                         UNITED STATES, Appellee

                                         v.

                     Darrell L. SHELTON, Sergeant
                         U.S. Army, Appellant

                                  No. 03-0694
                          Crim. App. No. 9900816

       United States Court of Appeals for the Armed Forces

                          Argued October 5, 2004

                       Decided September 27, 2005

PER CURIAM. BAKER, J., filed a dissenting opinion in which
CRAWFORD, J., joined.

                                     Counsel


For Appellant: Captain Rob W. MacDonald (argued); Lieutenant
Colonel Mark Tellitocci and Major Allyson G. Lambert (on brief);
Colonel Robert D. Teetsel and Captain Craig A. Harbaugh.


For Appellee: Captain Magdalena A. Przytulska (argued); Colonel
Steven T. Salata, Lieutenant Colonel Theresa A. Gallagher, and
Lieutenant Colonel Mark L. Johnson (on brief); Lieutenant
Colonel Margaret B. Baines.

Amicus Curiae for Appellant: Michael D. Hulser (law
student)(argued); Charles S. Temple, Director, Criminal Practice
Clinic (on brief) – for Franklin Pierce Law Center

Military Judges:    Richard J. Hough and Patrick J. Parrish




            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Shelton, No. 03-0694/AR




PER CURIAM:

     At a general court-martial composed of officer members,

Appellant was convicted, contrary to his pleas, of conspiracy to

commit unpremeditated murder, unpremeditated murder, larceny,

and kidnapping, in violation of Articles 81, 118(2), 121, and

134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 881,

918(2), 921, and 934, respectively.       The adjudged and approved

sentence included a dishonorable discharge, confinement for

life, total forfeiture of pay and allowances, and reduction to

the lowest enlisted grade.   The United States Army Court of

Criminal Appeals affirmed in an unpublished opinion.

     On Appellant’s petition, we granted review of one assigned

issue1 and one specified issue.2       For the reasons set forth

below, we affirm the findings of unpremeditated murder, larceny,

and kidnapping, modify the findings on the conspiracy charge,

and affirm the sentence.3




1
  WHETHER APPELLANT’S FIFTH AMENDMENT RIGHT TO DUE PROCESS
AND SIXTH AMENDMENT RIGHT TO COMPULSORY PROCESS WERE
VIOLATED WHEN THE MILITARY JUDGE REFUSED TO ORDER PRODUCTION
OF WITNESSES WHO WERE NECESSARY AND MATERIAL TO THE DEFENSE.
2
  WHETHER THE SPECIFICATION UNDER CHARGE I OF WHICH
APPELLANT WAS CONVICTED, CONSPIRACY TO COMMIT UNPREMEDITATED
MURDER, STATES AN OFFENSE UNDER THE UCMJ.
3
  We heard oral argument in this case at the Franklin Pierce Law
Center, Concord, New Hampshire, as part of the Court’s “Project

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United States v. Shelton, No. 03-0694/AR


                          I.   BACKGROUND

     Appellant was convicted of murdering Private First Class

(PFC) Chafin in August 1997.   In a separate trial, Appellant’s

co-actor, Sergeant Seay, was convicted of premeditated murder

and other offenses related to the death of Chafin.    See United

States v. Seay, 60 M.J. 73 (C.A.A.F. 2004).   In the present

trial, the prosecution introduced evidence of the following

events.

     Chafin’s roommate, Specialist Henry, testified that

Appellant, Seay, and Chafin attended a party in the barracks

along with several other soldiers.   During the evening, there

was a shoving match between Chafin and Appellant’s roommate,

Specialist Johnson.   After the other soldiers separated Chafin

and Johnson, Henry escorted Chafin to their room.    Henry, who

thought Chafin was too drunk to go out that evening, advised him

to stay in, and then left Chafin alone in the room.

     According to Seay, Appellant subsequently brought Chafin to

Seay’s vehicle.   Appellant and Chafin began to argue in the car.

Seay’s wife testified that after the three men arrived at Seay’s

apartment, Chafin passed out on the couch, and she told them to

remove Chafin from the apartment.




Outreach.” See United States v. Mahoney, 58 M.J. 346, 347 n.1
(C.A.A.F. 2003).

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United States v. Shelton, No. 03-0694/AR


     Seay testified that he went to his vehicle, and at

Appellant’s direction, sat in the back.    Appellant placed

Chafin, who was still drunk, in the front passenger seat and

drove away from the apartment.   According to Seay, Appellant

“had some string on him and wanted me to choke [Chafin] ‘till he

passed out . . . .’”   After initially declining to do so, Seay

began to choke Chafin, which awoke him.    When Appellant drove to

the side of the road, Chafin left the vehicle and attempted to

escape.   Appellant intercepted Chafin, pinned him to the ground,

gave Seay a knife, and told him to stab Chafin in the neck.

Seay complied, stabbing Chafin in the neck and ribs.   He then

passed the knife to Appellant, who repeatedly stabbed Chafin in

the ribs.   Appellant then dumped Chafin’s body down a ravine.    A

week later, Appellant learned Chafin had been carrying a

substantial amount of money with him on the night of the murder.

He returned to the ravine with Seay and removed Chafin’s wallet,

keys, and a belt.

     Chafin’s corpse was not discovered for four months, and the

investigation continued for two years.    During the initial

stages, the investigators scrutinized the activities that

evening of a number of individuals, including Appellant, Seay,

and Johnson.   Seay’s wife, at his request, initially misled the

investigators as to Chafin’s whereabouts on the night of his

disappearance, but she later advised them of her suspicion that


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United States v. Shelton, No. 03-0694/AR


her husband was involved in the murder.    Two years after the

incident, Seay confessed, providing a detailed description of

his participation with Appellant in the murder of Chafin.      Seay

was tried by general court-martial, convicted of murder, and

sentenced to confinement for life without parole, a dishonorable

discharge, total forfeiture of pay and allowances, and reduction

to the lowest enlisted grade.   The convening authority then

provided a grant of testimonial immunity and ordered him to

testify at Appellant’s court-martial.



                   II. PRODUCTION OF WITNESSES

                     A.    THE DEFENSE MOTION

     One element of the defense strategy at trial involved an

attempt to persuade the panel that Johnson, not Appellant, was

Seay’s partner in crime.   Although the defense had no plausible

explanation for the fact that Seay provided a detailed

description of Appellant as the perpetrator, and not Johnson,

the defense sought to raise a doubt as to Appellant’s role by

demonstrating that Johnson had motive and opportunity to murder

Chafin.

