United States v. Walters , 58 M.J. 391 ( 2003 )

IN THE CASE OF
UNITED STATES, Appellee
v.
Ricky L. WALTERS, Airman Basic
U.S. Air Force, Appellant
No. 02-0874
Crim. App. No. 34575
United States Court of Appeals for the Armed Forces
Argued March 12, 2003
Decided July 01, 2003
ERDMANN, J., delivered the opinion of the Court, in which GIERKE,
EFFRON, and BAKER, JJ., joined. CRAWFORD, C.J., filed a separate
dissenting opinion.
Counsel
For Appellant: Major Andrew S. Williams (argued); Colonel
Beverly B. Knott, Major Terry L. McElyea, and Captain
Jennifer K. Martwick (on brief).
For Appellee: Lieutenant Colonel Michael E. Savage (argued);
Lieutenant Colonel LeEllen Coacher and Lieutenant Colonel
Lance B. Sigmon (on brief).
Military Judge: James L. Flanary
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Walters, No. 02-0874/AF
Judge ERDMANN delivered the opinion of the Court.
Appellant, Airman Basic Ricky Walters II, United States Air
Force, was tried by general court-martial at Langley Air Force
Base, Virginia. Contrary to his plea, he was convicted of
wrongful use of "ecstasy," a Schedule I controlled substance, in
violation of Article 112a, Uniform Code of Military Justice
[hereinafter UCMJ], 10 U.S.C. § 912a (2000).
The adjudged and approved sentence consisted of a total
forfeiture of all pay and allowances, confinement for thirty days
and a bad-conduct discharge. On June 20, 2002, the Air Force
Court of Criminal Appeals affirmed the findings and sentence.
United States v. Walters, 57 M.J. 554 (A.F. Ct. Crim. App. 2002).
On December 17, 2002, we granted Appellant's petition for review
on the following issue:
WHETHER THE AIR FORCE COURT ERRED IN AFFIRMING APPELLANT'S
CONVICTION FOR WRONGFULLY USING ECSTASY WHERE THE FINDINGS
OF THE COURT-MARTIAL WERE VAGUE AND AMBIGUOUS AND FAILED TO
REFLECT WHAT FACTS CONSTITUTED THE OFFENSE.
We hold that the military judge erred by failing to properly
instruct the members of the court-martial and by failing to
obtain clarification of the findings prior to announcement. We
further hold that the resulting ambiguity in the findings
precluded a review by the Court of Criminal Appeals under Article
66, UCMJ, 10 U.S.C. § 866 (2000).
BACKGROUND
Appellant was tried by general court-martial for one
specification of wrongfully using and one specification of
wrongfully distributing ecstasy in violation of Article 112a. A
panel of officer and enlisted members found him not guilty of the
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United States v. Walters, No. 02-0874/AF
wrongful distribution specification; accordingly, that
specification is not at issue in this appeal.
The wrongful use specification alleged use "on divers
occasions between on or about 1 April 2000 and on or about 18
July 2000." The Government offered proof at trial of a number of
instances of alleged use of ecstasy during the time period in the
specification:
(1) Senior Airman (SrA) Russ, a friend of Appellant's who
testified throughout the trial under a grant of immunity, spoke
about an occasion in middle to late June 2000 when Appellant told
him that he had used ecstasy. Senior Airman Russ testified that
at the time Appellant’s eyes were glassy, his pupils looked
dilated and he was twitching and making strange gestures.
(2) A friend of Appellant, Airman First Class (A1C) Humble,
testified about an occasion at some point between March 3, 2000
and July 31, 2000 where Appellant made a statement that he was
planning on using ecstasy.
(3) An undercover special agent for the Air Force Office of
Special Investigations testified that on June 23, 2000 Appellant
told her that he had taken a pill of ecstasy "an hour or two
ago." She testified that he was perspiring, his speech was
slurred and his skin was sensitive to the touch.
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(4) Airman First Class Humble testified that sometime
between March and July 20001 Appellant was in Humble's dorm room
with his (Appellant's) girlfriend. Airman First Class Humble
testified that Appellant said it was his first time using ecstasy
and he wanted his girlfriend to try it with him. Airman First
Class Humble also testified that he observed Appellant pull a
piece of plastic out of his pocket that appeared to contain a
couple of small pills and that Appellant appeared to hand
something to his girlfriend.
