United States v. Martinez

Opinion of the Court

Quinn, Chief Judge:

A general court-martial at Fort Lewis, Washington, convicted the accused of killing William Graves, Junior, a fellow soldier, while attempting to rob him of his money. On this appeal, the accused contends he was prejudiced by the law officer’s denial of a request to instruct on involuntary manslaughter as a lesser offense included in that charged. The contention lacks merit for the following reasons:

1. The evidence compellingly indicates the commission of the offense of which the accused stands convicted. An eyewitness, who knew the accused as a bunkmate and was standing only four to six feet away, testified that he saw Graves “pulled ... to the ground” by the accused. The accused “bent over” Graves and held “a knife to his neck.” He told Graves to give him his money. When Graves replied that he did not have any, the accused said “something like”: “ ‘What do you want to be? A live brother or a dead brother’ ” ? Graves tried “to get up” and the accused “came down with a punching movement” with the knife. Shortly thereafter, Graves was taken to the hospital where he was examined by a doctor and determined to be dead. An examination revealed three “penetrating” wounds, one of which entered the left ventricle of the heart causing hemorrhage resulting in death. The accused testified that he could not remember anything that happened to him from the time he drank “three straight double tequilas” followed by “three or four margueritas” and beer at the noncommissioned officers’ club until he felt “a real, deep pain” in his arm as he was approaching his unit. Other evidence indicated the accused had been drinking and was “drunk” or “very drunk.” Alcoholic amnesia is not a defense to crime. United States v Olvera, 4 USCMA 134, 15 CMR 134 (1954). Nor does voluntary intoxication “standing alone . . . reduce an act of unpremeditated murder to manslaughter.” United States v Thomas, 17 USCMA 103, 107, 37 CMR 367 (1967); United States v Ferguson, 17 USCMA 441, 38 CMR 239 (1968).

2. The accused argues that an instruction on involuntary manslaughter was appropriate because the court members could reasonably have found that the victim was “inadvertently struck” by the accused through “culpable negligence.” The argument is predicated upon testimony by an eyewitness that at one point the accused “lost his balance.” The witness’ testimony is to the effect that it “seemed” to him that the accused “lost his balance” while bent over Graves and “when he did this” Graves “tried to make his move to get up, and this is when . . . [the accused] came down . . . with a punching movement.” Elsewhere in his testimony, the witness indicated that the accused drew down his hand *230with the knife in a “jabbing motion.” This testimony leaves little doubt that the accused’s use of the knife was intentional and deliberate; the number of wounds inflicted upon the victim demonstrates beyond all reasonable doubt that the stabbing was not inadvertent. These circumstances distinguish the case from United States v Taylor, 16 USCMA 489, 37 CMR 109 (1967), which the accused urges as authority for reversal. The record, therefore, negates rather than supports the accused’s contention that there is evidence from which the court members could reasonably conclude that Graves’ death resulted from inadvertent conduct on the part of the accused.

3. Assuming an instruction on involuntary manslaughter as an alternative lesser offense should have been given, the omission was not prejudicial to the accused. A speculative possibility that a different verdict might have been rendered is not a sufficient basis upon which to justify reversal. Fuller v United States, 407 F2d 1199 (CA DC Cir) (1967), certiorari denied, 393 US 1120, 22 L Ed 2d 125, 89 S Ct 999 (1969). Here, the court members were fully instructed as to the elements of the principal offense and the lesser offense of unpremeditated murder. Their verdict indicates an affirmative rejection of the lesser offense. In Hansborough v United States, 308 F2d 645 (CA DC Cir) (1962), the Court of Appeals for the District of Columbia found no merit in a defense contention that an erroneous instruction on manslaughter as a lesser offense to a charge of murder in the first degree was prejudicial. The Court held that, since “a verdict of manslaughter was not returned, the instruction as to manslaughter, if error, was non-prejudicial.” Id., at page 646, footnote 2. In Belton v United States, 382 F2d 150, 157 (CA DC Cir) (1967), the same Court noted that, inasmuch as the jury went beyond murder in the second degree to find the accused guilty of murder in the first degree, its verdict “weakens any sense of prejudice from failure to charge manslaughter.” See also United States v Ransom, 4 USCMA 195, 15 CMR 195 (1954).

The decision of the United States Army Court of Military Review is affirmed.