United States v. Doyle ( 2022 )


Menu:
  •  This opinion is subject to administrative correction before final disposition.
    Before
    GASTON, STEPHENS, and HOUTZ
    Appellate Military Judges
    _________________________
    UNITED STATES
    Appellee
    v.
    Jason S. DOYLE
    Lieutenant Commander (O-4), U.S. Navy
    Appellant
    No. 201900190R
    _________________________
    Decided: 28 July 2022
    Appeal from the United States Navy-Marine Corps Trial Judiciary
    upon further review
    Military Judge:
    Kimberly J. Kelly
    Sentence adjudged 8 March 2021 by a general court-martial convened
    at Naval Base Kitsap, Bremerton, Washington, consisting of a military
    judge sitting alone. Sentence in the Entry of Judgment: no punish-
    ment. 1
    For Appellant:
    Lieutenant Commander Michael W. Wester, JAGC, USN
    1  The convening authority disapproved the adjudged 180 days’ confinement and
    forfeiture of all pay and allowances pursuant to a pretrial agreement.
    United States v. Doyle, NMCCA No. 201900190R
    Opinion of the Court
    For Appellee:
    Lieutenant John L. Flynn IV, JAGC, USN
    LCDR Jeffrey S. Marden, JAGC, USN
    _________________________
    This opinion does not serve as binding precedent, but
    may be cited as persuasive authority under
    NMCCA Rule of Appellate Procedure 30.2.
    _________________________
    PER CURIAM:
    Appellant’s case is before this Court a second time. At his court-martial in
    2019, he pleaded and was found guilty of aggravated assault in violation of
    Article 128, Uniform Code of Military Justice [UCMJ], 2 for placing his hands
    on his fiancée’s neck and applying pressure with a means likely to produce
    death or grievous bodily harm. During our initial review, we found his plea
    improvident to aggravated assault, set aside the findings and sentence, and
    authorized a rehearing. 3 At his second trial, he was convicted, consistent with
    his pleas, of the lesser-included offense of assault consummated by a battery.
    His case is now again before us pursuant to continuing jurisdiction under Ar-
    ticle 66(b)(3), UCMJ. 4
    In his sole assignment of error, Appellant asserts that under Article 66(c),
    UCMJ, it would be unreasonable for this Court to approve the findings where
    (1) Appellant’s commanding officer recommended nonjudicial punishment
    [NJP] after the State of Florida declined to prosecute Appellant; (2) the trial
    counsel then scheduled a meeting with the immediate superior in command
    [ISIC] accusing Appellant of attempted murder; and (3) the ISIC stated that
    while he had no plan to court-martial Appellant, the meeting made him believe
    the Navy had already made the decision that the case was going to court-mar-
    tial. We find no prejudicial error and affirm.
    2   
    10 U.S.C. § 928
    .
    3 United States v. Doyle, No. 201900190, 
    2020 CCA LEXIS 294
     (N-M Ct. Crim. App.
    Aug. 31, 2020) [Doyle I].
    4 See United States v. Johnson, 
    45 M.J. 88
    , 90 (C.A.A.F. 1996) (“Once the Court of
    Military Review has jurisdiction over a case, no action by a lower court or convening
    authority will diminish it.”).
    2
    United States v. Doyle, NMCCA No. 201900190R
    Opinion of the Court
    I. BACKGROUND
    We summarized the conduct underlying Appellant’s case in our initial opin-
    ion:
    Appellant met [his fiancée] D.G. in Jacksonville, Florida, in
    April 2016 through an online dating site and they were engaged
    approximately seven months later. D.G. had two minor sons
    from a previous relationship. Appellant received permanent
    change of station orders and, in March 2017, he moved to Whid-
    bey Island, Washington. Despite this fact, in June 2017, he and
    D.G. purchased a house together in Jacksonville, into which
    D.G. and her sons moved. Appellant planned to visit D.G. regu-
    larly.
    In December 2017, Appellant returned to Jacksonville for his
    Christmas leave period and stayed in their home, although, by
    then, the relationship had turned “difficult” and D.G. had
    stopped wearing her engagement ring. While at the home, Ap-
    pellant realized that the couple were “not on the same terms”
    regarding the relationship and he slept on the couch. While the
    relationship was troubled, Appellant was hoping to work to im-
    prove it. But the week before Appellant assaulted D.G., Appel-
    lant found an overnight bag from an unknown male in their
    bathroom.
