United States v. Richards , 56 M.J. 282 ( 2002 )

UNITED STATES, Appellee
v.
Shawn H. RICHARDS, Private First Class
U.S. Army, Appellant
No. 01-0084
Crim. App. No. 9700809
United States Court of Appeals for the Armed Forces
Argued October 1, 2001
Decided February 6, 2002
CRAWFORD, C.J., delivered the opinion of the Court, in
which GIERKE, EFFRON, and BAKER, JJ., joined. SULLIVAN, S.J.,
filed an opinion concurring in the result.
Counsel
For Appellant: Captain Stephanie L. Haines (argued); Colonel
Adele H. Odegard, Lieutenant Colonel David A. Mayfield, Major
Mary M. McCord, and Captain Jimmonique R. S. Rodgers (on brief).
For Appellee: Captain Steven D. Bryant (argued); Colonel
David L. Hayden, Lieutenant Colonel Edith M. Rob, and Major
Daniel G. Brookhart (on brief); Colonel Steven T. Salata.
Amicus Curiae: Lisa M. Colone (law student) (argued); Richard
Armstrong and Anne M. Coughlin (supervising attorneys) and
Howard H. Hoege III and Amanda P. Biles (law students) (on
brief) – For the Criminal Justice Program and the Public Service
Center at the University of Virginia School of Law.
Military Judges: Gregory O. Varo (Trial) and
Robert F. Holland (DuBay Hearing)
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Richards, No. 01-0084/AR
Chief Judge CRAWFORD delivered the opinion of the Court.
Appellant was tried by general court-martial composed of
officer and enlisted members and, contrary to his pleas, was
found guilty of voluntary manslaughter, in violation of Article
119, UCMJ, 10 USC § 919. The convening authority approved the
adjudged sentence of a dishonorable discharge, confinement for
eight years, forfeiture of all pay and allowances, and reduction
to Private E1. The Army Court of Criminal Appeals affirmed in an
unpublished opinion. We granted review of the following issues:
I. WHETHER APPELLANT CAN BE HELD CRIMINALLY LIABLE FOR
THE STABBING DEATH OF PFC WATERS BY PFC WILSON WHERE
THE GOVERNMENT FAILS TO PROVE 1) THAT APPELLANT KNEW
OR HAD A REASON TO KNOW PFC WILSON HAD A KNIFE DURING
THE FISTFIGHT, 2) THAT APPELLANT’S ACT OF KICKING PFC
WATERS AFTER THE FIGHT BEGAN ASSISTED OR INCITED PFC
WILSON IN STABBING PFC WATERS OR 3) THAT APPELLANT
ENTERED AN AGREEMENT WITH PFC WILSON BEFORE OR DURING
THE FISTFIGHT TO STAB PFC WATERS.
II. WHETHER A STABBING BY A CO-ACCUSED CAN BE CONSIDERED
THE NATURAL AND PROBABLE CONSEQUENCE OF AN UNARMED
FISTFIGHT INVOLVING MULTIPLE ASSAILANTS WHERE THERE
IS NO EVIDENCE APPELLANT KNEW THE CO-ACCUSED WHO
COMMITTED THE STABBING HAD A KNIFE, HAD A PROPENSITY
TO USE A KNIFE DURING FISTFIGHTS, OR OTHERWISE
INTENDED TO STAB THE VICTIM.
III. WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL
PREJUDICE OF APPELLANT WHEN HE FAILED TO INSTRUCT THE
MEMBERS ON THE LESSER-INCLUDED OFFENSE OF INVOLUNTARY
MANSLAUGHTER WHEN THERE WAS SUFFICIENT EVIDENCE TO
RAISE THE OFFENSE.1
1
We heard oral argument in this case at the University of Virginia School of
Law, Charlottesville, Virginia, as part of this Court’s Project Outreach.
