United States v. Gibson

WISS, Judge

(concurring in the result):

22. I do not agree with the majority’s theory that appellant’s guilty plea was a provident admission of a culpably negligent aggravated battery. In my separate opinion in United States v. Joseph, 37 MJ 392, 401 (CMA 1993), I wrote in detail the reasoning underlying my conclusion that Article 128, Uniform Code of Military Justice, 10 USC § 928, does not proscribe a culpably negligent battery. I adhere to that construction of our assault statute — a construction that I believe is manifest on its face.

23. Nonetheless, I can join the majority in rebuffing this appellate attack on the providence of a guilty plea. In the stipulation of fact that was admitted as prosecution exhibit 1 in support of the proffered plea, appellant admitted that, when he took the explosive into a group of soldiers, two of them recognized the object as a live or “‘hot’ round” from its gold cap. The following excerpt from the stipulation reflects these soldiers’ reaction:

The first time PFC Kemp and PVT Schmiege noticed the accused with the “hot” round, he was tossing it from hand to hand with his hands about 12 inches apart and stomach level. Both of these soldiers were terrified when they saw the gold-capped round. PFC Kemp immediately began to turn and run away from the impending danger. He looked at and warned SPC Young, who was standing to his left that “he’s got a hot round! ” Just as PFC Kemp was warning SPC Young about the round, the round hit the ground and exploded. The blast knocked both PFC Kemp and SPC Young backwards and off their feet.

(Emphasis added.)

24. These admissions adequately reflect an aggravated assault of the “offer” variety. That type of assault is committed by “an unlawfid demonstration of violence, either by an intentional or by a culpably negligent act or omission, which creates in the mind of another a reasonable apprehension of receiving immediate bodily harm.” Para. 54c(1)(b)(ii), Part IV, Manual for Courts-Martial, 1984 (emphasis added). Such an assault is within the clearly delineated scope of Article 128. See generally United States v. Joseph, supra (Wiss, J., concurring in the result).

25. Though not readily apparent from the majority opinion, appellant’s principal contention in this Court is that culpable negligence requires that he be aware of the risk he was creating — that is, measured by a subjective standard. From that, he argues that the providence inquiry does not reflect this personal knowledge.

26. Concisely stated, appellant’s position is not the law. Instead, the measure of culpable negligence is an objective one— whether a reasonable person would realize the risk. United States v. Brown, 22 MJ 448, 450 (CMA 1986). In that light, the providence inquiry not only fails to reflect a “substantial basis” in law and fact for questioning the guilty plea, see United States v. Prater, 32 MJ 433, 437 (CMA 1991), it also affirmatively supports the plea.