(5) Senior Airman Russ testified that he was in A1C Humble's
dorm room at some point around July 4, 2000 when they were joined
by Appellant and his girlfriend.2 Senior Airman Russ indicated
that he observed Appellant taking what appeared to be small pills
out of his pocket in a plastic wrapper, at which point A1C Humble
and Appellant had a "little argument" and Appellant left with his
girlfriend, returning thirty to forty-five minutes later.
(6) Senior Airman Russ also testified that Appellant came
into his [SrA Russ'] room in July of 2000 with two pills wrapped
in cellophane. Senior Airman Russ testified that Appellant asked
him if he wanted to crush one of them, which SrA Russ did.
Senior Airman Russ testified that Appellant swallowed one of the
pills and used a dollar bill to "snort" the crushed pill. In
addition to observing a mood change on Appellant's part, SrA Russ
1
Airman First Class Humble testified on direct that this occurred between
March and May 2000. He testified on cross-examination that it occurred
sometime between April and July.
2
The record is unclear as to whether the Government intended A1C Humble's and
SrA Russ' testimony to prove the same incident in A1C Humble's dorm room.
Airman First Class Humble testified that SrA Russ was not in the room when he
observed Appellant's actions. Neither the Government's opening nor closing
arguments clarify this discrepancy.
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testified that he applied Vick's VapoRub to Appellant's face and
observed Appellant smoking menthol cigarettes, both alleged to
enhance an ecstasy high.
At the conclusion of testimony, the military judge gave his
pre-argument instructions, which included a "variance"
instruction:
If you have a doubt about the time or place in which the
charged misconduct occurred, but you are satisfied beyond a
reasonable doubt that the offense was committed at a time,
at a place, or in a particular manner which differs slightly
from the exact time, place or manner in the specification,
you may make minor modifications in reaching your findings
by changing the time, place, or manner in which the alleged
misconduct described in the specification occurred, provided
that you do not change the nature or identity of [the]
offense. Mr. President, in relation to that, sir, we will
be giving you what's called a Findings Worksheet later on
and there's a section for what is called findings by
exceptions and substitutions and that goes toward this
particular instruction and when I pass that to you, I think
you'll be able to see exactly what it means on that[.]
After closing arguments, the military judge provided the members
with the findings worksheet and gave them instructions regarding
its use. The worksheet provided an option (I) for "Full
Acquittal or Full Conviction" and an option (II) for "Mixed
Findings." The "mixed findings" portion relating to the wrongful
use charge and specification read as follows:
A. Of Specification 1 of the Charge: (Not Guilty) (Guilty)
or
Of Specification 1 of the Charge: (Not Guilty) (Guilty)
(Guilty, Except the [words][figures][words and figures]
Substituting there for the [words][figures][words and
figures]:
______________________________________________________
Of the excepted [words][figures][words and figures]:
Not Guilty
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Of the [substituted][remaining][words][figures][words
and figures] Guilty
While the military judge was instructing the members on how
to complete the findings worksheet, he stated:
Mr. President, in reference to that particular worksheet, if
you'll look at the top part where it says complete acquittal
or complete findings of guilt, if, on the votes, you should
find the accused guilty of the specifications as charged for
both specifications, then you would use that particular
portion of the worksheet. If, however -- or, if you found
him not guilty, also, you would use that portion for both
specifications. If you should have what's called a mixed
findings, which is either you may find guilt of one
specification but not guilty of another, or, if you do what
is called findings by exceptions and substitutions, which is
the variance instruction I have given you earlier, where you
may – and this is just an example – on the divers uses, you
may find just one use, and you except out the words divers
uses and you substitute in the word one time, or something
like that, then you would use the second part. Sir, I say
that only as an example. That does not reflect in any way,
any opinion of the court for these particular specifications
and charges. Having looked over that, do you have any
questions concerning the findings worksheet?
The president of the panel answered "No, sir" and neither party
requested any further instructions on how to use the "mixed
findings" portion of the worksheet.
When the members returned from deliberations, the president
indicated that they wanted to make sure they had filled out the
worksheet correctly. They handed the worksheet to the military
judge, at which point the relevant portion appeared as follows:
A. Of Specification 1 of the Charge: (Not Guilty) (Guilty)
or
Of Specification 1 of the Charge: (Not Guilty) (Guilty)
(Guilty, Except the [words][figures][words and
figures]: diverse [sic] occasions3
Substituting there for the [words][figures][words and
figures]: one occasion
______________________________________________________
3
Underlined portions signify handwritten text.
