United States v. Smith

Opinion

Before trial, the accused entered into a pretrial agreement providing for a sentence not to exceed dishonorable discharge and confinement at hard labor for 8 months. The court-martial sentenced him to a bad-conduct discharge, confinement at hard labor for 3 months, and forfeitures. At issue on this appeal is the admissibility of evidence of a previous conviction by a summary court-martial at which the accused was sentenced to confinement at hard labor for 1 month. See United States v Alderman, 22 USCMA 298, 46 CMR 298 (May 26, 1973). That sentence was suspended, and it does-not appear that the suspension was revoked. Government counsel contend that other evidence demonstrates that the accused was “never confined as a result” of this conviction. Apart from the effect of the unserved confinement upon the constitutional validity of the previous conviction, I am satisfied that the conviction did not result in a more severe sentence than the court-martial would have adjudged had evidence thereof not been admitted. The decision of the Court of Military Review is affirmed.

(concurring):

I concur in the result for the reasons set forth in my separate opinion in United States v Alderman, 22 USCMA 298, 46 CMR 298 (May 26, 1973).

(dissenting):

In the case before us, the appellant pleaded guilty to a lengthy absence without leave. Trial counsel offered in evidence a prior conviction by summary court-martial for negligent homicide. See United States v Alderman, 22 USCMA 298, 46 CMR 298 (May 26, 1973). In his unsworn statement in mitigation, Smith disclosed that while in Vietnam he had accidently shot and killed a fellow serviceman for which he was tried by *343the above-mentioned summary court-martial.

In argument on sentence, trial counsel referred to this conviction and an unsatisfactory rating as to conduct and efficiency,1 which the appellant received at the time of a permanent change of station one month following this incident, as revealing “Private Smith as something a good deal less than a war hero.” The military judge instructed the court members that they “may properly consider [as] a matter in aggravation the fact that the accused has a previous conviction.”

As I view the record in this trial, I am unable to state that the sentence might not have been different had the members of the Court known that the prior conviction “had been unconstitutionally obtained.” United States v Tucker, 404 US 442, 448 (1972).