UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                           Before
                              COOK, CAMPANELLA, and HAIGHT
                                  Appellate Military Judges

                               UNITED STATES, Appellee
                                            v.
                            Specialist JEREMY N. MORLOCK
                              United States Army, Appellant

                                       ARMY 20110230

                                  Headquarters, I Corps
                             Kwasi L. Hawks, Military Judge
                     Colonel Walter M. Hudson, Staff Judge Advocate

For Appellant: Major Richard E. Gorini, JA; Captain Matthew R. Laird, JA (on
brief).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Robert A. Rodrigues, JA (on brief).

                                          30 April 2014

                                   ---------------------------------
                                   MEMORANDUM OPINION
                                   ---------------------------------

    This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

COOK, Senior Judge:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of one specification of conspiracy to commit premeditated
murder, one specification of conspiracy to commit an assault consummated by
battery, one specification of wrongful use of hashish, three specifications of
premeditated murder, and one specification of obstructing justice, in violation of
Articles 81, 112a, 118, and 134, Uniform Code of Military Justice, 10 U.S.C. §§
881, 912a, 918 and 934 [hereinafter UCMJ]. 1 The military judge sentenced appellant
to a dishonorable discharge, confinement for life with the possibility of parole,
forfeiture of all pay and allowances, and reduction to the grade of E-1. The
convening authority, pursuant to a pretrial agreement and his Article 60(c), UCMJ,
authority, only approved twenty-two years of confinement but otherwise approved

1
 Pursuant to a pretrial agreement, one specification of violating a lawful general
order and one specification of assault consummated by battery, violations of Articles
92 and 128, UCMJ, were dismissed by the military judge.
MORLOCK—ARMY 20110230

the adjudged sentence. Additionally, the convening authority credited appellant
with 352 days against his sentence to confinement.

       This case is before us for review pursuant to Article 66, UCMJ. Appellant
raises one assignment of error, which merits discussion and relief. Appellant also
personally raises matters pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982), that do not merit discussion or relief.

                                   BACKGROUND

      In his lone assignment of error, appellant alleges:

             THERE IS A SUBSTANTIAL BASIS IN LAW AND
             FACT TO QUESTION APPELLANT’S PLEA OF
             GUILTY TO SPECIFICATION 1 OF CHARGE II
             (PREMEDITATED MURDER) BECAUSE THE
             MILITARY JUDGE DID NOT ELICIT FACTS TO
             SUPPORT THAT THE DEATH RESULTED FROM THE
             ACT OF THE ACCUSED AS CHARGED IN THE
             SPECIFICATION AND NOT AN INTERVENING
             CAUSE.

       Appellant was charged, inter alia, with one specification of conspiracy to
commit premeditated murder and three specifications of premeditated murder. In
general, the conspiracy involved an agreement between appellant and other soldiers
from his unit, while deployed to Afghanistan, to murder non-hostile Afghan males
through the use of grenades and automatic weapons and then claim their victims had
either committed a hostile act or exhibited hostile intent. The three murders with
which appellant was charged were committed in furtherance of this conspiracy.

                 Specification 1 of Charge II: Premeditated Murder

       At trial, appellant pleaded guilty to the conspiracy charge and its specification
and all three murder specifications. Specification 1 of Charge II alleged appellant
violated Article 118, UCMJ as follows:

             [Appellant], U.S. Army, did, at or near Forward Operating
             Base Ramrod, Afghanistan between . . . 1 January 2010
             and . . . 31 January 2010, with premeditation, murder a
             male of apparent Afghan descent by means of throwing a
             grenade at him and shooting him with firearms.




