United States v. Rigney

16 C.M.A. 617, 16 USCMA 617, 37 C.M.R. 237, 1967 CMA LEXIS 317, 1967 WL 4230

• Court: United States Court of Military Appeals
• Decided: April 21, 1967
• Docket: No. 19,814
• Status: Published

Opinions

Opinion of the Court

Hilda Y, Judge:

Appellant was arraigned before a special court-martial convened at Yokota Air Force Base, Japan, charged with two specifications of wrongful appropriation of personal property (a bicycle and a radio) of a value of more than $20.00 but less than $50.00, in violation of Article 121, Uniform Code of Military Justice, 10 USC § 921. He pleaded guilty as charged and was sentenced to a bad-conduct discharge, confinement at hard labor for six months, and forfeitures of $50.00 per month for a like period. Intermediate appellate authorities have approved, without change, the findings and sentence.

We granted review to consider the appellant’s assertion that the president of the court erred in his instructions on sentence when he told the court, in pertinent part, that:

“Normally, the maximum punishment will be reserved for an offense which is aggravated by its circumstances and the conditions surrounding its occurrence or in case there is evidence of previous convictions.” [Emphasis supplied.]

Since at that time the court had been informed of the appellant’s previous conviction by special court-martial of four specifications of stealing bicycles, counsel assert that this portion of the instructions amounted to a directive to the court to adjudge the maximum sentence.¹ As a paraphrase of paragraph 76a (2), Manual for Courts-Martial, United States, 1951,² counsel equate this instruction to those policy directives previously condemned by this Court, in a long line of cases, which deprive the members of the free and unfettered exercise of their own discretion in selecting an appropriate sentence. United States v Fowle, 7 USCMA 349, 22 CMR 139; United States v Estrada, 7 USCMA 635, 23 CMR 99; United States v Holmes, 7 USCMA 642, 23 CMR 106; United States v Rinehart, 8 USCMA 402, 24 CMR 212; United States v Starnes, 8 USCMA 427, 24 CMR 237; United States v McGirk, 8 USCMA 429, 24 CMR 239; United States v Mamaluy, 10 USCMA 102, 27 CMR 176; United States v Brennan, 10 USCMA 109, 27 CMR 183. While acknowledging that this Court in United States v Slack, 12 USCMA 244, 30 CMR 244, with Judge Ferguson dissenting, found error but no prejudice, where a similar instruction was given, counsel contend that the error in this case cannot be purged by an examination of the instruction as a whole on the ground that the other correct instructions do not cancel out the erroneous instruction. Also, that the prejudicial effect of the error should not be assessed by an appellate tribunal since there is at least a fair risk that the decision to impose a punitive discharge was not properly passed on below.

In its rebuttal, the Government informed the court that:

. . on 9 December 1966, by Special Court-Martial Order Number 228, Headquarters Amarillo Technical Training Center (ATC), Amarillo Air Force Base, Texas, so much of the sentence to confinement at hard labor in excess of four months and seventeen days and so much of the forfeitures in excess of $50.00 per month for four months and eleven days were remitted. By the same order, the execution of the bad conduct discharge was suspended until 9 June 1967, with provision for automatic remission. Subsequently, the accused was reassigned for duty with the 445th Fighter Intercepter Squadron, Wurtsmith Air Force Base, Michigan.”

Contrary to the assertion of error by the appellant, the Government contends that the questioned instruction was proper; that it did not direct the court-martial to impose the maximum punishment as a mandatory requirement; and that the total thrust of all the instructions was that the court members were free to exercise their own discretion in adjudging an appropriate penalty.

Our view of this matter is necessarily governed by our previous opinion in United States v Slack, supra. There the law officer instructed in words lifted verbatim from paragraph 76a.(2) of the Manual, supra. In this case, a paraphrase thereof was used, some words added and others deleted, but the substance remains the same. We reiterate what we said in Slack. The instruction is of doubtful value and “It suffers from the vice of the other parts of the ‘instructional pattern’ of paragraph 76 of the Manual which, in the Mamaluy case, we recommended be discarded in favor of ‘instructions of more utility.’ ” {Ibid, at page 246.)

We are constrained, however, to agree with the Government’s contention on the issue of prejudice to this appellant. The members of the .court were informed that they alone were responsible for determining, within the limits prescribed by law, an appropriate sentence; that their decision should be based upon the evidence, their experience and general knowledge, and the ends of good order and discipline in the Air Force as well as on the needs of the accused and the welfare of society; that they should consider all the facts and circumstances, including all matters in extenuation and mitigation, background and character of the accused, his reputation in the squadron, his duty performance, and other traits which characterize a good airman. They were also informed that they might consider the fact that a plea of guilty, as here, was a saving in time, effort and expense to the Government; that such a plea also might be a manifestation of repentance and a first step toward rehabilitation; and that the sentence adjudged should be an adequate one and not excessive in reliance upon possible mitigating action by the convening or higher authority.

In these circumstances, we hold that the complained-of portion of the instructions did not play such a part as to represent a fair risk of prejudice to the appellant. United States v Slack, and United States v Mamaluy, both supra.

The decision of the board of review is affirmed.

Chief Judge Quinn concurs.

1 The sentence imposed was slightly less than the maximum in that the court could have imposed a forfeiture of $65.00 per month rather than $50.00.

2 Normally the maximum punishment will be reserved for an offense which is aggravated by the circumstances, or after conviction of which there is received by the court evidence of previous convictions of similar or greater gravity.