proof of the greater offense.

      Article 45(a) requires that when a plea of guilty is

rejected as improvident, “a plea of not guilty shall be entered

in the record, and the court shall proceed as though he had

pleaded not guilty.”      Mil. R. Evid. 410 prohibits use of evidence

of a guilty plea that is withdrawn, as well as “any statement

made in the course of any judicial inquiry regarding” the

rejected guilty plea.      In United States v. Vasquez, 54 MJ 303,
305 (2001), this Court emphasized the importance of avoiding

“[a]n excessively formalistic or technical approach to this

rule[.]”    The protection of Mil. R. Evid. 410 also applies “by

implication” to a plea that is rejected by the military judge.

United States v. Heirs, 29 MJ 68, 69 (CMA 1989).

      If a plea of guilty is rejected, any statement made by an
accused during the plea inquiry is inadmissible.          Id.   In United

States v. Shackleford, 2 MJ 17, 20 n. 6 (CMA 1976), this Court

opined, “It would violate the spirit, if not the letter, of

Article 45(a)… to utilize evidence procured during a guilty plea

inquiry to later convict or impeach an accused whose plea was

rejected.”    This Court has long recognized, however, that a

guilty plea to a lesser-included offense may be used to establish

“facts and elements common to both the greater and lesser offense

within the same specification[.]”           See United States v. Caszatt,


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United States v. Grijalva, No. 00-0558/AF


11 USCMA 705, 707, 29 CMR 521, 523 (1960), quoting United States

v. Dorrell, 18 CMR 424, 425-26 (NBR 1954), and citing with

approval United States v. Wasco, 8 CMR 580 (NBR 1953); United

States v. Rivera, 23 MJ 89, 95 (CMA 1986); see also RCM 920(e)

(when guilty plea to lesser-included offense has been accepted,

members should be instructed to accept as proved the matters

admitted by the guilty plea).

      In United States v. Gray, 51 MJ 1, 25 (1999), this Court

held that it was permissible for a court-martial to consider an

appellant’s admissions made in connection with his guilty pleas

in a state court proceeding.        See United States v. Williams, 104
F.3d 213, 216 (8th Cir. 1997) (guilty plea admissible in

subsequent collateral trial as admission by party opponent);

United States v. Benson, 640 F.2d 136, 139 (8th Cir. 1981)

(prohibition against admission of statements made in connection

with pleas of guilty does not apply where guilty plea is

accepted).

      A military judge’s failure to correctly apply the law is an

abuse of discretion.      United States v. Sullivan, 42 MJ 360, 363
(1995).   If the military judge erred by considering statements

made by appellant that were outside the waiver of the right

against self-incrimination that follows from a provident plea of

guilty, the error would be of constitutional dimension.       When

there has been an error of constitutional dimension, this Court

may not affirm unless it is satisfied that the error was harmless

beyond a reasonable doubt.       Arizona v. Fulminante, 499 U.S. 279,

295 (1991).    We review de novo the issue whether constitutional

error was harmless beyond a reasonable doubt.       Id.; 2 Steven


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United States v. Grijalva, No. 00-0558/AF


Childress & Martha Davis, Federal Standards of Review § 7.03 at

7-10 (3rd ed. 1999).

      Applying the foregoing principles, we reaffirm this Court’s

holding in Caszatt, supra, and we hold that the military judge

did not err by considering appellant’s admissions concerning the

elements of the lesser-included offense of aggravated assault.

We accept the Government’s concession that the military judge

erred by considering appellant’s admissions that he removed his

infant daughter from the area and that he watched his wife for a

while before shooting her, because these admissions pertained to

the element of premeditation, an element of the greater offense

to which the guilty plea was rejected.        For the same reason, we

hold that the military judge erred by considering appellant’s

admission that he went to the house with the intent to shoot his

wife.

      However, we hold that the military judge’s error was

harmless beyond a reasonable doubt.         Appellant’s act of removing

his daughter from the room was not a significant factor in the

determination whether appellant was guilty of the greater or

lesser offense.     He likely would have removed the child from the

room whether he intended to kill his wife, injure her, or merely

scare her.    Furthermore, the evidence of premeditated intent to

kill, separate and apart from appellant’s admissions during the

rejected plea of guilty, was overwhelming and uncontested.

The prosecution’s uncontested evidence established that on the

day before he shot his wife, appellant terminated the telephone

service to the house, purchased a handgun and ammunition, and

made preparations to flee.       On the morning of the shooting, he


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United States v. Grijalva, No. 00-0558/AF


concealed the purpose of his visit to his home by lying to a co-

worker.   The evidence established that appellant shot his

sleeping wife in the back at close range and inflicted life-

threatening injuries, told her that it was “too late,” watched

her for 20 minutes with callous indifference to her tearful pleas

for help as she lay paralyzed on the floor, and left her alone in

the house without the means to summon help.   In light of this

powerful and uncontested evidence, we are satisfied that the

military judge’s erroneous consideration of appellant’s

admissions during the inquiry into the rejected plea of guilty

was harmless beyond a reasonable doubt.

                                  Decision
      The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




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