United States v. Chandler

17 M.J. 678, 1983 CMR LEXIS 715
CourtU.S. Army Court of Military Review
DecidedNovember 30, 1983
DocketCM 442902
StatusPublished
Cited by3 cases

This text of 17 M.J. 678 (United States v. Chandler) 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. Chandler, 17 M.J. 678, 1983 CMR LEXIS 715 (usarmymilrev 1983).

Opinions

OPINION OF THE COURT

BADAMI, Judge:

Contrary to his pleas, appellant was convicted of nine specifications of communicating indecent language to a female, and two specifications of communicating insulting language to a female, in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934 (1976) [hereinafter UCMJ]. He was sentenced to a bad-conduct discharge, confinement at hard labor for 15 months, forfeiture of all pay and allowances, and reduction to Private E-l. The convening authority approved the sentence.

At issue in this case is whether the Fifth Amendment of the United States Constitution or Article 31, UCMJ, 10 U.S.C. § 831, preclude compelling a suspect to utter words in an extra-judicial demonstration for purposes of identification and if the procedures used in this case were unnecessarily suggestive. We hold they do not and affirm.

During most of 1981, a series of obscene telephone calls were received during normal duty hours by seven women working at Fort Gordon, Georgia. A wiretap was installed at a phone extension where several obscene calls had been received. On 25 November 1981, a female employee received an obscene call on the phone extension and activated the wiretap mechanism. The call [680]*680was traced to the Nine Hole Golf Course building, which is located on post. Investigator Birdsong of the military police was notified. He went to the golf course building and found appellant to be the sole occupant of the building. The phone in the building was verified as the phone that had been traced. Subsequently, appellant was apprehended.

In the investigation that followed, a tape recording was prepared in order to determine if any of the victims could identify the voice of the caller. Five men, all from the South (because appellant is from the South), between the ages of twenty-two to thirty participated in the voice “lineup.” Appellant was compelled to participate. The participants were the appellant, military police investigators and other soldiers who happened to be at the MP station when the tape was made. No attempt was made to select men with voices similar in tonal quality to appellant’s. Each voice was recorded speaking three designated sentences.

Each of the seven women listened to the tape recordings. Of these, four positively identified appellant’s voice as the voice of the offensive telephone caller. One victim had difficulty in distinguishing between two of the voices, but on the second playing of the tape, selected appellant’s voice as that of the caller. Two of the women who listened to the recording were unable to identify any voice as that of the caller.

At trial, the defense moved to suppress the compelled submission of appellant’s voice sample as a violation of Article 31(b), UCMJ, and the Fifth Amendment of the United States Constitution. The defense also sought to suppress any identification of the voice recording on the basis that it was unfair and biased in that an unnecessarily suggestive procedure was used in obtaining the tape recordings. The military judge denied both motions. Appellant now raises both rulings as assignments of error.

Historically, the Court of Military Appeals has held that Article 31, UCMJ, prohibits compelling an accused to produce evidence such as a voice exemplar. United States v. Greer, 3 U.S.C.M.A. 576, 13 C.M.R. 132 (1953). In these early years, Article 31, UCMJ, was viewed as securing the same rights secured to those in the civilian community, “No more and no less.” United States v. Eggers, 3 U.S.C.M.A. 191, 11 C.M.R. 191, 195 (1953). Analysis centered on the level of cooperation required of an accused. Passive cooperation (fingerprints for instance) was viewed as acceptable. However, affirmative conduct in the production of evidence which required the exercise of mental and physical faculties by the accused was viewed as a violation of the right to remain silent. In view of more recent developments in federal case law, this analysis is an anachronism.

Most courts today, including the United States Supreme Court, have held that words or conduct which lack testimonial characteristics are not protected by the privilege against self-incrimination. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) (no error to compel accused in a lineup to utter words spoken by robber); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) (handwriting exemplar, like the voice or body itself is a identifying physical characteristic not protected by privilege against self-incrimination); United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973) (no error to compel voice exemplar for purposes of identification). At this juncture, the Court of Military Appeals set its own course and continued to equate voice and handwriting exemplars with a “statement” for purposes of Article 31. This was based on the premise that “Article 31 is wider in scope than the Fifth Amendment.” United States v. White, 17 U.S.C.M.A. 211, 38 C.M.R. 9, 14 (1967).

The Court of Military Appeals reexamined the purpose of Article 31 and its legislative history in United States v. Armstrong, 9 M.J. 374 (C.M.A.1980). In the lead opinion, Chief Judge Everett concluded that Article 31 was designed to provide soldiers the same protection afforded other citizens in civil courts and that he would utilize the theory of “testimonial compulsion” adopted by federal and most state courts in inter[681]*681preting the application of Article 31. Judge Cook and Judge Fletcher concurred in the opinion that Article 31 does not extend to bodily fluids but disassociated themselves from the narrower construction of Article 31.

In United States v. Lloyd, 10 M.J. 172 (C.M.A.1981), Chief Judge Everett applied the rationale adopted in Armstrong to the question of whether an accused may be required to produce an identification card for signature comparison. Chief Judge Everett determined that Article 31(b) does not require a warning before requiring a suspect to render a handwriting sample or to produce a document containing such because such an act is “neutral” and not testimonial. Judge Fletcher concurred. However, Judge Cook strictly limited his concurrence to the facts of the case.

Commentators are not in agreement as to the significance of the Armstrong and Lloyd decisions. Some take the position that these opinions clearly reverse the military decisions which interpreted Article 31 in a broad fashion. See S. Saltzburg, L. Schinasi, D. Schlueter, Military Rules of Evidence Manual, 54 (1981). Another distinguished commentator would limit the holding of Armstrong and Lloyd to the facts of those cases. See J. Howell, Article SI, UCMJ and Compelled Handwriting and Voice Exemplars, November 1982, The Army Lawyer 1.

Our brethren in the Air Force have followed the Chief Judge’s narrow interpretation of Article 31 and concluded that a suspect may be required to render handwriting exemplars without a warning. United States v.

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17 M.J. 678, 1983 CMR LEXIS 715, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-chandler-usarmymilrev-1983.