United States v. Turner , 42 M.J. 689 ( 1995 )

OPINION OF THE COURT

RUSSELL, Judge:

A military judge sitting as a general court-martial convicted the appellant, pursuant to his pleas, of transporting a loaded firearm and aggravated assault (two specifications) in violation of Articles 92 and 128, Uniform Code of Military Justice, 10 U.S.C. §§ 892 and 928 (1988) [hereinafter UCMJ]. The convening authority approved the adjudged sentence of a bad-conduct discharge, confinement for one year, forfeiture of all pay and allowances, and reduction to Private El.

This case is before the court for automatic review pursuant to Article 66, UCMJ. We have reviewed the record of trial, the errors assigned by the appellant, the government’s reply thereto, and the oral arguments and briefs of the parties submitted in response to the two issues specified by this court:

I. WHETHER AS A MATTER OF LAW, AN UNLOADED PISTOL BRANDISHED AS A FIREARM AND NOT AS A BLUDGEON, IS A “DANGEROUS WEAPON OR OTHER MEANS OR FORCE LIKELY TO PRODUCE DEATH OR GRIEVOUS BODILY HARM” WITHIN THE MEANING OF ARTICLE 128, UCMJ.

II. IF THE ANSWER TO SPECIFIED ISSUE I IS NO, MAY THE COURT NEVERTHELESS AFFIRM THE FINDINGS OF GUILTY TO AGGRAVATED ASSAULT BY APPLYING UNITED STATES V. SULLIVAN, 36 M.J. 574 (A.C.M.R.1992) AS THE CONTROLLING LAW WHEN THE PLEA WAS ENTERED.

This court, on its own motion, decided to consider the case en banc in order to resolve two conflicting panel decisions from this court.¹ Both the government and the appellant, by brief and in oral argument, have urged that the answer to both specified issues is “no.” Both the government and the appellant urge us to affirm the findings of guilty to simple assault. We agree and hold that the accused’s plea to aggravated assault was improvident.

I. Facts

Following a traffic altercation with two women in another car, the appellant exited his vehicle and pointed an unloaded pistol at them at close range. Ammunition for the pistol was in the appellant’s car. The two women became very fearful because they believed that the pistol was loaded and that death or grievous bodily harm was imminent.

Prior to trial, the appellant stipulated as fact that the weapon was unloaded at the time of the assault and agreed to plead guilty to two specifications of assault with a dangerous weapon in violation of Article 128(b)(1), UCMJ. At trial, the military judge followed Sullivan and advised the appellant that a pistol used as a firearm was a dangerous weapon as a matter of law, whether or not it was loaded. In reliance on this advice, the appellant agreed that an unloaded pistol used as a firearm was a “dangerous weapon” in fact. The military judge then accepted his guilty plea and punished him within the maximum sentence authorized under Article 128(b)(1), UCMJ, assault with a dangerous weapon.

II. Law

A “dangerous weapon” for purposes of Article 128(b)(1), UCMJ, is a weapon that has the inherent present capability of inflicting death or grievous bodily harm. An unloaded pistol, when presented as a firearm, is not a “dangerous weapon” for purposes of Article 128(b)(1), UCMJ. United States v. Smith, 4 U.S.C.M.A. 41, 15 C.M.R. 41 (1954) (citing Price v. United States, 156 F. 950 (9th Cir.1907);² Manual for Courts-Martial, United States, 1984, Part IV, para. 54c(4)(a)(ii) [hereinafter MCM, 1984], This is so because under no conceivable circumstances is an unloaded pistol capable of inflicting any bodily harm, unless it is used as a missile or a bludgeon. Smith, 15 C.M.R. at 47. Thus, as a matter of law and in accordance with legal precedent, an unloaded pistol presented as a firearm is not a dangerous weapon and is not being used in a manner “likely” to produce death or grievous bodily harm as contemplated by Article 128(b)(1). United States v. Rivera, 40 M.J. 544 (A.C.M.R.1994), pet. denied, 42 M.J. 12 (1994).

III. Decision

We now hold that it was error as a matter of law to have informed the appellant during the providence inquiry that an unloaded pistol, used only as a firearm, was a dangerous weapon likely to produce death or grievous bodily harm within the meaning of Article 128(b)(1), UCMJ.³ Moreover, in light of the law applicable to guilty pleas, that portion of the appellant’s plea in which he admits to two assaults with a “dangerous weapon” is not provident because it is unsupported by any evidence that the unloaded pistol was used in a manner likely to produce death or grievous bodily harm.⁴ United States v. Care, 18 U.S.C.M.A. 585, 40 C.M.R. 247 (1969).

