United States v. Chaney

12 C.M.A. 378, 12 USCMA 378, 30 C.M.R. 378, 1961 CMA LEXIS 250, 1961 WL 4456

• Court: United States Court of Military Appeals
• Decided: April 28, 1961
• Docket: No. 14,698
• Status: Published

Opinions

Opinion of the Court

Robert E. Quinn, Chief Judge:

A general court-martial convened at Dreux Air Base, France, convicted the accused of a charge of perjury, in violation of Article 131, Uniform Code of Military Justice, 10 USC § 931, and imposed a sentence which included a bad-conduct discharge. A board of review set aside the findings of guilty of three of the four false statements set out in the specification, and modified the sentence by reducing the period of confinement and the forfeitures. The Judge Advocate General of the Air Force certified the record of trial to this Court to review the decision of the board of review on several grounds, and the accused petitioned for review on others. We denied the petition for review and have before us only the certified questions, the first of which is whether the specification alleges a violation of Article 131. The specification reads in pertinent part as follows:

“In that . . . [the accused] having taken a lawful oath in a trial by special court-martial of . . . Avery and . . . Cassady that he would testify truly, did . . . willfully, corruptly, and contrary to such oath, testify in substance as follows: that . . . Avery and . Cassady did not drink beer in the barracks on 8 March 1960 . . which testimony was upon material matters and which he did not then believe to be true.”

The language of the specification follows closely that of Article 131, which defines the offense of perjury.¹ It is exactly like the form of specification provided in the Manual for Courts-Martial, United States, 1951, appendix 66, form 105. A specification which follows the language of the statute defining the offense, and the form of specification prescribed therefor, is legally sufficient. United States v Bunch, 3 USCMA 186, 11 CMR 186; United States v Rios, 4 USCMA 203, 15 CMR 203; see also Flynn v United States, 172 F2d 12 (CA 9th Cir) (1949); McDonough v United States, 227 F2d 402, 404 (CA 10th Cir) (1955). Accordingly, we answer the first certified question in the affirmative.

Consideration of the remaining questions requires a statement of some of the evidence and reference to some of the proceedings below. On March 8, 1960, the accused was at the Airmen’s Club at Dreux Air Base. He remained there about six hours drinking liquor. At about 11:15 p.m. he returned to his barracks with Avery and Cassady. He took with him a case of beer. The group went to the accused’s room where they were joined by Airman Inman. Also present was Airman Rutherford, who was an occupant of the room. A short time later Avery left. Immediately thereafter, noises were heard from the hallway. Apparently recognizing the significance of these noises, Rutherford left the room to go to another airman’s room, and Inman left through the window. A few minutes later, they saw the squadron’s “chain of command” board, which was usually attached to the wall in the hallway, disappear into the accused’s room. The board was a 4 x 7 plywood case with a glass cover. The next morning it was found off the base. An investigation led to the filing of charges against Avery and Cassady, including alleged violations of an order prohibiting consumption of alcohol in the barracks, and the willful and unauthorized destruction of the chain of command board. They were brought to trial before a special court-martial. The accused testified at that trial as a defense witness. Among other things, he said Avery and Cassady did not drink in his room. However, both defendants were convicted.² Thereafter, the present charge of perjury was filed against the accused.

Inman and Rutherford appeared as Government witnesses. Both testified to their presence in the room with the accused, Avery and Cassady. On the critical issue of whether Avery and Cassady drank beer while there, In-man’s testimony was vacillating. At one point he said “we all had beer,” but later he maintained he could not “say for sure whether they all took a drink.” In his opinion the accused was “feeling pretty good.” Rutherford testified he “actually” saw Avery and Cassady drink beer while in the accused’s room, but he would not “say for sure” whether the accused was in a position to see them at the time. In his opinion the accused was “drunk.” The prosecution also introduced excerpts from the accused’s testimony at the Avery and Cassady trial. In material part the testimony is as follows:

“Q [DC] All right. Will you tell the court, in your own words, the story of you people in the barracks that night, late that night, March eighth, and tell particularly about Cassady and Avery. Tell the court, in your own words, what happened.

“A Well, we went to the Airmen’s Club — Airman Cassady and Airman Avery and I — and were drinking at the Club. And then about eleven-fifteen, I bought a case of beer and 1 brought it back. Well, I carried the beer into my room and put it down by my bunk. Airman Avery and Airman Cassady and Airman Quarlena came in the room with me. Airman Avery and Airman Cassady didn’t drink beer, nor did Airman Quarlena drink any of the beer.

“Q All right. Now, who drank this beer?

“A Airman Rutherford and I.

“Q Did Airman Quarlena or Cas-sady or Avery drink any of it?

“A No, sir.

“Q I see. Now, how long did you stay in the room?

“A I stayed in the room that night; and about eleven twenty-five, Airman Quarlena left the room; and Avery, Cassady, Rutherford and I sat around still talking. About eleven forty-five, Avery and Cassady went to their room. They sleep upstairs. They left the room and they went upstairs. And Airman Rutherford went to his bed.