    On the night he assaulted D.G., Appellant went alone to play
    trivia with [D.G.’s] parents while D.G. stayed home to watch her
    two children. When Appellant returned, D.G. told Appellant he
    would need to make plans for himself on 22 and 23 December
    because she would not be home. These were the two days that
    D.G.’s children would be with their father and D.G. told Appel-
    lant that she would be going out with a man whom she had been
    seeing since October, the man whose bag Appellant had found in
    their bathroom. Although D.G. was seeing another man, she as-
    sured Appellant that “they could still do Christmas together.”
    Appellant was devastated and a confrontation ensued. 5
    5   Doyle I, 
    2020 CCA LEXIS 294
    , at *3-4.
    3
    United States v. Doyle, NMCCA No. 201900190R
    Opinion of the Court
    As Appellant explained during the providence inquiry at his first trial, he
    attacked D.G. after she had called him a “passive p[****]” and “not an aggres-
    sive man,” which were statements in keeping with what he described as a re-
    curring theme in their relationship—that he was “too nice.” 6 He admitted at
    his second trial that during the confrontation, he placed his hands around
    D.G.’s neck and upper body and applied pressure on her neck, which obstructed
    her airway. D.G. was able to get away from Appellant and called the police,
    who apprehended him that night.
    Following Appellant’s arrest, Appellant and D.G. entered into a “Civil In-
    junction for Protection Against Domestic Violence,” which required Appellant
    to remain away from D.G. and for the two to sell their home by a certain date.
    Appellant waived his right to a speedy trial and agreed to undergo a 14-week
    domestic violence treatment program with the Navy’s Fleet and Family Sup-
    port Center or else face criminal prosecution. After he completed the program,
    the State of Florida declined to prosecute Appellant.
    By the time Florida declined to prosecute Appellant’s case, Appellant had
    been given Temporary Additional Duty orders to Patrol and Reconnaissance
    Wing TEN in Whidbey Island, Washington. Following Florida’s decision, Ap-
    pellant’s chain of command began normal case disposition processes under
    Rule for Courts-Martial 306. After reviewing Appellant’s case and consulting
    with his staff judge advocate, the Commodore of Wing TEN returned the case
    to Appellant’s commanding officer to take any disciplinary or administrative
    action he deemed appropriate. Appellant’s commanding officer then wrote to
    Commander, Patrol and Reconnaissance Group, requesting permission to ini-
    tiate NJP proceedings.
    Before this Court, Appellant moved to attach a declaration from the Com-
    modore of Wing TEN, 7 describing his perspective on the case and the events
    leading to his decision to recommend that Appellant’s case proceed to an Arti-
    cle 32, UCMJ, hearing. Among other things, the Commodore states in the dec-
    laration (1) that he became aware of Appellant’s case while he was the Deputy
    Commodore; (2) that around the time NJP was recommended, members of Re-
    gion Legal Service Office [RLSO] Northwest scheduled to meet with him; (3)
    that during the meeting, the RLSO trial counsel advocated in favor of prose-
    cuting Appellant at court-martial and presented the Commodore with draft
    charges, which included attempted murder; (4) that prior to the meeting he did
    6   
    Id. at *4
    .
    7 Between the decision to return the case to Appellant’s commanding officer for
    disposition and the request from Appellant’s commanding officer to initiate NJP pro-
    ceedings, the Deputy Commodore of the Wing had become the Commodore.
    4
    United States v. Doyle, NMCCA No. 201900190R
    Opinion of the Court
    not believe Appellant’s case rose to the level of attempted murder and would
    not have recommended that the case proceed to an Article 32 hearing; (5) that
    the meeting left him feeling that the Navy had already made the decision that
    the case was going to court-martial; (6) that after the meeting he adopted the
    position that the legal process would play out and would provide an oppor-
    tunity to clarify the matter; and (7) that he reached his decision to recommend
    an Article 32 hearing on his own and was not coerced by anyone to do so.