See United States v. Allen, 34 M.J. 228, 229 n.1 (CMA 1992). The University of
Virginia School of Law is where we held our first Project Outreach visit on
November 13, 1987, in the case of United States v. Sherrod, 26 M.J. 30 (CMA
1988).
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We hold as to Issues I and II that the evidence is legally
sufficient to support appellant’s conviction of voluntary
manslaughter under an aider and abettor theory, which was the
theory under which appellant was tried. As to Issue III, we
hold that the military judge did not err in refusing to instruct
on involuntary manslaughter, because that lesser-included
offense was not reasonably raised by the evidence.
FACTS
Animosity over a six-month period in 1996 between two
groups led to the death of Private First Class (PFC) Dustin
Waters. One group consisted of the victim and PFC Gregory
Maxwell. The other group consisted of appellant, a former
soldier named James Morris, PFC Clinton Samuels, and Private E2
Rohan Wilson. The animosity seems to have fermented out of
several isolated events that created a hostile environment
between the two groups. For instance, during the summer of
1996, on two separate occasions, appellant and Maxwell got into
an argument because appellant had danced with Maxwell’s
girlfriend at a club. On another occasion, on November 2, 1996,
appellant and his three friends were at Trooper’s nightclub when
Morris got into a shoving match with the victim.
The animosity between the two groups came to an unfortunate
head on the evening of November 21, 1996. Appellant and his
three friends were spectators at a basketball game at Fort
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United States v. Richards, No. 01-0084/AR
Riley, in which the victim and Maxwell were playing. After the
game, the victim departed the gymnasium before Maxwell and
engaged a woman named Ms. Bradley in a conversation. Maxwell
then heard one of appellant’s friends say, “That nig*** ‘D’ [the
victim] is talking to that ’B’." Maxwell was concerned for the
victim and went outside and stood beside him.
A few minutes later, the victim and Maxwell got into a car
and drove back to their barracks. Ms. Bradley and a girlfriend
followed them in a second car. Appellant and his friends
“hopped in” a third car and followed behind the women. After
the victim, Maxwell, and the women arrived at the barracks
parking lot, Maxwell saw appellant and his friends “creeping up”
or “driving slowly.” Maxwell then went into the barracks to his
room, and the victim stayed behind to talk to Ms. Bradley. A
few minutes later, the victim went into the barracks and asked
Maxwell to come outside and talk to the other woman. Maxwell
complied.
Meanwhile, Samuels, who lived in the same barracks as the
victim, went into the barracks to have a friend give him a
haircut. Morris testified that at about the same time, he,
Wilson, and appellant went into a nearby barracks to visit
another friend. The friend was not there, and they departed the
barracks. Morris went back to the car. Appellant and Wilson
then went to a bank of phone booths about ten to fifteen feet
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United States v. Richards, No. 01-0084/AR
from the front door of the victim’s barracks in order for Wilson
to return a page and to wait and see “if [the victim] and
Maxwell [were] going to say anything or try to do anything.”
While the victim and Maxwell were talking to the two women,
Morris walked over to the phone booths and asked appellant and
Wilson whether the victim or Maxwell had said or done anything.
They replied, “No.” Morris then went into the victim’s barracks
to use the latrine. Subsequently, the victim, Maxwell, and the
women decided to go into the barracks because it was cold
outside. As they walked toward the barracks, they encountered
Morris, who walked up to the victim and asked him whether he had
had fun the other night. The victim replied, “Yes.” Morris
then hit the victim with his fist. There remains disagreement
as to what else was said between the two.
Appellant and Wilson then balled up their fists and began
walking at a fast gait toward the victim from the phone booths.
As they approached, appellant and Wilson began hitting their
hands with their fists, repeatedly saying, “Yeah, what’s up?”
At the same time, Maxwell entered the barracks building and
encountered Samuels. They “squared off” momentarily, and
Maxwell ran upstairs, ostensibly to get help. Meanwhile, Morris
and the victim moved to a grassy area next to the barracks.