IV. Sullivan Revisited

We are satisfied that this court should not follow Sullivan because it holds that an unloaded pistol used as a firearm is a dangerous weapon under Article 128(b)(1), UCMJ. However, we are equally convinced that the policy concerns voiced in Sullivan are, indeed, meritorious.

The President has set the maximum punishment for what the law recognizes as a simple assault in violation of Article 128(a).⁵ Since then, the prevalence of gratuitous violence with firearms has greatly increased. However, the President has not provided for an enhanced punishment for simple assaults committed when an apparently dangerous weapon, such as an unloaded pistol, is used. The President may do so by incorporating the broad view expressed in Sullivan into the framework of maximum punishments for simple assaults.⁶ See McLaughlin v. United States, 476 U.S. 16, 106 S.Ct. 1677, 90 L.Ed.2d 15 (1986).

Accordingly, we strongly urge The Judge Advocate General of the Army to join his counterparts from the other uniformed services in recommending that the President make such a change. Thus, sentencing authorities could fashion an appropriate punishment when an unloaded pistol or other apparently dangerous weapon is used to produce either fear of grievous bodily harm or a truly dangerous response that is likely to produce actual death or serious harm to innocent bystanders.⁷

The appellant’s remaining assertions of error are without merit.

The court affirms only so much of the findings of guilty of Specifications 1 and 2, respectively, of Charge II as find that the appellant did, at or near Fort Wainwright, Alaska, on or about 31 July 1993, commit assaults on [the two victims named in those specifications], by pointing an unloaded pistol at each of them in a threatening manner. The remaining findings of guilty are affirmed. Reassessing the sentence on the basis of the error noted and the entire record, the court affirms only so much of the sentence as provides for a bad-conduct discharge, confinement for nine months, forfeiture of all pay and allowances, and reduction to Private El.

Acting Chief Judge EDWARDS, Senior Judge GRAVELLE, Senior Judge CAIRNS, and Judge GONZALES concur.

1 . In United States v. Sullivan, 36 M.J. 574 (A.C.M.R.1992), a panel of this court held that an unloaded pistol is a dangerous weapon as a matter of law. And, most recently, in United States v. Rivera, 40 M.J. 544 (A.C.M.R.1994), pet. denied, 42 M.J. 12 (1994), a panel of this court held that an unloaded pistol, not used as a bludgeon or missile, is not a dangerous weapon as a matter of law.

2 . The January 1995 issue of The Army Lawyer contains a well-researched casenote on this issue. See Criminal Law Notes, Dangerous Weapons, Unloaded Firearms, and the Law of Aggravated. Assault: The ACMR Hangfires in Two Conflicting Opinions, ARMY LAW., Jan. 1995, at 56.

3 . The military judge was relying on the law as it apparently existed in Sullivan. This court's opinion in Sullivan, to the extent that it is inconsistent with Smith and this opinion, is overruled.

4 . We are satisfied that the appellant’s pleas to aggravated assault are unsupported because the relevant facts establish there was no round in the chamber of the pistol, the loaded magazine had been removed from the pistol, and ammunition for the pistol was not immediately at hand. See United States v. Cato, 17 M.J. 1108 (A.C.M.R.1984) (cartridge jammed backwards in the breach is a loaded weapon); United States v. Lamp, 44 C.M.R. 504 (A.C.M.R.1971) (functional carbine with live ammunition in magazine, but no round chambered, is a loaded weapon). Accordingly, the pistol was never actually capable of inflicting death or grievous harm in the manner of its design at the moment the simple assaults were consummated. See United States v. Smith, 4 U.S.C.M.A. 41, 15 C.M.R. 41 (1954).

5 . Confinement for three months and forfeiture of two-thirds pay per month for three months. MCM, 1984, para. 54e(l).

6 . The likelihood that serious bodily injury will be produced by a response to the pointing of an unloaded pistol is arguably a more attenuated and qualitatively different danger than the likelihood of serious injury being inflicted by pointing a loaded pistol. However, both dangers are proximate and real, and both warrant special punishment consideration.

7 . During oral argument, government counsel informed the court that representatives of the uniformed services are currently considering a proposal that the President increase the maximum punishment for simple assaults with an unloaded pistol or other apparently deadly weapons.