Filed: Aug. 23, 2002
Latest Update: Mar. 03, 2020
Summary: WHETHER THE LOWER COURT ERRED IN REASSESSING APPELLANTS, SENTENCE IN THE ABSENCE OF A COMPLETE RECORD IN EXTENUATION, AND MITIGATION OR BY FAILING TO APPLY THE PROPER STANDARD, FOR SENTENCE REASSESSMENT TO REMEDY A TRIAL ERROR OF, CONSTITUTIONAL MAGNITUDE. United States v. Lewis, 42 MJ 1 (1995).
UNITED STATES, Appellee
V.
Allen O. DOSS, Machinist’s Mate First Class
U.S. Navy, Appellant
No. 01-0686
Crim. App. No. 99-1380
United States Court of Appeals for the Armed Forces
Argued January 23, 2002
Decided August 23, 2002
GIERKE, J., delivered the opinion of the Court, in which
EFFRON and BAKER, JJ., joined. CRAWFORD, C.J., filed
an opinion concurring in part and dissenting in part.
SULLIVAN, S.J., filed a dissenting opinion.
Counsel
For Appellant: Lieutenant Travis J. Owens, JAGC, USNR (argued).
For Appellee: Lieutenant Ross W. Weiland, JAGC, USNR (argued);
Colonel Rose M. Favors, USMC (on brief).
Military Judge: Moira D. Modzelewski
This opinion is subject to editorial correction before final publication.
United States v. Doss, No. 01-0686/NA
Judge GIERKE delivered the opinion of the Court.
A military judge sitting as a general court-martial
convicted appellant, pursuant to his pleas, of assault with a
dangerous weapon and assault consummated by a battery, in
violation of Article 128, Uniform Code of Military Justice
(UCMJ), 10 USC § 928. The military judge also convicted
appellant, contrary to his pleas, of soliciting another person to
murder his wife, in violation of Article 134, UCMJ, 10 USC § 934.
The military judge sentenced appellant to a dishonorable
discharge, confinement for eight years, total forfeitures, and
reduction to the lowest enlisted grade. In accordance with a
pretrial agreement, the convening authority approved the adjudged
sentence but suspended all confinement in excess of five years
for a period of ten years.
The Court of Criminal Appeals affirmed the findings in an
unpublished decision. However, it held that appellant’s trial
defense counsel was ineffective during the sentencing hearing.
Therefore, the court reassessed the sentence and affirmed “only
such portion of the sentence as extends to a dishonorable
discharge, confinement for seven years, reduction to E-1, and
forfeiture of all pay and allowances.” Unpub. op. at 16.
This Court granted review of the following issue:
WHETHER THE LOWER COURT ERRED IN REASSESSING APPELLANT’S
SENTENCE IN THE ABSENCE OF A COMPLETE RECORD IN EXTENUATION
AND MITIGATION OR BY FAILING TO APPLY THE PROPER STANDARD
FOR SENTENCE REASSESSMENT TO REMEDY A TRIAL ERROR OF
CONSTITUTIONAL MAGNITUDE. SEE UNITED STATES V. BOONE, 49 M.J.
187, 195, AND 197-99 (1998).
For the reasons set out below, we set aside the sentence and
authorize a sentence rehearing.
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Background
During the sentencing hearing, appellant made a lengthy
unsworn statement that focused on his mental and emotional
condition at the time of the offenses. On April 19, 1989, while
he was assigned aboard the battleship USS IOWA, an ordnance
explosion in a gun turret 30 feet from his work station killed 47
sailors inside the turret. Appellant’s work area immediately
filled with smoke. He ordered the eight sailors under his
supervision to don emergency escape breathing devices and to
evacuate their work area. He went to the burning turret and
helped to extinguish the fire. When the fire was out, he was
second in line to enter the turret. He entered the melted
interior of the turret and began filling a canvas bag with body
parts. He carried two bags of body parts to the ship’s medical
office.
Appellant knew ten of the sailors who were killed.
