United States v. Private First Class KYLE M. GOVINDASAMY ( 2015 )

                                TOZZI, CAMPANELLA, and CELTNIEKS
                                       Appellate Military Judges
                                 UNITED STATES, Appellee
                        Private First Class KYLE M. GOVINDASAMY
                                United States Army, Appellant
                                           ARMY 20121038
                          Headquarters, III Corps and Fort Hood
                            Gregory B. Batdorff, Military Judge
                  Colonel Stuart W. Risch, Staff Judge Advocate (pretrial)
              Colonel Ian C. Corey, Staff Judge Advocate (recommendation)
          Lieutenant Colonel Travis L. Rogers, Acting Staff Judge Advocate (addendum)
    For Appellant: Colonel Kevin Boyle, JA; Major Amy E. Nieman, JA; Captain
    Payum Doroodian, JA (on brief).
    For Appellee: Colonel Mark H. Sydenham, JA; Major John K. Choike, JA; Captain
    John Gardella, JA (on brief).
                                         16 December 2015
                                      MEMORANDUM OPINION
      This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.
    CAMPANELLA, Judge:
           A military judge sitting as a general court-martial convicted appellant,
    pursuant to his pleas, of one specification of disobeying a superior commissioned
    officer, two specifications of violating a general order, one specification of wrongful
    use of marijuana, one specification of wrongful possession of marijuana, and one
    specification of assault consummated by battery, in violation of Articles 90, 92,
    112a, and 128, Uniform Code of Military Justice, 10 U.S.C. §§ 890, 892, 912a, and
    928 (2006 & Supp. IV 2010) [hereinafter UCMJ].
           Subsequent to appellant’s guilty pleas, an officer panel sitting as a general
    court-martial convicted appellant, contrary to his pleas, of one specification of
    disrespect toward a superior commissioned officer, two specifications of wrongful
    GOVINDASAMY —ARMY 20121038
    sexual contact, one specification of assault consummated by a battery, one
    specification of possession of Spice 1 with intent to distribute in violation of Articles
    89, 120, 128, and 134, UCMJ. 2 The panel sentenced appellant to two years
    confinement and a dishonorable discharge. The military judge granted appellant 50
    days pretrial confinement credit. The convening authority approved the sentence as
    adjudged and credited appellant with 50 days confinement credit. This case is
    before us for review pursuant to Article 66, UCMJ. Appellant raises three
    assignments of error, one of which requires discussion and relief. We also find that
    one matter raised by appellant pursuant to United States v. Grostefon, 
    12 M.J. 431
    (C.M.A. 1982) warrants discussion and relief.
                                 Disrespect of a Superior Officer
           While stationed at Fort Hood, appellant was counseled for misconduct by his
    commander. The counseling took place inside the commander’s office. Appellant
    received a copy of the written counseling statement from his commander before
    being dismissed. After leaving the commander’s office, appellant headed down the
    hallway towards the door to exit the orderly room. Outside the presence of his
    commander, appellant ripped up the copy of the counseling statement he had just
    received from his commander. Appellant’s actions were not accompanied by words
    or other gestures. Appellant’s platoon sergeant was standing nearby and witnessed
    appellant tearing up the counseling statement.
           Appellant was found guilty of a violation of Article 89, UCMJ. The
    specification alleged:
                 In that [appellant], U.S. Army, did at Fort Hood, Texas,
                 between on or about 23 September 2012 and 27 September
                 2012, behave with disrespect toward CPT [MS], his
                 superior commissioned officer, then known to him [by
                 appellant] to be his superior commissioned officer, by
                 ripping up a counseling statement in the presence of SFC
                 WL, shortly after it was given to him by CPT [S]
     Spice is a designer drug sprayed onto a herbal material that mimics the effects of
    cannabis. Synthetic cannabis is often termed “Spice.”
     The panel acquitted appellant of one specification of attempted rape, two
    specifications of aggravated sexual contact, one specification of indecent exposure,
    and one specification of assault with intent to commit rape in violation of Articles
    80, 120, and 134, UCMJ.
    GOVINDASAMY —ARMY 20121038
                 reiterating the restrictions on him after being off-post in
                 violation of those restrictions.
                                Dilatory Post-trial Processing
          Appellant’s sentence was adjudged on 16 November 2012. The convening
    authority did not take action until nearly 682 days later, on 29 September 2014.
