Opinion of the Court
GIERKE, Judge:
A general court-martial composed of officer and enlisted members convicted appellant, contrary to his pleas, of attempted murder, in violation of Article 80, Uniform Code of Military Justice, 10 USC § 880. He was acquitted of charges of aggravated arson and larceny, in violation of Articles 126 and 121, UCMJ, 10 USC §§ 926 and 921, respectively. Appellant was sentenced to a bad-conduct discharge, confinement for 4 years, total forfeitures, and reduction to Private E-l. The convening authority approved the sentence except for confinement exceeding 36 months. The Court of Military Review affirmed the approved findings and sentence. 35 MJ 659 (1992). We granted review of the following issues: *
I
WHETHER THE ARMY COURT ERRED AS A MATTER OF LAW IN FINDING THAT ADMISSION OF APPELLANT’S CONFESSION TAKEN IN [270] VIOLATION OF HIS FIFTH AMENDMENT RIGHTS TO REMAIN SILENT AND TO HAVE AN ATTORNEY PRESENT DURING QUESTIONING AND ADMISSION OF MR. HENRY’S SWORN STATEMENTS IN VIOLATION OF APPELLANT’S SIXTH AMENDMENT RIGHT TO CONFRONT THE WITNESSES AGAINST HIM WAS HARMLESS ERROR BEYOND A REASONABLE DOUBT.
II
WHETHER THE MILITARY JUDGE COMMITTED PREJUDICIAL ERROR IN INSTRUCTING THE PANEL MEMBERS DURING INSTRUCTIONS ON FINDINGS THAT APPELLANT COULD BE CONVICTED OF ATTEMPTED UNPREMEDITATED MURDER WHICH REQUIRES EITHER AN INTENT TO KILL OR INFLICT GREAT BODILY HARM.
III
WHETHER THE MILITARY JUDGE COMMITTED PREJUDICIAL ERROR IN INCORPORATING BY REFERENCE PRELIMINARY INSTRUCTIONS GIVEN IN PREVIOUS COURTS-MARTIAL.
The theory of the prosecution in this case was as follows: appellant and Private Maraca spent the evening of July 28, 1989, at a German night club celebrating Maraca’s birthday. At the club they met Mr. Henry, an American civilian, who invited them to his apartment. After further drinking at the apartment, appellant and Maraca fell asleep in the living room. During the night appellant turned away a “homosexual advance” by Henry by pretending to be asleep. Shortly thereafter, appellant watched Henry and Maraca engage in oral and anal sodomy. Appellant was enraged by Henry’s homosexual advances, believed that Maraca was the victim of homosexual rape, and decided to kill Henry by setting his apartment on fire while Henry was asleep on the floor. Henry was able to put the fire out. See 35 MJ at 660.
The prosecution’s case consisted of Maraca’s testimony, two pretrial statements by appellant, two pretrial statements by Henry, and expert testimony regarding physical evidence from the apartment. The defense case consisted of appellant’s testimony and evidence attacking Henry’s veracity.
Private Maraca testified about his birthday celebration at the night club with appellant, where they met Henry. Maraca testified that he was “pretty intoxicated” and “out of it.” He did not remember leaving the club. He could not remember what happened during the night except “throwing up and pushing somebody off of me.” He had no memory of appellant’s awakening him. When he awakened, he saw Henry asleep on the floor with a bottle of charcoal lighter fluid in his hand. Maraca testified that appellant was “angry.” Appellant called Henry a “fag,” and said, “He was going to kill the motherfucker.” Appellant also said that Henry “probably” intended to kill them.- Maraca testified that when he awakened, he noticed that the side of the sofa where he had slept was wet and that the wet area felt and smelled like charcoal lighter fluid. As they departed the apartment, with Henry still asleep on the floor, Maraca saw appellant touch a butane cigarette lighter to a quilt or blanket on the sofa.
On cross-examination, Private Maraca testified that he was not sure about the smell of lighter fluid but that he concluded that the wetness on the sofa was lighter fluid when he saw the bottle in Henry’s hand. When pressed about what appellant said, Maraca testified that he was “pretty sure” that appellant used the words, “Kill the motherfucker.” He saw no flame as he and appellant departed the apartment, only smoldering.
