UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                          CAMPANELLA, SALUSSOLIA, and WEIS 1
                               Appellate Military Judges

                              UNITED STATES, Appellee
                                           v.
                             Sergeant JOHN M. RUSSELL
                             United States Army, Appellant

                                     ARMY 20130463

                                 Headquarters, I Corps
                             David L. Conn, Military Judge
               Colonel William R. Martin, Staff Judge Advocate (pretrial)
              Colonel Randall J. Bagwell, Staff Judge Advocate (post-trial)

For Appellant: Lieutenant Colonel Melissa R. Covolesky, JA; Major Andres
Vazquez, Jr., JA; Captain Scott A. Martin, JA (on brief); Lieutenant Colonel
Christopher D. Carrier, JA; Major Brendan R. Cronin, JA; Captain Benjamin A.
Accinelli, JA (on brief in response to specified issues).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III,
JA; Major Michael E. Korte, JA; Lieutenant Colonel Karen J. Borgerding, JA (on
brief); Colonel Tania M. Martin, JA; Lieutenant Colonel Eric K. Stafford, JA; Major
Michael E. Korte, JA; Lieutenant Colonel Karen J. Borgerding, JA (on brief in
response to specified issues).


                                    28 September 2017
                                -----------------------------------
                                  OPINION OF THE COURT
                                -----------------------------------

WEIS, Judge:

      We hold that the military judge’s comments prior to announcing appellant’s
sentence did not demonstrate he considered inappropriate matters for sentencing.

       A military judge sitting as general court-martial convicted appellant, contrary
to his pleas, of attempted premeditated murder and five specifications of
premeditated murder, in violation of Articles 80 and 118, Uniform Code of Military
Justice, 10 U.S.C. §§ 880, 918 (2006) [hereinafter UCMJ]. The military judge found

1
    Judge WEIS took final action in this case while on active duty.
RUSSELL—ARMY 20130463

appellant guilty, pursuant to his plea, of aggravated assault, in violation of Article
128, UCMJ. 2 The convening authority approved the adjudged sentence of a
dishonorable discharge, confinement for life without the possibility of parole, and
reduction to the grade of E-1.

       This case is before us for review pursuant to Article 66, UCMJ. Appellant
raised two assignments of error, one of which led this court to specify an additional
issue regarding whether remarks by the military judge immediately prior to
announcing the sentence demonstrated he considered inappropriate matters for
sentencing. The specified issue merits discussion, but no relief. Appellant also
raised issues pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982),
which we find lack merit.

                                   BACKGROUND

      While deployed to Iraq, appellant fatally shot five service members at the
Camp Liberty Combat Stress Clinic (CSC). Appellant suffered from mental illness
and was seen by several mental health practitioners during the days immediately
preceding the offenses.

      Ten days prior to the offenses, a subordinate soldier accused appellant of
making an inappropriate sexual remark. Appellant’s officer-in-charge (OIC)
informally counseled appellant with a warning. The next morning, appellant
responded by acting in an aggressive and disrespectful manner toward the OIC. Due
to concerns as to mental health issues, the OIC deferred any disciplinary
consideration until appellant could be evaluated by a mental health provider.

       Eight days before the offenses, appellant again confronted his OIC and
accused him of “stab[ing him] in the back” by providing him additional
responsibilities, only to set him up for failure. Appellant had previously requested
greater responsibilities for career development. By this juncture, appellant
perceived a conspiracy by the unit to remove him from the Army.

       Four days before the offenses, appellant was seen by a psychologist and a
psychiatric nurse at the CSC. After this meeting, appellant told his OIC the
appointment was one of the worst experiences of his life and he never wanted to
return to the CSC. Appellant believed the practitioners had not taken him seriously
and failed to realize he needed help. The command, concerned with appellant’s
mental health status, removed the bolt from appellant’s assigned weapon and placed
him on suicide watch.



2
 Appellant pleaded guilty to attempted murder without premeditation and five
specifications of murder without premeditation.

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       After this, appellant met with another psychologist who referred appellant to a
psychiatrist for consideration of psychiatric medication. On the day before the
offenses, appellant met with the psychiatrist at the CSC. Appellant complained of
depression, anxiety, and stress and expressed both contempt with everyone in his
unit and dissatisfaction with his prior CSC appointments. Appellant also stated he
wanted a medical discharge and a release from theater. The psychiatrist prescribed
appellant medication. However, testimony at trial indicated the medication would
take two to three weeks to become effective. Subsequently, appellant told the unit
chaplain and company executive officer he was pleased with this appointment.

