UNITED STATES, Appellant
v.
Leslie D. RILEY, Airman
U.S. Air Force, Appellee
Nos. 00-5003 & 98-0146
Crim. App. No. 32183
United States Court of Appeals for the Armed Forces
Argued November 14, 2000
Decided June 29, 2001
GIERKE, J., delivered the opinion of the Court, in which
EFFRON and BAKER, JJ., joined. CRAWFORD, C.J., and SULLIVAN, J.,
each filed an opinion concurring in part and dissenting in part.
Counsel
For Appellant: Captain James C. Fraser (argued); Colonel Anthony
P. Dattilo, Lieutenant Colonel Ronald A. Rodgers, Lieutenant
Colonel William B. Smith, and Major Lance B. Sigmon (on
brief).
For Appellee: Captain Karen L. Hecker (argued); Colonel Jeanne
M. Rueth, Lieutenant Colonel James R. Wise, Lieutenant
Colonel Timothy W. Murphy, and Major Stephen P. Kelly (on
brief).
Military Judge: Terence A. Curtin
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
United States v. Riley, Nos. 00-5003/AF and 98-0146/AF
Judge GIERKE delivered the opinion of the Court.
A general court-martial composed of officer and enlisted
members convicted Airman Riley (appellee) of unpremeditated
murder of her newborn baby, in violation of Article 118, Uniform
Code of Military Justice, 10 USC § 918. The adjudged and
approved sentence imposed a dishonorable discharge, confinement
for 25 years, total forfeitures, and reduction to the lowest
enlisted grade. The evidence on which the conviction was based
is set out in our previous opinion. 50 MJ 410, 411-13 (1999).
The Court of Criminal Appeals set aside appellee’s
conviction of unpremeditated murder on the ground that the
evidence was factually insufficient. It affirmed a lesser-
included offense of involuntary manslaughter by “refusing and
impeding assistance in the delivery and care of her child,” in
violation of Article 119, UCMJ, 10 USC § 919. The court
reassessed the sentence and affirmed the maximum imposable
sentence for involuntary manslaughter: dishonorable discharge,
confinement for 10 years, total forfeitures, and reduction to the
lowest enlisted grade. 47 MJ 603, 608, 610 (1997).
This Court reversed the decision below, holding that the
Court of Criminal Appeals erred by affirming a lesser-included
offense on a theory not presented to the trier of fact. However,
because it was not clear “whether that court also found the
evidence factually insufficient to support a conviction of a
lesser-included offense premised on negligent infliction of the
fatal injuries on the baby,” the case was remanded to the court
below “for clarification of its decision and reconsideration
under correct legal principles.” 50 MJ at 416.
2
United States v. Riley, Nos. 00-5003/AF and 98-0146/AF
The case was remanded to the same panel that decided the
case on initial review, but only one of the three appellate
military judges who participated in the original decision
remained on the panel. Upon further review after the remand, the
court below rejected an argument by the Government that it was
free to reinstate the conviction of unpremeditated murder. The
court stated that it “would welcome an opportunity to revisit
this Court’s previous conclusion that the appellant’s conviction
for unpremeditated murder was factually insufficient,” but it
concluded that it was precluded from doing so by the terms of the
remand. 52 MJ 825, 827 (2000).
However, the court below felt free to reconsider its
findings of fact pertaining to involuntary manslaughter. It held
that its earlier conclusion that “the evidence was insufficient
to establish the manner of death” was “clearly erroneous.” Id.
at 828. It found beyond a reasonable doubt that appellee stuffed
a paper towel into her baby’s mouth and applied force to the
baby’s skull in a gross and reckless manner. Based on its
reconsideration of the facts, the court below affirmed a
conviction of involuntary manslaughter by culpable negligence.
Id. at 829. The court then reassessed and affirmed the same
sentence. Id. at 830.
