United States v. Johnson

¶1concurring:

¶2I agree completely with the analysis and conclusions in Part II of the lead opinion concerning the law on officiality of statements and its application in this case. Accordingly, I concur in the actions on findings and the sentence reassessment stated above.

¶3I also agree with Part III of the lead opinion insofar as it finds that there is a potential lesser offense of “false unofficial statement” chargeable under Article 134, UCMJ, but that we may not affirm findings of guilty as to that offense in this case. However, I have arrived at these latter conclusions through a different analytical model, based mainly on my study of several Court of Military Appeals opinions.

¶4The narrow issue under consideration is the power of this court, as a “reviewing authority,” to “affirm ... so much of a finding as includes a lesser included offense.” UCMJ art. 59(b).

¶5In order to affirm a lesser included offense in lieu of affirming the offense of which the appellant stands convicted — other than one under the “crimes and offenses not capital” clause of Article 1341 — we should first deter*1040mine whether there was a specific understanding at trial as to lesser included offenses. This could be the result of (1) an agreement between the counsel and military judge, (2) instructions by the military judge to the panel, or (3) an announcement by the military judge, in a judge alone trial, prior to deliberations on findings. United States v. McGhee, 32 M.J. 322, 325 (C.M.A.1991) (counsel agreed negligent homicide was the only lesser included offense of involuntary manslaughter); United States v. McKinley, 27 M.J. 78, 80 (C.M.A.1988) (judge ruled and counsel agreed no lesser included offenses of obstructing justice); United States v. Morgan, 8 U.S.C.M.A. 659, 25 C.M.R. 163, 166-67, 1958 WL 3105 (1958) (conviction of lesser included offense not instructed upon cannot stand). If present, this determination becomes the “law of the case” unless there is “plain ¿rror.”2McKinley, 27 M.J. at 80.

¶6If there is no “law of the case” to control lesser included offense findings, we should then look to the Manual for Courts-Martial to see which offenses are specifically determined therein to be lesser included offenses for the charged specification. McGhee, 32 M.J. at 325 (Manual lists negligent homicide as lesser included offense of involuntary manslaughter); McKinley, 27 M.J. at 80 (Manual states no lesser included offense of obstructing justice).

¶7When, under either of these two scenarios, we have a lesser included offense to the offense of which the appellant was convicted at trial, we may (subject to a determination of sufficiency) affirm that lesser included offense. United States v. Patterson, 14 U.S.C.M.A. 441, 34 C.M.R. 221, 224 (1964) (“Appellate affirmance of a lesser offense included within the offense found is supported by substantive law, established rules of procedure, and reason”). In most instances, (for example, voluntary manslaughter (Article 119) as a lesser included offense to murder (Article 118)) it is a simple matter

¶8to see that the elements of the lesser are different only in degree from that of the greater (“the intent to kill or inflict great bodily harm” is similar in nature but lesser in degree to “a premeditated design to MU”). The area of concern has been when a lesser included offense is found in Article 134 as an offense prejudicial to good order and discipline or service discrediting.

¶9The Court of Military Appeals has held that “[njecessarily, all the elements of offenses lesser included within that charged are ‘found by the trial court’ when it convicts the accused of the greater offense.” Id.(citation omitted). For this to be true in the case where the Manual specifically lists an offense under Article 134 (for example, negligent homicide) as a lesser included offense (here, of murder), we must indulge in a presumption.3 This presumption is that any offense contained in a specific article of the Code was legislated as a military offense (that is, an offense for which a military member should be tried) because it was deemed by Congress to be prejudicial to good order and discipline and service discrediting. See United States v. Morgan, 33 M.J. 1055, 1060 (A.C.M.R.1991), aff'd, 37 M.J. 407 (C.M.A. 1993) (quoting United States v. Clardy, 13 M.J. 308, 315 (C.M.A.1982)) (“Regulations which accompany legislation are a guide to legislative intent.”). Therefore, a finding of guilty of murder incorporates an unarticulated finding that the accused’s conduct was prejudicial to good order and discipline and service discrediting sufficient to support the Manual’s listing of negligent homicide as a lesser included offense.

¶10As alluded above, Pattersoncontains an important caveat. After stating the general affirmance power of appellate courts, the Court of Military Appeals stated that:

this Court has consistently sustained appellate affirmance of an offense included within that found by the court-martial when, on review, it is determined that the *1041evidence of record is insufficient to support one of the elements of the offense of which the accused was convicted, but sufficient to support the lesser offense.

¶1134 C.M.R. at 224 (emphasis added). Even when acting under this presumption that the findings at the trial level include those of prejudice to good order and discipline and service discrediting conduct, we cannot affirm a lesser included offense under Article 134 if we find that the evidence of record is insufficient to support that finding. It is important, for analytical purposes, to distinguish between the record containing a specific finding (Patterson says it is there) and containing sufficient evidence.

¶12When we are faced with a situation where neither of the two lesser included offense scenarios (“law of the case” and specific Manual listing) applies, then we can only affirm a lesser included offense where there are findings with respect to a greater offense which include all the elements of the lesser offense. This means that a lesser offense under Article 134 is probably not affirmable in this situation. United States v. Martin, 50 C.M.R. 314 (A.C.M.R.), aff'd, 1 M.J. 75 (C.M.A.1975). In Martin, the convening authority erred in approving a “wrongful possession” of drugs under Article 134 in lieu of the court-martial’s finding of a violation of a lawful general regulation under Article 92 where there was no model Article 134 specification, no listed maximum punishment, the case was tried solely under Article 92 and “there was no indication that the trier of fact ever considered the elements of prejudicial or service-discrediting conduct.” Id. at 317.

