Opinion here. Absent any further developments in the case, this will reduce the number of servicemembers on military death row to five.
Senior Judge Maksym wrote for a unanimous panel.
NMCCA held, inter alia, that “the trial judge erred to the material prejudice of the appellant’s substantial rights in failing to sever the LCpl Page and LCpl James killings into two trials or, in the alternative, by failing to instruct the members on spillover and its inherent dangers.”
NMCCA also concluded that it wasn’t convinced beyond a reasonable doubt that LCpl Parker murdered LCpl James. The court explained, “without more, the circumstantial evidence placing the appellant with LCpl Walker that night cannot support a determination that the appellant killed LCpl James beyond a reasonable doubt.”
NMCCA also held that the military judge erred in his admission of 404(b) evidence that LCpl Parker had bragged of making a drive-by shooting at a passing car in Philadelphia with an AK-47. NMCCA concluded that this error was prejudicial as to the offenses involving LCpl James as a victim.
NMCCA also found that convictions for Article 134 offenses that didn’t allege a terminal element must be reversed pursuant to Fosler. In this section of the opinion, NMCCA notes its handling of the Article 134 convictions from Parker’s companion case of United States v. Walker, 71 M.J. 523 (N-M. Ct. Crim. App. 2012), but doesn’t appear to note that that portion of its opinion was reversed by CAAF. United States v. Walker, __ M.J. __, No. 12-0410/MC (C.A.A.F. Jul. 16, 2012). But NMCCA nevertheless finds plain error in LCpl Parker’s conviction of Article 134 specifications that failed to allege the terminal element.
NMCCA concluded its opinion by setting aside the death sentence and affiming a sentence of confinement for life, total forfeiture of pay and allowances, reduction to E-1, and a DD.
As NMCCA notes in its opinion, it took the court more than 19 years to decide LCpl Parker’s initial direct appeal.