United States v. Fears

11 C.M.A. 584, 11 USCMA 584, 29 C.M.R. 400, 1960 CMA LEXIS 259, 1960 WL 4523

• Court: United States Court of Military Appeals
• Decided: July 1, 1960
• Docket: No. 13,835
• Status: Published

Opinions

Opinion of the Court

George W. LatimeR, Judge:

Tried in common with one Jones, the accused Fears was convicted by general court-martial for wrongful use of narcotics, in violation of Article 134, Uniform Code of Military Justice, 10 USC § 934. He was sentenced to bad-conduct discharge, total forfeitures, confinement at hard labor for one year, and reduction to the grade of airman basic. Intermediate appellate authorities affirmed, and thereafter accused petitioned this Court. We granted review to consider the propriety of a ruling by the law officer denying Fears’ motion for severance and the correctness of certain instructions.

The facts leading to accused’s conviction are simple. The Government’s evidence established that on the evening in question, Air Force law enforcement personnel accompanied Korean authorities in a raid on the house of a narcotics purveyor, and accused, together with Jones and three other airmen, was apprehended inside. As the agents of the Office of Special Investigations entered the room, they observed accused drop a cigarette to the floor. They retrieved it and subsequent chemical analysis revealed the presence therein of an opium alkaloid. Also seized from the premises in the raid were several other pieces of evidence. They included a syringe and a packet of powder which the Korean dope pusher had in his hand, a spoon and a hypodermic needle which were on the floor, and a can containing about three dozen “decks” of powder. Chemical analysis of the powder seized from the Korean and of four samples of the packets in the can also disclosed the presence of a habit-forming drug. Some four hours later, and after proper warning, accused voluntarily furnished a urine specimen. The presence of morphine therein was disclosed by chemical analysis, but the test for codein was negative.

Accused took the stand as a witness in his own behalf. He admitted having been present in the house for some ten or fifteen minutes prior to the raid, but explained that he had merely gone there with a friend and was waiting with him to pick up the latter’s clean laundry. Accused denied using any narcotics or that he had dropped the cigarette as the OSI agents claimed, and this testimony was corroborated in large part by his friend. Further, accused maintained he had never before been to the house and stated he was unaware heroin was sold there. Neither had he noticed the narcotics paraphernalia until the raid was in progress. He also related that during the twenty-four hour period prior to his apprehension he had taken aureomyein and some sulfa tablets, and had been medicating himself with a cough syrup commonly called “GI gin.”

The question on the motion to sever arose in the following fashion. Upon Fears’ arraignment at trial, defense counsel sought a separate trial in his behalf. In an out-of-court hearing counsel advanced two arguments: First, that Jones would testify in behalf of Fears, and, second, that the latter’s trial at that time would complicate his domestic problems if he were convicted and confined. Defense counsel first predicated his motion upon a possibility that Jones would testify, but upon inquiry by the law officer he stated he had made a bad choice of words, and that Jones would be a witness for Fears. Trial counsel resisted the motion, contending that no showing justifying a severance had been made, and pointing out that both Fears and Jones were charged with like offenses which occurred at the same time and place and would be established almost entirely by the same evidence. The defense acknowledged the Government had a legitimate stake in common trials in proper cases, but reasserted its request for relief, counsel stating his belief that Fears would be “more adequately protected if his case is severed and tried at a different time on the grounds I have previously stated. I’m not going to belabor this point — I mean I have put my facts in and that’s it.” Trial counsel answered that a bare statement by the defense that the other man would testify for Fears did not constitute a showing that he would be prejudiced unless the cases were severed. Defense counsel again declined to offer anything further, however, and thereupon the law officer’s ruling was announced as follows:

“LO: Well, I will preface my ruling with the statement that, normally, I would be certainly liberal in the granting of this type of motion. However, I feel that the defense has not produced enough at this point to give me a firm basis upon which to predicate a discretionary ruling that the cases be severed.

“DC: So my motion is overruled.

“LO: At this point the motion to sever is denied.”

In the early case of United States v Bodenheimer, 2 USCMA 130, 7 CMR 6, in a unanimous opinion authored by the Chief Judge, this Court spelled out limitations on the use of common trials. There, after discussing the provisions of paragraph 331, Manual for Courts-Martial, United States, 1951, and the pertinent Federal Rules of Criminal Procedure upon which that section was based we stated:

. . This type of trial procedure can be used only where the offenses are closely related, where they are committed at the same time and place, and where they are provable by the same evidence.”

Manifestly, then, there was no impropriety in the convening authority’s order that accused Fears be tried at a common trial with Jones. The two were charged with and the evidence presented bears out — just as trial counsel argued — that both men wrongfully used dope at the same time and place, and that the two offenses were proved by substantially the same evidence. Cf. United States v Bodenheimer, supra; United States v Alvarez, 10 USCMA 24, 27 CMR 98; United States v Williams, 10 USCMA 33, 27 CMR 107. Under those circumstances, and particularly when, as here, the accused were represented by qualified counsel, the cases were simple and uncomplicated, and at that time there appeared to be no inconsistent defenses or conflicting interests nor any indication that the evidence might tend to confuse or mislead the court, there can be no doubt whatever that it was appropriate to order a common trial.

