               UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                           UNITED STATES

                                                     v.

                          Senior Airman CHARLES A. WILSON, III
                                    United States Air Force

                                        Misc. Dkt. No 2015-02

                                               7 May 2015


         Appellate Counsel for the Petitioner: Lieutenant Colonel David J.R. Frakt

         Appellate Counsel for the United States: Captain Thomas J. Alford and
         Gerald R. Bruce, Esquire.

                                                  Before

                            MITCHELL, WEBER, and CONTOVEROS
                                  Appellate Military Judges

                                     OPINION OF THE COURT

          This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
                              under AFCCA Rule of Practice and Procedure 18.4.



       The petitioner filed a Petition for Extraordinary Relief in the Nature of a Writ of
Prohibition, requesting that this court “order the dismissal of Additional Charge I and its
Specification (or direct the trial judge to grant the Defense Motion to Dismiss Additional
Charge I).” We deny the petition.

                                               Background

       The petitioner has been charged with multiple offenses, including the premeditated
murder of a pregnant woman and intentionally causing the death of her unborn child, in
violation of Articles 118 and 119a, UCMJ, 10 U.S.C. §§ 918, 919a. The original charges
were preferred on 31 December 2013.

       The government informed the petitioner and his counsel on 13 February 2014 that
it intended to ask the Article 32, UCMJ, 10 U.S.C. § 832, investigating officer to:
(1) investigate uncharged misconduct relating to the petitioner’s alleged commission of a
2011 arson which resulted in the death of an acquaintance of the petitioner,
(2) investigate whether certain Rule for Courts-Martial (R.C.M.) 1004(c) aggravating
factors were present, and (3) “consider the propriety of recommending to the
General Court-Martial Convening Authority that the case be referred capital” due to the
existence of those aggravating factors.

       On 20 February 2014, the petitioner filed a Petition for Extraordinary Relief with
this court, which argued that the convening authority’s denial of the defense request for a
mitigation specialist prior to the Article 32, UCMJ, investigation unduly prejudiced the
petitioner and deprived him of his right to present mitigating evidence at that
investigation for the consideration of the convening authority, as he made his decision on
whether to refer the case capital. In its answer to our show cause order, the government
argued this court has no jurisdiction over the matter because no court-martial has been
convened and that, even if we have jurisdiction, we should deny the writ because the
petitioner is “not clearly and indisputably entitled to a government-funded and
government-appointed mitigation specialist prior to or at” an Article 32, UCMJ,
investigation. We concluded we had jurisdiction over the matter and denied the writ on
its merits.

        Additional Charge I and its Specification were preferred on 30 April 2014 and
referred on 9 October 2014. Additional Charge I and its Specification allege that the
petitioner “did, at or near Warner Robins, Georgia, on or about 2 October 2011, while
perpetrating aggravated arson, murder Demetrius D. Hardy by means of causing him to
set a fire during which he was fatally burned.” Five additional charges and specifications
were referred to the same court-martial as the original charges and were to be tried as a
capital case.

       At court, the petitioner filed a motion to dismiss Additional Charge I for failure to
state an offense. In a written ruling issued on 25 March 2015, the trial judge denied the
motion finding that the specification alleges all the elements for felony murder. The
petitioner now seeks a writ of prohibition to prevent the government from continuing to
prosecute this offense on what he claims is a failed theory of liability.

                                        Discussion

        The All Writs Act, 28 U.S.C. § 1651(a), authorizes “all courts established by Act
of Congress [to] issue all writs necessary or appropriate in aid of their respective
jurisdictions and agreeable to the usages and principles of law.” This court is among the
courts authorized under the All Writs Act to issue “all writs necessary or appropriate in
aid of their respective jurisdictions.” 28 U.S.C. § 1651(a); see LRM v. Kastenberg,
72 M.J. 364, 367 (C.A.A.F. 2013).

       A writ of prohibition is the process by which a superior court prevents an inferior

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court from exceeding its jurisdiction; it prevents the usurpation of judicial power and is
used to confine courts to the proper exercise of their power and authority. United States
v. Gross, 73 M.J. 864, 866–67 (Army Ct. Crim. App. 2014). Its counterpart is the writ of
mandamus, which is used, inter alia, “‘to compel [officers and commanders] to exercise
[their] authority when it is [their] duty to do so.’” Dew v. United States, 48 M.J. 639, 648
(Army Ct. Crim. App. 1998) (quoting Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 26
(1943)). We use the same test for writs of mandamus and prohibition. Gross, 73 M.J. at
866.

