United States v. Stargell

Opinion of the Court

GIERKE, Judge:

A special court-martial composed of officer and enlisted members convicted appellant, pursuant to his pleas, of wrongfully possessing and using marijuana, in violation of Article 112a, Uniform Code of Military Justice, 10 USC § 912a. The adjudged and approved sentence provides for a bad-conduct discharge, confinement for 30 days, and reduction to pay grade E-3. The Court of Criminal Appeals affirmed the findings and sentence in an unpublished opinion.

This Court granted review of the following issues:

I

WHETHER THE MILITARY JUDGE COMMITTED PLAIN ERROR IN FAILING TO CORRECT TRIAL COUNSEL’S MISSTATEMENT TO THE COURT MEMBERS THAT APPELLANT WOULD BE HONORABLY RETIRED UNLESS THEY ADJUDGED A BAD-CONDUCT DISCHARGE.

II

WHETHER THE MILITARY JUDGE ERRED IN OVERRULING APPELLANT’S OBJECTION TO TRIAL COUNSEL’S ARGUMENT THAT APPELLANT WOULD RECEIVE AN HONORABLE RETIREMENT UNLESS APPELLANT RECEIVED A PUNITIVE DISCHARGE.

We resolve both issues against appellant.

Both granted issues relate to allegations of improper sentencing argument by assistant trial counsel. At the time of trial, appellant had 19% years of military service. In his sentencing argument, assistant trial counsel argued that appellant “will get an honorable retirement unless you give him a BCD.” The defense did not object to this argument.

During the defense sentencing argument, assistant defense counsel asserted that appellant was not “coasting to retirement” and there has “never been any coasting.” In rebuttal argument, assistant trial counsel asserted, “To buy the defense argument means that you will have to determine that 18, 19 years of service, after that many years of service, if you do something wrong, it doesn’t matter, you will be allowed to coast to an honorable retirement.” At this point, defense counsel objected for the first time, on the ground that “[t]he punishment before the members is a bad-conduct discharge. There are other administrative possibilities.”

Before overruling defense counsel’s objection, the military judge instructed the members, “[Yjou’re advised that the decision that you have to make is not a vote to retain or separate the member but whether or not to give the accused a punitive discharge as a form of punishment.” Appellant did not object to this instruction or request additional instructions.

Appellant asserts that the Government should not have been allowed to argue that appellant would receive honorable retirement unless he was sentenced to a bad-conduct discharge, because such evidence is “so collateral as to be confusing and, thus, inadmissible.” United States v. Henderson, 29 MJ 221, 222 (CMA 1989). Appellant also asserts that it was plain error for the military judge not to instruct the members that they should not speculate about whether appellant would be allowed to retire and the impact of a punitive discharge on the possibility of his retirement. Finally, appellant asserts that the military judge’s curative instruction was inadequate.

The Government argues that trial counsel’s argument was proper, but if the argument strayed into questionable areas, it was because appellant first raised the issue of retirement in his unsworn statement. Further, the Government argues that the military judge’s curative instruction cleared up any possible confusion caused by trial counsel’s argument.

We need not address the question whether appellant invited an error by raising the retirement issue in his unsworn statement or whether the defense affirmatively waived any objection by not only raising the retirement issue in the unsworn statement, but also responding in argument to trial counsel’s allegedly improper argument. We do not reach these issues of invited error and waiver, because we hold that there was no error.

When, as in this case, an accused is “knocking at retirement’s door,” the impact of a punitive discharge on retirement benefits is not irrelevant or collateral. United States v. Becker, 46 MJ 141, 144 (1997). In argument, a trial counsel “may strike hard blows, [but] he is not at liberty to strike foul ones.” Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). Counsel may refer to evidence of record and “such fair inferences as may be drawn therefrom.” United States v. White, 36 MJ 306, 308 (CMA 1993), quoting United States v. Nelson, 1 MJ 235, 239-40 (CMA 1975), citing United States v. Johnson, 12 USCMA 602, 31 CMR 188 (1962). Counsel also may ask the members to draw on ordinary human experience and matters of common knowledge in the military community. United States v. Meeks, 41 MJ 150, 158 (CMA 1994); United States v. Kropf, 39 MJ 107, 108 (CMA 1994). Common knowledge includes knowledge about routine personnel actions. See United States v. Long, 17 USCMA 323, 327, 38 CMR 121, 125 (1967) (“trial counsel’s description of the accused as a draftee” subject to reassignment after training permissible because it was obvious to court members based on the accused’s service number and duty assignment).

We would expect that members of a court-martial who are selected in accordance with Article 25(d)(2), UCMJ, 10 USC § 825(d)(2), as “best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament,” would know, as a matter of common knowledge in the military community, that a military member is eligible to retire after 20 years and that retirement usually is under honorable conditions. We hold that the likelihood of appellant being allowed to retire honorably if not sentenced to a punitive discharge was a fair inference from the evidence in this ease. Appellant had 19$ years of service at the time of trial. He would have been entitled to special consideration if administrative discharge proceedings had been initiated after his court-martial. See 10 USC § 1176(a) (“regular enlisted member who is selected to be involuntarily separated,” but who is within 2 years of eligibility for retirement, may not be involuntarily separated unless “sooner retired or discharged under any other provision of law”); para. 1.21.3, Air Force Instruction 36-3208 (14 October 1994) (Secretary of Air Force approval required to “discharge an airman under other than honorable conditions” for conduct considered by court-martial if no punitive discharge adjudged); Poole v. Rourke, 779 F.Supp. 1546, 1564 (E.D.Cal. 1991) (Air Force not justified in discharging staff sergeant with 17 years of service without considering probation or rehabilitation).

We hold further that the military judge’s limiting instruction properly focused the argument and precluded any speculation about the characterization of appellant’s service if he were permitted to retire. If further clarification was desired by appellant, it was incumbent upon him to request it. See RCM 1005(f), Manual for Courts-Martial, United States (1995 ed.) (“Failure to object ... to omission of an instruction ... constitutes waiver ... in the absence of plain error.”). There was no plain error here.

The decision of the United States Air Force Court of Criminal Appeals is affirmed.

Chief Judge COX and Judge CRAWFORD concur.