The Judge Advocate General of the Air Force then certified
the following issue:
WHETHER THE AIR FORCE COURT ERRED WHEN IT CONCLUDED THAT IT
LACKED THE POWER TO REVISIT ITS EARLIER FINDING THAT THE
EVIDENCE OF RECORD WAS FACTUALLY INSUFFICIENT TO SUPPORT
APPELLEE’S CONVICTION OF UNPREMEDITATED MURDER.
3
United States v. Riley, Nos. 00-5003/AF and 98-0146/AF
Although this Court did not formally grant a cross-petition,
it permitted Airman Riley to file additional pleadings in
response to the decision of the court below on remand. Those
additional pleadings raised three issues of law:
I
WHETHER, UPON A REMAND FROM THIS COURT, A COURT OF CRIMINAL
APPEALS MAY RECONSIDER AND CHANGE FINDINGS OF FACT FAVORABLE
TO THE DEFENSE, IF IT CONCLUDES ON RECONSIDERATION THAT ITS
EARLIER FINDINGS OF FACT WERE CLEARLY ERRONEOUS.
II
WHETHER THE COURT OF CRIMINAL APPEALS ERRED BY REASSESSING
AND AFFIRMING THE MAXIMUM IMPOSABLE PUNISHMENT FOR A LESSER-
INCLUDED OFFENSE, INSTEAD OF ORDERING A SENTENCE REHEARING.
III
WHETHER APPELLATE DEFENSE COUNSEL WERE INEFFECTIVE WHEN THEY
ADVISED APPELLEE THAT SHE COULD NOT LOSE THE BENEFIT OF THE
FAVORABLE DECISION OF THE COURT OF CRIMINAL APPEALS IF SHE
PETITIONED THIS COURT FOR REVIEW.
For the reasons set out below, we again remand this case to the
court below for clarification of its findings.
DISCUSSION
Certified Issue
Appellee contends, citing United States v. Crider, 22 USCMA
108, 46 CMR 108 (1973), that the Court of Criminal Appeals was
not free to reinstate her conviction of unpremeditated murder and
the original adjudged sentence. The Government asserts that
Crider has been effectively overruled by the Supreme Court in
Tibbs v. Florida, 457 U.S. 31 (1982). We hold that Crider was
not overruled by Tibbs, and that Crider is the controlling
precedent in this case. Accordingly, we answer the certified
question in the negative.
4
United States v. Riley, Nos. 00-5003/AF and 98-0146/AF
In Crider, a panel of the Court of Military Review reduced a
conviction of premeditated murder to unpremeditated murder. This
Court reversed the decision below on the ground that the judges
who decided the case should have recused themselves, and it
remanded the case for further review by another panel of the
court below. On further review by another panel, the Court of
Military Review affirmed the original conviction of premeditated
murder and the sentence affirmed by the original panel.
This Court began its analysis by stating a fundamental
principle: “assuming jurisdiction below, an accused cannot come
to harm by appealing here and securing a reversal of his
conviction.” 22 USCMA at 110, 46 CMR at 110. This Court stated
further that “an accused who obtains review here does not forgo
the right to beneficial action taken on his behalf by the Court
of Military Review when he secures reversal of that court’s
action.” Id. This Court then held that the first panel decision
by the Court of Military Review acquitted the accused of
premeditated murder by affirming only the lesser-included offense
of unpremeditated murder. This Court explained that Article
66(c), UCMJ, 10 USC § 866(c), “provides a de novo trial on the
record at [the] appellate level.” Finally, this Court held that
the accused was entitled to plead double jeopardy against any
attempt of the Court of Military Review to reinstate and affirm
the conviction of the greater offense. Id. at 111, 46 CMR at
111.