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MORLOCK—ARMY 20110230

                                  Stipulation of Fact

       Appellant, as part of his pretrial agreement to plead guilty, entered into a
stipulation of fact. In regards to the murder alleged above, appellant admitted:

             [Appellant] and [Private First Class (PFC)] Andrew
             Holmes . . . were positioned behind a wall near an open
             field where they were approached by an unarmed Afghan
             male. [Appellant] and PFC Holmes agreed to implement
             one of the scenarios 2 suggested by [Staff Sergeant (SSG)]
             Gibbs to unlawfully kill the approaching Afghan male.

             ....

             The [male] was not acting suspiciously or in any way that
             resembled a threat.

             ....

             When the [male] was approximately 20 meters from the
             wall, [appellant] told him to “stop” in Pashtu. At the time
             [appellant] told [him] to stop, nothing about the [male’s]
             threat posture had changed.

             When the [male] stopped, [appellant] dropped [a] grenade
             over the side of the wall. . . . PFC Holmes fired several
             rounds at the [male] with his [Squad Automatic Weapon
             (SAW)]. Shortly after PFC Holmes fired his weapon, the
             grenade exploded. As the grenade exploded, [appellant]
             and PFC Holmes took cover behind the wall. [Appellant]
             then raised himself over the wall and fired several shots in
             the direction of the [male]. After [appellant] and PFC
             Holmes fired, the [male] lay bleeding on the ground.

             [Appellant] proceeded to radio a [false] situation report to
             his squad leader. [Appellant] stated that the [male] had
             approached his position, that the [male] had refused to
             comply with his commands, and that PFC Holmes had
             identified a grenade in the [male’s] possession.

2
 The stipulation of fact explained that “scenario” was the term developed by
appellant and his co-conspirators for plans to “stage unlawful killings of Afghan
noncombatants and pretend the noncombatants were insurgents posing a threat to
American forces.”


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MORLOCK—ARMY 20110230


             ....

             Prior to [appellant] dropping the grenade and PFC Holmes
             firing his weapon at the . . . male, [appellant] had the
             premeditated design to kill his victim. [Appellant] had
             formed the specific intent to unlawfully kill the . . . male
             and considered his actions intending to bring about his
             death.

             [Appellant] admits the collective actions of [appellant]
             and PFC Holmes dropping a grenade near and shooting the
             . . . male respectively caused his death.

                                 Providence Inquiry

       At the outset of the providence inquiry into the premeditated murder offenses,
the military judge explained the elements of each specification and provided the
definition for “premeditated design to kill.” Subsequently, the military judge
directed appellant to “take me to January of 2010, and tell me what happened” with
respect to Specification 1 of Charge II, which prompted the following colloquy:

             ACC: [M]yself and PFC Holmes . . . were just in place
             pulling . . . security . . . and . . . we were approached by
             an Afghan male, and . . . me and PFC Holmes made an
             agreement . . . to go ahead with one of these scenarios . . .
             that had been previously talked about with [SSG] Gibbs.
             This involved a fragmentary grenade . . . that had been
             given [to me] by [SSG] Gibbs in previous weeks . . . we
             were behind a wall, sir, the [Afghan male] was roughly
             about 20 meters and to our front . . . . Holmes was
             positioned -- his weapon was on top of the wall directed
             towards the [male], and I began to prep the fragmentary
             grenade, sir. I asked Holmes if he was ready, I dropped
             the grenade on the other side of the wall, Holmes let out a
             burst of his SAW, and then the grenade exploded. I had
             stood back up to see the [male], and fired off a few shots
             with my weapon . . . and made a radio call to my squad
             leader to give him a situation report on . . . what we
             wanted everyone to believe happened, sir.

             ....




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MORLOCK—ARMY 20110230

            MJ: Is it fair to say that you and PFC Holmes were not
            aware of any specific threat coming from this guy when
            the incident you told me about happened?

            ACC: Yes, sir. No direct threat from the individual, sir.

            ....

            MJ: This scenario was basically, you told Holmes, “the
            prior agreement we had to kill a noncombatant, we are
            going to put that into effect now?”

            ACC: Yes, sir.

            ....

