United States v. Douglas
ACM 38935
| A.F.C.C.A. | Jun 15, 2017Background
- Appellant (Air Force member) was convicted at a general court-martial of conspiracy to commit aggravated assault, three specifications of aggravated assault with a dangerous weapon, and negligent discharge of a firearm; acquitted of attempted murder and conspiracy to commit robbery. Sentence: bad-conduct discharge, 7 months confinement, reduction to E-1; reprimand disapproved.
- Incident: late-night New Year’s party altercation led to Appellant and co-conspirator JJ following victims TF and HG; both men wore hoodies/bandanas and brandished handguns; TF was pistol-whipped and shot in the arm; victims identified Appellant and JJ at or after the scene.
- Physical evidence: one shell casing recovered; ballistics matched JJ’s Glock; both Appellant’s and JJ’s base-issued Glocks were introduced; witnesses heard multiple shots that night.
- Procedural challenges on appeal: (1) factual sufficiency (negligent discharge and other convictions); (2) multiplicity (LIO assault vs. separate assault conviction); (3) alleged improper panel selection under Article 25 (racial/practice discrimination); (4) due process/R.C.M. 703/Article 46 claims for lost/delayed evidence and investigative delays; plus several other trial objections summarily rejected.
- Military judge denied motions to dismiss and denied defense motion for a ‘diverse’ panel; the Air Force Court of Criminal Appeals reviewed de novo and affirmed findings and sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Factual sufficiency — negligent discharge | Victims’ IDs were unreliable; no direct evidence Appellant’s gun fired; service-discrediting element insufficient | Victims, supporting witnesses, physical evidence (shell, Glocks), Appellant’s conduct supported elements | Conviction is factually sufficient; evidence proves discharge, negligence, and tendency to discredit service beyond a reasonable doubt |
| Factual sufficiency — other assaults & conspiracy | Challenge to sufficiency of evidence for assaults and conspiracy | Government relied on TF/HG testimony, corroborating witnesses, temporal conduct showing concerted action | Affirmed: evidence (direct and circumstantial) proved assaults and conspiracy beyond reasonable doubt |
| Multiplicity — LIO assault (offer) vs. later assault (strike) | LIO of offering to assault (pointing gun) is constitutionally multiplicious with separate assault for striking TF — one act logically precedes the other | Each offense requires proof of a fact the other does not (pointing vs. striking); not facially duplicative | Not multiplicious; convictions for both offenses may stand |
| Panel selection — Article 25 / discrimination | Convening authority failed to select a racially diverse panel despite available nominees; prima facie discrimination | No evidence of purposeful or systematic exclusion; selection based on Article 25 criteria; defense failed to make prima facie showing | Military judge findings not clearly erroneous; no abuse of discretion; no relief warranted |
| Due process / R.C.M. 703 / Article 46 — lost/delayed evidence | Investigative delays and failure to preserve photos/DNA/social media/interviews prejudiced defense and denied fair trial | Many witnesses interviewed promptly; defense failed to show lost evidence was apparently exculpatory or that government acted in bad faith; R.C.M. 703 claims lacked showing of indispensability | Denial of dismissal not an abuse of discretion; Trombetta/Youngblood and R.C.M. standards not satisfied; no relief granted |
| Misc. trial objections (hearsay, reasonable doubt instruction) | Trial counsel argued hearsay; jury instruction on reasonable doubt erroneous | Objections were either not preserved or do not warrant relief; court summarily rejected them | Summarily rejected; no plain or prejudicial error shown |
Key Cases Cited
- United States v. Washington, 57 M.J. 394 (C.A.A.F.) (standard for appellate factual-sufficiency review)
- United States v. Reed, 54 M.J. 37 (C.A.A.F.) (factual-sufficiency test language)
- United States v. Turner, 25 M.J. 324 (C.M.A.) (factual-sufficiency precedent)
- United States v. Grostefon, 12 M.J. 431 (C.M.A.) (preserving issues for appeal and appellant’s claims)
- United States v. Hudson, 59 M.J. 357 (C.A.A.F.) (Blockburger elements test for facial duplicity)
- United States v. Dowty, 60 M.J. 163 (C.A.A.F.) (Article 25 panel-selection review principles)
- United States v. Gooch, 69 M.J. 353 (C.A.A.F.) (panel-selection and representativeness guidance)
- California v. Trombetta, 467 U.S. 479 (1984) (test for lost/destroyed evidence and due process)
- Arizona v. Youngblood, 488 U.S. 51 (1988) (bad-faith requirement for lost evidence due-process claims)
- Duren v. Missouri, 439 U.S. 357 (1979) (jury cross-sectional representation principles)