Opinion
Quinn, Judge:
At trial on a charge of unpremeditated murder before a military judge without court members, the accused and a defense witness testified that' the accused was the only person of several outside a hootch (hut), occupied by Specialist Spooner and others, who fired a number of rounds from an M-16 rifle into the hootch. Spooner [99]*99died from a bullet in the head. The accused testified that he had had a quarrel with some persons in the hootch and had been forced out; as he was “walking off” he heard, from inside the hootch, an “M-16 being locked and loaded.” He went to his own hootch to obtain a weapon, which he admitted he later fired into the hootch occupied by Spooner. He maintained that when he fired his rifle, he did not want to “hurt anybody,” but only “to scare them off.” He aimed “even with the top of the doorway” so the bullets went “up through the hootch.” He insisted there “was no way the bullets could have richo-cheted [sic] and hit” Spooner.1
The trial judge determined that the accused had caused Spooner’s death by an act inherently dangerous to others and with wanton disregard of human life, in violation of Article 118, Uniform Code of Military Justice, 10 USC § 918, and he found the accused guilty as charged. He indicated that in reaching his findings he had considered a statement by the accused to Captain Fleming which had been made shortly after the shooting. The statement had been admitted in evidence over defense objection. That ruling is the subject of this appeal.
Captain Fleming was acting executive officer of the 4th Battalion, 21st Infantry. About 9:30 p.m. on the night of the shooting, he was with Captain Pejakovich in the executive officer’s hut. They heard some shots, which they attributed to interdiction fire from their perimeter. Since the shots sounded a “little close,” they “started to investigate.” “At that time,” other shots, fired very rapidly, were heard. They thought these were “incoming” so they “grabbed” their weapons and “started out the back door ... to see what was going on.”
The officers headed toward the area from which they thought the shots had come. A diagram of the area, not drawn to scale, is set out in the Appendix. As Captain Fleming came out of the hut and passed the movie stage, an unidentified person told him that “someone had been shot.” Fleming then “realized . . . the shots had come from within the compound.” As he proceeded “toward the area” he saw a group of about eight or ten persons “gathered outside the rear” of the hootch numbered 2 on the diagram in the Appendix. On approaching, he determined there were a “few two or three man conversations going on.” “[A] 11 sorts of comments [were] being made” from which it was evident that someone had “done some shooting” and one of the “drivers had been hit.” Captain Fleming had “no idea of what had happened” and he “wanted to find out” who “was hurt and where he was” and “who had done the shooting.” He suspected some “sort of criminal activity.” Speaking “basically to the group” he asked: “ ‘Who shot who ?’ ”
The accused was in the group of persons addressed by Captain Fleming. He was on the “far side” about ten feet from the Captain. He raised both hands and said: “I shot him.”
On this appeal, it is contended, as it was at trial, that the statement was inadmissible in evidence against the accused because Captain Fleming did not first advise the accused of his right to remain silent, as required by Article 31, Code, supra, 10 USC § 831. Article 31 mandates that no person subject to the Code shall “request any statement” from an accused or suspect “without first” informing him of the accusation and that he has the right to remain silent. See United States v Williams, 2 USCMA 430, 9 CMR 60 (1953).
[100]*100[99]*99In the course of inquiry into apparent misconduct many persons may [100]*100be questioned. Information available to the investigator may so clearly identify the conduct as criminal and a person as the wrongdoer as to require threshold advice to the individual regarding his right to remain silent; in other instances, the investigator may have no reason to anticipate or suspect that a person from whom he seeks information is implicated in a crime. Thus, the conclusion as to criminality or suspicion in a particular case depends on the totality of the surrounding circumstances. See United States v Anglin, 18 USCMA 520, 40 CMR 232 (1969); United States v Nowling, 9 USCMA 100, 25 CMR 362 (1958). Other cases are, therefore, of only marginal benefit in assessment of the facts in this case. See United States v Ballard, 17 USCMA 96, 37 CMR 360 (1967).
The precedent most relied upon by the accused as justifying a conclusion ■that a warning was required in this case is United States v Wilson, 2 USCMA 248, 8 CMR 48 (1953). Some factual similarities indeed exist. There, as here, a person in authority, suspecting some sort of criminality in a shooting which resulted in a homicide, asked who had done the shooting. However, there are also significant differences between this case and Wilson.
The record in. Wilson showed that, on arriving at the scene of the shooting, a military police sergeant received a report from another police officer that two persons had been identified as the individuals who had done the shooting. The two were Wilson and Harvey. They were standing with a group of soldiers around a fire. The policeman “pointed out the appellants” as the suspects to the sergeant. The sergeant approached the group, and “looking directly” at Wilson and Harvey asked who had done the shooting. They said they had “ ‘shot at the man.’ ” The record left no doubt that the police sergeant addressed his question directly to Wilson and Harvey as the suspects and expected them to reply. Contrariwise, Captain Fleming’s testimony supports a conclusion that he did not suspect the accused of shooting and did not expect him- to reply to his question. Id., at page 254.
Appellate defense counsel contend that Fleming’s response to a question by the judge demonstrates that he knew “one of the men in the group had done the shooting” and, therefore, regarded “each one of the men in the group” as a suspect. The argument is structured on a response by the Captain to an ambiguous question.
Just before argument on the defense objection to Captain Fleming’s testimony as to the accused’s statement, Fleming was asked the following question by the judge and he gave the following response:
“Q. Had you realized just from what had been going on that apparently someone within the group, or someone within the compound, had done the firing?
“A. Well, yes, sir. From the comments within that group, it was evident that someone right there had done some shooting and one of the drivers had been hit. Who had been hit, who had done the shooting, where he’d been hit —-I had no idea.”
