United States v. Clark

BROSMAN, Judge

(concurring):

I concur with my brothers in this case. The principal opinion points out that the presence of addi tional punishments — permissible in the case of accused persons previously convicted of crime — does not make of the relevant Manual paragraph an habitual offender statute. Nonetheless it is difficult for me to see how a court-martial can— with strict accuracy — impose a sentence, based in any part on prior convictions, when its members are wholly ignorant of the nature of the crime on which the convictions were based. It seems clear to me that the thrust of the Manual provision contemplates — even demands for maximum usefulness — that the members of the tribunal concerned be furnished with this information by the Government.

I understand the Chief Judge’s opinion to proceed on a theory of waiver— and this is exactly the basis on which I would decide the case. I am in accord with him here not at all for the reason that I like my associate’s conception of waiver — contradicting, as it does, the lawful and consistent provisions of the Manual- — -but instead because, for better or the reverse, it expresses the law of this Court. And this, in turn, is true only because the number “two” represents the major fraction of “three.” It is even arguable that the accused waived here in my —and the Manual’s — usage of the term. However, I need not decide this question.

Had defense counsel objected to the evidence of previous convictions offered in the instant case, I make no doubt that it should have been ruled inadmissible. However, I do not understand the principal opinion to express a view on this point. As I see it, there is no sort of burden on the accused himself to furnish the information omitted from the present exhibit — although he must object if he does not wish the offered evidence to be considered by the court-martial in its abbreviated form.

This opinion, incidentally, constitutes my swan song in the sphere of waiver. My own views on the subject should be well known, and have been set out at length in United States v. Smith, 2 *654USCMA 440, 9 CMR 70; United States v. Fisher, 4 USCMA 152, 15 CMR 152; United States v. Henry, 4 USCMA 158, 15 CMR 158; and elsewhere. However, they are out of accord with the notions of my colleagues in the area. From this point on, therefore, I shall accept without further comment the law as it is enunciated in the majority opinions in United States v. Fisher, supra, and United States v. Henry, supra.

Once I acknowledge the admissibility here of the evidence of previous convictions, I must conclude that it was sufficient to authorize additional punishment- — although a presentation of more complete information to the court-martial would have better served the purposes of law.