United States v. Davidson

14 M.J. 81, 1982 CMA LEXIS 16068

• Court: United States Court of Military Appeals
• Decided: September 7, 1982
• Docket: No. 41,303; ACM 22826
• Status: Published

Opinions

Opinion

FLETCHER, Judge:

Appellant was found guilty of involuntary manslaughter, in violation of Article 119, Uniform Code of Military Justice, 10 U.S.C. § 919.¹ The members of his general court-martial sentenced him on March 28, 1980, to a dishonorable discharge, 3 years’ confinement at hard labor,² total forfeitures, and reduction to the lowest enlisted pay grade. The convening authority approved this sentence.³ The Court of Military Review affirmed the findings of guilty and the sentence.⁴ His sentence to confinement at hard labor has not yet been ordered executed. Article 71(c), UCMJ, 10 U.S.C. § 871(c).⁵

After announcement of findings of guilty, the assistant trial counsel noted that “[t]he accused has been in pretrial restraint at Spangdahlem Air Base Germany, and other locations, since the 5th of November 1979.” Several witnesses were called by the defense to testify as to appellant’s good conduct while in pretrial confinement. Defense counsel further argued to the members that appellant’s pretrial confinement should be considered by them in arriving at an appropriate sentence. Defense counsel, however, did not request a particular instruction that appellant’s time in pretrial confinement be considered by the members in arriving at an appropriate sentence. The military judge did not give such an instruction. On appeal, both sides agree that appellant was in pretrial confinement for a period of 148 days.

Before the Court of Military Review and before this Court in his initial petition for review, appellant challenged the legality of this sentence adjudged by the court-martial and approved by the convening authority. He asserted that “[t]he military judge erred by failing to instruct the jury that in adjudging an appropriate sentence, they should consider time spent by the appellant in pretrial confinement.” He further averred that “appellant’s sentence is illegal in that it exceeds the maximum punishment authorized in the Table of Maximum Punishments.” The Court of Military Review affirmed the findings of guilty and the sentence without particularly indicating its opinion as to these issues.

This Court specified the following issue for review:

WHEN THE COMBINATION OF PRETRIAL CONFINEMENT AND CONFINEMENT ADJUDGED IS GREATER THAN THE MAXIMUM CONFINEMENT AUTHORIZED BY THE TABLE OF MAXIMUM PUNISHMENTS, MUST ACTION BE TAKEN BY THE CONVENING AUTHORITY OR THE COURT OF MILITARY REVIEW TO ASSURE THAT THE TIME SPENT IN CONFINEMENT IS NOT GREATER THAN THE MAXIMUM CONFINEMENT AUTHORIZED BY THE TABLE IN VIEW OF THE DUTY TO APPROVE ONLY AN APPROPRIATE SENTENCE.

Appellant, relying on United States v. Griffin, 20 C.M.R. 529 (N.B.R.1955), asserts that he is entitled to a sentence approved by the convening authority or affirmed by the Court of Military Review which gives him credit for his pretrial confinement. He argues that the adjudged sentence of confinement at hard labor and the confinement served prior to the court-martial cannot exceed the maximum punishment authorized for the offense by the President in paragraph 127c, Manual for Courts-Martial, United States, 1969 (Revised edition). See Article 56, UCMJ, 10 U.S.C. § 856. Accordingly, he concludes that his sentence, to the extent it fails to credit him with his pretrial confinement, is illegal. See generally McClaughry v. Deming, 186 U.S. 49, 22 S.Ct. 786, 46 L.Ed. 1049 (1902); Runkle v. United States, 122 U.S. 543, 7 S.Ct. 1141, 30 L.Ed. 1167 (1887).