“Q [TC] Were you thinking pretty clearly after those twenty drinks [at the Airmen’s Club] ?

“A Yes, sir.

“Q And you brought a case of beer home. Right?

“A Right.

“Q Will you tell us why?

“A We wanted some more drinks.

“Q I see. The Club was closing and you wanted some more drinks? And you want the court to believe that you were going to hog all this beer for yourself, is that right? You never'gave Avery and Cassady any of it?

“A They didn’t want any.

“Q Do you remember that you are under oath, Airman Chaney?

“A Yes, sir.

“Q And you will tell the truth, is that right? (Witness nodded affirmatively) .

“Q But you do know that Airman Avery and Airman Cassady were sitting on your bed having a nice conversation until 2345, do you?

“A Right.

“Q Your memory is crystal-clear on that point, isn’t it?

“A Yes.”

The defense case consisted of testimony to the effect that Rutherford did not have a good reputation for truthfulness, whereas the accused was “trustworthy” and “a very dependable worker.” No "direct evidence was presented concerning the accused’s state of mind at the time he testified at the Avery-Cassady trial. In an out-of-court hearing, however, defense counsel requested an instruction on the effect of the evidence of the accused’s intoxication on the night of the incident in his room. The request reads as follows:

“Although perjury does not require a specific intent to deceive, it does require a lack of honest belief in the truthfulness of the testimony given and an element of willfulness and each of these elements may be negated by partial mental impairment.”

In support of his request, defense counsel said that he did not know “how it should be stated,” but he believed that the accused’s intoxication on the night of the incident “would certainly lessen” the accused’s faculty to observe and “also lessen” his ability to recollect what he observed. The law officer indicated he did not see any issue of intoxication as regards the accused’s “mental impairment,” but he would instruct the court-martial on “mistake of fact.” Both counsel commented on the evidence in their final arguments. In his opening argument trial counsel contended it perhaps might be inferred from the evidence of intoxication that the accused was “so drunk he did not see” what went on in his room. To show the fallacy of the inference, he drew attention to the direct and unequivocal nature of the accused’s testimony in the Avery-Cassady trial. Defense counsel argued the point at greater length. He said:

“. . . [0]ne of the things the trial counsel has emphasized and that I am sure and certain he is going to hammer on when I am through is the "... emphatic character of Airman Chaney’s testimony. There has been something about words like, T don’t think so,’ ‘In my opinion’, ‘To the best of my knowledge,’ That is; understood by any witness or layman on the stand. When he says it did not happen, he means by his faculties, by all that is holy, it did not happen. He does not spew open like an oracle or a delphi and have a court concede it is impossible. This might have happened. This boy says, T did not see him,’ ‘They did not have any,’ ‘As I recollect.’ . . . Is he testifying without any earnest belief in the truth of his testimony? How far has he engineered this thing? Is this a monster here, a boy who carefully planned this? ‘Did Rutherford have anything to drink?’ ‘No.’ ‘Did In-man have anything to drink?’ T believe he did not.’ He did not say, ‘I did not see him.’ No. He did not make that needless preface to his comment. . . . ‘Were you thinking pretty clearly?’ ‘Yes.’ Under what circumstances was that reply given? . . . What would the matter of the question asked mean to a 20-year old kid? We cannot see this now from a perusal of the record of trial. It is going to be made a big thing by the trial counsel. Now, he says, ‘Were you thinking clearly, pretty clearly?’ ‘Yes, sir.’ ‘Yes, sir. I was thinking pretty clearly.’ And this is the pivotal statement of the master mind of Airman Basic Chaney. He is out to deceive this court. He is willfully, corruptly, give-ing [sic] false testimony. He testified as to how many drinks he had, 15 or 20 or more drinks. It was Old Granddad night over at the club. All liquor was ten cents. T had 15 or 20.’ Now has he got a diabolical plot to defy a court? If there is one, he is pretty obviously going to say, ‘Well, I did not have too many.’ ”

At the appropriate time the law officer instructed the court-martial on the elements of the offense and the applicable'rules of law. No separate instruction was given on the accused’s honest belief in the truth of what he testified to at the Avery trial, but, in the enumeration of the elements of the offense, the law officer advised the court-martial it must find beyond a reasonable doubt that the accused’s testimony “was false and was willfully and corruptly given; that is, that the accused did not believe it to be true.” At the end of the instruction the law officer called defense counsel’s attention to the fact he had “not given an instruction which . . . [he] indicated to . . . [counsel] that . . . [he] would.” Defense counsel said he had no objection to the instructions as given, and no request for further instructions. The case went to the court-martial, and it returned findings of guilty.

When the record of trial came before the board of review, appellate defense counsel assigned a number of errors. Among these was one alleging that the law officer failed to instruct adequately on the effect of intoxication and the defense of mistake of fact. In opposition, the Government relied upon the staff judge advocate’s discussion of the issues in his thorough post-trial review. The staff judge advocate pointed out there was no issue of the accused’s mental impairment raised by the evidence of the accused’s intoxication either as to the events in his room or as to the accused’s testimony at the Avery trial. He also discussed the necessity of a separate instruction on mistake of fact. He pointed out that the law officer had instructed the court-martial it must believe beyond a reasonable doubt that the accused testified “willfully and corruptly.” He concluded that “implicit” in the court-martial’s findings of guilty in accordance with this instruction was a finding the accused did not believe the testimony he gave at the Avery trial was true.

