Dwight J. Loving
is one of nine military personnel death row. Loving was
sentenced to death following his conviction for murdering two taxicab
drivers on December 12, 1988.
He was a private at Fort Hood, Texas at the time of
the murders. The executions of Loving and Ronald A. Gray would be the
first by the U.S. military since 1961.
Loving was an Army private stationed at Fort Hood,
Texas. On the night of December 11, 1988, he committed two armed
robberies of convenience stores, netting less than $100. He then decided
to rob some cab drivers.
On December 12, during the course of those robberies,
Loving murdered two taxicab drivers and attempted to murder a third.
The court-martial evidence, which included Loving's
undisputed videotaped confession, established the following facts: the
first robbery and murder victim, Pvt. Christopher Fay, was an active
duty soldier working for extra money as a cab driver.
At approximately 8:00 p.m. on December 12, Fay drove
Loving from Killeen, Texas, to a secluded area of Fort Hood, where
Loving robbed him at gunpoint. After taking Fay's money, Loving shot Kay
in the back of the head.
While watching blood "gushing out" of Fay's head,
Loving shot him in the back of the head a second time. Fay's dead body
was discovered by another soldier at Fort Hood a short while later.
Loving, after fleeing to his Fort Hood barracks,
called for a second cab at 8:15 that same evening. The second cab,
driven by retired Army Sergeant Bobby Sharbino, drove Loving from Fort
Hood to a secluded street in Killeen, Texas.
Loving then robbed Sharbino at gunpoint, ordered him
to lie down on the seat, and murdered him by shooting him in the head.
After the second murder, Loving socialized with his
girlfriend and others at local nightclubs. Later that evening, he robbed
and attempted to murder a third cab driver. The cab driver successfully
defended himself, but Loving escaped on foot.
The next day, Loving was arrested by Army
investigators and made a videotaped confession; he later reviewed and
signed a written transcript of the confession.
United States Court
of Appeals for the Armed Forces
Dwight J. LOVING, Private U.S. Army,
William L. HART, Colonel, Commandant, United States Disciplinary
and The United States, Appellees
Crim. App. No. 9601437
Argued December 17, 1996
Decided February 26, 1998
Opinion of the Court
A general court-martial
convicted appellant, contrary to his pleas, of premeditated murder,
felony murder, attempted murder, and robbery (5 specifications), in
violation of Articles 118, 80, and 122, Uniform Code of Military Justice,
10 USC §§ 918, 880, and 922, respectively. The court-martial sentenced
appellant to a dishonorable discharge, total forfeitures, and to be put
to death. On direct appeal appellant raised 70 issues. After
specifically addressing each issue, our Court affirmed the decision of
the Court of Military Review,
which had affirmed the findings and sentence. 41 MJ 213, 229 (1994),
modified on reconsideration, 42 MJ 109 (1995). The Supreme Court
affirmed our decision. 116 S.Ct. 1737 (1996).
After the Supreme Court’s
decision, appellant filed a petition for extraordinary relief in the
nature of a writ of mandamus with the Court of Criminal Appeals,
electing to raise only one issue: that he was entitled to extraordinary
relief because his death sentence was based in part on a conviction of
felony murder that was unsupported by a unanimous finding of intent to
kill or reckless indifference to human life. The Court of Criminal
Appeals summarily denied relief in an unpublished order dated September
9, 1996. Appellant then filed a writ-appeal petition with this Court,
which we granted on November 5, 1996, and set the petition for oral
argument. For the reasons set out below, we affirm the decision of the
Court of Criminal Appeals denying the petition for extraordinary relief.
At appellant’s court-martial the
members unanimously found that the following three aggravating factors
were proved beyond a reasonable doubt:
1. . . . The premeditated
murder of Bobby Gene Sharbino was committed while the accused was
engaged in the commission or attempted commission of a robbery.
2. . . . Having been found
guilty of the felony murder of Christopher Fay as set forth in
specification 3 of Charge I, the accused was the actual perpetrator
of the killing.
3. . . . Having been found
guilty of premeditated murder of Bobby Gene Sharbino, the accused
was also found guilty of another violation of Article 118, UCMJ, in
the same case.
41 MJ at 301. In accordance with
RCM 1004(b)(4)(C), Manual for Courts-Martial, United States (1995 ed.),
the members also unanimously found that any extenuating and mitigating
circumstances were substantially outweighed by any aggravating
circumstances. 41 MJ at 302.
In our direct review of this
case, we agreed with the Court of Military Review’s conclusion that the
number of aggravating factors did not affect the decision of the court-martial
to impose the death sentence. 41 MJ at 268.
During oral argument before the
Supreme Court, Justice Scalia questioned the constitutional validity of
Article 118(4) because it is punishable by death but does not require an
intent to kill. Tr. Oral Arg. at 8-14. In its decision, the Supreme
Article 118(4) by its terms
permits death to be imposed for felony murder even if the accused
had no intent to kill and even if he did not do the killing himself.
The Eighth Amendment does not permit the death penalty to be imposed
in those circumstances. Enmund v. Florida, 458 U.S. 782, 801,
102 S.Ct. 3368, 3378-3379, 73 L.Ed. 2d 1140 (1982). As a result,
additional aggravating factors establishing a higher culpability are
necessary to save Article 118.
116 S.Ct. at 1742.
Appellant now argues that felony
murder under Article 118(4) is constitutionally infirm as a capital
offense because it does not require an intent to kill. He argues further
that the second aggravating factor -- that he was the actual perpetrator
of the killing in the felony murder of Mr. Fay -- is constitutionally
defective, because it is unsupported by a unanimous finding of intent to
kill or reckless indifference to the value of human life. He argues that
the errors were prejudicial because the court members were told that
there were two death-eligible offenses when in fact there was only one
and that there were three aggravating factors when there were only two.
Defense Reply at 8. Appellant asks our Court for "a writ of habeas
corpus or other appropriate extraordinary relief setting aside the death
penalty . . . and ordering" a sentencing rehearing. Writ-Appeal Petition
This Court has jurisdiction to
act on appellant’s petition for extraordinary relief and to issue a writ
under the All Writs Act, 28 USC §1651(a). See Noyd v. Bond,
395 U.S. 683, 695 n. 7 (1969); Dettinger v. United States, 7 MJ
216 (1979); United States v. Frischholz, 16 USCMA 150, 152, 36
CMR 306, 308 (1966).
The aggravating factor at issue
in appellant’s case is the so-called "triggerman" factor. The version in
effect at the time of appellant’s trial read as follows: "That only in
the case of a violation of Article 118(4), the accused was the actual
perpetrator of the killing." RCM 1004(c)(8), Manual for Courts-Martial,
United States, 1984 (Change 2, 1986).
The members specifically found that appellant was the "actual
perpetrator of the killing." 41 MJ at 301.
When analyzing an appellant’s
assertion that an aggravating factor is invalid, "it is essential to
keep in mind the sense in which . . . [it] is ‘invalid.’" Zant v.
Stephens, 462 U.S. 862, 885 (1983). Some Supreme Court decisions on
"invalid" aggravating factors involve procedural or evidentiary errors
resulting in erroneous admission of aggravating evidence or exclusion of
mitigating evidence. See, e.g., Tuggle v. Netherland, 116
S.Ct. 283 (1995) (defendant erroneously denied expert assistance to
rebut psychiatric evidence of future dangerousness). In this writ appeal
appellant does not assert that inadmissible evidence was considered on
sentencing or that mitigating evidence was erroneously excluded.
Some Supreme Court cases involve
aggravating factors that are too vague. See, e.g., Maynard v.
Cartwright, 486 U.S. 356 (1988) ("especially heinous, atrocious, or
cruel" aggravating circumstance too vague). Appellant does not assert
that the "actual perpetrator" factor is too vague.
Instead, appellant asserts that
the term, "actual perpetrator of the killing," is too broad and thus
fails to "genuinely narrow the class of persons eligible for the death
penalty." Writ-Appeal Petition at 7, 12; see Zant, 462 U.S.
at 877; see also Godfrey v. Georgia, 446 U.S. 420, 428-29
(1980) (phrase "outrageously or wantonly vile, horrible or inhuman" too
broad "because a person of ordinary sensibility could find that almost
every murder fit the stated criteria"). Quoting the Ninth Circuit in
United States v. Cheely, 36 F.3d 1439, 1443 n. 9 (1994), he argues
that "[t]he least culpable mental state the Supreme Court has held death-eligible
is reckless indifference to human life during commission of a felony."
Writ-Appeal Petition at 8.
In assessing the impact of a
factor alleged to be invalid, it is necessary to determine where in the
sentencing process the alleged error occurred. We recognized in our
direct review of this case that the various jurisdictions where capital
punishment is authorized fall into two general categories: "weighing"
and "nonweighing" jurisdictions. We explained:
A "weighing" state balances
extenuating and mitigating circumstances against statutory
aggravating factors. A "nonweighing" state requires that a statutory
aggravating factor be found in order to adjudge a death sentence,
but does not require that it be weighed against extenuating and
41 MJ at 248 (RCM 1004 combines
procedures of weighing and nonweighing jurisdictions).