     At the request of the defense, the military judge ordered

the production of Johnson as a witness.    Anticipating that

Johnson would present self-exculpatory testimony, the defense

also sought production of three other witnesses -- Ms. Werth,


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United States v. Shelton, No. 03-0694/AR


Ms. Dominico, and Ms. King -- both to offer substantive evidence

of Johnson’s motive and opportunity to murder Chafin and for the

purpose of impeaching his expected testimony.    The military

judge denied the request to produce these three witnesses.      The

defense challenges that ruling in the present appeal.

     The defense subsequently decided not to call Johnson as a

witness.   Appellant asserts that the military judge forced the

defense to forgo calling Johnson because of the erroneous

refusal to order production of the three witnesses.   According

to the defense, these witnesses would have demonstrated that

Johnson had a motive to commit the murder, that he had provided

investigators with a false alibi for the evening of the crime,

and that he had exhibited consciousness of guilt.   Appellant

contends that the military judge’s ruling was contrary to his

Sixth Amendment right to compulsory process for obtaining

witnesses and his Fifth Amendment right to present the testimony

of such witnesses in his own defense.



                    B. ASSESSMENT OF PREJUDICE

     For purposes of this appeal, we shall assume, without

deciding, that the three requested witnesses possessed

information that was “relevant and necessary” under Rule for

Courts-Martial (R.C.M.) 703(b)(1), and that Appellant was

entitled to their production.   See United States v. Breeding, 44


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United States v. Shelton, No. 03-0694/AR


M.J. 345, 350 (C.A.A.F. 1996).    In that context, the issue is

whether any error in denying the production of these witnesses

was harmless beyond a reasonable doubt.    United States v.

Powell, 49 M.J. 220, 225 (C.A.A.F. 1998).

       The defense proffer that accompanied the motion indicated

that Ms. King would dispute Johnson’s initial statement to

investigators that he was at Ms. King’s residence on the night

of Chafin’s disappearance, contrary to an alibi initially

provided by Johnson to investigators.   Ms. King, however, could

not be located by either party.   She did not testify at the

investigation pursuant to Article 32, UCMJ, 10 U.S.C. § 832

(2000).    Defense counsel had never spoken to her, and the

Government could not locate her at the address provided by the

defense.    The defense has not demonstrated that the Government

was negligent or otherwise deficient in its attempt to locate

her.

       Defense counsel proffered that Ms. Werth would testify that

Johnson called her from Kuwait, and during the conversation, he

inquired about the investigation into Chafin’s disappearance.

The proffer also indicated that she would testify that Johnson

was rude when Chafin’s father came to the installation to

inquire about his son.   According to the defense, both of these

incidents would reflect Johnson’s guilty state of mind.




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United States v. Shelton, No. 03-0694/AR


       The defense also proffered that Ms. Werth would testify

that Johnson told her that his wallet had been stolen.    The

defense would have tied this to testimony from Mrs. Seay that

the wallet of a guest had been stolen, which the defense would

have used to show that Johnson, not Appellant, was in the Seay

apartment on the night of the murder.   Finally, the defense

proffered that Ms. Werth would testify that Chafin had told her

that Johnson had once lied to her when Johnson said that he had

gone to Texas to settle a score, when he had not done so.

According to the defense, this would have shown that because

Chafin caught Johnson in a lie and told Werth about it, the

embarrassment would have provided Johnson with a motive to kill

him.

       Defense counsel proffered that Ms. Dominico would testify

that several weeks after Chafin’s disappearance, Johnson said to

her “Personally, I think he’s dead.”    According to defense

counsel, this comment reflected a guilty state of mind.

       Assuming that these statements met the modest threshold

required for production of witnesses under R.C.M. 703, we

conclude that any error in non-production of these two witnesses

was harmless beyond a reasonable doubt.    The Government’s case

against Appellant was very strong.    Seay testified in graphic

detail how he and Appellant killed Chafin.   His testimony was

corroborated by physical evidence and Mrs. Seay’s testimony,


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United States v. Shelton, No. 03-0694/AR


particularly her description of Chafin’s arrival with Appellant

and Seay at the Seay residence on the night of the murder.    The

defense was unable to provide the panel with any reasonable

explanation as to why Seay would substitute Appellant for

Johnson as his co-actor.   With respect to Mrs. Seay, the defense

sought to portray her as confusing Appellant with Johnson, but

she confirmed that she knew both men, and that it was Appellant,

not Johnson, who was in her apartment on the evening in

question.

     The entirety of the record establishes that the denial of

the three witnesses at issue was harmless beyond a reasonable

doubt.   See United States v. Hall, 58 M.J. 90, 94-95 (C.A.A.F.

2003).



         III.   CONSPIRACY TO COMMIT UNPREMEDITATED MURDER

                           A. INSTRUCTIONS

     The military judge instructed the panel regarding the

elements of both premeditated murder and conspiracy to commit

premeditated murder.   In accordance with defense counsel’s

request, the military judge also included instructions regarding

the lesser included offenses of unpremeditated murder and

conspiracy to commit unpremeditated murder.

     Regarding unpremeditated murder, the military judge

instructed, in part, that the members would have to find “that


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United States v. Shelton, No. 03-0694/AR


at the time of the killing, the accused had the intent to kill

or inflict great bodily harm on PFC Chafin.”   With respect to

conspiracy to commit unpremeditated murder, the military judge

included in the instructions the requirement that the members

would have to find that the accused “entered into an agreement

with Sergeant Bobby D. Seay II to commit unpremeditated murder,”

and that the elements of the object of the conspiracy were “the

same as set forth in the instruction on the lesser included

offense of unpremeditated murder.”   After deliberations, the

panel returned findings of not guilty of the premeditated

offenses, but guilty of both lesser included offenses.



B. PREMEDITATED MURDER, UNPREMEDITATED MURDER, AND CONSPIRACY

     Article 118, UCMJ, includes two offenses pertinent to the

present case: (1) premeditated murder (an unlawful killing by a

person who “has a premeditated design to kill”); and (2)

unpremeditated murder (an unlawful killing by a person who

“intends to kill or inflict great bodily harm”).   Article 81,

UCMJ, in pertinent part, makes it an offense to “conspire[] with

another person to commit an offense” under the UCMJ.

     Appellant contends that the act of conspiring to commit

murder transforms an unpremeditated murder into a premeditated

murder, and that a finding of not guilty to premeditated murder




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United States v. Shelton, No. 03-0694/AR


negates the existence of an agreement to commit murder.4

Appellant argues that if the parties to the conspiracy agreed

only to commit great bodily harm to Chafin, then the offense

would amount only to conspiracy to commit an aggravated assault.

Under the defense theory, the fact that a death eventually

resulted from a conspiracy to commit aggravated assault might be

relevant to whether a person could be charged with

unpremeditated murder, but that would not transform an agreement

to commit great bodily harm into an agreement to commit murder.

