United States v. Private First Class KAMARQUES K. DYESS ( 2015 )


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  • UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                                  Before
                                        COOK, HAIGHT, and WEIS
                                         Appellate Military Judges
    
                                  UNITED STATES, Appellee
                                               v.
                          Private First Class KAMARQUES K. DYESS
                                 United States Army, Appellant
    
                                            ARMY 20120486
    
                             Headquarters, 82d Airborne Division
                         Tara A. Osborn, Military Judge (arraignment)
                              James L. Pohl, Military Judge (trial)
                  Lieutenant Colonel Paul J. Cucuzzella, Staff Judge Advocate
    
    
    For Appellant: Captain Aaron R. Inkenbrandt, JA; William E. Cassara, Esquire (on
    brief).
    
    For Appellee: Colonel John P. Carrell, JA; Major Daniel D. Derner, JA; Captain
    Daniel H. Karna, JA (on brief).
    
    
                                               16 June 2015
                                        ---------------------------------
                                        MEMORANDUM OPINION
                                        ---------------------------------
    
        This opinion is issued as an unpublished opinion and, as such, doe s not serve as precedent.
    
    
    HAIGHT, Judge:
    
          A military judge sitting as a general court -martial convicted appellant,
    contrary to his pleas, of attempted larceny, attempted robbery, conspiracy to commit
    larceny, conspiracy to commit robbery, conspiracy to commit burglary, false official
    statement, and burglary, in violation of Articles 80, 81, 107, and 129, Uniform Code
    of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 880, 881, 907, 929 (2006). 1
    The military judge sentenced appellant to a bad-conduct discharge, four years of
    
    1
      The military judge acquitted appellant of violating a lawful general regulation by
    wrongfully ingesting “Spice,” conspiracy to commit aggravated assault with a loaded
    firearm, aggravated assault by intentional infliction of grievous bodily harm, and
    aggravated assault with a loaded firearm.
    DYESS—ARMY 20120486
    
    confinement, forfeiture of all pay and allowances, and reduction to the grade of E -1.
    The convening authority approved only so much of the adjudged sentence as
    provides for a bad-conduct discharge, confinement for three years and n ine months,
    forfeiture of all pay and allowances, and reduction to the grade of E -1. The
    convening authority also credited appellant with fourteen days of confinement.
    
           Appellant’s case is now pending review before this court pursuant to Article
    66, UCMJ. Appellant raises five assignments of error, four of which merit
    discussion and three of which merit relief. A recitation of the background facts is
    unavoidable. Although an extensive narration of the chain of events is unnecessary
    to resolve the three assignments of error for which relief is being granted, a more
    thorough recitation of the underlying facts is beneficial in light of appellant’s
    assertion that his convictions for all offenses are factually and legally insufficient.
    
                                       BACKGROUND
    
           The evidence and testimony presented at trial reveal the following occurred
    on the night in question.
    
                                       a. House Robbery
    
           Appellant’s case stems from the collective actions of a group of soldiers
    assigned to the 82d Airborne Division at Fort Bragg, North Carolina. On an evening
    in late January of 2011, Private First Class (PFC) Bryan Alston hatched a plot with
    two other soldiers, PFC Shelton Hunt and Private (PVT) Cordric Coleman, to
    burglarize a house in the nearby town of Spring Lake. Specifically, while PFC Hunt
    and PVT Coleman were “playing video games and watching movies” in PFC Hunt’s
    barracks room, PFC Alston stopped by and proposed that they rob “a house with a
    lot of drugs and money.” Private First Class Alston then departed to further
    coordinate with another soldier, PFC Cerion Allen, who was responsible for
    identifying the “target” house.
    
           In the meantime, PFC Hunt and PVT Coleman decided it would be prudent to
    secure a firearm for their night of crime “for protection and if [the victims] did not
    want to give [the drugs and money] up, [to] make them give it up.” Another soldier,
    Private Christopher Jackson, agreed to lend them his Springfield .45 XD
    semiautomatic pistol for the evening. However, PVT Jackson did not have the
    weapon with him; it had been left in a vehicle belonging to Specialist (SPC) Jones,
    PFC Hunt’s roommate. While waiting to hear fu rther word from PFC Alston, PFC
    Hunt and PVT Coleman smoked Spice and took Percocet pills, and at some point,
    PVT Coleman called appellant in an effort to contact PFC Alston because “Private
    Alston did not have a phone and he [would] usually be with [appellant].” Private
    Coleman and PFC Hunt then changed into dark clothing and waited for PFC Alston,
    who returned a short time later.
    