According to Morris, Wilson said, “You’ll need to stop.” In
response, the victim hit Wilson with his fist. Wilson then
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grappled with the victim while Morris continued to hit him.
Morris grabbed the victim from behind and moved him to an open
area of the sidewalk because he wanted to get away from any tree
or building so no one’s punches would miss and hit an object as
they tried to hit the victim.
At some point during the beating, Morris and Wilson knocked
the victim to the ground and began kicking him. Appellant then
joined them, and the three continued to kick the victim. Then
Samuels joined the beating, and the four men kicked the victim
repeatedly about the body and head. Every time the victim would
attempt to get up, he would be kicked back down to the ground.
Morris taunted the victim, telling him that he had “messed” with
the wrong person and that he should have thought about what he
did at the Trooper’s club. The four men kicked the victim for
about two to ten minutes with their shod feet, stopping only
when the charge of quarters came outside and threatened to call
the military police.
During the beating, Wilson pulled out a paring knife and
stabbed the victim several times. Morris testified that he did
not see a knife or know that Wilson was stabbing the victim, but
he noticed blood on the sidewalk. After the stabbing, appellant
and his friends continued to kick the victim, ending up with
blood on their shoes and pants.
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United States v. Richards, No. 01-0084/AR
After appellant and his friends had departed, the victim
went back into the barracks holding his chest. He fell to the
floor, and Maxwell noticed that the victim had “a big gash ...
in his chest and blood was squirting out of it.” The victim
suffered six stab wounds, the fatal one of which pierced his
heart. Dr. Lane testified that the victim would have been able
to survive only for five to ten minutes after receiving this
wound.
DISCUSSION
A. Issues I and II - Legal Sufficiency
Issues I and II ask whether the evidence is legally
sufficient to support appellant's conviction for this crime --
that is, "whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319
(1979); see United States v. Davis, 44 M.J. 13, 17-18 (1996).
Although charged with unpremeditated murder, appellant was
convicted of the lesser-included offense of voluntary
manslaughter. That crime is defined as the unlawful killing of
a human being “in the heat of sudden passion caused by adequate
provocation” by someone who does so with “intent to kill or
inflict great bodily harm.” Art. 119(a), supra.
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United States v. Richards, No. 01-0084/AR
As the military judge noted in his discussion of proposed
instructions with counsel, "the sole cause of the serious injury
and death in this case, based on the testimony of the
government’s expert, appears to be the knife." There was no
evidentiary dispute that the perpetrator of the knife wounds was
Wilson, and no disagreement that Wilson had the intent to kill
or inflict great bodily harm when he stabbed the victim. The
theory of the prosecution, with which the defense took issue and
on which the military judge instructed the members, was that
appellant's actions had aided and abetted Wilson's killing the
victim in the heat of sudden passion caused by adequate
provocation. See Art. 77(a)(1), UCMJ, 10 USC § 877(a)(1)
(defining a “principal” as an individual who “commits an offense
... or aids, abets, counsels, commands, or procures its
commission”).
As described by the military judge in his instructions, the
critical contested elements were as follows: (1) whether, by
kicking the victim, appellant had "aided and abetted Private
Wilson in committing the offense of [voluntary manslaughter]”;
and (2) whether appellant "either intended to kill or inflict
great bodily harm upon [the victim] or ... knew that Private
Wilson had such intent." See United States v. Jackson, 6 USCMA
193, 201-02, 19 CMR 319, 327-28 (1955) (aider and abettor theory
"requires concert of purpose or the aiding or encouraging of the
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United States v. Richards, No. 01-0084/AR
perpetrator of the offense and a conscious sharing of his
criminal intent").
1. Aiding and Abetting the Killing by Kicking
With respect to aiding and abetting, we note that this is
not an instance of mere presence. See id. at 201, 19 CMR at 327
(mere inactive presence at scene of crime is not aiding and
abetting); see also United States v. Thompson, 50 M.J. 257, 259
(1999) ("Our case law has generally interpreted Article 77 to
require an affirmative step on the part of the accused.").
