United States v. Ruffin , 46 M.J. 657 ( 1997 )

DOMBROSKI, Chief Judge:

Tried before a general court-martial of officer and enlisted members, the appellant was charged with an attempt to murder with premeditation, conspiracy to murder with premeditation, conspiracy to commit an aggravated assault, aggravated assault, and wrongful discharge of a firearm, in violation of Articles 80, 81, 128, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 880, 881, 928, and 934 (1994)[hereinafter UCMJ], respectively. The appellant pled not guilty to all charges and specifications. Following a trial on the merits, the appellant was found guilty of attempted murder by engaging in acts inherently dangerous to others, conspiracy to murder by éngaging in acts inherently dangerous to others, aggravated assault with a firearm, and wrongful discharge of a firearm. The members sentenced the appellant to be confined for 5 years, total forfeitures, reduction to pay-grade E-l, and a dishonorable discharge. The convening authority disapproved the findings of guilty as to the conspiracy to murder charge and dismissed that charge. He approved the remaining findings of guilty and the sentence adjudged but suspended execution of confinement in excess of 2 years for a period of 12 months from the date of his action.

Before this court, the appellant has assigned three errors.¹ We specified an additional issue² and ordered briefs. We will address the first assignment of error and the specified issue. Our resolution of the specified issue renders moot the second and third assignments of error.

Facts

This case began as a joint trial of four accused. Severance of the cases came after litigation of a speedy-trial motion. All of the charges arose out of an altercation between rival groups of Sailors which began at the enlisted club at Naval Air Station, Whidbey Island, and thereafter continued in the parking lot of a club in Oak Harbor; Washington. A firearm was discharged several times, one round hitting and lodging in the leg of a third-class petty officer. That petty officer was also_ severely beaten when he was down on the ground after being shot. Direct evidence established that the appellant pointed and discharged a firearm in the direction of the victim.

The military judge found the pertinent timeline facts; they were not in dispute and we adopt them as true. The offenses occurred on 27 November 1993. The appellant was placed in pretrial restriction on 10 December 1993 and afterwards released from that restriction on 15 February 1994. Charges were preferred on 16 February 1994. Thereafter, an investigation under Article 32, UCMJ, 10 U.S.C. § 832, was completed. Trial commenced with arraignment on 30 August 1994, the 195th day after pre-ferral. The convening authority approved five separate periods of delay totaling 127 days, under Rule for Courts-Martial 707(c), Manual for Courts-Martial, United States (1995 ed.)[hereinafter R.C.M.]. The defense disputed the reasonableness of these periods of delay.

Speedy-Trial Issue

In the first assignment of error, the appellant argues that the Government violated his right to a speedy trial under R.C.M. 707. After receiving evidence and hearing argument, the military judge denied the motion. Record at 112. The judge’s essential findings are contained in the record following page 112. We conclude that the military judge correctly found that the 120-day period under R.C.M. 707 commenced with the preferral of charges. We also conclude that the military judge correctly found that the various periods of excludable delay were reasonable and that trial thus commenced within the 120-day period of R.C.M. 707.

R.C.M. 707(a) provides in pertinent part:

(a) In general. The accused shall be brought to trial within 120 days after the earlier of:

(1) Preferral of charges;

(2) The imposition of restraint under R.C.M. 304(a)(2)-(4)....

Further, R.C.M. 707(b)(3)(B) specifies:

(B) Release fi'om restraint. If the accused is released from pretrial restraint for a significant period, the 120-day time period under this rule shall begin on the earlier of

(i) the date of preferral of charges;

(ii) the date on which restraint under

R.C.M. 304(a)(2)-(4) is reimposed____

The analysis of this subsection provides as follows:

Subsection (3)(B) clarifies the intent of this portion of the rule. The harm to be avoided is continuous pretrial restraint. See United States v. Gray, 21 M.J. 1020 (N.M.C.M.R.1986). Where an accused is released from pretrial restraint for a substantial period, he will be treated the same as an accused who was not restrained. Therefore, unless the restraint is reimposed, the 120-day time period will run from the date of preferral ... regardless of whether that event occurs before or after the accused was released from restraint.