      The following morning, the unit chaplain contacted the psychiatrist because
appellant was having suicidal ideations, did not trust anyone, and felt that no one
would help him. The chaplain also inquired into inpatient care for appellant. The
psychiatrist advised the chaplain to have the command initiate a command referral,
disarm appellant, and keep him under constant observation.

       The command sent appellant to meet with the psychiatrist at noon. Appellant
was escorted to the CSC by an armed unit escort. Appellant himself was unarmed.
Appellant’s escort and a clinic clerk observed that appellant “seemed fine” while in
the CSC waiting room. However, a few minutes into the appointment, appellant
angrily rushed out of the office yelling, “[f]uck this shit, let’s go.” The psychiatrist
and appellant argued outside the CSC building. One soldier assigned to the clinic
recalled appellant stating he was done with the Army and wanted to leave, and the
psychiatrist responded by telling appellant that if he wanted to get out of the Army,
he had to go through proper procedures. Military police were summoned. Upon
their arrival, appellant threw his pocket knife to the ground, tried to enter their
vehicle, and suggested that they arrest him. The military police were instructed by a
military police desk sergeant to release appellant to the escort for return to his unit.

       Upon arrival at the unit, appellant took the escort’s weapon, chambered a
round, pointed the weapon at his escort, commandeered the vehicle, and returned
unescorted to the CSC. While in the vehicle outside the CSC, appellant smoked a
cigarette, removed his name tape from his uniform, and removed the scope from the
weapon.

       Appellant exited the vehicle and proceeded to the rear of the CSC building.
Before entering the building, he fired, through an open window, a single fatal round,
striking an officer in the head. Appellant next entered the back entrance of the CSC
and fired four rounds at another officer. One of the rounds struck the officer’s
spinal cord, rendering him defenseless. Appellant approached the officer and fired a
single fatal round into the officer’s head.

     Soldiers in the CSC heard shots fired and began to exit through doors and
windows. One soldier exited the building to secure a weapon and ammunition to


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RUSSELL—ARMY 20130463

neutralize appellant. When this soldier re-entered the CSC and looked around a
doorway, appellant fatally shot him in the chin.

      Three soldiers were seeking cover under furniture in the CSC sign-in room.
Appellant shot one soldier in the hip; as the soldier crawled out from under a desk,
appellant fatally shot him in the head. Appellant then fired a single fatal shot into
the head of another soldier hiding under the desk. The third soldier escaped from
the CSC, avoiding rounds fired by appellant. Appellant exited the CSC, set the
weapon on the ground, stated that he “just killed some people,” and was
apprehended by military police.

       During the court-martial, immediately prior to announcing the sentence, the
military judge made the following comments relevant to the specified issue:

             Like everyone, I have great compassion for the victims of
             Sergeant Russell’s crimes. I have never been so grieved
             as I have been by learning of the impact of Sergeant
             Russell’s crimes on the lives of so many, including his
             own family. They are indelible, unchangeable, and of an
             indescribable magnitude.

             Sergeant Russell, I want you to know that I have
             compassion for you. I have anguished over both the
             findings and the sentence I am about to impose. No
             person is fully defined by his behavior at a moment in
             time. I know from your fellow soldiers, your sisters, your
             brother-in-law, your son, your mother, and your wife, that
             you have the capacity for good. You have endured much
             in your life, including some things that only soldiers must
             endure. And I know that good has resided in you.

             You also have enormous capacity for evil, as great an evil
             as human beings are capable of possessing. As for the
             debate between the prosecution and the defense as to
             whether every person categorically is or is not capable of
             committing a certain act, in your case, that subject is not a
             matter of debate. I agree with you, Sergeant Russell, you
             are not a monster, but you have knowingly and
             deliberately done incredibly monstrous things. You bear
             the full responsibility of your decisions and your actions;
             and I am obligated to adjudicate the consequences. And
             you must, and I believe that you will, accept those
             consequences.



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RUSSELL—ARMY 20130463

             Sergeant Russell, you have forced many to drink from a
             bitter cup, and that includes this court. That cup is now
             before you.

                              LAW AND ANALYSIS

      Nothing in military jurisprudence precludes a military judge from making
remarks related to sentencing. United States v. Gardner, ARMY 8801082 (A.C.M.R.
3 Nov. 1988) (mem. op.) (The military judge’s exposition to provide the accused
with an idea of the foundation of his sentence was not error per se, but is “a
potentially erroneous practice.”) (citing United States v. Wiggers, 25 M.J. 587
(A.C.M.R. 1987)).

