United States v. Harris , 66 M.J. 166 ( 2008 )


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  •                          UNITED STATES, Appellee
    v.
    Allen S. HARRIS, Private First Class
    U.S. Marine Corps, Appellant
    No. 07-0508
    Crim. App. No. 200500452
    United States Court of Appeals for the Armed Forces
    Argued January 14, 2008
    Decided March 25, 2008
    STUCKY, J., delivered the opinion of the Court, in which EFFRON,
    C.J., and BAKER, ERDMANN, and RYAN, JJ., joined.
    Counsel
    For Appellant: Lieutenant Heather L. Cassidy, JAGC, USN
    (argued); Lieutenant Richard H. McWilliams, JAGC, USN.
    For Appellee: Lieutenant Timothy H. Delgado, JAGC, USN
    (argued); Major Brian K. Keller, USMC (on brief); Commander Paul
    C. LeBlanc, JAGC, USN, and Lieutenant Tyquili R. Booker, JAGC,
    USN.
    Military Judges:    P. H. McConnell and S. F. Day
    THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
    United States v. Harris, No. 07-0508/MC
    Judge STUCKY delivered the opinion of the Court.
    We granted review to consider whether the United States
    Navy-Marine Corps Court of Criminal Appeals erred by failing to
    award Appellant sufficient additional pretrial confinement credit
    for unduly rigorous brig conditions and improper denial of
    necessary medical care, and whether the relief the court ordered
    was meaningful.   We hold that Appellant failed to meet his burden
    to establish his entitlement to additional confinement credit,
    and any meaningful relief would be disproportionate to any harm
    that Appellant may have suffered.
    I.
    After an evening of consuming alcohol, Appellant assaulted
    two other Marines in separate incidents -- he chased one with a
    knife, and stabbed the other.   As a result of those assaults,
    Appellant served 186 days in pretrial confinement.
    At trial, Appellant moved for additional confinement credit
    for the following reasons:   (1) the decision to place him in
    pretrial confinement was an abuse of discretion -- that is, it
    failed to explain the need for confinement and failed to consider
    lesser forms of restraint and justify why lesser forms of
    restraint would be inadequate; (2) he was inappropriately
    classified as a maximum security detainee which caused him to be
    placed in special quarters; and (3) he suffered from extreme
    heat, lack of medical attention, restricted television, exercise,
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    United States v. Harris, No. 07-0508/MC
    and food selection privileges, rodent and pest infestation, and
    lack of privacy when reviewing documents with counsel.    The
    military judge concluded that Appellant was appropriately placed
    in pretrial confinement and classified as a maximum security
    detainee; that he was not denied appropriate and necessary
    medical care; and there was no evidence that the Government
    intended to punish Appellant during his pretrial confinement.
    However, the military judge granted Appellant two additional days
    of credit for each of the fifteen days counsel visited Appellant
    (a total of thirty days), holding that brig personnel improperly
    reviewed paperwork counsel used during consultations with
    Appellant.
    Complying with a pretrial agreement that provided for
    suspension of all confinement in excess of eighteen months,
    Appellant pled guilty to, and was convicted of, simple assault
    and assault with a deadly weapon in violation of Article 128,
    Uniform Code of Military Justice (UCMJ), 
    10 U.S.C. § 928
     (2000).
    The military judge sentenced him to a bad-conduct discharge,
    confinement for twelve months, forfeiture of all pay and
    allowances, and reduction to the lowest enlisted grade.
    Appellant received a total of 216 days of credit toward his
    sentence to confinement -- day-for-day credit for each of the 186
    days he spent in pretrial confinement and thirty days due to brig
    3
    United States v. Harris, No. 07-0508/MC
    personnel interfering with his right to counsel.   The convening
    authority approved the sentence.
    The Navy-Marine Corps Court of Criminal Appeals affirmed.
    United States v. Harris, No. NMCCA 200500452, 
    2007 CCA LEXIS 55
    ,
    at *9, 
    2007 WL 1702575
    , at *3 (N-M. Ct. Crim. App. Feb. 15, 2007)