The military capital sentencing
procedure set out in RCM 1004 and 1006 establishes four "gates" to
narrow the class of death-eligible offenders. The first two gates
parallel nonweighing jurisdictions in that the members must convict by
unanimous vote (RCM 1004(a)(2)) and then find at least one aggravating
factor by unanimous vote (RCM 1004(b)(4)(A)). Only after these two gates
are passed does the weighing process begin. The third gate is a "weighing"
gate, where the members must all "concur" that extenuating and "mitigating
circumstances are substantially outweighed by any aggravating
circumstances," including the aggravating factors under RCM 1004(c).
See RCM 1004(b)(4)(C). Only after these three gates are passed does
an accused become "death eligible."
The fourth and final gate is the
sentencing decision itself under RCM 1006. Even if all members concur
that extenuating and mitigating circumstances are substantially
outweighed by aggravating circumstances, they must separately consider
whether to impose the death sentence. A death sentence requires the
unanimous vote of all members. RCM 1006(d)(4)(A).
The pivotal issue in this case
is whether there was any error at the second gate, in connection with
the court-martial’s finding with respect to the second aggravating
factor: that appellant was "the actual perpetrator of the killing."
Accordingly, we first consider whether there was any error at this gate
and then evaluate whether any error tainted the death sentence.
Several general principles guide
us in determining whether capital sentencing procedures pass
constitutional muster. First, sentencing standards "must genuinely
narrow the class of persons eligible for the death penalty." Second, the
standards "must reasonably justify the imposition of a more severe
sentence on the defendant compared to others found guilty of murder."
Zant, 462 U.S. at 877; see also Tuilaepa v. California,
512 U.S. 967, 972, 114 S.Ct. 2630, 2635 (1994); Arave v. Creech,
507 U.S. 463, 474, 113 S.Ct. 1534, 1542 (1993). Third, the standards
must provide "reliability in the determination that death is the
appropriate punishment." Zant, supra at 884-85. Finally,
in order to ensure reliability, the process must "make rationally
reviewable the process for imposing a sentence of death." Tuilaepa,
512 U.S. at 973, 114 S.Ct. at 2635, quoting Arave, 507 U.S. at
471, 113 S.Ct. at 1540. In most cases, the requirement that the process
be "rationally reviewable" is satisfied by requiring specific answers to
questions "with a factual nexus to the crime or the defendant." 512 U.S.
at 973, 114 S.Ct. at 2635.
Stringer v. Black, 503
U.S. 222, 232 (1992), held that when the weighing process is "skewed" by
consideration of an invalid factor, "only constitutional harmless-error
analysis or reweighing at the trial or appellate level suffices to
guarantee that the defendant received an individualized sentence."
Clemons v. Mississippi,
494 U.S. 738, 754 (1990), held that appellate reweighing or harmless-error
analysis is constitutionally permissible, unless "peculiarities in a
case make appellate reweighing or harmless-error analysis extremely
speculative or impossible." Although Clemons held that appellate
reweighing is constitutionally permissible, whether a specific appellate
court has authority to reweigh is determined by the law of the
jurisdiction. After Clemons was remanded to the Mississippi
Supreme Court, that court decided that it did not have authority to
reweigh. 593 So. 2d 1004 (1992); see also Reeves v. Hopkins,
871 F. Supp. 1182, 1195 (D.Neb. 1994) (appellate resentencing
constitutionally permitted but may be done only if state law permits it),
rev’d in part, 76 F.3d 1424, 1427 (8th Cir. 1996).
Enmund v. Florida, 458
U.S. 782, 796-97 (1982), held that the Eighth Amendment was violated by
imposition of the death penalty on a person who aided and abetted a
felony murder by driving the getaway car in a robbery, but who did not
himself kill or intend to kill. Enmund held that a death sentence
under those circumstances was excessive and disproportionate.
Tison v. Arizona, 481 U.S.
137, 158 (1987), held that the culpability requirement imposed by
Enmund could be satisfied by "major participation in the felony
committed, combined with reckless indifference to human life." In
Tison the trial court had specifically found that the defendant’s
participation in the felony murder was "substantial" but made no
specific finding that the defendant exhibited reckless indifference to
human life. The Supreme Court remanded the case for a specific finding
of the latter.
Justice O’Connor, writing for
the five Justices in the Tison majority, placed Enmund at
the low end of the spectrum of culpability. 481 U.S. at 149. Justice
O’Connor observed that the Court in Enmund also "dealt with the
other polar case: the felony murderer who actually killed, attempted to
kill, or intended to kill." She stated that the Court in Enmund "clearly
held that the equally small number of jurisdictions that limited the
death penalty to these circumstances [actually killed, attempted to kill,
or intended to kill] could continue to exact it." 481 U.S. at 150.
O’Connor’s description of the Enmund holding, the Court’s holding
in Tison is limited to the question whether "major participation
in the felony committed, combined with reckless indifference to human
life, is sufficient to satisfy the Enmund culpability requirement."
The Court declined "to precisely delineate the particular types of
conduct and states of mind warranting imposition of the death penalty
here." 481 U.S. at 158.
Neither Enmund nor
Tison involved an actual killer. Thus, left unanswered after
Enmund and Tison is the question whether a person who "actually
killed" may be sentenced to death absent a finding that the person
intended to kill. As highlighted by Justice Scalia in the Loving
oral argument, the phrase "actually killed" could include an accused who
accidentally killed someone during commission of a felony, unless the
term is limited to situations where the accused intended to kill or
acted with reckless indifference to human life.
We note that Justice White, who
wrote the majority opinion in Enmund and joined the majority
opinion in Tison, had earlier written separately in Lockett v.
Ohio, 438 U.S. 586 (1978), expressing his view that "it violates the
Eighth Amendment to impose the penalty of death without a finding that
the defendant possessed a purpose to cause the death of the victim." 438
U.S. at 624. Without speculating on the views of the current membership
of the Supreme Court, we conclude that when Enmund and Tison
were decided, a majority of the Supreme Court was unwilling to affirm a
death sentence for felony murder unless it was supported by a finding of
culpability based on an intentional killing or substantial participation
in a felony combined with reckless indifference to human life. Thus, we
conclude that the phrase, "actually killed," as used in Enmund
and Tison, must be construed to mean a person who intentionally
kills, or substantially participates in a felony and exhibits reckless
indifference to human life.
The version of RCM 1004(c)(8) in
effect at the time of trial contained the phrase, "actual perpetrator of
the killing." According to the 1991 amendment to the Drafters’ Analysis
of this Rule, it was based on the Supreme Court’s holding in Enmund.
See Manual, supra (1995 ed.) at A21-73. RCM 1004(c)(8) had
been amended in 1991, after appellant’s trial, to cover persons other
than the one who "actually killed" and to incorporate the Supreme
Court’s decision in Tison. Drafters’ Analysis, supra.
The requirement of Zant,
462 U.S. at 877, to "genuinely narrow the class of persons eligible for
the death penalty" is met in felony-murder cases only if there is a
rational connection between the level of culpability and the narrowing
process. In short, only the most culpable should be death eligible. When
Congress enacted Article 118, it made a legislative determination that
only premeditated murder under Article 118(1) and felony-murder under
Article 118(4) are punishable by death. However, unpremeditated murder
under Article 118(2), which includes intentional killings, is not
punishable by death. Thus, unless we interpret Article 118(4) to apply
only to cases involving intentional killing or reckless indifference to
human life, we create the anomaly of the accidental killer being death
eligible under Article 118(4) but the intentional killer not being death
eligible under Article 118(2).
This interpretation would allow
the death penalty for the person who unintentionally kills by firing
through the ceiling during a robbery in an effort to scare the victim or
someone whose intended victim dies of a heart attack during a robbery,
but it would not permit the death penalty for a person who, without
premeditation, intentionally kills. We believe that such an
interpretation of Article 118 and the aggravating factors under RCM 1004
would violate Zant’s requirement that the aggravating factor "reasonably
justify the imposition of a more severe sentence on the defendant
compared to others found guilty of murder." 462 U.S. at 877.
Based on the foregoing analysis,
we conclude that felony-murder under Article 118(4) can pass
constitutional muster as a capital offense only if it is combined with
an aggravating factor sufficient to satisfy the narrowing requirement of
Zant v. Stephens, supra, and culpability requirements of
Enmund and Tison. Although Enmund and Tison
were decided on the basis of proportionality and did not decide the
validity of an aggravating factor, the culpability requirement is part
and parcel of the narrowing process required by Zant in felony-murder
In Godfrey v. Georgia,
446 U.S. 420 (1980), a plurality of the Supreme Court suggested that an
otherwise overly broad aggravating factor can be made constitutionally
acceptable if state courts apply a constitutionally sufficient
interpretation and narrow the factor by appropriate jury instructions.