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Of the excepted [words][figures][words and figures]:
diverse [sic] occasions
Not Guilty
Of the [substituted][remaining][words][figures][words
and figures] one occasion
Guilty
After reviewing the worksheet, the military judge placed an
asterisk by the term "(Guilty)" following the stricken term "(Not
Guilty)" in the first sentence of the alternative finding and
advised the president that the term needed to be marked out as
well. Apart from a reminder as to a sentence on the second page
of the worksheet, that was the only instruction or clarification
given by the military judge. The findings were then announced as
follows:
FINDINGS
PRES: (LtCol Anderson) Airman Basic Ricky L. Walters II,
this court-martial finds you:
Of Specification 1 of the Charge: Guilty except
the words divers occasions; substituting therefor
the words one occasion. Of the excepted words
divers occasions: Not guilty. Of the substituted
words one occasion: Guilty.
Of Specification 2 of the Charge: Not guilty.
MJ: And then, sir, the second page, the very last
thing.
FINDINGS (CONTINUED)
PRES: (LtCol Anderson) Of Charge I: Guilty.
DISCUSSION
The granted issue centers on Appellant's contention that the
findings were "vague and ambiguous and failed to reflect what
facts constituted the offense." The lower court addressed the
alleged “ambiguity” by applying the “common law” rule on general
jury verdicts:
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United States v. Walters, No. 02-0874/AF
[i]t was settled law in England before the Declaration of
Independence, and in this country long afterwards, that a
general jury verdict was valid so long as it was legally
supportable on one of the submitted grounds even though that
gave no assurance that a valid ground, rather than an
invalid one, was actually the basis for the jury’s actions.
Walters, 57 M.J. at 556 (quoting Griffin v. United States, 502
U.S. 46, 49 (1991)).
In addition to relying on Griffin and other Supreme Court
authority, the Air Force court also relied on our decision in
United States v. Vidal, 23 M.J. 319 (C.M.A. 1987), cert. denied,
481 U.S. 1052 (1987). In Vidal, the accused was charged and
convicted under a single specification of rape, but proof was
offered as to his guilt both as the perpetrator and on a theory
of aiding and abetting (i.e., holding the victim down). 23 M.J.
at 324-25. In rejecting Vidal's claim that the Government was
required to elect between the two alternatives, we noted that
"[t]he only condition is that there be evidence sufficient to
justify a finding of guilty on any theory of liability submitted
to the members." Id. at 325.
The Air Force court ultimately concluded that it "must apply
the common-law rule, as set out by the Supreme Court and our
superior court in Vidal" and affirmed the findings and sentence.
Walters at 558-59. In reaching that result, the court overruled
its prior decision in United States v. King, 50 M.J. 686 (A.F.
Ct. Crim. App. 1999)(en banc). The issues presented in King were
similar to the issues raised in this case: the appellant was
charged under a specification alleging a wrongful act "on divers
occasions”; the government presented proof at trial of more than
one instance of the wrongful act; the members found the accused
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United States v. Walters, No. 02-0874/AF
guilty of the wrongful act, but not guilty of the words "on
divers occasions." Id. at 687.
The King court concluded that it could not determine what
conduct the accused had been found guilty of and what conduct he
had been acquitted of. Consequently, the court found that an
ambiguous verdict of this type precluded any proper exercise of
its appellate review authority under Article 66(c). Id. at 688.
We conclude that the Air Force court was correct in its analysis
in King and was in error when it relied on "the common-law rule
regarding general verdicts" in the present case.
The Courts of Criminal Appeals' appellate review authority
flows from Article 66(c), not the common law. While there are
instances in military law where common law principles are
applicable, the "center of gravity" for the Courts of Criminal
Appeals is their statutory review function under Article 66(c):
In a case referred to it, the Court of Criminal Appeals may
act only with respect to the findings and sentence as
approved by the convening authority. It may affirm only
such findings of guilty and the sentence or such part or
amount of the sentence, as it finds correct in law and fact
and determines, on the basis of the entire record, should be
approved. In considering the record, it may weigh the
evidence, judge the credibility of issues, and determine
controverted questions of fact, recognizing that the trial
court saw and heard the witnesses.