       Although the 1951 Manual for Courts-Martial [hereinafter MCM] authorized
the court-martial to include in the record “a brief statement of the reasons for the
sentence,” that provision was eliminated in 1969. Compare MCM para.
76.b.(4)(1951 ed.), with MCM para. 76.b.(4)(1969 rev. ed.). The Drafters’ Analysis
noted that the 1969 change was not intended to preclude the military judge, in a
bench trial, from setting forth reasons for the judge’s decision. United States v.
Green, 64 M.J. 289, 291 (C.A.A.F. 2007). However, if a military judge comments
on the sentence, the remarks may be reviewed on appeal to determine whether the
military judge relied on inadmissible matters in determining the sentence. Id. at
290-91 (citing United States v. Hill, 62 M.J. 271, 275 (C.A.A.F. 2006)).

       Appellant contends comments made by the military judge prior to sentencing
reflect an improper consideration of factors not relevant to sentencing because the
military judge “improperly considered the impact on the court and the impact on the
judge personally in determining an appropriate sentence.”

                               A. Standard of Review

       A military judge’s consideration of sentencing factors is reviewed under an
abuse of discretion standard. Green, 64 M.J. at 292 (C.A.A.F. 2007) (citing United
States v. McDonald, 55 M.J. 173, 178 (C.A.A.F. 2001)).

                     B. Relevant Considerations for Sentencing

      A court-martial has broad discretion to adjudicate the sentence, subject to the
punishment limitations set forth in the UCMJ and the MCM. Sentencing must
comply with due process and a judge may not base a sentence on impermissible
considerations such as race, religion, or gender. Gardner v. Florida, 430 U.S. 349,
358 (1977).

      Sentencing information is developed in an adversarial proceeding, subject to
evidentiary rules designed for the sentencing process. Green, 64 M.J. at 290 (citing

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RUSSELL—ARMY 20130463

Rule for Courts-Martial [hereinafter R.C.M.] 1001; United States v. Mack, 9 M.J.
300, 319 (C.M.A. 1980)). Relevant considerations include: matters presented by the
prosecution to include evidence of aggravation (R.C.M. 1001(b)); “victim impact
evidence” (R.C.M. 1001(b)(4)); matters presented by the defense to include matters
in extenuation and mitigation (R.C.M. 1001(c)); and additional matters including
“[a]ny evidence properly introduced on the merits before findings” including
“[e]vidence related to any mental impairment or deficiency of the accused” (R.C.M.
1001(f)).

       In reviewing the military judge’s comments in the context of the entire record,
we conclude that the military judge did not base the sentence on any impermissible
factor. Rather, the statements of the military judge indicate he clearly understood
and properly considered matters presented as to aggravation, extenuation and
mitigation, victim impact, and evidence “relating to any mental impairment or
deficiency of the accused” during sentencing deliberations.

        1. Comments as to Grieving and Compassion by the Military Judge

        Appellant takes issue with the military judge’s comment that: “I have never
been so grieved as I have been by learning of the impact of Sergeant Russell’s
crimes on the lives of so many.” Specifically, appellant argues this comment
reflects the revelation of some inappropriate personal grieving by the military
judge. 3 However, the full comments of the military judge reflect that he also had
never been so grieved by learning of the impact on the lives of appellant’s family.

       Whenever a judge has discretion as to sentencing, consideration of the impact
of the offense is an important factor in the exercise of that discretion. R.C.M.
1001(b)(4); see also Payne v. Tennessee, 508 U.S. 808, 819-20 (1991) (“Assessment
of harm caused by the defendant as a result of the crime charged has understandably
been an important concern in criminal law, both in determining the elements of the
offense and in determining the appropriate punishment.”).

        It is not per se impermissible that a military judge articulate being moved by
the impact of the proceedings on the victims, appellant, and appellant’s family. Nor
is it impermissible for a military judge to form a feeling of compassion in a criminal
sentencing context. There exists a “humanistic” perspective to performing the duties
of judicial office and compassion has an honored place in justice. Compassion is
developed through consideration of all relevant sentencing factors including, but

3
  In the alternative, appellant argues this comment reflects that the military judge
was “personally grieved that the accused exercised his rights to: 1) plead not guilty;
2) contest part of his case (the premeditation); and 3) put on a robust sentencing
case[.]” Upon review of the record, we summarily reject this alternate argument as
lacking any merit.

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RUSSELL—ARMY 20130463

certainly not limited to, victim impact evidence and matters of extenuation and
mitigation. R.C.M. 1001(b)(4), (c).

       The military judge stated he had “great compassion for the victims;” he also
stated directly to appellant, “I want you to know that I have compassion for you.”
The military judge did not conceal that he was both grieved by and moved with
compassion as to the suffering he observed during the proceedings. This sense of
compassion by the military judge—directed to all parties concerned—allowed him to
perceive and understand every dimension of the overwhelming effect and
incalculable suffering of the victims, the appellant’s family, and appellant.

