United States v. Cain

5 M.J. 838
CourtU.S. Army Court of Military Review
DecidedAugust 2, 1978
DocketCM 436714
StatusPublished
Cited by10 cases

This text of 5 M.J. 838 (United States v. Cain) is published on Counsel Stack Legal Research, covering U.S. Army Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Cain, 5 M.J. 838 (usarmymilrev 1978).

Opinion

OPINION OF THE COURT

MITCHELL, Judge:

In accordance with his plea, the appellant was convicted by a general court-martial of absence without authority. Contrary to his pleas, he was also convicted of disobeying an order of a superior commissioned officer, robbery, violation of a lawful general regulation and disrespect to a superior commissioned officer. These offenses violate Articles 86, 90, 122, 92 and 89, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 886, 890, 922, 892 and 889.

[840]*840He was sentenced to a bad-conduct discharge, confinement at hard labor for three years and six months, and forfeiture of $374.00 pay per month for three years and six months. The convening authority approved the sentence.

On appeal this case presents the following questions: (a) whether the compulsion of the accused by the military judge to show whether he had a gold tooth violated his Article 31 privilege against self-incrimination; (b) whether the military judge erred to the substantial prejudice of appellant by allowing extensive hearsay testimony to be admitted into evidence; (c) whether the argument of trial counsel on findings was improper and prejudicial to appellant; and (d) whether trial counsel’s sentencing argument was improper and prejudicial to appellant.

INVOLUNTARY SHOWING OF GOLD TOOTH

The robbery victim, Private First Class Ruckman, testified that the robber “had a gold tooth on his right front, about right here-, with a star on it.” Thereupon, the trial counsel asked the military judge to have the accused stand and open his mouth so the jury could see whether or not he had a gold tooth and if so where it was located. The judge directed the accused to do so and the accused complied. The record shows that he did not testify on the merits but it is silent as to whether he smiled, yawned or otherwise afforded the jury the opportunity to observe his gold tooth other than at the judge’s direction.

Appellant now contends that the military judge’s order for him to open his mouth forced him to incriminate himself in violation of his Fifth Amendment rights. He further contends that this activity comes under the ambit of Article 31, UCMJ, which requires that before an individual may be asked to incriminate himself he must first be fully warned. He cites as authority United States v. Penn, 18 U.S.C.M.A. 194, 39 C.M.R. 194 (1969) and United States v. White, 17 U.S.C.M.A. 211, 38 C.M.R. 9 (1967). These cases concern the applicability of Article 31 to the taking of a handwriting exemplar. Appellant also cites United States v. Newborn, 17 U.S.C.M.A. 431, 38 C.M.R. 229 (1968), which deals with forced speech in order to make a voice identification.

Although the United States Supreme Court in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), severely limited the application of the Fifth Amendment privilege against self-incrimination and expressly held it not to be applicable to handwriting exemplars or voice identification, the Court of Military Appeals has held Article 31 to be broader in scope than the Fifth Amendment. United States v. Aron-son, 8 U.S.C.M.A. 525, 25 C.M.R. 29 (1957).

In United States v. Rosato, 3 U.S.C.M.A. 143, 11 C.M.R. 143 (1953), and again in United States v. Eggers, 3 U.S.C.M.A. 191, 11 C.M.R. 191 (1953), the Court laid down standards which recognize that acts requiring only the passive cooperation of the accused can be compelled without violating the privilege against self-incrimination. Thus, it allows the compulsion of such acts as taking fingerprints, placing a foot in a footprint, physical examination of the accused’s body for scars, forcibly shaving a man, or trimming his hair, requiring him to grow a beard, or try on a garment. United States v. Rosato, supra, at 147. Such instances were found not to require active participation and affirmative conduct in the production of incriminating evidence not theretofore in existence.

It would appear then that the forced exposure of a tooth or a prosthetic devise lies somewhere between the taking of a fingerprint and the taking of a voice or handwriting exemplar. The making of a fingerprint requires no effort on the part of the accused. All that is required of him is relaxed submission to the manipulation of his thumb and fingers. Arguably, the self-baring of a tooth requires something more. Of course, the position of the viewed tooth and its proximity to the front of the mouth dictate the degree. Our sister tribunal, the [841]*841Air Force Court of Military Review, found that it was permissible to compel an accused to submit to a dental examination for comparison of a tooth fragment found at the crime scene. It found that the warning requirement did not apply because the passive submission of the accused’s body to a physical examination simply does not constitute a “statement” within the meaning of Article 31. United States v. Culver, 44 C.M.R. 564 (A.F.C.M.R.1971). However, the compulsory obtaining of evidence from an accused’s body may be impermissible if obtained in a manner which “shocks the conscience.”1 Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952).

A defendant, in a criminal case, even though he has not become a witness in his own behalf, has no maintainable privilege against being required, as in the case before us, to stand2 or to remove his toupee3 for identification purposes. To us, there appears to be nothing that “shocks the conscience” in requiring the showing of one’s teeth to the jury. Further, the active participation required of one in opening his mouth is much less than in standing so the jury can observe the full length of his body or in removing his toupee to expose a bald head. We, therefore, hold that the act of showing a tooth to the court is not an incriminating communication within the meaning of Article 31, UCMJ.

ADMISSION OF HEARSAY EVIDENCE ISSUE

Appellant alleges that the military judge allowed the prosecutor to elicit from three defense witnesses a reiteration of what Private First Class Ruckman had told each of them concerning the alleged robbery and erred by failing to give an instruction limiting the use of the testimonial evidence.

The defense concedes that each of these witnesses was called in an attempt to point out inconsistencies in the testimony of the victim, Private First Class Ruckman. The Government goes even further to argue that the defense pointed out the inconsistencies to imply that Ruckman fabricated the robbery story in an attempt to get his money back.

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Bluebook (online)
5 M.J. 838, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-cain-usarmymilrev-1978.