Opinion of the Court
Robert E. Quinn, Chief Judge:
A general court-martial in Germany eonvicted the accused of assault with intent to commit rape, in violation of Article 134, Uniform Code of Military Justice, 10 USC § 934, and sentenced him to dishonorable discharge, total forfeitures, and confinement at hard labor for two years. Intermediate appellate authorities affirmed. We granted review on an issue pertaining to defense counsel's right to see the pretrial advice and the post-trial review of the staff judge advocate. While the case was pending, civilian counsel moved to file an affidavit from the accused; we granted the motion as an application for a petition for new trial. Later, as a result of certain developments on the oral argument, we directed the procurement of additional information pertaining to the conduct of trial counsel at the trial.
In regard to the right of trial defense counsel to see the pretrial advice and the post-trial review, the board of review noted there was "an unfortunate lack of respect and confidence" between the appointed defense counsel and the staff judge advocate. But it determined that the situation did not deprive the accused in this case of any substantial right. We agree with the board of review's conclusion.
As to the pretrial advice, appellate defense counsel contends that had trial defense counsel been per-mitted to see it, he might have "supplement [ed]" the staff judge advocate's "presentation with mitigating facts" and thereby have influenced the convening authority's choice of court-martial, i.e., general, special, or summary. The suggested course of action is indeed open to defense counsel. But the opportunity exists independent of the right to see the pretrial advice. The record also shows the accused was represented by specially requested defense counsel at the Article 32 investigation and that sworn statements by all prospective witnesses were available for his examination. No motion for a continuance for further preparation was made at the trial, and it is not contended that trial defense counsel were, in fact, unprepared to try the case. Clearly, therefore, there is no merit in this aspect of the accused's contention of error.
Defense counsel requested permission to see the post-trial review about two months after the case had been acted upon by the convening authority and forwarded to the office of The Judge Advocate General for review by a board of review. Assuming that trial defense counsel's authority to represent the accused had not yet ended, the review was part of the record before the board of review available to appellate defense counsel. Appellate defense counsel was responsible for representing the accused before the board of review. Article 70(c), Uniform Code of Military Justice, 10 USC § 870. Since the post-trial review was readily available for his inspection, we are unable to see how the staff judge advocate's refusal to allow trial defense counsel the right to examine a retained copy of the review deprived the accused of the effective assistance of counsel or of any other substantial right.
Turning to the matter on which we requested additional information, it ap pears that both trial and defense counsel knew the complainant had had extramarital relations. Defense counsel believed these were limited to the victim's intended husband, but the witness had told the trial counsel of three separate incidents with different men. Neither counsel, however, inquired into the matter at trial. Defense counsel did not do so because, he says, he was afraid if he raised the matter, the victim's fiance would be called as witness and corroborate her testimony regarding the injuries she suffered in the assault by the accused. However, defense counsel cross-examined the victim, without objection by trial counsel, about visits to various taverns. Also, without objection by trial counsel, he adduced testimony by other witnesses to the effect that the places visited by the victim were frequented by known prostitutes.
In his final argument, trial counsel in part said:
" . . She lived in a small cow town where refugees are looked down upon and she thought Americans were nice because no GI prior to the accused had mistreated her.' Is she to be condemned for liking Americans? For liking American music and liking to dance? There has been no one to testify that they ever knew of her having had sexual relations with anyone. As far as we know she is a virgin and that is more than can be said for many girls her age."
The prosecuting attorney represents the people. He can and should proceed against an offender with vigor and strength, but it is "as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one." Berger v United States, 295 US 78, 55 S Ct 629, 79 L ed 1314; United States v Valencia, 1 USCMA 415, 4 CMR 7.
