For Appellant: Lieutenant Jeffrey K. Van Nest, JAGC
USNR (argued); Lieutenant Commander Eric C. Price,
JAGC, USN.

For Appellee: Lieutenant Russell J.E. Verby, JAGC, USNR
(argued); Colonel Charles Wm. Dorman, USMC, and
Commander D.H. Myers, JAGC, USN (on brief).

Military Judge: P. M. Stimson
 
 

SULLIVAN, Judge:

Appellant was tried by a general court-martial composed of a military judge sitting alone at Rota, Spain, on September 4 and 5, 1995. He was charged with murder, in violation of Article 118(3), Uniform Code of Military Justice, 10 USC § 918(3). He pleaded guilty to and, after trial on the merits, was found guilty of involuntary manslaughter, in violation of Article 119, UCMJ, 10 USC § 919. He was sentenced to a dishonorable discharge, 5 years’ confinement, total forfeitures, and reduction to E-1. The convening authority approved this sentence on November 9, 1995. The Court of Criminal Appeals affirmed on January 31, 1997.

On August 27, 1997, this Court granted review on the following issue of law:

Appellant was charged with the murder of Private Jose A. Navedo, USMC, by stabbing him in the chest with a knife, in violation of Article 118. He was found not guilty of this offense, but guilty, in accordance with his pleas, of the lesser offense of involuntary manslaughter for killing him "by culpable negligence." Art. 119(b)(1). The record basically shows that appellant stabbed Private Navedo in the chest with a "butterfly knife" while "playing" with it. He stated:

Article 36, UCMJ, 10 USC § 836, provides that the President may prescribe "trial . . . procedures, including modes of proof," for trials by courts-martial. RCM 1001(c)(1) states, in pertinent part, the following:

To be admissible evidence must be relevant. Mil. R. Evid. 402, Manual, supra. Relevance is defined in Mil. R. Evid. 401, which states:

The judge’s error in refusing to consider this defense-extenuation and mitigation evidence does not automatically require setting aside appellant’s sentence. Prejudice to the accused in the sentencing decision is required. Art. 59(a), UCMJ, 10 USC § 859(a); seeUnited States v. Adams, 44 MJ 251, 252-53 (1996). For the reasons noted below, we are persuaded that appellant’s sentence was substantially affected by exclusion of this evidence, so a new sentence hearing must be ordered. See United States v. Hysong, 47 MJ 126, 127 (1997) (significant-impact test).

First, we note that this was a homicide case, and no evidence of other circumstances was admitted which could lessen the blame of appellant for the tragic death of Private Navedo. Cf. United States v. Velez, 48 MJ 220 (1998). Second, the military judge made clear on the record that he believed appellant was the sole cause of this unnecessary loss of a fellow Marine’s life. ("He’s dead because of your senseless and reckless conduct, playing around with a dangerous knife.") Third, appellant received the most severe form of punitive discharge, the maximum amount of forfeitures, the lowest reduction, and a substantial prison sentence of 5 years (one-half the maximum period of confinement). See United States v. Zakaria, 38 MJ 280, 284 (CMA 1993). Finally, no sentence adjustment was made by the convening authority which might be construed as remedial action for this error. See United States v. Martinsmith, 41 MJ 343, 349 (1995).

The decision of the United States Navy-Marine Corps Court of Criminal Appeals as to findings is affirmed. The decision as to sentence is reversed, and the sentence is set aside.^* The record of trial is returned to the Judge Advocate General of the Navy. A rehearing on sentence may be ordered.

Judges CRAWFORD and EFFRON concur.
 

FOOTNOTE:

^* Expressing the view of the author judge only, I respond to the dissent of my Brother with three words--"Truth in Sentencing." Initially let me say I applaud and agree with Chief Judge Cox to a certain degree. I applaud Chief Judge Cox’s honesty in stating his bias toward the trial judge up- front in his opinion. In addition, I agree with some of his common sense observations of the mechanics of trial practice. Nevertheless, I find his result flawed because he ignores the bottom line in the case--evidence was kept out which prevented a true sentence.

In this case, the judge was the factfinder for the sentence. The judge kept key medical evidence out of the record--evidence that medical malpractice was a major factor in the death of the victim; evidence the judge would have been forced by his duty to consider; evidence that appellant could have argued in his closing argument at trial before the judge made his decision on the sentence; evidence that could have changed the judge’s mind which the judge clearly expressed in giving the sentence: "He [the victim]’s dead because of your senseless and reckless conduct, playing around with a dangerous knife." (Emphasis added.)

In this case, although I applaud and agree with some of Chief Judge Cox’s opinion, I cannot join him because there was legal error here. The judge kept out evidence that this appellant had a legal right to put into his case and had a legal right to argue. The factfinder’s sentence is suspect to me because the factfinder didn’t have all the facts to consider. I cannot say the sentence is a true one. I’m sorry Chief Judge Cox feels it is.
 
