UNITED STATES, Appellee
v.
William C. THOMPSON, Private
U.S. Marine Corps, Appellant
No. 08-0334
Crim. App. No. 200600807
United States Court of Appeals for the Armed Forces
Argued November 18, 2008
Decided January 5, 2009
PER CURIAM
Counsel
For Appellant: Major Richard D. Belliss, USMC (argued);
Lieutenant Colonel Richard R. Posey, USMC (on brief).
For Appellee: Major James W. Weirick, USMC (argued); Commander
Paul C. LeBlanc, JAGC, USN, Lieutenant Derek D. Butler, JAGC,
USN (on brief); Brian K. Keller, Esq.
Military Judge: J. M. Schum
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Thompson, No. 08-0334/MC
PER CURIAM:
After entering mixed pleas, Appellant was convicted by a
general court-martial composed of officer and enlisted members
of one specification of absence without leave, one specification
of disobeying an officer, one specification of assault, one
specification of breaking restriction, one specification of
possessing child pornography, and one specification of
kidnapping in violation of Articles 86, 90, 128 and 134, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. §§ 886, 890, 928, and
934 (2000). Consistent with his pleas, he was found not guilty
of one specification of rape and three specifications of assault
in violation of Articles 120 and 128, UCMJ, 10 U.S.C. §§ 920,
928 (2000). Appellant was sentenced to a dishonorable
discharge, confinement for seven years, and forfeiture of all
pay and allowances. The convening authority disapproved
confinement in excess of five years but approved the rest of the
sentence as adjudged. The United States Navy-Marine Corps Court
of Criminal Appeals (CCA) amended the kidnapping specification
to the offense of reckless endangerment in violation of Article
134, UCMJ, 10 U.S.C. § 934 (2000) and reassessed the sentence to
a bad-conduct discharge, confinement for three years, and
forfeiture of all pay and allowances. United States v.
2
United States v. Thompson, No. 08-0334/MC
Thompson, No. NMCCA 200600807 (N-M. Ct. Crim. App. Dec. 11,
2007).1 We granted review of the following issues:
WHETHER THE LOWER COURT ERRED IN HOLDING THAT, EVEN IF THE
MILITARY JUDGE ERRED IN DENYING THE DEFENSE MOTION TO
SUPPRESS APPELLANT’S CONFESSION TO INVESTIGATOR AR, THE
ERROR WAS HARMLESS BEYOND A REASONABLE DOUBT.
WHETHER THE LOWER COURT ERRED TO THE SUBSTANTIAL PREJUDICE
OF APPELLANT BY SUBSTITUTING ITS FINDING OF GUILT TO
RECKLESS ENDANGERMENT UNDER ARTICLE 134, UCMJ, FOR THE
COURT-MARTIAL’S FINDING OF GUILT AS TO THE OFFENSE OF
KIDNAPPING AS PLED UNDER CHARGE V, SPECIFICATION 2.
FACTS
Appellant’s charges primarily resulted from events
surrounding his tumultuous, and often violent, relationship with
his wife. The facts relevant to the granted issues are few.
The Government placed Appellant in pretrial confinement for
alleged violations of Article 86, UCMJ, (absence without leave)
and Article 92, UCMJ, (failure to obey) and provided Appellant
with detailed counsel for his defense at a subsequent IRO
hearing. Several weeks later, Criminal Investigation Division
Investigator AR questioned Appellant regarding altercations with
his wife without notifying Appellant’s detailed military
counsel. Appellant signed a waiver form indicating that he was
aware of his rights, including the right to have his detailed
counsel present, and gave a six page sworn confession in which
he admitted a litany of misconduct.
1
The lower court mistakenly stated that the Appellant’s sentence
included a reduction to pay grade E-1.
3
United States v. Thompson, No. 08-0334/MC
Prior to trial, defense counsel moved to suppress the
confession, and it appears that the military judge denied the
motion without issuing findings of fact or conclusions of law.
At trial, the prosecution used the confession to refresh
Investigator AR’s memory while questioning him about Appellant’s
statements during the interrogation; the confession itself was
not admitted into evidence. During cross-examination of the
same investigator, defense counsel proffered a redacted form of
the confession that the military judge admitted as evidence.
Neither the statements of Appellant, as relayed to the panel by
Investigator AR, nor the contents of the redacted confession
admitted at the behest of the defense, provided proof of a
contested charge that ultimately resulted in a guilty verdict by
the panel.
DISCUSSION
A.
We review de novo whether a constitutional error in
admitting evidence at trial was harmless. United States v.
Hall, 58 M.J. 90, 94 (C.A.A.F. 2003) (citing Arizona v.
Fulminante, 499 U.S. 279, 295-96 (1991)). “‘Before a federal
constitutional error can be held harmless, the court must be
able to declare a belief that it was harmless beyond a
reasonable doubt.’” United States v. Moran, 65 M.J. 178, 187
(C.A.A.F. 2007) (quoting Chapman v. California, 386 U.S. 18, 24
4
United States v. Thompson, No. 08-0334/MC
(1967)). If “‘there is a reasonable possibility that the
evidence [or error] complained of might have contributed to the
conviction,’” then the constitutional error was not harmless
beyond a reasonable doubt. Id. (quoting Chapman, 386 U.S. at
24).
The CCA assumed, without deciding, that Appellant’s
confession was obtained in violation of his Fifth Amendment
right to counsel, but found that the error was harmless beyond a
reasonable doubt. Thompson, No. NMCCA 200600807, at *8-*9.