MCM, app. 21, Rule 707 analysis, at 41.

The first determination we must make is on what date the R.C.M. 707 speedy-trial clock began to run. As they did at trial, the defense argues that the clock started and continued to run from the initial imposition of pretrial restriction on 10 December 1993. The defense reasons that since preferral of charges came 1 day after the appellant’s release from pretrial restriction, this 1-day period does not constitute release for a significant period under the rule. This would put arraignment on the 263rd day following the initial restraint. Subtracting 127 days of excludable delay, the 120-day rule would still have been violated.

The Government argues that since no form of pretrial restraint was ever reimposed on the appellant after his release on 15 February 1994, the release was, ipso facto, for a significant period, and the clock was reset to zero and began to run anew with preferral of charges on 16 February 1994. Arraignment occurred on the 195th day after preferral. Subtracting 127 days of excludable delay, the 120-day period under R.C.M. 707 was not violated.

In denying the defense motion at trial, the military judge ruled in accord with the Government’s position, relying on the analysis to Rule 707(b)(3)(B) and citing United States v. Cornelius, 37 M.J. 622 (A.C.M.R.1993). She specifically found that the speedy-trial clock started 17 February 1994, or with preferral of charges.

We first observe that we have been unable to find any reported decision that directly addresses our facts, and none has been cited to us. The Cornelius holding upon which the military judge relied is grounded on the fact that the break in restriction in that case stopped the speedy-trial clock, making the Government accountable only from the date of preferral of charges to arraignment. Cornelius, 37 M.J. at 626. The Cornelius court made no attempt to define the relevant time-frame for what constitutes a release from restraint for a significant period. The facts in Cornelius differ from those in the case at bar. In Cornelius, there were 17 days of pretrial restraint, followed by 66 days to preferral of charges, then 71 days from pre-ferral to arraignment.

There are a number of reported speedy-trial cases under R.C.M. 707 in which there has been a release from confinement and no reimposition of restraint. Generally, the courts have tended to define the relevant timeframe for finding that release from restraint had been for a “significant period” as the period from release from restraint to preferral of charges. See United States v. Wagner, 39 M.J. 832 (A.C.M.R.1994) (release from restraint for “over a week” prior to preferral was a significant period); United States v. Reynolds, 36 M.J. 1128 (A.C.M.R. 1993) (19 days between release from restraint and preferral of charges a significant period); United States v. Callinan, 32 M.J. 701 (A.F.C.M.R.1991) (release from restriction on 1 April and preferral of charges on 8 June held a significant period); United States v. Campbell, 32 M.J. 564 (A.C.M.R. 1991)(13 days between release and preferral a significant period); United States v. Turk, 22 M.J. 740 (N.M.C.M.R.1986), aff'd on other grounds, 24 M.J. 277 (C.M.A.1987) (18 days between release from restraint and preferral of charges a significant period). See also United States v. Mickla, 29 M.J. 749 (A.F.C.M.R.1989); United States v. Wilkinson, 27 M.J. 645 (A.C.M.R.1988); United States v. Facey, 26 M.J. 421 (C.M.A.1988).

Obviously, if an accused is released from pretrial restraint and thereafter restraint is reimposed, the relevant timeframe to determine whether the release was for a significant period is to consider the period from release to reimposition of restraint. However, it does not automatically follow that where the accused is released from pretrial restraint and restraint is never reimposed, that the relevant timeframe to determine whether the release is for a significant period is to measure the period from release to preferral of charges. The significant period in the latter instance must necessarily continue up to the commencement of trial, for the reasons we discuss below. The primary reason for the “significant period” requirement in the rule is to preclude short, sham releases from restraint for “a few hours or a day,” in order to stop the speedy-trial clock and obtain a zero restart of the clock on reimposition of restraint. See United States v. Gray, 26 M.J. 16, 22 (C.M.A. 1988) (Chief Judge Everett concurring in the result).