Appellant actively participated, along with his friends, in the
assault on the victim. Neither was this a superficial assault.
Although the evidence at trial reflects no broken bones or life-
threatening injuries to the victim other than the stab wounds,
the evidence also demonstrates that this was a serious beating.
Appellant's friends knocked the victim to the ground with their
fists and began kicking him, and appellant actively joined in
the kicking. Appellant and all three of his friends repeatedly
kicked him in the head and body for several minutes. Every time
the victim tried to arise, he was beaten back down to the
ground. This active participation in a beating that so
incapacitated the victim and rendered him helpless against the
attack is a satisfactory basis upon which a rational factfinder
could have found that appellant's kicking aided and abetted
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United States v. Richards, No. 01-0084/AR
Wilson's killing the felled victim at some point during this
assault.
2. Appellant's Intent In Aiding and Abetting Wilson
As to appellant's intent to kill or inflict great bodily
harm, these same factors provide a legally sufficient basis upon
which the members could have inferred that all of the
assailants, including appellant, acted with such intent. Cf.
United States v. Martinez, 40 M.J. 426, 430 (CMA 1994) ("[F]ists
and shod feet used by multiple assailants can constitute a means
likely to produce death or grievous bodily harm and entitle the
person being attacked to use deadly force."). He was an active,
voluntary perpetrator of the assaultive kicking while the victim
was on the ground for a number of minutes. Appellant
voluntarily participated in a chain of events that prevented the
victim’s escape. Thompson, supra at 259 (a number of
“affirmative step[s]” by the appellant and his cohorts).
It is not necessary that appellant intended that the victim
be stabbed or even knew that Wilson had a knife. Article 119(a)
does not require that appellant intended any particular means of
inflicting death or great bodily harm but, rather, that he
intended the consequence. Cf. United States v. Foushee, 13 M.J.
833, 836 (ACMR 1982) (accused not aider and abettor of assault
with intent to commit murder where his intent was limited to
assault and battery); United States v. Hofbauer, 2 M.J. 922, 926
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United States v. Richards, No. 01-0084/AR
(ACMR 1976) (accused not aider and abettor of aggravated assault
where intent was limited to assault and battery). The precise
means by which the consequence of death actually was visited (a
knife rather than the kicking) does not diminish appellant’s
culpability for aiding and abetting a criminal assault “with an
intent to kill or inflict great bodily harm.” Even if appellant
did not intend death as a consequence, he can be found guilty of
voluntary manslaughter if death in fact resulted and if it
resulted from an assault in which he intended great bodily harm.
There was ample evidence on this record for the members to
conclude that he intended, at a minimum, that the victim suffer
great bodily harm.
B. Issue III -- Manslaughter by Culpable Negligence
There was no issue in this case concerning involuntary
manslaughter by culpable negligence. When discussing proposed
instructions with counsel, the military judge commented: "The
Court does not see a basis for an involuntary manslaughter
instruction using an aider and abettor theory. It just does not
seem to fit based on my look at the evidence." The parties
agreed, and so do we.
The medical evidence unequivocally established that the
stabbing, not the kicking and beating, caused the victim’s
death. Accordingly, under the defense’s theory of the case, if
appellant did not share Wilson’s specific intent to kill or
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United States v. Richards, No. 01-0084/AR
inflict great bodily harm, he was not guilty of murder or
involuntary manslaughter. There is no evidence that appellant’s
culpable negligence caused the victim’s death. Thus, there was
no need for an instruction on involuntary manslaughter because
it was not raised by the evidence.
DECISION
The decision of the United States Army Court of Criminal
Appeals is affirmed.
