United States v. Gooding

18 C.M.A. 188, 18 USCMA 188, 39 C.M.R. 188, 1969 CMA LEXIS 538, 1969 WL 5948

• Court: United States Court of Military Appeals
• Decided: March 21, 1969
• Docket: No. 20,720
• Status: Published

Opinions

Opinion of the Court

Quinn, Chief Judge:

At a joint trial in 1967, with a third accused named Jones, the petitioners were convicted of rape by a general court-martial in Germany. Jones was represented by one lawyer and the petitioners were represented by a different lawyer. Included in the record of trial was an inculpatory pretrial statement by Jones in which he also implicated the petitioners in the commission of the offense. The statement had been admitted into evidence without objection by the petitioners and with appropriate cautionary instructions by the law officer to the court members to disregard all the references therein to the petitioners in considering their guilt or innocence. See Delli Paoli v United States, 352 US 232, 1 L Ed 2d 278, 77 S Ct 294 (1957). The petitioners appealed the conviction to this Court alleging, in part, that they were denied a fair trial because of the admission into evidence of Jones’ statement. The petition was denied January 8, 1968, 17 USCMA 659. Later, the petitioners requested a rehearing on the ground that in a case then pending undetermined in the Supreme Court of the United States, the Solicitor General of the United States had conceded that, in the circumstances of the case, a similar trial ruling constituted prejudicial error as to the accused named in the co-accused’s confession. Bruton v United States, 391 US 123, 20 L Ed 2d 476, 88 S Ct 1620 (1968). Reconsideration was denied January 31, 1968, 17 USCMA 661. Thereafter, the Supreme Court decided Bruton. It overturned Delli Paoli’s “basic premise” that, at a joint trial of several accused, instructions to the jury to disregard a confession by one accused which implicates the others in determining guilt or innocence of the latter is “an adequate substitute for” the constitutional right of cross-examination of the confessing accused. 391 US, at pages 131, 137. Thereupon, this application for post-conviction relief was filed. The petitioners reiterate their contention that they were denied the constitutional right to cross-examine Jones, and that while Bruton was decided subsequent to their trial, it is retroactive to the date thereof. Roberts v Russell, 392 US 293, 20 L Ed 2d 1100, 88 S Ct 1921 (1968).

Bruton was tried jointly with Evans. Evans had made oral pretrial confessions which also implicated Bruton. His statements were admitted into evidence, with appropriate instructions to the jury that it could not consider against Bruton any references to him in Evans’ confession. Evans did not testify as a witness. The Supreme Court held that, as to Bruton, Evans’ pretrial confession was inadmissible hearsay. The Court acknowledged, however, that the admission of inadmissible hearsay does not necessarily constitute reversible error. It determined there were “some contexts in which the risk that the jury will not, or cannot, follow instructions [to disregard the hearsay] is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored.” 391 US, at page 135. It concluded that a confession by one accused which implicated his co-accused was not likely to be ignored by the jury; consequently, adverse evidence would be received against the co-accused from an available witness as to whom he did not have an opportunity to cross-examine. Bruton, therefore, was denied the constitutional right to confront a witness who gave testimony against him.

This case is different from Bruton. Jones took the stand and testified at length. By so doing, he opened his testimony and his demeanor to searching cross-examination by counsel for the petitioners. True, Jones was not asked any questions by petitioners, but the petitioners had full and unencumbered opportunity to cross-examine him. So far as the constitutional right of confrontation is concerned, what is important is that the accused has an unfettered opportunity to cross-examine, not whether he cross-examines in fact. As the Supreme Court has pointed out, “an adequate opportunity for cross-examination” satisfies the confrontation clause. Douglas v Alabama, 380 US 415, 418, 13 L Ed 2d 934, 85 S Ct 1074 (1965). See also United States v Eggers, 3 USCMA 191, 11 CMR 191. Clearly, therefore, this case satisfies the constitutional principle expounded in Bruton and provides no support for the present application.

Similarly, the Douglas ease does not help the petitioners. In that ease, a co-accused Loyd made a pretrial confession which implicated Douglas. At trial his confession was admitted into evidence; in addition, Loyd was called as a witness by the Government. On the stand, Loyd asserted his constitutional right against self-incrimination, and steadfastly refused to answer any questions as to his pretrial statement or the offense. The Supreme Court held that, since “effective confrontation of Loyd was possible only if Loyd affirmed the statement as his,” Loyd’s refusal to say anything denied Douglas the right to cross-examine him. 380 US, at page 420. Here, Jones testified freely and at length. Unlike the witness in Douglas, he not only acknowledged that he signed the pretrial statement, but testified as to the circumstances under which he and the petitioners had intercourse with the alleged victim. True, he denied using some of the phraseology that appeared in the pretrial statement, attributing it to the officer who typed the statement, but these denials did not insulate him from cross-examination, as did the witness’ assertion of the privilege against self-incrimination in the Douglas case. At no time during his testimony did Jones refuse to answer any questions, either as to the pretrial statement or as to his version of the encounter with the girl with whom he and the petitioners had intercourse. It is apparent, therefore, that the petitioners were not in any way hindered from directly and specifically challenging Jones as the source of any adverse evidence that the court members might consider in their deliberations on the petitioner’s guilt or innocence.

We have examined the record from the perspective of recent constitutional doctrine and “we are satisfied that the accused was fairly charged, convicted, and tried, without any error prejudicial to a substantial right.” United States v Frischholz, 16 USCMA 150, 153, 36 CMR 306. Compare Jones v United States, 392 US 299, 20 L Ed 2d 1104, 88 S Ct 2050 (1968), with Mittelman v United States, 392 US 917, 20 L Ed 2d 1379, 88 S Ct 2050 (1968); see also Courtney v United States, 390 F2d 521 (CA9th Cir) (1968), certiorari denied, 393 US 857, 21 L Ed 2d 126, 89 S Ct 98 (1968). Accordingly, we deny the instant application.

Judge DARDEN concurs.