United States v. Haywood

DeFORD, Judge,

concurring in the result:

I agree that paragraph 26b of the Manual for Courts-Martial, United States, 1969 (Revised edition), provides that one transaction should not be made the basis for an unreasonable multiplication of charges. Multiplicious pleading is permitted only to meet the exigencies of proof.1

It has further been held that, upon timely objection, it is appropriate for the trial judge to dismiss a charge which duplicates another under these circumstances.2 However, failure to object to multiplicious charges and specifications can constitute a waiver of any error arising from such pleadings.3

It is established that multiplicious pleadings which result in findings must not be reflected in the sentence adjudged by the court-martial.4

*607Multiplicious pleading has by its nature the tendency to create a “bad man” image of an accused before the court in some cases. As noted, precedent has also established that the only purpose for allowing that form of pleading is to accommodate exigencies of proof. It therefore appears that multiplicious pleadings should only be permitted in those unusual circumstances where the prosecution can show that they are unable to anticipate the evidence that will be submitted to the court-martial, and the evidence submitted to the court establishes that reason remains for the multiplicious charges or specifications to continue to exist.5

Here the evidence adduced at trial showed that a single criminal act was committed by this appellant. That evidence was sufficient to sustain a finding of guilty on either specification 2 (transfer) or specification 3 (sale).

The trial defense counsel on two occasions moved the court to require the prosecution to elect which of the two foregoing specifications they would rely upon for conviction. The trial judge refused to grant the motion.6 I view the trial judge’s failure to grant the defense counsel’s motion to elect after all the evidence was before the court as error. The only evidence before the court was that a sale of marijuana had taken place. The issue of transfer was not raised except as it was a part of the alleged sale. Accordingly, as there no longer remained any exigencies of proof, the trial judge should have dismissed the transfer specification after the evidence was before the court but prior to the submission of the case to the finders of fact.

Testing the error for prejudice I find none. The trial judge was presiding over a special court-martial .in which the maximum punishment was limited by that court’s jurisdiction. In addition, the trial judge properly instructed the court that the offenses of which the appellant was found guilty were multiplicious for punishment purposes and represented a single criminal transaction and should be so considered for purposes of determining an appropriate punishment. Accordingly, I join the majority in affirming the appellant’s conviction of sale and possession of marijuana since they have ordered the transfer specification dismissed.

. Paragraph 26b, Manual for Courts-Martial, United States, 1969 (Revised edition); United States v. Williams, 18 U.S.C.M.A. 78, 39 C.M.R. 78 (1968); United States v. Middleton, 12 U.S.C.M.A. 54, 30 C.M.R. 30 (1960); United States v. Drexler, 9 U.S.C.M.A. 405, 26 C.M.R. 185 (1958); United States v. Croom, 1 M.J. 635 (A.C.M.R.1976).

. United States v. Williams, supra; United States v. Middleton, supra; United States v. Drexler, supra; United States v. Strand, 6 U.S.C.M.A. 297, 306, 20 C.M.R. 13, 22 (1955).

. United States v. Williams, supra; United States v. Middleton, supra.

. Id.

. It appears to me that fairness to the accused requires that his alleged wrongful acts be set forth before the court-martial that judges his case in a true light in accordance with the actual legal norms of which it is alleged he is in violation. Paragraph 74b (4) of the Manual would appear at first glance to authorize the opposite procedure. However, when that paragraph is read in conjunction with paragraph 76 a (5) and the numerous military decisions in the past 30 years concerning the court’s dissatisfaction with the Blockburger rule and its subsequent fragmentation by judicial caveat it becomes apparent that 74b (4) has been substantially undermined. Cf. United States v. Mabry, 2 M.J. 412 (A.C.M.R.1975), and cases cited therein.

Multiple charges arising from a single act and transaction have a tendency to confuse lay court members when they are required to make multiple findings on a single offense. I believe that sound judicial policy requires the trial judge to limit the finder of facts’ decisional responsibility to the actual issues which are raised by the charges and specifications and are supported by admissible evidence.

. Where the trial judge is advised by a motion to elect or he otherwise perceives that the prosecution’s case may be subject to conflicting theories such as occurred here, he should, after receipt of all evidence, require the prosecution to elect upon which of the conflicting charges or specifications they primarily are relying for conviction. If there is some evidence to support the secondary charges or specifications and the trial judge is satisfied that there is sufficient evidence to go to the finders of fact on both specifications, he should instruct the court that they may not convict the accused of both specifications. In such a case, he should have instructed them that they must first consider the primary specification and should consider the secondary specification only if they find insufficient proof that the accused committed the offense primarily relied upon by the Government for conviction. Cf. United States v. Gaddis, 424 U.S. 544, 96 S.Ct. 1023, 47 L.Ed.2d 222 (1976).