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SULLIVAN, Senior Judge (concurring in the result):
Appellant was found guilty of the voluntary manslaughter of
Private First Class (PFC) Waters, even though another soldier,
Private Wilson, actually stabbed PFC Waters to death. Article
119, UCMJ, 10 USC § 919. The military judge instructed the
members that they could find appellant guilty of this offense if
they found that he had aided and abetted Private Wilson’s killing
of PFC Waters. Article 77, UCMJ, 10 USC § 877. There is a key
issue whether there was legally sufficient evidence admitted in
this case showing that appellant aided or abetted Private
Wilson’s voluntary manslaughter of PFC Waters. See generally
Jackson v. Virginia, 443 U.S. 307, 319 (1979).
Appellant initially challenges the legal sufficiency of his
conviction on the basis that there was no evidence in this case
that he knew the actual perpetrator, Private Wilson, had a knife
and intended to stab PFC Waters with that knife. See generally
2 Wayne R. LaFave and Austin W. Scott, Substantive Criminal Law
§ 6.7 at 136 (1986). He heavily relies on several military cases
for this argument. See generally United States v. Jackson,
6 USCMA 193, 203, 19 CMR 319, 329 (1955); see United States v.
Foushee, 13 M.J. 833, 835 (ACMR 1982); United States v. Hofbauer,
2 M.J. 922, 925 (ACMR 1976). He also argues that his guilt as an
aider and abettor of Private Wilson required proof that his
kicking of PFC Waters assisted or incited Private Wilson in
United States v. Richards, 01-0084/AR
killing PFC Waters, rather than proof that it simply occurred
after the stabbing, as shown in this case.
Article 119(a), UCMJ, states:
§ 919. Art. 119. Manslaughter
(a) Any person subject to this chapter
who, with an intent to kill or inflict
great bodily harm, unlawfully kills a
human being in the heat of sudden passion
caused by adequate provocation is guilty
of voluntary manslaughter and shall be
punished as a court-martial may direct.
(Emphasis added.) On its face, it requires that a perpetrator of
this offense have “an intent to kill or inflict great bodily
harm” on the alleged victim.
Article 77, UCMJ, defines as a principal to an offense:
§ 877. Art. 77. Principals
Any person punishable under this chapter
who
(1) commits an offense punishable by this
chapter, or aids, abets, counsels,
commands, or procures its commission; or
(2) causes an act to be done which if
directly performed by him would be
punishable by this chapter; is a
principal.
In United States v. Thompson, 50 M.J. 257, 259 (1999), we
further stated:
For an accused to be a principal
under Article 77, and thus to be guilty of
the offense committed by the perpetrator,
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United States v. Richards, 01-0084/AR
he must (1) “assist, encourage, advise,
instigate, counsel, command, or procure
another to commit, or assist, encourage,
advise, counsel, or command another in the
commission of the offense”; and (2) “share
in the criminal purpose [or] design.”
Para. 1b(2)(b), Part IV, Manual for
Courts-Martial, United States, 1984.
(Emphasis added); see also para. 156, Manual for Courts-Martial,
United States, 1969 (Rev. ed.).
In light of the above, the Government was required to show a
particular mens rea to find appellant guilty of aiding and
abetting the voluntary manslaughter of PFC Waters. In
particular, it was required to show:
(1) Private Wilson intended to kill PFC
Waters or inflict great bodily harm upon
him; and
(2) Appellant consciously shared that
criminal intent.
See United States v. Burroughs, 12 M.J. 380, 383 (CMA 1982).
Appellant’s main argument is that he could not legally share
Private Wilson’s criminal intent because he did not know Private
Wilson had a knife or that he intended to use that knife on PFC
Waters. See United States v. Jackson, supra. I must disagree.
Paragraph 1b(4), Part IV, Manual for Courts-Martial, United
States (2000 ed.), states:
(4) Parties whose intent differs from
the perpetrator’s. When an offense
charged requires proof of a specific
intent or particular state of mind as an
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United States v. Richards, 01-0084/AR
element, the evidence must prove that the
accused had that intent or state of mind,
whether the accused is charged as a
perpetrator or an “other party” to crime.