    Twenty-one days are attributable to the defense. The total processing time from
    conviction to action, minus defense delay, was 661 days.
                                 LAW AND DISCUSSION
                              Disrespect of a Superior Officer
           Article 66(c), UCMJ, establishes our statutory duty to review a record of trial
    for legal and factual sufficiency. United States v. Walters, 
    58 M.J. 391
    , 395
    (C.A.A.F. 2003). Under Article 66(c), we may affirm only those findings of guilty
    that we find correct in law and fact and determine, based on the entire record, should
    be affirmed. The test for legal sufficiency of the evidence is whether, viewing the
    evidence in a light most favorable to the government, a fact-finder could rationally
    have found all the essential elements of an offense beyond a reasonable doubt.
    Jackson v. Virginia, 
    443 U.S. 307
    , 319, 
    99 S. Ct. 2781
    61 L. Ed. 2d 560
    United States v. Blocker, 
    32 M.J. 281
    , 284 (C.M.A.1991). The test for factual
    sufficiency is whether, after weighing the evidence in the record of trial and making
    allowances for not having personally observed the witnesses, this Court is convinced
    of the appellant's guilt beyond a reasonable doubt. United States v. Washington, 
    57 M.J. 394
    , 399 (C.A.A.F. 2002); United States v. Turner, 
    25 M.J. 324
    , 325 (C.M.A.
          The elements of disrespect toward a superior commissioned officer, Article
    89, UCMJ, are as follows:
                 (1) That the accused did or omitted certain acts or used
                 certain language to or concerning a certain
                 commissioned officer;
                 (2) That such behavior or language was directed toward
                 that officer;
                 (3) That the officer toward whom the acts, omissions, or
                 words were directed was the superior commissioned
                 officer of the accused;
    GOVINDASAMY —ARMY 20121038
                 (4) That the accused then knew that the commissioned
                 officer toward whom the acts, omissions, or words were
                 directed was the accused's superior commissioned
                 officer; and
                 (5) That, under the circumstances, the behavior or
                 language was disrespectful to that commissioned officer.
    Manual for Courts-Martial, United States (2012 ed.), pt. IV, ¶13.b.
           The Court of Appeals for the Armed Forces (CAAF) has generally held all
    circumstances of a case can be considered in determining whether disrespectful
    behavior in violation of Article 89, UCMJ, has occurred. See United States v. Goins,
    15 U.S.C.M.A. 175, 177, 
    35 C.M.R. 147
    , 149 (1964). In United States v. Whitaker,
    5 C.M.R. 539
     (A.F.B.R. 1952), for example, the court held that language is not
    actionable, even where it is clearly offensive, if it is addressed to the world at large,
    rather than to the person alleged. In Whitaker, the accused was charged with saying
    "to hell with it,” signaling his refusal to complete the paperwork necessary to begin
    a move to a new duty station. The Board stated they were not convinced the words
    showed "the accused was disrespectful toward [the named individual]." Id. at 556.
    Our court recently held similarly in a case where an accused reacted to a command
    from his platoon leader by throwing his Kevlar helmet into the Tigris river. United
    States v. Collier, No. 20120554, 2014 CCA LEXIS 207, *7 (Army Ct. Crim. App.
    Mar. 31, 2014)(mem. op.). The court held that the evidence did not establish the act
    was “directed at” the platoon leader. Id.
           In this case, the government asserts appellant's act of tearing up his
    counseling statement in the presence of SFC WL shortly after it was given to him
    constitutes disrespect. The evidence offered at trial to support the charge of
    disrespect was the testimony of SFC WL, the soldier who witnessed appellant’s
    behavior. SFC WL indicated that while he could not attest affirmatively as to
    whether the commander did or did not see appellant tear up the paper, the building
    layout was such that the commander would not have seen appellant if the commander
    was inside his office. SFC WL was not asked, nor did he offer why he believed
    appellant’s ripping of the counseling statement was directed at the commander.
    SFC WL did not testify appellant’s act of tearing the paper was accompanied by
    words or other gestures which might have indicated appellant’s actions were directed
    towards his commander. The company commander offered no testimony regarding
    appellant ripping the counseling statement.
