United States v. Santulli

28 M.J. 651, 1989 CMR LEXIS 307, 1989 WL 37594
CourtU.S. Army Court of Military Review
DecidedApril 17, 1989
DocketACMR 8800773
StatusPublished
Cited by5 cases

This text of 28 M.J. 651 (United States v. Santulli) is published on Counsel Stack Legal Research, covering U.S. Army 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. Santulli, 28 M.J. 651, 1989 CMR LEXIS 307, 1989 WL 37594 (usarmymilrev 1989).

Opinion

OPINION OF THE COURT

KENNETT, Judge:

Tried by a general court-martial composed of officer members, appellant was convicted, contrary to his pleas, of larceny of military property and wrongful sale of that property (two cameras and a camera lens, total value in excess of $100.00), in violation of Articles 121 and 108, Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 921 and 908 (1982), respectively. He was sentenced to a bad-conduct discharge, confinement for three months, forfeiture of all pay and allowances, reduction to E-l, and a reprimand. The convening authority approved the sentence.

Appellant, personally and through counsel, asserts numerous errors, and the government concedes error with respect to two of these allegations. We will discuss those two issues.

I

The defense requested, with respect to the larceny offense, an instruction on mistake of fact encompassing appellant’s alleged belief that the property was abandoned. In his instructions, the military judge erroneously advised the court members that appellant’s mistake of fact had to be both honest and reasonable. As larceny involves a specific intent element, i.e., the intent permanently to deprive the owner [here, the United States government] of the use and benefit of the property,1 and as abandoned property cannot be stolen as it has no owner,2 appellant’s mistake of fact needed only to be honest. Manual for Courts-Martial, United States, 1984 Rule for Courts-Martial [hereinafter R.C.M.] 916(j). The government concedes that the mistake-of-fact instruction was erroneous, but urges affirmance of the conviction under the harmless error analysis of Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986), and United States v. Mance, 26 M.J. 244 (C.M.A.1988).

In Rose, the Supreme Court determined that the harmless error standard of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824,17 L.Ed.2d 705 (1967), applied to a jury instruction which erroneously shifted the burden of proof to the accused by presuming malice. The Court stated that “[w]hen a jury is instructed to presume malice from predicate facts, it still must find the existence of those facts beyond a reasonable doubt.” Rose v. Clark, 478 U.S. at 580, 106 S.Ct. at 3107. Explaining the difference between the erroneous instruction in Rose and other instructional errors or omissions which could never be harmless because they, in essence, direct a verdict for the prosecution, the Court advised that “[b]ecause a presumption does not remove the issue of intent from the jury’s consideration, it is distinguishable from other instructional errors that prevent a jury from considering an issue.” Rose v. Clark, 478 U.S. at 580 n. 8, 106 S.Ct. at 3107 n. 8. In Mance, the Court of Military Appeals applied the Rose analysis and concluded:

[W]hen a judge omits entirely any instruction on an element of the charged offense, this error may not be tested for harmlessness because, thereby, the court members are prevented from considering that element at all____ On the other hand, when a judge’s instruction adequately identifies an element to be resolved by the members and adequately requires that the members find the necessary predicate facts beyond a reasonable doubt, then an erroneous instruction on that element may be tested for harmlessness.

United States v. Mance, 26 M.J. at 255-56 (emphasis in original).

[653]*653In United States v. Turner, 27 M.J. 217 (C.M.A.1988), the Court of Military Appeals addressed a military judge’s refusal to give a mistake-of-fact instruction when that instruction was required by the evidence. Citing Rose, the Court concluded that the instructional omission was legal error as it removed the issue of mistake-of-fact from the members’ consideration, thereby “prejudicially depriv[ing] appellant of the core of his defense.” United States v. Turner, 27 M.J. at 221. The Court’s reasoning that this type of instructional error was not harmless is equivalent to the situations cited in Rose, 478 U.S. at 577-579, 106 S.Ct. at 3105-3107, wherein the trial process was aborted or denied altogether.

The issue here is whether the judge’s erroneous instruction on mistake-of-fact can be tested for harmlessness under the Rose/Mance analysis or whether it cannot be so tested under the Turner rationale. We hold that the erroneous instruction here is akin to the erroneous instructions in Rose and Manee and can be tested for harmlessness. The judge’s overall instructions adequately identified the issue, mistake-of-fact, to be resolved by the members and adequately required that they find the necessary predicate facts beyond a reasonable doubt. Thus, the erroneous instruction did not deprive appellant of the “core of his defense” nor abort or deny the trial process.

Testing for harmlessness, we find, first, overwhelming evidence of guilt. The government’s theory of the larceny was that appellant, while on duty as the charge-of-quarters, entered the unit's photo lab and stole the property. The defense theory was that appellant, while on duty as the charge of quarters, found the property in a paper bag under an outside stairwell abutting one of the unit’s buildings, and, believing the property to be abandoned and not recognizing it as military property, decided to pawn it in order to pay his automobile insurance premium. The government’s rebuttal theory was that appellant wrongfully withheld found property fully realizing it was military property belonging to his unit’s photo lab. The evidence conclusively established appellant’s motive and opportunity, and that he was aware of the manner by which the unit identified its small, transportable property by either etching onto the property the letter “R” followed by a series of numbers or gluing onto the property a red label with the “R” number. Here, two items of the property in question had the “R” number clearly etched thereon, while the third had a sticky spot where the red label had been glued on with some variety of super adhesive glue. While pawning the property, appellant provided a false address and told the pawnshop owner that he had been given the items by his grandfather. Accordingly, under either government theory, appellant was guilty of larceny of military property. Under the facts of this case, we are convinced beyond a reasonable doubt that, if instructed the mistake-of-fact abandonment defense had only to be honest, the court members would not have been any less willing to find guilt. See Manee, 26 M.J. at 256. Thus, we find, second, that appellant was not prejudiced by the erroneous instruction and that, under the harmless error analysis of Rose/Mance and Article 59(a), UCMJ, 10 U.S.C. § 859(a), his conviction of larceny of military property may be affirmed.

II

Appellant asserts that the announced findings of guilty of larceny failed to reflect the exception of the word “military” from the specification.

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Bluebook (online)
28 M.J. 651, 1989 CMR LEXIS 307, 1989 WL 37594, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-santulli-usarmymilrev-1989.