United States v. Bosley

17 C.M.A. 350, 17 USCMA 350, 38 C.M.R. 148, 1968 CMA LEXIS 339, 1968 WL 5353

• Court: United States Court of Military Appeals
• Decided: January 12, 1968
• Docket: No. 20,418
• Status: Published

Opinion

Opinion of the Court

Quinn, Chief Judge:

To discredit certain aspects of the accused’s testimony, in which he denied breaking into the Main Post Exchange at the Marine Corps Air Station, Kaneohe Bay, Hawaii, and stealing a substantial amount of merchandise, the prosecution called as a rebuttal witness a Special Agent of the Federal Bureau of Investigation. He was allowed to testify about a statement made by the accused at the Provost Marshal’s Office during the investigation of the offenses.

Previous to the statement the accused was advised of his right to remain silent and the right to “talk with a lawyer,” but he was not informed he had a right to appointed counsel and to counsel’s presence during the interrogation. While the advice satisfied legal requirements for admissibility at the time the statement was obtained, the omissions were fatal to admission in evidence at the time of trial. United States v Tempia, 16 USCMA 629, 37 CMR 249; United States v Hardy, 17 USCMA 100, 37 CMR 364. It was, therefore, error to admit the Agent’s testimony.

In view of our conclusion as to the Agent’s testimony, we need not consider the other assignments of error which relate to the same offenses. The decision of the board of review as to the findings of guilty of Charges I and II, and their respective specifications, is reversed, and those findings of guilty and the sentence are set aside. The record of trial is returned to the Judge Advocate General of the Navy for resubmission to the board of review. In its discretion, the board of review may reassess the sentence on the basis of the findings of guilty of Charge III, specifications 2 and 3, to which the accused pleaded guilty, or it may order a rehearing of Charges I and II and the sentence.

Judges FERGUSON and Kilday concur.