The drafters’ analysis of R.C.M. 707(b)(3)(B) contemplates that even in a case where we find pretrial restraint, preferral of charges while restraint continues, then release from restraint with no reimposition of restraint, the speedy-trial clock will be reset to the date of preferral, and the accused treated the same as if he had not been restrained at all. The drafters’ analysis is best understood by considering the predecessor statement of the rule.

Prior to Change 5 to the MCM³ which became effective on 6 July 1991 and which included a revision of R.C.M. 707, then R.C.M. 707(b)(2) read as follows: “If charges are dismissed, if a mistrial is granted, or— when no charges are pending — -it the accused is released from pretrial restraint for a significant period, the time under this rule shall run only from the date on which charges or restraint are reinstituted.” Emphasis added. In United States v. Gray, 21 M.J. 1020 (N.M.C.M.R.1986), aff'd, 26 M.J. 16 (C.M.A. 1988), characterizing the wording of the rule as “awkward,” this court noted that in a release from restraint case, the two required determinations are: (1) that no charges were pending at the time of release; and (2) the period of release from restraint must have been significant. Id. at 1023-24. Addressing the key issue in the case, this court identified notification to the accused of preferred charges as the event which causes charges to be “pending” in the military justice system. The court found that a period of 47 days between release from pretrial restraint and notice of preferral of charges constituted a “significant period” under the rule, such that the speedy-trial clock began to run on the date of notice of preferred charges. On review, the U.S. Court of Military Appeals affirmed, with the case generating three separate opinions. United States v. Gray, 26 M.J. 16 (C.M.A.1988).⁴

All three judges of the Court of Military Appeals agreed that charges were not pending against the appellant in that ease at the time of his release from confinement. Id. at 17. This was a key determination under the old formulation of the rule and one which, we submit from a close reading of the analysis to the current rule, the drafters sought to eliminate entirely in their reformulation of the rule in 1991. As to any illumination of the term “significant period,” all three judges in the Court of Military Appeals agreed that Gray had indeed been released from confinement for a “significant period.” Chief Judge Everett seemed to focus on the period between release and preferral of charges in stating: “[W]hen appellant was released from pretrial confinement on January 4, 1985, and this release was followed by ‘a significant period’ of almost a month’s liberty, the earlier restraint became irrelevant. The stop watch was reset at zero.” Id. at 22. As noted previously, Chief Judge Everett also offered that the “significant period” provision served primarily as a check on sham releases. Judge Cox agreed that the release from confinement in Gray was for a “significant period,” but he did not offer any further definition of the term “significant period.” Id. In the lead opinion, Judge Sullivan clearly was looking past the period of time between release and preferral in finding a “significant period.” He stated the following:

[I] note that appellant was previously confined for a period of 29 days____ After his release from confinement ... he was not reconfined prior to the preferral of charges against him____ This was a period of approximately 34 days. It also must be noted that he was not reconfined during the remaining 113-day period leading to his trial____ Clearly the record supports a finding that his release ... was “for a significant period” of time.

Id. at 20 (emphasis added).

Shortly after Gray, the Court of Military Appeals decided United States v. Facey, 26 M.J. 421 (C.M.A.1988). In a 3-0 opinion authored by Chief Judge Everett, the court determined that certain travel restrictions imposed on the appellant in that case after he had been released from pretrial restriction did not constitute pretrial restraint for speedy-trial purposes. Accordingly, the court found no speedy-trial violation. In deciding that the speedy-trial clock started anew under the then R.C.M. 707(b)(2) version of the rule, Chief Judge Everett referred to the period between release from restraint to preferral of charges, and also looked past preferral in finding release from pretrial restraint was for a “significant period,” writing as follows:

Since charges were not preferred until much later — namely, March 27, 1985 — the termination on November 15 1984, of the restraint to which appellant had been subject would preclude consideration for speedy trial-purposes of the earlier restraint. Indeed, since no new restraint was imposed from November 1991 until appellant’s trial, the new 120-day period would commence when the charges were preferred on March 27,1985.

