United States v. Daniel

16 C.M.A. 492, 16 USCMA 492, 37 C.M.R. 112, 1967 CMA LEXIS 360, 1967 WL 4199

• Court: United States Court of Military Appeals
• Decided: February 3, 1967
• Docket: No. 19,539
• Status: Published

Opinions

Opinion

Quinn, Chief Judge:

As a result of an early morning street fight, the accused was charged with premeditated murder of a German civilian, in violation of Article 118, Uniform Code of Military Justice, 10 USC § 918. At trial, before a general court-martial, he initially entered a plea of not guilty but, before the case was submitted to the court members for findings, he changed the plea to guilty of involuntary manslaughter, in violation of Article 119, Code, supra, 10 USC § 919. However, the court-martial convicted him of unpremeditated murder, and imposed a sentence which included confinement at hard labor for forty years. The convening authority approved the findings of guilty and the sentence, but the board of review modified the latter to reduce the period of confinement to twenty-seven years. On this appeal, the accused contends he was prejudiced by several alleged deficiencies in the law officer's instructions.

The first assignment of error challenges the denial of a requested instruction on voluntary manslaughter. In an out-of-court hearing, defense counsel argued that the evidence in the case required an instruction on the effect of fear sufficient to produce heat of passion in the accused. See United States v Desroe, 6 USCMA 681, 21 CMR 3. The law officer denied the request. His ruling is fully supported by the record of trial.

Appellant testified on the merits. His testimony provides the best evidence of his emotional state at the time he pulled out a pistol and shot the victim. According to his version of the events, he, three fellow soldiers and his girl friend, were standing by his car on Leopold Strasse, Munich, Germany, at about 2:00 a.m. Three “guys” approached the girl and said something to her. She walked away from them, and they started up the street away from the accused’s group. The accused went to his car, took out a pistol, and hurried after them. He stopped them at the, corner to find out “what they were trying to do.” The trio turned around at the accused’s call, and moved toward him. He pulled out his pistol, and told them not to get “ ‘too close.’ ” Someone shouted “‘[t]he police are coming,’” and the accused turned back toward his own group. Looking behind to see if any of the trio had followed him, he saw no one. About that moment he was “jumped” from behind by a German civilian. The man wrapped his arms around the accused, and pinned the accused’s arms to his side. They struggled for a few minutes. The accused “hollered” to his companions for help which, other evidence shows, was immediately provided. The accused broke away from the German. As he did so, he was struck across the neck with the base of the hand by a German later identified as Thomas Schaupp. Off balance, he staggered to the opposite side of the street, about fifteen to eighteen feet away from Schaupp. There he pulled the pistol from his belt. His account of what transpired next is as follows:

“Q. [Defense Counsel] Now, you say you pulled the gun and then it went off. Could you explain that a little clearer?

“A. Well, I pulled the gun out of my belt, and as I brought it around I had it in front of me, and I started to raise it and it went off.

“Q. At that particular time did you intend to shoot the weapon?

“A. No, I did not.

“Q. Did you ever intend to shoot the weapon that night?

“A. No, I did not.

“Q. In fact, from the time you pulled out the weapon, what’s the next thing you remember?

“A. The weapon going off.

“Q It just went off?

“A. Right.

“Q. But at no time that night did you ever intend to use that pistol?

“A. No, I did not.

“Q. [Trial Counsel] . . . Now, was anybody coming after you when that gun was pulled out the last time?

“A. I don’t remember whether he was coming after me or not.

“Q. You don’t remember?

“A. No.

“Q. And you pulled the gun out and you were looking in the direction and you aimed the gun in the general direction of the stand-out figure of the victim and the figures of the other persons standing there; is that right?

“A. Well, I didn’t actually aim the gun at him.

“Q. Well, what did you do with the gun?

“A. I pulled it out of my belt and brought it around in his direction, and as I started to bring it up it went off.

“Q. But you saw the figures of the people over there; is that right?

“A. Right.

“Q. And this was to do what; to defend yourself? Were you prepared to kill a man to defend yourself?

“A. No.

“Q. What was the . purpose of drawing a gun?

“A. To scare him.

“Q. You were going to scare him? I think you testified that no one was coming after you. What were you going to scare them from doing?

“A. He had already hit me once. I didn’t know whether he was going to do it again.

“Q. And you think that by pulling the gun it would keep him from hitting you again; is that what you wanted to keep him from doing?

“A. Right.

“Q. ... I think you testified this way: that you said that you didn’t pull the trigger, or you didn’t remember pulling the trigger. Are you telling the court that the gun went off without somebody pulling the trigger?

“A. No.

“Q. Somebody pulled the trigger?

“A. Somebody.

“Q. Who?

“A. It was me, but I don’t remember pulling it.

“Q. You don’t remember pulling it. I just wanted to clear that one point up. You don’t deny the fact now, Daniel, that you were on the business end of that gun and that gun went off and it killed Thomas Schaupp? You don’t deny any of that, do you?

“A. Right.

“Q. And you don’t deny that at the time that you pulled that gun, you knew the gun was loaded, didn’t you? You knew there were rounds in that magazine?

“A. I knew there were rounds in the weapon. Whether it was loaded or not, I don’t know.

“Q. You don’t remember whether or not you operated the slide at that time ?

“A. I don’t remember doing it, no.

“Q. [Law Officer] Was anybody coming towards you? I think you testified no one was coming towards you.

