United States v. Chambers

A military judge sitting as a general court-martial found the appellant guilty, pursuant to his pleas, of drunken driving resulting in injury and negligent homicide in violation of Articles 111 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 911 and 934. The appellant was sentenced to confinement for 18 months, forfeiture of all pay and allowances, and reduction to pay grade E-1. The convening authority approved the sentence as adjudged, but in accordance with the terms of a pretrial agreement, he suspended all confinement in excess of one year.

Having carefully considered the record of trial, the appellant’s assignment of error, and the Government’s response, we conclude that except as noted below, the findings and sentence are correct in law and fact and that no error materially prejudicial to the substantial rights of the appellant was committed. See Arts. 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a) and 866(c).

Facts

After staying up all night, drinking and celebrating the birthday of his good friend, Steel Worker Third Class (SW3) Anderson, USN, the appellant drove his truck from New Orleans, Louisiana toward Bay St. Louis, Mississippi. SW3 Anderson was his only passenger. About an hour later, the *835appellant fell asleep at the wheel. His truck hit a guardrail on the left side of the road, moved across three lanes and hit a concrete wall on the right, flipped over, and slid on its side for some distance. SW3 Anderson was partially ejected and dragged underneath the truck. He later died of severe head trauma. The appellant was uninjured. Neither the appellant nor SW3 Anderson was wearing a seat belt. A breathalyzer administered to the appellant at the police station several hours after the accident revealed that he had a 0.191 blood alcohol content. At trial, the appellant entered unconditional guilty pleas to drunken driving resulting in injury and negligent homicide. The language at the end of both specifications indicated that the appellant operated his vehicle in such a manner as to “fatally injure” SW3 Anderson.

Multiplicity/Unreasonable Multiplication of Charges

In his assignment of error, the appellant contends that his convictions for drunken driving and negligent homicide were multiplicious, or in the alternative, an unreasonable multiplication of charges. The Government argues that the offenses were separate.

Normally, unconditional guilty pleas waive a multiplicity issue.1 United States v. Heryford, 52 M.J. 265, 266 (2000). However, where the specifications are facially duplicative, waiver does not occur. United States v. Lloyd, 46 M.J. 19, 20 (1997). In this case, based on the language contained within the specifications and the facts apparent on the face of the record, we find that the specifications are facially duplicative and that the issue has not been waived.

The appellant may not be convicted and punished for two offenses where the elements of one are necessarily included in the elements of the other. United States v. Britton, 47 M.J. 195, 197 (1997); United States v. Oatney, 45 M.J. 185, 188-89 (1996); United States v. Foster, 40 M.J. 140, 142-43 (C.M.A. 1994); United States v. Teters, 37 M.J. 370, 376-77 (C.M.A. 1993); Rule for Courts-Martial 307(c)(4) and 907(b)(3), Manual for Courts-Martial, United States (1998 ed.), Discussion. Applying this elements test to the drunken driving and negligent homicide offenses, we find that each of these offenses requires proof of an element not included by the other. Drunken driving requires that an accused operate a vehicle and that his blood alcohol concentration be 0.10 or greater. Manual for Courts-Martial, United States (1998 ed.), Part IV, ¶ 35b. Neither of these elements is included in negligent homicide. MCM, Part IV, ¶ 85b. Negligent homicide requires that a death result from the accused’s negligence. Although injury to a victim can be included as an aggravating element of drunken driving,2 as it was in this case, neither a fatality nor an injury is required to support a drunken driving conviction. Compare Art. 111, UCMJ, with MCM, Part IV, ¶ 35b. Consequently, because each offense requires proof of an additional element that the other does not, drunken driving and negligent homicide are not multiplicious.3 Oatney, 45 M.J. at 188-89. This is true even though the appellant’s drunken driving was the means by which he committed negligent homicide. Id.; see also Teters, 37 M.J. at 376.4

The appellant cites four cases to support his contention that the offenses are multipli*836cious.5 All of these cases, however, were decided prior to the establishment of the elements test for multiplicity. Teters, 37 M.J. at 377. We now hold that drunken driving and negligent homicide are not multiplieious, even though they may stem from the same occurrence.

The issue of unreasonable multiplication of charges is more problematic. By charging the fatality as an aggravating element of the drunken driving offense, the Government added an additional year of confinement to the overall maximum punishment.6 MCM, Part IV, ¶ 35e. This fatality, however, had already been included in the maximum punishment through the negligent homicide offense.7 Because the double charging of the fatality unfairly increased the appellant’s criminal exposure, we conclude that there was a partial unreasonable multiplication of charges. We will take corrective action in our decretal paragraph by excising the injury element from the drunken driving offense.8 See United States v. Quiroz, 53 M.J. 600 (N.M.Ct.Crim.App. 2000)(en banc), certificate for review filed, 53 M.J. 256 (2000).

Conclusion

Accordingly, we except the words, “and did thereby cause said vehicle to fatally injure Steel Worker Third Class Jeffrey W. Anderson, U.S. Navy,” from Specification 2 of Charge I. The excepted words are dismissed. Subject to those exceptions, we affirm the findings. We have reassessed the sentence under the principles contained in United States v. Cook, 48 M.J. 434, 437-38 (1998), United States v. Peoples, 29 M.J. 426, 427-29 (C.M.A. 1990), and United States v. Sales, 22 M.J. 305, 307-08 (C.M.A. 1986). Having done so, we affirm the sentence as approved on review below.

Chief Judge LEO and Judge PRICE concur.