¶13Applying this analysis to the instant case, we find that there was no discussion as to a lesser included offense to that of a false official statement (so there is no “law of the case”) and the Manual lists only “attempt” as a lesser included offense. Manual for Courts-Martial, United States, 1984, Part IV, para. 31d. Therefore, we cannot use the Pattersonpresumption to affirm a lesser in-eluded offense of “false unofficial statement.” Because there is no finding of record that can be used to support affirmance of the element of prejudice to good order and discipline or service discredit, we cannot affirm this lesser offense under Article 134.4

¶18concurring in the result:

¶19I agree with the disposition of this ease set forth in the lead opinion and concur with my brethren’s conclusion that the military judge did not convict the appellant of an offense under Article 134, UCMJ, of making a false statement when he found him guilty of making a false official statement in violation of Article 107, UCMJ.

¶20A court-martial may find an accused guilty of an offense necessarily included in the offense charged. UCMJ art. 79. Moreover, a convening authority may change a finding of guilty of charge or specification to a finding of guilty to an offense that is a lesser included offense of the offense stated in the charge or specification. UCMJ art. 60(e)(3)(B). Finally, a court of military review may affirm so much of an approved finding of guilty as includes a lesser included offense, and which is correct in law and fact. UCMJ art. 59(b) and art. 66(c).

¶21Generally, a lesser offense is necessarily included in a charged offense if the specification contains allegations which either expressly or by fair implication put the accused on notice to be prepared to defend against it in addition to the offense specifically charged. MCM, 1984, Part IV, para. 2. This notice requirement for establishing the presence of a lesser offense for charging purposes may be met in two ways: (1) in law, when all of the elements of the lesser offense merge in the greater offense and (2) in fact, when the lesser offense includes an element not common to the greater offense, but where the specification is sufficient to fairly allege the unique element of the lesser of*1042fense (such a lesser charge is more like a duplicitous, but unsevered, charge than a true lesser “merged” offense). See United States v. Teters, 37 M.J. 370 (C.M.A.1993), cert. denied, — U.S.-, 114 S.Ct. 919,127 L.Ed.2d 213 (1994) cf. MCM, 1984, Part IV, para. 2b.

¶22Though a lesser offense may be fairly charged, conviction of the greater offense necessarily includes conviction of the lesser offense only when the elements of the greater and lesser offenses are merged. See Teters, 37 M.J. 370. Where merger exists and a court-martial convicts of the greater charged offense, it also automatically convicts of the subsumed lesser included offense as a matter of law. However, where merger does not exist because the lesser offense contains an element not common to the greater offense, we must look beyond the sufficiency of the pleading for some evidence in the record that the unique element of the lesser offense was found, as a matter of fact, beyond a reasonable doubt.

¶23In my opinion, to avoid doing violence to military justice, this court should not resort to legal fiction in deciding whether to hold an appellant guilty of a lesser charged offense. For example, it is not fair or accurate to say that conduct alleged solely under Article 134 is “inherently” prejudicial to good order and discipline or service discrediting for findings purposes. Though the unique elements of Article 134 need not be expressly alleged to give fair notice for charging purposes, they are actual elements that must be proven by the circumstances in each case beyond a reasonable doubt. See generally, United States v. Hitchman, 29 M.J. 951 (A.C.M.R.1990); United States v. Perez, 33 M.J. 1050 (A.C.M.R.1991). Moreover, there is no basis in law or logic to extend to all cases the premise that an erroneous conviction of any specific punitive article leaves as legal residue a conviction of the unique elements of Article 134. After all, accepting the reasonable assumption that certain conduct violative of some specific punitive articles is inherently prejudicial or service discrediting, conviction of a lesser offense certainly cannot be affirmed under Article 134 if the conduct that is inherently prejudicial or service discrediting in the greater offense is found on appeal not to exist.1 Finally, I do not agree that we may affirm a finding of guilty to an unmerged element just because an offense is listed in the Manual for Courts-Martial as a specific lesser included offense of a specified punitive article. We may find that, under the circumstances of a particular case, an element of a listed lesser included offense is not necessarily merged in the finding of the greater offense.2

¶24In light of Teters, this court should not affirm a lesser included but unmerged offense unless it is clear from the record that a *1043legally sufficient finding of guilty was arrived at as a matter of fact. Where guilt of a lesser offense is based on nothing more than some evidence upon which a finding of guilty might have been based if the fact finder had considered it, there is no real finding for the convening authority to approve and nothing for this court to affirm. Such it is with the case at bar. Here the military judge found the appellant guilty of making a false official statement in violation of Article 107, UCMJ. All false official statements are inherently prejudicial to good order and discipline because they subvert military administration. Therefore, implicit in the judge’s finding that the false statement was “official” was a finding that the conduct was prejudicial to good order and discipline. However, this court on appeal set aside the military judge’s finding that the statement was “official”. Inasmuch as the implicit finding of prejudice was based solely on the judge’s erroneous finding, the implicit finding is also not correct in law. Moreover, there is no indication that the military judge ever actually considered, let alone specifically found beyond a reasonable doubt, whether the appellant’s false unofficial statement would have been prejudicial to good order and discipline or service discrediting under the circumstances. See United States v. Martin, 50 C.M.R. 314, 317 (A.C.M.R.), aff'd, 1 M.J. 75 (C.M.A.1975).