United States v. Duron

19 C.M.A. 563, 19 USCMA 563, 42 C.M.R. 165, 1970 CMA LEXIS 808, 1970 WL 7028

• Court: United States Court of Military Appeals
• Decided: July 10, 1970
• Docket: No. 23,014
• Status: Published

Opinion

Opinion of the Court

DARDEN, Judge:

Following his plea of guilty, the appellant was tried and convicted by a general court-martial on October 28, 1969, for wrongful appropriation (two specifications) and for absence without leave. Each of these offenses was committed before August 1, 1969. The Government erred therefore by introducing, after findings, evidence of prior Article 15 punishment for failing to obey an order requiring Duron to submit to a medical quarantine, two brief absences without leave, a public fight, and failing to obey a regulation by wearing civilian clothes aboard ship. United States v Johnson, 19 USCMA 464, 42 CMR 66 (1970). This evidence constituted the whole of prosecution’s evidence against the appellant during sentencing. No evidence was offered of prior convictions. Under these circumstances we cannot be certain that the court was uninfluenced in assessing sentence by this inadmissible evidence. We believe that such consideration presents a fair risk of prejudice, requiring that the sentence be reexamined. United States v Martin, 19 USCMA 486, 42 CMR 88 (1970); United States v Iacono, 19 USCMA 490, 42 CMR 92 (1970); and United States v Johnson, supra. Accordingly, the decision of the Court of Military Review is reversed as to sentence. The record of trial is returned to the Judge Advocate General of the Navy for submission to the Court of Military Review for reconsideration of the sentence.

Chief Judge Quinn and Judge FeR-guson concur.