9 M.J. 517

UNITED STATES v. Airman First Class Edwardo VASQUEZ, FR [ XXX-XX-XXXX ], United States Air Force.

ACM S24768.

U. S. Air Force Court of Military Review.

Sentence Adjudged 4 May 1979.

Decided 18 March 1980.

*518Appellate Counsel for the Accused: Colonel Larry G. Stephens, Colonel George R. Stevens and Captain Robert P. Hailey.

Appellate Counsel for the United States: Colonel James P. Porter, Lieutenant Colonel Merton P. Filkins and Captain James R. Van Orsdol.

Before HERMAN, ARROWOOD and MILES, Appellate Military Judges.

DECISION

MILES, Judge:

Consistent with his pleas, accused was convicted by special court-martial of an absence without leave and larceny in violation of Articles 86 and 121, Uniform Code of Military Justice, 10 U.S.C. §§ 886 and 921. Notwithstanding his plea, he was convicted of another separate larceny. He was sentenced to a bad conduct discharge, confinement at hard labor for three months, and reduction to airman basic.

We set aside the additional finding of guilty and reassess the sentence because of improper argument by trial counsel. Despite defense objection, the military judge permitted the trial counsel to argue that accused’s guilty plea and conviction of larceny of two color television sets on 8 April 1979, raised an inference of his guilt of a larceny of three other television sets on 11 April, both larcenies having occurred from common areas of dormitories.

It is a long standing rule of military jurisprudence that admissions implicit in a plea of guilty of an offense can not be used as evidence to establish guilt of an essential element of a separate and different offense. United States v. Wahnon, 1 M.J. 144 (C.M.A.1975); United States v. Caszatt, 11 U.S.C.M.A. 705, 29 C.M.R. 521 (1960); United States v. Oyler, 1 M.J. 796 (A.F.C.M.R. 1976).*

In the case at bar, trial counsel’s argument was therefore clearly improper. The military judge gave no effective instructions to eliminate the prejudice flowing from such argument. This finding of guilty of larceny on 11 April is set aside since there was no compelling evidence of accused’s guilt. United States v. Zone, 7 M.J. 21 (C.M.A.1979); United States v. Bryant, 3 M.J. 9 (C.M.A.1977); United States v. Hardy, 3 M.J. 713 (A.F.C.M.R.1977). While a rehearing could be ordered, we elect to dismiss that specification in the interests of justice. United States v. Oyler, supra. Our disposition renders it unnecessary to decide counsel’s assertion of prosecutorial misconduct since, in our view, that error, if any, relates solely to the findings on the contested specification.

We have considered the remaining assignments of error and, with one exception, have resolved them adversely to the accused. We do note that the military judge *519erred in failing to specifically mention accused’s pre-trial confinement in the instructions on sentencing. United States v. Wheeler, 17 U.S.C.M.A. 274, 38 C.M.R. 72 (1967). In light of the discussed errors, we have reassessed the sentence on the basis of the remaining findings of guilty, a 48 day absence without leave and a larceny of two television sets from barracks, and the entire record. We find appropriate only so much of the sentence as provides for a bad conduct discharge and confinement at hard labor for three months. As modified, the findings of guilty and the sentence are

AFFIRMED.

HERMAN, Senior Judge and ARROWOOD, Judge, concur.

United States v. Vasquez
9 M.J. 517

Case Details

Name
United States v. Vasquez
Decision Date
Mar 18, 1980
Citations

9 M.J. 517

Jurisdiction
United States

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