United States v. Manuel

16 C.M.A. 357, 16 USCMA 357, 36 C.M.R. 513, 1966 CMA LEXIS 206, 1966 WL 4522

• Court: United States Court of Military Appeals
• Decided: August 26, 1966
• Docket: No. 19,261
• Status: Published

Opinions

Opinion

Quinn, Chief Judge:

Charged with assault upon PFC Bichard E. Lee with intent to commit murder, the accused pleaded guilty to the lesser offense of assault with a dangerous weapon. The evidence conclusively showed that the accused shot Lee in the hack of his head, causing brain damage and permanent loss of visual acuity. The general court-martial convicted the accused of an assault in which he intentionally inflicted grievous bodily harm, in violation of Article 128, Uniform Code of Military Justice, 10 USC § 928, and imposed a sentence which included a dishonorable discharge and confinement at hard labor for five years. The convening authority approved the findings of guilty and the sentence, but a board of review modified the latter by reducing the confinement to three years. On this appeal, the accused contends the law officer “improperly interjected his own ideas and conclusion into the deliberations and findings of the court-martial” to his prejudice.

Instructing on lesser included offenses which the court-martial could consider, the law officer mentioned two types of aggravated assault; namely, assault with a dangerous weapon and an assault in which grievous bodily harm was intentionally inflicted upon the victim. He also instructed the court that, after it had “finally” voted on the findings, it could call him and the reporter into the closed session to assist in “putting the findings in proper form.” At the end of the instructions, the president of the court-martial requested repetition of the lesser offense to which the accused had pleaded guilty. The law officer repeated the elements of assault with a dangerous weapon, and indicated how a finding as to that offense could be expressed by exceptions from, and substitutions in, the language of the specification. After deliberating for approximately three-quarters of an hour, the court-martial called the law officer and the reporter into the closed session. They remained there for thirteen minutes. What transpired appears in the record of trial, as follows:

“LO: Have you reached your findings, Colonel?

“PRES: Yes, sir. Of the Charge and the Specification as it was stated originally, we find that he is not guilty. We find him guilty of a lesser included offense of aggravated assault, in violation of Article 128, and we would ask your assistance in putting our findings in proper order.

“LO: I gave you instructions on two kinds of aggravated assault under Article 128.

“PRES: This is the second one, the other one is assault with a dangerous weapon. The one that we decided on is aggravated assault with intent to inflict grievous bodily harm.

“LO: With intent to infli&t grievous bodily harm, that’s what you found him guilty of. This would be this way then: ‘of the Specification: Guilty, except for the words, “with intent to commit murder,” and you have to add after the word pistol, then, “thereby intentionally inflict grievous bodily harm upon him, to wit:” What is it you found to be grievous bodily harm?

“PRES: Should we write this down?

“LO: I’ll write it down for you if you tell me what was the grievous bodily harm.

“PRES: The shot in the head, with the damage to the brain. The permanent neurological damage and effect. The blindness.

“LO: The blindness and the brain damage?

“PRES: Yes, the permanent neurological damage and defect.

“MAJOR EVANS: Did he intend to put a hole in the man’s head?

“LO: It is not a question of what he found. It is a question of what you found.

“MAJOR EVANS: I think that it would be that he intended to put a hole in the man’s head. We don’t know what damage this would do, but this would be grievous bodily harm.

“LO: Have your [sic] agreed on what the grievous bodily harm is?

“PRES: We didn’t vote on the grievous bodily harm considering the testimony. It sort of led to the conclusion. . . .

“LO: Two-thirds of you agree then, that the testimony which the neurologist gave is the ....

“PRES: This is what constituted the grievous bodily harm.

“LO: That’s what I’m getting at. What is it? What is the grievous bodily harm?

“PRES: It is the damage that was done by the shot to the head. The damage to the brain and the visual mechanism of the brain, which was the damage to the head.

“LIEUTENANT KEARNEY: This could be simplified by saying, ‘a wound in the head,’ or ‘damage to the visual facility,’ or something like that. ‘To wit: a wound in the head, which inflicted permanent visual damage.’

“LO: I’m turning these words around, but would you state, ‘a blindness and brain damage of a permanent nature?’

“PRES: That’s right.

“LO: ‘Blindness and brain damage of a permanent nature.’

“MAJOR EVANS: A wound to his head.

“LO: What is the grievous bodily harm?

“LIEUTENANT KEARNEY: The fact that he had a head wound, but the actual result of the wound was the visual and brain damage.

“MAJOR EVANS: You are saying that he shot with the full intention of causing brain damage and visual damage.

“MAJOR BENDER: He shot with full intention of inflicting grievous bodily harm. The brain damage just happened as a result of being shot.

“LO: What grievous bodily harm did you decide on.

“PRES: ‘To wit: A head wound from a .22 caliber bullet.’