Id. at 429-32. An aggravating factor passes the constitutional-vagueness
test "if it has some ‘common-sense’ core of meaning . . . that criminal
juries should be capable of understanding.’" Tuilaepa, 512 U.S.
at 973, 114 S.Ct. at 2636. Thus, we hold that the aggravating factor in
RCM 1004(c)(8) -- that appellant was the "actual perpetrator of the
killing" -- is constitutionally valid on its face, provided that it is
understood to be limited to a person who kills intentionally or acts
with reckless indifference to human life.
In appellant’s case the court
members unanimously found that appellant was the "actual perpetrator of
the killing." For the reasons set out below, we are satisfied that in
this case the court members understood the term to mean an intentional
The issue is before us in this
case because the military judge did not define the term "actual
perpetrator of the killing." Defense counsel did not request that he do
so or object to the lack of definition. Thus, we must determine whether
there was a deficiency in the military judge’s instructions that
undermines the validity of the finding that appellant was the "actual
perpetrator of the killing." We hold that the military judge’s failure
to define the term was not error under the particular facts of this
Neither the aggravating factors
nor the Enmund/Tison culpability requirement are elements of the
offense. See Walton v. Arizona, 497 U.S. 639, 648-49
(1990). Thus, definition of the term, "actual perpetrator of the killing,"
was not a required instruction unless it was "necessary" under RCM
920(e)(7), which requires "[s]uch other explanations, descriptions, or
directions as may be necessary and which are properly requested by a
party or which the military judge determines, sua sponte, should be
given." Under RCM 920(f), "[f]ailure to object . . . to omission of an
instruction . . . constitutes waiver . . . in the absence of plain
error." We need not decide whether waiver or plain error applies to this
case, because we hold that the military judge’s failure to define
"actual perpetrator of the killing" was not error under the particular
facts of this case.
The overwhelming and uncontested
evidence established that appellant, acting alone, personally and
intentionally killed Mr. Fay. The defense did not assert that appellant
shot Mr. Fay accidentally or unintentionally. The Court of Military
Review described the killing of Mr. Fay as follows:
After entering the taxicab
and after arriving at Fort Hood, appellant directed the driver to
park in a dark secluded area behind the barracks. He produced a
pistol, held the pistol to the driver’s head, ordered the driver to
shut off the car’s motor and lights, and demanded all the driver’s
money. After replying "bullshit" to the driver’s protests that he
had surrendered all of the money, appellant shot the driver in the
back of the head. While looking at the hole in the back of the
victim’s head and the blood "gushing out," appellant cocked the
pistol and shot him in the back of the head again.
34 MJ at 959. In our direct
review of this case, we described the facts similarly:
After receiving an unknown
amount of money from Fay, appellant shot him in the back of the head.
While watching the blood "gushing out" of the back of Fay’s head,
appellant shot him in the back of the head a second time.
41 MJ at 229.
Under these facts, there is no
reasonable possibility that the court members understood the term
"actual perpetrator of the killing" to mean anything other than an
intentional killing. A reasonable factfinder at either the trial or
appellate level could come to no other conclusion, because there simply
was no issue of fact to be resolved. The issue of an accidental or
unintentional killing was not raised. Thus, we hold that no clarifying
instruction was required. See United States v. Ferguson,
15 MJ 12, 19-21 (CMA 1983) (defense of accident not raised by the
Even assuming arguendo
that an instruction defining "actual perpetrator of the killing" should
have been given, we are satisfied that such a deficiency was harmless
beyond a reasonable doubt because it could not possibly have affected
the court-martial’s finding of the aggravating factor. See
People v. Osband, 919 P.2d 640, 678 (Cal. 1996) (error in failing to
instruct jury that special circumstance includes an intent to kill was "harmless
when ‘the evidence of defendant’s intent to kill . . . was overwhelming,
and the jury could have had no reasonable doubt on that matter.’");
State v. Breedlove, 655 So. 2d 74, 76-77 (Fla. 1995) (instructional
error harmless where "aggravator clearly existed and would have been
found even if the requested instruction had been given").
In an appropriate case we could
remand to the Court of Criminal Appeals for a specific finding of
culpability, as the Supreme Court did in Tison. See Cabana v.
Bullock, 474 U.S. 376, 392 (1986) (state appellate court may make
culpability finding required by Enmund). In view of the complete
absence of any factual issue on this matter, and our conclusion that any
instructional deficiency was harmless beyond a reasonable doubt, no
remand is required.
Finally, assuming arguendo
that there was a deficiency in the military judge’s instructions
regarding the "actual-perpetrator" factor, we are satisfied beyond a
reasonable doubt that any such deficiency did not affect the sentencing
process. The issue with respect to the "actual-perpetrator" factor arose
at the second gate of determining "death eligibility," before the
weighing process began. When there is a defective aggravating factor in
the "nonweighing" phase of the sentencing process, the error does not
require reversal where there is at least one other valid aggravating
factor. As the Supreme Court held in Stringer, 503 U.S. at 232,
112 S.Ct. at 1137: "[S]o long as the sentencing body finds at least one
valid aggravating factor, the fact that it also finds an invalid
aggravating factor does not infect the formal process of deciding
whether death is an appropriate penalty." Because at least one other
valid aggravating factor was found in this case, we hold that any
instructional deficiency concerning the "actual-perpetrator" factor did
not affect the nonweighing phase of the sentencing process.
We turn next to the weighing
phase of appellant’s sentencing. The Supreme Court set the standard of
review in Stringer v. Black, supra, as follows:
But when the sentencing body
is told to weigh an invalid factor in its decision, a reviewing
court may not assume it would have made no difference if the thumb
had been removed from death’s side of the scale. When the weighing
process itself has been skewed, only constitutional harmless-error
analysis or reweighing at the trial or appellate level suffices to
guarantee that the defendant received an individualized sentence.
503 U.S. at 232, 112 S.Ct at
For the reasons set out below,
we hold that no appellate reweighing is required because the error was
harmless beyond a reasonable doubt. Thus, we do not reach the question
whether this Court or a Court of Criminal Appeals has the legal
authority to reweigh.
necessarily requires review of the entire record, including examination
of the aggravating circumstances (including the aggravating factors) and
mitigating circumstances that were presented to the sentencing authority.
Even if the court-martial's finding regarding the "actual-perpetrator"
factor was defective, appellant's role as the "actual perpetrator of the
killing" was properly considered by the members as an aggravating
circumstance. See RCM 1004(b)(4)(C). In effect, any error
resulted only in the triggerman circumstance being mislabeled as a
factor, but the facts and circumstances were properly in the balance and
were unchanged. Thus, any defect in the court-martial's finding
concerning the "actual-perpetrator" factor did not put a "thumb" on "death’s
side of the scale" because the same facts and circumstances remained on
the same sides of the scale. Stringer, supra at 232. While
in some circumstances a change of labels may change the weight to be
given to evidence, we are satisfied that changing appellant’s role as
the "actual perpetrator" from a "factor" to a "circumstance" neither
adds to nor detracts from its weight. Since the balance of aggravating
and mitigating circumstances was unchanged, we are satisfied beyond a
reasonable doubt that any error was harmless, because any mislabeling
could have had no impact on the court members’ decision to impose the
death sentence. See Zant, 462 U.S. at 888-89 (mislabeling
aggravating circumstance as a "statutory" circumstance had an "inconsequential
impact" on sentencing where evidence was otherwise admissible and jury
was instructed to consider all facts and circumstances in extenuation,
mitigation, and aggravation); see also Hampton v. Page,
103 F. 3d 1338, 1345 (7th Cir. 1997) (mislabeling
nonstatutory aggravator as statutory harmless; sentencer "free . . .to
consider the conduct, regardless of how it was labeled").
Appellant argues, however, that
the error is not harmless beyond a reasonable doubt because we cannot be
sure that the members were not influenced by the fact that appellant was
being sentenced for two capital offenses instead of one and the presence
of three aggravating factors instead of two. For the reasons set out
above, we hold that appellant was convicted of a capital felony-murder
that satisfies the proportionality requirements of Enmund and
Tison. We further hold that the "actual-perpetrator" factor in RCM
1004(c)(8) is facially valid and was applied in a constitutionally
permissible manner in this case. Thus, to the extent that number of
offenses and aggravating factors influenced the sentencing decision, we
hold that the court members properly considered two capital offenses and
three aggravating factors.
Finally, even if we assume
arguendo that there is some deficiency in the findings based on the
military judge’s failure to define the term, "actual perpetrator of the
killing," we are satisfied beyond a reasonable doubt that appellant’s
sentence was not affected by numerical counting of offenses, factors, or
circumstances. See Loving, 41 MJ at 268. The only
identification of capital offenses occurred during the military judge’s
procedural instructions for voting on findings. Although special
findings were required on the three aggravating factors submitted by the
prosecution, the entire emphasis by counsel for both sides during the
sentencing proceedings was on the facts and circumstances of the
offenses and the background of appellant, not on the number of capital
offenses or aggravating factors. Neither counsel made reference to the
number of capital offenses or aggravating factors in their sentencing
arguments. Although the military judge instructed the members that they
must find at least one aggravating factor, the military judge’s
identification of capital offenses was so minimal that appellant
assigned as error on direct review the failure of the military judge to
identify which offenses were capital offenses. See 41 MJ at 252;
see also Davis v. Executive Director of Department of
Corrections, 100 F.3d 750, 774 (10th Cir. 1996) (examines
judge’s instructions to determine if number of aggravating factors
affected sentence); White v. Singletary, 972 F.2d 1218, 1226-27
(11th Cir. 1992) (upholding state’s harmless-error analysis
after two of four aggravating factors held invalid); Jackson v. State,
498 So. 2d 406, 411 (Fla. 1986) (double counting of aggravating factors
harmless; "sentencing statute requires a weighing rather than a mere
tabulation of factors in aggravation and mitigation"). Accordingly, we
are satisfied beyond a reasonable doubt that the number of capital
offenses and number of aggravating factors had no impact on the
sentencing deliberations and that the mislabeling of the triggerman
circumstance as a "factor" was likewise harmless beyond a reasonable
The decision of the United
States Army Court of Criminal Appeals denying the petition for
extraordinary relief is affirmed.