     The Government counters that conspiracy to commit

unpremeditated murder is a valid offense under the UCMJ.

Specifically, the Government focuses on the “intent to inflict

great bodily harm” as an available state of mind under Article

118(2), the offense of unpremeditated murder.   The Government

argues that the panel reasonably could have determined that

Appellant entered into an agreement with Seay to inflict great

bodily harm on Chafin.   In the Government’s view, such an intent

would satisfy the intent element for the conspiracy offense

without a further need to determine whether Appellant intended

an unpremeditated killing.




4
  In support of this position, Appellant cites Mitchell v. State,
767 A.2d 847, 854-55 (Md. 2001); People v. Cortez, 960 P.2d 537,
538 (Cal. 1998); and People v. Hammond, 466 N.W.2d 335, 337.
(Mich. Ct. App. 1991).

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United States v. Shelton, No. 03-0694/AR


     In the present case, the military judge’s instructions

included alternative theories upon which the members could rely

to find Appellant guilty of unpremeditated murder, both as a

substantive crime and as the underlying offense of the

conspiracy.   The members returned a general verdict of guilty of

both of these lesser included offenses.    Because the members do

not provide an explanation when announcing their findings, the

record does not demonstrate whether the members found an “intent

to kill” or an “intent to inflict great bodily harm” as the

determinative state of mind.   Under these circumstances, we

cannot affirm the finding of conspiracy to commit unpremeditated

murder unless Appellant would be liable under both theories.

See Griffin v. United States, 502 U.S. 46, 51-56 (1991); Yates

v. United States, 354 U.S. 298, 312 (1957), overruled on other

grounds, Burks v. United States, 437 U.S. 1, 18 (1978).

     Appellant’s conviction for conspiracy to commit

unpremeditated murder cannot be affirmed on appeal because the

instructions authorized the members to base the conviction on a

finding of an intent to “inflict great bodily harm.”   If the

intent of the parties to the agreement was limited to the

infliction of great bodily harm, their agreement was to commit

aggravated assault, not unpremeditated murder.   See Article

128(b), UCMJ, 10 U.S.C. § 928(b) (2000); 2 Wayne R. LaFave,

Substantive Criminal Law   § 12.2(c)(2), at 278-79 (2d ed. 2003);


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United States v. Shelton, No. 03-0694/AR


State v. Donohue, 834 A.2d 253, 256 (N.H. 2003).    In view of our

disposition of this issue, we need not address Appellant’s

contention that conspiracy to commit unpremeditated murder may

not be predicated upon an “intent to kill” state of mind after

the members have rejected the premeditation element of the

charged conspiracy to commit premeditated murder.

     Under the circumstances of this case, we can affirm a

finding of guilty to the lesser included offense of conspiracy

to commit aggravated assault.   In view of that finding and the

other findings we affirm in this decision, we conclude that any

error in the conspiracy finding was not prejudicial as to the

sentence.



                          IV.   DECISION

     The decision of the United States Army Court of Criminal

Appeals is affirmed, except for the finding of conspiracy to

commit unpremeditated murder.   As to that offense, a finding of

the lesser included offense of conspiracy to commit aggravated

assault, in violation of Article 128, UCMJ, is affirmed.




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United States v. Shelton, No. 03-0694/AR


     BAKER, Judge, with whom CRAWFORD, Judge, joins
(dissenting):

     I agree with the majority’s result on Issue I, but

respectfully disagree with the analysis.   I would not “assume

without deciding” that the witnesses at issue were relevant and

necessary.   In my view, the defense did not carry its burden to

demonstrate relevance and necessity.   Therefore, the military

judge did not err in refusing to order their production and we

should not shy away from saying so.

     I respectfully dissent with respect to Issue II because I

believe the unusual text and legislative history to Article

118(2), Uniform Code of Military Justice (UCMJ), 10 U.S.C. §

918(2) (2000), support the conclusion that conspiracy to commit

unpremeditated murder is an offense under the UCMJ.   Therefore,

the military judge did not err, based on the facts of this case,

in giving the instruction the defense requested.   The majority

reaches an opposite conclusion without reference to either the

text or legislative history to Article 118(2).   In the end, the

question presented is academic in nature because the majority

provides Appellant no relief and the factual and legal

circumstances of this case, we might hope, are not likely to

repeat themselves.
United States v. Shelton, No. 03-0694/AR


                           APPELLANT’S TRIAL

     At Appellant’s court-martial, defense counsel requested

production of Specialist Johnson in support of the theory that

Johnson, rather than Appellant, was involved in Chafin’s murder.

Defense counsel also sought production of three other witnesses,

Ms. Werth, Ms. Dominico, and Ms. King.    Through these witnesses

the defense intended to impeach Johnson’s statements to

investigators and demonstrate that he had a greater motive and

opportunity to murder Chafin than Appellant.    According to

defense counsel, Ms. Werth would have testified that Johnson was

rude to Chafin’s father after Chafin’s disappearance and that

Johnson later called her from Kuwait inquiring about the

investigation into Chafin’s death.     Ms. Dominico would have

testified to a statement by Johnson following Chafin’s

disappearance that, “[p]ersonally, I think he’s dead.”    Ms. King

would have contested Johnson’s statement to the Criminal

Investigation Division (CID) that he was at her apartment the

night of the murder.   Finally, all three witnesses would have

testified that at some point before Chafin’s death, Chafin

revealed that Johnson had lied to the women about a trip,

unrelated to the murder, that Johnson claimed to have taken to

avenge a friend’s death.




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United States v. Shelton, No. 03-0694/AR


     The military judge granted the defense motion to produce

Johnson, but denied production of the three proffered witnesses

in the following ruling:

     In regards to Miss Dominico, her proffered testimony does
     not show any guilty state of mind or guilty knowledge by
     Specialist Johnson. Her proffered testimony is not
     relevant. The motion to produce Miss Dominico as a witness
     is denied.

     With regards to Miss Werth, her proffered testimony does
     not show any guilty state of mind or guilty knowledge by
     Specialist Johnson. Her proffered testimony is not
     relevant. The motion to produce Miss Werth is denied.

     With regards to Miss King, defense has not talked to her,
     and defense has not produced -- or excuse me -- has not
     provided an address, location, or phone number as to how to
     contact her, and the government’s not required to search
     for defense witnesses. Now, for that proposition, I cite
     you to Gans at 23 MJ 540. And, besides, her proffered
     testimony is not relevant. The motion to produce her as a
     witness is denied.

Although the request for Johnson was granted, the defense

declined to call him during its case on the merits.    According

to Appellant’s post-trial submission pursuant to Rule for

Courts-Martial (R.C.M.) 1105, his reason for not calling Johnson

was that he had been “deprived of any ability to impeach”

Johnson’s expected testimony.