Thus it is crystal clear that the original order of joinder was proper and if the accused has any just cause for complaint it must be predicated on the law officer’s ruling on the motion to sever. However, to support that assignment of error accused must convince us that the law officer abused his discretion in denying the motion. The same issue was previously before us in the early case of United States v Evans, 1 USCMA 541, 4 CMR 133. The facts there are strikingly similar to those presently before us, and although that case was tried under the Elston Act, the Federal authorities cited remain applicable and the provisions of paragraph 70d, Manual for Courts-Martial, U. S. Air Force, 1949, to which we there adverted, are the same as those in paragraph 69d of the current Manual. The following extract from our opinion in Evans is apropos here:

“. . . At the opening of the trial, defense counsel moved for a sever-anee, pursuant to the provisions of the Manual for Courts-Martial, supra, paragraph 70d, contending that separate trials were necessitated by the ‘antagonistic defenses’ of the appellants. Pressed by the law member to be more specific, he — for all practical purposes — merely reiterated his statement of the ‘antagonistic defenses’ conclusion. At one point he indicated hesitantly that he might wish to call one accused as a witness in the other’s case. However, pressed again, he declined to state that he had any definite intention to do so.

“Paragraph 70d, supra, provides for the granting of motions for severance ‘if good cause is shown’ [emphasis supplied], and sets out the presence of antagonistic defenses as one of the frequent grounds for the motion. In his insistence that the defenses of the accused were antagonistic, defense counsel most assuredly stated a sound foundation for his motion. However, a wide gulf separates a mere statement from a showing of good cause. Allen v United States, No. 11,132, 202 F2d 329 (CA DC Cir), decided July 18, 1952. The Manual, supra, requires •such a showing. Defense counsel failed completely to meet this requirement. It is obvious that the requirement of a showing of good •cause necessarily demands that the ■defense open a part of its case for inspection. However, this is the price exacted by military law of those who desire separate trials for their joint criminal excursions. Glasser v United States, 315 US 60, 86 L ed 680, 62 S Ct 457, to which we will shortly advert in greater detail, is distinguishable on its facts. Actually, too, it was not necessary that disclosure of defenses be made to the personnel of the court in this •case. Under the current practice, defense counsel could appropriately have requested an out-of-court hearing on his motion for severance. . . .

“Where, as here, a joint offense is charged, a joint trial is a customary and proper practice, so that the present case enjoys no unique distinction. In such a situation separate trial is a privilege, not a right. United States v Fradkin, 81 F2d 56, 59 (CA 2d Cir); United States v Smith, 112 F2d 83, 85 (CA 2d Cir); United States v Cohen, 124 F2d 164, 165, 166 (CA 2d Cir). The burden rests on him who seeks severance to show the risk of prejudice to his defense through joint trial. As a privilege, too, it is a matter resting largely within the discretion of the trial judge — the law member or law officer under court-martial procedure. One asserting error in the exercise of that discretion must assume the burden of showing, not merely that another course might have been preferable, but that in adopting the course taken there was a clear abuse of discretion. This means that he must convince the reviewing tribunal that the denial of a separate trial was, under all of the circumstances, manifestly improper in that it subjected him to substantial prejudice in the conduct of his individual defense. No such showing was or is now made here.”

True it is that the Evans case involved a joint trial, whereas we are concerned in the instant situation with a trial in common. We recognize, as paragraph 69d, Manual for Courts-Martial, United States, 1951, states, that a motion for severance at a common trial should be liberally considered and that an accused whose case is to be tried in that manner need not present so cogent a reason to be tried separately as an accused in a joint trial. Nevertheless, the underlying rules are the same in both instances, and good cause must be shown if the accused in a common trial seeks to have a valid order of joinder modified.

Accordingly, we may appropriately apply the rationale of Evans in the case at bar, and when that is done we are constrained to rule adversely to the appellant, Fears. Defense counsel’s second stated reason for the motion to sever had no legal merit by itself, but would be of consequence only in determining which accused should be tried at that time if the cases were severed. Thus, the defense must rely on the other ground for his motion, and although counsel asserted a possible basis for separate trial, it is clear beyond peradventure that he failed to make the necessary factual showing. Even though the burden of so doing was specifically brought to his attention, defense counsel declined to offer anything beyond a bare statement in support of the motion. His assertion that Jones would testify is no more than a representation that he would become a witness but it does not furnish the law officer with the nature of the testimony, or its competency, relevancy, or materiality to the issues. Furthermore, no fact or circumstance was suggested as to why the accused Jones would feel free to testify in a separate proceeding but hampered in a common trial. And although the law officer’s ruling obviously left the door open for the motion to be reasserted later, if other matters came to light, the defense presented nothing more and did not renew the motion. Certainly, then, we have been presented with no facts which would justify a holding that the law officer abused his discretion in refusing to grant relief. United States v Evans, supra; United States v Borner, 3 USCMA 306, 12 CMR 62. We might add, parenthetically, that not only was the law officer’s ruling within proper limits, but in our review of the record we have found no prejudice to accused by reason of his common trial, nor has any reasonable possibility thereof been pointed out by the defense.