“A. I didn’t know whether the man was coming toward me or not.”

From no standpoint does the accused’s testimony support a conclusion he shot Schaupp because he was so enraged at Schaupp’s attack, or so feared Schaupp or another German civilian would continue the attack that he was roused to heat of passion. The accused expressly and emphatically disclaimed an intent to kill or inflict grievous bodily harm. The one point he emphasized was that the pistol went off without any intention on his part. Nothing in his testimony indicates in the slightest degree that he acted in heat of passion caused by fear. There is a similar absence of testimony to this effect in the Government’s case.¹ The requested instruction was, therefore, properly refused. See United States v Madison, 14 USCMA 655, 658-659, 34 CMR 435.

A second requested instruction is the subject of the accused’s second assignment of error. This request was also denied. It is as follows:

“You are hereby instructed that if you find the accused was justified in drawing his pistol in self-defense and that the pistol was discharged unintentionally, thereby killing the victim, then you must return a finding of not guilty.”

Since the accused pleaded guilty to involuntary manslaughter, in violation of Article 119(b) of the Uniform Code, supra, it is difficult to understand his present contention that he was prejudiced by the failure to give an instruction which would have required the court-martial to find him innocent of any wrong. Appellate defense counsel contend the plea of guilty should not be considered by this Court in assessing the merits of the contention, because the plea of guilty was the product of “blatant . . . coercion.” This argument is the exact opposite of the representations made by defense counsel and the accused to the law officer at trial. There, the accused and his counsel informed the law officer the change in plea from not guilty to guilty of involuntary manslaughter was the result of the accused’s “own free will,” and had been determined upon only after both defense lawyers had fully explained its meaning and effect to the accused. The accused personally told the law officer he wanted to enter the plea of guilty to involuntary manslaughter because he was “in fact guilty.” He also said he and his counsel “all agreed” the change in plea was the “best action” he could take in light of “the evidence that has been presented in this case.” However, disregarding the inconsistency between the accused’s trial representations and his present contention, the law officer correctly denied the requested instruction.

If the accused had shot the victim in self-defense, he would, of course, have been excused from all criminal liability for Schaupp’s death. However, the accused did not contend he shot in self-defense. Defense counsel specifically conceded the accused did not rely upon that defense. In the discussion on the requested instruction, he acknowledged the accused “was not justified in shooting the man,” and insisted the defense position was that the shooting was “unintentional.” If the shooting had been “unintentional,” the accused would still not be entitled to an acquittal, as the requested instruction indicated. Assuming the circumstances justified the accused’s displaying the gun (see United States v Vaughn, 15 USCMA 622, 628, 36 CMR 120), he could not, however, handle the lethal instrument in so negligent a manner as to allow it to fire directly into a group of persons only fifteen to eighteen feet away. United States v Pemberton, 16 USCMA 83, 36 CMR 239; United States v Madison, supra. As we pointed out in Pemberton, at page 84, “accident is not synonymous with unintentional injury.” To be excused from all criminal liability, the act which resulted in the death of the victim had to be unexpected. The accused’s withdrawal of the pistol from his belt was deliberate and intentional. He admitted he “pulled the trigger,” while the pistol was pointed in the direction of the victim and “other figures.” These circumstances clearly would have justified a finding of guilty of involuntary manslaughter by culpable negligence. United States v Madison, supra, page 658; United States v Redding, 14 USCMA 242, 246, 34 CMR 22. Consequently, the law officer properly rejected the requested instruction, which would have required the court-martial to acquit the accused.

The final assignment of error challenges the law officer’s refusal to instruct on involuntary manslaughter under Article 119(b)(2). This offense is committed when an illegal act of the accused, directly affecting the person of the victim and not one of those specified in Article 118(4) (burglary, rape, robbery, etc.), causes the victim’s death. After the Government rested its case and before the accused changed his plea, defense counsel argued the evidence justified a finding that the accused was engaged in an assault upon the victim and, therefore, the lesser offense of involuntary manslaughter under Article 119(b)(2) was placed in issue. See United States v Moore, 16 USCMA 375, 36 CMR 531. Assuming such a finding possible, it hardly would be preferred to involuntary manslaughter resulting from culpable negligence, to which the accused pleaded guilty. To many persons, causing the death of a human being by culpable negligence is much less heinous an act than causing death while engaged in an assault with a dangerous weapon. Cf. United States v Thurman, 10 USCMA 377, 27 CMR 451; United States v Underwood, 10 USCMA 413, 27 CMR 487. Be that as it may, the accused’s plea of guilty to involuntary manslaughter eliminated both the possibility of an acquittal and the possibility he might be convicted of a lesser offense. Generally, the failure to instruct on the elements of an offense to which the accused pleads guilty is not prejudicial error. United States v Cruz, 10 USCMA 458, 28 CMR 24. See also United States v Glover, 2 USCMA 164, 7 CMR 40. The offense to which the accused pleaded guilty can be predicated upon different acts, but each constitutes the offense; and each carries the same punishment. Manual for Courts-Martial, United States, 1951, Table of Maximum Punishments, paragraph 127c, page 223. We perceive no likelihood of prejudice merely because the accused chose to rest his plea of guilty upon one act in violation of Article 119(b), rather than another.

The decision of the board of review is affirmed.

1 A Government witness testified the accused made certain motions with his left hand before the gun fired. The testimony justifies an inference that the accused first deliberately cocked the gun, and then fired.