United States v. Russo

11 C.M.A. 352, 11 USCMA 352, 29 C.M.R. 168, 1960 CMA LEXIS 312, 1960 WL 4477

• Court: United States Court of Military Appeals
• Decided: April 8, 1960
• Docket: No. 13,565
• Status: Published

Opinions

Opinion of the Court

Homer Ferguson, Judge:

The accused was found guilty¹ of premeditated murder, in violation of Uniform Code of Military Justice, Article 118, 10 USC § 918, and sentenced to forfeit all pay and allowances, and to be put to death. Intermediate appellate authorities affirmed and the case is now before us on mandatory review. Appellant has assigned seven errors, which will be discussed separately. It is necessary, however, initially to outline the facts in .some detail.

The accused was assigned to the 340th Transportation Squadron, White-man Air Force Base, Missouri. As a result of the rejection by a female acquaintance of his offer of marriage, he conceived the idea of purchasing a pistol and killing someone. He was unable, however, to obtain the weapon. Several weeks later, on July 31, 1958, he was on duty as supervisor of the Tool Room in Building 5-159, located on Whiteman Air Force Base. During the lunch hour, he obtained two bottles of whiskey from a nearby off-post establishment. He drank “a pretty big slug” from one bottle and placed It in his locker. He took the other bottle, a half-pint, with him when he returned to the Tool Room. There, he consumed its contents. He began to brood over the rejection of his proposal of marriage, and “got mad at ‘the whole damn world.’ ” He decided to shoot “someone — anyone.” Accused then removed a carbine, kept for alert purposes, from its position on the wall and obtained a clip of ammunition from his desk. He inserted the clip in the carbine and returned the weapon to its place. He intended to shoot the first person who came into the Tool Room. An individual appeared at the door, but the accused, for reasons unknown to himself, made no hostile move toward him. Shortly afterwards, however, Airman Weintraub and Airman Scarbrough appeared at the door in order to return some tools. They were joking with each other. The accused removed the carbine from the wall and pointed it at Weintraub. Weintraub told him not to play with a carbine with a clip in it and simultaneously seized the weapon’s barrel and pushed it upward. The gun clicked, and the accused operated its action, stating; “It’s loaded.” He then pointed the weapon at Weintraub and fired. The victim fell on the floor, and the accused fired again. He was subsequently disarmed by a nearby airman. Weintraub was pronounced dead upon his arrival at the Base Hospital and a subsequent autopsy resulted in the opinion that death resulted from a penetrating heart wound. He also suffered a separate wound in the upper arm.

Several psychiatrists and one psychologist testified at the trial. All were eminently qualified. As is not unusual, those who appeared for the prosecution were of the opinion that the accused was mentally responsible, while those who appeared for the defense held the contrary view.

Following complete instructions by the law officer, the court-martial returned findings of guilty and thereafter sentenced the accused to the supreme penalty.

The staff judge advocate carefully reviewed the record of trial and recommended that the convening authority approve the sentence. While that officer took such action, he also “recommended that it [the sentence] be commuted to dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for the term of his natural life.”

In its action on the case, the board of review indicated its belief that commutation of accused’s death sentence was appropriate. However, it decided that it was “powerless” to effect the change in penalty, as “Congress has not granted that power to Boards of Review.” Accordingly, it affirmed the findings of guilty and sentence.

I

The accused initially urges that the trial counsel erred prejudicially by informing the members of the court-martial that the convening authority had directed the charges be treated as capital. The basis for this assignment is found in the following statements in the record:

“TC: Prior to determining whether the prosecution has any challenge for cause, I should like to bring out to you members of the court that this case has been referred to trial with direction that it be treated as a capital case. As such. . . .

“DC: Just a moment. Request an out-of-court conference with the law officer.

“LO: Counsel for both sides and the accused.

“LO: Let the record reflect that a side-bar conference was held and attended by counsel for both sides, the accused, and the law officer. The proceedings were not recorded and will not be appended to the record.

“LO: Trial counsel may proceed.

“TC: I would like to ask each member of the court, individually, to state whether or not he has any conscientious scruples against imposing the death penalty.

“TC: Colonel Kyle?

“Col. Kyle: No.

“TC: You have no mental or moral reservations in this respect?

“Col. Kyle : That’s right. I have none.

“TC: Colonel Lucas?

“Col. Lucas: No.

“TC: Colonel Stepp?

“Col. Stepp: Negative.

“TC: Colonel Macey?

“LtCol. Macey : I have none.

“TC: Colonel Singleton?

“LtCol. Singleton: No.

“TC: Colonel Hempleman?

“LtCol. Hempleman: None.