            MJ: And then [PFC Holmes] threw a grenade?

            ACC: I dropped a grenade over the wall, sir.

            MJ: Why did you do that?

            ACC: It was to . . . simulate . . . it was thrown at us from
            the Afghani individual, sir.

            MJ: And then [PFC Holmes] opened with -- did he have a
            SAW?

            ACC: A SAW, sir.

            MJ: And then what happened to the guy after the grenade
            went off and the firing?

            ACC: When I stood back up from the wall after Holmes’
            burst and then the grenade went off sir that was the first
            time that I saw the individual after the gunfire. He was
            laying on the ground . . . presumably dead, I believe, sir.

       At this point, the military judge began a more exacting inquiry to examine
precisely how and when the victim was killed and which of the co-conspirators was
directly responsible for the fatal wounds.

            MJ: Did you ever investigate [the Afghan male]?




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MORLOCK—ARMY 20110230

        ACC: Not immediately . . . no.

        MJ: . . . [D]id anyone ever go up to the body?

        ACC: Eventually sir, yes.

        MJ: And what happened? What was his condition?

        ACC: He was deceased, sir.

        MJ: Was there any medical inquiry into what killed him?

        ACC: No, sir, not that I am aware of.

        MJ: Do you have a lay opinion?

        ACC: I believe he was deceased from bullet wounds, sir.

        MJ: Could you see that he was clearly shot?

        ACC: Yes, sir.

        MJ: Was it [PFC] Holmes’ SAW that shot him?

        ACC: I would believe so, sir.

        MJ: Did you shoot him?

        ACC: I don’t know if I -- directly my rounds made it to
        the individual. Like I said, sir, after I was in the middle
        of a radio call, and just kind of blindly fired in his
        direction, sir.

        MJ: But you shot at him, but like you said, you weren’t
        really aiming shots?

        ACC: Yes, sir.

        MJ: And at the rate of PFC Holmes’ SAW . . . you think
        it’s probably more likely that his bullets were the ones
        that struck this guy?

        ACC: Yes, sir.




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MORLOCK—ARMY 20110230

       Then, the military judge began exploring the possibility of whether anyone
other than appellant or PFC Holmes could have been responsible for the victim’s
death.

             MJ: Any chance that someone else shot these guys? Did
             you see anybody else, or anybody else ever later say,
             “hey, I was firing?”

             ACC: Yes, sir. Not in the direct incident . . . as far as the
             time that me and Holmes fired, but after my situation
             report was called up, sir, I was reinforced . . . by members
             of the platoon, my squad leader. Staff Sergeant [S]
             arrived at my location, and I believe he was given an order
             from the [company executive officer] who was out with us
             that day, Captain [M], to -- I believe the words were
             something, to make sure that the individual was dead.
             And Sergeant S took that as approach the individual and
             release two shots into the man at pretty close range, sir.

             MJ: Did [SSG S] shoot him in the head?

             ACC: I couldn’t tell you exactly, sir.

             MJ: But he fundamentally performed a coup de grace -- --

             ACC: Yes, sir.

             MJ: [Staff Sergeant S] shot him at close range with the
             intent of killing him?

             ACC: Yes, sir.

             MJ: [E]lement two of Specification 1 of Charge II. . . .
             [alleges] that his death, this . . . male of apparent Afghan
             descent resulted from your throwing a grenade or shooting
             at him . . . . How do you know that you, or PFC Holmes,
             which [sic] is a member of the conspiracy, killed him?

             ACC: I can only assume, sir, that a burst from an
             automatic weapon, you know, and comparatively close
             distance to a fragmentary grenade going off . . . that would
             be the end result.




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MORLOCK—ARMY 20110230

       Soon thereafter, the military judge halted the providence inquiry and asked
defense counsel, “[i]f the death resulted from SSG S’s action [the “coup de grace”],
was that an intervening cause or . . . at that point does the manner of death become
Specialist Morlock’s report that this person is a combatant?” Defense counsel asked
for a “moment” to discuss this alternate theory with his client.

