United States v. Hutchins

• Decision Date: 29 January 2018
• Docket Number: 200800393
• Parties: UNITED STATES OF AMERICA Appellee v. LAWRENCE G. HUTCHINS III Sergeant (E-5), U.S. Marine Corps Appellant
• Court: United States Court of Criminal Appeals, Navy-Marine Corps

UNITED STATES OF AMERICAAppellee v. LAWRENCE G. HUTCHINS III Sergeant (E-5), U.S. Marine CorpsAppellant

No. 200800393

United States Court of Criminal Appeals, Navy-Marine Corps

January 29, 2018

This opinion does not serve as binding precedent but may be cited as persuasive authority under NMCCA Rule of Practice and Procedure 18.2.

Military Judge: Captain A.H. Henderson, JAGC, USN.

Appeal from the United States Navy-Marine Corps Trial Judiciary

Convening Authority: Commander, U.S. Marine Corps Forces Central Command, MacDill Air Force Base, FL.

Staff Judge Advocate's Recommendation: Colonel John R Woodworth, USMC.

For Appellant: Christopher Oprison, Esq.; Lieutenant Colonel S Babu Kaza, USMCR; Lieutenant Doug Ottenwess, JAGC, USN.

For Appellee: Major Cory A. Carver, USMC; Lieutenant James M Belforti, JAGC, USN.

Before Glaser-Allen, Marks, and Hutchison, Appellate Military Judges.

MARKS Senior Judge.

A general court-martial comprised of members with enlisted representation convicted the appellant, contrary to his pleas, of one specification each of conspiracy ^[1] unpremeditated murder, and larceny in violation of Articles 81, 118, and 121, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 881, 918, and 921(2005).^[2] The members sentenced the appellant to 2, 627 days' confinement^[3] and a bad-conduct discharge.The convening authority (CA) approved the sentence as adjudged and, except for the punitive discharge, ordered the sentence executed.

The appellant raises 13 assignments of error (AOE): (1) the military judge's denial of the defense motion to suppress evidence of conduct for which the appellant was acquitted at his first trial; (2) admission of former testimony where the declarants were not unavailable and there was no similar motive for cross-examination; (3) unlawful command influence (UCI) from the Secretary of the Navy; (4) the military judge's finding that apparent UCI stemming from the prosecution's search of defense counsel's office in another case was harmless beyond a reasonable doubt; (5) denial of the defense motion for recusal; (6) denial of the defense request to abate proceedings until the appellant's attorney-client relationship was restored; (7) denial of the defense motion to dismiss based on the government's violation of the appellant's Article 13, UCMJ, rights; (8) denial of the defense request for a site visit; (9) admission of an exhibit founded on hearsay; (10) denial of the defense request for a mistrial after the members heard a government witness testify that the appellant asserted his right to remain silent; (11) the impact of the significant accumulation of errors on the outcome of the case; (12)the appellant's excessive and disproportionate sentence to roughly six years' confinement in light of companion cases; and (13) the legal and factual insufficiency of the findings.

After carefully considering the pleadings, oral arguments, and the record of trial, we find no error materially prejudicial to the substantial rights of the appellant and affirm the findings and sentence.Arts. 59(a) and 66(c), UCMJ.

I.Background

First, a procedural orientation may be helpful.The appellant was originally convicted in August 2007 for his role in the shooting death of an unknown Iraqi man in Hamdaniyah, Iraq, the morning of 26 April 2006.This court set aside the findings and sentence for an improper severance of attorney-client relationship in April 2010.United States v. Hutchins, 68 M.J. 623, 631(N-M. Ct. Crim. App.2010)(Hutchins I).The Court of Appeals for the Armed Forces (CAAF) reversed that decision and remanded the case to this court to complete its review under Article 66, UCMJ, in January 2011.United States v. Hutchins, 69 M.J. 282, 293(C.A.A.F.2011)(Hutchins II).This court completed that review and affirmed the findings and sentence of the first court-martial in March 2012.United States v. Hutchins, No. 200800393, 2012 CCA LEXIS 93, *32, unpublished op.(N-M. Ct. Crim. App. 20Mar 2012)(Hutchins III).Finding a violation of the appellant's Fifth Amendment rights against self-incrimination, the CAAF reversed our 2012 decision, set aside the findings and sentence of the 2007court-martial, and remanded the case with authorization for a rehearing.United States v. Hutchins, 72 M.J. 294, 301(C.A.A.F.2013)(Hutchins IV).The results of that rehearing are before us here.