     In his instructions to the members, the military judge

charged the panel regarding the elements of both premeditated

murder and conspiracy to commit premeditated murder.   In

accordance with defense counsel’s request, the military judge

also included instructions regarding the lesser included


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United States v. Shelton, No. 03-0694/AR


offenses of unpremeditated murder and conspiracy to commit

unpremeditated murder.     The panel returned a finding of not

guilty of the premeditated offenses, but guilty of both lesser

included offenses.

                      A.    WITNESS PRODUCTION

     Appellant argues that the military judge’s denial of his

motion to compel production of witnesses prevented him from

demonstrating that Johnson had a motive to commit the murder,

that he had provided investigators with a false alibi for the

evening of the crime, and that he had exhibited consciousness of

guilt.   According to Appellant, he was effectively deprived of

his capacity to impeach Johnson on the witness stand and develop

the theory that Johnson, rather than Appellant, participated in

Chafin’s murder.   Appellant contends that this amounted to a

deprivation of his Sixth Amendment right to compulsory process

for obtaining witnesses and his Fifth Amendment right to present

the testimony of such witnesses in his own defense.      The

appellate question is whether the military judge abused his

discretion in denying production of the requested witnesses.

     “An accused has a constitutional right to present relevant

evidence to defend against [criminal] charges.”      United States

v. Browning, 54 M.J. 1, 9 (C.A.A.F. 2000).       The right, however,

is not absolute.   Id. (citing United States v. Woolheater, 40

M.J. 170, 173 (C.M.A. 1994)).    Under R.C.M. 703(b)(1), a party


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United States v. Shelton, No. 03-0694/AR


is entitled to production of witnesses whose testimony “would be

relevant and necessary” to a matter in issue.    United States v.

Breeding, 44 M.J. 345, 350 (C.A.A.F. 1996).     “Relevant evidence

is necessary when it is not cumulative and when it would

contribute to the party’s presentation of the case in some

positive way on a matter in issue.”    R.C.M. 703(b)(1)

discussion.   Relevant evidence is any evidence that tends to

prove or disprove any disputed fact that is significant to

resolving the action.   Military Rule of Evidence (M.R.E.) 401.

A military judge’s decision to admit or exclude evidence is

reviewed for an abuse of discretion.   United States v. Tanksley,

54 M.J. 169, 175 (C.A.A.F. 2000), overruled on other grounds,

United States v. Inong, 58 M.J. 460, 464 (C.A.A.F. 2003).     We

will not overturn a military judge’s evidentiary decision unless

that decision was “arbitrary, fanciful, clearly unreasonable,”

or “clearly erroneous.”   United States v. Miller, 46 M.J. 63, 65

(C.A.A.F. 1997)(citations omitted).

     Admissibility issues are generally resolved through a

motion for appropriate relief.   The burden of persuasion on a

motion to admit evidence is on the moving party.    United States

v. Rodriguez, 60 M.J. 239, 246 (C.A.A.F. 2004); Browning, 54

M.J. at 9; R.C.M. 905(c)(2)(A); R.C.M. 906(b)(7).    If the

military judge excludes evidence, the burden is also on the




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United States v. Shelton, No. 03-0694/AR


proponent of the evidence to demonstrate that the military judge

abused his discretion.   Browning, 54 M.J. at 9.

1.   Ms. Werth

      Defense counsel proffered that Ms. Werth would offer

testimony in four areas.   First, she would testify to a phone

call Johnson made from Kuwait inquiring about the investigation

into Chafin’s whereabouts.    Second, she would testify that

Johnson was rude to Chafin’s father when the father came

inquiring about his son.   Third, she would testify that Johnson

told her that someone had stolen his wallet.   Lastly, she would

testify that Chafin told her that Johnson had lied to her about

going to Texas once.    The portion of the colloquy between the

military judge and defense counsel regarding the relevance of

the telephone call follows:

      MJ: So, Specialist Johnson called Miss Werth to ask
      about a friend of his, that friend being PFC Chafin,
      and you believe that that shows some sort of motive or
      something on the part of Specialist Johnson.

      DC:   A culpable mind, yes, sir.

      MJ:   How?

      DC: Because, again -- well, Miss Werth thought it was
      unusual that he would call her back for that purpose
      alone from Kuwait. . . .

      MJ:   Well, was it unusual for PFC Chafin to be missing
            for several months?

      DC:   Yes, sir.




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United States v. Shelton, No. 03-0694/AR


Emphasis added.   The defense argument was that only a guilty

party would make such inquiries from Kuwait.   Thus, according to

defense counsel, the call supported the defense theory that

Johnson rather than Appellant was involved in the murder.

     As for the relevance of the testimony about Johnson and

Chafin’s father, that colloquy went as follows:

     DC: Yes, sir, they were friends. If they were
     friends, you wouldn’t expect that friend to be rude
     and obnoxious or belligerent . . . when the father
     comes down trying to find his son.

     MJ:   So, what’s the relevance?

     DC: Simply that’s unusual behavior. Unusual behavior
     related to this case and trying to determine -- the
     whereabouts --

     MJ:   What’s [sic] it show?

     . . . .

     DC: Well, if you take the cumulative evidence and not
     each individual piece but the cumulative evidence of
     his behavior in this case, it suggests that he had
     something to do with this crime. . . .

Emphasis added.

     Next, defense counsel asserted that Ms. Werth would testify

that Johnson had once boasted that he was going to Texas to

settle a score and then disappeared.    She would then testify

that Chafin had told her that Johnson had lied and that he was

not in Texas at all but was instead in Colorado.   According to

counsel, this testimony would show a conflict between Johnson

and Chafin and thus a motive to kill.   However, defense counsel


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United States v. Shelton, No. 03-0694/AR


conceded that Ms. Werth never witnessed a dispute or argument

between Chafin and Johnson on this matter.   Counsel’s colloquy

with the military judge with respect to this testimony reveals

that the witness heard one thing from Johnson and another from

Chafin.   As a result, according to counsel, Ms. Werth would

testify that in her opinion Johnson had lied.   The military

judge found insufficient foundation for such an opinion.

     Finally, with respect to Ms. Werth’s expected testimony

regarding the stolen wallet, defense counsel prefaced his

argument with the assertion that the evidence would show that

after Chafin’s death a bus ticket with Johnson’s name on it was

found in Chafin’s room.   Counsel’s argument on this issue

proceeded as follows:

     DC: The one thing that Ms. Werth talks about or can
     talk about is the loss of -- I’m sorry; the theft of
     Specialist Johnson’s wallet, specifically that he had
     told her that his wallet had been stolen. She said
     that she observed that he did not have his wallet. If
     you take that, then, link that up to the bus ticket
     potentially that was found in PFC Chafin’s room after
     his murder and then you link that to the statements by
     Mrs. Seay, who claimed that she heard voices the night
     that PFC Chafin was allegedly at her house, someone
     made the remark, “Now we know who stole your ATM
     card,” well, the only evidence that’s -- the only
     evidence about the stolen ATM card potentially would
     be the loss of Johnson’s credit cards. He would be
     the natural person that that comment would be made to
     in this case.