        While defense counsel conferred with appellant, the military judge asked
government counsel, “[w]as there any medical evaluation on this 15 January
homicide that establishes exactly whose bullets or what his manner of death was?”
Government counsel responded that there was no such evidence. Next, the military
judge asked the prosecutor, “[w]hat is your theory of liability?” to which he
responded “the death resulted from the actions of PFC Holmes and [appellant], sir.”
The military judge asked, “[i]f it turns out that’s not true, is there an alternate theory
. . . ?” Government counsel answered, “yes.”

       The military judge turned back to appellant and inquired whether “you have
any reason to think that [the grenade’s] concussive blast injured the man?”
Appellant responded that “I believe it’s possible . . . but I wouldn’t be able to tell
you for sure . . . .” He then asked, “[c]an you tell me for sure whether your bullets
or [PFC] Holmes’ bullets are definitely the reason why this guy is dead?” Appellant
responded, “No, sir.” This lack of certainty directly contradicted the stipulation of
fact, wherein appellant admitted “the collective actions of [appellant] and PFC
Holmes dropping a grenade near and shooting the Afghan male respectively caused
his death.” It also stands in contrast to other portions of the providence inquiry
wherein appellant, at a minimum asserted it was safe to “assume” he and PFC
Holmes killed the victim with a grenade and automatic weapons.

       At this point in the inquiry, any inconsistencies could have been fairly easily
resolved. Instead, the military judge instigated the parties’ divergence from their
original mutual understanding and began exploring various alternate theories by
which appellant’s actions could still support a murder conviction and preserve his
guilty plea. As a result, the military judge and appellant ultimately agreed that
appellant could be guilty of murder under a theory that appellant’s false report was
the proximate cause of the victim’s death as it was reasonably foreseeable that SSG
S would belatedly arrive on the scene and deliver a “coup de grace.” Despite
reaching this agreement, the apparent and significant inconsistency between this
alternative theory and the theory of liability with which appellant was charged, 3
originally stipulated to, and pleaded guilty under, was never resolved.




3
  The specification does not mention SSG S, a “coup de grace,” or actions resulting
from appellant’s false report.


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MORLOCK—ARMY 20110230

                             LAW AND DISCUSSION

                                 Standard of Review

       A military judge’s acceptance of a guilty plea is reviewed for an abuse of
discretion. United States v. Eberle, 44 M.J. 374, 375 (C.A.A.F. 1996); United States
v. Rogers, 59 M.J. 584, 585 (Army Ct. Crim. App. 2003). “The test for an abuse of
discretion is whether the record shows a substantial basis in law or fact for
questioning the plea.” United States v. Schell, 72 M.J. 339, 345 (C.A.A.F. 2013)
(citation omitted).

       “If an accused sets up a matter inconsistent with the plea at any time during
the proceeding, the military judge must resolve the apparent inconsistency, or reject
the plea.” United States v. Phillippe, 63 M.J. 307, 309 (C.A.A.F. 2006) (internal
quotation marks and citations omitted); see also UCMJ art. 45(a).

       Additionally, “[t]he record of trial must reflect not only that the elements of
each offense charged have been explained to the accused, but also ‘make clear the
basis for a determination by the military trial judge . . . whether the acts or the
omissions of the accused constitute the offense or offenses to which he is pleading
guilty.’” United States v. Brown, ARMY 20110932, 2013 WL 3984614, at *3 (Army
Ct. Crim. App. 29 July 2013) (mem. op.) (citing United States v. Care, 18
U.S.C.M.A. 535, 541, 40 C.M.R. 247, 253 (1969)). In order for a “plea of guilty to
be knowing and voluntary, the record of trial must reflect that the elements of each
offense charged have been explained to the accused by the military judge,” and that
the accused “understood how the law related to the facts” of each offense. Schell,
72 M.J. at 346.