Facey, 26 M.J. at 424 (emphasis added). See F.A. Gilligan & F.I. Lederer, Court-Martial Procedure § 17-72.30 (1991) (characterizing Facey as holding “when no additional pretrial restraint was imposed after release, accountability began upon the date when charges are preferred.”).

Our reading of R.C.M. 707(b)(3)(B) comports with the drafters’ analysis and is consistent with what we perceive to be the R.C.M. 707 policy goals of minimizing continuous pretrial restraint and promoting speedy trial of charges. See Gray, 26 M.J. at 21 (Everett, C.J., concurring in the result). The rule specifies “[i]f the accused is released from pretrial restraint for a significant period----” It does not read “if the accused is released from pretrial restraint for a significant period prior to preferral of charges.” The defense and dissent would have us define the relevant timeframe (to determine whether a release from restraint is for a significant period) as the date of release to the date of preferral, which in this ease is a single day. Then they would have us find that 1 day is not a significant period, without regard to the fact that the appellant remained at liberty for most of the time consumed in processing his case, that is from 15 February 1994 to arraignment on 30 August 1994.

Were we to adopt this reasoning, the pre-ferral of charges could be readily manipulated to avoid the result the defense urges. For example, in this case, a trial counsel might conclude that when an accused is released from restraint prior to trial, a sufficient interval of days should be allowed to pass before charges are preferred to ensure that there exists a “significant period” between release and preferral. We cannot imagine that the drafters would have intended such gaming of the rule. It would artificially extend the processing time for a case, contrary to the primary purpose of the rule, which is speedy disposition of the charges. The analysis of the rule makes it clear that the drafters intended no such result.

Moreover, a construction of the rule which encourages military authorities to release persons from pretrial restraint in appropriate cases is to be preferred, the primary reason being that our system of military justice does not have a bail component. A reading of the rale which gives the Government a reset of the speedy-trial clock on preferral of charges when an accused is released from pretrial restraint and never rerestrained is desirable, without regard to the fact that preferral occurs shortly after release from restraint. Indeed, the same result should obtain even if preferral occurs sometime before release from restraint, as the analysis to the rale contemplates.

In the case before us, the civilian and military police investigations identified the four Sailors, who came to be charged in this case, shortly after the shooting incident. Two Sailors, including the appellant, were restricted for approximately 2 months, and two remained at liberty. We presume the pretrial restraint decision was made on the basis of information developed in the early investigation of the case. The charges were preferred against all four accused on the same day, with pretrial restraint having been lifted for the two restricted men, never to be reimposed. Trial of the four accused started on the same day a number of months later. We find no reason to treat these cases differently for speedy-trial purposes.⁵ All four accused were at liberty for most of the time that elapsed in the processing of their cases, and their trials began as a joint trial. We consider the release from restraint, coming as it did early in the processing of the cases, to have been in good faith and not a subterfuge to subvert the purposes of R.C.M. 707.

The military judge found that the various requests for delay were properly submitted in writing, that the convening authority had not abused his discretion in granting the requests, and that the delays were not unreasonable. We agree with the essential findings of the military judge, and we find no abuse of discretion by the convening authority in granting the requests for excludable delay on the facts of this case. Once these delays are excluded from the accountable period, we find that the trial occurred well within the 120-day requirement of R.C.M. 707(a).

We hold that where an accused is initially restricted for 67 days, then released with no reimposition of any pretrial restraint, the release is for a “significant period” where trial commences over 6 months after the release, thereby restarting the Government’s accountability under R.C.M. 707 to the date of preferral of charges, notwithstanding that charges were preferred the day following the release from restraint. Since the period of time between preferral of charges and commencement of trial, less periods of excludable delay, was less than 120 days, we find no violation of R.C.M. 707 in this case.

Both at trial, Appellate Exhibit IV, and in the appellate brief, the appellant also cites to Article 10, UCMJ, 10 U.S.C. § 810 in support of his speedy trial motion. We find that the appellant was never confined nor were the conditions of restriction tantamount to confinement. Accordingly, we find no Article 10, UCMJ, 10 U.S.C. § 810, violation.

