United States v. Killion
ACM S32193 (rem)
| A.F.C.C.A. | Feb 15, 2017Background
- Appellant (an Airman) was convicted at a special court-martial of being drunk and disorderly and unlawfully entering another Airman’s on-base residence (Article 134) after a night of heavy drinking and disruptive conduct.
- He was acquitted at trial of provoking speech (Article 117) by plea, but was later convicted of that offense by members; the provoking-speech charge was subsequently set aside and dismissed by the superior court.
- At the time of the incidents, Appellant forcibly entered an NCO’s home, frightened the family (including an 8-year-old), overturned furniture, and later resisted security forces and emergency medical personnel.
- In the emergency room he used abusive, racial and sexual epithets toward medical staff, requiring restraints and sedation; medical personnel testified at sentencing but were trained to handle aggressive patients and were not personally provoked.
- The court-martial sentenced Appellant to a bad-conduct discharge, 14 days confinement, reduction to E-1, and a reprimand; the convening authority approved the sentence.
- After this court affirmed the findings and sentence, the CAAF set aside and dismissed the provoking-speech charge; this returned the case for the current reassessment/remand decision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court can reassess the sentence or must remand for a new sentencing hearing after the provoking-speech charge was dismissed | Killion argued the dismissed charge materially affected sentencing and required a resentencing by a court-martial | Government argued the remaining offenses and evidence adequately support reassessment to the original sentence | Court held it can reassess and affirmed the original sentence as appropriate |
| Whether the penalty landscape changed after dismissal of provoking-speech charge | Killion implied sentencing exposure or landscape changed such that reassessment is inappropriate | Government asserted maximum punishment remained the same for this special court-martial and landscape did not change | Court found no change in penalty landscape; reassessment permissible |
| Whether evidence admitted at sentencing remained admissible and relevant without the provoking-speech conviction | Killion contended weight of witnesses for provoking speech mattered to sentence | Government maintained the ER testimony was res gestae of affirmed offenses and remained admissible; unlawful-entry victims were the primary aggravators | Court concluded the evidence remained relevant and admissible and did not materially alter sentencing weight |
| Whether reassessed sentence is appropriate on the merits | Killion argued the loss of the speech conviction could reduce the appropriateness of the original sentence | Government argued facts of unlawful entry, danger to family, resistance, and disruption justify the original sentence | Court concluded reassessed sentence is appropriate and affirmed it in law and fact |
Key Cases Cited
- United States v. Winckelmann, 73 M.J. 11 (C.A.A.F. 2013) (standard for reassessing sentence after prejudicial error)
- United States v. Buber, 62 M.J. 476 (C.A.A.F. 2006) (considerations for sentence reassessment vs. remand)
- United States v. Moffeit, 63 M.J. 40 (C.A.A.F. 2006) (procedures for appellate sentence reassessment)
- United States v. Sales, 22 M.J. 305 (C.M.A. 1986) (permissible actions when appellate court finds error in findings)
- United States v. Snelling, 14 M.J. 267 (C.M.A. 1982) (factors for assessing sentence appropriateness)
- United States v. Bare, 63 M.J. 707 (A.F. Ct. Crim. App. 2006) (appellate review of sentence appropriateness)