United States v. Davis

45 M.J. 681, 1997 CCA LEXIS 5, 1997 WL 43001

• Court: Navy-Marine Corps Court of Criminal Appeals
• Decided: January 3, 1997
• Docket: NMCM 95 00098
• Status: Published

Opinions

KEATING, Senior Judge:

Corporal Davis was charged with several offenses, the most serious of which was assault with a dangerous weapon, a loaded pistol, in violation of Article 128(b)(1), Uniform Code of Military Justice, 10 U.S.C. § 928(b)(1)(1994) [hereinafter UCMJ]. Pursuant to a pretrial agreement, he pled guilty to, among others, the lesser included offense of simple assault consummated by battery (pointing an unloaded pistol at the victim and touching the victim’s head with the pistol). The Government went forward on the greater offense, and the military judge found the appellant guilty of assault with a dangerous weapon, to wit: an unloaded semi-automatic pistol.

The appellant assigns two errors,¹ the second of which asserts that the military judge erred in finding as a matter of law that the unloaded pistol was a dangerous weapon and asks that we affirm only the lesser included offense of simple assault.² We hold that an aggravated assault can be committed under Article 128, UCMJ, 10 U.S.C § 928, with an unloaded pistol if the victim has a reasonable apprehension of death or grievous bodily harm, and without regard to the actual present ability of the weapon to inflict such harm. We affirm the findings and sentence.³

The appellant was a member of a group of Marines who subjected another Marine to what is euphemistically known as a “fumble” or a “blanket party,” during which the victim was beaten and kicked as a form of unauthorized discipline. During the attack, the appellant pointed his .38 caliber semi-automatic pistol at the victim, touched the victim’s head with the muzzle of the pistol, and said, “I ought to cap you now.” Record at 71. The pistol was not loaded; however, the victim believed that it was loaded and was apparently placed in fear for his life by the appellant’s actions.

The victim also testified that the appellant struck him on the back of his head with the pistol. Had the unloaded pistol been used as a bludgeon, it would qualify as a dangerous weapon for aggravated assault purposes according to the illustration found in the Manual for Courts-Martial (“the Manual” or “MCM”), United States (1995 ed.), Part IV, ¶540(4). An allegation to that effect was deleted from the specification prior to trial. Thus we are presented squarely with the issue of whether the unloaded pistol can be a dangerous weapon for aggravated assault purposes under Article 128(b)(1), UCMJ, 10 U.S.C. § 128(6)(1).

The military trial judge cited the decision in United States v. Sullivan, 36 M.J. 574 (A.C.M.R.1992), as authority for finding that the unloaded pistol used by the appellant to threaten the victim with death was a dangerous weapon. In doing so, he rejected the express language of MCM, Part IV, ¶ 54c (4)(a)(ii), stating that “on the other hand, an unloaded pistol, when presented as a firearm and not as a bludgeon, is not a dangerous weapon or a means or force likely to produce grievous bodily harm, whether or not the assailant knew it was unloaded.”

In Sullivan, one panel of the Army Court of Military Review departed from a long line of Army decisions and declared the above quoted manual language to be no longer valid. The court began by noting that the UCMJ does not define the term “dangerous weapon” and then observed that current law focuses on how the weapon is used rather than on its actual capability. It also takes into account the victim’s reaction. Sullivan, 36 M.J. at 577. Applying the rationale of the Supreme Court in McLaughlin v. United States, 476 U.S. 16, 106 S.Ct. 1677, 90 L.Ed.2d 15 (1986), the Sullivan court held that the pistol in the case was a “dangerous weapon” regardless of whether it was loaded or functional.⁴

Two years later, in United States v. Rivera, 40 M.J. 544 (A.C.M.R.1994), a different Army panel declined to follow Sullivan, characterizing its application of McLaughlin as dieta, and held that an unloaded pistol, used as a firearm and not as a bludgeon, is not a “dangerous” weapon within the meaning of Article 128(b)(1), UCMJ, 10 U.S.C. § 128(b)(1). The Rivera panel rejected the Supreme Court’s reasoning in McLaughlin, seeing no “legally significant similarity” between the Federal bank robbery statute and Article 128, UCMJ, aside from the common use of the words “dangerous weapon.” Rivera, 40 M.J. at 548.

