

   
   
   
   U.S. v. Duncan



UNITED STATES, Appellee
v.
Timothy S. DUNCAN, Private First Class
U.S. Marine Corps, Appellant
 
No. 99-0109
Crim. App. No. 96-00701
 
United States Court of Appeals for the Armed
Forces
Argued December 8, 1999
Decided on August 31, 2000
SULLIVAN, J., delivered the opinion of the
Court, in which CRAWFORD, C.J., GIERKE, and EFFRON, JJ., and COX, S.J.,
joined.
Counsel
For Appellant: Lieutenant Commander Michael
J. Wentworth, JAGC, USN (argued).
For Appellee: Lieutenant Timothy E. Curley,
JAGC, USNR (argued); Colonel Kevin M. Sandkuhler, USMC, and Commander
Eugene E. Irwin, JAGC, USN (on brief); Lieutenant Commander JoAnn
W. Melesky, JAGC, USN.
Military Judge: Theodore G. Hess
 
 


This opinion is subject
to editorial correction before publication.


Judge SULLIVAN delivered the opinion of the
Court.
Appellant was tried on various dates between
November 4, 1994, and May 8, 1995, by a general court-martial composed
of officer members at Camp Pendleton, California. Contrary to his pleas,
he was found guilty of 3 specifications of attempted murder; attempted
robbery; attempted forcible sodomy; 3 specifications each of conspiracy
and of rape; larceny; 6 specifications of forcible sodomy; 2 specifications
of kidnapping; carrying a concealed weapon; and communicating a threat,
in violation of Articles 80, 81, 120, 121, 125, and 134, Uniform Code of
Military Justice, 10 USC §§ 880, 881, 920, 921, 925, and 934,
respectively. He was sentenced to a dishonorable discharge, confinement
for life, total forfeitures, a fine of $200, and reduction to E-1. On March
29, 1996, the convening authority approved the sentence as adjudged. The
United States Navy-Marine Corps Court of Criminal Appeals affirmed the
findings and sentence as approved on review below. United States v.
Duncan, 48 MJ 797 (N.M. Ct. Crim. App. 1998). On September 8, 1998,
the Navy-Marine Corps Court of Criminal Appeals denied appellants motion
for reconsideration.
On August 17, 1999, this Court granted review
on the following issues:

I


WHETHER THE LOWER COURT ERRED IN AFFIRMING
THE MILITARY JUDGES RULING NOT TO SEVER THE CHARGES CONCERNING MS. [DR]
AND MS. [AM].


II


WHETHER THE LOWER COURT ERRED IN AFFIRMING
THE SENTENCE WHERE THE MILITARY JUDGE ABUSED HIS DISCRETION BY INSTRUCTING
THE MEMBERS ON THE AVAILABILITY OF PAROLE AND REHABILITATION PROGRAMS OVER
DEFENSE OBJECTION.


We hold that the military judge did not abuse
his discretion in refusing to sever the charges in this case (seeUnited
States v. Southworth, 50 MJ 74 (1999)) or in giving his
sentencing instructions on the possibility of parole and the existence
of rehabilitation programs (see generally United States
v. Greaves, 46 MJ 133 (1997)).
Private First Class (PFC) Duncan was charged
with a series of brutal crimes against Ms. DR, including rape, forcible
sodomy, and attempted murder, which were alleged to have occurred on June
17, 1994. He was also charged with a series of brutal crimes against Ms.
AM, which again included rape, forcible sodomy, and attempted murder, on
July 24, 1994. Finally, he was charged with several additional offenses
against Ms. AMs male companion and RS, a bystander.
The Court of Criminal Appeals stated:



The evidence establishes that on 17 June
1994, the appellant and PFC Glenis Gambles rented a small, white, two-door
Mazda 323. With Gambles driving, they picked up [Ms. DR] who was hitchhiking
in Oceanside. She immediately announced to them that she was not a prostitute.
She had become concerned upon realizing that the driver of the car was
a Black man, since she had experienced some troubles before with Black
men. After they refused to stop and let her out where she asked, she became
panicked and begged them to let her out. She was being told that they were
going to kill her. She tried to kick out the window of the back seat where
she was riding. Eventually, the appellant and Gambles stopped in a remote
area. Both the appellant and Gambles struck [Ms. DR] several times with
their fists and kicked her. She was forced to remove her clothes, except
for her underpants. The appellant forced her to orally copulate him while
simultaneously Gambles raped her from the rear and attempted to anally
sodomize her, after ripping off her underpants. After Gambles got menstrual
fluid on his clothing, he became enraged, pulled her from the car and beat
her. Gambles then forced her back into the car, drove to another area,
parked and beat her some more. She went limp and "played dead." They got
into the car and started as if they were driving away, then turned and
drove toward where she was lying on the ground. She jumped up and ran away.
All of her possessions that she was carrying were taken away in the car.
The appellant later gave her pager to his aunt and asked her to change
the number. The appellant also bragged to some of his fellow Marines about
having robbed and raped a girl whom he and Gambles had picked up.
The evening of 24 July 1994, the appellant,
PFC Miller, and PFC Gambles agreed to go out and rob someone of their money.
They set out on this expedition with Miller driving his pickup truck. After
driving around, they spotted two females at a phone booth and approached
them to rob them, but the females got into a car and left before the robbery
could be completed. Apparently frustrated, the trio drove to Buccaneer
Beach in Oceanside. There [Ms. AM] and her friend, Jordan McLean, were
sitting on the beach. Richard Schnittger and his eight months-pregnant
wife were sitting in a car nearby, but not close enough for Schnittger
to recognize [Ms. AM] whose family hed known for 8 years. The appellant
and Gambles walked past [Ms. AM] and McLean with the appellant carrying
a 40-ounce bottle of St. Ides beer. They turned and approached the couple
and the appellant struck McLean on the head with the bottle with sufficient
force to break it. While the appellant beat up McLean, Gambles forced [Ms.
AM] along the beach and forced her to strip off her clothing, threatening
her with the .380 Colt handgun which he had thoughtfully brought along.
Schnittger saw the appellant beating McLean and got out of his car to try
to intervene. Gambles, who was dragging a naked [Ms. AM] along the beach,
saw him approaching and fired the gun in his direction, motivating Schnittger
to return to his car and depart the area. After patting down McLeans pockets,
the appellant joined Gambles and struck [Ms. AM] with his fist. He then
forced [Ms. AM] to orally copulate him while Gambles raped her from the
rear. They then forced [Ms. AM] into Millers truck and drove her to another
area, beating, raping and sodomizing her repeatedly along the way. They
told her that they were going to kill her. They parked in a dark place,
forced [Ms. AM] out of the truck, and repeatedly raped and sodomized her.
After they completed their sexual degradation of [Ms. AM], the appellant
lined her up and kicked her off a cliff.
About 5 days later the appellant learned that
Miller was an unauthorized absentee. The appellant told Corporal Swenson
that Miller had been messed up by them having hit a guy over the head with
a bottle and raped a girl the previous week. He said that if Miller went
to the police he would kill him.