    (unpublished).   It concluded that the military judge’s findings
    that Appellant “was not denied appropriate and necessary medical
    care and that there was no intent to punish” him while he was in
    pretrial confinement was fully supported by the record.   
    2007 CCA LEXIS 55
    , at *7 n.1, 
    2007 WL 1702575
    , at *2 n.1.   Nevertheless,
    the court granted Appellant one additional day of credit for each
    of the 186 days he spent in pretrial confinement, because
    Appellant was placed in maximum custody solely based on the
    nature and seriousness of the charges against him, and “the
    Government presented no evidence that the appellant was a flight
    risk or that there was any risk that he would harm himself or
    others if lesser degrees of restraint were utilized.”   
    2007 CCA LEXIS 55
    , at *6-*7, 
    2007 WL 1702575
    , at *2.   The Government has
    not appealed that issue.   By granting Appellant an additional 186
    days of credit, Appellant’s pretrial confinement credit totaled
    402 days on a sentence of twelve months.
    II.
    “No person, while being held for trial, may be subjected to
    punishment or penalty other than arrest or confinement upon the
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    United States v. Harris, No. 07-0508/MC
    charges pending against him, nor shall the arrest or confinement
    imposed upon him be any more rigorous than the circumstances
    require to insure his presence . . . .”   Article 13, UCMJ, 
    10 U.S.C. § 813
     (2000).
    Article 13, UCMJ, prohibits two things: (1) the
    imposition of punishment prior to trial, and (2)
    conditions of arrest or pretrial confinement that are
    more rigorous than necessary to ensure the accused’s
    presence for trial. The first prohibition of Article
    13 involves a purpose or intent to punish, determined
    by examining the intent of detention officials or by
    examining the purposes served by the restriction or
    condition, and whether such purposes are “reasonably
    related to a legitimate governmental objective.” Bell
    [v. Wolfish], 441 U.S. [520,] 539 [(1979)]; [United
    States v.] McCarthy, 47 M.J. [162,] 165, 167
    [(C.A.A.F. 1997)].
    The second prohibition of Article 13 prevents
    imposing unduly rigorous circumstances during pretrial
    detention. Conditions that are sufficiently egregious
    may give rise to a permissive inference that an
    accused is being punished, or the conditions may be so
    excessive as to constitute punishment. McCarthy, 47
    M.J. at 165; United States v. James, 
    28 M.J. 214
    , 216
    (C.M.A. 1989) (conditions that are “arbitrary or
    purposeless” can be considered to raise an inference
    of punishment).
    United States v. King, 
    61 M.J. 225
    , 227-28 (C.A.A.F. 2005).
    Appellant has the burden of establishing his entitlement to
    relief under Article 13, UCMJ.   United States v. Mosby, 
    56 M.J. 309
    , 310 (C.A.A.F. 2002).   In reviewing pretrial confinement
    issues, we defer to the military judge’s findings of fact,
    including a finding there was no intent to punish, where they are
    not clearly erroneous.   Id.; King, 
    61 M.J. at 227
    .   However, we
    5
    United States v. Harris, No. 07-0508/MC
    review de novo the application of the facts to the law and
    whether Appellant is entitled to credit for violations of the
    law.    Mosby, 56 M.J. at 310.
    III.
    Appellant asserts that the following factual findings were
    clearly erroneous:    (1) Appellant did not complain about his
    medical care until July 2004 when he discovered and reported
    blood in his urine; and (2) the Government took appropriate
    action once Appellant reported blood in his urine.
    Appellant was placed in pretrial confinement on February 27,
    2004.    At the time, Appellant was a member of the Medical
    Rehabilitation Platoon because he had ruptured his spleen during
    training and had not yet been medically cleared to return to full
    duty.    He claims that on several occasions he submitted written
    requests to the brig staff asking to see a doctor for his monthly
    CT scan to monitor the condition of his spleen, but did not
    receive an appointment.    On May 2, 2004, Appellant’s civilian
    attorney sent a memorandum to brig and unit reviewing authorities