We turn next to the instructional issues. After charging the court members on the elements of the offense, the law officer continued as follows:

“The court is advised that the use of a habit forming narcotic drug may be found to be wrongful unless the contrary appears. A person’s use «of a drug is not wrongful when the drug has been duly prescribed for him by a physician and the prescription has not been obtained by fraud •or when the use is the result of accident or mistake.

“There has been evidence in this case that on or about the date contained in the specification of the charge, the accused Fears was taking for allegedly medicinal purposes a cough syrup containing codeine, popularly known as GI gim In order to convict the accused Fears, you must be satisfied beyond a reasonable doubt that he wrongfully consumed narcotic drugs on or about 20 May 1959. Consequently, if you find that Fears did in fact consume such cough syrup and that such consumption caused the narcotics allegedly found present in his urine at the time he voided for purposes of the analysis on 20 May 1959, then you must acquit Fears, for such use would not be wrongful.”

One of the complaints asserted on appeal is that the instructions in the first quoted paragraph overturn the presumption of innocence and improperly shift the burden of proof to the accused. The short answer to that contention is that similar arguments have been pressed upon us before, but rejected. See United States v Crawford, 6 USCMA 517, 20 CMR 233, and cases therein cited. See also Yee Hem v United States, 268 US 178, 69 L ed 904, 45 S Ct 470 (1925); Morrison v California, 291 US 82, 88, 78 L ed 664, 54 S Ct 281 (1934); United States v Fleischman, 339 US 349, 363, 94 L ed 906, 70 S Ct 739 (1950); United States v Gohagen, 2 USCMA 175, 7 CMR 51.

With regard to the second paragraph quoted hereinabove, appellate: defense counsel urge that the law officer required accused to prove his defense in that the members of the court-martial were improperly informed that in order to acquit him, they must not only find in fact that accused drank the cough syrup, but that consumption of the medicine caused the presence of the narcotics allegedly found in his system. First, we point out that the defense approach tears portions of the charge out of context. It is to be noted that the law officer was not instructing on mistake of fact — as the defense erroneously asserts — but rather on the element of wrongfulness, i.e., lack of knowledge of wrongdoing. And although the wording of the phrase assailed by the defense could be improved upon, still, when the instruction is interpreted reasonably, it is apparent that it sets up one theory advanced by the defense and in substance requires the court to find the accused not guilty if the “GI gin” was the source of the drug. Moreover, the record reflects that the law officer held an out-of-court hearing prior to instructing the court, and inquired if the defense desired “an instruction on the cough syrup.” After receiving an affirmative response, he noted that such a charge must include the fact that the burden of proof beyond reasonable doubt is on the Government and that he must be cautious not to shift the standard of proof in this area, and requested defense counsel to draft an instruction. And when considered by its four corners the instruction conveys the principles discussed. Thus, there are strong reasons to believe the charge was the handicraft of the defense, see United States v Jones, 7 USCMA 623, 23 CMR 87, and United States v Crigler, 10 USCMA 263, 27 CMR 337, although it must be conceded we cannot be absolutely certain from this record that such was the case. But at the very least defense counsel participated in preparation of the instruction, was apprised of the wording that would be used, and thereafter, upon inquiry, expressly declined to object or to request additional instructions. From all of the foregoing it should be clear he was satisfied the charge was appropriate and would not mislead the court-martial to the detriment of the accused. See United States v Johnson, 3 USCMA 447, 13 CMR 3; United States v Richards, 10 USCMA 475, 28 CMR 41,

But assuming for the purpose of argument that the instruction is legally inaccurate, it is of no consequence in the case at bar, for the law is clear that unless an issue is raised reasonably by the evidence, no instruction is necessary thereon, nor is an erroneous charge prejudicial to an accused. See United States v Grover, 10 USCMA 91, 27 CMR 165.

Beyond cavil, such is the case here. Accused claimed he had been treating a cough with an antibiotic, sulfa, and “GI gin.” Un-controverted evidence was introduced, however, that neither the aureomycin nor the sulfa could be responsible for morphine in the system. As for the cough syrup popularly referred to as “GI gin,” the evidence showed it to be elixir terpin hydrate which contains codein. However, the unrebutted expert testimony was that if codein is taken into the body, a urinalysis conducted by the methods herein employed might test either positive for both codein and morphine, or positive for codein and negative for morphine, but would not test negative for codein and positive for morphine. Since analysis of the accused’s urine specimen revealed the presence of morphine but tested negative for codein, there is no possibility that the narcotic in his system resulted from consumption of the cough medicine. Accordingly, based upon our assumption that the last quoted instruction was erroneous, and pretermitting the distinct probability that it was self-induced by the defense, nevertheless we must resolve this issue against accused, for the evidence of record raises no issue requiring the instruction.

For the foregoing reasons, the decision of the board of review is affirmed.

Chief Judge Quinn concurs.