In Tibbs v. Florida, supra, the Supreme Court held that a
defendant was not subjected to double jeopardy when the Florida
Supreme Court reversed his convictions of murder and rape, set
5
United States v. Riley, Nos. 00-5003/AF and 98-0146/AF
aside his death sentence, and ordered a rehearing on the ground
that his convictions were legally sufficient but against “the
weight of the evidence.” Florida v. Tibbs, 337 So. 2d 788
(1976). The Florida Supreme Court acted pursuant to a state
procedure that required it to review a conviction where a death
sentence had been imposed to determine if “the interests of
justice require a new trial.” Id. at 790. The Florida court
relied on § 921.141(4) of the Florida Statutes and Florida
Appellate Rule 6.16(b). The statute provided simply that the
judgment of conviction and sentence of death shall be subject to
automatic review by the Supreme Court of Florida, and disposition
rendered within two years. The statute required that a capital
case “shall have priority over all other cases and shall be heard
in accordance with rules promulgated by the Supreme Court.”
Fla.App.Rule 6.16(b) provided that in a capital case, “the
appellate court shall review the evidence to determine if the
interests of justice require a new trial, whether the
insufficiency of the evidence is a ground of appeal or not.” The
Florida procedure did not empower the Supreme Court to set aside
the conviction and dismiss the charges, but only to order a new
trial.
We are not persuaded by the Government’s argument that
Crider was effectively overruled by Tibbs v. Florida. The
Florida procedure at issue in Tibbs is fundamentally different
from the appellate review provided by Article 66(c). Article
66(c) gives the Courts of Criminal Appeals factfinding power.
The legislative history of Article 66(c) makes it clear that
Congress intended to give an accused a de novo proceeding on the
6
United States v. Riley, Nos. 00-5003/AF and 98-0146/AF
merits and to empower the Courts of Criminal Appeals to acquit an
accused. This power of appellate acquittal is fundamentally
different from the Florida power to order a new trial.
We also disagree with the Government’s argument that Tibbs
is authority for permitting reinstatement of an offense of which
an accused was acquitted. The Florida procedure at issue in
Tibbs did not permit reinstatement of an offense of which the
defendant was acquitted. It merely offered a defendant a second
chance for acquittal. In our view, granting a new trial under
the Florida procedure at issue in Tibbs is more akin to a new
trial granted under Article 73, UCMJ, 10 USC § 873, and RCM 1210,
Manual for Courts-Martial, United States (2000 ed.), than it is
to the appellate acquittal authorized under Article 66(c). See
generally United States v. Brooks, 49 MJ 64 (1998).
For the above reasons, we hold that Crider was not overruled
by Tibbs. We further hold that reinstatement of appellee’s
conviction of unpremeditated murder and original sentence was
prohibited by this Court’s holding in Crider.
Finally, even if Crider were not the controlling law, our
decision in this case would not be affected, because we hold that
under the terms of this Court’s remand, the court below was not
permitted to reconsider its finding that the evidence of
unpremeditated murder was not factually sufficient. On a remand
from this Court, a Court of Criminal Appeals “can only take
action that conforms to the limitations and conditions prescribed
by the remand.” United States v. Montesinos, 28 MJ 38, 44 (CMA
1989). This Court remanded the case to clarify “whether that
court also found the evidence factually insufficient to support a
7
United States v. Riley, Nos. 00-5003/AF and 98-0146/AF
conviction of a lesser-included offense premised on negligent
infliction of the fatal injuries on the baby.” 50 MJ 416. A
mandate to clarify whether the evidence was insufficient to
support a lesser-included offense cannot reasonably be construed
to permit reinstatement of the greater offense.
Appellee’s Issue I: Reconsideration of Facts on Remand
Article 66(f) directs the Judge Advocates General to
prescribe uniform rules of procedure. Pursuant to this mandate,
they have promulgated Rule 19(a), which authorizes
reconsideration of decisions. It provides as follows:
The Court may, in its discretion and on its own
motion, enter an order announcing its intent to
reconsider its decision or order in any case not later
than 30 days after service of such decision or order on
appellate defense counsel or on the appellant, if the
appellant is not represented by counsel, provided a
petition for grant of review or certificate for review
has not been filed with the United States Court of
Appeals for the Armed Forces, or a record of trial for
review under Article 67(b) has not been received by
that Court.
