United States v. Leggio

Opinion of the Court Homer Ferguson, Judge: This case is before us for the second time. Originally, we reversed the decision of the board of review and ordered a rehearing on the sentence because of the trial counsel’s interjection into the post-findings proceedings of a policy message regarding the removal of certain classes of individuals from the service. United States v Leggio, 12 USCMA 8, 30 CMR 8. The rehearing on sentence was held in accordance with our mandate. Trial counsel made an argument urging the imposition of a punitive discharge and referring to many factors which he thought the members of the court should consider in determining an appropriate penalty. Thereafter, the accused was sentenced to bad-conduct discharge, confinement at hard labor for three months, and' forfeiture of $50.00 per month for three months. The convening authority and the supervisory authority approved the sentence. The board of review, however, eliminated the bad-conduct discharge and affirmed only so much of the punishment as provided for confinement at hard labor and forfeitures. The Acting The Judge Advocate General of the Navy has certified the following question with respect to that affirmance: “Was the Board of Review correct in holding the argument of trial counsel was prejudicial to the accused?” The board of review opinion quoted extensively from the trial counsel’s argument and then made the following comment: “Paragraph 75, pages 120, 121, Manual for Courts-Martial, 1951, [320] provides that an accused may either make an unsworn statement in mitigation or have his counsel make such statement for him; that such un-sworn statement is not evidence and the accused cannot be cross-examined thereon but the prosecution may rebut statements of fact therein by evidence. It is apparent that trial counsel, who no doubt was over-zealous beyond the call of duty, went beyond the point of propriety in his rebuttal. Matter in mitigation has for its purpose the lessening of punishment to be assigned by the court or the furnishing of grounds for a recommendation for clemency. (Paragraph 75c (4), MCM, 1951.) It has been said: ‘With respect to the trial counsel he is the legal representative of both the accused and the government and it is his duty to treat the accused in a fair and impartial manner in his arguments to the court. However, not every remark in argument by trial counsel is ipso facto improper and prejudicial. Of necessity, each case must rest on its own merits.’ (United States v Weller, 18 CMR 473, and cases cited therein.) It is difficult to hold the above remarks of trial counsel as being fair and impartial. The Board cannot guess as to whether the improper remarks could have reasonably affected the deliberations of the court on the sentence. The court awarded the maximum under the limitations imposed by reason of the previous action of the convening authority. Thus, to say the accused was or was not prejudiced would be mere conjecture upon our pari. “Accordingly, the findings of guilty and only so much of the sentence approved on review below as provides for forfeiture of $50.00 per month for three months and confinement at hard labor for three months are affirmed.” [Emphasis partially supplied.] The opinion was apparently written by Board Member Hamilton. Member Davis dissented on the basis that the trial counsel’s argument was not “ ‘ipso facto improper and prejudicial,’ ” and indicated that he would affirm the entire sentence. Member Tyson, without publishing an opinion, concurred only in the result reached by Member Hamilton. Our reading of Member Hamilton’s opinion convinces us that no decision was ever made by a majority of the board concerning whether prejudice flowed from the trial counsel’s argument. Rather, its author ambiguously concluded that the board “cannot guess” whether the allegedly improper remarks “could have reasonably affected the deliberations of the court on the sentence,” and added “to say the accused was or was not prejudiced would be mere conjecture on our part.” (Emphasis supplied.) More pointedly, Member Tyson concurred only in the reduction of the sentence and did not join in the expression of Member Hamilton’s views concerning the trial counsel’s argument. Hence, these form no part of the board’s conclusion. Thus, it appears that the practical result reached by the board of review was the elimination of the punitive discharge on the basis of appropriateness, the only ground available to it aside from the question of legal error which, as noted above, does not appear to have been resolved finally even by the opinion’s author. We are, therefore, inclined to conclude that the certificate of the Acting The Judge Advocate General does not present a question which we are empowered to review. United States v Bedgood, 12 USCMA 16, 30 CMR 16; United States v Higbie, 12 USCMA 298, 30 CMR 298; United States v Foti, 12 USCMA 303, 30 CMR 303. We pause, however, to suggest that boards of review would materially assist both The Judge Advocates General and this Court in the completion of appellate processes if the basis for the decision which they ultimately reach was clearly indicated, particularly with respect to the sentence. Labels, of course, do not always have controlling significance, but they frequently eliminate differences of opinion and prevent useless appeals by allowing all to note at the outset whether an issue is reviewable. See, for example, United States v Gebhard, 11 USCMA 765, 29 [321] CMR 581, and United States v Moreno, 5 USCMA 500, 18 CMR 124. The certificate of the Acting The Judge Advocate General is dismissed. Chief Judge Quinn concurs.