UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Senior Airman CHARLES A. WILSON, III

United States Air Force

Misc. Dkt. No 2015-02

7 May 2015

Appellate Counsel for the Petitioner: Lieutenant Colonel David J.R. Frakt

Appellate Counsel for the United States: Captain Thomas J. Alford and 

Gerald R. Bruce, Esquire. 

Before

MITCHELL, WEBER, and CONTOVEROS

Appellate Military Judges

OPINION OF THE COURT

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent 

under AFCCA Rule of Practice and Procedure 18.4.

The petitioner filed a Petition for Extraordinary Relief in the Nature of a Writ of 

Prohibition, requesting that this court “order the dismissal of Additional Charge I and its 

Specification (or direct the trial judge to grant the Defense Motion to Dismiss Additional 

Charge I).” We deny the petition.

Background

The petitioner has been charged with multiple offenses, including the premeditated 

murder of a pregnant woman and intentionally causing the death of her unborn child, in 

violation of Articles 118 and 119a, UCMJ, 10 U.S.C. §§ 918, 919a. The original charges 

were preferred on 31 December 2013.

The government informed the petitioner and his counsel on 13 February 2014 that 

it intended to ask the Article 32, UCMJ, 10 U.S.C. § 832, investigating officer to: 
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(1) investigate uncharged misconduct relating to the petitioner’s alleged commission of a 

2011 arson which resulted in the death of an acquaintance of the petitioner,

(2) investigate whether certain Rule for Courts-Martial (R.C.M.) 1004(c) aggravating 

factors were present, and (3) “consider the propriety of recommending to the 

General Court-Martial Convening Authority that the case be referred capital” due to the 

existence of those aggravating factors.

On 20 February 2014, the petitioner filed a Petition for Extraordinary Relief with 

this court, which argued that the convening authority’s denial of the defense request for a 

mitigation specialist prior to the Article 32, UCMJ, investigation unduly prejudiced the 

petitioner and deprived him of his right to present mitigating evidence at that 

investigation for the consideration of the convening authority, as he made his decision on 

whether to refer the case capital. In its answer to our show cause order, the government 

argued this court has no jurisdiction over the matter because no court-martial has been 

convened and that, even if we have jurisdiction, we should deny the writ because the 

petitioner is “not clearly and indisputably entitled to a government-funded and 

government-appointed mitigation specialist prior to or at” an Article 32, UCMJ, 

investigation. We concluded we had jurisdiction over the matter and denied the writ on 

its merits.

Additional Charge I and its Specification were preferred on 30 April 2014 and 

referred on 9 October 2014. Additional Charge I and its Specification allege that the 

petitioner “did, at or near Warner Robins, Georgia, on or about 2 October 2011, while 

perpetrating aggravated arson, murder Demetrius D. Hardy by means of causing him to 

set a fire during which he was fatally burned.” Five additional charges and specifications 

were referred to the same court-martial as the original charges and were to be tried as a 

capital case. 

At court, the petitioner filed a motion to dismiss Additional Charge I for failure to 

state an offense. In a written ruling issued on 25 March 2015, the trial judge denied the 

motion finding that the specification alleges all the elements for felony murder. The 

petitioner now seeks a writ of prohibition to prevent the government from continuing to 

prosecute this offense on what he claims is a failed theory of liability.

Discussion

The All Writs Act, 28 U.S.C. § 1651(a), authorizes “all courts established by Act 

of Congress [to] issue all writs necessary or appropriate in aid of their respective 

jurisdictions and agreeable to the usages and principles of law.” This court is among the 

courts authorized under the All Writs Act to issue “all writs necessary or appropriate in 

aid of their respective jurisdictions.” 28 U.S.C. § 1651(a); see LRM v. Kastenberg, 

72 M.J. 364, 367 (C.A.A.F. 2013). 

A writ of prohibition is the process by which a superior court prevents an inferior 
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court from exceeding its jurisdiction; it prevents the usurpation of judicial power and is 

used to confine courts to the proper exercise of their power and authority. United States 

v. Gross, 73 M.J. 864, 866–67 (Army Ct. Crim. App. 2014). Its counterpart is the writ of 

mandamus, which is used, inter alia, “‘to compel [officers and commanders] to exercise 

[their] authority when it is [their] duty to do so.’” Dew v. United States, 48 M.J. 639, 648 

(Army Ct. Crim. App. 1998) (quoting Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 26 

(1943)). We use the same test for writs of mandamus and prohibition. Gross, 73 M.J. at 

866.