         We find the act of ripping the counseling statement in and of itself, not
    accompanied by other extant circumstances indicating the action was directed at his
    commander, does not constitute disrespect. Appellant was under no obligation to
    GOVINDASAMY —ARMY 20121038
    retain the counseling statement. Appellant may have shredded the counseling
    statement for any number of reasons. We find no evidence in the record indicating
    the commander was the victim or target of appellant's action. We, therefore, find the
    evidence factually insufficient to establish beyond a reasonable doubt that appellant
    was disrespectful toward a superior commissioned officer in violation of Article 89,
                               Dilatory Post-trial Processing
           Appellant requests relief for dilatory post-trial processing, where the
    convening authority took action 682 days after the court-martial concluded. Of that
    period, 21 days are attributable to defense delay. Appellant requests relief pursuant
    to this court’s statutory authority. See UCMJ art. 66(c); United States v. Collazo, 
    53 M.J. 721
     (Army Ct. Crim. App. 2000) (recognizing the statutory authority of Courts
    of Criminal Appeals to grant relief for dilatory post-trial processing).
           Given appellant’s successful challenge regarding the charge of disrespect to a
    superior commissioned officer, we must determine if the post-trial delay violated
    appellant’s due process rights to timely post-trial processing. See United States v.
    60 M.J. 100
    , 102 (C.A.A.F. 2004) (“An appeal that needlessly takes ten
    years to adjudicate is undoubtedly of little use to a defendant who has been wrongly
    incarcerated on a ten-year sentence.”) (quoting United States v. Smith, 
    94 F.3d 204
    207 (6th Cir. 1996)). While appellant does not ground his post-trial processing
    claim as a due process violation, we are nonetheless compelled to determine whether
    appellant has suffered a due process violation.
            Our superior court established a “presumption of unreasonable delay that will
    serve to trigger the full [Barker v. Wingo, 
    407 U.S. 514
     (1972)] analysis where the
    action of the convening authority is not taken within 120 days of the completion of
    trial.” United States v. Moreno, 
    63 M.J. 129
    , 142 (C.A.A.F. 2006). Our superior
    court counseled this court to exercise “institutional vigilance” in this area of law.
    63 M.J. at 143. It is also our statutory authority under Article 66(c) to review the
    “entire record.” See United States v. Tardif, 
    57 M.J. 219
    , 223 (C.A.A.F. 2002)
    (“Our Court has consistently recognized the broad power of the Courts of Criminal
    Appeals to protect an accused.”) (citation omitted).
            In determining whether post-trial delay results in a due process violation, we
    apply the four-factor test announced in Barker, 407 U.S. at 530. See also Moreno,
    63 M.J. at 135. These factors include (1) length of the delay, (2) reasons for the
    delay, (3) assertion of the right to a timely review and appeal, and (4) prejudice.
    Moreno, 63 M.J. at 135. “Once this due process analysis is triggered by a facially
    unreasonable delay, the four factors are balanced, with no single factor being
    required to find that post-trial delay constitutes a due process violation.” Moreno,
    Id. at 136. These factors ultimately weigh in favor of appellant.
    GOVINDASAMY —ARMY 20121038
           First, the 661 day delay is facially unreasonable under any standard. See Id.
    at 142 (establishing a presumption of unreasonable delay when the convening
    authority takes action more than 120 days after the trial ends); Diaz v. Judge
    Advocate General of the Navy, 
    59 M.J. 34
    , 39 (C.A.A.F. 2003) (“The nature of this
    [court’s] review calls for, if anything, even greater diligence and timeliness than is
    found in the civilian system.”). This 1168-page record, while lengthy, was not
    particularly complicated or remarkable. This factor weighs in favor of appellant.
           Second, the government’s explanations for the delay involve court reporter
    shortages, a high workload, and a deployment of the III Corps headquarters. Our
    superior court has held “that personnel and administrative issues . . . are not
    legitimate reasons justifying otherwise unreasonable post-trial delay.” United States
    v. Arriaga, 
    70 M.J. 51
    , 57 (C.A.A.F. 2011) (“To allow caseloads to become a factor
    in determining whether appellate delay is excessive would allow administrative
    factors to trump the Article 66 and due process rights of appellants.”) (citing
    Moreno, 63 M.J. at 137) (additional citations and quotations omitted). The reasons
    for delay weigh in favor of appellant.
           Third, appellant asserted his right to speedy post-trial processing 158 days
    after completion of the trial, before transcription was complete and before the
    military judge authenticated the record of trial. This factor weighs in favor of
    appellant. See Barker, 407 U.S. at 531 (“The more serious the deprivation, the more
    likely a defendant is to complain.”).