The Rivera panel took the view that the term ‘dangerous weapon’ “is expressly defined in 10 U.S.C. § 928” as “any means used in a manner likely to bring death or grievous bodily harm to the object of the assault.” Id.5 The court relied on the same line of Army decisions rejected in Sullivan. It concluded that when Congress enacted the UCMJ in 1951, “Article 128 became the embodiment of the 1949 Manual for Courts-Martial and prevailing common law followed by the military and Federal courts at the time it was enacted.” Rivera, 40 M.J. at 547.⁶

Finally, in United States v. Turner, 42 M.J. 689 (Army Ct.Crim.App.1995), the Army court, en banc, expressly overruled Sullivan. The court began its analysis of the law by stating: “A ‘dangerous weapon’ for purposes of Article 128(b)(1), UCMJ, is a weapon that has the inherent present capability of inflicting death or grievous bodily harm.” Turner at 691. No authority is cited for this broad statement. However, for the narrower statement that follows that an “unloaded pistol ... is not a ‘dangerous weapon’ for purposes of Article 128(b)(1), UCMJ,” the court cites United States v. Smith, 4 C.M.A. 41, 15 C.M.R. 41, 1954 WL 2250 (1954). Id. We believe that Smith stands for an entirely different proposition of law, as will be discussed later.

Whether an unloaded pistol, when pointed at someone, is a dangerous weapon as that term is used in Article 128(b)(1), 10 U.S.C. § 128(b)(1), UCMJ is a pure question of law and requires us to conduct a de novo review. See United States v. Davis, 36 M.J. 337, 340 (C.M.A.1993). It is an issue of first impression before this court. We have decided several closely related issues, but neither we nor the Court of Appeals for the Armed Forces have decided a ease precisely on point. The cases that have been decided, however, support the Sullivan court’s view that an unloaded pistol can be a deadly weapon for aggravated assault purposes under military law.

In United States v. Henry, 35 M.J. 136 (C.M.A.1992), the accused was convicted of robbery, in violation of Article 122, UCMJ, 10 U.S.C. § 922, and qualified for an enhanced sentence under the Manual For Courts-Martial because he used a firearm during the robbery. The firearm, however, was inoperable. In spite of this fact, our superior court approved the sentence enhancement, adopting the rationale found in McLaughlin and other federal cases. The court specifically declined to adopt as the test for what constitutes a firearm, whether the weapon is actually capable of being used as a firearm. Henry, 35 M.J. at 137.⁷

We have also held that an unloaded firearm is a dangerous weapon in a prosecution for carrying a concealed weapon in violation of Article 134, UCMJ, 10 U.S.C. § 934. United States v. Booker, 37 M.J. 1114 (N.M.C.M.R.1993), affirmed, 42 M.J. 267 (1995). We noted in a footnote that the fact that the pistol was unloaded does not prevent its use as a dangerous weapon under military law, Manual for Courts-Martial, United States, 1984(ed.), Part IV, ¶ 112c(2). “For purposes of this paragraph, a weapon is dangerous if it was specifically designed for the purpose of doing grievous bodily harm, or it was used or intended to be used by the accused to do grievous bodily harm.” Id. Accord, United States v. Smith, 36 M.J. 838 (A.C.M.R.1993).

In United States v. Palmer, 41 M.J. 747 (N.M.Ct.Crim.App.1994), this court applied the reasoning of McLaughlin in concluding that an unloaded firearm is a dangerous weapon as that term is used in a general regulation prohibiting the wrongful possession of such an object. We distinguished assault cases, where the proper focus is on the use of the instrument or weapon, from possession cases where there is no use. We concluded that for possession cases, the focus should be on the nature of the item, its design, and its intended purpose. Accordingly, we rejected the argument based on paragraph 54c(4)(a)(ii) of the Manual. Citing McLaughlin, we held that all guns, loaded or not, are dangerous weapons in such a case. Palmer, 41 M.J. at 750.