As for the events of the night and early morning of 25-26 April 2006, we revisit our summary from Hutchins III, which the CAAF republished in Hutchins IV:

The appellant was assigned as squad leader for 1st Squad, 2nd Platoon, Kilo Company, 3rd Battalion, 5th Marines, assigned to Task Force Chromite, conducting counter-insurgency operations in the Hamdaniyah area of Iraq in April 2006.In the evening hours of 25 April 2006, the appellant led a combat patrol to conduct a deliberate ambush aimed at interdicting insurgent emplacement of improvised explosive devices (IEDs).The court-martial received testimony from several members of the squad that indicated the intended ambush mission morphed into a conspiracy to deliberately capture and kill a high value individual (HVI), believed to be a leader of the insurgency.The witnesses gave varying testimony as to the depth of their understanding of alternative targets, such as family members of the HVI or another random military-aged Iraqi male.

Considerable effort and preparation went into the execution of this conspiracy.Tasks were accomplished by various Marines and their corpsman, including the theft of a shovel and AK-47 from an Iraqi dwelling to be used as props to manufacture a scene where it appeared that an armed insurgent was digging to emplace an IED.Some squad members advanced to the ambush site while others captured an unknown Iraqi man, bound and gagged him, and brought him to the would-be IED emplacement.

The stage set, the squad informed higher headquarters by radio that they had come upon an insurgent planting an IED and received approval to engage.The squad opened fire, mortally wounding the man.The appellant approached the victim and fired multiple rifle rounds into the man's face at point blank range.

The scene was then manipulated to appear consistent with the insurgent/IED story.The squad removed the bindings from the victim's hands and feet and positioned the victim's body with the shovel and AK-47 rifle they had stolen from local Iraqis.To simulate that the victim fired on the squad, the Marines fired the AK-47 rifle into the air and collected the discharged casings.When questioned about the action, the appellant, like other members of the squad, made false official statements, describing the situation as a legitimate ambush and a "good shoot."The death was brought to the appellant's battalion commander's attention by a local sheikh and the ensuing investigation led to the case before us.

Hutchins IV, 72 M.J. at 296(quotingHutchins III, 2012 CCA LEXIS 93 at *4-6).

For ease of understanding the hierarchy within the appellant's squad, his squad members and co-conspirators will be identified by the ranks they held on 26 April 2006.They were Corporal (Cpl) Magincalda, Cpl Thomas, Lance Corporal (LCpl) Jackson, LCpl Pennington, LCpl Shumate, Private First Class (PFC) Jodka, and Navy corpsman, Hospitalman Third Class (HM3) Bacos.Other witnesses will also be identified by ranks they held in 2006.

We will incorporate additional facts as we address the AOEs.

II.Discussion

A.Admissibility of evidence and issue preclusion

In his first AOE, the appellant avers that the military judge erred in admitting evidence of conduct of which the appellant had been acquitted at his first trial.Specifically, the evidence of acquitted misconduct included "evidence of 'housebreaking, ''kidnapping, ' the alternate plan to seize a random Iraqi, and the alleged seizure of a random Iraqi by the snatch team."^[4]

We review a military judge's ruling on a motion to suppress evidence for an abuse of discretion.United States v. Harrell, 75 M.J. 359, 362(C.A.A.F.2016).The military judge's findings of fact are reviewed for clear error; conclusions of law are reviewed de novo.Id."If the military judge fails to place his findings and analysis on the record, less deference will be accorded."United States v. Flesher, 73 M.J. 303, 312(C.A.A.F.2014).

Intertwined with the appellant's AOE regarding the admission of evidence are two related issues-collateral estoppel (also known as issue preclusion) and the appellant's purported acquittal of conspiring to kill anyone other than high value individual and suspected insurgency leader, S.G.^[5]We must address these two issues and their relationships to admissibility of evidence before reviewing the military judge's ruling.It is helpful to keep in mind that the case before us is a rehearing.

1.Collateral estoppel / issue preclusion

When as here, the government retries a criminal case, findings of not guilty from the first trial establish precedents limiting all future prosecutions of the same matter.Once acquitted of an offense, an accused need never "'run the gantlet'" again with regard to that specific offense.Ashe v. Swenson, 397 U.S. 436, 446(1970)(quotingGreen v. United States, 355 U.S. 184, 190(1957)).The Double Jeopardy clause of the Fifth Amendment to the Constitution protects the accused from being "subject, for the same offence, to be twice put in jeopardy of life or limb[.]"U.S. Const., amend. V.Courts have long recognized the civil litigation concept of collateral estoppel.SeeHoag v. New Jersey, 356 U.S. 464, 470(1958)("'[W]here a question of fact essential to the judgment is actually litigated and determined by a valid and final judgment, the determination is...