44 MJ LXXI (emphasis added).
Article 67(e), UCMJ, 10 USC § 867(e), empowers this Court to
“direct the Judge Advocate General to return the record to the
Court of Criminal Appeals for further review in accordance with
the decision of the court.” In United States v. Lincoln, 42 MJ
315, 320 (1995), this Court stated: “If the findings [of a lower
court] are incomplete or ambiguous, the ‘appropriate remedy . . .
is a remand for clarification’ or additional findings. See
United States v. Kosek, 41 MJ 60, 64 (CMA 1994).”
Once appellee filed a petition for review by this Court, the
court below no longer had authority under its Rule 19 to
reconsider its findings of fact. We need not decide whether the
8
United States v. Riley, Nos. 00-5003/AF and 98-0146/AF
court had inherent authority, apart from Rule 19, to reconsider
its decision, because the lower court’s decision on further
review exceeded the scope of the remand. For the same reason, we
need not decide whether reconsideration of findings of fact that
a reconstituted panel composed of only one of the three judges
who made the initial findings of fact violated United States v.
Chilcote, 20 USCMA 283, 43 CMR 123 (1971).∗
The mandate of this Court was to clarify ambiguous findings.
A mandate to clarify a finding that the evidence was insufficient
to establish the manner of death does not encompass overturning
that finding and substituting specific findings that appellee
stuffed a paper towel into the baby’s mouth and applied force to
the baby’s skull.
On the appellate record before us, we cannot reliably
determine whether the court below would have found the evidence
factually insufficient to support involuntary manslaughter by
culpable negligence if it had limited itself to clarification
instead of overturning its earlier findings of fact. Thus, we
must again remand the case for clarification.
∗
In Chilcote, this Court traced the legislative history of
Article 66, including the concern of the drafters about
preventing the Judge Advocate General from referring an
unfavorable panel decision to another panel for reconsideration.
This Court held that en banc reconsideration of a panel decision
was not authorized. In response to the Chilcote decision,
Article 66 was amended to specifically authorize en banc
reconsideration of a panel decision, but it does not authorize
reconsideration by one panel of another panel’s decision.
9
United States v. Riley, Nos. 00-5003/AF and 98-0146/AF
Appellee’s Issue II: Sentence Reassessment
In its initial review, the court below was “convinced that,
based on the circumstances of this case, the members would have
adjudged the maximum available punishment” for involuntary
manslaughter. 47 MJ at 609. On further review, the court
concluded, without citation of authority, that its original
reassessment criteria were incorrect. The court explained:
When we substitute our judgment on findings for those of the
court members, it makes no sense to try to determine what
the court members would have done had they come to the same
conclusion as we did. We believe under these circumstances,
it is appropriate to reassess the sentence on our own.
The court then affirmed the same sentence. 52 MJ at 830.
When prejudicial error occurs at trial, the Court of
Criminal Appeals may reassess the sentence instead of ordering a
rehearing if the court is convinced that the sentence “would have
been at least of a certain magnitude.” United States v. Sales,
22 MJ 305, 307 (CMA 1986). A sentence rehearing must be ordered
if the court “cannot reliably determine what sentence would have
been imposed at the trial level if the error had not occurred.”
Id.
In its opinion on further review, the court below
distinguished between legal and factual sufficiency of the
evidence in determining how to reassess the sentence. 52 MJ at
830. In our view, the distinction between legal and factual
sufficiency does not change the rules for reassessment. We hold
that if a Court of Criminal Appeals determines that a finding of
guilty should not be affirmed, that determination means that the
appellant has been wrongly convicted and is entitled to sentence
reassessment under the principles announced in Sales.
10
United States v. Riley, Nos. 00-5003/AF and 98-0146/AF
Because the court below declined to reassess the sentence in
accordance with the Sales guidance, we must set aside its
reassessment as an abuse of discretion. United States v. Jones,
39 MJ 315, 317 (CMA 1994). In light of the lower court’s
conclusion that it could not reliably determine what sentence
would have been imposed at the trial level absent the error, we
will require a sentence rehearing if the court below affirms any
finding of guilty. See Sales, 22 MJ at 307.
