United States v. Roa

12 M.J. 210, 1982 CMA LEXIS 20344

• Court: United States Court of Military Appeals
• Decided: January 18, 1982
• Docket: No. 39,762; CM 439374
• Status: Published

Opinions

Opinion of the Court

EVERETT, Chief Judge:

In February 1980, appellant was tried at Camp Casey, Republic of Korea, by a military judge sitting as a general court-martial. Among other offenses, he was charged with four specifications of attempted murder, in violation of Article 80 of the Uniform Code of Military Justice, 10 U.S.C. § 880. As to these charges, he pleaded guilty to the lesser-included offense of assault with a weapon likely to cause grievous bodily harm, in violation of Article 128, UCMJ, 10 U.S.C. § 928. However, the military judge found him guilty as charged.¹

The judge imposed a sentence of dishonorable discharge, confinement at hard labor for 7 years, total forfeitures, and reduction to the grade of Private E-l. The convening authority approved the findings and sentence; and the Army Court of Military Review affirmed in a short form opinion.

We granted review (10 M.J. 184) on this issue:

WAS AN ERRONEOUS STANDARD OF LAW APPLIED AT THE TRIAL LEVEL AND BY THE STAFF JUDGE ADVOCATE IN DETERMINING THE INTENT REQUIRED FOR THE OFFENSE OF ATTEMPTED MURDER.

I

The evidence revealed that Roa had a grudge against the military police and that, with his full encouragement and support, a fellow soldier threw a hand grenade into a military police station where four persons were present. In view of the high risk of homicide that accompanied such conduct and the inference that persons intend the natural and probable consequences of their acts, this evidence fully sufficed to sustain the judge’s findings that appellant was guilty of attempted murder. Therefore, since the defense counsel did not request special findings, see para. 74i, Manual for Courts-Martial, United States, 1969 (Revised edition), usually it would be presumed that the judge employed a legally correct standard in reaching his findings. Cf. United States v. Gerard, 11 M.J. 440 (C.M.A.1981). However, such a presumption will not be indulged if the record of trial reveals that the judge probably utilized an erroneous standard of law in making his findings.

In the present case, the Government supplied the defense with a bill of particulars which stated two theories of liability for the charged offenses: (a) “that the accused attempted to murder the stated victims by engaging in an act which was inherently dangerous to others and evinced a wanton disregard of human life,” trial counsel contending such conduct would “be an attempt to violate the provisions of Article 118(3), UCMJ,” 10 U.S.C. § 918(3), and (b) “that there will be evidence to show intent on the part of the accused to ‘do something’ to ‘teach them a lesson,’ and thus kill or inflict great bodily harm,” so that throwing the grenade “would ... be in attempted violation of the provisions of Article 118(2), UCMJ.” When defense counsel moved early in the trial to compel the prosecution to elect between its two theories, the military judge — although deferring a ruling on the motion — remarked that “it would seem to me that 118(3) with the other elements of proof certainly is the applicable one.”

Thereafter, trial counsel referred in his opening statement only to liability based on “inherent disregard for human life and the probable consequences that would have resulted from his act.” Moreover, during presentation of the government’s case, the judge overruled a defense objection because the evidence “goes to the 118(3) offense.” Subsequently, in arguing as to guilt, trial counsel relied almost exclusively on appellant’s wanton disregard of human life as the basis for convicting him of attempted murder.

At no point in the trial did the judge repudiate in any way the theory that Roa would be guilty of attempted murder if, when the grenade was thrown, he entertained the state of mind specified in Article 118(3) of the Uniform Code of Military Justice. Furthermore, it is especially difficult to doubt that the trial judge relied on this theory, since subsequently the staff judge advocate in his post-trial review and appellate government counsel in their brief and oral argument in our Court have taken the position that an attempt to murder can be established under Article 118(3).

Our cases, however, have made it perfectly clear that attempted murder requires a specific intent to kill. See United States v. Thomas, 13 U.S.C.M.A. 278, 32 C.M.R. 278 (1962); United States v. Pitts, 12 U.S.C.M.A. 634, 31 C.M.R. 220 (1962); United States v. Carroll, 10 U.S.C.M.A. 16, 27 C.M.R. 90 (1958). See also United States v. Whitfield, 7 M.J. 780 (A.C.M.R.1979), pet. denied, 8 M.J. 101 (C.M.A.1979); United States v. Aragon, 1 M.J. 662 (N.C.M.R.1975); United States v. Perry, 46 C.M.R. 636 (A.C.M.R.1972), pet. denied, 22 U.S.C.M.A. 609, 46 C.M.R. 1324 (1972); United States v. Creek, 39 C.M.R. 666 (A.B.R.1968). Although a serviceperson may be convicted of murder if he commits homicide without an intent to kill, but with an intent to “inflict great bodily harm,” see Article 118(2), or while “engaged in an act which is, inherently dangerous to others and evinces a wanton disregard of human life,” see Article 118(3), these states of mind do not suffice to establish attempted murder.