The resolution of the legal issues presented in both King
and the present case hinge on that unique statutory function. As
we have noted in the past, Article 66(c) affords the Courts of
Criminal Appeals an "awesome, plenary, de novo power." United
States v. Quiroz, 55 M.J. 334, 338 (C.A.A.F. 2001)(quoting United
States v. Cole, 31 M.J. 270, 272 (C.M.A. 1990)). It requires
them to conduct a de novo review of both the legal and factual
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sufficiency of a conviction. United States v. Washington, 57
M.J. 394, 399 (C.A.A.F. 2002)(emphasis added); see also United
States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987).
The test for legal sufficiency is a familiar standard in
both military and civilian jurisdictions and is whether,
considering the evidence in a light most favorable to the
prosecution, a reasonable fact-finder could have found all the
essential elements beyond a reasonable doubt. Turner, 25 M.J. at
324 (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). In
terms of factual sufficiency, however, the test is whether, after
weighing the evidence in the record of trial and making
allowances for not having personally observed the witnesses, the
members of the service court are themselves convinced of
appellant's guilt beyond a reasonable doubt. Turner, 25 M.J. at
325 (emphasis added). As a general rule, civilian appellate
courts do not possess the authority to conduct this type of
factual sufficiency review.4
This unique power of review for factual sufficiency,
however, is subject to a critical limitation. A Court of
Criminal Appeals cannot find as fact any allegation in a
specification for which the fact-finder below has found the
accused not guilty. United States v. Smith, 39 M.J. 448, 451
(C.M.A. 1994); see also United States v. Nedeau, 7 C.M.A. 718,
721, 23 C.M.R. 185, 188 (1957).
4
Those few civilian courts that conduct a review for factual sufficiency do
so under different standards. For example, although the Texas Courts of
Appeal and Court of Criminal Appeals conduct a review styled as "factual
sufficiency," it is not framed in terms of an affirmative requirement that the
members of the appellate body be themselves convinced of appellant's guilt
beyond a reasonable doubt. See e.g., Sells v. State, 2003 Tex. Crim. App.
LEXIS 63, at *4-*8 (Tex. Crim. App. Mar. 12, 2003).
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As the Air Force court properly recognized in King, it is
that limitation on its statutory authority that precludes any
proper appellate review of this type of ambiguous verdict.
Appellant was found guilty of using ecstasy on one occasion
during the time period referenced in the specification. The
Government attempted to prove allegations of wrongful use on
numerous occasions and the verdict reflected that the members
found Appellant not guilty of all of those allegations save one.
By virtue of the limitation recognized in Smith, in
conducting its factual sufficiency review the Court of Criminal
Appeals cannot find the Appellant guilty of any of the
allegations of use of which the members found him not guilty.
The Court of Criminal Appeals is required to weigh the evidence
and be themselves convinced beyond a reasonable doubt of
Appellant's guilt of engaging in wrongful use on the same "one
occasion" that served as the basis for the members' guilty
finding. Without knowing which incident that Appellant had been
found guilty of and which incidents he was found not guilty of,
that task is impossible.
The lower court’s discussion of "the common-law rule
regarding general verdicts," while certainly a correct statement
of that area of the law, is simply not applicable to this
situation. None of the “common law” authority relied upon by the
lower court involve an appellate review that simultaneously
requires an independent determination of guilt beyond a
reasonable doubt and which prohibits a finding of guilty for
conduct for which the Appellant was acquitted at the trial level.
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United States v. Walters, No. 02-0874/AF
Further, the essence of the cases relied upon by the Air
Force Court lies in the effect of uncertainty over what specific
conduct may have served as the basis for a jury's general verdict
of guilty. See e.g., Griffin v. United States, 502 U.S. 46
(1991); United States v. Turner, 396 U.S. 398 (1970); Vidal, 23
M.J. at 324-25. This case, on the other hand, centers on the
legal effect of uncertainty over what specific conduct may have
served as the basis for a jury's verdict of not guilty.
The ambiguous verdict here can be traced to the military
judge's error in both his hypothetical instruction to the members
regarding a finding by exceptions and substitutions and his
failure to secure clarification of the ambiguity when he reviewed
the findings worksheet prior to announcement. While his
hypothetical example of a finding by exceptions and substitutions
was well intended, it was less than complete.