The decision in United States v. Griffin, supra, as a matter of law, offers little, if any, support for appellant’s argument. In that case, the Board of Review, in the exercise of its unique sentencing power, felt that credit should be given to that particular accused. See Article 66(c), UCMJ, 10 U.S.C. § 866(c). It simply found the sentence too severe under the facts of that case and in view of the time appellant spent in pretrial confinement. United States v. Tally, 17 U.S.C.M.A. 491, 38 C.M.R. 289 (1968); United States v. Lanford, 6 U.S.C.M.A. 371, 20 C.M.R. 87 (1955). No immutable principle of law was established by this decision requiring that all convicted servicemembers be given credit by the Board of Review for time spent in pretrial confinement.⁶

Appellant has not introduced any evidence that his pretrial confinement was more rigorous than necessary to insure his presence for trial. See Article 13, UCMJ, 10 U.S.C. § 813. Moreover, he has not shown that the conditions of this confinement were as onerous as those faced by prisoners serving sentences to confinement at hard labor executed in accordance with Article 71(c). Accordingly, his claim must be considered technical in nature and its merit dependent on the validity of his assumption that pretrial confinement as a matter of military law is punishment of confinement at hard labor for purposes of Article 56 and paragraph 127c, Manual, supra. See Noyd v. Bond, 395 U.S. 683, 696, 89 S.Ct. 1876, 1883, 23 L.Ed.2d 631 (1969).

Pretrial arrest and confinement are not new procedures to the enforcement of military law in our armed forces. See DeHart, Courts-Martial 71-81 (1846). In fact, such confinement was traditionally considered to continue until it was terminated by the proper reviewing authority in his action upon the proceedings of the court-martial. See G. Davis, A Treatise on the Military Law of the United States 64 (3rd ed. 1913 Revised); W. Winthrop, Military Law and Precedents 117, 123, 475 (2nd ed. 1920 Reprint). Confinement during this period was viewed as a matter of law wholly distinguished from confinement imposed by sentence because a prisoner could not be legally punished until the convening authority acted.. See Davis, supra at 160-61, 189; Winthrop, supra at 124-25. It was not considered punishment but temporary restraint only as strict as necessary to secure the presence of the accused for trial and execution of his sentence.⁷ Id.

The Uniform Code of Military Justice likewise defines pretrial confinement as “the physical restraint of a person.” Article 9, UCMJ, 10 U.S.C. § 809. Moreover, in enacting Article 10, UCMJ, 10 U.S.C. § 810, Congress also acknowledged that persons may be confined, if necessary, for the purposes of trial. We believe Congress recognized that certain psychological and physical deprivations were inherent in such pretrial confinement. Article 13; see Courtney v. Williams, 1 M.J. 267, 271 (C.M.A. 1976); United States v. Bayhand, 6 U.S.C. M.A. 762, 21 C.M.R. 84 (1956). Yet, in Article 13,⁸ it expressly provided that the imposition of pretrial restraint was not for the purpose of punishment but a necessary tool for the administration of justice. See Reed v. Ohman, 19 U.S.C.M.A. 110, 115, 41 C.M.R. 110, 115 (1969). Furthermore, to insure against abuse of this power, it expressly limited the conditions of this confinement in accordance with its purpose. See United States v. Bayhand, supra at 766, 21 C.M.R. at 88. Accordingly, as a matter of law, we cannot accept appellant’s unsupported assumption that pretrial confinement is punishment as intended by Congress in Article 56 or that provided for by the President in paragraph 127e, Manual, supra. See also para. 125, Manual, supra.

Appellant also asserts by necessary implication that pretrial confinement is the legal equivalent of confinement at hard labor. See para. 127c, Manual, supra. Traditionally, there is no support for this position as a matter of law because hard labor was not authorized to be exacted from a person in this status. Davis, supra at 485; Winthrop, supra at 125, 425-26. Moreover, in the present Uniform Code of Military Justice, confinement prior to trial may be no more rigorous than circumstances require to insure the accused’s presence. See Article 13. The same cannot be said for confinement executed pursuant to a finally approved court-martial sentence. See Article 58(b), UCMJ, 10 U.S.C. § 858(b); para. 126j, Manual, supra. Accordingly, absent any showing from appellant that his pretrial confinement as a matter of fact was confinement at hard labor, his argument is without legal merit.