     . . . .

     MJ: How does the missing wallet connect up with a bus
     ticket?


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United States v. Shelton, No. 03-0694/AR



     DC: Well, the wallet could have been used -- and this
     is what Johnson provides himself when he tries to
     provide the explanation when asked by CID, “Why does a
     bus ticket with your name wind up in PFC Chafin’s
     room?” And his answer is, “Well, my ID card and my
     dog tags were stolen,” and in fact the evidence
     suggests that it was -- his wallet was stolen, one
     conclusion possible, conclusion to that, is perhaps
     PFC Chafin had stolen his wallet.

     . . . .

     MJ: . . . I’m confused as to how the ATM card links
     up with Johnson’s wallet. Did Johnson say his ATM
     card was missing? Did Johnson even say he had an ATM
     card?

     DC: No, sir.    He said his wallet and his credit cards
     were missing.


     The apparent point of this confusing exchange was to show

that Chafin may have used Johnson’s stolen ID card to purchase

the bus ticket.   Since an ID card and an ATM card are things

likely to be in a wallet, by logical extension Chafin may have

stolen Johnson’s wallet.   Thus, according to counsel, the

statement purportedly overheard by Mrs. Seay could only have

been made to Johnson, placing him instead of Appellant at the

Seay residence that night.

     In my view Appellant failed to demonstrate the relevance of

this witness.   Ms. Werth’s proffered testimony may have been

useful to impeach Johnson (had Appellant chosen to put him on

the stand), but Appellant failed to demonstrate to the military

judge why the proffered testimony made it more or less likely


                                 9
United States v. Shelton, No. 03-0694/AR


that Johnson and not Appellant participated in Chafin’s murder.

And Appellant did not present any alternate evidence implicating

Johnson in the crime.   For example, Johnson was never connected

to the weapon involved.   Therefore, based on counsel’s

insufficient statements on the record in support of the claims

of relevance, I would find that the military judge did not abuse

his discretion and that Appellant’s Fifth or Sixth Amendment

rights were not violated with respect to this witness.

2.   Ms. Dominico

      Counsel proffered that Ms. Dominico would testify to a

statement allegedly made by Johnson in reference to Chafin to

the effect, “Personally, I think he’s dead.”   Defense counsel

argued relevance on the following basis:

      MJ: Okay. Did he say anything besides, “I personally
      think he’s dead[?”] Like, you know, “I know he’s
      dead,” “I know where the body is,” or “I know who did
      it,” or just “I think he’s dead[?”]

      DC: Just that he thinks he’s dead. He didn’t make
      any overtly incriminating statements, nor would you
      expect him to make those. But, again, those are
      unusual comments to make about someone.

      MJ: It’s [an] unusual comment when someone’s been
      missing for several weeks to say, “I think he’s
      dead[?”]

      DC:   Yes, sir.

Emphasis added.

      Like the military judge, I have difficulty discerning what

fact in issue this statement was intended to prove.   This


                                10
United States v. Shelton, No. 03-0694/AR


evidence falls short in showing relevance for the reasons stated

with respect to Ms. Werth’s proffered testimony.     Likewise, it

is not evident to me that the military judge erred in denying

production of this witness.

3.   Ms. King

      Defense counsel stated that Ms. King would testify that

Johnson was not at her apartment the night of Chafin’s

disappearance, contrary to an alibi initially provided by

Johnson to investigators.    According to the record, the

Government was unable to locate this witness with the address on

file, she had not testified at the Article 32, UCMJ,

investigation, and defense counsel had never spoken to her.     The

military judge expressed concern that defense counsel had failed

to provide an accurate address to enable the Government to find

her notwithstanding counsel’s response that his request for

investigative assistance had been denied by the convening

authority.   The military judge then indicated that without any

known address for the witness, the Government was not obligated

to try and track her down.

      With respect to this witness, the theory of relevance

apparently hinged on the fact that Johnson was considered, at

one time, a suspect in the case.      But, even if Ms. King’s

testimony were relevant, it remains unclear to me why the

witness was “necessary” within the meaning of R.C.M. 703.


                                 11
United States v. Shelton, No. 03-0694/AR


R.C.M. 703(f)(2) provides a remedy for unavailable evidence:

“[If] such evidence is of such central importance to an issue

that it is essential to a fair trial, and if there is no

adequate substitute, the military judge shall grant a

continuance or other relief . . . .”   Emphasis added.   Defense

counsel did not renew his request for investigative assistance

with the military judge, nor did he request a continuance.    The

assistant defense counsel in this case was present at the

Article 32 investigation and cross-examined two investigators

who testified that early in their investigation that Johnson had

become a key suspect because his alibi had not checked out.

And, if the object was to later impeach Johnson’s alibi, it is

not clear why counsel could not have offered the investigators

as adequate substitutes for the unavailable Ms. King.

     B.   CONSPIRACY TO COMMIT UNPREMEDITATED MURDER

     On Issue II, I part with the majority because I disagree

that the issue here is instructional error.   Based on the text

of Article 118(2) and its legislative history, I believe the

Congress intended to include an “intent to inflict great bodily

harm” as both a possible intent element of Article 118(2) as

well as an intent element that also appears under Article

128(b), UCMJ.   Although unusual in design, and complicated in

implementation -- as this case reflects -- I do not believe the

Congress was ultimately precluded from incorporating this


                                12
United States v. Shelton, No. 03-0694/AR


language in both Articles 118(2) and 128(b) in an effort to

capture different measures of intent in different legal

contexts.    Therefore, on this point, I would answer the

specified question in the affirmative.

     As a result, it is also necessary for me to address

Appellant’s primary argument that it is logically impossible for

the members to find that he had the necessary intent to

establish a conspiracy to commit murder as specified under

Article 118(2), sometimes described in case law as

“unpremeditated murder,” but at the same time, find Appellant

not guilty of premeditated murder.    Appellant’s argument is

viscerally appealing, however, based on the particular text and

legislative history of Article 118(2), I believe the intent

elements required to commit a violation of Article 118(1),

118(2), and a conspiracy to violate Article 118(2) are

different.   Therefore, it is unusual, but possible for members

to find an accused not guilty of premeditation, but guilty of a

conspiracy to violate Article 118(2).

