United States v. Specialist MARSHALL D. DRAKE, JR.
ARMY 20130414
| A.C.C.A. | Oct 31, 2016Background
- On Christmas Eve/Day 2012, Specialist Marshall D. Drake, Jr., PFC GW (victim), and PV2 DH were drinking in the barracks; after waking PV2 DH they returned to Drake’s room.
- Drake produced his personally owned .45 handgun, cleared the slide, and the three soldiers passed the weapon around, cocking and dry-firing it during horseplay.
- At some point a live round was in the gun and Drake shot PFC GW in the head, killing him instantly.
- Drake pleaded guilty to two specifications for violating a lawful general regulation and to involuntary manslaughter by culpable negligence; the military judge merged a charged negligent-homicide Article 134 specification into the manslaughter charge for findings.
- The court-martial sentenced Drake to a dishonorable discharge, 11 years 9 months confinement (later reduced by the convening authority to 10 years), forfeitures, and reduction to E-1.
- Appellate issues raised: (1) multiplicity/unreasonable multiplication of charges (involuntary manslaughter vs. negligent homicide), and (2) whether post-trial delay warranted relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether negligent homicide was an unreasonable multiplication/lesser-included of involuntary manslaughter | Appellant argued the two homicide charges stem from the same act and the negligent-homicide specification should be dismissed or merged for sentencing | Government argued the offenses contain distinct elements (culpable negligence vs. prejudice to good order and discipline) and are not multiplicious; judge may merge for findings | Court affirmed military judge: negligent homicide is not a lesser-included offense of manslaughter; judge permissibly merged the specifications for findings to preserve the lesser-included theory on appeal |
| Whether dilatory post-trial processing required relief | Appellant sought dismissal or reduction (requested 90-day confinement reduction) for ~598 days government-attributable delay | Government acknowledged delay but pointed to convening authority’s substantial sentence reduction and lack of due-process violation | No due-process violation found; court reviewed sentence and, given convening authority’s unexplained 21-month confinement reduction (and lack of proof how much was for delay), affirmed a 10-year confinement as appropriate |
Key Cases Cited
- United States v. Campbell, 71 M.J. 19 (C.A.A.F. 2012) (abuse-of-discretion review for multiplicity rulings)
- United States v. Pauling, 60 M.J. 91 (C.A.A.F. 2004) (multiplicity standard)
- United States v. Quiroz, 55 M.J. 334 (C.A.A.F. 2001) (multiplicity jurisprudence)
- United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010) (Article 134 not a lesser-included of enumerated offenses)
- United States v. McMurrin, 70 M.J. 15 (C.A.A.F. 2010) (negligent homicide not lesser-included of manslaughter)
- United States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002) (service-court duty under Article 66(c) to reassess sentence when post-trial delay exists)
- United States v. Bauerback, 55 M.J. 501 (Army Ct. Crim. App. 2001) (convening-authority relief for post-trial delay generally moots appellate relief)