“TC: Colonel Starck?

“LtCol. StARCK: I have none.

“TC: Colonel Raemy?

“LtCol. Raemy: No.

“TC: The prosecution has no challenge for cause.”

It is argued that the trial counsel, by his statements to the court, sought inferentially to convey to the court members the desire of the convening authority that the death penalty be imposed. That contention misreads the record. The quoted portion makes it clear beyond cavil that Government counsel was interested only in determining whether any court member was conscientiously opposed to the death penalty. It was his right to do so. Manual for Courts-Martial, United States, 1951, paragraph 626; United States v Riggins, 2 USCMA 451, 9 CMR 81. Moreover, if the inquiry had any effect, it was to impress upon the members the gravity of the proceedings in which they were engaged. That could hardly redound to accused’s detriment. We do not so interpret the record. The assignment of error is overruled.

II

We are next urged to set aside the findings and sentence on the basis that the law officer instructed the court members that:

**. . . Prana facie proof of an essential element of an offense does not preclude the existence of reasonable doubt with respect to that element. The court may decide, for instance, that the prima facie evidence presented does not outweigh the presumption of innocence. In law, prima facie evidence of fact is sufficient to establish the fact, unless rebutted.”

We have considered the effect of this instruction in a number of cases. In each instance, it was held erroneous but not prejudicial. United States v Simpson, 10 USCMA 543, 28 CMR 109; United States v Adkins, 11 USCMA 9, 28 CMR 233. While the author has repeatedly recorded his views concerning the vice inherent in this advice to the court, the contrary view is now settled law. United States v Borsella, 11 USCMA 80, 28 CMR 304. Accordingly, the assignment of error must be held to be without merit.

III

The accused next argues that the board of review failed to determine beyond a reasonable doubt that accused was mentally responsible. A reading of the board’s opinion indicates that this contention is without merit. Counsel assigned before the board the question of the sufficiency of the evidence to establish accused’s mental responsibility beyond a reasonable doubt. The board extensively discussed the issue, characterized it as a “question of fact,” and concluded that it was “convinced” of the propriety of the court’s findings. We agree with Government counsel that the board’s opinion eloquently bespeaks its adherence to the proper measure of proof. Cf. United States v Moreno, 5 USCMA 500, 18 CMR 124; United States v Bunting, 6 USCMA 170, 19 CMR 296.

IV

The balance of the assignments of error concern themselves with appellate action on the accused’s death sentence. The record indicates that both the convening authority and the board of review considered themselves powerless to reduce the sentence to one involving dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for the term of accused’s natural life. The accused also complains that the Acting The Judge Advocate General denied his request that the record be forwarded to the Secretary of the Air Force for the purpose of obtaining executive clemency prior to completion of our mandatory review.

We may at once dispose of the last-mentioned assignment. In his letter replying to accused’s request for transmittal of the record to. the Secretary of the Air Force, the Acting The Judge Advocate General noted that the application was “premature” and that, in the event of affirmance by this Court, “executive clemency consideration will be given as required by Article 71(a), Uniform Code of Military Justice (MCM, 1951, par 101).”

The orderly administration of justice requires that The Judge Advocate General be permitted to determine whether an accused’s record will be forwarded for clemency purposes prior to completion of normal appellate review. Otherwise, considerable confusion might be generated by having both executive and judicial action occurring at the same time. Moreover, if action were taken by the Executive branch to reduce the sentence and we subsequently ordered a rehearing on the merits, the new court-martial would be limited in the sentence which it could impose. United States v Jones, 10 USCMA 532, 28 CMR 98. Thus, there are good reasons for delaying consideration of administrative clemency action on accused’s sentence until judicial review is completed. Certainly, we cannot say that, under the circumstances here presented, the Acting The Judge Advocate General erred in refusing to grant accused’s request. Accordingly, we pass to the more important issue of the power of intermediate judicial authorities to mitigate the severity of accused’s sentence.

Code, supra, Article 64, 10 USC § 864, provides:

Ҥ 864. Art. 64. Approval by the convening authority

“In acting on the findings and sentence of a court-martial, the convening authority may approve only such findings of guilty, and the sentence or such part or amount of the sentence, as he finds correct in law and fact and as he in his discretion determines should be approved. Unless he indicates otherwise, approval of the sentence is approval of the findings and sentence.” [Emphasis supplied.]

Code, supra, Article 66(e), 10 USC § 866, provides:

“(c) In a case referred to it, the board of review may act only with respect to the findings and sentence as approved by the convening authority. It may affirm only such findings of guilty, and the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved." [Emphasis supplied.]