As noted earlier, appellant asserted that his adjudged and approved sentence was illegal because the military judge failed to particularly instruct the members to consider his pretrial confinement in arriving at an appropriate sentence.⁹ See para. 76a(2), Manual, supra. In addition, we note that the staff judge advocate likewise failed to particularly advise the convening authority that he should consider this pretrial confinement in approving an appropriate sentence.¹⁰ Para. 88b, Manual, supra. We agree that error occurred in the manner in which this matter was presented to these sentencing bodies. See generally United States v. Wheeler, 17 U.S.C.M.A. 274, 38 C.M.R. 72 (1967).

In resolving this question, we believe that it is necessary to appreciate the developing role pretrial confinement has played as a matter of law in the determination of an appropriate sentence for a servicemember. Prior to enactment of the Uniform Code of Military Justice, pretrial confinement was a matter in mitigation to be considered by a reviewing authority in his action on sentence. See para. 87 b, Manual for Courts-Martial, U. S. Army, 1949; sec. 469, Naval Courts and Boards, 1937; para. 87b, Manual for Courts-Martial, U. S. Army, 1928; para. 401, Manual for Courts-Martial, U. S. Army, 1921; para. 401, Manual for Courts-Martial, U. S. Army, 1917. See also Davis, supra at 157-58; Winthrop, supra at 120, 426, 475. It was considered highly irregular and impermissible for the members to consider pretrial confinement in reaching an appropriate sentence. See Davis, supra; Winthrop, supra at 393, 402.¹¹ However, they could recommend to the reviewing authority that he grant clemency to the accused on this basis. Davis, supra; Winthrop, supra at 443.

After World War II and during the period in which the Uniform Code of Military Justice was drafted, Professor Arthur J. Keefe of Cornell Law School emerged as a leading proponent for change in the manner in which pretrial confinement was considered in the military justice system. See Report of Navy General Court-Martial Sentence Review Board (Keefe Report) 185 (Jan.1947); there Keefe asserted that pretrial confinement should not simply be a matter of clemency to be considered by the convening authority but rather should be “properly one of the sentence factors that the court should consider in exercising its discretion as to length of sentence.”¹² In 1951, the President in promulgating the Manual for Courts-Martial provided that pretrial confinement was a matter to be brought to the attention of the court-martial and to be considered by it in adjudging an appropriate sentence. See para. 756(1), Manual for Courts-Martial, United States, 1951. Moreover, pretrial confinement was still to be considered by the convening authority in his action on the sentence. See para. 886, 1951 Manual. Such an abrupt change in the procedures of military law cannot be gainsaid.

The Court of Military Review stated in its order affirming appellant’s sentence that it considered his assignment of errors and found no error materially prejudicial to his substantial rights was committed. The Government in its brief had earlier argued that the matter of pretrial confinement had been sufficiently brought to the attention of the court members by defense counsel’s closing argument and the trial judge’s general instruction to consider all matters in extenuation and mitigation. In view of the importance placed by the President on this sentencing factor and the requirement in United States v. Wheeler, supra, that the military judge particularly delineate the matters which the members should consider in their deliberation, we hold the military judge’s rote instructions in the present ease were inadequate as a matter of law.

The Court of Military Review decision is not necessarily inconsistent with our holding of legal error. See United States v. Vasquez, 9 M.J. 517 (A.F.C.M.R.1980). It can be read to simply say that the error asserted by appellant was not substantially prejudicial to him. See Article 59(a), UCMJ, 10 U.S.C. § 859(a). Such an assessment of prejudice we hold also erroneous as a matter of law in the present case.