        The Supreme Court has held that three conditions must be met before a court may
provide extraordinary relief in the form of a writ of extraordinary relief: (1) the party
seeking the writ must have “no other adequate means to attain the relief”; (2) the party
seeking the relief must show that the “right to issuance of the relief is clear and
indisputable”; and (3) “even if the first two prerequisites have been met, the issuing court,
in the exercise of its discretion, must be satisfied that the writ is appropriate under the
circumstances.” Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 380–81 (2004)
(citations and internal quotation marks omitted). A writ of mandamus and a writ of
prohibition are drastic instruments to be used only in truly extraordinary circumstances.
Gross, 73 M.J. at 867.

        We find that our consideration of this petition is properly a matter in aid of our
jurisdiction. Having done so, however, we find the petitioner is not entitled to the relief
requested. We find the petitioner fails on each of the three prongs.

       The petitioner asserts that the prosecution’s theory of his liability under
Article 118(4), UCMJ, is so fundamentally flawed that any conviction would be
meritless. The petitioner argues that the prosecution’s proffer of facts is essentially that
the petitioner and Mr. Hardy entered into a conspiracy to burn down the petitioner’s
rented home in order to collect insurance money. The petitioner was not present when
Mr. Hardy, in the process of burning down the house, accidentally inflicted fatal injuries
to himself.

       1. Right of Issuance is Clear and Indisputable

       The petitioner’s argument is that he cannot be held criminally responsible under
the felony murder statute when he was not physically present at the time of the offense
and his alleged co-conspirator negligently caused his own fatal injuries. The petitioner
acknowledges that this appears to be a case of first impression in the military justice
system.

       A California Court of Appeals examined a case in which the “question presented
[was] whether a person who aids, counsels or procures another to maliciously set fire to a
building, but who is not physically present at the scene of the arson, is guilty of murder
when his confederate negligently or accidentally burns himself to death while setting the

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fire.” Woodruff v. Super. Ct. of Los Angeles Cnty., 237 Cal. App. 2d 749, 750 (Cal. Dist.
Ct. App. 1965). That court concluded that California Supreme Court precedent prevented
that accused from being tried in state court for felony murder and issued a writ of
prohibition. Id. A later ruling reinforced that precedent: “It is settled California law that
where, as here, an accomplice in a conspiracy to commit arson for the purpose of
defrauding an insurer accidentally burns himself to death, his co-conspirator may not be
charged with murder under the felony-murder rule.” People v. Earnest, 46 Cal. App. 3d
792, 794 (Cal. Dist. App. 1975). A Missouri Appeals Court reached a similar conclusion:

                     In arson cases, the majority of jurisdictions have
              refused to invoke the felony-murder doctrine where the death
              was that of defendant’s accomplice (himself the arsonist) and
              the defendant was not present at the scene of the arson.
              People v. LaBarbera, 159 Misc. 177, 287 N.Y.S. 257 (1936);
              Woodruff v. Superior Court of County of Los Angeles, 237
              Cal. App. 2d 749, 47 Cal.Rptr. 291 (1965); People v. Earnest,
              46 Cal.App.3d 792, 120 Cal.Rptr. 485 (1975); People v.
              Ferlin, 203 Cal. 587, 265 P. 230 (1928); State v. Williams,
              254 So.2d 548 (Fla.App. 1971). Contrary results have been
              reached where the defendant was present at the scene of the
              fire which resulted in the death of his accomplice.
              Commonwealth v. Bolish, 391 Pa. 550, 138 A.2d 447 (1958).
              State v. Sotteriou, 132 N.J.Super. 403, 334 A.2d 47 (1975).

State v. Light, 577 S.W.2d 134, 137 (Mo. Ct. App. 1979).