Here, trial counsel exceeded the bounds of fair comment on the evidence and deliberately conveyed to the court-martial the false idea that the witness was a virgin. He knew the witness had had sexual relations with three young men. Nevertheless, he represented to the court that he could have objected to the defense evidence concerning her attendance at places frequented by soldiers but he refrained from doing so because he wanted to "see just how far the defense would go in an attempt to smear this victim and how little she could be damaged by their efforts." He went on to say that if the testimony adduced by the defense had been excluded on the Government's objection, it might have left the court with "the impression that she was well known for her illicit sexual affairs, whereas in reality she is only a country girl who was unfortunate enough to be a war refugee." A good trial counsel, he maintained, could perhaps have "protected the main prosecution witness by bringing in a witness to testify as to her good character for every witness who made insinuations reflecting on her character." Thus, he feigned inexpertness to emphasize the inference of virtue on the part of the complainant.
However, a determination that the Government's attorney acted improperly is not the whole of the matter. We must also con-sider whether his action presented a fair risk of influencing the court-martial to the prejudice of the accused. It is well settled that misconduct by a prosecuting attorney in his final argument does not justify reversal of an otherwise valid conviction if the evidence of guilt is clear and compelling. United States v Antonelli Fireworks Co., 155 F 2d 631 (CA 2d Cir) (1946), cert den, 329 US 742, 67 S Ct 49, 91 L ed 640. The testimony of the complaining witness in this case is straightforward and un-rebutted in every important particular. To a substantial extent she was corroborated by Sergeant W. G. Kingsbor-ough. He saw her "running or walking" on the road near the scene of the assault. She was "bawling or crying" and "upset." When Kingsborough stopped his car she collapsed as she attempted to get in. She gave him the "general idea" of what had happened and "wanted . . . [him] to do something about that man." The sergeant informed her it was "not for . . , [him] because that's the MP's job." But he backed up to the lane in which the accused had parked his car. He was in time to note the license number of the car as the accused drove out of the lane. A report of the incident was made to the military police. In the meantime the accused returned to his barracks. He had the charge of quarters falsify the pass sign-out list by removing his name and substituting another. See United States v Hurt, 9 USCMA 735, 773, 27 CMR 3. In the light of this evidence, the question of the victim's chastity fades into insignificance, especially when we bear in mind the charge is assault with intent to commit rape, not consummated rape, so that evidence of the victim's sexual relations with other men is admissible only by way of a conviction or on cross-examination and is relevant only for the purpose of impeachment. See Manual for Courts-Martial, supra, paragraph 153b; United States v Moore, 5 USCMA 687, 18 CMR 311.
Since the evidence of guilt is clear and convincing, in our opinion, trial counsel's improper argument did not prejudice the accused as to the findings of guilty. It is also apparent that the false imputation of chastity did not influence the court-martial as to the sentence. The maximum permissible sentence extended to confinement at hard labor for twenty years. However, the court adjudged a sentence which included confinement at hard labor for two years. See United States v Nicholson, 8 USCMA 499, 25 CMR 3.
We have examined the other allegations of error. We find nothing which justifies reversal of the findings of guilty or the sentence. We therefore affirm the decision of the board of review.
As for the petition for new trial, it alleges the accused told his defense counsel that when he was first apprehended he was interrogated by an officer who demanded a confession from him; that officer allegedly acted as the law officer. Defense counsel denies he received such information from the accused; the law officer denies he participated in any such incident or that he was anywhere near the area at the time; and the two Criminal Investigations Division agents who conducted the investigation deny the incident occurred or that they know the law officer. We, therefore, deny the petition.
See Manual for Courts-Martial, United States, 1951, paragraph 44h, page 65.
Article 38, Uniform Code of Military Justice, 10 USC § 838, provides in part that defense counsel may forward "a brief of such matters as he feels should be considered in behalf of the accused on review." See also Manual for Courts-Martial, United States, 1951, paragraph 48/. Since the convening authority's action is one of the matters considered on review, it would appear to be important that defense counsel be accorded an opportunity to examine the post-trial review. United States v Grice, 8 USCMA 166, 23 CMR 390; United States v Collins, 10 USCMA 154, 27 CMR 228; United States v Callahan, 10 USCMA 156, 27 CMR 230.