                                Premeditated Murder

       Premeditated murder is the “unlawful killing” of another person by an
accused, who at the time of the killing, possessed a “premeditated design to kill.”
See Manual for Courts-Martial, United States (2008 ed.) [hereinafter MCM], pt. IV,
¶ 43.b(1). Here, the military judge did an adequate job of defining the elements of
premeditated murder for appellant during his initial explanation of the offense.
However, from this point forward, the military judge’s various explanations of the
offense and the facts he elicited to support the plea resulted in confused exchanges
and a scattershot meeting of the minds.

                               Liability as a Principal

       Article 77, UCMJ, provides that an accused may be liable for an offense as a
principal if he “commits an offense . . . or aids, abets, counsels, commands, or
procures its commission.” MCM, pt. IV, ¶ 1.a(1), (2). Accordingly, both the



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MORLOCK—ARMY 20110230

stipulation of fact and the initial portion of the providence inquiry into the
abovementioned specification appeared to contemplate appellant’s liability as
principal—as either the perpetrator who directly committed the murder, or
alternatively as an aider and abettor, whose “collective actions” with PFC Holmes
“caused [the victim’s] death.”

       The introduction of SSG S and a possible “coup de grace” into the providence
inquiry created a significant inconsistency with not only the stipulation of fact but
with finding appellant’s causation of and liability for this murder as charged. Staff
Sergeant S either fired into a person whom appellant and PFC Holmes had already
killed, or he was the one who delivered the fatal blow because of appellant’s false
report. 4

       Faced with this major change to the fundamental premise of appellant’s guilt
to this offense, the military judge had the option of either resolving the
inconsistency or rejecting the plea. United States v. Garcia, 44 M.J. 496 (C.A.A.F.
1996); see also Article 45, UCMJ; Rule for Courts-Martial 910(h)(2). He chose
neither. Because the military judge failed to resolve this inconsistency or reject
appellant’s plea, this court will take appropriate action to resolve this issue.

                           Attempted Premeditated Murder

       Although we find appellant’s plea improvident to the charged offense of
premeditated murder, under the specific facts and circumstances of this case, we are
able to affirm a conviction for the offense of attempted premeditated murder. See

4
   The military judge and counsel, after pondering a host of alternate theories of
liability, settled on the notion that although appellant and PFC Holmes may not have
killed the Afghan male with their weapons, the cumulative impact of their actions
were the “proximate cause” of the victim’s death. Specifically, appellant agreed
with the military judge that: (1) he had placed the victim in a position “of peril”
through not only targeting him with weapons, but by falsely reporting the victim had
committed a hostile act; (2) Staff Sergeant S arrived at the scene as a direct result of
appellant’s actions, to include the false report; and (3) appellant could have
intervened by telling SSG S “don’t shoot . . . this guy is not our enemy,” but failed
to do so. Ultimately, appellant agreed with the military judge that “whether [his]
bullets directly killed [the victim] or whether the situation [he] created led to this
guy’s death, he died as a result of what [he] and PFC Holmes did[.]” Although we
decline to currently decide the viability of this theory, we have serious doubts it
would survive an analysis involving an “intervening cause” defense pursuant to
United States v. Varraso, 15 M.J. 793, 797 (A.C.M.R. 1983). It is unreasonable to
foresee and expect a fellow soldier to either commit a war crime or blindly obey a
patently unlawful order to execute a seriously wounded combatant who had been
rendered hors de combat.