On his second trip back from the medical office, he saw a
friend’s head fall from a body bag onto the deck. At that point,
appellant “lost it.” He was sent to his division officer’s
office, where he sat for about four hours. Psychiatrists were
brought on board, but appellant did not have an opportunity to
talk with them.
Two months after the explosion, appellant was transferred to
recruiting duty in Oklahoma. Appellant told the military judge
that he had a “nervous breakdown” in 1997, and he was ordered to
seek medical treatment at Tinker Air Force Base. He was
hospitalized for two days and then began seeing Major John
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United States v. Doss, No. 01-0686/NA
Atkins, a clinical social worker in the Substance Abuse Program,
once a week.
Four months after being hospitalized at Tinker, appellant
met his now ex-wife, and they were married a month later, in
August 1997. His ex-wife testified that appellant accused her of
infidelity, starting on their wedding night and continuing “just
about every night and day” until they separated.
Shortly after his marriage, appellant was transferred from
recruiting duty to the USS JOHN C. STENNIS, homeported in
Norfolk, Virginia. He reported for duty on September 30, 1997,
and the ship deployed 12 days later.
Appellant told the military judge that within days after his
ship deployed, he began having panic attacks and thought about
jumping overboard. He reported to the medical office, where he
was kept under observation for three days, and was then evacuated
to Portsmouth Naval Hospital, where he stayed for one night. He
attended stress management classes for five days and began seeing
Lieutenant (LT) J.C. Arguello, M.D., a Navy psychiatrist, once a
month.
In November, 1997, while still under the out-patient care of
LT Arguello, appellant assaulted his wife twice. One assault was
committed by hitting his wife in the face and body with his
fists, grabbing her by the throat, and throwing her against a
wall. The other assault was by pointing a loaded rifle at her.
This conduct was the basis for the two violations of Article 128
to which appellant pleaded guilty.
On January 4, 1998, at a truck stop, appellant asked a truck
driver about the possibility of having his wife killed.
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United States v. Doss, No. 01-0686/NA
According to the truck driver’s testimony, appellant asked how
much it would cost to “take her out,” and the truck driver told
appellant, “Probably a couple of grand.” Appellant gave the
truck driver his name, military address, and a home telephone
number. The truck driver reported the conversation to the
Federal Bureau of Investigation in Oklahoma City. Appellant and
the truck driver had no further discussions. This incident was
the basis for the charge of soliciting another to murder his
wife.
Shortly after the incident at the truck stop, appellant
called his mother and told her what he had done. With her help,
he checked into the medical facility at Barksdale Air Force Base
on January 8, 1998, but he was sent to the Veteran’s Hospital
because there was no room at Barksdale. He remained in the
Veteran’s Hospital for five days, where he participated in “group
sessions” and “one-on-one with the doctor.”
On January 23, 1998, LT Arguello placed appellant on limited
duty for six months. Appellant also began seeing a civilian
pschologist, Dr. Thomas Pasquale, and continued to see him until
his court-martial.
At trial, the defense presented no medical evidence other
than appellant’s unsworn statement during the sentencing hearing.
Six days after appellant was sentenced, LT Arguello diagnosed him
as suffering from post-traumatic stress disorder.
The Court of Criminal Appeals held that appellant’s civilian
defense counsel was ineffective during the sentencing hearing,
based on his failure to present evidence of appellant’s mental
condition. The court considered 19 pages of medical records that
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United States v. Doss, No. 01-0686/NA
were attached to appellant’s response to the staff judge
advocate’s recommendation. The court concluded “that no
reasonable tactical purpose existed for not seeking to introduce
the extant medical records at sentencing.” Unpub. op. at 14-15.
The court below reassessed the sentence and reduced the
confinement from eight years to seven years, but it affirmed the
dishonorable discharge, forfeitures, and reduction.
