United States v. Slack

Opinion of the Court

ROBERT E. Quinn, Chief Judge:

We granted the accused’s petition for review of his conviction of wrongful appropriation of an automobile belonging to a civilian to consider the correctness of the following instruction by the law officer in regard to the sentence:

“Normally the maximum punishment will be reserved for ... a case in which there is evidence of a previous conviction involving an offense at least as serious as the one for which the accused is here on trial.”

At trial, the accused did not testify, either before findings or sentence. Evidence of certain pretrial statements by him, admitted before the findings, indicates that he lied to the arresting officer in attempting to explain his presence in the stolen car at about 1:15 in the morning. During the sentence proceedings, trial counsel read the personal data regarding the accused as it appeared on the charge sheet. These data showed that he was nineteen years of age at the time of trial; that he had over two years of service; and had been in confinement about a month before trial. Also admitted in evidence was an extract from the accused’s service record which established two previous convictions by court-martial. One was a special court-martial conviction on three charges, two of which were for unauthorized absence; and the last for “steal [ing]” a Buick sedan on a date about three months prior to the instant offense. Defense counsel said the accused had been advised of his right to present matter touching on the sentence and that he had elected to remain silent “at this time.” No argument was made by trial or defense counsel. The law officer then instructed the court members that they “alone” were “responsible” for determining “an appropriate sentence.” Elaborating on that idea he said:

“In exercising your discretion in determining the sentence to be adjudged, you should consider all the facts and circumstances of the case.In this regard, you may consider all matters in extenuation and mitigation as well as those in aggravation whether introduced before or after the findings, the nature and duration of the pretrial restraint.
“Normally the maximum punishment will be reserved for an offense which is aggravated by its circumstances and the conditions surrounding its occurrence or a case in which there is evidence of a previous conviction involving an offense at least as serious as the one for which the accused is here on trial. While the sentence adjudged should be an adequate one, you should not adjudge an excessive sentence in reliance upon possible mitigating action by the convening or higher authority.
“The court is advised that the maximum punishment which may be adjudged in this case is a dishonorable discharge, forfeiture of all pay and allowances and confinement at hard labor for two years and reduction to the lowest enlisted grade-whieh is Recruit (E-l). He is already Recruit (E-l) so that is inapplicable.”

Defense counsel was asked if he had any objection to the instructions; he replied that he had none. Three minutes after closing to deliberate on the sentence, the court reopened and the president announced a sentence which was the maximum for the offense; namely, dishonorable discharge, total forfeitures, and confinement at hard labor for two years. Manual for Courts-Martial, United States, 1951, paragraph 127 c.

Apparently the challenged instruction is based upon language in the Manual for Courts-Martial, supra, paragraph 76a, which provides that the *246maximum punishment will “normally . . . be reserved for an offense which is aggravated by the circumstances, or after conviction of which there is received by the court evidence of previous convictions of similar or greater gravity.” See also Military Justice Handbook, “The Law Officer,” Department of the Army Pamphlet No. 27-9, April 1958, Appendix XXXIII. In view of this apparent connection, appellate defense counsel maintain that the Manual itself was used as “leverage” to compel imposition of the maximum punishment. Cf. United States v Fowle, 7 USCMA 349, 22 CMR 139; United States v Wilson, 25 CMR 788. However, no reference was made to the Manual, and there is nothing whatever in the record of trial to suggest that the court-martial knew the instruction was an iteration of a Manual provision. Consequently, we are not dealing, as appellate defense counsel maintain, with the injection of executive policy into the judicial process; but, rather, with the legal effect of a particular instruction by the law officer. In other words, the point of inquiry is not the effect of “powerful external influences,” but simply whether the instruction is proper; and if it is not, whether it prejudiced the accused. Cf. United States v Starnes, 8 USCMA 427, 24 CMR 237.

An instruction which invites the court-martial to compare the case be-fore them with other cases of a generally similar nature is unwise and impractical. In United States v Mamaluy, 10 USCMA 102, 104, 27 CMR 176, we pointed out some of the difficulties incident to such comparisons. There the law officer’s instructions were based upon other parts of paragraph 76a. Specifically, he advised the court-martial that it could consider, in determining the sentence, “the penalties which are adjudged in other cases for similar offenses,” having due regard to the “circumstances attending each.” We held that the instruction was “impractical, confusing, and of . . . doubtful validity,” because, among other things, the factual information required for the comparison was not before the court-martial. Similar criticism can be made of the instruction here. First, it presupposes the court-martial knows the previous offense was “at least as serious as the one” of which the accused was convicted. Secondly, the standard by which they must determine seriousness is not defined. Was the previous offense “serious” because the maximum permissible punishment approximated that for the offense before the court; or was it serious because of the surrounding circumstances? Cf. United States v Fretwell, 11 USCMA 377, 29 CMR 193. Thus, the instruction leaves too much to the imagination or the private knowledge of the court members. This does not mean, of course, that evidence of previous convictions is not a proper matter for consideration by the court-martial. Certainly it is. What we are saying is simply that the present instruction is too broad a generalization. It suffers from the vice of the other parts of the “instructional pattern” of paragraph 76 of the Manual which, in the Mamaluy case, we recommended be discarded in favor of “instructions of more utility.”

That an instruction is of doubtful value to the court-martial does not necessarily mean the accused is prejudiced by it. There must be some basis from which it can fairly be said the' questionable instruction harmed the accused by adversely influencing the deliberations of the court members. The only basis upon which risk of harm can be predicated here is that the instruction can be construed as a direction to the court-martial to impose the maximum penalty because of the accused’s previous convictions. We do not so interpret the instructions in this case.

The court members were expressly advised that they “alone” determine an “appropriate sentence”; that they had “discretion” to consider all the facts and circumstances of the case; and that they should not adjudge an “excessive” sentence in reliance upon “possible mitigating” action by re*247viewing authorities. The clarity and the directness of the instructions leave us with the conviction that the court-martial understood it was not bound by conscience, law, or practice, to adjudge a maximum sentence because of the accused’s previous convictions. True, it did impose the maximum punishment for the offense, but the fact that it did so is not proof it believed it had to do so. Indeed, as indicated in our earlier recital of the facts, there is substantial justification in the surrounding circumstances for the sentence imposed. The accused deliberately lied to the police officer who apprehended him; he offered nothing to show repentance or a resolve to rehabilitate himself; and the frequency of his offenses indicated that strong measures of correction were required if his social reform was to be effected. Considering the sentence instruction as a whole, and all the circumstances of the case, we find no fair risk of prejudice to the accused.

The decision of the board of review is affirmed.