United States v. Williams
| Decision Date | 12 September 2017 |
| Docket Number | 201600091 |
| Court | United States Court of Criminal Appeals, Navy-Marine Corps |
| Parties | UNITED STATES OF AMERICA Appellee v. DONALD L. WILLIAMS III Lance Corporal (E-3), U.S. Marine Corps Appellant |
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: Lieutenant Colonel Elizabeth A. Harvey, USMC.
Appeal from the United States Navy-Marine Corps Trial Judiciary
Convening Authority: Commanding General, 1st Marine Division (REIN) Camp Pendleton, CA.
Staff Judge Advocate's Recommendation: Lieutenant Colonel D.C Young, USMC.
For Appellant: Philip D. Cave, Esq.; Lieutenant Doug Ottenwess JAGC, USN.
For Appellee: Lieutenant Commander Jeremy R. Brooks, JAGC, USN Lieutenant Taurean K. Brown, JAGC, USN.
At a contested general court-martial, officer and enlisted members convicted the appellant of one specification each of violating a general order, fleeing apprehension, operating a vehicle while drunk, and involuntary manslaughter, violations of Articles 92, 95, 111, and 119, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 892, 895, 911, and 919 (2012).[1] The members sentenced the appellant to 14 years' confinement, reduction to paygrade E-1, forfeiture of all pay and allowances, and a dishonorable discharge. The convening authority (CA) approved the findings and sentence adjudged and, except for the punitive discharge, ordered it executed.
The appellant raises seven assignments of error (AOEs):[2] (1) the evidence is legally and factually insufficient to support his conviction for fleeing apprehension under Article 95, UCMJ; (2) the military judge committed instructional error by declining to find that Article 95, UCMJ, is a specific intent offense; the military judge erred by denying: (3) the defense request for trial delay to accommodate a defense expert; (4) Staff Sergeant (SSgt) N as a defense witness; (5) the defense motion to dismiss for unlawful command influence (UCI); (6) the defense challenge to Lieutenant Colonel (LtCol) D as a member; and (7) the motion to merge Charges III and IV in sentencing for unreasonable multiplication of charges.[3]
We conclude the findings are correct in law and fact, and no error materially prejudicial to the substantial rights of the appellant was committed. Arts. 59(a) and 66(c), UCMJ.
The majority of the facts in this case are undisputed. On 7 November 2014, despite being under 21 years old, the appellant began the evening drinking in his barracks room on board Marine Corps Base, Camp Pendleton, California. After consuming "Jameson and Coke, "[4] he drove to an on-base party around 1830, arriving visibly intoxicated. He consumed more alcohol at the party. His friends noticed his level of intoxication, took away his alcohol, and tried to stop him from driving. Although he had agreed to stay the night, he later went to his truck to retrieve cigarettes. He then left the party and drove toward his barracks, close to San Mateo road.
At approximately 2030, the appellant was driving at such a high rate of speed, and with his engine revving so loudly, that he drew the attention of Officer JB of the Camp Pendleton Marine Corps Police Department. Officer JB heard the vehicle "accelerating very hard and very loud and then it. . . went down San Mateo road . . . at 50 to 60 miles an hour."[5] The speed limit on San Mateo Road was 25 miles per hour.
Officer JB began looking for the vehicle and found it pulled over by a stop sign. He attempted to initiate a stop by pulling up perpendicular to the appellant's truck so his police car faced the driver's side door and turning on "the red and blue flashing lights on top of the car" and the white takedown lights, but not the siren.[6] The appellant looked in Officer JB's direction but then sped off, swerving across the centerline. His tires made a loud screeching noise and left rubber marks about 30-50 feet in length on the pavement. Officer JB immediately pursued the appellant's truck with his red and blue lights on.
Witnesses from the barracks saw the appellant's truck coming down the road and heard the appellant's truck increasing in speed. SSgt MM, the Assistant Officer of the Day, went outside the barracks after hearing the appellant's truck. He heard the appellant's truck engine revving, "loud- louder than what it was before . . . kind of, like trying to get away type."[7] He believed the appellant was "trying to get away from the MPs."[8] The appellant's truck was estimated to be traveling approximately 62 miles per hour.