    
    
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    DYESS—ARMY 20120486
    
            Private First Class Alston led PVT Coleman and PFC Hunt to appellant’s
    barracks room where they were joined by appellant and PFC Allen. Private Coleman
    testified that once in appellant’s room, appellant provided the group of soldiers with
    gloves and other articles of clothing to “cover our face[s]” because “we did not want
    anyone to recognize us.” Next, the soldiers returned to the topic of PVT Jackson’s
    pistol, which was coincidentally located at a trailer park in Spring Lake near the
    house they intended to rob. All five sol diers piled into appellant’s Chevrolet Impala
    and appellant drove them to Spring Lake to ret rieve the weapon. Upon their arrival
    at the trailer park, PFC Hunt got out of appellant’s car and, along with SPC Jones’
    girlfriend and another female, searched through SPC Jones’ vehicle and located PVT
    Jackson’s pistol. 2 Private First Class Hunt returned to appellant’s car with the
    loaded pistol, and the soldiers passed the weapon around among themselves as
    appellant drove to their next destination. Then, following directions from PFC
    Allen, appellant drove the group to the target home.
    
           In planning the robbery, each of the five soldiers had been assigned a role.
    Specifically, appellant was going to be the “driver” and would stay in his vehicle as
    a “lookout” while the other soldiers kicked in the door and executed the robbery.
    Accordingly, appellant drove toward the “residential area” where the target home
    was located and parked in an adjacent “dark area by some woods by a tree.”
    However, shortly after some of the conspirators approached the house, the soldiers
    adjusted their plan because the initially intended entry point was too well lit. So,
    they returned to appellant’s car and had him drive to a different location—a nearby
    abandoned house—so they could re-approach from the back of the house.
    
           Appellant parked and the other four soldiers exited his vehicle and climbed
    over a fence into the backyard of their target. In his role as the lookout, appellant
    used a cell phone to communicate with PVT Coleman and PFC Hunt to warn them to
    “[h]old on” because there was a pedestrian in the area. Private Coleman testified
    that after approximately five minutes, appellant informed the group that “the coast
    was clear.” Private Coleman, PFC Hunt, PFC Allen, and PFC Alst on then broke into
    the home, with PFC Hunt kicking in the back door and PVT Coleman entering first
    with the pistol. After the four soldiers “cleared the house” and concluded that no
    one was home, they began scouring the house for drugs and money. However ,
    twenty minutes of searching “under beds, under mattresses, [and in] cabinets [and]
    dressers” yielded nothing of consequence, and PVT Coleman called appellant and
    asked him to pick them up in front of the house.
    
                                      b. Drive-By Shooting
    
          Once the soldiers returned to appellant’s car, PVT Coleman looked at his cell
    phone and discovered that PVT Jackson had been attempting to contact him to no
    
    
    2
        The record does not reveal where SPC Jones was at this point.
    
    
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    DYESS—ARMY 20120486
    
    avail because the calls had been placed while “we were in the house searching for
    drugs and money.” With the unfruitful burglary behind them, PVT Coleman called
    PVT Jackson back but there was no answer. Instead, PVT Jackson sent PVT
    Coleman a text message asking if he still had the pistol. Private Coleman responded
    that he did indeed have PVT Jackson’s weapon, and PVT Jackson replied that he
    needed it back because “some guy bumped into him and disrespected him.” Private
    Coleman explained that he understood PVT Jackson wanted his pistol back to
    “assault the guy who bumped into him. . . . Shoot him or whatever.” Private Jackson
    then called PVT Coleman and told him he was at a club called Speakeasy. After that
    call, PVT Coleman shared PVT Jackson’s text messages with PFC Hunt, and PFC
    Hunt told appellant to drive to Speakeasy.
    
           Private Coleman testified that he “wiped dow n the gun” on the drive to
    Speakeasy because if PVT Jackson was “going to use it, I did not want my prints on
    it.” Private Coleman then passed the weapon to PFC Hunt, and upon their arrival at
    Speakeasy, PVT Jackson met them at appellant’s vehicle and ret rieved his pistol
    from PFC Hunt. Next, PVT Jackson gave a more detailed account of the altercation
    in which he had been involved at the club and according to PVT Coleman, PVT
    Jackson explained that “he was going to handle the situation.”
    