Shortly after leaving Henry’s apartment, Maraca gave a statement to agents of the Criminal Investigation Command (CID). He testified that he did not mention the fire in his first statement to criminal investigators because he “was scared.”
The prosecution presented the testimony of a chemist who analyzed fabric from Henry’s sofa. The chemist found no evidence of [271] an accelerant. He testified that an accelerant such as lighter fluid would have produced an immediate flame. He explained that the passage of time and exposure to the elements could have allowed any accelerant to evaporate.
A fingerprint examiner testified that two latent fingerprints on the lighter fluid bottle were analyzed but that they were not appellant’s. There were other prints on the bottle but they were not suitable for analysis.
CID Special Agent (SA) Lopez testified that he interviewed Mr. Henry on August 29, 1989. In his written and sworn statement Henry denied the allegation of forcible sodomy but admitted engaging in consensual sodomy with Maruca. He stated that he fell asleep on the floor and awakened on the morning of July 29 to find his sofa on fire. He extinguished the fire and noted that a previously full can of charcoal lighter fluid was partially empty and that his wallet was missing. He said he found it several days later. He reported the fire damage to his landlord but did not report the fire and theft to the police because he was embarrassed by his homosexual activity. Mr. Henry gave a second statement to SA Lopez on the same day to clarify the extent of his intoxication and to clarify that he found the remains of his wallet on July 31.
Mr. Henry departed Germany after giving his statements to SA Lopez, was later located in Saudi Arabia, but refused to accept invitational travel orders to return to Germany for appellant’s court-martial. The parties stipulated that there was “no subpoena authority” to compel Mr. Henry to return. Over defense objection, Mr. Henry’s two sworn statements were admitted in evidence as statements against interest under Mil. R.Evid. 804(b)(3), Manual for Courts-Martial, United States, 1984.
SA Grass testified that on the morning of July 29, he questioned appellant in connection with a forcible sodomy complaint. He advised appellant that he was suspected of misprision of a serious offense. Appellant waived his rights and provided a statement. In his statement appellant asserted that Henry made a homosexual advance on him during the night but that he brushed it off by pretending to be asleep. Appellant then saw oral and anal intercourse between Henry and Maruca, but he was afraid to stop it. Appellant did not mention the fire or any retributive actions against Henry.
On August 8, SA Grass called appellant back for a second interview, advised him again that he was suspected of misprision of a serious offense and that he intended to “ask him why he withheld information the first time when I talked to him.” Appellant told SA Grass that he wanted “to consult with an attorney and did not want to be questioned any further.” SA Grass “terminated the interview” and released appellant “back to his unit.”
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Opinion of the Court
GIERKE, Judge:
A general court-martial composed of officer and enlisted members convicted appellant, contrary to his pleas, of attempted murder, in violation of Article 80, Uniform Code of Military Justice, 10 USC § 880. He was acquitted of charges of aggravated arson and larceny, in violation of Articles 126 and 121, UCMJ, 10 USC §§ 926 and 921, respectively. Appellant was sentenced to a bad-conduct discharge, confinement for 4 years, total forfeitures, and reduction to Private E-l. The convening authority approved the sentence except for confinement exceeding 36 months. The Court of Military Review affirmed the approved findings and sentence. 35 MJ 659 (1992). We granted review of the following issues: *
I
WHETHER THE ARMY COURT ERRED AS A MATTER OF LAW IN FINDING THAT ADMISSION OF APPELLANT’S CONFESSION TAKEN IN [270] VIOLATION OF HIS FIFTH AMENDMENT RIGHTS TO REMAIN SILENT AND TO HAVE AN ATTORNEY PRESENT DURING QUESTIONING AND ADMISSION OF MR. HENRY’S SWORN STATEMENTS IN VIOLATION OF APPELLANT’S SIXTH AMENDMENT RIGHT TO CONFRONT THE WITNESSES AGAINST HIM WAS HARMLESS ERROR BEYOND A REASONABLE DOUBT.
II
WHETHER THE MILITARY JUDGE COMMITTED PREJUDICIAL ERROR IN INSTRUCTING THE PANEL MEMBERS DURING INSTRUCTIONS ON FINDINGS THAT APPELLANT COULD BE CONVICTED OF ATTEMPTED UNPREMEDITATED MURDER WHICH REQUIRES EITHER AN INTENT TO KILL OR INFLICT GREAT BODILY HARM.