We conclude that the first assignment of eraor is without merit.

Attempted Murder Charge

Under Charge I, the appellant was charged with attempted murder with premeditation.

In her instructions to the members on findings, the military judge advised of the elements of attempted murder with premeditation, including the requirement that the appellant must have had a specific intent to kill. Record at 469-70. She went on to advise that the offense of attempted murder while engaging in acts inherently dangerous to another is a lesser included offense of attempted murder with premeditation. Record at 70-71. Ultimately, the members returned a finding of guilty as to this so-called lesser included offense under Charge I. Record at 492. As both appellate government and appellate defense counsel set forth in their briefs, an attempt to murder requires a specific intent to kill. Thus, attempted murder by engaging in acts inherently dangerous to others does not constitute an offense under the Code. United States v. Roa, 12 M.J. 210 (C.M.A.1982); MCM, Part IV, 1143d and app. 23, f 43. Accordingly, we will set aside the findings as to Charge I.

Disposition

In taking his initial action, the convening authority set aside the findings of guilty as to the conspiracy to murder charge and dismissed that charge. We now will dismiss the attempted murder charge. This eliminates the two most serious guilty findings the members considered in sentencing. The findings of guilty remaining are for aggravated assault with a firearm and wrongful discharge of a firearm — certainly serious offenses, but far less serious than the offenses for which the appellant was sentenced. Indeed the maximum permissible confinement is reduced from life to 9 years. MCM, app. 12. Given this disparity, it would be a highly artificial exercise for this court to attempt to conclude what sentence would have been adjudged with only the aggravated assault and wrongful discharge offenses before the court. United States v. Peoples, 29 M.J. 426 (C.M.A. 1990); United States v. Sales, 22 M.J. 305 (C.M.A.1986).

Our disposition renders moot the second and third assignments of error.

Accordingly, the findings of guilty as to Charge I and the specification thereunder are set aside, and Charge I and its specification are dismissed. The remaining findings of guilty as to Charges III and IV and the specifications thereunder are affirmed. The sentence is set aside. A rehearing on the sentence may be ordered by the same or a different convening authority.

Judge OLIVER, concurs.

1 . I. THE MILITARY JUDGE ERRED WHEN SHE DENIED APPELLANT'S MOTION TO DISMISS FOR DENIAL OF SPEEDY TRIAL.

II. PLAIN ERROR OCCURRED DURING GOVERNMENT'S SENTENCING ARGUMENT BECAUSE TRIAL COUNSEL UNDULY EMPHASIZED THE GENERAL DETERRENT EFFECT OF APPELLANT'S SENTENCE AND BECAUSE TRIAL COUNSEL WAS IMPROPERLY ALLOWED TWO SENTENCING ARGUMENTS.

III. THE CONVENING AUTHORITY ERRED WHEN HE FAILED TO REASSESS THE SENTENCE AFTER HE SET ASIDE THE FINDING OF GUILTY TO SPECIFICATION 1 OF CHARGE II AND DISMISSED THAT OFFENSE.

2 . AS TO THE FINDINGS OF GUILTY OF A LESSER-INCLUDED OFFENSE UNDER CHARGE I, DOES ATTEMPTED MURDER BY ENGAGING IN ACTS INHERENTLY DANGEROUS TO OTHERS CONSTITUTE AN OFFENSE UNDER THE UNIFORM CODE OF MILITARY JUSTICE? (Citations omitted.)

3 . Executive Order No. 12767 of 27 June 1991.

4 . In the lead opinion, Judge Sullivan noted that the various interpretations of R.C.M. 707 suggested the need for a redraft of the rule. United States v. Gray, 26 M.J. at 20 n. 3. Notwithstanding Change 5 to the Manual, there may be work yet to be done here. The rule is not a model of clarity, and only when the rule is read in light of the pre-1991 version of the rule does the drafters' analysis of R.C.M. 707(b)(3)(B) become clearer.

5 . Of course the nature and duration of any pretrial restraint must be considered in sentencing. R.C.M. 1001(b)(1).