The board of review analyzed the defense requested instruction, and the assignment of error predicated upon it. It concluded that no instruction on mistake of fact or intoxication was necessary. In support of its conclusion, it referred to a statement in paragraph 210 of the Manual for Courts-Martial that a witness can commit perjury “by testifying that he knows a thing to be true when in fact he either knows nothing about it at all or is not sure about it, and this is so whether the thing is true or false in fact.” The board of review reasoned that if the accused lacked knowledge of the incident because of his intoxication, then at the Avery trial he testified to matters about which he knew nothing and was, therefore, guilty of perjury. “This would be equally true,” the board of review added, “even if the evidence showed as a matter of fact that Avery and Cassady did not consume any beer during the evening in question.” The second certified question asks whether the board of review is correct in this statement. The third certified question asks whether the board of review is correct in saying, as it did immediately after the remark quoted above, that “ [i] ntoxication existing at the time of an event cannot be a defense to unqualified testimony about the event given before a court-martial at a later date.”

Government counsel maintain it is unnecessary to reach the second certified question. For a different reason we agree, not only as to that question but also as to the third certified question. The specific issue before the board of review was whether the law officer erred in refusing to give the instruction requested by defense counsel and an instruction on mistake of fact. It decided no such instructions were necessary. The correctness of its decision is the subject of the fourth certified question. The answer to that question is, therefore, dispositive of the case. Appropriately, we can pass over the second and third questions as intermediate issues. Cf. United States v Fisher, 7 USCMA 270, 273, 274, 22 CMR 60.

Intoxication may so impair the mental processes as to prevent a person from entertaining a partie-ular intent or reaching a specific state of mind. United States v Simmons, 1 USCMA 691, 696, 5 CMR 119. The intent or state of mind is that required for the offense charged. Since the offense charged here is perjury, and that offense was allegedly committed by the accused when he testified in the Avery-Cassady trial, it necessarily follows that intoxication at an earlier time is immaterial. There being no evidence whatever that the accused was intoxicated at the time he testified, there was no issue of mental impairment, and the law officer’s ruling was entirely correct. United States v Lacy, 10 USCMA 164, 27 CMR 238.

That brings us to what the staff judge advocate described in the post-trial review as the defense “theory of mistake of fact.”. Putting aside possible waiver or abandonment of the issue by the failure to object after defense counsel’s attention was specifically called to the omission, we turn to the defense argument that the accused’s intoxication at the time he saw the events about which he testified, is a proper matter for the court-martial’s consideration in determining whether he “willfully and corruptly” testified falsely. Heavy reliance is put on Lyle v State, 31 Tex Crim 103, 19 SW 903 (overruled in Evers v State, 31 Tex Crim 318, 20 SW 744, on the ground that a state statute expressly provided that intoxication was not a defense; see also Clinton v State, 132 Tex Crim 303, 104 SW 2d 39, 42). In that case there was evidence the accused was intoxicated both at the time of the event to which he testified, and at the time he testified before the grand jury. The appellate court reversed his conviction for perjury before the grand jury on the ground that an instruction should have been given on the effect of the defendant’s intoxication. It divided, however, on which intoxication was important. One judge considered only the intoxication at the time the defendant testified. The author of the principal opinion advanced that view, but he also considered the effect of intoxication at the time of the events. In part, he said:

“. . . There is evidence tending to prove that, when the game was played, defendant was present, but drunk. The court should have instructed the jury that they might consider this evidence, with, all other testimony in the case, for the purpose of determining whether the defendant . . . remembered having seen the game played, if in fact he did see it.”

Even under the Lyle dictum, intoxication at the time of the event is impor-tant only as it relates to the ability to see and recall what transpired. This was the point emphasized by defense counsel. It is the basis for his argument that the accused may have testified contrary to the actual fact, but he was honest rather than corrupt in his testimony, since what he testified to accorded with the best of his ability to recall. The essence of this idea is embraced in the instruction to the court-martial that it must find beyond a reasonable doubt that the accused did not believe his testimony to be true. As we pointed out in United States v McCarthy, 11 USCMA 758, 761, 29 CMR 574, a statement that the accused did not believe his testimony to be true “negate[s] the defense of honest belief in the accuracy of the statement involved.” Thus, the substance of the defense position was specifically included in the instructions given. Accordingly, we answer the fourth certified question in the affirmative.

The decision of the board of review is affirmed.

Judge Latimer concurs in the result.

1 “Any person subject to this chapter who in a judicial proceeding or in a course of justice willfully and corruptly gives, upon a lawful oath or in any form allowed by law to be substituted for an oath, any false testimony material to the issue or matter of inquiry is guilty of perjury and shall be punished as a court-martial may direct.”

2 The willful destruction charge was later disapproved by the general court-martial authority.