United States v. Maxwell

2 M.J. 1155, 1975 CMR LEXIS 771
CourtU.S. Navy-Marine Corps Court of Military Review
DecidedJuly 29, 1975
DocketNCM 74 1900
StatusPublished
Cited by1 cases

This text of 2 M.J. 1155 (United States v. Maxwell) is published on Counsel Stack Legal Research, covering U.S. Navy-Marine Corps Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Maxwell, 2 M.J. 1155, 1975 CMR LEXIS 771 (usnmcmilrev 1975).

Opinion

DECISION

EVANS, Senior Judge:

Appellant stands convicted of attempted robbery, assault and wrongful possession of a dangerous weapon in violation of Articles 80, 128 and 92, Uniform Code of Military Justice, 10 U.S.C. §§ 880, 928, 892. The sentence adjudged by members and approved by the convening authority provides for a bad conduct discharge, six months confinement, forfeiture of $175.00 per month for six months and reduction to pay grade E-l.

I

Counsel for appellant first urges the punitive discharge may not be approved because portions of the record are not verbatim. As result of inadvertent destruction of two tapes, verbatim transcription of counsels’ argument, a brief Article 39(a), 10 U.S.C. § 839(a) hearing on sentence instructions and announcement of findings were lost. Excepting a portion of defense argument, the portions have been reconstructed. No assertion of an inadequate record is raised with respect to the testimony leading to the trial results. We do not view the absence of defense counsel argument as a substantial omission so as to raise a presumption of prejudice, United States v. Boxdale, 22 U.S.C.M.A. 414, 47 C.M.R. 351 (1973) and United States v. Webb, 23 U.S.C. M.A. 333, 49 C.M.R. 667 (1975). No specific [1157]*1157prejudice has been asserted. We hold the record deficiencies have not prejudiced any of appellant’s rights on appeal and a punitive discharge, if otherwise appropriate, may be affirmed. United States v. Nelson, 3 U.S.C.M.A. 482, 13 C.M.R. 38 (1953) and United States v. Feeley, 47 C.M.R. 581, 586 (N.C.M.R.1973).

II

The assignments of error listed below pertain to appellant’s guilty plea to one of the charged offenses:

I. The Military Judge erred by failure to inform the accused of his constitutional right to a trial of the facts of the case.
II. The Military Judge failed to adequately inquire into the factual basis of the plea of guilty to Charge I and the specification thereunder by the improper use of leading questions.

The guilty plea was offered to the specification under Charge I alleging wrongful possession of a dangerous weapon in violation of Article 1136, United States Navy Regulations. During the plea inquiry, the judge did not advise appellant the plea waived his right to a trial on the merits. This advice should have been proffered, United States v. Care, 18 U.S.C.M.A. 535, 541, 40 C.M.R. 247, 253 (1969). On the other hand, an integral part of defense to the other two charges was that flight from the scene of the assault by appellant was attempted because he did not want to be found with the weapon in his possession (R. 175). The plea was part of sound trial strategy. We are satisfied appellant knew his plea waived his right to a trial on the merits of the offense in question, United States v. Bingham, 20 U.S.C.M.A. 521, 43 C.M.R. 361 (1971).

Appellate counsel also asserts the judge did not elicit sufficient information from appellant to determine a factual basis for the plea. The inquiry in my view is not complete since the facts developed could have been ascertained by merely reading the specification. See United States v. Peak, No. 73 1287 (N.C.M.R.1973). We would have little difficulty in finding a Care violation had this been the only offense before the court. However, in fairness to the judge there was a valid reason for not conducting a detailed factual inquiry. He could determine from inspection of the three specifications possession of the weapon was convoluted with the remaining offenses that were to be contested before the court members. A detailed inquiry may have developed information that could have been inconsistent with defense position later in the trial and burdened the judge in a subsequent ruling on a particular piece of evidence. That blind adherence to the instant procedural tool is not always the sure path to avoid legal shoal water is graphically shown in United States v. Davis, 47 C.M.R. 831 (N.C.M.R.1973). Quite properly, judges are permitted to employ different techniques in conducting their inquiry, United States v. Wimberly, 20 U.S.C.M.A. 50, 42 C.M.R. 242 (1970) and see United States v. Terry, 21 U.S.C.M.A. 442, 45 C.M.R. 216 (1972). In the case at bar probability of criminal responsibility is established by a stipulation of fact (R. 94) and appellant’s judicial confession made in connection with defense of the controverted offenses. See, United States v. Wimberly, supra and United States v. Davis, 48 C.M.R. 892, 898 (N.C.M.R.1974). Under the peculiar circumstances of this ease we decline to find fault with the sparse factual development resulting from the inquiry.

Ill

Appellant’s counsel next contends:

The Military Judge erred in disallowing impeachment of defense witness seaman recruit Erwin when his testimony proved unexpectedly adverse to defense.

Some discussion of the evidence is necessary in disposing of this assignment of error. On the evening in question appellant took the victim Seamen Apprentice Lyons to a social gathering in the city of San Diego. Both were stationed at the Naval Training Center. Later in the evening Lyons became concerned about transporta[1158]*1158tion for return to the Training Center and requested appellant to take him back. Apparently appellant did not want to take him back, but did recognize his responsibility to his shipmate by trying to find transportation from someone else at the gathering. The victim then became involved in an altercation with a guest and it eventually turned out to be appellant’s task to drive the victim. According to Lyons when they were enroute to the Center the appellant pointed a revolver at him and demanded payment for the ride. Lyons stated he had money at his barracks. Upon arrival at the barracks they went to Lyons’ room. Appellant was carrying a loaded revolver at his side. After entering the room Lyons hit or pushed appellant and the weapon fell to the floor and struggle ensued. Appellant regained possession of the revolver and pointed it at the victim to accomplish his escape.

Appellant testified that Lyons was belligerent enroute to the Center because of the party altercation and made various verbal threats. Appellant at the time removed the weapon from the front seat storage console and placed it on the left side of the driver’s seat. Appellant denied he pointed the weapon at the victim or made any demand for money. Appellant stated he accompanied Lyons to his room only for the purpose of quelling his anger. He took the revolver along because it might be stolen if left in his car. After they went in the room, Lyons for no apparent reason knocked the gun from his hand. After the struggle appellant fled from the scene because he did not want to be found with the weapon.

Cross examination of Lyons revealed he lied to the law enforcement authorities at a line up by not identifying appellant as the culprit. On the other hand Lyons considered himself a friend of appellant. The defense in a effort to reduce the probative value of Lyons’ adverse testimony called Seaman Recruit Erwin. This witness stated he had discussed the incident with Lyons two days after it occurred. (R. 110).

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2 M.J. 1155, 1975 CMR LEXIS 771, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-maxwell-usnmcmilrev-1975.