Chief Judge COX and Judge CRAWFORD concur.
1 See 41 MJ
213, 229 n.* (1994).
2 This version of the
rule was in effect at the time of the offense in 1988.
3 Except for
references to RCM 1004(c)(8), all references to RCMs are to the 1995
edition of the Manual for Courts-Martial, which contains the version in
effect at the time of the offenses.
4 Notwithstanding our
holding in this case, we strongly urge military judges in future cases
to define the term "actual perpetrator of the killing" to avoid this
SULLIVAN, Judge (concurring in
part and in the result):
The majority opinion is close to the right path and is walking basically
in the right direction in this case. Generally, I agree with that
opinion’s analysis and conclusion that any error in use of RCM
1004(c)(8), Manual for Courts-Martial, United States, 1984, as an
aggravating factor in this case was harmless beyond a reasonable doubt.
Stringer v. Black, 503 U.S. 222, 232, 112 S.Ct. 1130, 1137
(1992); United States v. Loving, 41 MJ 213, 268 (1994); but cf.
United States v. Curtis, 32 MJ 252, 270 (CMA 1991)(remand to
lower appellate court to consider effect of invalid aggravating factor);
United States v. McCullah, 76 F.3d 1087, 1111-12 (10th
Cir. 1996). Nevertheless, I would also hold that RCM 1004(c)(8) ("actual
perpertrator [sic] of the killing") is a valid aggravating factor which permits imposition
of the death penalty for felony murder in this case. Curtis,
supra at 265; Calhoun v. State, 468 A.2d 45, 74 (Md. 1983).
Article 118, Uniform Code of
Military Justice, 10 USC § 918, proscribes the crime of murder and
delineates those murders which are capital. It stated at the time of
§ 918. Art. 118.
Any person subject to
this chapter who, without justification or excuse, unlawfully
kills a human being, when he—
(1) has a premeditated
design to kill;
(2) intends to kill or
inflict great bodily harm;
(3) is engaged in an act
which is inherently dangerous to others and evinces a wanton
disregard of human life; or
(4) is engaged in the
perpetration or attempted perpetration of burglary, sodomy,
rape, robbery, or aggravated arson;
is guilty of murder, and
shall suffer such punishment as a court-martial may direct,
except that if found guilty under clause (1) or (4), he shall
suffer death or imprisonment for life as a court-martial may
(Emphasis added.) Petitioner
stands convicted before this Court of two capital violations of this
statute: the premeditated murder of Bobby Sharbino (Article 118(1)) and
the felony murder of Christopher Fay (Article 118(4)). See 41 MJ
In Loving v. United States,
___ U.S. ___, 116 S.Ct. 1737, 1742 (1996), the Supreme Court, relying on
Enmund v. Florida, 458 U.S. 782, 801, 102 S.Ct. 3368, 3378-79, 73
L.Ed. 2d 1140 (1982), held that Article 118, to the extent it delineated
capital murder, violated the Eighth Amendment. Justice Kennedy said:
[W]e agree with Loving,
on the assumption that Furman[v. Georgia, 408 U.S. 238,
92 S.Ct. 2726, 33 L.Ed.2d 346 (1972)] applies to this case, that
aggravating factors are necessary to the constitutional validity
of the military capital-punishment scheme as now enacted.
Article 118 authorizes the death penalty for but two of the four
types of murder specified: premeditated and felony murder are
punishable by death, 10 U.S.C. §§ 918(1), (4), whereas
intentional murder without premeditation and murder resulting
from wanton and dangerous conduct are not, §§ 918(2), (3).
The statute’s selection of the two types of murder for the death
penalty, however, does not narrow the death-eligible class in a
way consistent with our cases. Article 118(4) by its terms
permits death to be imposed for felony murder even if the
accused had no intent to kill and even if he did not do the
killing himself. The Eighth Amendment does not permit the death
penalty to be imposed in those circumstances. Enmund v.
Florida, 458 U.S. 782, 801, 102 S.Ct. 3368, 3378-3379, 73
L.Ed.2d 1140 (1982). As a result, additional aggravating factors
establishing a higher culpability are necessary to save Article
118. We turn to the question whether it violated the principle
of separation of powers for the President to prescribe the
aggravating factors required by the Eighth Amendment.
(Emphasis added.) It further
held that the President may constitutionally prescribe the "aggravating
factors establishing a higher culpability" necessary to save Article
118, and he did so in RCM 1004(c). 116 S.Ct. at 1751.
unanimously found the following Presidential aggravating factors existed
in this case:
1. . . . The
premeditated murder of Bobby Gene Sharbino was committed while
the accused was engaged in the commission or attempted
commission of a robbery.
2. . . . Having been
found guilty of the felony murder of Christopher Fay as set
forth in specification 3 of Charge I, the accused was the actual
perpetrator of the killing.
3. . . . Having been
found guilty of premeditated murder of Bobby Gene Sharbino, the
accused was also found guilty of another violation of Article
118, UCMJ, in the same case.
41 MJ at 301. Our majority
opinion in Loving pointed out:
These findings as to
aggravating factors were consistent with the court-martial’s
unanimous findings of guilty as to the premeditated murder of
Bobby Gene Sharbino (specification 2 of Charge I); the felony
murder of Bobby Gene Sharbino (specification 4 of Charge I),
which was later dismissed as multiplicious; and the felony
murder of Christopher Fay (specification 3 of Charge I).
Id. at 267.
Appellant, before this Court,
summarizes his argument on this writ-appeal petition as follows:
It is now clear that Private Dwight J. Loving’s death sentence
violates the Eighth and Fourteenth Amendments. Because Private Loving was convicted of felony murder pursuant
to Uniform Code of Military Justice, Article 118(4), 10 USC §
918(4) (1982) [UCMJ], and because the aggravating circumstance
was that Private Loving was the "trigger-man" in that felony
murder (Manual for Courts-Martial, United States, 1984, Rule for
Courts-Martial [RCM] 1004((c)(7)(B)(2)), his sentence of death
is incompatible with the Eighth Amendment requirement that: "a
capital-sentencing scheme must ‘genuinely narrow the class of
persons eligible for the death penalty and must reasonably
justify the imposition of a more severe sentence on the
defendant compared to others found guilty of murder.’"
Lowenfield v. Phelps, 484 U.S. 231, 244 (1988) (quoting
Zant v. Stephens, 462 U.S. 862, 877 (1983)).
Writ-Appeal Petition at 1.
I can find no provision in the Manual for Courts-Martial, United States,
1984, in effect at the time of appellant’s trial,
which is designated RCM 1004(c)(7)(B)(2). However, the so-called "triggerman"
aggravating factor which he challenges is found in RCM 1004(c)(8),
Manual, supra. In pertinent part, RCM 1004 stated at the time of
Aggravating factors. Death may be adjudged only if the
members find, beyond a reasonable doubt, one or more of the
following aggravating factors:
* * *
(7) That, only in the
case of a violation of Article 118(l):
(A) The accused was
serving a sentence of confinement for 30 years or more or for
life at the time of the murder;
(B) The murder was
committed while the accused was engaged in the commission or
attempted commission of any robbery, rape, aggravated arson,
sodomy, burglary, kidnapping, mutiny, sedition, or piracy of
an aircraft or vessel, or was engaged in flight or attempted
flight after the commission or attempted commission of any
(C) The murder was
committed for the purpose of receiving money or a thing of
(D) The accused
procured another by means of compulsion, coercion, or a
promise of an advantage, a service, or a thing of value to
commit the murder;
(E) The murder was
committed with the intent to avoid or to prevent lawful
apprehension or effect an escape from custody or confinement;
(F) The victim was the
President of the United States, the President-elect, the Vice
President, or, if there was no Vice President, the officer in
the order of succession to the office of President of the
United States, the Vice-President-elect, or any individual who
is acting as President under the Constitution and laws of the
United States, any Member of Congress (including a Delegate to,
or Resident Commissioner in, the Congress) or Member-of-Congress
elect, justice or judge of the United States, a chief of state
or head of government (or the political equivalent) of a
foreign nation, or a foreign official (as such term is defined
in section 1116(b)(3)(A) of title 18, United States Code), if
the official was on official business at the time of
the offense and was in the United States or in a place
described in Mil. R. Evid. 315(c) (2), 315(c)(3);
(G) The accused then
knew that the victim was any of the following persons in the
execution of office: a commissioned, warrant, noncommissioned,
or petty officer of the armed services of the United States; a
member of any law enforcement or security activity or agency,
military or civilian, including correctional custody personnel;
or any firefighter;
(H) The murder was
committed with intent to obstruct justice;
(I) The murder was
preceded by the intentional infliction of substantial physical
harm or prolonged, substantial mental or physical pain and
suffering to the victim;
(J) The accused has
been found guilty in the same case of another violation of
(8) That only in the
case of a violation of Article 118(4), the accused was the
actual perpetrator of the killing[.]