On appellant’s motion, this Court admitted the sworn
declaration of Dr. Jerry L. Brittain, a clinical psychologist and
neuropsychologist. Dr. Brittain reviewed the 19 pages of medical
records considered by the court below, and he noted that the
medical records reflect 22 different and sometimes contradictory
psychiatric diagnoses. He opined that a lay person or attorney
would not know the meaning or significance of the numerous
acronyms and medical jargon in the records. He opined that a lay
person or attorney “could not fully understand how these
diagnoses extenuate and mitigate MM1 Doss’s criminal actions and
how they bear on the possibility of rehabilitation.” Finally, he
pointed out that the records are incomplete. For example, there
are references to Family Advocacy, hospitalization at Barksdale
Air Force Base, and substance abuse evaluations, but no
supporting documentation.
Discussion
Appellant asserts that the court below improperly reassessed
the sentence on the basis of an incomplete record and that it
used the wrong standard for reassessment. The Government argues
that the lower court erred in holding civilian defense counsel
was ineffective, that the lower court used the correct standard
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United States v. Doss, No. 01-0686/NA
for reassessment, and that the record was adequate to permit
reliable reassessment.
This Court will overturn the lower court’s sentence
reassessment only to “prevent obvious miscarriages of justice or
abuses of discretion.” Boone, 49 M.J. at 195, citing United State
v. Jones,
39 M.J. 315, 317 (CMA 1994), quoting United States v.
Dukes,
5 M.J. 71, 73 (CMA 1978). Since the lower court’s holding
that civilian defense counsel was ineffective was not challenged
by certification under Article 67(a)(2), UCMJ, 10 USC
§ 867(a)(2), and is not encompassed by the granted issue, we will
not reexamine the lower court’s holding in this regard.•
Furthermore, in light of our holding that the lower court abused
its discretion by reassessing the sentence on the basis of an
inadequate record, we will not address the question whether the
lower court applied the correct standard for reassessment.
In United States v. Sales, 22 M.J. 305 (CMA 1986), this Court
set out the rules for sentence reassessment by a Court of
•
With respect to the dissenting portion of the Chief Judge’s
separate opinion, in United States v. Williams,
41 M.J. 134, 135 n.
2 (CMA 1994), this Court recognized that the law-of-the-case
doctrine does not preclude this Court from examining the legal
ruling of a subordinate court in a case where the Judge Advocate
General has not certified the issue. However, we are reluctant
to exercise this power and, as a rule, reserve it for those cases
where the lower court’s decision is “clearly erroneous and would
work a manifest injustice” if the parties were bound by it. See
Christianson v. Colt Industries Operating Corp.,
486 U.S. 800,
817 (1998), cited in
Williams, supra. In this case, the
Government has not satisfied us that the lower court’s holding
was “clearly erroneous and would work a manifest injustice” if
adopted for purposes of this case. Accordingly, we will apply
the law-of-the-case doctrine.
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United States v. Doss, No. 01-0686/NA
Criminal Appeals. If the court can determine that, absent the
error, the sentence would have been at least of a certain
magnitude, then it may cure the error by reassessing the sentence
instead of ordering a sentence rehearing. Id. at 307. A
sentence of that magnitude or less “will be free of the
prejudicial effects of error.”
Id. at 308. If the error at trial
was of constitutional magnitude, then the court must be satisfied
beyond a reasonable doubt that its reassessment cured the error.
Id. at 307. If the court “cannot reliably determine what
sentence would have been imposed at the trial level if the error
had not occurred,” then a sentence rehearing is required.
Id.
In Boone, supra, this Court held that defense counsel’s
ineffective representation during sentencing made it impossible
to reliably reassess the sentence, because it was impossible to
determine what evidence would have been presented by competent
counsel. This Court explained:
The record simply does not contain the evidence
that the misfeasance of counsel caused to be
omitted from the record. Therefore, there is no
record from which the Court of Criminal Appeals,
acting within its vast but circumscribed powers
under Article 66(c), [UCMJ, 10 USC § 866(c),] can
determine the sentence that the court-martial would
have imposed . . . . Nor has Boone had the
opportunity to develop fully his case in
extenuation or in mitigation through the
presentation of these witnesses or through the
presentation of additional evidence . . . . In
short, here, the record does not contain the
evidence omitted by the constitutional error.