Our previous discussion of the treatment of pretrial confinement as a matter of military law makes clear that the convening authority traditionally considered this factor in his decision to approve the sentence. See Winthrop, supra at 401-03, 473-75. The present Manual for Courts-Martial does not eliminate this requirement even though it now also provides for the consideration of this factor by the court-martial. See para. 886,1969 Manual. As indicated earlier, the staff judge advocate in the post-trial review also did not particularly advise the convening authority as to the need to consider this factor in his decision. This error compounds the error of the trial judge. There is no indication in the record of trial and allied papers that the Court of Military Review considered this matter in its assessment of prejudice. In addition, it is uncontroverted that appellant received the maximum authorized punishment to confinement at hard labor in this case. See United States v. Wheeler, supra at 278, 38 C.M.R. at 76. In view of these circumstances, we hold that the Court of Military Review’s assessment of prejudice was erroneous as a matter of law. See United States v. Dukes, 5 M.J. 71 (C.M.A.1978).

The decision of the United States Air Force Court of Military Review is affirmed as to the findings, but because the maximum authorized punishment which was adjudged, approved, and affirmed in this case is erroneous as a matter of law, its decision as to sentence is reversed. Since the error concerned only a portion of the sentence to confinement at hard labor, such error can be cured by reducing the affirmed sentence by 143 days. Accordingly, the record of trial is returned to the Judge Advocate General of the Air Force for resubmission to the Court of Military Review to reassess the sentence in this case and at the very least reduce the sentence to confinement as indicated.¹³

1 . Appellant was charged with premeditated murder, in violation of Article 118, Uniform Code of Military Justice, 10 U.S.C. § 918. He was found not guilty of this offense but guilty of the lesser included offense of involuntary manslaughter, in violation of - Article 119, UCMJ, 10 U.S.C. § 919. See Article 79, UCMJ, 10 U.S.C. § 879.

2 . This is the maximum confinement at hard labor authorized as punishment for this offense. Article 56, UCMJ, 10 U.S.C. § 856; para. 127c, Manual for Courts-Martial, United States, 1969 (Revised edition). Both parties at trial agreed and the military judge so instructed the members.

3 . Appellant’s sentence was approved on July 18, 1980, and the place of confinement pending appellate review was designated as the United States Disciplinary Barracks, Fort' Leavenworth, Kansas. His sentence to confinement at hard labor could not be executed until appellate review was completed under Articles 66 and 67, UCMJ, 10 U.S.C. §§ 866 and 867, respectively. See Article 71(c), UCMJ, 10 U.S.C. § 871(c). Appellant, however, was transferred to the disciplinary barracks and confined while awaiting completion of appellate review. See Reed v. Ohman, 19 U.S.C.M.A. 110, 116-17, 41 C.M.R. 110, 116-17 (1969). Military prison authorities were required to compute appellant’s sentence to be served when they received the order of the convening authority approving the sentence. See para. 4-5, AR 190-47 (Oct. 1978). In their computation, they were to consider that appellant’s sentence to confinement began to run on the date it was adjudged by the court-martial. Article 57(b), UCMJ, 10 U.S.C. § 857(b). In a loose sense, appellant could be said to be serving his sentence to confinement during this period. See Reed v. Ohman, supra at 116 n.3, 41 C.M.R. at 116 n.3. See also Article 13, UCMJ, 10 U.S.C. § 813, as amended by Act of November 20, 1981, Pub.L.No. 97-81, 95 Stat. 1085; H.R. 4792, H.R.Rep.No. 97-306, 97th Cong., 1st Sess. 4-5 (1981), U.S.Code Cong. & Admin.News 1981, p. 1769.

4 . This decision of the Court of Military Review was handed down on May 15, 1981. During the pendency of appellant’s appeal before this Court, he was released on parole on September 24, 1981. 10 U.S.C. § 952; AFR 125-23 (1976). See generally AR 190-47 (1978).

5 . In federal district court, once sentence is imposed and the judgment is signed by the judge and entered by the clerk, it may be executed unless stayed by the court. See Fed.R.Crim.P. 32 and 38(a). The execution of sentence may be stayed by taking an appeal (Fed.R.App.P. 3 and 4), and being released after judgment of conviction in accordance with Fed.R.App.P. 9(b) and 18 U.S.C. §§ 3146, 3148. If the execution is not stayed, the executed sentence shall begin to run from the date on which the federal prisoner is received at the place of incarceration for service of such sentence with credit to be given by the attorney general for previous time in custody related to the conviction. 18 U.S.C. § 3568. In view of these civilian procedures, the length of time between judgment and execution of sentence should not be as long as the same period in the military justice system.