More to the point, however, is an early decision of the Court of Military Appeals that declined to apply the Manual unloaded pistol illustration in an aggravated assault ease involving a knife. United States v. Smith, 15 C.M.R. 41, 1954 WL 2250 (1954). The court recognized two principle approaches to assault law analysis. These are the “present ability” approach, which is entirely objective and solely from the view point of the assailant, and the “apparent ability” approach, which is essentially subjective and from the view point of the victim.

The Smith opinion characterized the Manual’s approach of viewing assault generally through the eyes of the victim except in two instances, as logically inconsistent. One of the inconsistencies criticized was the Manual illustration that “an unloaded pistol, when presented as a firearm ... is not a dangerous weapon ...” Smith, 15 C.M.R. at 47. The majority specifically rejected as “much too naive” the hypothesis that the Manual had adopted the subjective “apparent ability” test for simple assault but had adopted the “present ability” approach for aggravation. Id. at 48.

The defense argued that, as a matter of law, Smith could not have been found guilty of aggravated assault with an unthrown knife from a distance of 9 or 10 yards. The members found the knife had been used as a “dangerous weapon” despite the distance and the lack of evidence of intent to throw it. The court expressly declined to hold, as a matter of law, that a knife, when used as a cutting instrument, could not be a “dangerous weapon” if the accused could not actually harm his victim with it. Smith, 15 C.M.R. at 45.

Instead, the court affirmed the conviction, holding that an aggravated assault can be committed under Article 128, 10 U.S.C. § 928, UCMJ, if the victim has a reasonable apprehension of death or grievous bodily harm. This is so even if the victim’s apprehension is “based on his ignorance of the nature of the weapon used and its effective range.” Smith, 15 C.M.R. at 47. Thus, the broad statement in Turner that a “dangerous weapon” for Article 128(b)(1), UCMJ, proposes is one “that has the inherent present capability of inflicting death or grievous bodily harm” is not correct, at least for weapons other than pistols.

There is some discussion in Smith about the “principles involving an assault with a loaded pistol.” In dicta, the court said that under the Manual’s language, it is difficult to interpret an unloaded pistol as a “dangerous weapon” since it lacks any sort of power to inflict injury. Smith, 15 C.M.R. at 46. Smith, however, was decided during the formative years of the Court of Military Appeals at a time when the court apparently assumed that rules of substantive law could be promulgated by the President in the Manual.⁸ The court today draws a clear line between the President’s authority under Article 36, UCMJ, 10 U.S.C. § 836, to promulgate rules of procedure and evidence, and the judiciary’s responsibility to interpret the elements of substantive offenses.

The Court of Appeals for the Armed Forces has held that “it is beyond cavil that Manual explanations of codal offenses are not binding on this Court.” United States v. Gonzalez, 42 M.J. 469, 474 (1995). Although the President often summarizes the elements of codal offenses in the Manual, these summarizations are not binding on the court, which maintains an independent responsibility to interpret the elements of the offenses. United States v. Mance, 26 M.J. 244, 252 (C.M.A.1988); United States v. Hemingway, 36 M.J. 349, 351 (C.M.A.1993). The language in the Manual that purports to preclude the courts from interpreting the term “dangerous weapon” to include an unloaded pistol is therefore not “conclusively authoritative.” Cf. Hemingway, 36 M.J. at 351.

Thus, this court is free to follow the reasoning of the Supreme Court in McLaughlin and to extend the holding of the Court of Military Appeals in Smith to an assault involving a pistol as well as a knife. Notwithstanding the inconsistent Manual language, we hold that an aggravated assault can be committed under Article 128, UCMJ, 10 U.S.C. § 928, with an unloaded pistol if the victim has a reasonable apprehension of death or grievous bodily harm. This is so even if that apprehension is based on ignorance as to whether the weapon is actually loaded and in operating condition or not.