           Ultimately, two vehicles—one with PVT Jackson and some cohorts and the
    Impala, still being driven by appellant and ful l of the original conspirators—
    followed a Mercury Mountaineer, a vehicle containing the soldiers whom PVT
    Jackson was stalking. Both of the following vehicles caught up with the
    Mountaineer at a red light shortly after re -entering Fort Bragg. Then, PVT Jackson,
    from the vehicle in which he was riding, rapidly fired multiple gunshots into the
    driver’s side of the Mountaineer. After the shooting and during the subsequent
    flight from that scene, PFC Alston called his friends in the other vehicle and all
    agreed to meet at another nearby club. When appellant arrived there, all eight
    soldiers exited their respective vehicles and began discussing what had tra nspired.
    Private Coleman testified that PVT Jackson declared, “that is how gangstas do it.”
    
           Approximately four days later, appellant was interviewed by a Criminal
    Investigation Command agent concerning the drive -by shooting. In a sworn
    statement, appellant admitted that on the night in question, he did in fact go to
    Speakeasy. But, he lied about what he did at that club’s parking lot and with whom
    he spoke at that time.
    
          For his involvement in the aforementioned events, appellant was charged with
    and convicted of: (1) attempted larceny of drugs and money; (2) attempted robbery
    of drugs and money: (3) conspiracy to commit larceny; (4) conspiracy to commit
    robbery; (5) conspiracy to commit burglary; (6) false official statement; and (7)
    burglary.
    
    
    
    
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    DYESS—ARMY 20120486
    
                                  LAW AND DISCUSSION
    
                          1. Conspiracy to Commit Multiple Crimes
    
           Appellant alleges, “[t]he military judge erred in not combining the three
    conspiracy charges in Specifications 1, 2, and 3 of Charge II for findings. ” In its
    response, the government concedes that “appellant formed only one conspiracy . . .
    and does not oppose appellant’s proposed remedy of consolidating the [conspiracy]
    specifications.” See Braverman v. United States, 
    317 U.S. 49
    , 53 (1942) (“[O]ne
    agreement cannot be taken to be several agree ments and hence several conspiracies
    because it envisages the violation of several statute s rather than one.”); United
    States v. Pereira, 
    53 M.J. 183
    , 184 (C.A.A.F. 2000) (holding a single agreement to
    commit multiple offenses ordinarily constitutes a sing le conspiracy). We agree with
    and accept the government’s concession and will consolidate. Moreover, when
    merging the conspiracies, we will do so in light of the fact that one of the objects of
    the agreement, that of larceny, is a lesser-included offense of another object of that
    same agreement, that of robbery. See Manual for Courts-Martial, United States
    (2008 ed.), pt. IV, ¶ 3.b.(1)(a) (explaining that larceny is a lesser included offense of
    robbery); see also United States v. Cunningham, 6 U.S.C.M.A. 106, 107, 
    19 C.M.R. 232
    , 233 (1955).
    
                        2. Attempted Larceny and Attempted Robbery
    
           Recognizing, as just stated, that larceny is a lesser-included offense of
    robbery, appellant alleges that the attempted larceny specification is multiplicious
    with the attempted robbery specification and should be dismissed. United States v.
    Palagar, 
    56 M.J. 294
    , 296 (C.A.A.F. 2002). Again, the government concedes the
    error, and we again agree with and accept the government’ concession and will set
    aside the finding of guilty to attempted larceny and dismiss that specification.
    
                          3. Unreasonable Multiplication of Charges
    
           Based on the errors noted above and the relief contemplated, appellant would
    remain convicted of attempted robbery, a single conspiracy to commit burglary and
    robbery, false official statement, and burglary. Appellant alleges the attempt
    specification is an unreasonable multiplication of charges. We agree.
    