        However, not all states have foreclosed felony murder convictions when an
accused is not present. The courts in Oklahoma have interpreted that state’s statute to
employ a “proximate cause” theory of felony murders which will “hold a defendant
criminally responsible for the death of a co-felon when that occurs during a felony so
inherently dangerous as to create a foreseeable risk of death.” Kinchion v. State,
81 P.3d 681, 684 (Okla. Crim. App. 2003). Pursuant to the Oklahoma statute, a
conviction was upheld after the death of a minor from alcohol poisoning, when the
defendant provided alcohol to his underage sister, knowing that later she would share it
with her underage overnight guests. Malaske v. State, 89 P.3d 1116 (Okla. Crim. App.
2004). A habeas petition in federal court was denied for another Oklahoma defendant
who was convicted of felony murder when a police officer who was pursuing him died in
a traffic accident even though the defendant was not in the immediate area at the time of
the accident and did not learn about the death until later that day. Grider v. Taylor, 2012
U.S. Dist. LEXIS 13170, 2012 WL 369899 (W.D. Okla. 2012).

       We conclude that certain courts have interpreted their state statutes on felony
murder to support the petitioner and at least one state, Oklahoma, has not. “However, we
also recognize that the military community is unique in many respects and that its system

                                             4
of justice must be responsive to needs not present in the civil society.” Murray v.
Haldeman, 16 M.J. 74, 79 (C.M.A. 1983). Given that this is a case of first impression in
the military justice system for an interpretation of Article 118(4), UCMJ, when the
accused is not physically present during the commission of the felony, we conclude that
the right to have the writ issued is neither clear nor indisputable.

       2. No Other Adequate Means to Attain Relief

      The petitioner asserts that the normal appellate process will not provide
meaningful relief. We disagree.

        No evidence has been presented as of yet before a factfinder. After the
prosecution has rested, the petitioner may file a motion for a finding of not guilty if the
evidence is insufficient. See R.C.M. 917. Furthermore, the petitioner may challenge the
validity of any conviction for a violation of Article 118(4), UCMJ, to this court through
the appellate review process under Article 66, UCMJ, 10 U.S.C. § 866. We agree with
the petitioner that cases which result in a sentence to death have a longer appellate review
process. See, e.g., United States v. Witt, 73 M.J. 738 (A.F. Ct. Crim. App. 2014)
(upholding a death penalty adjudged in 2005). However, this court has previously
rejected the appellant’s argument that confinement on death row and the resultant
restrictions on his liberty convert any delay during the appellate process into a per se
constitutional violation. Id. at 812 (rejecting the argument that the mental anxiety felt
during the delay in appellate review, the anticipation of execution, and inability to avoid
appellate review of his death sentence served to increase the appellant’s sentence to a
degree that is unconstitutional).

       3. Appropriate under the Circumstances

        A writ of mandamus is a drastic remedy that should only be used in extraordinary
situations. United States v. Labella, 15 M.J. 228, 229 (C.M.A. 1983). In order to warrant
reversal by an appellate court through a writ, the trial judge’s decision must amount to
more than gross error; it must be a judicial usurpation of power or represent an erroneous
practice likely to recur. Murray v. Haldeman, 16 M.J. 74, 76 (C.M.A. 1983). We find
neither a judicial usurpation of power nor an error that is likely to recur. We conclude
that a writ would not be appropriate in this case at this time for this issue. We reach the
same conclusion as one of our superior court’s judges in denying a writ petition about a
military judge’s pretrial rulings:

              [S]erious questions may be raised and should be resolved at
              the trial level concerning the sufficiency of the Government’s
              proof. The trial court’s resolution of these questions may
              render the substantive issues raised in this petition moot or, at
              the very least, provide this Court with an adequate record to
              decide these issues.

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Id. at 83 (Fletcher, J., concurring) (citations omitted).

        In short, extraordinary relief at this point is neither necessary nor appropriate.
Having considered the matters submitted, we find the petitioner fails to demonstrate that
extraordinary relief is warranted such that we should grant a writ of prohibition or
mandamus to order the dismissal of, or prohibit the presentation of, evidence on
Additional Charge I and its Specification. This does not foreclose the petitioner from
later raising these issues again on appeal through Article 66, UCMJ.

       Accordingly, it is by the court on this 7th day of May, 2015,

ORDERED:

        The Petition for Extraordinary Relief is DENIED without prejudice to Petitioner’s
right to raise these matters in the normal course of review under the UCMJ.




              FOR THE COURT



              LEAH M. CALAHAN
              Deputy Clerk of the Court




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