The result might be different if we were dealing with an attempt-type assault, where the focus is properly on the assailant’s state of mind rather than that of the victim. In such a case, knowledge that the pistol is unloaded or inoperable may well preclude conviction for aggravated assault.⁹ But here, in the case of an offer-type assault, the gravamen of the crime is putting the victim in fear. The approach in such a case “cannot be a subjective one, for there is wholly left out of account the possibility of genuine apprehension on the part of the target based on his ignorance of the nature of the weapon used and its effective range.” Smith, 15 C.M.R. at 47.

Accordingly, the findings and sentence, as approved below, are affirmed.

Senior Judge CLARK, Judges WYNNE, and OLIVER concur.

1 . I. THE MILITARY JUDGE MISCALCULATED APPELLANT’S MAXIMUM TERM OF CONFINEMENT, RESULTING IN AN OVERESTIMATION OF MORE THAN 40%.

II. THE MILITARY JUDGE ERRED AS A MATTER OF LAW IN RULING THAT ASSAULT WITH AN UNLOADED PISTOL IS PUNISHABLE AS AN ASSAULT WITH A DEADLY WEAPON UNDER UCMJ ARTICLE 128(b), IN DISREGARD FOR MANUAL FOR COURTS-MARTIAL ¶ 54c(4)(a)(ii)(1995 ed).

2 . We have considered the remaining assignment of error and the arguments and briefs of both appellate defense and appellate government counsel, and we conclude that no error materially prejudicial to the substantial rights of the appellant was committed.

3 . The maximum punishment for a simple assault is confinement for 3 months and forfeiture of two-thirds pay per month for 3 months. Assault with a dangerous weapon, when committed with a loaded firearm, authorizes dishonorable discharge, forfeiture of all pay and allowances, and confinement for 8 years. Other cases of assault with a dangerous weapon authorize dishonorable discharge, forfeiture of all pay and allowances, and confinement for 3 years. MCM, Part IV, ¶ 54e(8). This case falls into the latter category.

4 . McLaughlin concerned the Federal bank robbery statute, 18 U.S.C. § 2113, under which punishment is enhanced if a bank robber puts the life of any person in jeopardy by the use of a dangerous weapon or device. In part to resolve a conflict among the Federal circuits regarding the issue of whether an unloaded firearm is a dangerous weapon, the Supreme Court granted certiorari and held that a gun is typically and characteristically dangerous, its intended use is a dangerous one, and the law may presume that such an object is always dangerous, even though not armed at a particular time or place. McLaughlin, 476 U.S. at 18, 106 S.Ct. at 1678.

5 . But, the same opinion also says the authority to create or define elements of an offense are the respective sole prerogatives of Congress and the judiciary. Rivera, 40 MJ. at 549. We believe Congress could define the term "dangerous weapon” if it so chose but that it has not done so.

6 . “It is of course not true that whenever Congress enacts legislation using a word that has been given administrative interpretation it means to freeze that administrative interpretation in place.” Lukhard v. Reed, 481 U.S. 368, 379, 107 S.Ct. 1807, 1814, 95 L.Ed.2d 328 (1987), citing Helvering v. Wilshire Oil Company, 308 U.S. 90, 100-101, 60 S.Ct. 18, 24-25, 84 L.Ed. 101 (1939).

7 . The Sullivan case was decided after Henry but did not cite it. Both cases were decided in 1992.

8 . "Proper respect for the policies underlying the Federal rule, which has been adopted for the military services through the Manual, directs the conclusion that the court-martial in this case was . justified in believing that the accused had committed an assault.” Smith, 15 C.M.R. at 44.

9 . "The logical position is that one may be guilty of an assault by attempting to shoot another with a gun that one mistakenly believes to be loaded or by threatening with a gun that the other does not know is unloaded.” Rollin M. Perkins & Ronald N. Boyce, Criminal Law, 167 (3rd.ed.1982).