As stated in United States v. Perry, supra at 639 n. 1:

Although one who does not intend to kill may commit the kind of murder denounced by Article 118(3), Uniform Code of Military Justice, 10 U.S.C. § 918(3), intentionally engaging in “an act which is inherently dangerous to others, and evinces a wanton disregard of human life,” without intent to kill, does not constitute attempted murder. A particularly interesting application of this rule is found in United States v. Creek, 39 C.M.R. 666 (A.B.R.1968).

See also United States v. Walentiny, 47 C.M.R. 60 (A.C.M.R.1973); United States v. Paul, 46 C.M.R. 421 (A.C.M.R.1972), pet. denied, 22 U.S.C.M.A. 607, 46 C.M.R. 1324 (1972).

Article 118(3) was intended to deal with the situation where death has occurred as a result of conduct which revealed the actor’s wanton disregard for human life, but was not directed at a particular individual. United States v. Dacanay, 4 U.S.C.M.A. 263, 15 C.M.R. 263 (1954); United States v. Holsey, 2 U.S.C.M.A. 554, 10 C.M.R. 52 (1953); United States v. Davis, 2 U.S.C.M.A. 505, 10 C.M.R. 3 (1953). By reason of the express provisions of the statute, this mental state supplies the malice aforethought necessary for a murder conviction when a homicide results. However, especially in light of the canon of strict construction of penal statutes, Article 118(3) cannot be taken to mean that for all purposes wanton disregard of life has been equated to intent to kill.

Appellate defense counsel have suggested that the government’s theory would produce some anomalous results. Thus, if a servicemember fired a shot into a large crowd with the intent to kill a single person, but death did not result, he would be guilty of an attempt to murder that person. However, he could not be charged with attempts to murder the other persóns in the crowd, since we have held that intent to kill a particular person is quite distinct from wanton disregard for the lives of others. United States v. Dacanay, supra; United States v. Holsey, supra; United States v. Davis, supra. On the other hand, an accused who had fired into the same crowd with no intent to kill anyone but with a wanton disregard for human life and had injured no one could, under the government’s theory, be convicted of a separate attempt to murder every person in the crowd.

By way of analogy, despite the provisions of Article 118(2), whereunder intent to inflict grievous bodily harm will allow conviction for murder, that intent will not suffice to sustain findings of guilty of attempted murder or assault with intent to murder.² Similarly, we observe that, since an attempt requires a specific intent, there can be no “attempt” to commit involuntary manslaughter “by culpable negligence.” See Article 119(b)(1), UCMJ, 10 U.S.C. § 919(b)(1). Furthermore, in several other instances the mens rea sufficient to prove an offense under the Uniform Code will not suffice to prove an attempt to commit that offense. For example, a general intent will suffice to prove rape; but a specific intent to rape is requisite to establish guilt of attempt to rape or assault with intent to rape.³

II

Since an appreciable risk exists that the judge’s findings of guilt were tainted by application of an erroneous legal standard, remedial action must be taken. Among the remedies that come to mind are a complete rehearing as to guilt;⁴ remand to the original military judge for reconsideration of his findings in a proceeding where the accused is present with counsel;⁵ or affirmance of the lesser-included offenses to which appellant pleaded guilty and reassessment of his sentence. This choice of remedies may be made by the Court of Military Review.

III

The decision of the United States Army Court of Military Review is reversed. The findings of guilty of attempted murder (but not of aggravated assault) are set aside. The record of trial is returned to the Judge Advocate General of the Army for submission to the Court of Military Review for further proceedings in light of this opinion.

Judge FLETCHER concurs.

1 . Pursuant to appellant’s pleas, the judge also found him guilty of wrongful possession of an incendiary device, a Ration Control Plate, and an explosive device; wrongful damage to a military police station; wrongful possession of “an undetermined amount of marihuana,” in violation of Articles 92, 108, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 892, 908 and 934, respectively.

2 . The language of the bill of particulars suggests that the trial counsel also assumed that, by reason of Article 118(2), proof of intent to do great bodily harm would suffice to show the state of mind required to convict of attempt to murder.

3 . Thus, intoxication may relieve of culpability for an attempt to commit an offense such as rape or assault with intent to commit rape when it would not be a defense in a prosecution for commission of the principal offense.

4 . In the event of a rehearing, no basis would exist to allow withdrawal by appellant of his accepted pleas of guilty to the lesser-included offenses.

5 . In such a proceeding appellant can request special findings if he chooses. Of course, if the judge were to change his general findings of guilt, he would then need to conduct a rehearing as to sentence.