United States v. Cook

7 M.J. 860, 1979 CMR LEXIS 634
U.S. Army Court of Military Review·Decided June 28, 1979·No. CM 437593·Published·Cited by 3 cases

Opinion

OPINION OF THE COURT

FULTON, Senior Judge:

Tried by a general court-martial at Fort Hood, Texas, in October 1978, the appellant was, despite his plea, convicted of assault with the intentional infliction of grievous bodily harm in violation of Article 128, Uniform Code of Military Justice, 10 U.S.C. § 928 (1976). His sentence to a bad-conduct discharge and confinement at hard labor for one year was approved by the convening authority. The case is before us pursuant to Article 66, Uniform Code of Military Justice, 10 U.S.C. § 866 (1976), with two errors urged as grounds for relief.

I

Appellant’s first assignment of error asserts that the military trial judge abused his discretion by denying the trial defense counsel’s challenges of several court members based upon an alleged inflexibility of attitude concerning sentences. The matter is well and fully discussed in the staff judge advocate’s post-trial review, as well as in the briefs. Examining the record, we agree with the staff judge advocate and the appellee that the challenged members did not display an inelastic attitude so as to require sustaining the challenges.

II

Appellant’s second assignment attacks the staff judge advocate’s post-trial review, which was prepared pursuant to Article 61, Uniform Code of Military Justice, 10 U.S.C. § 861 (1976), and paragraph 85 of the Manual for Courts-Martial, United States, 1969 (Revised edition). The review is of the abbreviated type heretofore considered by this Court in United States v. Sankey, 6 M.J. 790 (A.C.M.R.1978); United States v. Cordova, 7 M.J. 673 (A.C.M.R.1979); United States v. Shufford, 7 M.J. 716 (A.C.M.R.1979); and United States v. Williams, 7 M.J. 725 (A.C.M.R.1979).

The error assigned is as follows:

THE STAFF JUDGE ADVOCATE’S POST-TRIAL REVIEW WAS PREJU-DICIALLY DEFICIENT IN THAT IT FAILED TO ADVISE THE CONVENING AUTHORITY IN THE FOLLOWING PARTICULARS:
1) THAT THE CONVENING AUTHORITY MUST BE CONVINCED OF APPELLANT’S GUILT BEYOND A REASONABLE DOUBT;
2) THAT THE CONVENING AUTHORITY IS NOT BOUND BY EITHER THE COURT’S FINDINGS OR THE STAFF JUDGE ADVOCATE’S OPINION;
3) THAT AS CONVENING AUTHORITY HE HAS ABSOLUTE AUTHORITY TO REDUCE THE SENTENCE [862] ADJUDGED FOR ANY OR NO REASON; AND
4) THAT IT WAS THE GOVERNMENT’S BURDEN TO OVERCOME APPELLANT’S DEFENSE OF VOLUNTARY INTOXICATION BEYOND A REASONABLE DOUBT.

When the staff judge advocate’s review had been prepared, a copy was served on appellant’s trial defense counsel as required since 15 May 1975 by United States v. Goode, 1 M.J. 3 (C.M.A.1975). The trial defense counsel (both individual and detailed counsel) responded with a rebuttal introduced by the following paragraph:

The Defense rebuts the following points of the Staff Judge Advocate’s review in this case:
a. The admissibility of the photograph of PFC Haifa’s wound.
b. The military judge’s procedures and rulings on voir dire and challenges for cause.
c. The summary of the evidence.
d. The defense of self-defense.
e. The defense of voluntary intoxication.

Particularly to be noted is the fact that the trial defense counsel’s response complains of none of the matters now alleged by appellate counsel with the possible exception of that pertaining to the defense of voluntary intoxication (a defense to specific intent).1

Referring to “the defense of voluntary intoxication,” the staff judge advocate’s review informed the convening authority that, “you are advised that you should consider the evidence of voluntary drunkenness in determining whether the accused had sufficient mental capacity to and did in fact entertain the specific intent to inflict grievous bodily harm upon his victim.” After a brief summary of the evidence relating to intoxication, this portion of the review concluded with the comment, “I am convinced beyond a reasonable doubt that, although the accused may have been intoxicated to some extent, he could and did possess the intent to inflict grievous bodily injury.” In an “Appendix” to the review, the convening authority was advised that, “[bjefore approving the findings of guilty, you must be convinced beyond a reasonable doubt that: . d. The accused at that time had the specific intent to inflict grievous bodily harm.”

The defense counsel’s rebuttal emphasized different facts and concluded with the assertion that, “[t]he result of that is that the government has not sustained its burden of proof as to the element of intent to do grievous bodily harm.” We find that the review — which is not attacked on this ground — presented a fair and reasonable summary of the evidence and correctly and adequately advised the convening authority. In view of what we have quoted above, we hold that the review did adequately indicate to the convening authority that it was the Government’s burden to overcome the affirmative defense beyond a reasonable doubt. Appellant’s assignment of error to the contrary is devoid of merit.

As to the remaining deficiencies asserted by the appellant, the issue is whether they were waived because they were not raised in trial defense counsel’s comment and rebuttal to the review. On this issue, we are confronted with seemingly conflicting opinions of our own Court.

In United States v. Sankey, supra, a panel of this Court sua sponte noted error in a review similar to that involved in this case because it failed “to delineate the convening authority’s responsibility [and to] advise him of the standard under which he was to consider the staff judge advocate’s opinion.” 2 The Court also held, however, that the error did not result in a [863] manifest miscarriage of justice and, accordingly, was waived because it had not been challenged by the trial defense counsel.3

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United States v. Cook, 7 M.J. 860, 1979 CMR LEXIS 634 (usarmymilrev 1979).

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