United States v. Waldron

11 M.J. 36, 1981 CMA LEXIS 15243

• Court: United States Court of Military Appeals
• Decided: April 27, 1981
• Docket: No. 39,505; NCM 78 1382
• Status: Published

Opinions

Opinion

FLETCHER, Judge:

Pursuant to Article 67(b)(2), Uniform Code of Military Justice, 10 U.S.C. § 867(b)(2), the Judge Advocate General of the Navy has certified to us the following question:

WAS THE UNITED STATES NAVY COURT OF MILITARY REVIEW CORRECT, AS A MATTER OF LAW, IN SETTING ASIDE THE ACCUSED’S CONVICTION OF THE OFFENSE OF ASSAULT IN WHICH GRIEVOUS BODILY HARM WAS INTENTIONALLY INFLICTED AND DISMISSING THE CHARGE, ON THE BASIS THAT THE MILITARY JUDGE IMPROPERLY INSTRUCTED THE MEMBERS ON THE LESSER INCLUDED OFFENSES, OTHER THAN VOLUNTARY MANSLAUGHTER, WHERE THE ACCUSED OBJECTED AND WHERE THERE WAS NO ISSUE OF FACT AS TO EITHER THE DEATH OF THE VICTIM OR THE CAUSE OF DEATH?

The perimetric facts are easily delineated.

Appellee appeared before a general court-martial with members at Quantico, Virginia. Contrary to his plea of not guilty to a murder charge, the members originally found him guilty of the lesser included offense of voluntary manslaughter. During presentencing evidence (which was very favorable to the accused), the jury requested reinstructions so as to reconsider their findings. Over defense counsel’s strenuous objection, the military judge reinstructed the members on the following offenses: unpremeditated murder, voluntary manslaughter, involuntary manslaughter, intentional infliction of grievous bodily harm, assault with a dangerous weapon, and assault and battery.

Both documentary evidence and stipulated testimony admitted at trial establishes that the victim, Zakaria Ismail Khalil Ham-mod died as a result of a gunshot wound to his head, inflicted on July 15, 1977, by appellee. A pretrial statement of appellee, admitted as prosecution exhibit 7, was summarized fairly by the staff judge advocate as follows:

On 15 July 1977,1 was assigned to Post 2, American Embassy, Cairo, together with an Egyptian guard, Zakariah Ismail Khalil Hammod. I found Khalil asleep and attempted to awaken him. My actions startled him, and he began to curse me. I pushed him back to calm him, but he reached for his pistol, which was in his waistband. He was also armed with a machine gun, which was on the chair in which he had been sleeping. I believed that in reaching for his gun, he wanted to shoot me, and felt that my life was in danger. When he tried to get his gun out, I drew my weapon and fired one round, hitting him in the left side of the face. As I was faster than he, he never got his gun out. I did not aim at his head. I pulled the gun out quickly and shot, and he was hit in the head. I did not want to kill him. I acted hastily. I could not have stopped him any other way than shooting him because he had reached for his gun. Although we had a misunderstanding, there were no differences between us.

This evidence was uncontroverted at trial. Furthermore, evidence of record appears showing that appellee killed the victim out of fear. The members had before them appellee’s confession admitting intentional infliction of a gunshot wound on the victim.

During an Article 39(a) session on prefindings instructions, defense counsel objected to instructions on any of the lesser included offenses to unpremeditated murder. The rationale for this was the absence of any rebuttal to government evidence that appellee shot the victim intentionally, causing his death. Defense requested an all-or-nothing instruction that if he was not guilty of murder, he was innocent.

This was denied both at this phase and later when the members requested reinstruction.

The United States Navy Court of Military Review set aside the findings and sentence and ordered the charge dismissed. 9 M.J. 811 (1980). I concur in the well-reasoned opinion of Chief Judge Cedarburg and adopt it as my own.¹ The certified question is answered in the affirmative.

The decision of the United States Navy Court of Military Review is affirmed.

1 . I expressly do not adopt footnote 9 and do not comment on this issue.

1 . The Government brief recites that:

Instructions on lesser-included offenses in the federal system are proper only “where the charged greater offense requires the jury to find a disputed factual element which is not required for conviction of the lesser-included offense.” Sansone v. United States, 380 U.S. 343, 350, 85 S.Ct. 1004, 1009, 13 L.Ed.2d 882 (1965). For instance, where an accused is charged with possession of hundreds of pounds of marijuana with the intent to distribute, and where the evidence shows he did possess that amount, there is no reasonable dispute over intent to distribute, and there should be no instruction on the lesser-included offense of possession of marijuana. United States v. Rogers, 504 F.2d 1079, 1084 (5th Cir. 1974). There is a dispute over an element either where there is sharply conflicting evidence regarding it, or where the absence of it is fairly inferable from the evidence. United States v. Sinclair, 444 F.2d 888, 889 890 (D.C. Cir. 1971). There is not a dispute merely because the jury is free to disbelieve credible and unrebutted testimony. United States v. Harary, 457 F.2d 471, 477 (2d Cir. 1972).