III
WHETHER THE MILITARY JUDGE COMMITTED PREJUDICIAL ERROR IN INCORPORATING BY REFERENCE PRELIMINARY INSTRUCTIONS GIVEN IN PREVIOUS COURTS-MARTIAL.
The theory of the prosecution in this case was as follows: appellant and Private Maraca spent the evening of July 28, 1989, at a German night club celebrating Maraca’s birthday. At the club they met Mr. Henry, an American civilian, who invited them to his apartment. After further drinking at the apartment, appellant and Maraca fell asleep in the living room. During the night appellant turned away a “homosexual advance” by Henry by pretending to be asleep. Shortly thereafter, appellant watched Henry and Maraca engage in oral and anal sodomy. Appellant was enraged by Henry’s homosexual advances, believed that Maraca was the victim of homosexual rape, and decided to kill Henry by setting his apartment on fire while Henry was asleep on the floor. Henry was able to put the fire out. See 35 MJ at 660.
The prosecution’s case consisted of Maraca’s testimony, two pretrial statements by appellant, two pretrial statements by Henry, and expert testimony regarding physical evidence from the apartment. The defense case consisted of appellant’s testimony and evidence attacking Henry’s veracity.
Private Maraca testified about his birthday celebration at the night club with appellant, where they met Henry. Maraca testified that he was “pretty intoxicated” and “out of it.” He did not remember leaving the club. He could not remember what happened during the night except “throwing up and pushing somebody off of me.” He had no memory of appellant’s awakening him. When he awakened, he saw Henry asleep on the floor with a bottle of charcoal lighter fluid in his hand. Maraca testified that appellant was “angry.” Appellant called Henry a “fag,” and said, “He was going to kill the motherfucker.” Appellant also said that Henry “probably” intended to kill them.- Maraca testified that when he awakened, he noticed that the side of the sofa where he had slept was wet and that the wet area felt and smelled like charcoal lighter fluid. As they departed the apartment, with Henry still asleep on the floor, Maraca saw appellant touch a butane cigarette lighter to a quilt or blanket on the sofa.
On cross-examination, Private Maraca testified that he was not sure about the smell of lighter fluid but that he concluded that the wetness on the sofa was lighter fluid when he saw the bottle in Henry’s hand. When pressed about what appellant said, Maraca testified that he was “pretty sure” that appellant used the words, “Kill the motherfucker.” He saw no flame as he and appellant departed the apartment, only smoldering.
Shortly after leaving Henry’s apartment, Maraca gave a statement to agents of the Criminal Investigation Command (CID). He testified that he did not mention the fire in his first statement to criminal investigators because he “was scared.”
The prosecution presented the testimony of a chemist who analyzed fabric from Henry’s sofa. The chemist found no evidence of [271] an accelerant. He testified that an accelerant such as lighter fluid would have produced an immediate flame. He explained that the passage of time and exposure to the elements could have allowed any accelerant to evaporate.
A fingerprint examiner testified that two latent fingerprints on the lighter fluid bottle were analyzed but that they were not appellant’s. There were other prints on the bottle but they were not suitable for analysis.
CID Special Agent (SA) Lopez testified that he interviewed Mr. Henry on August 29, 1989. In his written and sworn statement Henry denied the allegation of forcible sodomy but admitted engaging in consensual sodomy with Maruca. He stated that he fell asleep on the floor and awakened on the morning of July 29 to find his sofa on fire. He extinguished the fire and noted that a previously full can of charcoal lighter fluid was partially empty and that his wallet was missing. He said he found it several days later. He reported the fire damage to his landlord but did not report the fire and theft to the police because he was embarrassed by his homosexual activity. Mr. Henry gave a second statement to SA Lopez on the same day to clarify the extent of his intoxication and to clarify that he found the remains of his wallet on July 31.
Mr. Henry departed Germany after giving his statements to SA Lopez, was later located in Saudi Arabia, but refused to accept invitational travel orders to return to Germany for appellant’s court-martial. The parties stipulated that there was “no subpoena authority” to compel Mr. Henry to return. Over defense objection, Mr. Henry’s two sworn statements were admitted in evidence as statements against interest under Mil. R.Evid. 804(b)(3), Manual for Courts-Martial, United States, 1984.
