United States v. DeBell

11 C.M.A. 45, 11 USCMA 45, 28 C.M.R. 269, 1959 CMA LEXIS 208, 1959 WL 3453

• Court: United States Court of Military Appeals
• Decided: December 4, 1959
• Docket: No. 13,087
• Status: Published

Opinions

Opinion of the Court

Robert E. Quinn, Chief Judge:

A general court-martial convicted the accused of larceny of $25.00 (Charge I), and a number of specifications al-lenging wrongful and dishonorable failure to maintain funds in the bank to pay checks drawn thereon (Charge II), in violation of Articles 121 and 134, respectively, Uniform Code of Military Justice, 10 USC §§ 921, 934. Reviews of the conviction preliminary to the appeal to this Court resulted in dismissal of some of the check specifications and modification of the sentence, which now extends to a dishonorable discharge and confinement at hard labor for nine months. The question before us is whether the accused was prejudiced by trial counsel’s announcing before the court members that he had made demands upon defense counsel before trial for production of the 'Original checks.

Trial counsel began the prosecution’s case with evidence pertaining to the check offense alleged in specification 2, Charge II. Although the specification was later dismissed by the convening authority, we refer to the procedure in connection with this offense because it belps explain trial counsel’s conduct regarding the other checks.

The first prosecution witness, an Airman, testified that he was employed part-time in a dry cleaning establishment known as Airmens Cleaners, located outside of Gate 2 at Keesler Air Force Base, Mississippi. He knew the •accused. One day the accused came into the store and asked the witness to cash a $10.00 check for him. The witness agreed to do so. Since the accused had no blank checks, one was ■taken from the check book of the owner of the store. The accused crossed out the printed name of the drawee bank -and inserted another in its place. He was given $10.00 in cash for the check. Thereafter, the owner deposited the instrument in his bank. A “couple days later” it was returned with a slip attached containing a notation that there were “Insufficient Funds.” The owner “contacted” the accused and informed him of the “status” of the check. On payday the accused came to the store and “personally redeemed” the check. Trial counsel then offered into evidence Prosecution Exhibit I for identification, which the two witnesses identified as a photostat of the check under discussion. Defense counsel renewed an earlier objection to the effect that “a copy is not the best evidence.” Before the law officer ruled on the objection trial counsel made the following statement:

“TC: Mr. Law Officer, demand was made on accused’s counsel, . . . for the original of this check, and that demand, which was a written demand,. will be included in the record of this trial.”

At two other places in the presentation of the prosecution’s case trial counsel referred to a demand to produce which he served upon defense counsel. On offering Prosecution Exhibit 3 for identification into evidence, he represented that a written demand had been made upon defense counsel for “the original of this check.” Again, when a Government witness testified from the books of the NCO Open Mess to show that two bad checks had been issued to the Mess by the accused, defense counsel objected on the ground that the “checks themselves would be the best evidence.” Trial counsel replied that he had made written demand on defense counsel for “these checks.”

Secondary evidence is admissible to prove the contents of a writing when the original cannot be produced. Manual for Courts-Martial, United States, 1951, paragraph 143a (2); United States v Jewson, 1 USCMA 652, 657, 5 CMR 80. If the instrument is a check, evidence of its contents is admissible without production of the original where it appears that the original instrument was returned to the accused. Madden v United States, 20 F 2d 289, 294 (CA 9th Cir) (1927), cert den, Parente v United States, 275 US 554, 72 L ed 423, 48 S Ct 116. The Government is not required to demand production of the instrument from the accused as a condition precedent to the admission of other evidence to establish its contents. Heller v United States, 104 F 2d 446, 448 (CA 4th Cir) (1939); Linsansky v United States, 31 F 2d 846, 850 (CA 4th Cir) (1929). In fact, the Federal cases go further and hold that it is error for the prosecuting attorney to call upon the defense in the presence of a jury to produce evidence in its possession preliminary to introduction of secondary evidence.¹ Himmelfarb v United States, 175 F 2d 924, 944 (CA 9th Cir) (1949); McKnight v United States, 115 Fed 972, 981 (CA 6th Cir) (1902). In our opinion in United States v Allinder, 9 USCMA 575, 26 CMR 355, we quoted with approval from the Him-melfarb case the following statement of the rule:

. . We agree with the contention that it is error to request a defendant in a criminal ease in the presence of a jury to testify or produce documents against his will, although he makes no objection thereto. However, we do not think there was prejudicial error in this case because of other circumstances. The real objection to such a proceeding is the prejudice created in the minds of the jurors in case there be a failure to produce the papers.”

Trial counsel apparently was unaware of the general rule. The record clearly shows he believed that in view of the defense objection he had to show a demand to produce in order to establish a proper predicate for introduction of secondary evidence of the contents of the check. He was mistaken; and his representation in open court that a demand had been made constituted error. Error of this kind, however, does not justify reversal if it does not appear to prejudice the accused. As the Court of Appeals for the District of Columbia observed in Himmelfarb: “The authorities all rule that the action must be incriminating and prejudicial according to the circumstances and facts of the particular case.” Supra, footnote 8, page 945; see also Annotation, 110 ALR 101, 106.

So far as Prosecution Exhibits 1 and 3 are concerned, there is no sound basis for a claim of prejudice. As to each check, a witness testified that he personally knew the accused and had received directly from him the check represented by the photostatic copy produced in court. It was also established that in each instance the accused was informed the check had been returned by the bank upon which it was drawn and that shortly thereafter the accused personally redeemed the check from the payee upon payment of the face amount. Consequently, nothing could be proved by the production of the original check which was not already established by the available and admissible copies. It is most unlikely, therefore, that the mere statement by trial counsel that he had served the demand to produce upon defense counsel influenced the court members in their consideration of the accused’s guilt or innocence. Hanish v United States, 227 Fed 584, 586 (CA 7th Cir) (1915). Nor does the record of trial indicate that trial counsel deliberately intended to flout the rules of evidence in an effort to embarrass the defense. United States v Johnson, 3 USCMA 447, 13 CMR 3. We have already remarked that the record demonstrates he simply misunderstood the extent of the showing he was required to make for the introduction of secondary evidence. See Gridley v United States, 44 F 2d 716, 736 (CA 6th Cir) (1930).

A somewhat different situation is presented by the demand in regard to the cheeks given to the NCO Open Mess. Here the exhibit was not an exact replica of the original. The secondary evidence of these checks consisted of entries from the check register of the NCO Open Mess. The records did not indicate whether the checks had been returned to the accused, but there was other substantial evidence to show this fact. When the first check was returned by the bank, the accused came to the Mess. He had with him “the money” and wanted “to pick up the check.” The witness referred him to the cashier. A law enforcement agent who investigated the ease testified, without objection, that the accused was advised of his rights under Article 31 and he admitted that “in August he had issued two checks to the NCO Club knowing he did not have a bank account in the bank on which they were written” and that he had later “made them good.” Again, therefore, the evidence is such that if the original checks had been produced they could have added nothing to the prosecution’s ease against the accused. Consequently. there is no likelihood that the court members drew any adverse inference from the defense failure or refusal to produce the checks.

Discerning no possibility of prejudice to the accused in trial counsel’s ill-advised disclosure in open court of the notice to produce, we affirm the decision of the board of review.

1 The situation in this case should be distinguished from one in which the accused is asked on cross-examination to produce documents referred to by him in his direct examination. Ziegler v United States, 174 F 2d 439, 444-447 (CA 9th Cir) (1949); Bloch v United States, 261 Fed 321, 326 (CA 5th Cir) (1919).