Appellee’s Issue III: Ineffective Representation
The premise for this issue was an assumption that counsel
had misadvised appellee about the consequences of petitioning
this Court for review. In light of our decision regarding the
Certified Issue and Appellee’s Issue I, this issue is moot.
DECISION
The decision of the United States Air Force Court of
Criminal Appeals on further review is reversed. The record of
trial is returned to the Judge Advocate General of the Air Force
for remand to the Court of Criminal Appeals for reconsideration
and clarification of its decision, based on the facts as found by
the court below on its initial review and the terms and
limitations of our prior remand. If the court below affirms a
conviction of any offense, it will order a sentence rehearing.
11
United States v. Riley, No. 98-0146/AF, No. 00-5003/AF
CRAWFORD, Chief Judge (concurring in part and dissenting in
part):
I agree with the majority that Tibbs v. Florida, 457 U.S.
31 (1982), did not overrule United States v. Crider, 22 USCMA
108, 46 CMR 108 (1973), and that Crider is the controlling
precedent in this case. Accordingly, we have properly answered
the certified question in the negative.
Also, I join the majority in remanding this case to the
Court of Criminal Appeals. The court below failed to act within
the scope of our previous mandate and to clarify its holding
based on the ambiguous facts of record.
Our previous mandate permits a reevaluation of the evidence
supporting the Government’s theory of guilt. See, e.g., Pros.
Ex. 37. This mandate did not permit reinstatement of a
previously set aside conviction, or substitution of a finding of
guilty barred on due process grounds. The Court of Criminal
Appeals was simply required to make clear its specific findings
of fact based on the evidence of record. In this regard, I join
Judge Sullivan’s concurrence. Clarification of a holding or
judgment permits a court to conform the judgment to the facts,
so that it speaks the truth. Truth-finding within
constitutional, statutory, and ethical considerations remains
the essential purpose of any trial. See Nix v. Whiteside, 475
United States v. Riley, No. 98-0146/AF, No. 00-5003/AF
U.S. 157, 174 (1986); United States v. Johnston, 41 MJ 13, 16
(CMA 1994). Accordingly, another remand is necessary to clarify
and evaluate the facts based on the theory of guilt espoused by
the Government at appellant’s court-martial.
Finally, while I agree that sentence reassessment is
necessary, I disagree with the majority’s declaration that a
second reassessment by the Court of Criminal Appeals in this
case is not practicable. The appellate history of this court-
martial points to the fact that reconsideration on remand should
be undertaken by a panel of the court that has never been
involved in any previous fact-finding. If this case is remanded
to judges who have had no previous involvement, and who never
espoused an inability to reassess the sentence under the
guidelines of United States v. Sales, 22 MJ 305 (CMA 1986), then
there is no necessity for that panel to abstain from performing
a sentence reassessment.
2
United States v. Riley, 00-5003/AF & 98-0146/AF
SULLIVAN, Judge (concurring in part and dissenting in part):
Appellant was charged with the premeditated murder of her
baby (Article 118(1), UCMJ, 10 USC § 918(1)), but the members
found her guilty of the unpremeditated murder of this newborn.
Article 118 (2), UCMJ. The Court of Criminal Appeals, in its
first decision in this case, set aside appellant’s conviction for
unpremeditated murder based on the factual insufficiency of the
evidence of her intent to kill. 47 MJ 603 (1997). It affirmed a
conviction of a lesser offense of involuntary manslaughter, in
violation of Article 119, UCMJ, 10 USC § 919, based on her
culpably negligent conduct in obstructing medical care for her
child. We set aside that finding of guilty on legal grounds
because the particular prosecution theory on which the appellate
court found involuntary manslaughter was not submitted to the
military jury. See United States v. Standifer, 40 MJ 440, 445
(CMA 1994).
Our prior opinion remanding this case (50 MJ 410 (1999)) did
not suggest that the lower appellate court could reconsider
appellant’s guilt of premeditated murder under Article 118(1),
UCMJ, or unpremeditated murder under Article 118(2), UCMJ.