I will address his arguments
concerning the invalidity of his death penalty in light of this Manual
Disproportionate Punishment under
Enmund v. Florida, 458 U.S. 782 (1982)
A preliminary question this
Court must decide is whether imposition of the death penalty in
appellant’s case is barred by the Supreme Court’s disproportionate-punishment
holding in Enmund v. Florida, supra. See Kills
on Top v. State, 928 P.2d 182, 200-04 (Mont. 1996); Deputy v.
Taylor, 19 F.3d 1485, 1496-98 (3d Cir. 1994). There, the Supreme
Court held, in the case of a felony murderer named Enmund, that
imposition of the death penalty "in the absence of proof that Enmund
killed or attempted to kill, and regardless of whether Enmund intended
or contemplated that life would be taken" violated the Eighth Amendment.
458 U.S. at 801; see Cabana v. Bullock, 474 U.S. 376, 386
(1986) ("Enmund . . . imposes a categorical rule: a person who
has not in fact killed, attempted to kill, or intended that a killing
take place . . . may not be sentenced to death."). Here, appellant was
found guilty of the premeditated murder of Bobby Sharbino, see
Art. 118(1), in addition to the felony murder of Christopher Fay.
Therefore, there was proof and a finding of an intent to kill beyond a
reasonable doubt in his case. See also Hutchins v.
Garrison, 724 F.2d 1425, 1435 n.14 (4th Cir.
1983)(holding that Enmund does not "require any special mens
rea for the imposition of death on a person who actually committed a
killing and was convicted of first degree murder").
In addition, the members made a unanimous finding beyond a reasonable
doubt based on overwhelming evidence in the record that appellant
actually perpetrated the killing of Christopher Fay during the felony.
See Brooks v. State, 655 A.2d 1311, 1323 (Md. App. 1995);
People v. Anderson, 742 P.2d 1306, 1326-27 (Cal. 1987)(Enmund
and progeny hold that Eighth Amendment not violated if person sentenced
to death "in fact killed" (emphasis added)). I see no violation
of Enmund and its progeny in these circumstances. See
Tison v. Arizona, 481 U.S. 137, 158 (1987)("Only a small minority of
those jurisdictions imposing capital punishment for felony murder have
rejected the possibility of a capital sentence absent an intent to kill,
and we do not find this minority position constitutionally required.").
Finally, the evidence in this case overwhelmingly established
appellant’s intent to kill Christopher Fay.
See Walter v. Arizona, 497 U.S. 639, 648-49 (1990) ("Cabana
held that an appellate court could constitutionally make the Enmund
v. Florida . . . finding-- that the defendant killed, attempted to
kill, or intended to kill-- in the first instance.").
Invalid Aggravating Factor
under Loving v. United States,
116 S.Ct. 1737 (1996)
Appellant, nonetheless, attacks his death penalty on the procedural
grounds that the President, in establishing the "triggerman" aggravating
factor, did "not narrow the death-eligible class in a way consistent
with our cases." Loving, supra at 1742; see Writ
Appeal Petition at 1. He contends that the "actual-perpetrator"
aggravator in RCM 1004(c)(8) ("That only in the case of a violation of
Article 118(4), the accused was the actual perpetrator of the killing"[.])
is legally insufficient to impose death as a penalty. See
Tuilaepa v. California, 512 U.S. 967, 971, 114 S.Ct. 2630, 2634
(1994) ("To be eligible for the death penalty, the defendant must be
convicted of a crime for which the death penalty is a proportionate
punishment."). He argues that it is invalid because it still "permits
death to be imposed for felony murder even if the accused had no intent
to kill." Loving, supra at 1742; see United
States v. Cheely, 36 F.3d 1439, 1443 n.9 (9th Cir. 1994)
("The least culpable mental state the Supreme Court has held
death-eligible is reckless indifference to human life during commission
of a felony.").
There are several reasons why I
reject appellant’s claim that RCM 1004(c)(8) is an invalid or
insufficient aggravating factor under the Supreme Court’s Loving
First of all, I note that RCM
1004(c)(8) permits the death penalty to be imposed on the felony
murderer who actually kills a person during the felony ("actual
perpetrator of the killing"). In Loving, supra at 1742,
the Supreme Court held Article 118 invalid because it "permits death to
be imposed for felony murder even if the accused had no intent to kill
and even if he did not do the killing himself." (Emphasis added.)
RCM 1004(c)(8) does not violate both prongs of Loving.
Second, the Supreme Court in
Enmund v. Florida, supra, and its progeny clearly held that
the death penalty is not disproportionate for a felony murderer who
actually kills a person during the felony. "Enmund did not kill or
intend to kill and thus his culpability is plainly different from that
of the robbers who killed; yet the State treated them alike and
attributed to Enmund the culpability of those who killed the. . . [victims].
This was impermissible under the Eighth Amendment." 458 U.S. at 798. In
Tison, 481 U.S. at 149-50, the Court spoke more clearly in these
dealt with two distinct subsets of all felony murders in
assessing whether Enmund’s sentence was disproportional under
the Eighth Amendment. At one pole was Enmund himself: the minor
actor in an armed robbery, not on the scene, who neither
intended to kill nor was found to have had any culpable mental
state. Only a small minority of States even authorized the death
penalty in such circumstances and even within those
jurisdictions the death penalty was almost never exacted for
such a crime. The Court held that capital punishment was
disproportional in these cases. Enmund also clearly dealt
with the other polar case: the felony murderer who actually
killed, attempted to kill, or intended to kill. The Court
clearly held that the equally small minority of jurisdictions
that limited the death penalty to these circumstances could
continue to exact it in accordance with local law when the
(Emphasis added.) In this light,
RCM 1004(c)(8) also passes muster because it requires actual killing by
the felony murderer. See also Perdue v. Commonwealth,
916 S.W. 2d 148, 166 (Ky. 1995)(Enmund not applicable where
felony murderer a principal).
Third, this Court has already
indicated that RCM 1004(c)(8) complies with Enmund. In Curtis,
32 MJ at 265-66, we said:
"Aggravating factor" (8)
applies only in the case of a violation of Article 118(4), and
so relates only to felony murders. We have held that an accused
may be convicted of murder under Article 118(4) even though he
did not kill the victim and only aided and abetted commission of
the felony on which the felony-murder conviction was based.
United States v. Jefferson, 22 MJ 315 (CMA 1986). The
Supreme Court has concluded that the Eighth Amendment is
violated when a defendant is sentenced to death for a felony
murder if he did not participate actively in the killing.
Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d
1140 (1982); but cf. Tison v. Arizona, 481 U.S.
137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987) (upholding a death
penalty for an accused who did not kill the victim, but whose
conduct was related to the killing).
Finally, several state supreme
courts have considered the effect of Enmund v. Florida, supra,
on aggravating factors similar to RCM 1004(c)(8) and have found no
Eighth Amendment violation. See Brooks v. State, 655 A.2d
1311 (Md. App. 1995); People v. Anderson, 742 P.2d 1306 (Cal.
1987); see generally Calhoun v. State, 468 A.2d 45
(Md. 1983); but see State v. Ramseur, 524 A.2d 188, 220
n.21 (N.J. 1987).
Lowenfield v. Phelps, 484 U.S. 231
Appellant’s additionally argues
is that RCM 1004(c)(8) is invalid because it does not "genuinely narrow
the class of persons eligible for the death penalty [nor] . . .
reasonably justify the imposition of a more severe sentence on the
defendant compared to others found guilty of murder." See
Loving, 116 S.Ct. at 1742, quoting Lowenfield, supra
at 244. He asserts that this aggravating factor is meaningless and is
the equivalent of saying any felony murderer who acts alone is death
eligible. I disagree.
Article 118 proscribes murder in
the military and breaks it down into four groups: premeditated,
intentional, wanton disregard, and certain felony murders. It then
further narrows these four groups to two groups: premeditation and
certain felony murders, which are initially eligible for the death
penalty. See Gray v. Lucas, 677 F.2d 1086, 1104 (5th
Cir. 1982) (provides "rational basis" for determining death penalty
appropriate for felony murders). RCM 1004(c)(8) still further narrows
the class of felony murders to those who actually kill during the felony.
See generally Enmund v. Florida, supra. In
my view, a genuine narrowing has occurred in making only felony
murderers who have actually killed during the felony eligible for death.
