United States v. Private First Class GEORGE D. MACDONALD ( 2017 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
HERRING, FEBBO, and WOLFE
Appellate Military Judges
UNITED STATES, Appellee
v.
Private First Class GEORGE D. MACDONALD
United States Army, Appellant
ARMY 20091118
Headquarters, United States Army Maneuver Center of Excellence
Deidra J. Flemming and Michael J. Hargis, Military Judges (rehearing)
James L. Pohl, Military Judge (trial)
Colonel Charles C. Poché, Staff Judge Advocate (rehearing pretrial)
Colonel Wendy P. Daknis (rehearing post-trial)
Colonel Tracy A. Barnes, Staff Judge Advocate (pretrial)
Lieutenant Colonel Mary M. Foreman, Staff Judge Advocate (post-trial)
For Appellant: Major Christopher D. Coleman, JA; Captain Joshua G. Grubaugh,
JA.
For Appellee: Lieutenant Colonel A.G. Courie, JA.
27 January 2017
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SUMMARY DISPOSITION ON FURTHER REVIEW
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Per Curiam:
Appellant stipulated to the central facts of this case.
On 13 May 2008, appellant began contemplating killing someone. Four days
later, appellant emailed his girlfriend asking if she would still love him if he killed
someone. The next day, on 18 May 2008, appellant walked into a platoon bay at
Fort Benning Georgia where Private (PVT) RB was asleep on his bunk. Appellant
then thought about killing PVT RB for half a minute. He then attacked the sleeping
soldier with a knife.
Appellant stabbed PVT RB in the neck. Private RB awoke and tried to fend of
the attack, crawl away, and escape under his bunk. Appellant continued to stab and
slash PVT RB and pull him back out from under his bunk. In total, appellant
stabbed and slashed PVT RB fifty-seven times and assaulted a soldier who attempted
to intervene in the murder.
MACDONALD—ARMY 20090118
Private RB did not die immediately. He died at the hospital when doctors
were unable to stop the bleeding from the multiple wounds. Private RB had been in
the Army three days and had no prior interaction with appellant.
At appellant’s first court-martial, he was found guilty of premeditated murder
(among other offenses) and sentenced to confinement for life without the possibility
of parole. Because of instructional error, the Court of Appeals for the Armed Forces
(CAAF) set aside the conviction but authorized a rehearing. United States v.
McDonald, 73 M.J. 426, 439 (C.A.A.F. 2014) (“McDonald I”).
At the rehearing, appellant pleaded guilty and a military judge, sitting as a
general court-martial, convicted appellant of resisting arrest, unpremeditated
murder, assault consummated by battery, and aggravated assault, in violation of
Articles 95, 118, and 128 of the Uniform Code of Military Justice, 10 U.S.C. §§ 895,
918, 928 [hereinafter UCMJ]. The convening authority approved the adjudged
sentence of a dishonorable discharge, confinement for forty-five years, total
forfeitures, and reduction to the grade of E-1. The military judge and convening
authority credited appellant with 2,669 days of credit against the sentence to
confinement.
This case is before us for review pursuant to Article 66, UCMJ. Appellant
assigns no errors, but personally submitted matters pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982). The issues raised personally by appellant do
not merit relief. *
In our review of the record, we note one issue not raised by appellant.
Prosecution Exhibit 2 is a stipulation of fact addressing the drug Chantix. In his
first court-martial, appellant’s defense included evidence that he was not criminally
responsible for the murder because of his ingestion of Chantix. See McDonald I, 73
M.J. at 438. At his rehearing, appellant specifically disavowed any defense of
involuntary intoxication or lack of mental responsibility stemming from his
ingestion of Chantix. However, Pros. Ex. 2, in addition to stipulating facts
regarding the effects of the drug Chantix, contains an agreement between the
prosecution and the accused that Pros. Ex. 2 “is the only evidence that will be
*
Appellant first complains that while pending the rehearing he was in a no-pay
status. At trial, appellant litigated this issue as a violation of the 13th Amendment.
We find the military judge did not abuse his discretion in denying the motion. See
United States v. Howell, 75 M.J. 386, 392 (C.A.A.F. 2016). Appellant next
complains that the military judge abused his discretion in not granting Rule for
Courts-Martial [hereinafter R.C.M.] 305(k) credit when, while pending rehearing, he
was confined with post-trial prisoners. The military judge’s findings of fact were
not clearly erroneous and his denial of the motion was not an abuse of discretion.
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MACDONALD—ARMY 20090118
admitted regarding Chantix . . . .” and that “[n]either side will call any experts, lay
witnesses, or present any other documentation regarding Chantix . . . .”
This agreement, which prohibited the parties from introducing evidence in
sentencing, possibly violated R.C.M. 705(c)(1)(B) (a pretrial agreement may not
deprive an accused of “the right to complete sentencing proceedings.”). As the
United States Supreme Court has stated, “[a] contract to deprive the court of
relevant testimony . . . stands on a different ground than one admitting evidence that
would otherwise have been barred by an exclusionary rule.” United States v.
Mezzanatto, 513 U.S. 196, 204-05 (1995); see also United States v. Sunzeri, 59 M.J.
758 (N.M. Ct. Crim. App. 2004) (Term that prohibited accused from presenting
evidence (by any means) from any witness who lived outside the island of Oahu was
improper). However, in the context of the entire case, we find any error to be
harmless. See United States v. Edwards, 58 M.J. 49, 53 (C.A.A.F. 2003)
(“[V]oluntarily waiving the right [to present certain information in an unsworn
statement] did not deprive appellant of a ‘complete sentencing proceeding’” and did
not violate public policy).
Having reviewed the entire record of trial, we determine the findings and
sentence are correct in law and fact and should be approved.
CONCLUSION
The findings of guilty and sentence are AFFIRMED.
FORTHE
FOR THECOURT:
COURT:
MALCOLM
MALCOLMH. H.SQUIRES,
SQUIRES,JR.
JR.
Clerk
Clerkof
ofCourt
Court
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