Where a specification alleges wrongful acts on "divers
occasions," the members must be instructed that any findings by
exceptions and substitutions that remove the "divers occasions"
language must clearly reflect the specific instance of conduct
upon which their modified findings are based. That can generally
be accomplished through reference in the substituted language to
a relevant date or other facts in evidence that will clearly put
the accused and the reviewing courts on notice of what conduct
served as the basis for the findings.
The military judge's instructions did not address that
requirement. That error was compounded when the military judge
failed to secure clarification of the ambiguity when he reviewed
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United States v. Walters, No. 02-0874/AF
the findings prior to announcement under Rule for Courts-Martial
921(d).5
This case presents a narrow circumstance involving the
conversion of a "divers occasions" specification to a "one
occasion" specification through exceptions and substitutions.
When a specification alleging instances of misconduct on divers
occasions is involved, findings by exceptions and substitutions
eliminating all but one instance are a distinct possibility.
Both trial practitioners and military judges need to be aware of
the potential for ambiguous findings in such cases and take
appropriate steps through instruction and pre-announcement review
of findings to ensure that no ambiguity occurs. Id.
In sum, the military judge erred in giving incomplete
instructions regarding the use of findings by exceptions and
substitutions and in failing to secure clarification of the
court-martial's ambiguous findings prior to announcement. The
Court of Criminal Appeals, in turn, could not conduct a factual
sufficiency review of Appellant's conviction because the findings
of guilty and not guilty do not disclose the conduct upon which
each of them was based. Appellant has a substantial right to a
full and fair review of his conviction under Article 66(c) and
the ambiguity in the court-martial's findings results in material
5
While Rule for Courts-Martial 922 discussion indicates that the military
judge can seek clarification of ambiguous findings after announcement, this
type of verdict involves a dual finding of guilty and not guilty. Once
announced, the latter aspect of the verdict clearly becomes final and cannot
be reconsidered. See United States v. Boswell, 8 C.M.A. 145, 149, 23 C.M.R.
373, 377 (1957); R.C.M. 924(a). In order to avoid any uncertainty as to when
post-announcement "clarification" under R.C.M. 922 crosses the line into
prohibited "reconsideration" under R.C.M. 924, ambiguities in this type of
verdict should be resolved prior to announcement.
13
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prejudice to that right. See Article 59(a), UCMJ, 10 U.S.C. §
859(a) (2000).
Finally, the same unique character of the verdict that
precludes any factual sufficiency review also precludes any
rehearing in this matter. As conceded by the Government at
argument, the findings reflect Appellant's acquittal of all but
one of the alleged instances of ecstasy use and any rehearing on
those instances is clearly barred by double jeopardy principles.
As such, the inability to identify and segregate those instances
of alleged use of which Appellant was acquitted from the "one
occasion" that served as the basis for the guilty finding
effectively prevents any rehearing.
CONCLUSION
Accordingly, the decision of the Air Force Court of Criminal
Appeals is reversed. The finding of guilty of Charge I,
Specification 1 and the sentence are set aside. The Charge and
Specification are dismissed.
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CRAWFORD, Chief Judge (dissenting):
Appellant waived double jeopardy by appealing his
conviction, and thereby allowing the Government to begin its
case anew. Moreover, Appellant waived the issues of duplicity
and ambiguity by failing to object to duplicitous pleadings, the
judge’s misleading instruction to the members, and the ambiguous
verdict. This Court should not reward Appellant on grounds he
deliberately chose to ignore, and therefore waived. This Court
should return the case for rehearing to determine the specific
occasion on which Appellant used drugs.
The double jeopardy clause has a threefold purpose: “It
protects against a second prosecution for the same offense after
acquittal. It protects against a second prosecution for the
same offense after conviction. And it protects against multiple
punishments for the same offense.” North Carolina v. Pearce,
395 U.S. 711, 717 (1969). Certainly, the policy of avoiding
multiple trials is of paramount importance in the judicial
system.
Nevertheless, the Supreme Court has granted exceptions to
the one-trial rule, acknowledging that the defendant waives his
double jeopardy claim by appealing his conviction. United
States v. Wilson, 420 U.S. 332, 344 n.11 (1975); Green v. United
States, 355 U.S. 184, 189 (1957). To be sure, this principle
promotes the sound administration of justice.