 

GIERKE, Judge (concurring):

I agree with the rationale and result in this opinion. I write separately to make clear that I decline to join in the author’s personal footnote (___ MJ at 13-14).
 
 

Cox, Chief Judge (dissenting):

I admit at the outset that I write with the bias of a trial judge. I admit that the majority opinion has a basis for its conclusion that the proffered evidence could have been admitted under RCM 1001(c)(1)(A), Manual for Courts-Martial, United States (1995 ed.), as evidence to explain the facts and circumstances surrounding the offense. Indeed, the most common form of admission of this type of victim-suffering evidence is in aggravation. See RCM 1001(b)(4) and RCM 1004 (death-penalty evidence). That is where I stop.

This case is every trial judge’s nightmare. It provides an excellent scenario for a sentencing seminar for trial judges who enjoy discretionary sentencing and who are not bound by sentencing guidelines. Let’s turn briefly to the facts.

The accused offered evidence that the junior attending physician believed that, if the senior attending physician had performed a different procedure, the victim may have been saved. The military judge ruled that the evidence was inadmissible because -- while it was relevant to the question of criminal liability, i.e., it may have shown an intervening or contributing cause of death -- it was not relevant to the question of an appropriate sentence. That ruling is the basis of the majority opinion’s view that this ruling constituted reversible error. ¹/

I would affirm for the following reasons:

      1. This case really is one that falls under Mil. R. Evid. 403, Manual, supra. The proffered testimony was taking the trial directly to a civil malpractice case, right in the middle of a criminal sentencing hearing. Does anyone really believe that the Government was going to sit idly by and let the junior physician take a free shot at his superior officer? Of course not! At a minimum, the Government would have called the senior physician and possibly may have tried to call the Chief of Thoracic Surgery at the National Naval Medical Center of Bethesda, Maryland; the President of the American College of Thoracic Surgeons; and the forensic pathologist who did the autopsy -— if one was done -- in order to prove that medical malpractice did not cause the victim’s death. Death was caused by the fatal stab wound.  Even if all of these witnesses had conceded that another procedure might have saved the victim, they also would likely have agreed that the procedure used might have saved the victim.

This is a classic example of a trial within a trial. I shudder to imagine how this case would have been managed before members. I assume the majority would sit back and enjoy the malpractice litigation with all of the experts discussing standards of care and the myriad procedures available to doctors to treat stab wounds.

In any event, the trial judge simply should have ruled that any probative value to be gained by the speculative testimony of the junior physician was far outweighed by the danger of confusion and waste of time on collateral issues. Therefore, the testimony was inadmissible under Mil. R. Evid. 403. This ruling would have been tested for abuse of discretion and, to paraphrase the junior doctor, it would have had a better chance of surviving the appeal.

      2. I also would affirm the military judge’s decision because of my experiences as a trial judge and my involvement with numerous sentencing cases. I have referred to these experiences as "Lessons from the Junkyard."²/ As some anonymous person said, "One man’s junk is another man’s treasure." My reading of this record suggests that the military judge, who after all was the person doing the sentencing, did not regard this speculative testimony as matter in extenuation and mitigation to the sentence in this case. When the smoke cleared, there was only one person who could determine if this controversy between the physicians was relevant to the existence of any fact of consequence regarding the determination of the sentence in this case: that was the military judge. Mil. R. Evid. 401 and 402. The judge said, "I don’t see the relevancy, in this case in sentencing, of this testimony. " Why do we make judges accept evidence that, in their judgment, is not relevant? It beats me!

      3. The third reason I would affirm is that, even if the military judge did abuse his discretion by preventing the junior physician’s testimony, the error was clearly harmless in this trial before military judge alone. Art. 59(a), Uniform Code of Military Justice, 10 USC § 859(a).

Having said all this, I would remind military judges of two rules that should always be followed. These rules come from "Lessons from the Junkyard."

Trial counsel need to understand, however, the human dynamics that go into sentencing. It is highly unlikely that this judge was going to decrease the sentence because the doctors could not agree on the procedure to use to try to save the victim. This case was treated as a serious accident, involving a dangerous weapon, and appellant was sentenced accordingly. See generally United States v. Kinman, 25 MJ 99, 102, 104 n.3 (CMA 1987) (Cox, J., dissenting).
 

FOOTNOTES:

¹/ Based upon his footnote, it is apparent that Judge Sullivan has convicted the lead physician of malpractice. See generally United States v. Billig, 26 MJ 744 (NMCMR 1988). He altogether misses the point of my dissent. Furthermore, what is "truth in sentencing"? Would the judge give a higher sentence if he concluded there was no malpractice?

²/ I first heard the title, "Lessons from the Junkyard," from either the late, Honorable Julius B. "Bubba" Ness, Chief Justice of the South Carolina Supreme Court, or from the Honorable Rodney A. Peeples, Resident Judge of the Second Judicial Circuit of South Carolina. Both of these distinguished jurists have dedicated considerable time and energy to teaching judges how to be judges.