“LO: What we are interested in is the grievous bodily harm? What is it?

“PRES: A wound in the head. A hole in the head. The damage that was caused by the hole being put there.

“MAJOR BENDER: But what would cause the hole?

“CAPTAIN VIENS: It was the result of the assault with the weapon and won’t that have to go on the ‘to wit’ part of the statement?

“LIEUTENANT KEARNEY: ‘To wit: a head wound by a .22 caliber bullet.

“LO: Is that what you all agree to?

“PRES: A head wound.

“LO; It will read this way:

“Of the Specification: Guilty, except the words ‘with intent to commit murder,’ and adding after the word pistol, the words, ‘and did thereby intentionally inflict grievous bodily harm upon him, to wit: a head wound,’ of the excepted words, not guilty, of the added words, guilty.

“Of the charge: Not Guilty, but guilty of a violation of Article 128.

“PRES: Of the Specification and the Charge: Not Guilty . . . .

“LO: Don’t even use that part.

“PRES: Oh! Finds you:

“Of,the Specification: Guilty, except the words ‘with intent to commit murder,’ and adding after the word pistol, the words, ‘and did thereby intentionally inflict grievous bodily harm upon him, to wit: a head wound,’ of the excepted words, not guilty, of the added words, guilty.

“Of the Charge: Not guilty, But guilty of a violation of Article 128.

“LO: That’s all?

“PRES: Yes, sir, thank you.

“(Whereupon the law officer and the court reporter withdrew from the closed session at 1444 hours, 24 June 1965.)”

Two minutes after the law officer and the reporter left the closed session, the court members returned to the courtroom. The president announced that by appropriate vote, the court had found the accused guilty of the specification, with the exceptions and substitutions expressed by the law officer and repeated by the president in the final part of the closed session conference. Appellate defense counsel contend these findings resulted from the law officer’s repeated questions and improper comments.

Civilian practice does not authorize the judge to confer privately with the jury on the form of its verdict. See Rice v United States, 356 F2d 709 (CA8th Cir) (1966). Almost two centuries of experience with this practice, in both the Federal and State courts, has witnessed relatively few instances of confused or unintelligible jury verdicts. Congress, however, has not seen fit to adopt the practice for general courts-martial. The Uniform Code of Military Justice expressly empowers the court members to call the law officer into the closed session to assist them in putting their findings into proper form. Articles 26 and 39, Code, supra, 10 USC §§ 826, 839, respectively. The practice is fraught with danger. Comments by the law officer may go beyond the very narrow limits of assistance with legal form to become part of the court-martial’s deliberations. Such participation in the deliberative process is presumptively prejudicial to the accused. United States v Allbee, 5 USCMA 448, 452, 18 CMR 72. The presumption is not conclusive; but if it is to be overcome, the record of trial must convincingly demonstrate the absence of any fair risk that the court members were influenced in their deliberations by the law officer’s words and actions. United States v Saunders, 8 USCMA 585, 25 CMR 89. Consequently, the law officer called into a closed session must be mindful of the danger and be constantly alert to his obligation to do and say nothing beyond transcribing the court members’ findings into appropriate legal form.

Neither the verity nor the completeness of the transcript of the closed session discussion is disputed. We must, therefore, accept as true the president’s statement that the court members had made their findings before the law officer was called into the closed session. United States v Solak, 10 USCMA 440, 443, 28 CMR 6. The findings were clearly spelled out in the president’s answers to the law officer’s questions. They were, that the court members had found the accused not guilty of the specification as “stated originally,” but guilty of the lesser offense of an aggravated assault involving an intent to inflict grievous bodily harm. Not skilled in law, the president understandably did not use the precise legal description, but there was no mistaking the offense he meant. The offense “decided on” by the court members was not “assault with a dangerous weapon,” but “the second one” of the two aggravated assaults, that is, “assault with intent to inflict grievous bodily harm,” as a result of which the victim suffered “permanent neurological damage” and “blindness.”

Unquestionably, the law officer should not have allowed his colloquy with the president to expand into a general discussion with other court members. His failure to confine the conversation, however, does not indicate any attempt to influence the findings. To us, as to the law officer, the president’s description of the findings made by the court members adds up to the offense of assault in which grievous bodily harm was intentionally inflicted. True, the president indicated that no separate vote had been taken by the members on the nature of the harm suffered by the victim, but his remarks leave no doubt that the members who voted for the declared findings understood they included damage to the victim’s brain and visual acuity, caused by the shot fired by the accused into the back of the victim’s head. As far as the law officer’s conduct and comments are concerned, the record of trial compellingly demonstrates he effected merely “particularization of the form of what had already been clearly determined in general.” United States v Smith, 3 USCMA 680, 684-685, 14 CMR 98; United States v Saunders, supra.

The decision of the board of review is affirmed.