           Specifically, we find the misconduct that constituted appellant’s “substantial
    step” towards robbery is the same misconduct addressed by the allegation that
    appellant did, “in the nighttime, unlawfully break and enter the dwelling house of
    another, with intent to commit robbery with a firearm therein.” United States v.
    Byrd, 
    24 M.J. 286
    , 290 (C.M.A. 1987); see also United States v. Schell, 
    72 M.J. 339
    (C.A.A.F. 2013); United States v. Redlinski, 
    58 M.J. 117
     (C.A.A.F. 2003).
    
    
    
    
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    DYESS—ARMY 20120486
    
           Therefore, although not multiplicious, the attempted robbery specification and
    the burglary specification are aimed at the same acts, namely, the formulation of the
    criminal plan and intent to rob, the preparation for and subsequent execution of that
    plan, and the ultimate commission of the crime of burglary upon breaking and
    entering the target house with full intent that their prev iously taken steps would
    come to criminal fruition. The only reason the robbery was not perfected was
    because there happened to be nobody home upon which to inflict the intended force
    or violence.
    
           Thus, as the government concedes, “it most likely cannot be said that the
    attempt charge and the burglary charge were ‘aimed at distinctly criminal acts.’”
    United States v. Quiroz, 
    55 M.J. 334
    , 338 (C.A.A.F. 2001). Accordingly, we will set
    aside the finding of guilty to attempted robbery and dismiss that specification. See
    United States v. Campbell, 
    71 M.J. 19
    , 23 (C.A.A.F. 2012) (noting one or more
    factors may be sufficiently compelling, without more, to warrant relief).
    
                                      CONCLUSION
    
           The findings of guilty to Specifications 1 and 2 of Charge I and Charge I are
    set aside and that charge and its specifications are DISMISSED. Specification 1 of
    Charge II is set aside and that specification is DISMISSED. Specifications 2 and 3
    of Charge II are consolidated to allege the following conspiracy specification:
    
                 Charge II: Violation of the UCMJ, Article 81.
    
                 In that Private First Class Kamarques K. Dyess, U.S.
                 Army, did, at or near Fort Bragg, North Carolina , on or
                 about 30 January 2011, conspire with Private (E1) Cordric
                 L. Coleman, Private First Class Shelton A. H unt, Private
                 (E1) Bryan C. N. Alston, and Private First Class Cerion R.
                 Allen to commit offenses under the Uniform Code of
                 Military Justice, to wit: robbery with a firearm and
                 burglary, and in order to effect the objects of the
                 conspiracy the said Private First Class Kamarques K.
                 Dyess did travel to the dwelling house of another.
    
    The findings of guilty to Charge II and Specification 2 (consolidated) and the
    remaining findings of guilty are AFFIRMED.
    
          We are able to reassess the sentence on the basis of the errors noted
    and do so after conducting a thorough analysis of the totality of circumstances
    presented by appellant’s case and in accordance with the principles articulated by
    our superior court in United States v. Winckelmann, 
    73 M.J. 11
    , 15-16 (C.A.A.F.
    2013) and United States v. Sales, 
    22 M.J. 305
     (C.M.A. 1986).
    
    
    
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    DYESS—ARMY 20120486
    
          In evaluating the Winckelmann factors, we find no dramatic change in the
    penalty landscape or exposure which might cause us pause in reassessing appellant’s
    sentence. The military judge merged the attempt offenses for sentencing purposes.
    Similarly, the military judge also merged the conspiracy offenses for sentencing.
    Second, the gravamen of appellant’s misconduct remains the same. Third, appellant
    was sentenced by a military judge alone, and finally, based on our experience, we
    are familiar with the remaining offenses so that we may reliably determine what
    sentence would have been imposed at trial.
    
           After reassessing the sentence and the entire record, the sentence is
    AFFIRMED. We find this reassessed sentence is not only purged of any error
    but is also appropriate. All rights, privileges, and property, of which
    appellant has been deprived by virtue of that portion of the findings set aside
    by our decision, are ordered restored.
    
          Senior Judge COOK and Judge WEIS concur.
    
                                           FOR THE
                                           FOR THE COURT:
                                                   COURT:
    
    
    
    
                                           MALCOLM
                                           MALCOLM H.  H. SQUIRES,
                                                          SQUIRES, JR.
                                                                    JR.
                                           Clerk of Court
                                           Clerk of Court
    
    
    
    
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Document Info

DocketNumber: ARMY 20120486

Filed Date: 7/16/2015

Precedential Status: Non-Precedential

Modified Date: 7/17/2015