    II. DISCUSSION
    Having found no support in the case law for its inclusion in the record, we
    denied the motion to attach the Commodore’s declaration and decline to con-
    sider it. 8 Without the declaration, Appellant’s claim is without merit. Even if
    we considered the declaration, we would find no error.
    A. Application of United States v. Jessie
    “The scope and meaning of Article 66(c), UCMJ, is a matter of statutory
    interpretation, a question of law we review de novo.” 9 Article 66, UCMJ, gov-
    erns this Court’s review of findings and sentences. The version of this provision
    relevant to Appellant’s court-martial states:
    In a case referred to it, the Court of Criminal Appeals may act
    only with respect to the findings and sentence as approved by
    the convening authority. It may affirm only such findings of
    guilty and the sentence or such part or amount of the sentence,
    as it finds correct in law and fact and determines, on the basis of
    the entire record, should be approved. 10
    In United States v. Jessie, our superior court examined what constitutes
    the “entire record” and what types of supplemental materials may be properly
    attached to it. 11 The court found that while the Code does not provide an op-
    portunity for the accused and his counsel to supplement the “record” after the
    8 See United States v. Willman, 
    81 M.J. 355
    , 356-57 (C.A.A.F. 2021); United States
    v. Jessie, 
    79 M.J. 437
    , 443 (C.A.A.F. 2020); United States v. Ginn, 
    47 M.J. 236
    , 242
    (C.A.A.F. 1997); United States v. Buttigieg, No. 202000272, 
    2022 CCA LEXIS 36
     (N-M.
    Ct. Crim. App. Jan. 18, 2022).
    9   United States v. Nerad, 
    69 M.J. 138
    , 141–42 (C.A.A.F. 2010) (citation omitted).
    10   Article 66(c), UCMJ (emphasis added).
    11   Jessie, 79 M.J. at 437.
    5
    United States v. Doyle, NMCCA No. 201900190R
    Opinion of the Court
    convening authority has acted, there are a few circumstances in which a court
    of criminal appeals [CCA] may supplement the record: (1) when reviewing
    prison conditions under Article 66(c), UCMJ, if the record contains information
    about those conditions; (2) when extra-record fact determinations are neces-
    sary predicates to resolving appellate questions for issues raised by the record,
    but not fully resolvable by the materials in the record; and (3) when considering
    allegations concerning violations of the Eighth Amendment’s prohibition of
    cruel and unusual punishment, as well as violations of an appellant’s rights
    under Article 55, UCMJ. 12
    Here, Appellant moved to attach the declaration at issue in December 2021,
    after his first court-martial and appeal, after his rehearing, and seven months
    after his second appeal was docketed with this Court, to support a claim of
    prosecutorial overreach in the disposition decision that was not asserted in his
    first appeal regarding the same referred charge. Under Article 66(c), UCMJ,
    as interpreted by our superior court in Jessie, we find no legal basis to grant
    Appellant’s motion to attach the declaration to the record and decline to con-
    sider it. Without the declaration, his claim is baseless.
    B. Prosecutorial Overreach
    Even if we considered the declaration, we would find no merit in Appel-
    lant’s assertion of error. It is a well-established principle of military justice
    that consultation between disposition authorities and judge advocates is an
    expected norm of the case disposition process. 13 Disposition authorities are ex-
    pected to exercise their independent discretion at each stage of the process, in
    consultation with the judge advocates advising them, and to assess all relevant
    facts and circumstances prior to making a disposition decision. Likewise, staff
    judge advocates and trial counsel are expected to be forthright in their advice
    to disposition authorities, exercising care to present the decision-makers with
    all the relevant facts and circumstances underlying their recommendations.
    Such legal counsel must be cautious to avoid usurping the role of decision-mak-
    ers by suggesting or implying that they do not, in fact, have the discretion to
    dispose of cases other than through court-martial.
    Here, we find no evidence of any actions in contravention of these estab-
    lished norms, and thus no support for Appellant’s claims of misconduct or im-
    proper influence by the trial counsel over the Wing Commodore, who states
    12   Jessie, 79 M.J. at 441-42, 444-45 (citations omitted).
    13 See Article 34(a)-(c), UCMJ; Dep’t of the Navy, Judge Advocate General Instr.
    5800.7G, Manual of the Judge Advocate General paras. 0128.h, 0137.b (Jan. 15, 2021).
