Ronnie A. CURTIS, Lance Corporal
U.S. Marine Corps, Appellant
Crim. App. No. 87-3856
United States Court of Appeals for the Armed Forces
Argued December 5, 1996
Decided June 9, 1997
For Appellant: Mary T. Hall (argued); Lieutenant Syed N. Ahmad, JAGC, USNR.
For Appellee: Captain Daren K. Margolin, USMC (argued); Colonel Charles Wm. Dorman, USMC, and Commander D. H. Myers, JAGC, USN (on brief).
Military Judge: Sebastian Gaeta, Jr.
A general court-martial convened at Camp Lejeune, North Carolina, convicted appellant, contrary to his pleas, of two premeditated murders, three larcenies, wrongful appropriation, burglary, two housebreakings, indecent assault, and willfully damaging government property, in violation of Articles 118, 121, 129, 130, 134, and 108, Uniform Code of Military Justice, 10 USC §§ 918, 921, 929, 930, 934, and 908, respectively. Pursuant to a plea of guilty, appellant was also convicted of disobeying a general order, in violation of Article 92, UCMJ, 10 USC § 892. The court-martial sentenced him to death, and the convening authority approved the sentence.
The Court of Military Review (now the Court of Criminal Appeals) affirmed the findings and sentence. 28 MJ 1074 (1989). We conducted a bifurcated review. In our first review we upheld the constitutionality of the capital punishment procedures for courts-martial. 32 MJ 252 (1991). The Supreme Court upheld the constitutionality of those procedures in Loving v. United States, ___ U.S. ___, 116 S.Ct. 1737 (1996). After a plenary review of all remaining issues, we remanded this case to the court below for further review of several issues. 33 MJ 101 (1991). The court below again affirmed. 38 MJ 530 (1993).
After our second plenary review, we affirmed the decision of the court below, with one judge concurring separately and one judge concurring in part and dissenting in part. 44 MJ 106 (1996). Appellant then requested reconsideration, and this Court ordered further oral argument thereon.
We now grant appellantís petition for reconsideration. After reconsideration, we adhere to our prior decision affirming the findings of guilty, but we reverse the decision of the court below as to sentence.
We conclude that trial defense counselís performance during the sentencing hearing was deficient and that there is a reasonable probability that there would have been a different result if all available mitigating evidence had been exploited by the defense. See Strickland v. Washington, 466 U.S. 668, 694 (1984); see also United States v. Curtis, 44 MJ 106, 171-73 (1996) (Gierke, J., concurring in part and dissenting in part). Accordingly, we need not address the other issues raised in appellantís petition for reconsideration.
For the reasons set out by Judge Crawford in this Courtís previous opinion, we adhere to that decision as to findings.
The decision of the United States Navy-Marine Corps Court of Military Review is reversed as to sentence. The record of trial is returned to the Judge Advocate General of the Navy for remand to the United States Navy-Marine Corps Court of Criminal Appeals. That court may affirm a sentence of life imprisonment and accessory penalties, or order a rehearing on sentence.
SULLIVAN, Judge (dissenting):
I disagree with the new majority on the ineffective-assistance-of-counsel issue. I fail to see why the Court has changed its position on this very important issue and case. Earlier, I stated my view on this question and I adhere to it today. I said:
Although there is evidence in the record that Curtis did some heavy drinking before the murders,* the fact remains that appellant had sufficient mental and physical abilities to:
5. successfully take a bicycle and ride at night 1.5 miles to LT Lotzí home;
7. knock on the front door of the Lotz home and verbally trick a Marine officer into letting him inside his home at midnight;
8. with a knife confront and kill that Marine officer with 2 stabs;
10. search the Lotz house and find car keys and money for gas;
11. steal one car from the Lotz house; and
12. return to the Lotz home and steal the other car.
With such a jury and such a record, the "alcohol abuse-excuse" may not have been the best course of action for the defense. Moreover, a smart jury would understand that a blood alcohol content of .06 at 7:00 a.m. the next morning proves nothing about the mental and physical ability of a defendant at midnight 7 hours before. Especially if the jury remembers Curtis took a canteen of gin and Mountain Dew with him on his trip to the Lotz home.
* Appellant on direct examination responded that he consumed "no more" than a pint of alcohol the night of the murders.
CRAWFORD, Judge (dissenting):
There have been two reviews by the court below. 28 MJ 1074 (1989) and 38 MJ 530 (1993). This marks the fourth time appellant's case has been heard by this Court. 32 MJ 252 (1991), 33 MJ 101 (1991), and 44 MJ 106 (1996). None of these decisions reversed the findings or sentence. On the issue of ineffectiveness of counsel, there have been no changes in the law or the facts since the trial.
A number of Federal courts have held
in capital cases that the defense counsel was not ineffective for failing
to introduce intoxication alone or together with other mitigating evidence
during the sentencing stage. White v. Singletary, 972 F.2d 1218,
1220-21, 1224-26 (11th Cir. 1992); Lashley v. Armontrout,
957 F.2d 1495, 1497-98 (8th Cir. 1992); Romaro v. Lynaugh,
884 F.2d 871, 876-77 (5th Cir. 1989); Woratzeck v. Ricketts,
820 F.2d 1450, 1456 (9th Cir. 1987). Historically, intoxication
has not been considered to be a matter in mitigation but a matter in aggravation.
Montana v. Egelhoff, ___ U.S. ___, ___, 116 S.Ct. 2013, 2017-19
Thus, for the reasons set forth above and in my earlier opinion, 44 MJ at 118-24, I dissent.