United States v. Baker

20 C.M.A. 175, 20 USCMA 175, 43 C.M.R. 15, 1970 CMA LEXIS 678, 1970 WL 7414

• Court: United States Court of Military Appeals
• Decided: November 27, 1970
• Docket: No. 23,098
• Status: Published

Opinions

Opinion of the Court

Darden, Judge:

The appellant in this case was defended by appointed counsel qualified in accordance with Article 27(b), Uniform Code of Military Justice, 10 USC § 827. In response to questions by the military judge, Baker acknowledged that he was aware of his right to be represented by a civilian lawyer or a military lawyer of his own selection. He was satisfied with appointed counsel, however. This inquiry meets the demands of Article 38(b), Uniform Code of Military Justice, 10 USC § 838. United States v Turner, 20 USCMA 167, 43 CMR 7 (1970).

Introduction of evidence reflecting that Baker had been given Article 15 punishment for failure to obey a lawful order and being disorderly in barracks could not have played a part in the determination of this sentence that consists of a bad-conduct discharge, total forfeitures, confinement at hard labor for one year and six months, and reduction to pay grade E-l, considering that the conviction was for wrongfully giving money with intent to influence another’s official acts, communicating threats, assaulting a noncommissioned officer, attempted theft, and wrongful appropriation. United States v Lindsay, 19 USCMA 502, 42 CMR 104 (1970); United States v Young, 19 USCMA 481, 42 CMR 83 (1970); United States v Gauthier, 19 USCMA 482, 42 CMR 84 (1970).

The dissenting opinion’s reliance on United States v Duron, 19 USCMA 563, 42 CMR 165 (1970), is misplaced. Duron was tried for two specifications of wrongful appropriation and an unauthorized absence. The prior Article 15 punishment introduced against him concerned his failure to obey an order to submit to a medical quarantine, two brief unauthorized absences, a public fight, and failing to obey a regulation by wearing civilian clothes aboard ship. He received a bad-conduct discharge, total forfeitures, confinement at hard labor for eight months, and reduction in grade.

The many serious offenses for which Baker was convicted, as well as the nature of his earlier nonjudicial punishment and his sentence, are elaborated on above. Considering the possible effect of fewer violations resulting in Article 15 punishment for Baker, whose court-martial offenses were more serious than were Duron’s, we believe the distinction between the two situations is manifest.

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

Chief Judge Quinn concurs.