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to which the accused has entered a plea of not guilty.19 Although in uncontested cases it is sufficient if the accused be informed that his plea of guilty admits every element of every offense to which he has pleaded guilty without an enunciation of the individual elements,20 the better practice is for the president to carefully instruct on the individual elements in all instances without regard to the accused's pleas. However, should the president incorrectly instruct the accused on the individual elements of an offense to which a guilty plea is accepted the plea is rendered improvident.21

Generally, this error may be avoided by the president through a careful examination of the section of the Department of the Army Pamphlet, The Law Officer, applicable to the offense being defined; and can likewise be easily detected by counsel familiar with that section. If erroneous instructions on the elements are given and go undetected, prejudicial error is committed.22 However, if the error is detected, the error may be cured by reverting to the point where the improper instruction was given, properly instructing, and proceeding from there through the remaining phases of trial.

An improvident plea may also result from the accused being incorrectly informed of the maximum imposable sentence.23 The incorrect instruction spoken of here is one given before a plea of guilty by the accused is accepted by the court. If an accused pleads guilty after an improper instruction on the maximum sentence, he is deemed to not understand the consequences of his plea and therefore his plea becomes improvident. Error also results when the accused has pleaded not guilty and thereafter the president incorrectly informs the court of the maximum imposable sentence, but in that instance no question of improvidence is raised.24

The president of a special court, in his explanation to the accused of the consequences which may flow from the acceptance of a plea of guilty to one or more offenses, can avoid misstating the maximum punishment imposable only if he is familiar with the maximum imposable punishment for each offense with which the accused is charged.25 Before accepting any of the accused's pleas of guilty, the president should ascertain the maximum punishment for all offenses to which the accused intends to plead

guilty. This can be determined by totalling the maximum punishments for the individual offenses making allowances for any multiplicious offenses (discussed later in this article). The total maximum punishment, and only the total maximum punishment should be quoted in the explanation to the accused. It should also be noted that if this totalled maximum exceeds the punishment limitations of a special court,26 the president's explanation of the maximum punishment should be limited to that maximum.

A further complication arises in this area if the ascertained total maximum sentence does not extend to a bad conduct discharge, but the accused's service record shows previous convictions, two or more of which will be admissible as matters in aggravation. Because of the prior convictions, the accused may then be sentenced to additional punishment including a bad conduct discharge.27

In this situation the Court of Military Appeals has held that the accused must either be informed of the additional imposable punishment if two or more prior convictions are introduced, prior to accepting his plea; or, if his pleas have already been accepted, he must be so informed and given the opportunity to withdraw any guilty plea which has been accepted. If neither of these procedures is followed, any and all guilty pleas he has entered become improvident.28

II

INSTRUCTIONS: OFFENSES MULTIPLICIOUS

FOR SENTENCING PURPOSES While a discussion of this topic is primarily for the benefit of presidents of special courts, a familiarization with this area is also desirable for counsel. It should be noted at the outset that erroneous instructions in this area frequently benefit the accused rather than work to his detriment. This occurs when the court is instructed that offenses are multiplicious for sentencing purposes when they actually are not. Although errors of this type usually get very little emphasis because the accused benefits from them, they should also be avoided since they quite often result in the accused receiving a substantially less severe punishment than is appropriate for the offenses of which he has been convicted.

However, of paramount concern is the failure to instruct when offenses are multiplicious for sentencing purposes. This error is detrimental

19. United States v. Clay, 1 USCMA 74, 1 CMR 74 (1951).
20. MCM, para. 70b(2).
21. United States v. Stickney, WC NCM 63 00958 (1963).
22. United States v. Clay, supra note 19.
23. United States v. Zemartis, supra note 3.
24. United States v. Thomas, 12 USCMA 583, 31 CMR 169 (1961).
25. MCM, US, 1951, Para, 127c.

26. Article 19, UCMJ.
27. Para. 127c, Section B, MCM, US, 1951.
28. United States v. Downing, 11 USCMA 650, 29 CMR 466 (1960);

United States v. Zemartis, supra note 3.

theoretical return to the Manual-enunciated "separate elements" test.