6 . Cf. Thomas v. United States, 8 M.J. 504 (A.F. C.M.R. 1979); United States v. Corl, 6 M.J. 914 (N.C.M.R.1979); Hart v. Kurth, 5 M.J. 932 (N.C.M.R.1978).

7 . As a matter of military tradition, the sentence reached by the members of a court-martial was in the nature of a recommendation to the officer who convened the court. See W. Winthrop, Military Law and Precedents 390, 447 (2nd ed. 1920 Reprint). As a matter of statutory law, the sentence could not be executed until this reviewing authority acted. Id. at 447-450. Cf. nn.3 and 5, supra.

8 . As indicated in n.3, supra, Article 13 was amended recently. This amendment is not pertinent to the present case. Article 13 as originally enacted was derived from Article of War 16 (1948). See Hearings on H.R. 2498 Before a Subcommittee of the House Armed Services Committee, 81st Cong., 1st Sess., reprinted in Index and Legislative History, Uniform Code of Military Justice [hereafter cited Index and Legislative History] 916-17 (1949), and S.Rep. 486, 81st Cong., 1st Sess. 10 (1949). The earlier provision was enacted by Congress at the request of Congressman Fulton as a floor amendment to H.R. 2575, the Elston Bill of 1948. See 94 Cong.Rec. 184 (1948).

9 . The military judge instructed the members: In determining an appropriate sentence, you should consider the facts and circumstances surrounding the commission of the offense of which the accused has been found guilty in this trial. Additionally, you must consider all matters in extenuation and mitigation properly before the court. In this case, factors you should take into consideration include the accused’s awards and decorations, that is, the Good Conduct Medal, the National Defense Service Medal, and the Air Force Longevity Service Award; the accused’s duty performance and efficiency; and the opinions of his superiors. On the other hand, there’s been evidence presented by the prosecution in aggravation which might — which you might evaluate as militating against or lessening the favorable aspects of the evidence presented on behalf of the accused. Such evidence consisted of the accused’s prior court-martial conviction. In summary, you should consider all the facts and circumstances of this case as extenuated and miti-

gated by other matters presented for your consideration. It is for you to determine the relative importance of the evidence by the exercise of your good judgment and common sense.

(Emphasis added.) No particular mention was made of the time appellant spent in pretrial confinement.

10 . The Staff Judge Advocate stated in the Personal Data Section of his advice that appellant spent 143 days in pretrial confinement and, without mentioning this pretrial confinement, recommended that the sentence be approved.

11 . Winthrop notes that, although irregular, it was not uncommon for members of a court-martial to award a lenient sentence on this basis. See Winthrop, supra at 442.

12 . See also Keefe and Moskin, Comments, Codifíed Military Injustice, 35 Cornell L.Q. 151, 160 (1949); Index and Legislative History, supra at 839 (House) and 250 (Senate).

13 . Appellant has not incorporated in his petition for direct review an application for a writ of habeas corpus challenging the computation of his period of parole. See United States v. Richardson, 8 M.J. 157, 158 (C.M.A.1980). It is asserted in a brief of the amicus curiae that this incorrect sentence action did affect his eligibility for parole. See United States v. Heard, 3 M.J. 14, 23 (C.M.A.1977); United States v. Earner, 1 M.J. 371 (C.M.A.1976). However, as indicated earlier, appellant has already been granted parole. In view of these facts, we need not entertain the question whether military prison authorities were required by DOD Instr. 1325.4 (Oct. 7, 1968) to administratively credit appellant in the computation of his sentence for the 143 days he spend in pretrial confinement. See Lee v. United States, 400 F.2d 185 (9th Cir. 1968). In any event, the relief ordered by this Court should render this question moot.