United States v. Walters, No. 02-0874/AF
It would be a high price indeed for society to pay
were every accused granted immunity from punishment
because of any defect sufficient to constitute
reversible error in the proceedings leading to
conviction. From the standpoint of a defendant, it is
at least doubtful that appellate courts would be as
zealous as they now are in protecting against the
effects of improprieties at the trial or pretrial
stage if they knew that reversal of a conviction would
put the accused irrevocably beyond the reach of
further prosecution. In reality, therefore, the
practice of retrial serves defendants’ rights as well
as society's interest.
United States v. Tateo, 377 U.S. 463, 466 (1964). This
exception applies to this case. Appellant waived his right to a
double jeopardy claim by appealing his conviction, and cannot
now avoid a rehearing on double jeopardy grounds. See Sattazahn
v. Pennsylvania, 537 U.S. 101 (2003)(finding that where a
defendant is convicted of murder and sentenced to life
imprisonment, but appeals the conviction and succeeds in having
it set aside, double jeopardy does not bar death sentence on
retrial).
Moreover, notwithstanding the judge’s error, defense
counsel was obligated to be vigilant of potential error at
trial, and to object to such error so that it may be corrected
immediately. Rule for Courts-Martial 905(e)[hereinafter R.C.M.]
establishes that “[m]otions, requests, defenses, or objections,
except lack of jurisdiction or failure of a charge to allege an
offense, must be raised before the court-martial is adjourned
for that case and, unless otherwise provided in [the Manual for
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United States v. Walters, No. 02-0874/AF
Courts-Martial, United States (2002 ed.)], failure to do so
shall constitute waiver.” (Emphasis added.) The waiver doctrine
aims “to prevent defense counsel from remaining silent, making
no objection, and then raising the issue on appeal for the first
time, long after any possibility of curing the problem has
vanished.” United States v. Causey, 37 M.J. 308, 311 (C.M.A.
1993). Certainly, “[i]f an individual is permitted not to
object and then can raise the issue on appeal, both the parties
and the public are put to the expense of retrial.” United
States v. Jones, 37 M.J. 321, 323 (C.M.A. 1993).
R.C.M. 307(c)(4) requires that “[e]ach specification shall
state only one offense.” When a specification states more than
one offense, it is improperly duplicitous. See R.C.M. 906(b)(5)
and discussion. Yet, upon learning of his duplicitous charge of
drug use on “divers occasions,” Appellant failed to move for a
bill of particulars or to limit duplicitous pleadings. See
United States v. Paulk, 13 C.M.A. 456, 458, 32 C.M.R. 456, 458
(1963)(noting the need for particularization when pleadings are
duplicitous). He likely did so rather than running the risk of
the severance into several distinct specifications that could
have yielded an increased sentence. Moreover, a verdict must be
certain, definite, and free from ambiguity. United States v.
Dilday, 47 C.M.R. 172, 173 (A.C.M.R. 1973). Yet, upon hearing
the judge’s misleading instruction to the members, and the
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United States v. Walters, No. 02-0874/AF
resulting ambiguous verdict of drug use on “one occasion,”
Appellant failed to object. In short, because Appellant chose
to remain silent and exploit the benefits of the duplicitous
pleadings, misleading instruction, and ambiguous verdict, he
waived the issue on appeal.
It is significant that this Court has applied waiver when
defense counsel has failed at trial to raise the issue of an
unreasonable multiplication of charges. See United States v.
Butcher, 56 M.J. 87, 93 (C.A.A.F. 2001). In a multiplicity
context, there is strong incentive for defense counsel to
object, and therefore for the error to be resolved
expeditiously, as the accused may be subject to a greater
punishment were the multiplicitous charge to stand. On the
contrary, in a duplicity context, defense counsel may be
motivated not to object, as it is the duplicitous charge -- not
the amended, severed charge -- that would afford the accused a
more favorable sentence. If this Court will apply waiver in a
multiplicity context, it clearly should do so in a duplicity
context, where there is an even greater risk that the error will
survive the trial without resolution. In short, because
Appellant appealed his conviction, he cannot now avoid a
rehearing on double jeopardy grounds. Moreover, Appellant’s
deliberate silence at trial in the face of duplicitous
pleadings, the judge’s erroneous instruction, and an ambiguous
4
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verdict waived his opportunity to obtain relief on those
grounds. Accordingly, this Court should remand the case for
rehearing to determine on which occasion Appellant did use
drugs.
For these reasons, I respectfully dissent from the lead
opinion.
5