                             Discussion

     The first two clauses of Article 118 define murder in the

following terms:

     Any [servicemember] who, without justification or excuse,
     unlawfully kills a human being, when he -- (1) has a
     premeditated design to kill; [or] (2) intends to kill or
     inflict great bodily harm . . . is guilty of murder.



                                 13
United States v. Shelton, No. 03-0694/AR


Manual for Courts-Martial, United States (2000 ed.)(MCM), pt.
IV, ¶ 43.a.

1. Parties’ Positions

     Appellant claims that it is legally impossible to form the

agreement necessary for a conspiracy to commit any form of

murder without also necessarily forming the premeditation

required of Article 118(1).   Conspiracy to commit unpremeditated

murder, he argues, is therefore a logical non sequitur that does

not state a valid offense under the UCMJ.1   Further, Appellant

argues that if the parties to the conspiracy agreed only to

commit great bodily harm to Chafin, then the offense amounts

only to conspiracy to commit an aggravated assault.    The fact

that a death eventually resulted from the conspiracy to commit

aggravated assault may be relevant to whether a person might

also be charged with murder, but the result alone does not

change the conspiracy into a conspiracy to commit murder.

     The Government argues that conspiracy to commit

unpremeditated murder is a valid offense under the UCMJ.

Specifically, the Government focuses on the phrase “intent to

inflict great bodily harm” as an available state of mind element

under Article 118(2) (the unpremeditated murder offense).    Thus,

the Government argues that the panel could have reasonably

determined that Appellant entered into an agreement with Seay to




                                14
United States v. Shelton, No. 03-0694/AR


inflict great bodily harm on Chafin.         Such an intent would

satisfy the intent element for the conspiracy offense without a

further need to determine that Appellant intended an

unpremeditated killing, and thus avoid the logical conundrums

identified by Appellant.2

2. The Jury Instructions and Findings

      The military judge instructed the members regarding

premeditated murder and the lesser included offense of

unpremeditated murder, noting that in order to find the

Appellant guilty they would have to find “that at the time of

the killing, the accused had the intent to kill or inflict great

bodily harm upon PFC Chafin.”        Shortly thereafter, and pursuant

to Appellant’s request, the military judge issued instructions

regarding conspiracy to commit murder and the following

instruction on the lesser included offense of conspiracy to

commit unpremeditated murder:

      In order to find the accused guilty of this lesser offense,
      you must be convinced by legal and competent evidence
      beyond reasonable doubt that: One, on or about 29 August
      1997 at or near Colorado Springs, Colorado, the accused
      entered into an agreement with Sergeant Bobby D. Seay II to
      commit unpremeditated murder, an offense under the [UCMJ];
      and
           Two, that while the agreement continued to exist, and
      while the accused remained a party to the agreement,

1
  Appellant cites several state court cases in support of his position.   See,
e.g., People v. Cortez, 960 P.2d 537, 542 (Cal. 1998).
2
  “If a party only has an intent to commit great bodily harm, no amount of
conspiring, planning, or contemplating can turn the crime into conspiracy to
commit first degree murder.” Brief on behalf of Appellee at 24.


                                     15
United States v. Shelton, No. 03-0694/AR


      Sergeant Shelton and Sergeant Seay, performed on [sic] or
      more of the over [sic] acts alleged, that is, Sergeant Seay
      and Sergeant Shelton drove PFC Jason Chafin to a remote
      location and Sergeant Seay attempted to strangle PFC
      Chafin, for the purpose of bringing about the object of the
      agreement.
           The elements of the offense of which the accused is
      charged with conspiracy to commit are the same as set forth
      in the instruction on the lesser included offense of
      unpremeditated murder in the specification of Charge III.
      Would anyone like me to re-read those elements and
      definitions to you?
           Apparently not.

The panel returned a finding of guilty to this lesser included

offense.    Because neither comment nor explanation is required of

the members when announcing their findings, it is not clear

whether the members found an “intent to kill” and/or an “intent

to inflict great bodily harm” as the determinative state of mind

for the conspiracy to commit unpremeditated murder.

3. Conflicting Analyses

      This Court has not yet construed the UCMJ in regard to

Appellant’s logic paradigm, but several state and federal courts

have addressed it in the context of their own murder and

conspiracy statutes.      See Mitchell v. State, 767 A.2d 844, 847-

55 (Md. 2001)(contrasting the various case law approaches).3

Several state courts have agreed with Appellant’s position.              Id.

In Cortez, 960 P.2d at 542-46, for example, the California


3
   This Court has confronted a somewhat analogous issue regarding the inchoate
crime of attempted murder. United States v. Roa, 12 M.J. 210 (C.M.A. 1982).
Neither party cited to or relied upon the case. In light of the distinctions
between the law of attempt and conspiracy, I do not regard Roa as controlling
in the present case.


                                     16
United States v. Shelton, No. 03-0694/AR


Supreme Court applied common law scienter analysis to decide

that conspiracy to commit murder must necessarily be conspiracy

to commit premeditated murder.   See also People v. Hammond, 466

N.W.2d 335, 336-37 (Mich. Ct. App. 1991).   In contrast, the

Fifth and Ninth Circuits have construed the federal civilian

murder statute to permit conviction of conspiracy to commit

second degree, or unpremeditated murder.    United States v.

Croft, 124 F.3d 1109, 1122-23 (9th Cir. 1997); United States v.

Chagra, 807 F.2d 398, 400-02 (5th Cir. 1986).

      These competing lines of case law, however, are of limited

precedential value given the disparity between the statutes

construed by those cases and the language of Articles 118 and

81, UCMJ.   At this point it is helpful to turn to the text of

the UCMJ and its associated legislative history to determine

whether conspiracy to commit an unpremeditated murder is a valid

offense.

4.   Statutory Analysis

      Under Article 81, a conspiracy is formed when any

servicemember “conspires with any other person to commit an

offense under [the UCMJ] . . . ” and “one or more of the

conspirators does an act to effect the object of the

conspiracy.”   The two elements for the crime of conspiracy under

Article 81 are:   (1) that the accused entered into an agreement

with one or more persons to commit an offense under the [UCMJ];


                                 17
United States v. Shelton, No. 03-0694/AR


and (2) that while the agreement continued to exist, and while

the accused remained a party to the agreement, the accused or at

least one of the co-conspirators performed an overt act for the

purpose of bringing about the object of the conspiracy.    MCM,

pt. IV, ¶ 5.b.