The Supreme Court has held that three conditions must be met before a court may 

provide extraordinary relief in the form of a writ of extraordinary relief: (1) the party 

seeking the writ must have “no other adequate means to attain the relief”; (2) the party 

seeking the relief must show that the “right to issuance of the relief is clear and 

indisputable”; and (3) “even if the first two prerequisites have been met, the issuing court, 

in the exercise of its discretion, must be satisfied that the writ is appropriate under the 

circumstances.” Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 380–81 (2004)

(citations and internal quotation marks omitted). A writ of mandamus and a writ of 

prohibition are drastic instruments to be used only in truly extraordinary circumstances.

Gross, 73 M.J. at 867. 

We find that our consideration of this petition is properly a matter in aid of our 

jurisdiction. Having done so, however, we find the petitioner is not entitled to the relief 

requested. We find the petitioner fails on each of the three prongs.

The petitioner asserts that the prosecution’s theory of his liability under 

Article 118(4), UCMJ, is so fundamentally flawed that any conviction would be 

meritless. The petitioner argues that the prosecution’s proffer of facts is essentially that 

the petitioner and Mr. Hardy entered into a conspiracy to burn down the petitioner’s 

rented home in order to collect insurance money. The petitioner was not present when 

Mr. Hardy, in the process of burning down the house, accidentally inflicted fatal injuries 

to himself.

1. Right of Issuance is Clear and Indisputable

The petitioner’s argument is that he cannot be held criminally responsible under 

the felony murder statute when he was not physically present at the time of the offense 

and his alleged co-conspirator negligently caused his own fatal injuries. The petitioner 

acknowledges that this appears to be a case of first impression in the military justice 

system. 

A California Court of Appeals examined a case in which the “question presented 

[was] whether a person who aids, counsels or procures another to maliciously set fire to a 

building, but who is not physically present at the scene of the arson, is guilty of murder 

when his confederate negligently or accidentally burns himself to death while setting the 
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fire.” Woodruff v. Super. Ct. of Los Angeles Cnty., 237 Cal. App. 2d 749, 750 (Cal. Dist. 

Ct. App. 1965). That court concluded that California Supreme Court precedent prevented

that accused from being tried in state court for felony murder and issued a writ of 

prohibition. Id. A later ruling reinforced that precedent: “It is settled California law that 

where, as here, an accomplice in a conspiracy to commit arson for the purpose of 

defrauding an insurer accidentally burns himself to death, his co-conspirator may not be 

charged with murder under the felony-murder rule.” People v. Earnest, 46 Cal. App. 3d 

792, 794 (Cal. Dist. App. 1975). A Missouri Appeals Court reached a similar conclusion:

In arson cases, the majority of jurisdictions have 

refused to invoke the felony-murder doctrine where the death 

was that of defendant’s accomplice (himself the arsonist) and 

the defendant was not present at the scene of the arson. 

People v. LaBarbera, 159 Misc. 177, 287 N.Y.S. 257 (1936);

Woodruff v. Superior Court of County of Los Angeles, 237 

Cal. App. 2d 749, 47 Cal.Rptr. 291 (1965); People v. Earnest,

46 Cal.App.3d 792, 120 Cal.Rptr. 485 (1975); People v. 

Ferlin, 203 Cal. 587, 265 P. 230 (1928); State v. Williams,

254 So.2d 548 (Fla.App. 1971). Contrary results have been 

reached where the defendant was present at the scene of the 

fire which resulted in the death of his accomplice.

Commonwealth v. Bolish, 391 Pa. 550, 138 A.2d 447 (1958). 

State v. Sotteriou, 132 N.J.Super. 403, 334 A.2d 47 (1975).

State v. Light, 577 S.W.2d 134, 137 (Mo. Ct. App. 1979).