Thus it would seem at this time there is no conclusive method of determining if offenses are multiplicious. It is submitted that the cases are decided largely on an individual basis. The most reliable method of determining multiplicious offenses is to check the prior decisions. Some offenses which have been held to be multiplicious for sentencing purposes are: assault with intent to commit sodomy and consummated sodomy, 36 unpremeditated murder and felony murder,37 robbery and assault with a dangerous weapon,38 removing letter from mails and larceny of contents thereof,39 unauthorized absence and missing movement, o unauthorized absence and breach of restriction," and unauthorized absence and failure to obey straggler's orders. A more complete list of offenses which have been determined to be multiplicious for sentencing purposes can be found in the JAG Journal unofficial changes to paragraph 76a (8) of the Manual for Courts-Martial. However, even prior decisions may be inconclusive if the facts with which you are confronted differ significantly from those of the prior decision.

If research reveals that there has been no decision on the offenses you are concerned with, decisions on analogous offenses will quite often be helpful. If no decisions on analogous offenses are available, one must then attempt to apply the tests enunciated in the most recent cases. If there is at least a strong possibility that the offenses are multiplicious an instruction to that effect should be given. As mentioned previously, unnecessary multiplicity instructions should be avoided, but if there is legitimate doubt, it is far better to over-instruct.

III

to the accused and quite often the error cannot be purged by reassessment on review, in which case a rehearing on the sentence is required.

When are offenses multiplicious for sentencing purposes ? Unfortunately there is no precise answer to this question nor are there absolute guide posts. The Manual provides :

The test to be applied in determining whether the offenses are separate is this: The offenses are separate if each offense requires proof of an element not

required to prove the other." If this were the present state of the law one could obviously examine the elements of each offense charged and easily determine whether or not they were separate. Unfortunately, the solution is not that simple.

At one time it appeared that the "separate elements" test would be mechanically applied to all offenses to determine which offenses were separable for punishment purposes.30 However, following the Yarborough case, the Court of Military Appeals decided a series of cases which certainly extended the "separate elements" test if not completely deviating from it. In this series of decisions the Court spoke of "separate duties",31 "legal norms and standards" 32 and "material facts." 33

Seemingly the "separate elements" test was not overruled, but rather enlarged upon. However, the practical effect of these decisions was to leave the state of the law in total uncertainty.

More recently the Court has applied a "single act or transaction" test to determine whether offenses are multiplicious.84 In other words, if the questionable offenses are committed by what is essentially only one act or transaction, the offenses are not separately punishable. The rationale behind this test is particularly impressive to this writer, but on occasion its application can be very difficult. What constitutes “one act or transaction” can be a very controversial question in many instances.

While the state of the law at this time is by no means settled, the most recent cases seem to apply the “one act or transaction" test with an added ingredient—the added ingredient being that if proof of one of the offenses does not establish the other offense, the two are not multiplicious.36 This, in effect, is a conditional,

ARGUMENT OF COUNSEL The Manual for Courts-Martial provides that "After both sides have rested, arguments may be made to the court by the trial counsel, the accused, and his counsel." 43 In general terms, the Manual also describes the boundaries for fair argument.

A reasonable latitude should be allowed counsel in

presenting their arguments. 36. United States v. Morgan, 8 USCMA 341, 24 CMR 151 (1957). 37. United States v. Davis, 2 USCMA 505, 10 CMR 3 (1953). 38. United States v. McVey, 4 USCMA 167, 15 CMR 167 (1954). 39. United States v. Dicario, 8 USCMA 353, 24 CMR 163 (1957). 40. United States v. Williams, 9 USCMA 55, 25 CMR 317 (1950);

United States v. Bridges, 9 USCMA 121, 25 CMR 383 (19591. 41. United States v. Modesett, 9 USCMA 152, 25 CMR 414 (1959). 42. United States v. Granger, 9 USCMA 719, 26 CMR 499 (1935). 43. MCM, US, 1951, para. 72a.

29. MCM, US, 1951, para. 76a (8).
30. United States v. Yarborough, 1 USCMA 678, 5 CMR 106 (1952).
31. United States v. Wallace, 2 USCMA 595, 10 CMR 93 (1953).
32. United States v. Beene, 4 USCMA 177, 15 CMR 177 (1954).
33. United States v. Larney, 2 USCMA 563, 10 CMR 61 (1953).
34. United States v. Brown, 8 USCMA 18, 23 CMR 242 (1957).
35. United States v. Haliburton, 9 USCMA 694, 26 CMR 474 (1958);

United States v. Morse, 9 USCMA 799, 27 CMR 67 (1958).

Counsel may make a reasonable comment on the evidence and may draw such inferences from the testimony as will support his theory of the case.“

Generally, these provisions are applicable both to argument on findings and argument on sentence. It is also significant that more serious legal ramifications usually flow from improper argument on the findings than do from improper argument on sentence. In the latter situation a rehearing on the sentence 45 is normally sufficient to purge the error, while in the former a complete rehearing 46 is often required.