As the appellant was increasing his speed, First Lieutenant (1stLt) MD was driving a duty van on the same road. The appellant crashed into the rear of the duty van, killing 1stLt MD almost instantly. 1stLt MD died from multiple blunt force injuries and was pronounced dead shortly after the collision. At the scene, multiple witnesses smelled alcohol and observed that the appellant was intoxicated. The appellant was unable to complete a field sobriety test, and later tests put his blood alcohol content at the time of impact between 0.295 and 0.34. The appellant was emotional, expressed remorse, and was able to talk coherently with first responders and others gathered at the scene. Later, while in custody, he told Naval Criminal Investigative Service (NCIS) agents, in a voluntary sworn statement, that he had only consumed whisky, that alcohol had not been a major factor in the accident, and that he may have been speeding but the accident occurred because he was paying more attention to the radio than the road. The appellant claimed that he did not recall seeing or hearing Officer JB at the stop sign or behind him prior to the collision.
The appellant contends the prosecution offered legally and factually insufficient evidence for his fleeing apprehension conviction because the government "failed to prove beyond a reasonable doubt either that Officer JB 'attempted to apprehend' [a]ppellant-as defined in the Military Judge's instruction-or that [a]ppellant 'fled' from any such attempted 'apprehension.'"[9] We disagree.
We review questions of legal and factual sufficiency de novo. Art. 66(c), UCMJ; United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). The test for legal sufficiency is "whether, considering the evidence in the light most favorable to the prosecution, any reasonable fact-finder could have found all the essential elements beyond a reasonable doubt." United States v. Day, 66 M.J. 172, 173-74 (C.A.A.F. 2008) (citing United States v. Turner, 25 M.J. 324, 324 (C.M.A. 1987)). In applying this test, "we are bound to draw every reasonable inference from the evidence of record in favor of the prosecution." United States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001) (citations omitted).
The test for factual sufficiency is whether, "after weighing all the evidence in the record of trial and recognizing that we did not see or hear the witnesses as did the trial court, this court is convinced of the appellant's guilt beyond a reasonable doubt." United States v. Rankin, 63 M.J. 552, 557 (N-M. Ct. Crim. App. 2006) (citing Turner, 25 M.J. at 325 and Art. 66(c), UCMJ), aff'd on other grounds, 64 M.J. 348 (C.A.A.F. 2007). In conducting this unique appellate role, we take "a fresh, impartial look at the evidence, " applying "neither a presumption of innocence nor a presumption of guilt" to "make [our] own independent determination as to whether he evidence constitutes proof of each required element beyond a reasonable doubt." Washington, 57 M.J. at 399. We may "judge the credibility of witnesses, and determine controverted questions of fact, " and substitute our judgment for that of the fact finder. Art 66(c), UCMJ; United States v. Cole, 31 M.J. 270, 272 (C.M.A. 1990). While this is a high standard, the phrase "beyond a reasonable doubt" does not imply that the evidence must be free from conflict. Rankin, 63 M.J. at 557 (citation omitted).
The military judge instructed the members that to convict the appellant of Article 95, UCMJ, fleeing apprehension, the government had to prove that:
Record at 398; Appellate Exhibit (AE) XXXI at 1-2. The military judge defined "apprehension" for the members as:
. . . [T]aking a person into custody; that is, placing a restraint on a person's freedom of movement. The restraint may be physical and forcible, or it may be imposed by clearly informing the person being apprehended that he is being taken into custody. An apprehension is attempted, then, by clearly informing a person orally or in writing that he is being taken into custody or by attempting to use a degree and kind of force which clearly indicates that he is being taken into custody (emphasis added). Flight from apprehension must be active, such as running or driving away from the person attempting to apprehend the accused.
The military judge went on to explain that ignorance of the attempted apprehension could be a defense and that the appellant's intoxication could be considered regarding whether he knew of Officer JB's apprehension efforts.
The parties agree that the second element was satisfied by the evidence; leaving the first and third elements at issue. The appellant argues his conviction is legally insufficient because the government failed to prove these elements as the record "is devoid of any evidence that would show Officer [JB] had probable...
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