    6
    United States v. Doyle, NMCCA No. 201900190R
    Opinion of the Court
    that the decision to recommend an Article 32 hearing was his own. While Ap-
    pellant argues that his court-martial conviction is the result of prosecutorial
    overreach, he raises no claim of unlawful command influence, unreasonable
    multiplication of charges, or prosecutorial misconduct before this Court, for
    which case precedents would require a showing of prejudice to prevail on such
    legal claims. 14 Rather, he asks us to use our authority to disapprove his con-
    viction “even if correct as a matter of law.” 15 In effect, he asks us to find a
    solution in equity, not law, under the discretionary powers granted us by Arti-
    cle 66, UCMJ. We decline this invitation.
    Broken into its constituent parts, the language quoted above from Article
    66(c), UCMJ, provides that a CCA “may affirm only such findings and sentence
    that it: (1) finds correct in law; (2) finds correct in fact; and (3) determines, on
    the basis of the entire record, should be approved.” 16 With respect to the third
    part, while our statutory authority “to disapprove part or all of the sentence
    and findings” is clear, “nothing suggests that Congress intended to provide the
    CCAs with unfettered discretion to do so for any reason, for no reason, or on
    equitable grounds . . . .” 17 To the contrary, our superior court has held that our
    broad review powers under Article 66 must be exercised in the “context of le-
    gal—not equitable—standards, subject to appellate review.” 18 Thus, notwith-
    standing established principles of assessing sentence appropriateness, 19 we
    must be wary not to “exceed[] [our] authority by disapproving a finding with
    reference to something other than a legal standard.” 20
    In other words, ours is a court of law, not equity. Where appellants are
    sentenced appropriately, and their cases present no issues with respect to the
    14 See United States v. Barry, 
    78 M.J. 70
     (C.A.A.F. 2018); United States v. Camp-
    bell, 
    71 M.J. 19
    , 22-24 (C.A.A.F. 2012); United States v Fletcher, 
    62 M.J. 175
    , 179
    (C.A.A.F. 2005).
    15   Appellant’s Br. at 29.
    16Nerad, 69 M.J. at 141 (citing United States v. Tardif, 
    57 M.J. 219
    , 224 (C.A.A.F.
    2002)).
    17   
    Id. at 145
     (citation omitted).
    18   
    Id.
     at 140 (citing United States v. Quiroz, 
    55 M.J. 334
    , 339 (C.A.A.F. 2001)).
    19See, e.g., Jessie, 79 M.J. at 440 (“[A] CCA may not affirm any portion of a sentence
    that it finds excessive. . . . Accordingly, the CCAs have broad discretionary power to
    review sentence appropriateness.”) (cleaned up).
    20   Nerad, 69 M.J. at 140.
    7
    United States v. Doyle, NMCCA No. 201900190R
    Opinion of the Court
    factual and legal basis for their convictions, we are left with the ability to rem-
    edy legal errors. What Appellant asks this Court to do—i.e., wield its broad
    Article 66 authority to conclude that the findings should not be approved, even
    if correct as a matter of law, due to prosecutorial overreach21—is simply beyond
    our power. As we find that there was no unlawful action on the part of the trial
    counsel in persuading the Wing Commodore that court-martial charges should
    be preferred in lieu of handling the case administratively, we decline to apply
    our Article 66 authority to disapprove Appellant’s conviction.
    III. CONCLUSION
    After careful consideration of the record and briefs of appellate counsel, we
    have determined that the findings and sentence are correct in law and fact and
    that no error materially prejudicial to Appellant’s substantial rights oc-
    curred. 22
    The findings and sentence are AFFIRMED.
    FOR THE COURT:
    S. TAYLOR JOHNSTON
    Interim Clerk of Court
    21 Appellant’s Br. at 19 (arguing the trial counsel’s “decision to draft an attempted
    murder charge and schedule a meeting with the Commodore to urge an Article 32
    hearing on this theory—after Appellant’s commanding officer recommended [NJP]—
    [is] the sort of overreach that warrants disapproving the finding”).
    22 Articles   59 & 66, UCMJ.
    8
    

Document Info

Docket Number: 201900190R

Filed Date: 7/28/2022

Precedential Status: Precedential

Modified Date: 10/26/2022