     In the present case, I see no issue with respect to the

second element.   If there were a conspiracy between Seay and

Appellant to murder Chafin, I am satisfied that Appellant’s

driving into a remote area and Seay’s attempted choking of

Chafin, as specified in the charges against Appellant, were

overt acts performed for the purpose of bringing about the

object of that conspiracy.   The parties have not argued

otherwise.   Consequently, my analysis focuses on the first

element.   Specifically, the issue is whether Appellant could

enter into an agreement with Seay to murder Chafin in violation

of Article 118(2), without necessarily engaging in a degree of

premeditation that also violated Article 118(1).

     Article 118(1) requires that the accused have a

premeditated design to kill.   Article 118(2) requires that the

accused have the intent to kill or inflict great bodily harm

upon a person.    The explanation of the premeditation element of

Article 118(1) states that “[p]remeditated murder is murder

committed after the formation of a specific intent to kill

someone and consideration of the act intended.”    MCM, pt. IV, ¶


                                 18
United States v. Shelton, No. 03-0694/AR


43.c.(2)(a).    By comparison, the explanation in Article 118(2)

notes that “[a]n unlawful killing without premeditation is also

murder when the accused had either an intent to kill or inflict

great bodily harm.”    MCM, pt. IV, ¶ 43.c.(3)(a).   Although not

explicitly stated in this explanatory text, Article 118(2) is a

specific intent crime, distinguished from the Article 118(1)

offense principally by the absence of a premeditated design to

kill.    See United States v. Gray, 51 M.J. 1, 56 (C.A.A.F. 1999);

United States v. Loving, 41 M.J. 213, 279-80 (C.A.A.F. 1994);

United States v. Morgan, 37 M.J. 407, 411 (C.M.A. 1993); United

States v. Vaughn, 23 C.M.A. 343, 345, 49 C.M.R. 747, 748 (1975).

In other words, the true line of separation between murder under

Article 118(2) and premeditated murder under Article 118(1) is

in an increment of planning and consideration that an accused

directs towards his act of killing under Article 118(1).

        While this makes the line between Article 118(1) and

Article 118(2) an imprecise one, as this case well reflects, it

is apparent from the legislative history that the drafters of

Article 118 intended to create two distinct crimes where the

accused possessed a design to effect death:    one preceded by

premeditation and one not.    When articulating the distinction

between what would become Article 118(1) and Article 118(2), one

of the UCMJ’s principal drafters, Mr. Felix Larkin, explained:




                                  19
United States v. Shelton, No. 03-0694/AR


     The first is where you have design to kill and it is
     preceded by premeditation and deliberation, which
     classically is common law murder in the first degree. Then
     you have the kind where you have the design to effect death
     and it is not preceded by premeditation and deliberation,
     which is usually murder in the second degree.

Uniform Code of Military Justice:    Hearings on H.R. 2498 Before

a Subcommittee of the House Committee on Armed Services, 81st

Cong. 1246 (1949), reprinted in Index and Legislative History,

Uniform Code of Military Justice (1950) (not separately

paginated) [hereinafter Hearings].     A short time later, Mr.

Larkin responded to a question regarding the relationship

between a design to effect death and an intent to kill, stating

“[y]ou may have a design to effect death which is preceded by

premeditation and deliberation, or not.    It might be on the spur

of the moment, a conscious, specific design to effect the death

without previous premeditation.”     Id. at 1247.   A member of the

subcommittee then summarized: “What do you think about this Mr.

Larkin:   Murder in the first degree is the killing of a human

being with pre-meditation, deliberation, and malice; murder in

the second degree is the killing of a human being with malice

but without premeditation and deliberation . . . .”     Id.   As

this text again makes clear, the distinction between Article

118(1) and Article 118(2) hinges on premeditation (and

deliberation).   Thus, it is possible to have a prior design to

effect death that is not accompanied by the consideration



                                20
United States v. Shelton, No. 03-0694/AR


required of premeditated murder.          Indeed, this is the essence of

Article 118(2) -- “intent to kill” murder.

       Returning to Appellant’s argument, he contends that

premeditation is a necessary feature of a conspiratorial

agreement:    that it would be impossible for Appellant to agree

with Seay to kill Chafin without necessarily premeditating that

act.   While this argument has some rhetorical appeal, the MCM’s

explanation of the conspiratorial “agreement” in Article 81

states that the agreement:

       need not be in any particular form or manifested in any
       formal words. It is sufficient if the minds of the parties
       arrive at a common understanding to accomplish the object
       of the conspiracy . . . . The agreement need not state the
       means by which the conspiracy is to be accomplished or what
       part each conspirator is to play.

MCM, pt. IV, ¶ 5.c.(2).       I do not find in either this text or

the common law of conspiracy a requirement for an increment of

consideration and planning amounting to premeditated design,

although a factfinder could find such an agreement indicative of

premeditated design.      See, e.g., United States v. Jackson, 20

M.J. 68, 69-70 (C.M.A. 1985) (finding conspiratorial agreement

to commit larceny where the accused spontaneously assisted

another in stealing a television).4



4
  Similarly, I disagree with the assertion that a murder conspirator must have
taken “deliberate steps” to bring about the killing. All that conspiracy
requires is the agreement to commit a criminal offense and an overt act
committed for the purpose of bringing about the object of the conspiracy.
The overt act need not be “a deliberate step.” It may well be an impulsive


                                     21
United States v. Shelton, No. 03-0694/AR


      While members may find that evidence demonstrating an

agreement to murder also leads to a conclusion that there was

premeditation of the intended act, such an identical finding is

not legally or logically compelled.         Thus, I conclude that,

contrary to Appellant’s contentions, it is legally possible for

a perpetrator to lack the premeditated design to kill and

nonetheless have the specific intent to enter into a conspiracy

to commit unpremeditated murder in violation of Article 118(2).5

Accord United States v. Chagra, 807 F.2d 398, 401 (5th Cir.

1986)(“[T]he quick answer to defendant’s argument is that

without proving premeditation the government can prove intent to

kill with malice aforethought.        Under the government’s theory it

was entitled to prove that at the moment of conspiratorial

agreement, [the defendant’s] intent to kill . . . was impulsive

and with malice aforethought.”); United States v. Croft, 124

F.3d 1109, 1122-23 (9th Cir. 1997)(“[I]t is logically possible

to conspire to commit second degree murder.”).6


action, like Seay choking Chafin with a length of string that Appellant kept
in his truck.
5
  In United States v. Kinder, 14 C.M.R. 742, 778 (A.F.B.R. 1954), an Air Force
Board of Review wrote, “[t]he essential element of conspiracy ‘of agreement’
between parties to commit an offense naturally reflects premeditation where
the object of the conspiracy is murder. In a charge of conspiracy to commit
murder the element of ‘premeditation’ is a feature of the ‘agreement’ and not
an object of the ‘agreement.’” The board provided no citation or further
analysis for this conclusory statement. My analysis in the present case
reaches a contrary conclusion for the reasons stated.
6
  Even if one were to agree with Appellant’s argument, verdict inconsistency
is ordinarily not sufficient grounds for reversal. E.g., United States v.
Powell, 469 U.S. 57, 66-69 (1984); Dunn v. United States, 284 U.S. 390, 393


                                     22
United States v. Shelton, No. 03-0694/AR


5. Alternative Intents

      Turning to Appellant’s next argument, the alternative

intent formulation of Article 118(2)(“intent to kill or inflict

great bodily harm”) raises the possibility that the members may

have found an agreement between Seay and Appellant only to

inflict great bodily harm on Chafin.         Appellant asserts that an

agreement to inflict great bodily harm, without an explicit

agreement to kill, will not support Appellant’s conviction for

conspiracy to commit unpremeditated murder, but only conspiracy

to commit an aggravated assault.

