United States v. McCray

UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
WASHINGTON, D.C.
Before
R.Q. WARD, J.A. FISCHER, D.C. KING
Appellate Military Judges
UNITED STATES OF AMERICA
v.
DYMOND R. MCCRAY
CORPORAL (E-4), U.S. MARINE CORPS
NMCCA 201300390
SPECIAL COURT-MARTIAL
Sentence Adjudged: 10 June 2013.
Military Judge: Maj Nicholas Martz, USMC.
Convening Authority: Commanding Officer, Headquarters and
Service Battalion, Marine Corps Recruit Depot, Parris
Island, SC.
Staff Judge Advocate's Recommendation: LtCol R.G. Palmer,
USMC.
For Appellant: CDR Suzanne Lachelier, JAGC, USN.
For Appellee: CDR Mary Grace McAlevy, JAGC, USN; Maj Crista
Kraics, USMC.
22 July 2014
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OPINION OF THE COURT
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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.
PER CURIAM:
A military judge sitting as a special court-martial
convicted the appellant, pursuant to her pleas, of one
specification of assault consummated by battery and one
specification of assault with a dangerous weapon in violation of
Article 128, Uniform Code of Military Justice, 10 U.S.C. § 928.
The military judge sentenced the appellant to confinement for
ninety days, reduction to pay grade E-1, and a bad-conduct
discharge. The convening authority (CA) approved the sentence
as adjudged.1
In the appellant’s sole assignment of error she contends
that the imposition of a bad-conduct discharge is
inappropriately severe. After careful consideration of the
parties’ pleadings and the record of trial, we are convinced
that the findings and sentence are correct in law and fact, and
that no error materially prejudicial to the substantial rights
of the appellant occurred.
Background
In October of 2012, the appellant had an extended argument
with her then fiancée, Sergeant PG. As the argument progressed,
Sergeant PG demanded that the appellant return the engagement
ring he had given her. The appellant told Sergeant PG to take
the ring from her, but maintained control of it in her clenched
fist. Sergeant PG pried open the appellant’s fingers to
retrieve the ring at which point the appellant struck Sergeant
PG in the upper body with her closed fist.
Despite this altercation, the appellant and Sergeant PG
married in November of 2012. In January 2013, the appellant
discovered that Sergeant PG had recently sent a text message to
another woman that contained an inappropriate photo of himself.
This contributed to further relationship strife and shortly
thereafter, on 13 January 2013, the appellant and Sergeant PG
began an argument over the volume of his music. The argument
escalated and Sergeant PG attempted to leave the residence in
the appellant’s car. When Sergeant PG entered the driver’s seat
the appellant brought a steak knife from the kitchen, reached
over the car door and swung the knife at Sergeant PG, making
contact with his right arm and slicing the skin along his
forearm. Sergeant PG disarmed the appellant and pushed her to
the floor, at which point the appellant grabbed a padlock off
the floor and swung it at Sergeant PG, striking him in the head.
The appellant then called the police and reported that her
husband had assaulted her.
1
The military judge recommended that the CA suspend the punitive discharge in
light of the appellant’s honorable service up to the incident for which she
was court-martialed. Record at 130.
2
Sentence Appropriateness
The appellant asserts that the adjudged bad-conduct
discharge is inappropriately severe given her record of service
and the particular facts of her conduct.
“Sentence appropriateness involves the judicial function of
assuring that justice is done and that the accused gets the
punishment he deserves.” United States v. Healy, 26 M.J. 394,
395 (C.M.A. 1988). This requires “‘individualized
consideration’ of the particular accused ‘on the basis of the
nature and seriousness of the offense and character of the
offender.’” United States v. Snelling, 14 M.J. 267, 268 (C.M.A.
1982) (quoting United States v. Mamaluy, 27 C.M.R. 176, 180-81
(C.M.A. 1959)).
In this case the appellant pled guilty to assaulting
Sergeant PG on two separate occasions, wielding a knife that cut
his arm, and striking him in the head with a metal padlock.
After carefully considering the record, the evidence offered in
aggravation, as well as the evidence offered by the defense in
extenuation and mitigation, we find that the punishment awarded
was appropriate for this offender and this offense. Granting
the appellant the requested relief would amount to an act of
clemency which is left to “command prerogative” of the CA.
Healy, 26 M.J. at 396. Accordingly, we decline to grant relief.
Conclusion
The findings and the sentence approved by the CA are
affirmed.
For the Court
R.H. TROIDL
Clerk of Court
3