To a large extent what constitutes fair argument is dependent on the individual fact situa# tion. However, the Court of Military Appeals

has advanced a number of rules which are applicable in all instances. It is always error to comment on the accused's refusal to take the stand, or to comment on the accused limiting his testimony to certain offenses.*?

It is also considered to be improper for either : counsel to present legal authorities in argument

on the findings or sentence or to submit fact : situations out of other cases for the court's con

sideration. This should be distinguished from : argument on interlocutory matters during the course of the trial on which matters reference to authority is usually quite proper.

Another error found frequently in argument occurs when certain testimony or real

evidence is denied admission by the court. If E counsel then in argument either inadvertently

or intentionally refers to the rejected matter, error is committed.49 An error of this type quite often is committed if counsel prepare their arguments in advance and fail to make necessary deletions when evidence on which they are relying is denied admission during the course of the trial.

Counsel also quite often err to the prejudice of the accused when in argument they refer to policies announced by the Secretary of the Navy or the Commandant of the Marine Corps, or to recommendations of command authorities 50.

the rationale being that cases should be decided i on an individual basis rather than by broad administrative policies.

Another pitfall in which counsel are quite often caught is the tendency to assert one's per

sonal belief in the guilt or innocence of the accused or to make a personal assertion of what is an appropriate sentence.51 The expression of one's personal belief should be avoided at all times and especially when the belief refers directly to the findings or sentence. Although this rule is unequivocally presented, it is very seldom enforced except in the most gross instances of personal assertions. This is because it is very difficult to try a contested case under any circumstances without inadvertent expressions of personal belief being uttered. It is also an occasion quite difficult to distinguish between "fair comment” on the evidence which is acceptable and an assertion of personal belief which is not.

The final segment in the area of improper argument to be discussed here is one in which there are no absolute definitive rules. The situation usually arises only in hotly contested cases where counsel lose their emotional stability in the heat of combat and resort to various forms of “name-calling.” The particular incident with which we are most concerned occurs when trial counsel characterizes the accused with a barrage of indiscriminate and usually irrelevant epithets. Although heated exchanges between opposing counsel also occur frequently and should very definitely be avoided, they seldom are prejudicial to the accused.

An examination of the cases in this area indicates that the courts are quick to criticize and discourage impropriety in this area but are reluctant to find prejudice to the accused except in flagrant instances.52 A specific example involved an accused who was charged with several specifications of false swearing. Trial counsel repeatedly during the course of the proceedings referred to the accused as a "liar." The Court expressed the opinion that under the facts of that case trial counsel's remarks constituted "fair comment" and there was therefore no error.53 However, where the statements are extremely inflammatory, such as referring to the accused as a “liar with a rotten character of a moral leper”,54 or a second rate individual and habitual offender,65 the courts consistently find error and prejudice to the accused. It is submitted that what is "fair comment" in most instances can very easily be decided by an application of basic common sense. Such comments as those enunciated above have no place

(Continued on page 315) 51. MCM, US, 1951, para. 48c. 52. United States v. Hutchins, 5 USCMA 422, 18 CMR 46 (1955). 53. United States v. Doctor, 7 USCMA 126, 21 CMR 252 (1956). 54. United States v. Douglas, 13 CMR 529 (1953). 55. United States v. Summerour, WC NCM 63 00999 (1963).

44. MCM, US, 1951, para. 72b. 45. United States v. Grant, 11 USCMA 728, 29 CMR 544 (1960). 46. United States v. Allen, 11 USCMA 539, 29 CMR 355 (1960). 47. United States v. Bowen, 10 USCMA 74, 27 CMR 148 (1958). 48. United States v. Boise, 9 USCMA 228, 26 CMR 8 (1958); United

States v. Johnson, 9 USCMA 178, 25 CMR 440 (1958). 49. United States v. Porter, 10 USCMA 427, 27 CMR 501 (1959). 50. United States v. Davis, 8 USCMA 425, 24 CMR 235 (1957);

United States v. Lackey, 8 USCMA 718, 25 CMR 222 (1958).