       We therefore conclude the military judge’s comments at issue, considered in
their entirety and in context, evoked “established sentencing principles and tied
those principles to Appellant’s actions” and the effect of his actions on his victims,
his family, and the Army. Green, 64 M.J. at 295.

                                2. Biblical Reference

       Appellant notes that the phrase “bitter cup” is “a biblical reference that refers
to ‘immense suffering’” or to “suffer greatly.” Appellant concedes this is an apt
characterization with respect to the victims in the case, but views this as a revelation
that the military judge included himself as a victim in the proceeding.

       “The Constitution, of course, does not require a person to surrender his or her
religious beliefs upon the assumption of judicial office.” United States v. Bakker,
925 F.2d 728, 741 (4th Cir. 1991). Courts, however, cannot sanction sentencing
procedures that create the perception of the bench as a pulpit from which judges
announce their personal sense of religiosity and simultaneously punish defendants
for offending it. Id. at 740. Nor may a judge interject his or her personal religious
beliefs into the sentencing process. Green, 64 M.J. at 293 (citing Bakker, 925 F.2d
728 at 740-41)).

       In the instant case, the military judge, through his reference to the “bitter
cup,” opened the door to criticism that any sentence ultimately imposed was based
on an improper factor. 4 While reasonable people could find a religious connotation,
the phrase “bitter cup” is also colloquially synonymous with meaning “something
unavoidable and unpleasant.” http://www.thesaurus.com/browse/bitter%20cup?s=t


4
 As one judge has succinctly observed: “Thus it appears that religious references
by trial judges in the sentencing context—though potentially risky—are not per se
impermissible; they become problematic, however, if they are used—or reasonably
appear to be used—as the basis for the sentence itself.” Torres v. State of Florida,
124 So. 2d 439 (Fla. 1st DCA 2013) (Makar, J., concurring with opinion).

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RUSSELL—ARMY 20130463

(last visited 25 September 2017). 5 The entire court-martial, as well as the ultimate
sentence imposed, could reasonably be deemed as “unavoidable and unpleasant” and
having caused “great suffering” to all involved parties. The “bitter cup” statement
could also relate to the “unavoidable and unpleasant” task of the military judge
sentencing appellant to life in prison with no possibility of parole. The military
judge’s statement that he “anguished over both the findings and the sentence”
reveals he considered the evidence presented both in aggravation as well as
extenuation and mitigation in determining an appropriate sentence.

       Viewing the military judge’s statement in context, as a whole, rather than in
isolation, we are not convinced that the biblical reference, if any was actually
intended, impermissibly formed “the basis,” 6 a “primary basis,” 7 or “any basis,” for
the announced sentence. The record does not support that the military judge
impermissibly took into consideration his own religious beliefs during sentencing
deliberations.

      Upon a review of the entire record, we conclude that the military judge’s
sentencing remarks addressed appropriate and legally permissible sentencing
considerations with only an incidental reference to religion. Green, 64 M.J. at 294.

     With regard to general commentary by military judges, while not per se
impermissible, we nonetheless find the advice from this court’s predecessor in
Gardner still applicable today:

               We encourage the military judge in such cases to restrict
               his comments to addressing the need demonstrated, and
               not to expound his personal opinions. Explanatory
               comments must not become an obloquy, impeach the
               findings or sentence, or make reference to matters outside
               the record.

Gardner, ARMY 8801082 at *2.

5
  For instance, Winston Churchill said of the 1938 Munich Agreement: “This is only
the first sip, the first foretaste of a bitter cup which will be proffered to us year by
year unless by a supreme recovery of moral health and martial vigour, we arise again
and take our stand for freedom as in the olden time.” https://www.winstonchurchill
.org/resources/speeches/1930-1938-the-wilderness/the-munich-agreement (last
visited 25 September 2017).
6
  Bakker, 925 F. 2d at 741 (“this case involves the explicit intrusion of personal
religious principles as the basis of a sentencing decision”); Arnett v. Jackson, 393
F.3d 681, 687-88 (6th Cir. 2005) (Finding no due process violation when sentencing
judge’s reference to a Bible verse was not the “basis” of the sentence or the judge’s
“final source of authority.”).
7
    State v. Arnett, 88 Ohio St. 3d 208, 724 N.E.2d 793, 803 (2000).
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RUSSELL—ARMY 20130463


                              CONCLUSION

    The findings of guilty and the sentencing are AFFIRMED.

    Senior Judge CAMPANELLA and Judge SALUSSOLIA concur.

                                      FOR THE COURT:



                                      JOHN P. TAITT
                                      Acting Clerk of Court




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