15 C.M.A. 526 | United States Court of Military Appeals | 1965
Opinion of the Court
This appeal concerns proceedings in revision by a special court-martial, which were ordered by the convening authority for the purpose of reconsideration of the sentence.
On February 4, 1965, the accused pleaded guilty to, and was found guilty of, an unauthorized absence, for the period from November 12, 1964, to January 20, 1965, in violation of Article 86, Uniform Code of Military Justice, 10 USC § 886. The findings subjected him to the maximum punishment authorized for a special court-martial, that is, a bad-conduct discharge, confinement at hard labor for six months, and accessory penalties. During the sentence proceedings, trial counsel introduced, without obj'ection by defense counsel, an extract of the accused’s previous convictions. The record reflected two previous trials by court-martial. Both were by a summary court-martial, one in 1981 and the other in 1963. The conviction in issue was for driving while drunk. The offense occurred in October 1961; the trial was held on November 1, 1961; and the sentence was to forfeit $50.00.
After the Government’s presentation of its sentence evidence, the defense introduced evidence of the accused’s capability in the performance of his duties, his ability to get along well with others, and his military awards, such as the Korean and United Nations Service Medals. In an unsworn statement, the accused said he was thirty-seven years of age; was married and had three children, with his wife imminently expecting another child. He had over seventeen years of military service. He indicated that the stress of family problems, when he was on leave from his base in Libya, “seemed too much,” .and he just “seemed to drift into not reporting back” to duty. Eventually, he realized he had to face up to his military obligations, and he returned to military control. The “only job” he “really” knew was “the service.” After deliberating almost.an hour, the court-martial adjudged a sentence of a bad-conduct discharge, confinement at hard labor for one month, and reduction to Airman Basic.
Reviewing the record of trial, the convening authority determined that the evidence of the conviction in 1961 was “erroneously considered by the court in arriving at its sentence.”
At defense counsel’s request, the court members were questioned as to whether they had, in the intervening period, heard or observed anything which would prevent them from “freely reconsidering the evidence and . . . impartially deciding the sentence.” One member disclosed he had talked with “some of the people” in his organization about the accused, and he believed he was disqualified from further participation as a court member. He was excused. All the remaining court members indicated they could disregard the evidence of the previous conviction, and redetermine the sentence solely on the evidence properly before them. They were instructed that the maximum sentence which could be imposed was a bad-conduct discharge, confinement at hard labor for one month, and reduction to Airman Basic, that being the sentence adjudged at the initial proceedings. They were further advised that the only previous conviction they could consider was the 1963 summary court-martial, and they should disregard any comments “pertaining to any other previous conviction.” After deliberation, the court announced it adhered to its former sentence.
Appellate defense counsel contend that the prejudicial effect of the error in the admission of the previous conviction could not be purged by proceedings before the same court that had tried the accused. They maintain the convening authority should have directed a rehearing on the sentence before a different court-martial, which had no knowledge of the inadmissible previous offense. The argument is the reverse of that advanced by the accused in United States v Reed, 2 USCMA 622, 10 CMR 120. In that case we pointed out that when, on the initial review of the record, the convening authority finds an error or irregularity he can, under the Uniform Code of Military Justice, direct that proceedings in revision be held before the same court-martial, or order de novo proceedings before a different court-martial to purge the error.
The inadmissible conviction, say appellate defense counsel, portráyed the accused as “a three-time loser”; and this picture of hardened recidivism could hardly be obliterated or softened by an instruction to disregard. The argument is forceful, but the facts upon which it is predicated are weak.
It is true, as appellate defense counsel note, that in his final argument on the sentence, trial counsel referred to the fact that the offense for which the accused stood convicted was not his “first problem with military justice” but his third. This emphasis seems to assign a prominent role to the 1961 offense; and an emphasis of this kind by Government counsel is indeed a factor in evaluating the probable impact of the previous offense upon the court members. United States v Conrad, 14 USCMA 344, 347, 34 CMR 124. Reading all of trial counsel’s remarks, however, leads to the conclusion that his argument did not indicate that the previous offenses deserved special attention and consideration, in aggravation of accused’s latest wrong. The argument was not directed to recidivism. Twice, trial counsel told the court members he felt it would be presumptuous of him to recommend or propose any punishment. He emphasized that the decision rested exclusively upon the mature opinion and experience of the court members. As a whole, trial counsel’s remarks cannot fairly be construed to increase the impact of the evidence. The question then is whether the evidence by itself was so vital as to survive an instruction to disregard. See United States v Justice, 13 USCMA 31, 41, 32 CMR 31; United States v Richard, supra.
The earlier offense was committed more than three years previous to the one for which the accused was on trial. The nature of the wrong, the court to which the charge was referred, and the punishment adjudged were all minor. Since that conviction, the accused had earned an honorable discharge, and had been allowed to reenlist for another four-year period. In the first part of
The decision of the board of review is affirmed.
Although the convening authority did not give any reason for his conclusion, it appears to have been based upon either or both of two preconditions to the admission of evidence of a previous conviction. The evidence of a previous conviction must “relate to offenses committed during a current enlistment.” Manual for Courts-Martial, United States, 1951, paragraph 756 (2), page 119. The accused received a discharge from the Air Force on November 26, 1961. Since the previous conviction was for an offense committed in October 1981, it would appear that this condition was not satisfied. Also, the
In appropriate circumstances, a third alternative is available to the convening authority. He can, himself, reassess the sentence to eliminate all possible prejudice to the accused. United States v Winning, 13 USCMA 359, 32 CMR 359. However, that course was not followed by the convening authority, and it is not in issue on this appeal.