The Government argues that this Court, has previously interpreted the foregoing Articles of the Code as not authorizing intermediate appellate agencies to exercise the power of commutation. We turn to an examination of the cases in which it is contended that this result obtained.

In United States v Hunter, 2 USCMA 37, 6 CMR 37, we were confronted with the effect on a death sentence of our reduction in the. findings of guilty to lesser included offenses with respect to related charges. The Court concluded that the changes in the findings of guilty would not cause any board of review to “commute the death sentence, assuming it had the power so to do.” Thus, we delayed consideration of the issue now before us. See also United States v Long, 2 USCMA 45, 6 CMR 45, and United States v Day, 2 USCMA 416, 9 CMR 46.

In United States v Bigger, 2 USCMA 297, 8 CMR 97, the Court was faced with a related problem in interpreting Code, supra, Article 66 (c). There, the accused was found guilty of premeditated murder and sentenced to death. The board of review concluded that the record of trial did not factually support the finding of premeditation and reduced the degree of the offense found to unpremeditated murder. It affirmed only as much of the sentence as involved dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for the term of accused’s life. Before us, it was argued that the board of review had commuted the sentence. We unanimously held that, where a board of review approves findings of guilty of a lesser offense for which the death penalty is not authorized, Code, supra, Article 66 (c), granted the authority to “commute” the death penalty to life imprisonment. Significantly, we noted, at page 305:

“We have little doubt about the power of Congress to delegate to boards of review the right to commute sentences so long as the affirmed punishment did not exceed in severity the imposed penalty. Particularly would this be true when fact-finding bodies make determinations which render the imposed penalty illegal. Stated concretely, Gon-gress could have expressly authorized boards of review to affirm a sentence of confinement in lieu of a death penalty. One could hardly reason that the foi-mer is not a lesser sentence although necessarily a different kind. While not so stated in precise language, the authority to do so is found in the quoted provisions of the Code. There is no Congressional command that boards of review do not have the authority. The most that can be said in that respect is that the Act is silent." [Emphasis supplied.]

In United States v Cavallaro, 3 USCMA 653, 14 CMR 71, it was remarked, at page 655, that “Article 66 (c) of the Code does not authorize a board of review to change the form of punishment imposed by a court-martial.” That question was not before the Court, however, for we were there concerned only with whether the board of review abdicated its authority in affirming an approved sentence to dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for ten years, with a contemporaneous recommendation to The Judge Advocate General that substantial clemency be exercised in the case. In United States v Freeman, 4 USCMA 76, 15 CMR 76, however, the Court was faced with both the issue initially discussed in United States v Cavallaro, supra, and the question now before us. There, the board of review affirmed findings of guilty of rape and other offenses and a sentence of death. The board members, however, recommended that the sentence be commuted to life imprisonment. A majority of the Court squarely held that boards of review had not been granted the power to commute sentences. United States v Freeman, supra, at page 81. Chief Judge Quinn concurred only in the result. The reasoning behind his reservation in Freeman, supra, became apparent in United States v Goodwin, 5 USCMA 647, 18 CMR 271.

In United States v Goodwin, supra, the accused was sentenced to dismissal from the service. Concluding that the sentence was inappropriate, the board of review expressly commuted the dishonorable separation to loss of two hundred unrestricted numbers. Judge Latimer, with Judge Brosman concurring, exhaustively considered the history of appellate review in the armed forces, and concluded, at page 659:

“In hopes we will state the law as it is now provided for in the Code, and restate what we believe the law always has been in military services, we sum up our views. Specifically, only the Chief Executive and the Secretaries of the Departments or their Assistants, if so designated, have the power to change a dismissal from the service to any other form of punishment. Only the President can change a sentence of death to confinement for life or for a term of years. Generally, the President and the enumerated Secretaries and their Assistants alone can commute a sentence, and we use the word ‘commute’ in its generally accepted sense, that is, change in form. Mitigation we restrict to a reduction in kind.”

Chief Judge Quinn vigorously dissented and pointed out his belief that Congress intended to clothe the boards of review with “the unqualified power, and the duty, to change a dismissal sentence which, on the basis of the whole record, it considers not to be appropriate punishment.” United States v Goodwin, at page 659. See also opinion of Chief Judge Quinn, concurring in part, United States v Washington, 6 USCMA 114, 19 CMR 240, and concurring opinion of Judge Latimer in United States v Jefferson, 7 USCMA 193, 21 CMR 319.