SA Grass testified that on the morning of July 29, he questioned appellant in connection with a forcible sodomy complaint. He advised appellant that he was suspected of misprision of a serious offense. Appellant waived his rights and provided a statement. In his statement appellant asserted that Henry made a homosexual advance on him during the night but that he brushed it off by pretending to be asleep. Appellant then saw oral and anal intercourse between Henry and Maruca, but he was afraid to stop it. Appellant did not mention the fire or any retributive actions against Henry.
On August 8, SA Grass called appellant back for a second interview, advised him again that he was suspected of misprision of a serious offense and that he intended to “ask him why he withheld information the first time when I talked to him.” Appellant told SA Grass that he wanted “to consult with an attorney and did not want to be questioned any further.” SA Grass “terminated the interview” and released appellant “back to his unit.”
On August 30, 1989, after Mr. Henry had provided his two statements to the CID, SA Williams interviewed appellant. SA Williams advised appellant that he was suspected of aggravated arson, attempted murder, and larceny. SA Williams asked appellant “if he had been interviewed or advised of his rights about the matter in the past,” and apparently received a negative reply. Appellant agreed to provide a statement and signed a written “rights waiver/non-waiver certificate” which included the comment, “I have not been advised of my legal rights regarding the above offenses.” SA Williams did not ask the more general question whether appellant had been advised of his rights for any offense because of “oversight.” He had access to the written record of appellant’s invocation of rights on August 8, which was in the investigative file, but he was not aware of it at the time of the interview.
In his August 30 statement, appellant said that his statement of July 28 “was completely true with the exception of one detail.” That detail was, “I did set a flame to the end of, a small flame, the man’s bed or sofa whatever it was, prior to leaving his apartment.” Appellant explained his motive: “After Maruca had said that he had been raped, I had hostile feelings and wanted to somehow pay the man back for what he had done to my friend. I stated to Maruca that I wanted to somehow pay this man back, having seen the cigarette lighter and not wanting to physical[272] ly hurt the guy, I decided that ruining a piece of his personal property would be a good solution.” Appellant denied using an accelerant for the fire and denied intending to kill Henry.
Defense counsel made a timely motion to suppress appellant’^ statement of August 30. The military judge denied the motion.
At trial appellant testified in his behalf and repeated what he had said in his August 30 statement to the CID. He again asserted that he “wanted to pay this guy back.” He initially picked up a money clip full of money but put it back. He testified that “I was thinking about just leaving and I said, this guy, you know, he just can’t get away scot free like this for what he has done.” Appellant saw a cigarette lighter, “and I took it and I held it to the edge of the bed and we left.” He denied using any lighter fluid. When asked if he tried to kill Henry, he replied, “I absolutely did not.”
Appellant was cross-examined at length about his alleged fear of harm from Mr. Henry, a “middle aged man, who was nowhere near your size.” He was asked to explain whether he literally meant his words, “I’m going to kill the mother-fucker.” Trial counsel challenged the accuracy of his statement to SA Grass describing the oral and anal intercourse. Appellant responded that he let SA Grass write down anal intercourse “because that is what he wanted to believe,” even though it may have been false. Trial counsel questioned him in detail about the bottle of charcoal lighter fluid. Appellant admitted making a false statement to SA Williams by initially denying that he knew anything about a fire. He denied telling SA Williams that the bed sheet was “on fire” when they left the apartment, even though the words appear in his written statement. When pressed about the discrepancy, he responded, “CID agents have a way of misconstruing things that you say.” On one occasion he accused trial counsel of “put[ting] words in my mouth.” On another occasion he responded to a question by asking, “Didn’t I tell you before that I don’t remember?” Finally, the military judge cautioned appellant, “I don’t want you spar[r]ing here with counsel. Just answer his questions.”
The Court of Military Review held that the military judge erred by admitting Mr. Henry’s two pretrial statements as statements against interest under Mil.R.Evid. 804(b)(3). That court stated that Mr. Henry’s “statements do not reflect that Mr. Henry believed he was subjecting himself to any civil or criminal liability.” The court further stated that “there was no evidence presented that Mr. Henry’s homosexual conduct violated German law or would have adversely affected his employment or other propriety interests.” 35 MJ at 663.
