United States v. Bistram

Opinion of the Court ROBERT E. Quinn, Chief Judge: A general court-martial convened at Misawa Air Base, Japan, convicted the accused of housebreaking (Charge I) and assault with a dangerous weapon (Charge II), and sentenced him to a bad-conduct discharge, total forfeitures, and confinement at hard labor for one year. The conviction was affirmed by the convening authority and a board of review. The case is now before us for consideration of whether the law officer erred to the prejudice of the accused by failing to instruct the court members on the effect of certain testimony by the accused in regard to Charge I. At trial, the prosecution showed, and the accused admitted directly or by necessary implication, that in the early evening of March 17, 1959, he entered a closed warehouse by removing a window. He was found at the door of an inner office by Sergeant Kyzer, who had returned to the wareh&use to do some work. Kyzer knew the accused, but did not immediately recognize him-. When discovered, the accused rushed at Kyzer, and struck him a blow on the head with a metal obj'ect. Although stunned, Kyzer ran after the accused. In the illumination of an overhead light in another part of the warehouse, to which the accused had run, he recognized the accused. Eventually, he trapped the accused in a storage room in the warehouse. Informed that there was “no use in trying to get away,” the accused emerged from his hiding place; he was wearing a car coat and gloves. The accused and Kyzer conversed briefly as follows: “Q. Would you relate the conversation between yourself and the accused in room ‘J’? “A. When he came out around the bin, I asked him what he was doing in the warehouse, and the first thing he said he was sorry. He didn’t know it was me, and I asked him then he said he came there to come around to the point of wanting to type up a Form 75, and I told him that wasn’t an excuse, to come along with me. I was going to go to the Air Police. That was all, and then we left the building and came out door ‘A’.” As they left the warehouse, the accused “took off in a run.” Kyzer called the military police. Later that evening the accused was interrogated by an agent of the Office of Special Investigations. After advice as to his rights under Article 31 of the Uniform Code of Military [347] .Justice, 10 USC § 831, he said that he “wasn’t anywhere near the building.” The accused testified in his own behalf. His testimony is substantially to the following effect. He had been previously assigned to duty with the Air Force Weapons Account, which had ■charge of the warehouse, and, occasionally, in the course of his duties, he worked in the warehouse at night “to ■catch up” on his work. On those occasions he went to building 971 which was located near the warehouse and obtained a key from the Priority Section. A few weeks before the incident, however, he was assigned to the orderly room, where his duties consisted of “picking up paperwork from different places and delivering” it. On the evening in question he wanted to type a Form 75 (Airman’s Proficiency Report). Although there were typewriters in the orderly room they were “fully occupied” ■during the day and “locked at night.” He went to the warehouse to type the form. He knew that a key was available in building 971, where personnel were on duty, but he entered the warehouse by removing the window because he “was just in a hurry to do my typing.” He had proceeded through the warehouse to the door of the inner office when he heard a noise behind him. His testimony continues: “A. Yes, sir. I was standing up at door ‘D’, and I heard this noise behind me. I didn’t know what it was. I turned around and saw this form of a man. I was scared, so I saw this here metal object, nail puller, sitting down alongside right on the box next to me, and I grabbed that and started running toward this figure. I got — I threw it, and just in the general direction to distract his attention, so I could get out of the building. I didn’t want to hurt him or anything. I didn’t know who he was or if he might have been there to harm me, so I just tried to distract his attention, so I could get out of the building. “Q. Now, Airman Bistram, why did run towards this room here? What was your purpose in mind ? “A. To get out, sir.” The accused admitted he talked to Sergeant Kyzer after he was cornered in the storage room, and that the conversation was as related by the sergeant in his testimony. He did not deny he ran away as soon as he got outside the warehouse. The prosecution established that the accused was not authorized to be in the warehouse. However, the accused maintained he “thought . . . [he] had permission to be in” the warehouse, and he felt it was “all right” to enter in order to type his form. No Form 75’s were kept in the office before which the accused was observed, and Sergeant Kyzer had “no recollection of anyone seeing or finding” any such form in the warehouse. No instructions were given on the effect of the accused’s testimony that he believed he had authority to enter the warehouse, and none were requested. However, on appeal before the board of review, the accused contended the omission of an instruction on mistake of fact in regard to the right to enter was prejudicial error. The board of review held that the accused’s testimony was “inherently improbable,” and, accordingly, raised no issue of honest mistake requiring an instruction by the law officer. Aside from whether a belief in the possession of authority to enter the premises of another must be honest and reasonable (Cf. United States v Holder, 7 USCMA 213, 22 CMR 3; United States v Jones, 7 USCMA 83, 21 CMR 209), it is well-settled that an instruction on a defense theory is required only if “the record of trial contains sufficient credible evidence raising an issue for the court-martial’s consideration.” United States v Farris, 9 USCMA 499, 26 CMR 279. The accused’s contention that he believed he had authority to enter the warehouse is so inconsistent with his actions as to stamp the claim as inherently unbelievable. Without restating all the evidence, suffice it to say it is wholly incredible that one who believes he has authority to be where he is would, in order to get away from the place, strike another over the head with 'an iron bar without explanation or warn [348] ing; that he would, when his egress is blocked, conceal himself in a storage room and emerge from concealment only when informed that he is known; that he would then engage in a conversation with a person known to him as one in authority in the premises, but when asked to accompany that person, flee from the scene and later deny he was present thereat. Under this record, the law officer was not required to give a separate instruction on the effect of an alleged belief that the accused possessed authority to enter the warehouse. See United States v St. Pierre, 3 USCMA 33, 11 CMR 33. The decision of the board of review is affirmed. Judge Latimek concurs.