Boone must have the opportunity to make the record
that he did not have the opportunity to make
because of the absence of the guiding hand of
counsel.
We stress the narrow confines of our holding.
We intend no limitation on the power of the Courts
of Criminal Appeals to reassess a sentence after
other legal error has been identified . . . . Nor
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United States v. Doss, No. 01-0686/NA
do we suggest that a remand for resentencing is
necessary in all cases in which trial defense
counsel was constitutionally inadequate . . . .
Here we deal only with a situation in which the
inadequacy of counsel has resulted in the omission
of evidence that, under the standards of
[Strickland v. Washington, 466 U.S. 668 (1984),]
could have made a difference in the sentence
imposed if it had been made a matter of record. In
such instances, the Court of Criminal Appeals
cannot reassess the sentence accurately, see Sales,
22 M.J. at 308, because the record is not
complete.
49 M.J. at 198-99.
This case presents a situation similar to Boone. As Dr.
Brittain’s analysis suggests, the 19 pages of medical
documentation may be only the tip of the iceberg. Furthermore,
it appears that the significance of those 19 pages cannot be
fully appreciated without expert testimony. It is impossible to
determine what evidence a competent defense counsel would have
presented. Thus, civilian defense counsel’s omissions cannot be
rendered harmless beyond a reasonable doubt by sentence
reassessment. Accordingly, we hold that the court below abused
its discretion by reassessing the sentence instead of ordering a
rehearing.
Decision
The decision of the United States Navy-Marine Corps Court of
Criminal Appeals is affirmed as to findings but reversed as to
sentence. The sentence is set aside. The record of trial is
returned to the Judge Advocate General of the Navy. A rehearing
on the sentence may be ordered.
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United States v. Doss, No. 01-0686/NA
CRAWFORD, Chief Judge (concurring in part and dissenting in
part):
I believe that the Court of Criminal Appeals failed to use
the correct standard for reassessing a sentence after finding an
error of constitutional proportion. Nowhere did the Court state
or show that it was satisfied, beyond a reasonable doubt, that
its reassessment of appellant’s sentence cured the
constitutional error of ineffective assistance of counsel during
the court-martial sentencing proceeding. See United States v.
Boone, 49 M.J. 187 (1998). The Court of Criminal Appeals also co-
mingled the concepts of sentence reassessment and sentence
appropriateness. Accordingly, this case should be returned to
the Judge Advocate General of the Navy for remand to the Court
of Criminal Appeals. If that court cannot be satisfied beyond a
reasonable doubt that its sentence reassessment cures the
ineffective assistance of counsel during sentencing, it must
direct a sentence rehearing.
I do not agree with the majority that since the lower
court’s holding, that civilian defense counsel was ineffective,
“was not challenged by certification under Article 67(a)(2),”
___ MJ at (7), we cannot reexamine that holding. As I said in
United States v. Grooters:
It may make sense to apply the law-of-the-case
doctrine when there has not been a factual context to
review, Luce v. United States, 469 U.S. 38, 105 S.Ct.
United States v. Doss, No. 01-0686/NA
460, 83 L. Ed. 2d 443 (1984), or when the issue has not
been briefed by the parties. However, it seems
illogical to otherwise have an intermediate appellate
court bind a higher appellate court. New York Life
Ins. Co. v. Hosbrook, 130 Ohio St. 101,
196 N.E. 888
(1935).
39 M.J. 269, 274-75 (CMA 1994)(Crawford, J., concurring in the
result).
The majority’s view of the law of the case prohibits this
Court from performing its statutorily intended purpose of
overseeing the military justice system. See United States v.
Walker, No. 01-0762, ___ MJ ___, ___ (2002)(Sullivan, S.J.,
joined by Crawford, C.J., dissenting). It makes no sense to
require a certification by a Judge Advocate General in order to
examine a legal ruling from a Court of Criminal Appeals. “Once
a case has been accepted for review by this Court, and the
Government Appellate Division attacks the lower court ruling [as
is the case at hand], that issue is placed squarely before us.”