It is possible for a party to have a state
of mind more or less culpable than the
perpetrator of the offense. In such a
case, the party may be guilty of a more or
less serious offense than that committed
by the perpetrator. For example, when a
homicide is committed, the perpetrator may
act in the heat of sudden passion caused
by adequate provocation and be guilty of
manslaughter, while the party who, without
such passion, hands the perpetrator a
weapon and encourages the perpetrator to
kill the victim, would be guilty of
murder. On the other hand, if a party
assists a perpetrator in an assault on a
person who, known only to the perpetrator,
is an officer, the party would be guilty
only of assault, while the perpetrator
would be guilty of assault on an officer.
(Emphasis added.)
Again, I note that Article 119, UCMJ, requires that the
actual perpetrator of voluntary manslaughter have an intent to
kill or inflict great bodily harm. Article 77, UCMJ, and our
case law required trial counsel to show that appellant had the
same intent. Clearly, there is no express legal requirement in
military law that forced trial counsel to show appellant knew
Private Wilson had a knife or intended to stab PFC Waters with
that knife.
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The D.C. Circuit in United States v. Walker, 99 F.3d 439,
442-43 (D.C. Cir. 1996), has spoken to this intent issue under a
statute quite similar to Article 77, UCMJ. It said:
The government’s brief, although
decidedly uncomfortable with and even
critical of the footnote in North and our
language in Salamanca, does not clearly
indicate why appellant’s reliance of those
cases is misplaced. That seems to be
because the government reads North and
Salamanca’s use of the phrase “same
intent” as requiring an intent which is
“matched”-which would mean that an aider
and abettor must have exactly the same
knowledge and disposition as the
principal. But that is an overreading; no
court has ever so held, as it virtually
would eliminate aider and abettor
liability. Appellant, ironically, has it
right when, in defense of our “same
intent” language, he points to cases that
have instead used the term shared intent,
see, e.g., Nye & Nissen v. United States,
336 U.S. 613, 620, 69 S. Ct. 766, 770, 93
L. Ed. 919 (1949); United States v.
Martiarena, 955 F.2d 363, 366 (5th Cir.
1992); see also United States v. Garrett,
720 F.2d 705, 713 (D.C. Cir. 1983), cert.
denied, 465 U.S. 1037, 104 S. Ct. 1311, 79
L. Ed. 2d 708 (1984); United States v.
Raper, 676 F.2d 841, 850-51 & n.1 (D.C.
Cir. 1982), which suggests that the intent
of the aider and abettor must be shown, in
crucial respects, to overlap with (but not
necessarily match) the criminal intent of
the principal. For example, in United
States v. Edmond, 924 F.2d 261, 267 (D.C.
Cir.), cert. denied, 502 U.S. 838, 112
S. Ct. 125, 116 L. Ed. 2d 92 (1991), we noted
that if a jury thought an aider and
abettor had premeditated a murder, but
enlisted an executioner at the last
possible moment, a jury “could
consistently convict the abettor of first-
degree murder while finding the actual
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United States v. Richards, 01-0084/AR
perpetrator guilty only of [second-degree
murder].”
The North case footnote upon which
Salamanca relied, although it used the
cryptic and somewhat ambiguous phrase
“same intent,” must be read as meaning no
more than the traditional notion of shared
intent because the note explicitly relied
on United States v. Sampol, 636 F.2d 621,
676 (D.C. Cir. 1980), and it did not
purport to alter the principles we applied
there. In Sampol, we had explained that
an aider and abettor and a principal must
have a “common design or plan,” but the
aider and abettor “need not perform the
substantive offense, need not know its
details, and need not even be present.”
Id. (internal quotation marks and
citations omitted). And we explicitly
recognized that once a common design is
established, the aider and abettor is
responsible not only for the success of
the common design, but also for the
probable and natural consequences that
flow from its execution, even if those
consequences were not originally intended.
(Emphasis added.)
I agree with a concert of purpose approach to liability of an
aider and abettor under Article 77, UCMJ. See United States v.