However, we did permit reconsideration of appellant’s guilt of
involuntary manslaughter or negligent homicide. We stated:
It is not clear, however, whether that
court [the Court of Criminal Appeals] also
United States v. Riley, 98-0146, 00-5003/AF
found the evidence factually insufficient
to support a conviction of a lesser-
included offense premised on negligent
infliction of the fatal injuries on the
baby. Accordingly, we will remand the
case to the court below for clarification
of its decision and reconsideration under
correct legal principles.
50 MJ at 416.
Since the appellate court below had previously approved a finding
of guilty to involuntary manslaughter under Article 119(b)(1),
UCMJ, and we set it aside on the basis of legal error, a retrial
on this offense and lesser-included offenses was permitted. See
Article 67(d), UCMJ, 10 USC § 867(d). The lower court’s present
findings of guilty to involuntary manslaughter based on a
different theory of culpable negligence did not per se violate
our remand order. 52 MJ 825 (2000).
The prior opinion of this Court also did not prohibit the
appellate court below from reconsidering the evidence in this
case and making specific findings of fact supporting a finding of
killing by culpable negligence or simple negligence. The premise
of our earlier remand was that no clear findings as a matter of
fact and law could be discerned on these issues. (What factually
happened, and did it constitute culpable or simple negligence?)
In particular, there were no findings of fact in this case by the
appellate court below that appellant did not stuff a paper towel
into her baby’s mouth and apply force to the baby’s skull in a
certain manner.
2
United States v. Riley, 98-0146, 00-5003/AF
The majority opines that the appellate court below erred in
making new findings of fact in this case to support a finding of
guilty to a lesser-included offense of involuntary manslaughter.
It states:
The mandate of this Court was to clarify
ambiguous findings. A mandate to clarify
a finding that the evidence was
insufficient to establish the manner of
death does not encompass overturning that
finding and substituting specific findings
that appellee stuffed a paper towel into
the baby’s mouth and applied force to the
baby’s skull.
___ MJ at (9) (emphasis added).
As noted above, we previously concluded that the appellate
court below in its initial opinion did not make such a finding,
and it only held that “the evidence [was] factually insufficient
to support a conviction of unpremeditated murder.” 50 MJ at 416.
Moreover, if the majority’s new expansive view of the lower
court’s first holding is correct, this case should not have been
remanded to the Court of Criminal Appeals in the first place.
This is because both lesser-included offenses require proof that
appellant’s negligence caused the victim’s death, which could not
exist if the manner of death cannot be determined. See paras.
44b(2)(b) and 85b(2), Part IV, Manual for Courts-Martial, United
States (2000 ed.).
3
United States v. Riley, 98-0146, 00-5003/AF
Nevertheless, the Court of Criminal Appeals did not properly
affirm a finding of guilty for involuntary manslaughter under
Article 119(b)(1), UCMJ. Our remand order also stated:
Reconsideration must be consistent with
our holding that culpability based on the
withholding of medical care, either
intentionally or negligently, was never
submitted to the trier of fact and thus is
precluded as a basis for affirmance, as a
matter of due process.
50 MJ at 416. The appellate court below affirmed this case on
the basis of another theory of guilt not actively pursued at
trial by the prosecution, i.e., “appellant stuffed a paper towel
in her baby’s mouth to muffle any cries and then applied force to
the skull of her infant in a gross and reckless manner which,
when viewed in the light of human experience, might forseeably
result in the infant’s death.” 52 MJ at 829. Accordingly, for
the same reason the lower court’s earlier affirmance of
involuntary manslaughter was previously reversed, we must reverse
again. See 50 MJ at 415-16.
Accordingly, once again, I agree that a remand in this case
is warranted to make clear the findings of the appellate court
below. It should consider whether particular lesser-included
offenses occurred, either involuntary manslaughter under Article
119(b)(1), UCMJ, or negligent homicide under Article 134, UCMJ,
10 USC § 934, based on the negligent birthing theory of guilt
espoused by prosecution at trial. (R. 539, 551, 555)
4