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MORLOCK—ARMY 20110230

UCMJ art. 59. In carefully reviewing the entire record, to include those facts
established in the stipulation of fact and during appellant’s providence inquiry, and
applying the additional elements of Article 80, UCMJ, we find the record objectively
and overwhelmingly supports concluding that appellant provided the requisite
factual basis for attempted premeditated murder, and that he “explicitly or
inferentially . . . had sufficient knowledge” of this offense as well. See United
States v. Redlinski, 58 M.J. 117, 119 (C.A.A.F. 2003). The elements of attempt are:

             (1) That the accused did a certain overt act;

             (2) That the act was done with specific intent to commit a
                 certain offense under the code;

             (3) That the act amounted to more than mere preparation;
             and

             (4) That the act apparently tended to effect the
             commission of the intended offense.

MCM, pt. IV, ¶ 4.b.

       Here, appellant admitted that he and PFC Holmes agreed to initiate a
“scenario” in which they would kill an unarmed Afghan civilian in accordance with
plans they had previously developed. Appellant and PFC Holmes identified their
victim, and when the opportunity presented itself, each used a degree of lethal force
with the specific intent to commit premeditated murder. These actions were not just
“mere preparation,” but vigorous and violent efforts to complete the underlying
offense of premeditated murder. Although the providence inquiry did not firmly
establish that appellant and PFC Holmes achieved their intended design, their use of
a grenade and automatic weapons tended to effect the commission of the intended
murder, and went well beyond the “preparatory steps” necessary to sustain an
attempt conviction. Redlinski, 58 M.J. at 119. As such, we are able to affirm the
offense of attempted premeditated murder and will do so in our decretal paragraph.

                                   CONCLUSION

       Upon consideration of the entire record and the submissions by the parties, we
affirm only so much of the finding of guilty of Specification 1, Charge II as finds
that appellant:

             United States Army, did, at or near Forward Operating
             Based Ramrod, Afghanistan, between on or about 1 January
             2010 and on or about 31 January 2010, attempt to commit
             premeditated murder upon a male of apparent Afghan


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MORLOCK—ARMY 20110230

             descent by means of throwing a grenade at him and
             shooting him with firearms, in violation of Article 80,
             UCMJ.
      The remaining findings of guilty are AFFIRMED.

       We are able to reassess the sentence on the basis of the error noted, and do so
after conducting a thorough analysis of the totality of circumstances presented by
appellant’s case and in accordance with the principles articulated by our superior
court in United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) and
United States v. Sales, 22 M.J. 305 (C.M.A. 1986).

       In evaluating the Winckelmann factors, we first find no dramatic change in the
penalty landscape or appellant’s punitive exposure which might cause us pause in
reassessing appellant’s sentence. The amended finding still carries a maximum
sentence to confinement for life without parole. See MCM, pt. IV, ¶ 14.e. (twenty
year confinement limit for attempt offenses does not apply to attempted murder).
Further, appellant remains convicted of three other offenses, including two
additional premeditated murders, that each independently carry a maximum sentence
to confinement for life without parole. Second, appellant pleaded guilty in a judge-
alone court-martial. Third, we find the nature of the remaining offenses still
captures the gravamen of the original offenses, and the circumstances surrounding
appellant’s conduct giving rise to the amended offense remain admissible with
respect to the attempted premeditated murder and relevant to a number of the
remaining offenses. Finally, based on our experience, we are familiar with the
remaining offenses so that we may reliably determine what sentence would have
been imposed at trial.

       Reassessing the sentence based on the error noted, the amended finding of
guilty, the entire record and the matters personally raised by appellant pursuant to
United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), we AFFIRM the sentence as
approved by the convening authority. We find this reassessed sentence is not only
purged of any error but is also appropriate. All rights, privileges, and property, of
which appellant has been deprived by virtue of that portion of the findings set aside
by our decision, are ordered restored. See UCMJ arts. 58b(c) and 75(a).

      Judge CAMPANELLA and Judge HAIGHT concur.

                                      FOR THE COURT:
                                       FOR THE COURT:



                                       MALCOLMH.H.SQUIRES,
                                      MALCOLM          SQUIRES,JR.
                                                                JR.
                                       ClerkofofCourt
                                      Clerk      Court


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