48 MJ at 804-05.

___ ___ ___
SEVERANCE
The first issue we will address is whether
the military judge erred in refusing to sever the trial of the offenses
concerning Ms. AM from those concerning Ms. DR. Appellant notes that severance
is required under RCM 906(b)(10), Manual for Courts-Martial, United States
(1994 ed.), to prevent "manifest injustice" and, citing the decision of
this Court in United States v. Southworth, supra at 76, he
asserts that a manifest injustice occurred in his case. He argues that
evidence of the offenses against Ms. AM was not admissible to show his
guilt of the offenses against Ms. DR; the military judges limiting instructions
and other bifurcation measures were ineffective; and impermissible crossover
was a real possibility in his case. He also argues that refusal to sever
these offenses violated his right against self-incrimination. We disagree.
Our starting point in resolving this case is
recognition of the fact that joinder of offenses at a court-martial is
more permissive than joinder in federal district courts. United
States v. Southworth, supra at 76; see RCM 601(e)(2)
("two or more offenses . . . . may be referred to the same court-martial
for trial, whether serious or minor offenses or both, regardless whether
related"). Cf. Fed.R.Crim.P. 8 ("Two or more offenses may be charged
in the same indictment . . . . if the offenses charged, whether felonies
or misdemeanors or both, are of the same or similar character or are based
on the same act or transaction or on two or more acts or transactions connected
together or constituting parts of a common scheme or plan."). See
generally United States v. Keith, 1 USCMA 442, 448, 4 CMR
34 (1952). However, in view of "the same or similar character" of the charged
offenses in this case, there was no joinder problem under either rule.
See
United States v. Coleman, 22 F.3d 126, 131-134 (7th Cir.
1994); United States v. Alexander, 135 F.3d 470, 475-76 (7th
Cir.), cert. denied, 525 U.S. 855 (1998).
We also note that a military judge, like a
federal district judge, has power to sever the trial of offenses in certain
circumstances. See RCM 906(b)(10); cf. Fed.R.Crim.P. 14.
This Court has recognized the difference in wording between the military
judges power ("only to prevent manifest injustice") and the federal district
judges power ("[i]f it appears that a defendant or the government is prejudiced
by a joinder"). See United States v. Southworth, supra
at 76; cf. United States v. Curry, 31 MJ 359 374 (1990).
In any event, federal courts, both military and civilian, have been concerned
with preventing impermissible spillover in various ways from the proof
of one offense into the trial of another offense. See United
States v. Southworth, supra at 76; see United States
v. Foutz, 540 F.2d 733, 736 (4th Cir. 1976). In general,
"an abuse of discretion will be found only where the defendant is able
to show that the denial of a severance caused him actual prejudice in that
it prevented him from receiving a fair trial; it is not enough that separate
trials may have provided him with a better opportunity for an acquittal.
Vest,
116 F.3d at 1190; United States v. Moya-Gomez, 860 F.2d 706, 754
(7th Cir. 1988), cert. denied, 492 U.S. 908, 109 S.Ct.
3221, 106 L.Ed.2d 571 (1989)." United States v. Alexander, 135 F.3d
at 477.
In light of the three-pronged test of Southworth,
we conclude that the military judge did not abuse his discretion in holding
that appellant could receive a fair trial on all the charges in this case.
(R. 111) Admittedly, the judge recognized that the evidence of Ms. AMs
rape and brutalization would not be admissible to show appellants rape
and brutalization of Ms. DR, one month earlier. However, this evidentiary
judgment alone did not require that he grant the severance motion. See
United States v. Southworth, supra at 77-78. In response
to this problem, the military judge gave limiting instructions three times
to the members to consider these offenses separately. (R. 700-701) (R.
1322) (R. 1835). 50 MJ at 77; United States v. Dixon, 184 F.3d 643,
646 (7th Cir. 1999). He also took steps to bifurcate the presentation
of evidence and argument by the prosecution to avoid the risk of impermissible
spillover. (R. 901-902, 1799-1806). 50 MJ at 77; United States v. Dixon,
supra
at 646. In our view, regardless of which offenses were proven first, we
are confident that the military members were able to follow their instructions
to consider them separately. Id. at 646 ("The ability of a jury
to follow instructions is instrumental to our theory of trial.");
see
also United States v. Coleman, 22 F.3d at 134-35 (elevated
concern for unfairness when "same or similar character" offenses are joined,
but severance not mandated); United States v. Hogan, 20 MJ 71, 73
(CMA 1985) ("chances of their cumulating the evidence . . . substantially
diminished" by proper instructions from judge).
We also conclude that the military judge did
not abuse his discretion in holding that appellants defenses would not
be "confounded" or destroyed by a joint trial. Appellants defense to the
alleged rape of Ms. DR was that she consented to the act of sexual intercourse
with appellant. Appellants defense to the alleged rape of Ms. AM was voluntary
intoxication and evidentiary insufficiency. These defenses, raised on different
occasions with respect to different alleged victims, were neither logically
nor practically inconsistent. Moreover, the mere fact that appellant asserted
his right of self-incrimination with respect to his alleged crime against
Ms. AM, but not with respect to the alleged crimes against Ms. DR, did
not require a severance. See United States v. Dixon, supra
at 646. Based on all the circumstances of this case, we conclude that the
military judge did not abuse his discretion in denying the defense motion
for severance. United States v. Foster, 40 MJ 140, 148 (CMA 1994);
see
also United States v. Kerr, 51 MJ 401, 406-07 (1999) (entire
record should be considered in evaluating judges ruling on spillover questions).

SENTENCE INSTRUCTIONS
The other issue in this case is whether the
military judge erred in instructing the members over defense objection
concerning availability of parole and rehabilitation programs in the military
justice system. These instructions came in response to questions by the
members addressed to the military judge. The specific questions were: "Will
rehabilitation/therapy be required if PFC Duncan is incarcerated?" and
"In military justice, is parole granted or are sentences reduced for good
behavior? If so, do these reductions apply to a life sentence?" (R. 2035-37)
Defense counsel objected to answering both questions because they concerned
collateral consequences, and he requested that the members be simply told
that these questions were "off-limits." (R. 2040)
The military judge agreed in part with defense
counsel but rejected his suggested instruction. (R. 2039) Instead, he gave
the following instructions:



Just to refresh your recollection, there
have been two questions that have been asked. Im going to answer the second
question first and then the first question. Ill advise you what the questions
were before I answer them. The first question is: In military justice,
is parole granted or are sentences reduced for good behavior? If so, do
these reductions apply to a life sentence?
Now, members of the court, in answering this
second question first, it is important to remind you of the nature of a
court-martial in the military justice system. It is a completely independent
agency temporarily created to determine the issue of guilt or innocence
in a case and impose an appropriate sentence in the event of a conviction.
After trial a variety of reviewing and higher
authorities review the case. As an independent agency, you must not adjudge
an excessive sentence in reliance upon possible mitigating action by the
convening or other authority. You must do what you think is right today.
Now, parole is available to an accused sentenced
by a military court to serve confinement, including life imprisonment.
The exercise of parole, however, depends upon several factors, including
but not limited to the length of sentence to confinement, the nature of
the convicted crimes, and the conduct of the accused during the period
of confinement.
You should determine, in terms of confinement,
what you feel is appropriate for this accused. Under these circumstances,
do not, and I say again, do not be concerned about the impact of parole.
When selecting an appropriate sentence, you should select a sentence which
will best serve the ends of good order and discipline, the needs of the
accused, and the welfare of society.
Now, Im turning to your second question, which
is: Will rehabilitation/therapy be required if PFC Duncan is incarcerated?
Members of the court, you are advised that there are appropriate alcohol
and sex offense rehabilitation programs available to the accused should
he be confined as a result of the sentence in this case. The accused is
not required to participate in any program of rehabilitation and treatment,
but there are strong and usually effective incentives for him to do so
while confined.
Now, Colonel Colemen, do these responses answer
your questions?



Pres: Yes, sir.
(R. 2044) (Emphasis added.)
On appeal, appellant again argues that the
military judge erred in giving the instructions noted above because parole
and rehabilitation programs are "collateral consequences" of a court-martial
sentence. He asserts that the general rule at courts-martial is that it
should concern itself "with the appropriateness of a particular sentence
for an accused and his offense, without regard to the collateral administrative
effects of the penalty under consideration." Appellants Final Brief at
9. He contends, therefore, that the military judge should "[o]rdinarily
. . . reply that collateral consequences are not germane"; and he cites
United
States v. Griffin, 25 MJ 423, 424 (CMA), cert. denied, 487 U.S.
1206 (1988), and United States v. Quesinberry, 12 USCMA 609, 612,
31 CMR 195, 198 (1962), for this rule, at least where the accused opposes
the instruction. See United States v. Griffin, supra
at 424.
We think this case is covered by our more recent
decision in United States v. Greaves, 46 MJ 133 (1997). There, we
rejected a bright-line rule prohibiting instructions on collateral consequences
of a court-martial and instead adopted a more flexible approach focusing
on the military judges responsibility to give "appropriate sentence instructions."
While the military judges discretion in choosing whether to instruct upon
such "collateral" matters is broad, he or she is required to give legally
correct instructions that are tailored to the facts and circumstances of
the case. United States v. Greaves, 46 MJ at 139 (citing United
States v. Cook, 11 USCMA 579, 581, 29 CMR 395, 397 (1960), and United
States v. Slaton, 6 MJ 254, 255 (CMA 1979)). Most importantly, military
judges must give members answers which are clear. United States v. Griffin,
25 MJ at 424. When the members ask whether an accused will be required
to participate in a rehabilitation program, as they did in this case, it
is appropriate for the judge to answer if he or she can draw upon a body
of information that is reasonably available and which rationally relates
to the sentencing considerations in RCM 1005(e)(5). The availability of
parole and rehabilitation programs are issues of general knowledge and
concern, and as such they may be instructed upon, especially when requested
by the members. See generally RCM 1005(a) ("The military
judge shall give the members appropriate instructions on sentence") and
RCM 801(a)(5) (duty of military judge to "[i]nstruct members on questions
of law and procedure which may arise").
In the case at bar, the members themselves
interrupted their deliberations to inquire about the possibility of parole
and the existence of rehabilitation programs. See RCM 1005(b); see
generally Article 46, UCMJ, 10 USC § 846, and RCM 913(c)(1)(F)
(power of members to seek instructions from military judge and further
evidence). Moreover, these inquiries were reasonably related to consideration
of the heinous nature of appellants offenses (see generally
RCM 1001(b)(4) (evidence in aggravation)) and the possibility that he might
be released in the future unreformed into civilized society. See
generally RCM 1001(b)(5) (evidence of rehabilitative potential).
In view of the sheer brutality of appellants crimes, it is quite clear
that these were "crucial military concern[s]" which were properly addressed
by the military judge. See United States v. Greaves, 46 MJ
at 139.
In any event, any error by the judge in instructing
on these matters was clearly harmless. Article 59(a), UCMJ, 10 USC §
859(a). The military judge also instructed the members that, although parole
existed in the military justice system, they could not consider it in arriving
at an appropriate sentence for appellant. Moreover, his instruction on
rehabilitation programs also benefited appellant because it strongly suggested
that such programs did exist and that appellant would likely participate
in them as a matter of prison exigency. Accordingly, we conclude that these
instructions, even if erroneous, did not materially prejudice appellants
substantial rights.
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is affirmed.


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