United States v. Lucas

2 M.J. 834, 1976 CMR LEXIS 850

Opinions

OPINION OF THE COURT

DONAHUE, Judge:

Consistent with his plea, the appellant was convicted of attempted murder in violation of Article 80, Uniform Code of Military Justice (U.C.M.J.), 10 U.S.C. § 880. A court with members sentenced him to dishonorable discharge, confinement at hard labor for 20 years, total forfeitures and reduction to Private E-l. Pursuant to a pretrial agreement, the convening authority reduced the confinement portion of the sentence to six years.

Appellant’s crime consisted of attempting to murder a fellow soldier by shooting him once in the head and once in each shoulder. Trial counsel made argument as to deterrence as a sentencing consideration similar to the arguments condemned by the United States Court of Military Appeals in United States v. Mosely, 1 M.J. 350 (March 19, 1976).

Trial counsel’s argument was error in view of the holding in Mosely, supra. However, we find no prejudice. Appellant’s offense was particularly aggravated and only his incompetence as a marksman saved him from a charge of premeditated murder. We can conceive of no circumstance where the absence of the improper argument of trial counsel would have caused the appellant’s approved sentence to be less than it is now.

The findings of guilty and the sentence are affirmed.