See Johnson v. Dugger, 932 F.2d 1360, 1369-70 (11th
Cir. 1991); Grandison v. State, 670 A.2d 398, 409 (Md. 1995);
Calhoun, 468 A.2d at 75.
RCM 1004(c)(8) and
Intent to kill
Assuming an intent to kill is
required as a necessary aggravating factor to permit imposition of the
death penalty on a person who is guilty of felony murder, I would still
find no error in this case. Admittedly, Article 118 permits imposition
of the death penalty on one who is guilty of felony murder "even if the
accused had no intent to kill and even if he did not do the killing
himself." Moreover, the Supreme Court found this statutory provision
inadequate by itself to constitutionally permit imposition of the death
penalty. However, the Supreme Court in Loving also clearly held
that the President could lawfully promulgate "additional aggravating
factors establishing a higher culpability . . . necessary to save
Article 118." 116 S.Ct. at 1742.
RCM 1004(c)(8) is such an
additional aggravating factor. It establishes as an aggravating factor:
"That only in the case of a violation of Article 118(4), the accused was
the actual perpetrator of the killing." In my view this language
requires as a matter of common sense that the members find appellant
killed during the felony with an intent to kill. See generally
Tuilaepa, 512 U.S. at 976, 114 S.Ct. at 2637 ("Factor (b) is
phrased in conventional and understandable terms."). This conclusion
flows from the common meaning of "perpetrate" as "to bring about or
carry out (as a crime)." Webster’s Ninth New Collegiate Dictionary 877
(9th ed. 1991); see People v. Harrison,
176 Cal. App. 2d 330, 1 Cal. Rptr 414 (Ct.App. 1959), decision
disapproved, People v. Washington, 402 P.2d 130, 134-35 (Cal.
Professor Perkins confirms this
well-established meaning of this term by stating:
Culpable parties are of
four different kinds, who may be called respectively: (1)
perpetrators, (2) abettors, (3) inciters, and (4) criminal
protectors. A "perpetrator," as here used, is one who, with
mens rea, 11/ has caused a socially-harmful
occurrence either with his own hands, or by means of some tool
or instrument or other non-human agency, or by means of an
innocent agent. Nothing novel is involved in this suggestion,
because the word has been employed with this meaning at least
since the time of Blackstone. 12/
11. That is, one who
has acted with malice aforethought or with criminal negligence
in a homicide case, with animus furandi in a
larceny case, with intent to commit a felony in a burglary case
or, in other words, with whatever kind of mind at fault is
required in order that the particular socially-harmful
occurrence may be classified as a crime.
12. 4 Bl. Comm. [Blackstone’s
Commentaries] *34. See also Smith v. State, 37 Ark. 274, 276
(1881); In re Vann, 136 Fla. 113, 118, 186 So. 424, 426 (1939).
One court has spoken of an offender who commits his offense by
the aid of an innocent agent as "not the actual perpetrator."
People v. Whitmer, 369 Ill. 317, 320, 16 N.E.2d 757, 759 (1938).
But if emphasis is placed on the crime rather than the mere
physical occurrence it seems proper to say that one who has
contrived to bring about the prohibited result by the employment
of innocent hands, has perpetrated his offense in this manner.
R. Perkins and R. Boyce,
Criminal Law 723-24 (3d ed. 1982)(emphasis added); see
also B. Garner, A Dictionary of Modern Legal Usage 653 (2d ed.
1995)("Perpetrator = one who, with mens rea (q.v.) has caused a
socially harmful occurrence either personally or through some. . . agent.)
Accordingly, even accepting appellant’s view of Enmund v. Florida,
supra, and its progeny as requiring proof of an intent to kill, I
find such a requirement in RCM 1004(c)(8).
In any event, I agree with the
majority opinion that any error in considering RCM 1004(c)(8) as a
constitutionally valid aggravating factor in this case was harmless.
See generally Stringer, 503 U.S. at 232, 112 S.Ct. at 1137.
RCM 1004(c) provides: "Death may be adjudged only if the members find,
beyond a reasonable doubt, one or more . . . aggravating factors."
(Emphasis added.) As noted above, there were two other valid aggravating
factors in this case which made appellant death eligible. Moreover, I
agree that appellant’s triggerman status, at the very least, could be
considered in the subsequent weighing step as an aggravating
circumstance under RCM 1004(b)4)(C) ("Death may not be adjudged unless -
. . . (C). All members concur that any extenuating or mitigating
circumstances are substantially outweighed by any aggravating
circumstances admissible under RCM 1001(b)(4), including the factors
under subsection (c) of this rule.") The fact of appellant’s status as
an actual triggerman was properly before the members as aggravation
under RCM 1001(b)(4). See Williams v. Clarke, 40 F.3d
1529, 1542 (8th Cir. 1994)(error not "as egregious" as where
"sentencer considers an aggravating circumstance that would not
otherwise have been established or not considered at all"). Finally, I
agree that the military judge’s instructions and counsel’s arguments
remove any reasonable possibility that appellant was prejudiced by the
number of capital offenses or the number of valid aggravating factors in
this case. See Davis v. Executive Director of
Department of Corrections, 100 F.3d 750, 774 (10th Cir.
1996); United States v. Tipton, 90 F.3d 861, 900 (4th
Cir. 1996); United States v. Chandler, 996 F.2d 1073, 1093 (11th
Cir. 1993)("instructions made clear that the weighing process was not a
mechanical one . . . based on the number of aggravating . . . factors").
This case has made a long march
through the American judicial system. Here, at the end, I am satisfied
that Dwight Loving has had a fair trial and appeal. I find no defect in
the Federal law or its process that has been applied to this result of
capital punishment. Accordingly, I vote to affirm the decision below
denying the petition for extraordinary relief.
1 The version of this
Rule applicable at trial misspells "perpertrator." I will use the
correct spelling (perpetrator) in quoting the rule.
2 The Fourteenth
Amendment only applies to the States.
3 Appellant was tried
between January and April 1989 at Fort Hood, Texas. As we noted in
United States v. Loving, 41 MJ 213, 232 (1994), a sentence hearing
was held in accordance with RCM 1004, Manual for Courts-Martial, United
States, 1984 (Change 2). (Change 3 to the Manual was dated June 1, 1987,
but did not amend the Change 2 version of RCM 1004).
4 Appellant confessed
to killing Private Christopher L. Fay, a taxi-driver who appellant
directed to a secluded area of Fort Hood and robbed. The Court of
Military Review summarized his confession as follows:
Dissatisfied with the
meager amount of money he had obtained from the 7-Eleven
robberies, appellant made the intentional and considered
decision to rob taxicab drivers. On the night of 12 December
1988, appellant called for a taxicab to take him from a grocery
store in Killeen to his barracks at Fort Hood. The driver of the
taxicab was an Army private [Fay] who was moonlighting for extra
money. After entering the taxicab and after arriving at Fort
Hood, appellant directed the driver to park in a dark secluded
area behind the barracks. He produced a pistol, held the pistol
to the driver’s head, ordered the driver to shut off the car’s
motor and lights, and demanded all the driver’s money. After
replying "bullshit" to the driver’s protests that he had
surrendered all of the money, appellant shot the driver in the
back of the head. While looking at the hole in the back of the
victim’s head and the blood "gushing out," appellant cocked the
pistol and shot him in the back of the head again. The taxi
driver died as a result of these gunshot wounds.
34 MJ 956, 959 (1992). Accident
or accidental killing is simply not a reasonable possibility in these
circumstances. Accordingly, failure to expressly instruct on the
requirement for an intent to kill as part of being an actual perpetrator
of a killing was clearly harmless beyond a reasonable doubt. See
People v. Johnson, 859 P.2d 673, 698 (Cal. 1993); see
also People v. Osband, 919 P.2d 640, 720-21 (Cal 1996) (Kennard,
J., concurring and dissenting).
5 Appellant has cited
note 9 of Cheely as support for his argument that RCM 1004(c)(8)
(actual perpetrator of killing) is an invalid aggravator under Tison
v. Arizona, 481 U.S. 137 (1987). The Court in that case, however,
did not decide that question because Cheely was charged with "intentional
murder," not felony murder. 36 F.3d at 1443 and n.10.
EFFRON, Judge (concurring in
part and dissenting in part):
I concur in denying both
appellant's petition for extraordinary relief and his petition for
reconsideration of mandatory review insofar as either action would
require this Court to reconsider the findings of guilty affirmed upon
mandatory review. 41 MJ 213 (1994). I dissent with respect to the
majority's decision to affirm the sentence, however, because fundamental
questions regarding the legality of the sentencing proceeding remain
Three commissioned officers of the United States Army who served as
members of appellant's court-martial panel have executed sworn
affidavits describing the sentencing procedures used in this case. Each
of the affidavits describes circumstances that constitute significant
violations of procedures designed to ensure fairness in capital
sentencing by precluding the proceedings from being infected by unlawful
command influence. The affidavits do not reflect any juror remorse over
imposition of the death penalty, and nothing in the record indicates
that any of these officers had a motive to fabricate. Each officer set
forth in neutral terms his recollection of the sentencing process.