JAG BULLETIN BOARD

MILITARY PERSONNEL DIVISION

CAPT Theodore J. Abercrombie, USN, from SACLANT

to Chief of Naval Air Reserve Training, Glenview. CDR Loyal R. Blackwood, USNR, from COMTWELVE

to COMSERVFORSIXTHFLT. CAPT Ralph K. Brandt, USN, from COMELEVEN to

COMINLANT, Charleston. CAPT George A. Burwell, USNR, from OJAG to

COMTEN. LT William A. Crane, USNR, from NJS to COMNAV

FORJAP. CDR James J. Cross, Jr., USNR, from ADCOMNTC,

Great Lakes to OJAG. CDR Paul R. Delay, USN, from USNS San Diego to

NTC, San Diego. LCDR William W. DeWolf, USN, from OJAG to

COMTWELVE. CAPT Arnold W. Eggen, USN, from COMSERVLANT

to Commander U.S. Taiwan Defense Force. CDR Charles A. Gearhart, USN, from NAS Port Lyauty

to NAVACTS, Port Lyauty. CDR Raymond W. Glasgow, USN, from NTC, Great

Lakes to USNS, Washington, D.C. CAPT Mack K. Greenberg, USN, from OJAG to

COMONE. CAPT Robert Hayne Hare, USN, from COMSIX to

OJAG. LCDR Clinton K. Higgins, Jr., USN, from USNH,

Philadelphia (under treatment) to COMFOUR. CDR Harold Hoag, USN, from Chief of Naval Air Re

serve Training to NAVSTA, Keflavik, Iceland. LCDR Hubert A. Irwin, USN, from NAVSTA, Wash

ington, D.C. to NAS Glynco, Ga. CAPT Saul Katz, USN, from COMINLANT to NWC,

Newport. CDR Arthur R. Maier, Jr., USN, from OJAG to

DEPCOMSUBLANT, New London. CDR Guilbert W. Martin, USN, from NAVACTS, Port

Lyauty to NATTC, Memphis. CAPT James N. Martin, USN, from COMFIVE to

COMCRUDESLANT, Newport. CDR Robert H. McCarthy, USNR, from COMFOUR

TEEN to COMFIVE.

CAPT William G. Neese, USN, from COMTEN to

COMSERVLANT. LCDR Ferdinand L. Salomon II, USN, from NJS to

CINCLANTFLT. LT Edward K. Sanders, USNR, from Com ServLant,

Norfolk to NAVSTA, Bermuda. CAPT Herbert T. Schmidt, USN, from Taiwan Defense

Command to OJAG. CAPT Richard J. Selman, USN, from NWC to COM.

SIX. CAPT Jerry R. Siefert, USN, from OJAG to COM

ELEVEN. CDR Richard C. Smith, USNR, from COMNINE to

NAVSUPPACTS, London. CAPT Thomas P. Smith, USN, from DEPCOMSUB

LANT, New London to AJAG. LTJG David G. Stubbeman, USNR, from NJS to NAV

STA, Adak, Alaska. LT Frank P. Swett, Jr., USNR, from NAVSTA, Guam

to HDQsUPPACT, Saigon, Viet-Nam. LT Craig F. Swoboda, USNR, from NAF, Sigonella,

Sicily to OJAG. LT George A. Thompson, USNR, from NAVSTA, Subic

Bay to NJS. LT James E. Toms, USN, from NAVSTA, Bermuda to

Army JAG School, Charlottesville. LTJG Peter F. Vaira, Jr., USNR, from NJS to NAV

STA, Subic Bay. LCDR Manley B. Wade, USN, from COMCRUDES

LANT, Newport to NJS. LCDR Charles E. Waite, USN, from Naval War College

to COMNINE. CDR Robert W. Wells, USNR, from COMNAVFORJAP

to ADCOM NTC, Great Lakes. CDR Dicran B. Barian, USNR, from COMTHREE to

COMNINE. LT Roy J. Birkmeyer, USNR, from USNAVSUPPORT

FORCE, ANTARTICA, Wash., D.C., to HEDSUP

PACT YOKOSUKA. LT Richard L. Bonello, USNR, from NAVSUPPACTY

NAPLES to COMTHREE. CDR Ward Boston, Jr., USN, from NAS Lemoore to

AFSC, Norfolk. LT Herbert 0. Brickson, USNR, from COMNAVPHIL

to NAAS, Chase Field, Beeville, Tex. CDR Walter F. Brown, USN, from NAVSTA, Subie

Bay to Army JAG School, Charlottesville. LCDR James R. Bruner, USN, from NAVPHIBASE

Little Creek to NAVSTA, San Diego. LCDR John B. Burroughs, USNR, from COMTHREE

to FLETRACEN, San Diego and ADDU COM

TRAPAC. CAPT Geoffrey E. Carlisle, USN, from COMNAV

FORJAP to OJAG. CAPT Enser W. Cole, Jr., USN, from COMCRUDES

LANT to Joint Staff, JCS, Wash., D.C. LCDR William T. Driscoll, USN, from COMSERV

LANT to AFSC, Norfolk. LCDR John P. Dunbar, USN, from CINCLANTFLT to

NAVSUPPFOR ANTARTICA, Wash., D.C. vice OJAG.