United States v. Pablo, 53 M.J. 356, 361 (2000)(Crawford, C.J.,
dissenting). As we said in United States v. Williams,
41 M.J.
134, 135 n.2 (CMA 1994):
The law-of-the-case doctrine does not preclude this
Court, once the case has been properly granted for
review, from considering an erroneous conclusion of
law made by the Court of Military Review. See
Christianson v. Colt Industries Operating Corp., 486
U.S. 800, 817,
108 S. Ct. 2166, 2178,
100 L. Ed. 2d 811
(1988).
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Although the majority finds that “[t]his case presents a
situation similar to Boone,” ___ MJ at (9), it is easily
distinguishable. In Boone, the record of trial did not contain
the evidence that caused the Army Court of Criminal Appeals to
find counsel misfeasance. In fact, that record of trial was
devoid of any extenuation and mitigation, except for Boone’s
unsworn statement. Since there was no record and, therefore, no
evidence for the Court of Criminal Appeals to examine in the
exercise of its powers under Article 66(c), Uniform Code of
Military Justice (UCMJ), 10 USC § 866(c), this Court held that
the lower court’s reassessment of Boone’s sentence was an abuse
of discretion.
Unlike Boone, appellant had two non-commissioned officers
(Chief Electrician’s Mate Palmiere and Chief Machinist’s Mate
Norman), as well as his sister (Ms. Stewart), testify on his
behalf during extenuation and mitigation. These witnesses
bolstered appellant’s story about the trauma he had suffered
after the USS IOWA explosion. The information elicited from
these witnesses makes the Court of Criminal Appeals’s finding of
ineffective assistance of counsel during sentencing suspect.
While the 19 pages of medical documentation submitted to
the convening authority during the post-trial process may
represent “the tip of the iceberg,” ___ MJ at (9), the majority
omits a crucial fact -- appellant refused to participate in a
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United States v. Doss, No. 01-0686/NA
sanity board, convened for his benefit, prior to the
commencement of court-martial proceedings.
While, as the Court of Criminal Appeals points out, this
refusal in and of itself would not have precluded introduction
of any medical records into evidence during extenuation and
mitigation, appellant’s refusal to participate in the sanity
board is further evidence that his counsel was not ineffective
during the sentencing proceedings. This refusal to participate
in the sanity board will undoubtedly test the credibility of
defense evidence at any sentence rehearing. Despite the
foregoing, I am not convinced that the lower court’s ruling
created a manifest injustice or was clearly erroneous. See
Grooters, 39 M.J. at 274 (Crawford, J., concurring in the result).
Accordingly, I am not prepared to overturn the Court of Criminal
Appeals’s finding that civilian defense counsel was ineffective.
However, I am compelled to dissent from the majority’s
disposition -- returning this case directly for a sentence
rehearing instead of returning it to the Judge Advocate General
of the Navy for further review by the Court of Criminal Appeals.
The rules related to resentencing have been cogently set
forth by the Supreme Court in Jackson v. Taylor, 353 U.S. 569
(1957); by this Court in United States v. Miller, 10 USCMA 296,
27 CMR 370 (1959)(interpreting Jackson); and thereafter in
numerous cases from United States v. Suzuki,
20 M.J. 248 (CMA
4
United States v. Doss, No. 01-0686/NA
1985), through United States v. Eversole, 53 M.J. 132 (2000).
First, sentence reassessment is the business of the Courts of
Criminal Appeals.
Congress thought the board of review could modify
sentences when appropriate more expeditiously, more
intelligently, and more fairly. Acting on a national
basis the board of review can correct disparities in
sentences and through its legally-trained personnel
determine more appropriately the proper disposition
to be made of the cases. Congress must have known of
the problems inherent in rehearing and review
proceedings for the procedures were adopted largely
from prior law. It is not for us to question the
judgement of the Congress in selecting the process it
chose.