      In Yates v. United States, the Supreme Court stated that a

verdict must be “set aside in cases where the verdict is

supportable on one [legal] ground, but not on another, and it is

impossible to tell which ground the jury selected.”            317 U.S.


(1932). In Dunn, for example, the Supreme Court affirmed the accused’s
conviction for maintaining a nuisance by selling liquor despite the fact that
the jury had acquitted the accused of the underlying charges of possessing
and selling liquor. Writing for the Court, Justice Holmes stated:

      The most that can be said in such cases is that the verdict shows that
      either in the acquittal or the conviction the jury did not speak their
      real conclusions, but that does not show that they were not convinced
      of the defendant's guilt. We interpret the acquittal as no more than
      their assumption of a power which they had no right to exercise, but to
      which they were disposed through lenity.

284 U.S. at 393. Similarly, in the present case, even if one were to
determine that the panel’s conclusion regarding Appellant’s state of mind was
logically inconsistent with a finding of guilty of conspiracy to commit
unpremeditated murder, there would be insufficient basis to reverse the
panel’s substantive findings of Appellant’s guilt. Cf. United States v.
Lyon, 15 C.M.A. 307, 313, 35 C.M.R. 279, 285 (1965)(noting that an
inconsistent verdict is not usually a cause for relief because the court-
martial may merely have given the accused “a break,” but reversing the
appellant’s conviction on other grounds).



                                     23
United States v. Shelton, No. 03-0694/AR


298, 312 (1957), overruled on other grounds by Burks v. United

States, 437 U.S. 1, 18 (1978); see also Roa, 12 M.J. at 212-13

(reversing an attempted murder conviction where the factfinder

possibly relied on a legally flawed theory of intent).               This

principle was distinguished by the Court in Griffin v. United

States, 502 U.S. 46, 51-56 (1991).              Griffin ultimately

recognized, however, that the Yates principle continues to be

good law:      where one of the possible bases of a general verdict

is legally inadequate (as opposed to factually inadequate), that

verdict must be reversed.         Id. at 55-60.       Because the present

panel’s finding was general in nature, and did not specify which

of the two states of mind in Article 118(2) Appellant’s

conviction was predicated upon, it must be clear that Appellant

could be liable for a conspiracy to violate Article 118(2)

whether he had an unpremeditated “intent to kill” or an “intent

to inflict great bodily harm.”7

        The drafters of Article 118(2) clearly intended that either

an “intent to kill” or an “intent to inflict great bodily harm”

would suffice to establish the state of mind required by Article

118(2).8     The current manifestation of Article 118 succeeded

Article of War 92, reprinted in MCM, U.S. Army (1928 ed.) at


7
 If I were to reject the Yates principle, I would sustain Appellant’s
conviction on the basis of the foregoing “intent to kill” analysis alone.
8
    See discussion of drafters’ intent supra.



                                        24
United States v. Shelton, No. 03-0694/AR


223.      United States v. Valdez, 40 M.J. 491, 495 (C.M.A. 1994).

The 1928 MCM defined murder in Article of War 92 as “the

unlawful killing of a human being with malice aforethought.”9

While the drafters of the modern Article 118 dropped the textual

reference to malice aforethought, opting instead for the intent

terminology of the Model Penal Code, I am persuaded by reference

to the legislative history that they intended continuity with

common law understandings of the murder offense.               The drafters’

commentary to Article 118(2) notes that “intent to inflict great

bodily harm has been held to satisfy the ‘malice aforethought’

requirement.”        Hearings at 1231.       Moreover, the Manual

discussion states that, “It may be inferred that a person

intends the natural and probable consequences of an act

purposely done.”        MCM, pt. IV, ¶ 43.c.(3)(a).

         I see no reason why a hypothetical accused could not enter

into an agreement to inflict great bodily harm against a victim

in a manner which naturally and probably will result in the

victim’s death.        Such a hypothetical conspiracy could be formed


9
    At common law, all murder was distinguished by malice aforethought:

         The malice which distinguishes the crime of murder must be malice
         aforethought . . . The legal meaning of malice aforethought, in cases
         of homicide, is not confined to homicide committed in cold blood with
         settled design and premeditation, but extends to all cases of homicide,
         however sudden the occasion, where the act is done with such cruel
         circumstances as are ordinary symptoms of a wicked, depraved, and
         malignant spirit.

1 Oscar Leroy Warren & Basil Michael Bilas, Warren on Homicide § 66 at 273-74
(perm. ed. 1938).


                                        25
United States v. Shelton, No. 03-0694/AR


without the necessity of forming an express intent to kill.

Whether such a hypothetical “intent to inflict great bodily

harm” conspiracy would ultimately support a conviction for

conspiracy to commit unpremeditated murder, or only an

aggravated assault conspiracy may ultimately present a question

of fact for a finder of fact.

     In the present case, the record indicates that Seay

inferred that the Appellant wanted to harm Chafin and that

“something was gonna [sic] happen” based upon Appellant’s

demeanor towards Chafin early on the evening of the victim’s

death.    Upon leaving Seay’s apartment with Chafin, Appellant

instructed Seay to get in the back of the truck.   As they pulled

out of the parking lot, Appellant gave Seay a length of string

and directed him to “choke [Chafin] ‘till [sic] he passed out.”

After Appellant’s third directive to choke Chafin, Seay

complied, thereby performing an overt act potentially in

furtherance of an agreement to kill or inflict great bodily harm

to Chafin.   I conclude that on these facts, the panel could have

found beyond a reasonable doubt that Appellant entered into a

conspiratorial agreement with Seay to kill or inflict great

bodily harm on Chafin without premeditation and deliberation,

and that the subsequent attempt to choke Chafin amounted to an

overt act performed for the purpose of bringing about that

murder.


                                 26
United States v. Shelton, No. 03-0694/AR


     Accordingly, I would affirm the decision of the United

States Army Court of Criminal Appeals.




                               27