See 41 MJ at 331-33. The majority, however, has refused to permit
any inquiry into the voting procedures used to impose the death penalty
in this case.
Before appellant's death
sentence may be affirmed, applicable law and precedent require us to
consider the impact of the sworn statements from these three officers.
The statements contain direct evidence of specific violations of the
carefully constructed procedures designed to ensure that the death
penalty is not imposed in an arbitrary and capricious manner by a court-martial
I. THE UNIQUE PURPOSES AND
PROCEDURES OF A COURT- MARTIAL PANEL
In civilian life, there are few rules that govern the conduct of jury
In contrast, the Uniform Code of Military Justice and the Manual for
Courts-Martial provide detailed guidance governing the proceedings of
court-martial panels and reflect longstanding military practice. All
voting is by secret written ballot. Art. 51(a), Uniform Code of Military
Justice, 10 USC § 851(a). A proposed sentence, which may be recommended
by any member, must "be in writing" and "contain the complete sentence"
proposal. RCM 1006(c), Manual for Courts-Martial, United States (1995 ed.).
"All members . . . vote on each proposed sentence in its entirety," and
the members vote first on the least severe sentence. RCM 1006(d)(3)(A).
If the least severe proposed sentence is not adopted, the members then
vote on "the next least severe," and this process continues "until a
sentence is adopted." Id. The ballots are counted by the junior
member of the panel. RCM 1006(d)(3)(B). A sentence is adopted when it
has the votes of two-thirds of the members, except that confinement for
life or more than 10 years requires the votes of three-fourths of the
members, and a death sentence requires a unanimous vote. Art. 52(b),
UCMJ, 10 USC § 852(b); RCM 1006(d)(4).
After a sentence has been adopted, the members may not reconsider the
sentence unless they have been instructed by the military judge on the
procedures for reconsideration and they agree by secret written ballot
to reconsider the sentence. RCM 1009(d), Manual for Courts-Martial,
United States (1994 ed.).
B. Selection Of A Court-Martial Panel
These rules reflect the
fundamental distinctions between a civilian jury and a court-martial
panel. In a civilian proceeding, an accused person has a constitutional
right to trial by a jury of peers selected at random from a
representative cross-section of the community. U.S. Const. amend. VI;
Jury Selection and Service Act of 1968, 28 USC §§ 1861-69; Duren v.
Missouri, 439 U.S. 357 (1979). A person’s status or stature in the
community is not a permissible basis for selection to serve on a jury,
although certain circumstances, such as a felony conviction, may
disqualify an individual from serving. A civilian jury is concerned
primarily with adjudication of guilt, although juries in some
jurisdictions have a role in the sentencing process, particularly in
A court-martial panel has a much
broader function than a civilian jury. Unless the accused requests a
bench trial, the court-martial panel determines guilt and adjudges the
sentence. A court-martial panel is empowered not only to impose the
typical criminal law punishments of confinement and fines, but also to
adjudge a sentence that affects an individual’s military status.
Permissible punishments include reductions in rank, forfeiture of pay
and allowances, and separation from military service. The court-martial
panel is not simply an element of a criminal law system; it also plays a
key role in management of military personnel and maintenance of good
order and discipline in the armed forces. See R. Everett,
Military Justice in the Armed Forces of the United States 4-7
Given the unique functions of a
court-martial, it has long been held that a military accused does not
have a constitutional right to a panel randomly selected from a cross-section
of the military community. Art. 25, UCMJ, 10 USC § 825; Ex
parte Quirin, 317 U.S. 1, 39-41 (1942); United States v. Smith,
27 MJ 242, 248 (CMA 1988); see also United States ex
rel. Toth v. Quarles, 350 U.S. 11, 17-18 (1955). Selection of panel
members is a function of command, and the manner of selection reflects
the disciplinary role of the proceedings.
The convening authority who
refers a case to trial selects the panel that will adjudicate the issue
of guilt and, in the event of a finding of guilty, adjudge the sentence.
Stature and status are permissible considerations in selecting a court-martial
panel. The persons chosen by the convening authority are those "best
qualified for the duty by reason of age, education, training, experience,
length of service, and judicial temperament." Art. 25(d)(2); see
also RCM 502(a)(1). All panel members are officers, unless an
enlisted accused requests inclusion of enlisted members; and, if
possible, members of a court-martial panel normally must be equal to or
senior in rank and grade to the accused. Art. 25(c)(1) and (d)(1). As a
result of these criteria, the military personnel detailed to sit on
courts-martial are likely to be relatively senior and are likely to have
command or supervisory experience.
Consistent with standard
military practice, the officer senior in rank serves as the leader of
the court-martial panel and is designated as the president. RCM
502(b)(1). In addition to the duties assigned to other members, the
president presides over the closed sessions of the court-martial during
deliberations of the members. RCM 502(b)(2)(A). We have recognized that
the authority to preside includes "the discretion to call for a vote
when, in their judgment, discussion of the issues is complete or further
debate would be pointless." United States v. Accordino, 20 MJ
102, 105 (1985). The president also speaks for the members in announcing
decisions or when "requesting instructions from the military judge." RCM
Within the court-martial
proceeding, specific attention is given to the rank structure of the
panel. For example, the Discussion accompanying RCM 911 notes: "The
members are seated with the president, who is the senior member, in the
center, and the other members alternately to the president’s right and
left according to rank. If the rank of a member is changed, or if the
membership of the court-martial changes, the members should be reseated
accordingly." Each member is in uniform, which contains a visible
display of the insignia of rank.
The customs, traditions, and
rules that govern military life reinforce the authority of the president
of a court-martial and the willingness of members to respect that
authority. Obedience to superiors is one of the fundamental norms of
military life, emphasized from the very inception of military status in
the oath of enlistment, 10 USC § 502, and reinforced by the criminal
sanctions that may be imposed for disobedience, Arts. 90, 91, and 92,
UCMJ, 10 USC §§ 890, 891, and 892, respectively. The Supreme Court has
observed that "to accomplish its mission the military must foster
instinctive obedience, unity, commitment, and esprit de corps."
Goldman v. Weinberger, 475 U.S. 503, 507 (1986).
Congress and the President have
determined that our national security requires a military justice system
that involves the express recognition of rank in selection of court-martial
members and in the role of the presiding officer. Although these
characteristics find no parallel in the attributes of civilian juries,
the Supreme Court has recognized that the differences are permissible
because "[t]he military constitutes a specialized community governed by
a separate discipline from that of the civilian." Orloff v.
Willoughby, 345 U.S. 83, 94 (1953).
Congress and the President have
recognized that the maintenance of good order and discipline requires
more than an unfettered role for command in the court-martial process.
Military law, from the time of the first Articles of War through the
establishment of the Uniform Code of Military Justice, has reflected an
understanding that members of the armed forces are more likely to obey
orders under a disciplinary system which is fair and which they perceive
to operate without the unlawful influence of rank. This understanding is
implemented through provisions such as the general prohibition against
unlawful command influence, Art. 37, UCMJ, 10 USC § 837, as well as
specific provisions designed to minimize the influence of rank within a
court-martial panel. The general admonitions against use of rank to
control the exercise of judgment, e.g., RCM 502(a)(2), 921(a),
and 1006(a), are reinforced by the specific procedural rules noted in
Part A, supra, such as the requirements for secret written
ballots and written sentence proposals, reliance on the junior member to
count the votes, and limitations on reconsideration.
C. Appellate Review Of Improper Influences In
The Voting Process
The rules governing the
procedures of a court-martial panel are not self-executing. Trial and
appellate courts may entertain allegations that the rules were violated.
Under RCM 1008:
A sentence which is proper on its face may be impeached only
when extraneous prejudicial information was improperly brought to
the attention of a member, outside influence was improperly brought
to bear upon any member, or unlawful command influence was brought
to bear upon any member.
The Drafter’s Analysis, Manual,
supra at A21-74, notes that this rule is based in part on
Mil.R.Evid. 606(b), Manual, supra, "Inquiry into validity of
findings or sentence," which provides:
Upon an inquiry into the
validity of the findings or sentence, a member may not testify
as to any matter or statement occurring during the course of the
deliberations of the members of the court-martial or, to the
effect of anything upon the member’s or any other member’s mind
or emotions as influencing the member to assent to or dissent
from the findings or sentence or concerning the member’s mental
process in connection therewith, except that a member may
testify on the question whether extraneous prejudicial
information was improperly brought to the attention of the
members of the court-martial, whether any outside influence was
improperly brought to bear upon any member, or whether there was
unlawful command influence. Nor may the member’s affidavit or
evidence of any statement by the member concerning a matter
about which the member would be precluded from testifying be
received for these purposes.
This rule of evidence is
virtually identical to Fed.R.Evid. 606(b), with the critical addition of
authority to obtain evidence concerning "unlawful command influence." As
noted in the Drafter’s Analysis, "The addition is required by the need
to keep proceedings free from any taint of unlawful command influence
and further implements Article 37(a) of the Uniform Code of Military
Justice. Use of superior rank or grade by one member of a court to sway
other members would constitute unlawful command influence for purposes
of this Rule . . . ." Manual, supra at A22-44.