Jackson, 353 U.S. at 580. This Court has adopted these
congressional and judicial views and generally refused to
substitute its own judgment for that of the mature, experienced,
and capable judges that sit on the various Courts of Criminal
Appeals. See United States v. Cook,
46 M.J. 37, 39 (1997); United
States v. Hawes,
51 M.J. 258, 260 (1997); Eversole, supra at 138-
140 (Crawford, C.J., dissenting). We overturn a sentence
reassessment decision by a Court of Criminal Appeals only “to
prevent obvious miscarriages of justice or abuses of
discretion.” United States v. Jones,
39 M.J. 315, 317 (CMA 1994);
see Eversole, supra at 138 (Crawford, C.J., dissenting); United
States v. Cook,
48 M.J. 434, 438 (1998);
Boone, supra. In this
case, the Court of Criminal Appeals failed to use the correct
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United States v. Doss, No. 01-0686/NA
standard for reassessing a sentence after finding an error of
constitutional proportion.
The majority finds that the Court of Criminal Appeals
abused its discretion by reassessing a sentence based on an
inadequate record, and avoids the issue concerning application
of the correct standard for reassessment. Even so, the proper
disposition is to remand this case to the Court of Criminal
Appeals, as we have no fact-finding power or responsibility to
find facts.
In reaching its conclusion, the majority apparently relies
on the sworn declaration of Dr. Brittain, a retired naval
Medical Service Corps clinical psychologist and
neuropsychologist. ___ MJ at (6). Although neither a medical
doctor nor psychiatrist, Dr. Brittain recounts what he views as
“22 different (and sometimes contradictory) psychiatric
diagnoses just from the records which [he] reviewed.” Dr.
Brittain’s sworn declaration was never before the Court of
Criminal Appeals.
The Court of Criminal Appeals has the full capability to
order appellant’s medical records, in their entirety, to be
provided to that court for review by counsel, as well as the
judges. See Art. 47(a)(1), UCMJ, 10 USC § 847(a)(1); Art.
66(c); United States v. Lewis, 42 M.J. 1 (1995). If additional
oral argument is warranted, the court can order it. If other
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United States v. Doss, No. 01-0686/NA
sworn declarations beyond that of Dr. Brittain are required, the
lower court can order them. See Lewis, supra; see generally
United States v. Ginn,
47 M.J. 236 (1997).
Similar to what the Supreme Court found in Jackson, any
court-martial convened for the purpose of resentencing appellant
will have to make its sentence determination on the basis of
whatever portions of the verbatim record that trial counsel and
the judge give the court-martial, along with any new evidence
counsel might wish to submit. While returning this case to the
Court of Criminal Appeals might “merely substitute one group of
nonparticipants in the original trial for another,” 353 U.S. at
580, it is my firm belief, as reflected by the Supreme Court,
that Congress intended that boards of review, the forerunners of
today’s Courts of Criminal Appeals, would have the first
opportunity to reassess court-martial sentences, using guidance
from this Court.* The fact that the Court of Criminal Appeals
misapplied the standard of review in this case does not mean
that a remand to that court for additional review is improper.
As we said in Miller, returning the case directly to the trial
level is “cumbersome.” 10 USCMA at 299, 27 CMR at 373. Such
*
A quick comparison of recent cases from this Court shows an “I know it when
I see it” approach to sentence reassessment following reversal of a Court of
Criminal Appeals decision. Compare United States v. Ayers,
54 M.J. 85 (2000),
and United States v. McElhaney,
54 M.J. 120 (2000), with United States v.
Tollinchi,
54 M.J. 80 (2000), and United States v. Brown,
55 M.J. 375 (2001);
compare also United States v. Johnson,
54 M.J. 67 (2000), with United States v.
Vasquez,
54 M.J. 303 (2001).
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United States v. Doss, No. 01-0686/NA
action also unnecessarily abridges the Court of Criminal
Appeals’s discretion, fails to make use of that court’s
expertise, and certainly runs counter to congressional intent.
See generally United States v. Vasquez, 54 M.J. 303, 306
(2001)(Crawford, C.J., concurring in part and dissenting in
part).