Summed up, our prior decisions indicate that Judges Latimer and Brosman were of the view that boards of review lacked authority to change a death sentence or dismissal to a less onerous penalty. Chief Judge Quinn has consistently maintained that the majority of the Court misread Code, supra, Article 66(c). With due respect for the force of our prior opinions and the belief of my brother, Latimer, I am compelled to conclude that the Chief Judge’s view accurately reflects the intent of Congress in conferring broad authority, over sentences upon convening authorities, and boards of review.

At the outset, a reading of Code, supra, Article 64, indicates that it expressly confers upon the convening authority the power to approve “the sentence or such part. or amount of the sentence . ’. .' as he in his discretion determines should be approved.” (Emphasis supplied.) Indeed, we have said that he may properly refuse to approve any sentence. United States v Speller, 8 USCMA 363, 24 CMR 173. To grant to the convening authority that broad power under Code, supra, Article 64, and, at the same time, to deny him the right to reduce the most serious of all penalties to a lesser punishment is completely illogical. We should not attribute to Congress the intent to bring about such an absurd result, and reference to the Code’s legislative history clearly establishes that they did not seek so to limit the convening authority in his action upon the case. The following colloquy during the hearings before the House Armed Services Committee is illuminating:

“Mr. SMART. Yes, sir.

“Now, article 64, on page 51. The point there was that the committee wanted to be sure that the convening authority had the right to remit any part of the sentence he wanted to, that is, to do anything he desired with that sentence, so far as abating it was concerned.

“So I would suggest on page 51, at line 17, immediately before the word ‘determines’ at the end of line 17, insert ‘as he in his discretion,’ so that he is not then limited to the findings or sentence or anything else but his discretion.

“It becomes a discretionary matter with the convening authority as to what he shall do with any sentence which comes before him for review.

“Mr. Brooks. Any objection to that verbage? If not, we will adopt that.” [Emphasis supplied.] [Hearings before House Armed Services Committee on H.R. 2498, 81st Congress, 1st Session, page 1266.]

The intent of Congress to grant equally broad powers to the board of review is even more clearly spelled out. Hearings before Senate Armed Services Committee on S. 857 and H.R. 4080, 81st Congress, 1st Session, page 42; Jackson v Taylor, 353 US 569, 1 L ed 2d 1045, 77 S Ct 1027, (1957); Currier and Kent, The Boards of Review of the Armed Services, 6 Vanderbilt Law Review 241, 242 (1953). Our recognition in United States v Atkins, 8 USCMA 77, 23 CMR 301, of its authority to affirm no sentence is indicative of the wide scope of its control over the appropriateness of the adjudged punishment. Moreover, as the Chief Judge pointed out in his separate opinion in United States v Goodwin, supra, Congress was specifically informed that the language of the then-proposed Article 66 would confer upon the boards of review the power to commute sentences theretofore enjoyed by the confirming authorities. Hearings before Senate Armed Services Committee, supra, pages 258-259, 285, 287. Nevertheless, the broad language was retained in the enacted legislation, and its purposeful inclusion is not strange when one considers that a principal objection to the administration of military justice during World War II was the severity of sentences imposed by service courts-martial. As was said by Mr. Justice Clark in Jackson v Taylor, supra, at page 577, et seq:

“. . . Military officials opposed giving the review boards power to alter sentences. . . . The Subcommittee nevertheless decided the boards should have that power. . . . The Committee Report to the Senate augments the conclusion that the boards of review were to have the power to alter sentences. A study of the legislative history of the Code in the House of Representatives leads to the same conclusion. . . . Article 66 was enacted in the language approved by the committees. It is manifest then that it was the intent of Congress that a board of review should exercise just such authority as was exercised here.

“. . . Congress avoided the necessity for conjecture and speculation by placing authority in the board of review to correct not only the findings as to guilt but the sentence as well. . . . Military law provides that one aggregate sentence must be imposed and the board of review may modify that sentence in the manner it finds appropriate.”

In short, there is little that can be added to the rationale of the Chief Judge’s dissent in United States v Goodwin, supra, and I unqualifiedly adopt the reasoning set forth therein.

For the foregoing reasons, whether it be termed commutation, mitigation, or merely a reduction in punishment, we hold that both the convening authority and a board of review have the authority to lessen the severity of a death penalty by converting it to dishonorable discharge and confinement at hard labor. Our prior decisions in which the contrary view was expressed are overruled. It necessarily follows that this case must be returned to the board of review for implementation of its finding that no sentence in excess of dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for life is appropriate. The approval of this lesser sentence will eliminate any necessity for return of the record to the convening authority level.

The decision of the board of review is reversed, and the record of trial is returned to The Judge Advocate General of the Air Force for action consistent with the views expressed herein.

Chief Judge Quinn concurs.

1 ACM 15851.