    asking that a CT scan be scheduled for Appellant.    When that
    failed to get a response, the attorney sent another memorandum on
    June 29, 2004.    After Appellant discovered blood in his urine, he
    asserts that he consulted with the brig hospital corpsman, but
    was unable to secure a medical appointment until his military
    attorney intervened.    Appellant was ultimately diagnosed with an
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    United States v. Harris, No. 07-0508/MC
    enlarged prostate.    In fact, Appellant had his CT scan within two
    weeks and consulted with his doctor about his spleen within three
    weeks of discovering blood in his urine.
    Appellant admitted that he did not possess any paperwork,
    and there was no entry in his medical records, annotating his
    need for monthly CT scans.    There is also evidence in the record
    that Appellant, who was a knowledgeable and persistent user of
    the prison complaint system, was seen daily by medical personnel
    and did not express any concern until he discovered blood in his
    urine.    The brig corpsman testified that he examined Appellant on
    the day he complained of blood in his urine.    As Appellant
    appeared to be stable and was scheduled for a CT scan within
    three days, the corpsman saw no need to refer Appellant to a
    general surgeon.    The military judge’s findings of fact were not
    clearly erroneous, and Appellant failed to carry his burden of
    establishing that he was denied adequate and necessary medical
    care.
    IV.
    Appellant also claims that the conditions of his pretrial
    confinement in maximum custody were unduly rigorous in that he
    was forced to remain in his cell twenty-one hours each day, wear
    shackles during his two-hour television break, eat his meals in
    his cell, endure roaches and mice in his cell, and endure “dire
    heat” due to a lack of air conditioning.    After considering all
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    United States v. Harris, No. 07-0508/MC
    of the evidence developed at trial, the Court of Criminal Appeals
    concluded that Appellant had only established his entitlement to
    credit due to his assignment to maximum custody and the attendant
    conditions directly related to that assignment.   Harris, 
    2007 CCA LEXIS 55
    , at *7, 
    2007 WL 1702575
    , at *2.   The Court of Criminal
    Appeals granted him additional day-for-day credit for those
    conditions.   
    2007 CCA LEXIS 55
    , at *7, 
    2007 WL 1702575
    , at *2.
    Appellant failed to carry his burden of establishing his
    entitlement to relief beyond that already granted by the Court of
    Criminal Appeals.
    V.
    In addition to seeking additional confinement credit,
    Appellant complains that the relief granted by the Court of
    Criminal Appeals was not meaningful.   By the time the Court of
    Criminal Appeals granted him the additional 186 days of credit,
    Appellant had served the full term of his confinement and been
    out of confinement for over two years.    There was no pending
    confinement against which the credits could be applied.    Thus,
    Appellant asserts that the Court of Criminal Appeals failed to
    grant him appropriate relief.   In his original brief, Appellant
    asked this Court to set aside his bad-conduct discharge or, in
    the alternative, the forfeiture of all pay and allowances.    By
    operation of Article 58b, UCMJ, 10 U.S.C. § 858b (2000), setting
    aside the adjudged forfeitures in this case would not provide any
    8
    United States v. Harris, No. 07-0508/MC
    actual relief to Appellant.   In his reply to the Government’s
    brief, Appellant requested disapproval of confinement and total
    forfeitures, setting aside the bad-conduct discharge, setting
    aside all punishment, or limiting the sentence that could be
    approved following a rehearing.    In light of the offenses of
    which Appellant was convicted, we conclude that granting
    Appellant such relief would be disproportionate to any harm he
    may have suffered.
    VI.
    The decision of the United States Navy-Marine Corps Court of
    Criminal Appeals is affirmed.
    9
    

Document Info

Docket Number: 07-0508-MC

Citation Numbers: 66 M.J. 166

Judges: Stucky

Filed Date: 3/25/2008

Precedential Status: Precedential

Modified Date: 8/5/2023