The issue is not whether this Court and the Court of
Criminal Appeals have the power or authority to order a sentence
rehearing. Both clearly have that power. See Jackson, supra;
United States v. Sills,
56 M.J. 239, 240 (2002);
Miller, supra.
If the lower court is unable to cure the error through its
sentence reassessment, that court will return the case for a
sentence rehearing by a court-martial, albeit not the same court
that initially heard evidence and rendered findings and a
sentence. See
Jackson, supra at 579 (“A court-martial has
neither continuity nor situs and often sits to hear only a
single case.”).
Accordingly, I would return this case to the Judge Advocate
General of the Navy for remand to the United States Navy-Marine
Corps Court of Criminal Appeals for action consistent with this
opinion.
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United States v. Doss, No. 01-0686/NA
SULLIVAN, Senior Judge (dissenting):
Appellant was convicted of three serious crimes: assaulting
his wife with a loaded firearm, assault and battery on his wife,
and soliciting another to murder his wife. The Court of Criminal
Appeals found that 19 pages of medical records should have been
given to the sentencing authority at trial and found error.*
The Court of Criminal Appeals looked at the missing medical
records and commented on this situation as follows:
These records demonstrate a documented
history of stress, suicide ideation, and
mental health hospitalizations, commencing
in the spring of 1997 and continuing
through the date of trial. The objective
diagnoses of the various mental health
professionals who attended the appellant
could not have but considerably bolstered
the appellant’s self-serving unsworn
statement. We are confident that, but for
this error, the military judge would have
adjudged a lesser punishment.
Accordingly, we will reassess the
sentence.
Unpub. op. at 14-15.
The court below then applied our decision in United States v.
Jones, 39 M.J. 315 (CMA 1994), on reassessment and said:
In reassessing the sentence we have
carefully reviewed the record. In doing
*
I continue to voice my disagreement with the majority’s understanding and
use of the doctrine of law of case with respect to the scope of our appellate
review. See United States v. Hall, 56 M.J. 432, 437 (2002) (Sullivan, S.J.,
concurring in part and in the result); United States v. Walker, No. 01-0762,
__ MJ __ (2002)(Sullivan, S.J., joined by Crawford, C.J., dissenting).
United States v. Doss, No. 01-0686/NA
so, we paid particular attention to the
testimony of [Marsha Sue] Williams in
aggravation, the appellant’s unsworn
statement, the appellant’s awards and
excellent evaluations (prior to 1997),
and the medical records submitted to the
convening authority pursuant to RCM 1106.
In assessing the nature and
seriousness of the offense, we first
emphasize that in addition to the facts
of the solicitation, the appellant
pleaded guilty to assault with a firearm.
While the bulk of trial was devoted to
the solicitation, the appellant did plead
guilty to the earlier assaults upon his
wife. The circumstances of these
assaults set forth a very chilling
scenario in which Williams was terrorized
with a rifle pointed at her in close
proximity on four separate occasions and
on a fifth occasion from a greater
distance. On at least the first four
occasions, the rifle was purposefully
loaded just prior to the assaultive
behavior.
Given the dread Williams must have
experienced throughout her ordeal,
coupled with the appellant’s additional
guilt of the solicitation for Williams’
murder, and after carefully considering
the “character of the offender,” we are
certain that the appellant’s sentence
would have been at least of a certain
magnitude. We reassess the sentence that
would have been adjusted free of the
prejudicial error of the failure to
introduce the appellant’s medical records
at his court-martial.
Unpub. op. at 15-16 (emphasis added)(footnote ommited).
I see no legal error by the Court of Criminal Appeals in its
reassessment and reduction of appellant’s sentence from eight to
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United States v. Doss, No. 01-0686/NA
seven years confinement. See United States v. Boone, 42 M.J. 308,
314 (1995) (Sullivan, C.J., dissenting) (Court of Criminal
Appeals “adequately addressed the issue of effective assistance
of counsel”). I am not inclined to upset its considered judgment
based on speculation.
3
