United States v. Brett

OPINION OF THE COURT KENNETT, Judge: Pursuant to his pleas, appellant was convicted by a general court-martial composed of officer and enlisted members of, inter alia, drunken and reckless driving resulting in personal injury to four passengers in appellant’s vehicle, and negligent homicide of a fifth passenger, in violation of Articles 111 and 134, respectively, Uniform Code of Military Justice, 10 U.S.C. §§ 911 and 934 (1982) [hereinafter UCMJ]. He was sentenced to confinement for twenty-four months, forfeiture of all pay and allowances, and reduction to the grade of Private E-l. Pursuant to a pretrial agreement, the convening authority approved only so much of the sentence as provides for confinement for twenty months, forfeiture of all pay and allowances for twenty months, and reduction to the grade of Private E-l. Appellant contends the military judge erred by failing to find the aforementioned offenses multiplicious for findings.1 Because the military judge found the offenses multiplicious for sentencing,2 and so instructed the court members, appellant asks only that this court consolidate the findings of guilty into one charge and specification. The government agrees with appellant’s assignment of error. We disagree with appellant’s contention and will not accept the government’s concession. Each specification alleged that appellant drove the vehicle “at nighttime and at an excessive rate of speed for road and weather conditions, and while under the influence [721] of alcohol, thereby losing control of said car____”3 The drunken and reckless driving specification lists as victims only the four passengers who were injured, and the negligent homicide specification lists as a victim only the passenger who was killed. In support of his argument that the specifications are multiplicious for findings, appellant relies upon cases which have named the same victim or victims in each specification arising from a vehicular incident.4 We find those cases inapplicable. Moreover, “in the case of offenses against the person, each homicide and assault against a different victim is a separately punishable crime.” United States v. Peterson, 38 C.M.R. 346, 347 (C.M.A.1968) (involuntary manslaughter and aggravated assault specifications) (emphasis' added). See United States v. Parker, 38 C.M.R. 343 (C.M.R.1968) (robberies of different victims at same time and place were separately punishable offenses); United States v. Mobley, 12 M.J. 1029 (A.C.M.R.), affirmed, 14 M.J. 134 (C.M.A.1982) (summary disposition) (assaults on different victims were not multiplicious); United States v. Richardson, 2 M.J. 436 (A.C.M.R.1975) (follows Parker). The “different victims” standard for determining that specifications are not multiplicious has been applied to deaths and injuries arising from operation of a vehicle. United States v. Long, 23 M.J. 856 (A.F.C.M.R.), petition denied, 25 M.J. 213 (C.M.A.1987) (negligent homicide and drunken driving resulting in personal injuries); United States v. Sheffield, 20 M.J. 957 (A.F.C.M.R.1985) (two specifications of involuntary manslaughter, each naming one but not the other of the two persons riding a single motorcycle and killed when appellant’s car struck the motorcycle); United States v. Parks, 42 C.M.R. 545 (A.C.M.R.) petition denied, 42 C.M.R. 356 (C.M.A.1970) (three specifications of involuntary manslaughter and fourteen specifications of aggravated assault arising from incident in which drunk servicemember drove his vehicle through a platoon of marching soldiers); United States v. Shepard, 40 C.M.R. 579 (A.B.R.1969) (involuntary manslaughter and drunken and reckless driving). Accordingly, we hold that the negligent homicide specification is not multiplicious for findings with the specification alleging drunken and reckless driving resulting in personal injuries as each specification names a different victim or victims. We note that appellant received a windfall when the military judge instructed that the specifications were multiplicious for punishment purposes. The issue personally asserted by appellant is without merit. The findings of guilty and the sentence are affirmed. Senior Judge COKER and Judge ROBBLEE concur. Footnotes [1] The issue of findings multiplicity was not raised at trial. [2] The issue of sentencing multiplicity was raised at trial by a defense motion. [3] The car struck a tree, resulting in injuries to appellant and four other soldiers who were passengers in the back seat of the car, and in the death of a German female passenger in the front seat. [4] United States v. Hobart, 24 M.J. 428 (C.M.A.1987) (summary disposition) (drunken driving and reckless driving specifications); United States v. McKinney, 24 M.J. 421 (C.M.A.1987) (summary disposition) (drunken driving and involuntary manslaughter specifications); United States v. Zayas, 24 M.J. 132 (C.M.A.1987) (drunken driving and involuntary manslaughter specifications); United States v. Mallery, 14 M.J. 212 (C.M.A.1982) (summary disposition) (drunken driving and involuntary manslaughter specifications) (because the Court of Military Appeals’ summary disposition in Mallery did not specify which Articles of the UCMJ were violated, we have taken judicial notice of records on file with the Clerk of our Court to ascertain that Articles 111 and 119 were at issue).