The Court of Military Review also held that appellant’s August 30 statement should have been suppressed. Based on appellant’s invocation of rights on August 8, the court held that the CID’s reinitiation of interrogation was improper. Id. at 662.
The court below further held that the errors were harmless beyond a reasonable doubt. Id. at 663-64. The Judge Advocate General has not certified the question whether the Court of Military Review correctly held that the evidence should have been suppressed. All that is before us is appellant’s challenge to the Court of Military Review’s holding that the errors were harmless beyond a reasonable doubt. In this regard Article 67(c), UCMJ, 10 USC § 867(c) (1989), provides as follows:
In any case reviewed by it, the Court of Military Appeals may act only with respect to the findings and sentence as approved by the convening authority and as affirmed or set aside as incorrect in law by the Court of Military Review. In a case which the Judge Advocate General orders sent to the Court of Military Appeals, that action need be taken only with respect to the issues raised by him. In a case reviewed upon petition of the accused, that action need be taken only with respect to issues specified in the grant of review----
Since the correctness of the ruling by the Court of Military Review as to admissibility of the statements has not been challenged either by petition of appellant or certification by the Judge Advocate General, we will treat [273] it as the law of this case. See United States v. Sales, 22 MJ 305, 307 (CMA 1986) (unchallenged ruling by Court of Military Review “constitutes the law of the case and binds the parties”). See also Morris v. American National Can Corporation, 988 F.2d 50, 52 (8th Cir.1993) (law of the case applies as result of waiver when party fails to raise issue on appeal).
We hold that the errors set out in the first granted issue in this case were not harmless beyond a reasonable doubt. The Court of Military Review found that Mr. Henry’s two statements and appellant’s statement of August 30 were “cumulative of other evidence presented at trial.” 35 MJ at 663. The court below held that the only disputed issue was whether appellant intended to kill Mr. Henry and that the challenged statements merely reaffirmed appellant’s denial of intent to kill. Id. at 663-64.
We disagree with the Court of Military Review’s assessment of prejudice. In the first place, without the challenged evidence, the only evidence that appellant started the fire, that an accelerant was used, and that appellant expressed an intent to “kill the mother-fucker” would have been Maruca’s uncertain, backpedaling testimony. The entire prosecution case would have rested on the testimony of Maruca, who readily admitted that his ability to observe was obscured by his extreme intoxication. Secondly, we are not convinced that the defense strategy would have been the same, because appellant might not have been compelled to testify in an effort to explain his pretrial statement. See Harris v. United States, 392 U.S. 219, 223, 88 S.Ct. 2008, 2010, 20 L.Ed.2d 1047 (1968) (in-court testimony to overcome illegally obtained confessions is “tainted by the same illegality that rendered the confessions themselves inadmissible”); United States v. Bearchild, 17 USCMA 598, 602, 38 CMR 396, 400 (1968) (accused’s in-court testimony tainted if given to overcome inadmissible confession). Appellant’s credibility was critical and may well have been damaged during cross-examination. It is not insignificant that appellant on cross-examination was forced to admit lying to SA Williams; resorted to accusing the CID of putting words in the statement which went beyond his oral answers; equivocated about whether anything was on fire when he and Maruca left the apartment; accused trial counsel of putting words in his mouth; and was cautioned by the military judge in the presence of the court members to stop sparring with counsel.
The Government has the “burden of demonstrating that the admission of the ... [evidence in question] did not contribute to” appellant’s conviction. Arizona v. Fulminante, 499 U.S. 279, 296, 111 S.Ct. 1246, 1257,113 L.Ed.2d 302 (1991); accord Yates v. Evatt, 500 U.S. 391, 403, 111 S.Ct. 1884, 1892-93, 114 L.Ed.2d 432 (1991). Since the Government has the burden of showing that a constitutional error was harmless beyond a reasonable doubt, it must exclude the “reasonable possibility that the evidence complained of might have contributed to the conviction.” Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 230-31, 11 L.Ed.2d 171 (1963).
In view of our disposition of the first granted issue, we need not address the remaining issues.
The decision of the United States Army Court of Military Review is reversed. The findings and sentence are set aside. The record of trial is returned to the Judge Advocate General of the Army. A rehearing may be ordered.
Chief Judge SULLIVAN and Judges COX and WISS concur.