United States v. Shanks

OPINION OF THE COURT

What may be metaphorically described as a sneak reprisal attack in a miniature drug war at a military base has brought to this Court an appeal of a conviction of double murder. The court below, composed of officer members, found appellant guilty of conspiracy to commit murder, premeditated

murder of Zollie Richardson, murder without premeditation of Howard Steele, and communication of a threat.1 He was sentenced to a dishonorable discharge, confinement at hard labor for life, and forfeiture of all pay and allowances. The convening authority approved the sentence.

As noted, this case involves the most serious crimes of violence2 of which appellant has been convicted and sentenced to prison for the term of his natural life. For this reason, although we affirm the judgment of the trial court as approved by the convening authority, we feel compelled to discuss two matters extensively litigated at trial and assigned as errors by appellate defense counsel. These involve the evidentiary sufficiency of the findings of guilty of conspiracy and murder. The others, not discussed, we also find to be without merit.

I

The charged offenses arose out of the gangland-type slaying of Zollie Richardson and Howard Steele as their car moved along a deserted road in a remote area of Fort Polk, Louisiana. An autopsy revealed that Richardson had died as a result of three penetrating bullet wounds to the back of the head. Steele died as a result of two penetrating bullet wounds entering the left side of the head. No firearms were found in the car or on the bodies of the victims. Both were civilians who resided in the nearby town of DeRidder.

The Government concedes that Private Johnson, a Fort Polk soldier who pulled the trigger, was the actual perpetrator but insists the evidence establishes that appellant helped plan the crime and shared the same intent so as to support an aider and abettor theory. We agree and now summarize Government’s evidence presented at trial that, in our opinion, establishes appellant’s guilt of conspiracy and murder beyond a reasonable doubt.

*785II

Appellant and Johnson were threatened and forced at gun point by Richardson to purchase some “cocaine” that later proved to be pulverized salt. Enraged by Richardson’s arrogance and deception, both appellant and Johnson independently vowed to kill him.3 Consequently, when Richardson telephoned appellant to apologize for his corrupt behavior, appellant, by a “Judas kiss”4 pretense of pardon, accepted Richardson’s invitation to meet him on post where “now the man was coming to his house and the rules would be played differently.”5 Johnson and the appellant had also discussed by telephone Richardson’s impending visit. The appellant judicially admitted he told Johnson in the course of one such conversation that he would beat Richardson with a sledge hammer. Meanwhile, Johnson obtained a handgun from Specialist 4 Anthony Walker and arranged for an alibi for both himself and appellant. Later, in the presence of appellant, Johnson brandished the pistol and uttered threats to kill Richardson.6 Richardson arrived on post accompanied by an “associate” Howard Steele. Johnson, appellant, Richardson, and Steele got into Richardson’s car and together they drove away from the barracks area. A short while later, Johnson, sitting on the rear seat with appellant, summarily shot Richardson in the back of the head. Immediately thereafter, Johnson shot Steele. Simultaneously, appellant and Johnson jumped from the careening vehicle and fled to their quarters. In an effort to obtain Specialist Walker’s immediate assistance in disposing of the handgun, Johnson, in the presence of appellant, told him “that they had just blown two guys away.” Further efforts to conceal their crimes were made when Johnson threatened Private First Class Guyot, to which appellant nodded in agreement.7 And, when appellant told Private First Class Michael Walker he not only wanted Walker to provide an alibi, he greatly expanded its scope.8 Finally, the next day when Mrs. Menard, a fellow clinic employee, upon learning of the double murder and remembering appellant’s earlier threats, accused appellant of the crime, he turned pale and fled the hospital.

Ill

To us, these facts prove beyond a reasonable doubt that appellant and Private Johnson entered into a conspirational agreement. Both announced an intention to kill *786Richardson and the means by which it would be accomplished. Each participated in furthering the scheme, appellant lured Richardson on post while Johnson obtained the handgun. The two were constantly together from the time Richardson arrived until long after the murders were committed.9 This was more than “mere presence” on the part of appellant.10 He co-authored the machination and helped direct its grim production in a style reminiscent of Brutus and Cassius plotting the assassination of Julius Caesar in ancient Rome. He remained by Johnson’s side and assisted him in covering up the crimes. See United States v. Mesa, 660 F.2d 1070, 1074-5 (5th Cir. 1981). Moreover, when appellant was accused by Mrs. Menard of having committed the slayings, he did not then deny the accusation as any wrongfully accused person would normally do. Instead, he blanched and ran. His actions were not consistent with innocence, but on the contrary provided a compelling inference of being an aider and abettor and therefore a principal. Article 77(1), Uniform Code of Military Justice, 10 U.S.C. § 877(1); paragraph 156, Manual for Courts-Martial, United States, 1969 (Revised edition). See United States v. Dowell, 10 M.J. 36, 40 (C.M.A. 1980); United States v. Brown, 50 C.M.R. 594, 597 (A.C.M.R. 1975).

While it is clear that the object of the conspiracy between appellant and Johnson was to murder Richardson, appellant did not withdraw from the conspiracy when Steele unexpectedly arrived at the barracks with Richardson. Instead, they pursued their course of action. As a consequence, Johnson’s killing of Steele, apparently to prevent his identification of Richardson’s killers, was as a matter of law attributable to appellant. See Shockley v. United States, 166 F.2d 704, 715 n.6 (9th Cir. 1948).

The findings of guilty and the sentence are affirmed.

Judge MILLER and Judge LEWIS concur.