When determining whether a constitutional error is harmless, an
appellate court should review the entire record. See Milton v.
Wainwright, 407 U.S. 371, 372-78 (1972) (performing an
“examination of the extensive record of petitioner’s [] trial”
to conclude that any error in the admission of the petitioner’s
pretrial confession was harmless beyond a reasonable doubt).
The CCA examined “all of the circumstances,” noted that “none of
the admissions made by the appellant in his confession relate to
any of the offenses of which members found him guilty,” and
found that any error was harmless beyond a reasonable doubt.
Thompson, No. NMCCA 200600807, at *8-*9. After reviewing the
entire record, and assuming it was error for the military judge
to deny Appellant’s motion to suppress the confession, an issue
not before us, we agree that any such error was harmless beyond
a reasonable doubt.
5
United States v. Thompson, No. 08-0334/MC
Appellant was charged with five specifications of assault
against his wife, one of which was dismissed.2 The redacted
confession contained a general statement from Appellant that he
“pushed,” “grabbed,” and “shouted at” his wife and specifically
referenced the conduct underlying two of the four remaining
assault charges. Despite Appellant’s statements, the court-
martial found Appellant not guilty of the two assaults mentioned
in the redacted confession.3 Of the final two assault
specifications, neither of which was mentioned in Appellant’s
statement, the court-martial found Appellant guilty of only one.4
In regard to other charged conduct, although Appellant’s
redacted confession included statements regarding his absence
without leave and his breaking restriction, Appellant pleaded
guilty to both of these offenses, and he does not suggest that
the military judge’s failure to suppress his confession
compelled his guilty pleas. While Appellant pleaded not guilty
to willfully disobeying an officer and possessing child
pornography and was found guilty of those offenses by the court-
martial, no statement related to either offense was contained in
2
Additional Charge II, Specification 2 (assault on 9 January
2005).
3
Additional Charge I, Specification 1 (assault on 12 December
2004); Additional Charge I, Specification 2 (assault on 14 July
2004).
4
Additional Charge II, Specification 1 (assault on 16 May 2004).
6
United States v. Thompson, No. 08-0334/MC
the redacted confession.5 Moreover, the military judge gave the
appropriate limiting instruction on the use of uncharged
misconduct and the proper spillover instruction regarding
evidence of multiple charges. See United States v. Jenkins, 54
M.J. 12, 20 (C.A.A.F. 2000) (noting that panel members are
presumed to follow a military judge’s instructions).
Based on the above, we affirm the lower court’s ruling that
even if the military judge erred in denying the defense motion
to suppress Appellant’s confession, the error was harmless
beyond a reasonable doubt.
B.
At trial, the members found Appellant guilty of the charge
and specification of kidnapping.6 On appeal, the CCA found the
evidence of kidnapping factually and legally insufficient
5
The only remaining charge for which the panel could have
considered Appellant’s redacted confession to find guilt -- the
kidnapping charge –- is mooted, as that charge, as modified by
the CCA, is now dismissed. See Part B infra.
6
The elements of Article 134, UCMJ, kidnapping are:
(1) That the accused seized, confined, inveigled, decoyed,
or carried away a certain person;
(2) That the accused then held such person against that
person’s will;
(3) That the accused did so willfully and wrongfully; and
(4) That, under the circumstances, the conduct of the
accused was to the prejudice of good order and discipline
in the armed forces or was of a nature to bring discredit
upon the armed forces.
Manual for Courts-Martial, United States pt. IV, para. 92.b
(2005 ed.) (MCM).
7
United States v. Thompson, No. 08-0334/MC
because the detention was de minimis. Thompson, No. NMCCA
200600807, at *6-*7. The lower court then affirmed a conviction
to reckless endangerment as an offense “closely related” to the
offense of kidnapping.7 A comparison of the elements of the two
offenses reveals that a conviction for reckless endangerment
requires proof of elements that are not included in a
specification for kidnapping. Compare MCM pt. IV, para 100a.b
(2005 ed.) with MCM pt. IV, para 92.b (2005 ed.) (requiring
proof that the accused’s conduct was wrongful and reckless or
wanton and that the conduct was likely to produce death or
grievous bodily harm to another person to convict the accused of
reckless endangerment).
The Government concedes, and we agree, that the
substitution was improper. Reckless endangerment is not an
offense necessarily included in the offense of kidnapping. See
Article 79, UCMJ, 10 U.S.C. § 879 (2000) (governing conviction
of lesser included offenses).
7
The elements of Article 134, UCMJ, reckless endangerment are:
(1) That the accused did engage in conduct;
(2) That the conduct was wrongful and reckless or wanton;
(3) That the conduct was likely to produce death or
grievous bodily harm to another person; and
(4) That, under the circumstances, the conduct of the
accused was to the prejudice of good order and discipline
in the armed forces or was of a nature to bring discredit
upon the armed forces.
MCM pt. IV, para. 100a.b (2005 ed.).
8
United States v. Thompson, No. 08-0334/MC
DECISION
That portion of the decision of the United States Navy-
Marine Corps Court of Criminal Appeals affirming a conviction of
reckless endangerment under Article 134, UCMJ, and reassessing
the sentence is reversed. The amended finding as to
Specification 2 of Charge V is set aside. The decision is
affirmed as to the remaining findings. The record is returned
to the Judge Advocate General of the Navy for remand to the
Court of Criminal Appeals to reassess Appellant’s sentence in
light of this Court’s action on the reckless endangerment
specification or to order a rehearing.
9