          Fourth, we apply three factors when analyzing prejudice in the context of a
    due process violation for post-trial delay:
                 (1) prevention of oppressive incarceration pending appeal;
                 (2) minimization of anxiety and concern of those
                     convicted awaiting the outcome of their appeals; and
                 (3) limitation of the possibility that a convicted person’s
                     grounds for appeal, and his or her defenses in case of
                     reversal and retrial, might be impaired.
    Moreno, 63 M.J. 138-39 (citing Rheuark v. Shaw, 
    629 F.2d 297
    , 303 n.8 (5th Cir.
    1980)) (additional citations omitted).
           The first sub-factor is “directly related to the success or failure” of
    appellant’s substantive appeal. Id. at 139. “If the substantive grounds for the appeal
    are not meritorious, an appellant is in no worse position due to the delay, even
    though it may have been excessive.” Id. (citing Cody v. Henderson, 
    936 F.2d 715
    GOVINDASAMY —ARMY 20121038
    720 (2d Cir. 1991)). Appellant’s remedy for the disrespect charge is for this court to
    set aside appellant’s conviction for that charge and specification and to reassess
    appellant’s sentence. “[I]f an appeal is not frivolous, a person convicted of a crime
    may be receiving punishment the effects of which can never be completely reversed
    or living under the opprobrium of guilt when he or she has not been properly proven
    guilty and may indeed be innocent under the law.” Id. (quoting Rheuark, 628 F.2d at
    304). This sub-factor weighs in favor of appellant.
          The second sub-factor requires an appellant show “particularized anxiety or
    concern that is distinguishable from the normal anxiety experienced by prisoners
    awaiting an appellate decision.” Id. at 140-41. Appellant has not established
    anxiety, and as such, this factor weighs in favor of the government.
           In order to prevail on the third factor, an appellant must be able to
    specifically identify how he would be prejudiced at rehearing due to delay, if one
    were authorized. Mere speculation is not enough. Id. (citation omitted). Because a
    rehearing is not authorized, this factor is not relevant and weighs in favor of the
           In balancing the Barker factors, we have an appellant who had a meritorious
    appeal – but one which does not warrant a rehearing. It does, however, authorize a
    reassessment of appellant’s punishment. As such, we conclude that the post-trial
    delay was not harmless beyond a reasonable doubt. See United States v. Allison, 
    63 M.J. 365
    , 370 (C.A.A.F. 2006) (“If we conclude that an appellant has been denied
    the due process right to speedy post-trial review and appeal, ‘we grant relief unless
    this court is convinced beyond a reasonable doubt that the constitutional error is
    harmless.’”) (quoting Toohey, 63 M.J. at 363).
            We find that the reasons offered by the government are unreasonable under
     the totality of circumstances and relief is appropriate under the facts of this case.
          The finding of guilty to the Specification of Additional Charge II is set aside
    and that specification is DISMISSED.
          The remaining findings of guilty are AFFIRMED. We are able to reassess the
    sentence on the basis of the error 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.
    73 M.J. 11
    , 15-16 (C.A.A.F. 2013) and United States v. Sales, 
    22 M.J. 305
     (C.M.A. 1986). In evaluating the Winckelmann factors, we first find no
    dramatic change in the penalty landscape that might cause us pause in reassessing
    appellant’s sentence. Second, although appellant was sentenced by members, here,
    GOVINDASAMY —ARMY 20121038
    this factor carries less weight because the majority of the remaining offenses “do not
    address service custom, service-discrediting conduct or conduct unbecoming.”
    Winckelmann, 73 M.J. at 16. Third, the nature of the remaining offenses still
    captures the gravamen of the original offenses and the circumstances surrounding
    appellant’s conduct. 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. We are confident that based on the entire record and
    appellant’s course of conduct, a panel would have imposed a sentence of at least a
    dishonorable discharge and confinement for 23 months. Given the dilatory post-trial
    processing and the error noted herein, we affirm only so much of the sentence as
    extends dishonorable discharge and confinement for 21 months. All rights,
    privileges, and property, of which appellant has been deprived by virtue of this
    decision setting aside portions of the findings and sentence are ordered restored.
          Senior Judge TOZZI and Judge CELTNIEKS concur.
                                           FOR THE COURT:
                                           FOR THE COURT:
                                           JOHN P. TAITT
                                            JOHN Clerk
                                           Deputy P. TAITT
                                                       of Court
                                            Deputy Clerk of Court