2013 CCA LEXIS 519
NMCCA2013Background
- Appellant was convicted at a first court-martial by general court-martial of conspiracy to possess cocaine, violation of an order, wrongful use of cocaine, obstruction of justice, and negligent homicide, with a sentence of 66 months’ confinement, forfeiture of pay, reduction to E-1, and dishonorable discharge.
- The convening authority approved the sentence as adjudged.
- We set aside negligent homicide and violating an order at the initial appellate stage; dismissed those underlying offenses; affirmed other findings and ordered a rehearing on sentence only.
- The CA later referred additional charges, including a negligent-homicide specification, to be combined with the rehearing on sentence.
- At the combined rehearing, officer members found negligent homicide and sentenced the appellant to 3 years and 6 months’ confinement, with the same reductions and dishonorable discharge; the CA disapproved 99 days but approved the rest.
- Appellant raises multiple assignments of error challenging jurisdiction, double jeopardy, speedy trial rights, rehearing procedures, counsel at rehearing, and sufficiency of the negligent-homicide conviction; the court ultimately affirms the findings and sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction over the negligent-homicide charge on remand | McMurrin argues the CA lacked jurisdiction after mandating sentence-only rehearing. | McMurrin argues the mandate either limited scope or prohibited reprosecution; government argues no explicit prohibition. | The CA had jurisdiction to refer the negligent-homicide charge under a general mandate; no bar to reprosecution. |
| Double jeopardy bar to negligent-homicide reprosecution | Jeopardy terminated after the initial acquittal/conviction changed; reprosecution barred by Pearceos principles. | Continuing jeopardy allowed reprosecution after dismissal/dismissal with prejudice differs; no finality here. | There was continuing jeopardy; no double jeopardy bar to the combined rehearing. |
| Speedy trial right under Article 10, UCMJ | Government violated speedy-trial rights in the combined rehearing. | No violation or prejudicial impact shown. | No reversible error shown; speed-trial rights were not violated in the rehearing context. |
| Speedy rehearing rights under Rule for Courts-Martial 707(b)(3)(D) | Rehearing speedily should have been provided; delay tainted process. | Rule 707(b)(3)(D) did not require immediate rehearing. | No reversible error in the hearing schedule under Rule 707(b)(3)(D). |
| Appellate-counsel representation at combined rehearing | Appellant was entitled to appellate counsel at the combined rehearing. | Appellant lacked right to counsel at that stage or was adequately represented. | Appellant not deprived of adequate representation; no error in counsel issue. |
Key Cases Cited
- Burks v. United States, 437 U.S. 1 (U.S. 1978) (finality and sufficient evidence principles for jeopardy)
- Scott, 437 U.S. 82 (U.S. 1978) (continuing jeopardy after appeal does not bar reprosecution)
- Green v. United States, 355 U.S. 184 (U.S. 1957) (conviction of lesser included offense bars subsequent prosecution of greater offense)
- Smead, 68 M.J. 44 (C.A.A.F. 2009) (dismissal with prejudice when error incurable where appropriate)
- Lewis, 63 M.J. 405 (C.A.A.F. 2006) (dismissal with prejudice; harsh remedy for grave error)
- Riley, 58 M.J. 305 (C.A.A.F. 2003) (negligence standard; considers life experience in degree of care)
- Henderson, 23 M.J. 77 (C.M.A. 1986) (foreseeability and degree of care in negligence)
- Oxendine, 55 M.J. 323 (C.A.A.F. 2001) (no subjective component; foreseeability standard)
- Phillips, 70 M.J. 161 (C.A.A.F. 2011) (prejudice to good order and discipline; public knowledge not required)