Burroughs, 12 M.J. at 380. In my view, the aider and abettor must
share the intent of the perpetrator, not the knowledge of his
particular means of accomplishing that intent. See para. 1b(4),
Part IV, Manual, supra; see also United States v. Searan, 259
F.3d 434, 444 (6th Cir. 2001). This case is not like United
States v. Jackson, 6 USCMA at 193, 19 CMR at 319, where evidence
was admitted showing the appellant intended to assault the
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United States v. Richards, 01-0084/AR
victim, but he did not intend to kill the victim or inflict great
bodily harm upon him. See also Commonwealth v. Hogan, 396 N.E.
2d 978 (Mass. 1979). Moreover, this is not a case where the
predicate criminal statute violated required proof that a certain
type of weapon was used. See United States v. Spinney, 65 F.3d
231, 236-39 (1st Cir. 1995); United States v. Rosario-Diaz, 202
F.3d 54, 63-64 (1st Cir. 2000).
In sum, Article 77, UCMJ, in my view, requires only that an
appellant share a common intent to accomplish the essential
elements of the resulting felony. See United States v. Jacobs, 1
USCMA 209, 211, 2 CMR 115, 117 (1952). Jackson, Foushee, and
Hofbauer apply only where the evidence shows that the perpetrator
and the aider and abettor had different criminal intents. These
cases are simply inapplicable where the accomplice’s own conduct
unequivocally shows his sharing of the perpetrator’s intent to
kill or grievously harm the victim.
Turning to the actus reus question in this case, evidence was
admitted that showed Private Wilson struggled with PFC Waters
both before and after appellant joined in the kicking of the
victim. Appellant’s conduct in participating in this group
assault on PFC Waters could be rationally viewed as providing
continued incitement for the killing of PFC Waters by Private
Wilson or assisting him in the killing by preventing PFC Waters’s
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United States v. Richards, 01-0084/AR
escape and survival after he was stabbed. I agree with the
majority opinion that this evidence was legally sufficient to
establish appellant as an aider and abettor.
Moving to the other issues in this case, I conclude Issue II
is mooted by my resolution of the first granted issue. In my
view, Private Wilson’s multiple uses of a knife in the context of
the gang stalking and beating of PFC Waters was clear evidence
that he intended to kill or greatly harm PFC Waters. Moreover,
appellant’s extended involvement in the stalking and willing
participation in this vicious gang beating of PFC Waters was
evidence that he shared this criminal design. In this context,
whether the stabbing of PFC Waters was a natural and probable
consequence of the kicking of PFC Waters need not be addressed.
See generally para. 156, 1969 Manual, supra (delineating a
natural or probable consequence liability theory for aiders and
abettors where different crime intended by aider and abbettor).
Finally, as to Issue III, I do not find that reversible error
occurred as a result of the military judge’s failure to instruct
on the lesser offense of involuntary manslaughter. Appellant
could be found guilty of this lesser offense if evidence was
admitted showing that he only intended to assault the victim, not
kill or inflict great bodily harm upon him. See Article 119(b),
UCMJ. No such evidence was admitted in this case.
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The Government’s evidence in this case shows a brutal gang
attack on PFC Waters, which appellant actively participated in by
kicking the victim. Appellant essentially disputed the
Government’s proof of his participation in the attack on the
basis that it was supported by untrustworthy testimony from the
Government’s principal witness. There was no evidence suggesting
a less dangerous attack was intended by appellant in this case.
If the Government’s evidence was not accepted by the members,
appellant would be found not guilty. In these circumstances, I
see no error in the judge’s unobjected-to ruling not to give an
instruction on involuntary manslaughter in these circumstances.
Cf. United States v. Davis, 53 M.J. 202, 205-06 (2000); United
States v. Wells, 52 M.J. 126, 130 (1999)(appellate relief warranted
only if appellate court is convinced that the evidence issues are
such that a rational jury could acquit on a charged crime and
convict on a lesser crime).
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