United States v. Chiles

OPINION OF THE COURT DRIBBEN, Judge: In a trial by a military judge sitting as a general court-martial, appellant was convicted of the robbery of two fellow soldiers, in violation of Article 122, Uniform Code of Military Justice, (UCMJ), 10 U.S.C. § 922. He was sentenced to be discharged from the service with a bad-conduct discharge, to be confined at hard labor for eight months, and to forfeit $100.00 pay per month for eight months. The action of the convening authority approves the punitive discharge and confinement adjudged but is ambiguous as to the forfeitures. We will resolve this ambiguity in our decretal paragraph. The applicable facts are these. On the evening of 15 February 1976 at Fort Lee, Virginia, appellant and the two victims, Privates McGraw and Rettenmaier, after attending a movie together, went to an enlisted men’s club. While outside the club, McGraw and Rettenmaier left the company of Private Chiles since the line into the club was very long. A Private Tillman came out of the club while appellant was waiting in line and told him nothing was happening inside. Appellant then decided to return to his company area with Tillman. During the walk back to the barracks, they overtook Rettenmaier and McGraw. Rettenmaier turned around to see who was walking behind him. He recognized appellant but only knew Tillman as the man Chiles was talking with at the enlisted men’s club. When Rettenmaier turned back around, Tillman grabbed him around the neck. Rettenmaier could see appellant [719] and McGraw standing in front of him during the assault. McGraw told Rettenmaier that Tillman had a gun aimed at his head. Tillman ordered McGraw, Rettenmaier and possibly appellant to put their wallets on the ground.1 After McGraw and Rettenmaier threw their wallets down, they were told to run. Chiles caught up with Rettenmaier and escorted him back to the barracks. Appellant denied taking any part in the robbery. He claimed that, while walking back to the barracks, Private Tillman asked him whether Rettenmaier and McGraw had any cash with them. Appellant said that they did. Tillman then told appellant that he was going to try to get their money. Appellant’s response, in disbelief, was to tell Tillman that he was crazy. Appellant and Tillman then overtook the victims. Appellant accounts for his statement to the contrary to the investigating agent as having been made because he was afraid of that agent’s alleged threat to get him the maximum confinement if he were later found to have participated in the robbery. The Government’s evidence contradicted appellant’s testimony. According to appellant’s statement made to a Criminal Investigation Agent, he and Tillman planned the robbery during which appellant was to appear as a victim. Rettenmaier also testified that appellant admitted as much to him and offered to pay the former if he “dropped the charges.” Private McGraw, however, testified that he had a conversation with Rettenmaier to the effect that the latter had advised appellant that he, Rettenmaier, would drop the charges if Chiles would pay him $50.00. I We note that the staff judge advocate omitted any reference to Private McGraw’s testimony concerning his conversation with Private Rettenmaier regarding the latter’s conversation with appellant about “dropping the charges.” As trial defense counsel states in his rebuttal and comments to the staff judge advocate’s post-trial review:2 “Discussion of this matter is deemed relevant in that his testimony supports the later testimony of Private Chiles regarding Private Rettenmaier’s extortion attempt and casts substantial doubt as to the credibility of Private Rettenmaier’s assertion that Private Chiles extorted him.” Private Rettenmaier’s testimony regarding appellant’s alleged admission of criminality to him and attempt to extort him was extremely damaging to Private Chiles. Certainly, appellant is entitled to a fair summation of that evidence which places Private Rettenmaier’s credibility in question. United States v. Scaife, 23 U.S.C. M.A. 234, 236, 49 C.M.R. 287, 289 (1974); United States v. Samuels, 22 U.S.C.M.A. 238, 239, 46 C.M.R. 238, 239 (1973). The post-trial review is prejudicially deficient in this regard. II The convening authority’s action, in pertinent part reads as follows: “. . . the sentence to a bad conduct discharge, confinement at hard labor for eight (8) months is approved. The forfeitures shall apply to pay and allowances becoming due on and after the date of this action. . . .” The effect of this ambiguity must be resolved in favor of the accused. Therefore the approved sentence extends only to a bad-conduct discharge and confinement at hard labor for eight months with its resulting reduction of appellant to the lowest enlisted grade. The action of the convening authority, dated 16 August 1976, is hereby set aside. The record of trial is returned to The Judge Advocate General for a new review and action by a different staff judge advocate and convening authority. Footnotes [1] The testimony of the various parties differ as to whether Tillman told appellant to drop his wallet. [2] United States v. Goode, 23 U.S.C.M.A. 367, 50 C.M.R. 1, 1 M.J. 3 (1975).