United States v. Captain CHRISTOPHER GRAY ( 2013 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
COOK, GALLAGHER, and ALDYKIEWICZ
Appellate Military Judges
UNITED STATES, Appellee
v.
Captain CHRISTOPHER GRAY
United States Army, Appellant
ARMY 20090259
19th Sustainment Command (Expeditionary) (trial)
U.S. Army Fires Center of Excellence and Fort Sill (new recommendation and action)
Donna M. Wright, Military Judge
Lieutenant Colonel Juan A. Pyfrom, Staff Judge Advocate (trial)
Colonel Jeffery D. Pedersen, Staff Judge Advocate (new recommendation)
Colonel Mark W. Seitsinger, Staff Judge Advocate (new addendum)
For Appellant: Mr. Frank K. Spinner, Esquire (argued); Captain Kathleena Scarpato,
JA; Mr. Frank K. Spinner, Esquire (on brief); Captain Kristin McGrory, JA.
For Appellee: Captain Kenneth W. Borgnino, JA (argued); Major Amber J.
Williams, JA; Major Sara M. Root, JA; Captain Kenneth W. Borgnino, JA (on brief).
22 January 2013
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SUMMARY DISPOSITION ON FURTHER REVIEW
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Per Curiam:
A panel of officers sitting as a general court-martial convicted appellant,
contrary to his pleas, of premeditated murder and conduct unbecoming an officer, in
violation of Articles 118 and 133 of the Uniform Code of Military Justice, 10 U.S.C.
§§ 918, 933 (2006) [hereinafter UCMJ]. The convening authority approved the
adjudged sentence to a dismissal, confinement for life with the possibility of parole,
forfeiture of all pay and allowances, and a reprimand.
On 5 April 2012, this court set aside the convening authority’s initial action
due to numerous post-trial processing errors and returned the record of trial to The
Judge Advocate General for remand to the same or a different convening authority
for a new staff judge advocate recommendation (SJAR) and action. United States v.
Gray, ARMY 20090259, 2012 WL 1166470 (Army Ct. Crim. App. 5 Apr. 2012)
(mem. op.). In that opinion, we specifically noted that the SJAR and its addendum
GRAY— ARMY 20090259
“failed to address numerous allegations of legal error raised by appellant in his Rule
for Courts-Martial [hereinafter R.C.M.] 1105 submissions.” Id. at *1. The case was
returned and remanded to a new convening authority, and that convening authority
took action on 12 October 2012, disapproving the reprimand and otherwise
approving the remainder of the adjudged sentence. Appellant’s case is now before
this court for review pursuant to Article 66, UCMJ, and again we are faced with an
addendum that fails to properly address the allegations of legal errors raised by
appellant in his R.C.M. 1105 submissions.
In response to the new SJAR, 1 appellant submitted R.C.M. 1105 matters to the
new convening authority, and again, clearly and unequivocally, asserted numerous
legal errors. Appellant’s defense counsel specifically “renew[ed] the requests made
in that original submission, and incorporate[d] the entirety of that original clemency
submission.” The original submission included a nine-page memorandum that
outlined the alleged legal errors and stated to the convening authority, “[Y]ou as
convening authority, with the advice of your [staff judge advocate (SJA)], are in a
position to correct legal errors. To the extent you recognize them, address them or
work to correct them at this clemency stage, you may spare the appellate litigators
from needless work and promote the ends of justice.” In his R.C.M. 1105 matters to
the new convening authority, appellant also submitted a personal request, stating, “I
am of course renewing the legal motions and objections of my previously submitted
[R.C.M.] 1105 [matters].” Finally, the new R.C.M. 1105 matters noted that “[t]o the
extent that appropriate corrective action has been taken to address the requested
deferment and waiver of forfeitures issues, that portion of the original clemency
request may have been answered, but the remaining requests are renewed via this
memorandum and its enclosure.”
Thereafter, a new addendum was prepared in this case; however, the new
addendum advised the convening authority, inter alia, “[T]he defense has made no
allegations of legal error that have not already been addressed by the Army Court of
Criminal Appeals (A.C.C.A.); therefore, no corrective action is necessary.” Thus,
the new addendum appears to advise the convening authority that there are no
allegations of legal error remaining for the convening authority’s consideration. In
this respect, the SJA provided erroneous and misleading advice to the convening
authority.
The Rules for Courts-Martial require the SJA to advise a convening authority
about legal errors raised in an accused’s R.C.M. 1105 submissions:
1
On 27 June 2012, a new SJAR was prepared for the new convening authority. The
new SJAR noted the procedural history of the case, contained the statutorily required
contents, see Rule for Courts-Martial [hereinafter R.C.M.] 1106, and recommended
disapproval of the adjudged reprimand.
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GRAY— ARMY 20090259
[W]hen the recommendation is prepared by a staff judge advocate,
the staff judge advocate shall state whether, in the staff judge
advocate’s opinion, corrective action on the findings or sentence
should be taken when an allegation of legal error is raised in
matters submitted under R.C.M. 1105 or when otherwise deemed
appropriate by the staff judge advocate.
R.C.M. 1106(d)(4). In this case, the SJA opined that no corrective action was
necessary with respect to the defense allegations of legal error because this court
had addressed all such allegations. However, this court has not addressed the merits
of the legal errors raised by appellant. Instead, this court identified prejudicial error
in the post-trial process and set aside the action, returning the case for a new SJAR
and action. “In light of the nature of the alleged legal errors we find this absolute
failure to be prejudicial.” Gray, 2012 WL 1166470, at *4. Therefore, we will again
set aside the action in this case. In doing so, we are not expressing any opinion
about the merit of the errors raised by appellant, only that the SJA must comply with
R.C.M. 1106(d)(4).
CONCLUSION
Accordingly, the convening authority’s action, dated 12 October 2012, is set
aside. The record of trial is returned to The Judge Advocate General for a new
addendum and action by the same or a different convening authority in accordance
with Article 60(c)–(e), UCMJ.
FOR
FOR THE
THE COURT:
COURT:
MALCOLM H.
MALCOLM H. SQUIRES,
SQUIRES, JR.
JR.
Clerk of
Clerk of Court
Court
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