[graphic]

(Continued on page 316) THE DOCTRINE OF “RETREAT TO THE WALL"

RECENT DEVELOPMENTS IN THE LAW

OF “SELF-DEFENSE"

LT KENNETH L. ABERNATHY, USN*

B

EING WITHOUT FAULT of his own, and it being

reasonably apparent that he is in imminent danger of suffering either death or serious bodily harm at the hands of another, one may intentionally kill his assailant. It has been said that this right stems from natural law. In the early common law of England, self-defense was not a legal justification or excuse for killing, but was a ground for pardon. Even so limited to being a matter in extenuation for purposes of executive action, rather than a “defense”, the right was quite restricted. Thus, unless he was in his home, or in the performance of official duty, the common law rule was that before taking the life of another, it was the duty of the person assaulted to retreat to the wall. This strictness reflected an understandable desire on the part of the English judges of that day to hold to a minimum the number of homicides which society would condone. However, the doctrine of retreat eventually, and inevitably, became the subject of criticism on several grounds. In the first place, it arose before the widespread use of firearms, a type of weapon the very nature of which manifestly reduces the number of instances when retreat is a plausible alternative. Secondly, it forces one, himself law-abiding, to

choose a particular alternative, i.e., retreat, when confronted by an assailant apparently bent on inflicting death or grievous bodily harm. Such a rule would seem to presuppose a knowledge of the nuances of the law, plus a period for calm reflection. Both, if indeed either, of these conditions are seldom present under such fastmoving and emotional circumstances.

Thus subject to criticism, the doctrine of retreat has taken various courses in American jurisdictions. The rule in the Federal Courts was enunciated by the Supreme Court in United States v. Brown. There, defense requested an instruction to the effect that, if defendant reasonably feared that he was in danger of losing his life, or of suffering grievous bodily harm, he had no absolute duty to retreat. This instruction was refused, and the judge instead instructed the jury along the following lines:

. it is necessary to remember, in considering the question of self-defense, that the party assaulted is always under the obligation to retreat, so long as retreat is open to him, provided that he can do so without subjecting himself to the danger of death or great bodily harm ... (Unless] retreat would have appeared to a man of reasonable prudence, in the position of the defendant, as involving danger of death or serious bodily harm (the defendant was not entitled to stand his ground].

The issue being thus squarely presented, the court formulated the Federal rule in these terms:

Rationally, the failure to retreat is a circumstance to be considered with all others in order to determine whether the defendant went further than he was justified in doing; not a categorical proof of guilt. The law has grown, and even if historical mistakes have contributed to its growth, it has tended in the direction of rules consistent with human nature. Many respectable writers agree that, if a man reasonably believes that he is in immediate danger of death or grievous bodily harm from his assailant, he may stand his ground, and that, if he kills him, he has not exceeded the bounds of lawful self-defense. That has been the decision of this court. Detached reflection cannot be demanded in the presence of an uplifted

• Lieutenant Kenneth L. Abernathy, USN, is presently assigned to
the Office of the Judge Advocate General, West Coast, as an Ap-
pellate Defense Counsel. He holds the B.A. degree from Wash-
ington and Lee University and the LL.B. degree from Yale Law
School. He is a member of the American Bar Association, American
Judicature Society, and the Judge Advocates Association. Lieu-
tenant Abernathy is admitted to practice before the Courts of the
Commonwealth of Kentucky and the Court of Military Appeals.
1. “It is a right founded upon the law of nature which existed be-

fore the formation of society, and while every individual is pre-
sumed to have surrendered to society the right to punish for
crime and for the infractions of individual rights, the possession
and exercise of the right of self-defense by the individual are
still deemed to be necessary to personal safety and security and
not incompatible with the public good. Society may curtail the
right somewhat and restrain its exercise in many particulars,
but the right itself is brought by the individual with him when
he enters society, and is not derived from it ... The extent of
the right of defense is necessarily undefined by the law of nature.

Its only limit is necessity." 26 Am. Jur. & 126.
2. 18 A.L.R. 1279. Another exception to the “retreat” requirement

is when the assailant is then in the process of committing an

other felony. 3. Am. Jur. Assault and Battery, $ 47.

4. U.S. v. Brown, 256 U.S. 335, (1921). 5. Id. at 342.

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