However, not all states have foreclosed felony murder convictions when an 

accused is not present. The courts in Oklahoma have interpreted that state’s statute to 

employ a “proximate cause” theory of felony murders which will “hold a defendant 

criminally responsible for the death of a co-felon when that occurs during a felony so 

inherently dangerous as to create a foreseeable risk of death.” Kinchion v. State, 

81 P.3d 681, 684 (Okla. Crim. App. 2003). Pursuant to the Oklahoma statute, a 

conviction was upheld after the death of a minor from alcohol poisoning, when the 

defendant provided alcohol to his underage sister, knowing that later she would share it 

with her underage overnight guests. Malaske v. State, 89 P.3d 1116 (Okla. Crim. App. 

2004). A habeas petition in federal court was denied for another Oklahoma defendant 

who was convicted of felony murder when a police officer who was pursuing him died in 

a traffic accident even though the defendant was not in the immediate area at the time of 

the accident and did not learn about the death until later that day. Grider v. Taylor, 2012 

U.S. Dist. LEXIS 13170, 2012 WL 369899 (W.D. Okla. 2012).

We conclude that certain courts have interpreted their state statutes on felony 

murder to support the petitioner and at least one state, Oklahoma, has not. “However, we 

also recognize that the military community is unique in many respects and that its system 
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of justice must be responsive to needs not present in the civil society.” Murray v. 

Haldeman, 16 M.J. 74, 79 (C.M.A. 1983). Given that this is a case of first impression in 

the military justice system for an interpretation of Article 118(4), UCMJ, when the 

accused is not physically present during the commission of the felony, we conclude that 

the right to have the writ issued is neither clear nor indisputable.

2. No Other Adequate Means to Attain Relief

The petitioner asserts that the normal appellate process will not provide 

meaningful relief. We disagree.

No evidence has been presented as of yet before a factfinder. After the 

prosecution has rested, the petitioner may file a motion for a finding of not guilty if the 

evidence is insufficient. See R.C.M. 917. Furthermore, the petitioner may challenge the 

validity of any conviction for a violation of Article 118(4), UCMJ, to this court through 

the appellate review process under Article 66, UCMJ, 10 U.S.C. § 866. We agree with 

the petitioner that cases which result in a sentence to death have a longer appellate review 

process. See, e.g., United States v. Witt, 73 M.J. 738 (A.F. Ct. Crim. App. 2014)

(upholding a death penalty adjudged in 2005). However, this court has previously 

rejected the appellant’s argument that confinement on death row and the resultant 

restrictions on his liberty convert any delay during the appellate process into a per se

constitutional violation. Id. at 812 (rejecting the argument that the mental anxiety felt 

during the delay in appellate review, the anticipation of execution, and inability to avoid 

appellate review of his death sentence served to increase the appellant’s sentence to a 

degree that is unconstitutional).

3. Appropriate under the Circumstances

A writ of mandamus is a drastic remedy that should only be used in extraordinary 

situations. United States v. Labella, 15 M.J. 228, 229 (C.M.A. 1983). In order to warrant 

reversal by an appellate court through a writ, the trial judge’s decision must amount to 

more than gross error; it must be a judicial usurpation of power or represent an erroneous 

practice likely to recur. Murray v. Haldeman, 16 M.J. 74, 76 (C.M.A. 1983). We find 

neither a judicial usurpation of power nor an error that is likely to recur. We conclude 

that a writ would not be appropriate in this case at this time for this issue. We reach the 

same conclusion as one of our superior court’s judges in denying a writ petition about a 

military judge’s pretrial rulings:

[S]erious questions may be raised and should be resolved at 

the trial level concerning the sufficiency of the Government’s 

proof. The trial court’s resolution of these questions may 

render the substantive issues raised in this petition moot or, at 

the very least, provide this Court with an adequate record to 

decide these issues.
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Id. at 83 (Fletcher, J., concurring) (citations omitted).

In short, extraordinary relief at this point is neither necessary nor appropriate. 

Having considered the matters submitted, we find the petitioner fails to demonstrate that 

extraordinary relief is warranted such that we should grant a writ of prohibition or 

mandamus to order the dismissal of, or prohibit the presentation of, evidence on 

Additional Charge I and its Specification. This does not foreclose the petitioner from

later raising these issues again on appeal through Article 66, UCMJ.

Accordingly, it is by the court on this 7th day of May, 2015,

ORDERED:

The Petition for Extraordinary Relief is DENIED without prejudice to Petitioner’s 

right to raise these matters in the normal course of review under the UCMJ. 

FOR THE COURT

LEAH M. CALAHAN

Deputy Clerk of the Court