In Mil.R.Evid. 606(b), as in its
civilian counterpart, a "balance is struck between the necessity for
accurately resolving criminal trials in accordance with rules of law on
the one hand, and the desirability of promoting finality in litigation
and of protecting members from harassment and second-guessing on the
other hand." S. Saltzburg, L. Schinasi, & D. Schlueter, Military
Rules of Evidence Manual 722 (4th ed. 1997).
In Accordino, we
considered whether civilian precedents, including precedents under
Fed.R.Evid. 606(b), would preclude consideration of affidavits from
court members concerning the procedure employed by the president of a
court-martial. 20 MJ at 104. Two members of the court-martial panel in
Accordino executed post-trial affidavits alleging that the
president of the court-martial, during deliberation on findings,
prematurely cut off discussion and precipitated a vote. Id. at
In Accordino, the Air Force Court of Military Review
refused to consider the affidavits, citing civilian precedents holding
that jurors are not competent to challenge verdicts based upon internal
influences. 15 MJ 825, 834-42 (1983). We expressly rejected reliance on
civilian precedents with respect to issues involving unlawful command
[T]hese cases miss the
point. Military courts, with their explicit rank structure, are
quite different from their civilian jury counterparts. Thus
Federal precedents, which naturally do not address a concept of
"command influence" within civilian juries, are of extremely
limited value to us in construing our own rule.
20 MJ at 104 (footnote omitted).
We also made it clear that an
affidavit raising the potential for command influence would entitle an
accused to further review without the necessity of demonstrating actual
[T]he court members’
affidavits were proper matters for examination by any and all
authorities having jurisdiction over the case. The purpose of
such review is, however, limited to looking for evidence of any
of the three specific exceptions to Mil.R.Evid. 606(b). Under
our legal threshold of review . . ., the affidavits do not
indicate unlawful command influence. However, the Court of
Military Review, with its broader factual-review authority . .
., must examine the affidavits under its own standards.
20 MJ at 105. The fact that the
president had used his position of authority to limit discussion and
initiate voting, id. at 103, was considered to raise the
possibility of undue command influence.
In the case before us, as in
Accordino, we are faced with affidavits from court members that
indicate violations of the rules designed to preclude the unlawful
influence of rank in the process. The affidavits before us, executed by
three commissioned officers, reveal violations more numerous and more
significant than the violations we considered in Accordino. In
the present case, however, the majority has held that the sworn
testimony of commissioned officers specifically selected to sit on a
court-martial in a capital case is "not competent evidence," 41 MJ at
236, and that, in any case, the affidavits reveal "no more than Colonel
Aylor’s proper exercise of authority as president to preside over the
deliberations." Id. at 238.
Judge Wiss, in his dissent from
this Court’s initial ruling, observed that the affidavits indicate six
separate procedural deviations, 41 MJ at 313-14:
First, that the "members did not
vote . . . on any of the aggravating factors relied upon by the
prosecution," in violation of RCM 1004(b)(7). See, e.g.,
United States v. Curtis, 32 MJ 252, 257-60, 268 (CMA 1991) (detailing
the RCM 1004 procedures that protect a capital defendant’s Fifth and
Eighth Amendment rights).
Second, that there "was no vote
. . . on whether the aggravating circumstances outweighed the
extenuating and mitigating circumstances," in violation of RCM
Third, that the members did not
submit written proposals recommending sentences "in their entirety," in
violation of RCM 1006(c). See United States v. Gutierrez,
11 MJ 122, 123 (CMA 1981) ("one sentence is imposed for all offenses
before the court").
Fourth, that the members did not
conduct a separate vote on the proposal for a life sentence before
voting on the death penalty, in violation of RCM 1006(d)(3)(A). See
United States v. Thomas, 46 MJ 311, 313-14 (1997); United
States v. Johnson, 18 USCMA 436, 437, 40 CMR 148, 149 (1969) (Voting
on the "lightest proposed sentence" first is "more than a mere
technicality. It is, essentially, a part of military due process.").
Fifth, that the president, not
the junior member, counted the ballots, in violation of Article 51(a)
and RCM 1006(d)(3)(B).
Sixth, that the president, after
counting ballots that revealed a non-unanimous vote for death, ordered a
second vote without obtaining or following instructions from the
military judge on reconsideration procedures, in violation of RCM 1009.
Judge Wiss pointed out that the
voting procedures described in the affidavits "occurred as a result of
the unilateral imposition by the senior-ranking member of the court-martial
of a procedure that differed markedly from the procedure that was
plotted for the panel in the military judge’s painstaking instructions."
41 MJ at 314. The president of a court-martial has no authority "to
divine his own personally preferred procedural path toward a death
sentence, in substantial disregard of the one that has been clearly
prescribed by the President of the United States in the Manual for
Courts-Martial and, in some instances, in substantial disregard as well
of checkpoints along the way that are required by the Fifth and Eighth
The affidavits should be
considered under Mil.R.Evid. 606(b) as competent evidence on the issue
of unlawful command influence because, as Judge Wiss wrote, they "portray
a scenario in which the senior-ranking member, solely by virtue of his
rank, successfully imposed a procedure that was unlawful and that, in
the process, destroyed the lawful procedural structure that would have
substantially assured a fair and reliable sentence." Id.
The majority during our previous review of this case cited Tanner v.
United States, 483 U.S. 107 (1987), and numerous civilian precedents
for the proposition that Fed.R.Evid. 606(b) precludes use of juror
testimony to impeach a verdict except for "evidence of extraneous
influence." 41 MJ at 236-37. The majority recognized that Mil.R.Evid.
606(b) goes beyond its federal civilian counterpart by also permitting
testimony concerning unlawful command influence and cites, but did not
attempt to distinguish, our decision in Accordino.
41 MJ at 237.
In Accordino, we made
clear that "[m]ilitary courts, with their explicit rank structure, are
quite different from their civilian jury counterparts" and that "Federal
precedents, which naturally do not address a concept of 'command
influence’ within civilian juries, are of extremely limited value to us
in construing our own rule." 20 MJ at 104 (footnote omitted). In that
case, we relied upon post-trial affidavits to set aside the decision
below. Even though we determined that the information in the affidavits
did not constitute evidence of unlawful command influence as a matter of
law, we concluded that the potential for unlawful command influence
resulting from the actions of the president of a court-martial required
further review by a tribunal with factfinding powers.
In Accordino, we ordered
further review to protect the rights of an individual convicted of
wrongful drug use who was sentenced to a bad-conduct discharge,
forfeiture of $250.00 pay for one month, and reduction to the pay grade
of E-3. The case before us involves convictions for murder and a death
sentence. The affidavits indicate an extensive role by the president of
the court-martial in shaping a decision-making procedure that undermined
the reliability of the sentencing process. We upheld the right of
Sergeant Accordino to a proceeding compliant with the rules designed to
preclude unlawful command influence within the court-martial panel.
Accordino, which is a sound precedent, requires no less in the case
of Private Loving. There is nothing in the Uniform Code or our
precedents that would authorize a less favorable proceeding in a capital
case than in a non-capital case. On the contrary, the additional
procedural requirements in RCM 1004 for adjudication of the death
penalty require at least as much, if not greater, concern in capital
cases with respect to compliance with rules designed to preclude
unlawful command influence.
Judge Wiss, dissenting during
this Court's initial review, stated that the evidence of irregularities
in the sentencing proceeding raised "the cancerous possibility that
command influence inside the members’ deliberation room during their
consideration of a sentence so skewed the legally required voting
procedures that it undermined the fundamental fairness of those
proceedings." 41 MJ at 310. I agree.
In view of the unresolved
questions regarding unlawful command influence during the sentencing
proceeding, I would remand this case for factfinding proceedings to
determine if the procedures designed to protect against unlawful command
influence were violated.
1 The discussion of
the voting procedures referred to herein is set forth in the initial
majority opinion of this Court. 41 MJ 213, 235-39 (1994).
2 See, e.g.,
3 All references are
to this edition of the Manual unless otherwise indicated. The Manual
cited contains the provision applicable at trial.
4 Additional voting
procedures apply in capital cases. The members may adjudge the death
penalty only if: They have returned a unanimous finding of guilty as to
a capital offense, RCM 1004(a)(1) & (2); they have unanimously found
applicable at least one aggravating factor specified in the Manual for
Courts-Martial, RCM 1004(b)(7); they have unanimously agreed "that any
extenuating or mitigating circumstances are substantially outweighed by
any" admissible "aggravating circumstances," RCM 1004(b)(4)(C); and they
unanimously vote to adjudge the death penalty, RCM 1006(d)(4)(A).
5 A similar rule
applies to the impeachment of findings. RCM 923.
6 Now the Court of
Criminal Appeals. See 41 MJ 213, 229 n.* (1994).
7 In United States
v. Brooks, 42 MJ 484 (1995), an opinion issued subsequent to
Loving, this Court precluded consideration of member testimony to
impeach a verdict, but the opinion did not consider the issue of
unlawful command influence and contains no discussion of Accordino.
Dwight J. Loving