Other testimony by Fleming supports an interpretation different from that advanced by appellate defense counsel. From that testimony it would appear that Captain Fleming meant the words “right there” to mean there in the compound, not in the group. This interpretation is consistent with Fleming’s testimony to the effect that as early as the time he began his approach to the motor pool area he “realized” that the shots had come from within the compound, not outside it.
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion
Quinn, Judge:
At trial on a charge of unpremeditated murder before a military judge without court members, the accused and a defense witness testified that' the accused was the only person of several outside a hootch (hut), occupied by Specialist Spooner and others, who fired a number of rounds from an M-16 rifle into the hootch. Spooner [99]*99died from a bullet in the head. The accused testified that he had had a quarrel with some persons in the hootch and had been forced out; as he was “walking off” he heard, from inside the hootch, an “M-16 being locked and loaded.” He went to his own hootch to obtain a weapon, which he admitted he later fired into the hootch occupied by Spooner. He maintained that when he fired his rifle, he did not want to “hurt anybody,” but only “to scare them off.” He aimed “even with the top of the doorway” so the bullets went “up through the hootch.” He insisted there “was no way the bullets could have richo-cheted [sic] and hit” Spooner.1
The trial judge determined that the accused had caused Spooner’s death by an act inherently dangerous to others and with wanton disregard of human life, in violation of Article 118, Uniform Code of Military Justice, 10 USC § 918, and he found the accused guilty as charged. He indicated that in reaching his findings he had considered a statement by the accused to Captain Fleming which had been made shortly after the shooting. The statement had been admitted in evidence over defense objection. That ruling is the subject of this appeal.
Captain Fleming was acting executive officer of the 4th Battalion, 21st Infantry. About 9:30 p.m. on the night of the shooting, he was with Captain Pejakovich in the executive officer’s hut. They heard some shots, which they attributed to interdiction fire from their perimeter. Since the shots sounded a “little close,” they “started to investigate.” “At that time,” other shots, fired very rapidly, were heard. They thought these were “incoming” so they “grabbed” their weapons and “started out the back door ... to see what was going on.”
The officers headed toward the area from which they thought the shots had come. A diagram of the area, not drawn to scale, is set out in the Appendix. As Captain Fleming came out of the hut and passed the movie stage, an unidentified person told him that “someone had been shot.” Fleming then “realized . . . the shots had come from within the compound.” As he proceeded “toward the area” he saw a group of about eight or ten persons “gathered outside the rear” of the hootch numbered 2 on the diagram in the Appendix. On approaching, he determined there were a “few two or three man conversations going on.” “[A] 11 sorts of comments [were] being made” from which it was evident that someone had “done some shooting” and one of the “drivers had been hit.” Captain Fleming had “no idea of what had happened” and he “wanted to find out” who “was hurt and where he was” and “who had done the shooting.” He suspected some “sort of criminal activity.” Speaking “basically to the group” he asked: “ ‘Who shot who ?’ ”
The accused was in the group of persons addressed by Captain Fleming. He was on the “far side” about ten feet from the Captain. He raised both hands and said: “I shot him.”
On this appeal, it is contended, as it was at trial, that the statement was inadmissible in evidence against the accused because Captain Fleming did not first advise the accused of his right to remain silent, as required by Article 31, Code, supra, 10 USC § 831. Article 31 mandates that no person subject to the Code shall “request any statement” from an accused or suspect “without first” informing him of the accusation and that he has the right to remain silent. See United States v Williams, 2 USCMA 430, 9 CMR 60 (1953).
[100]*100[99]*99In the course of inquiry into apparent misconduct many persons may [100]*100be questioned. Information available to the investigator may so clearly identify the conduct as criminal and a person as the wrongdoer as to require threshold advice to the individual regarding his right to remain silent; in other instances, the investigator may have no reason to anticipate or suspect that a person from whom he seeks information is implicated in a crime. Thus, the conclusion as to criminality or suspicion in a particular case depends on the totality of the surrounding circumstances. See United States v Anglin, 18 USCMA 520, 40 CMR 232 (1969); United States v Nowling, 9 USCMA 100, 25 CMR 362 (1958). Other cases are, therefore, of only marginal benefit in assessment of the facts in this case. See United States v Ballard, 17 USCMA 96, 37 CMR 360 (1967).
The precedent most relied upon by the accused as justifying a conclusion ■that a warning was required in this case is United States v Wilson, 2 USCMA 248, 8 CMR 48 (1953). Some factual similarities indeed exist. There, as here, a person in authority, suspecting some sort of criminality in a shooting which resulted in a homicide, asked who had done the shooting. However, there are also significant differences between this case and Wilson.
The record in. Wilson showed that, on arriving at the scene of the shooting, a military police sergeant received a report from another police officer that two persons had been identified as the individuals who had done the shooting. The two were Wilson and Harvey. They were standing with a group of soldiers around a fire. The policeman “pointed out the appellants” as the suspects to the sergeant. The sergeant approached the group, and “looking directly” at Wilson and Harvey asked who had done the shooting. They said they had “ ‘shot at the man.’ ” The record left no doubt that the police sergeant addressed his question directly to Wilson and Harvey as the suspects and expected them to reply. Contrariwise, Captain Fleming’s testimony supports a conclusion that he did not suspect the accused of shooting and did not expect him- to reply to his question. Id., at page 254.
Appellate defense counsel contend that Fleming’s response to a question by the judge demonstrates that he knew “one of the men in the group had done the shooting” and, therefore, regarded “each one of the men in the group” as a suspect. The argument is structured on a response by the Captain to an ambiguous question.
Just before argument on the defense objection to Captain Fleming’s testimony as to the accused’s statement, Fleming was asked the following question by the judge and he gave the following response:
“Q. Had you realized just from what had been going on that apparently someone within the group, or someone within the compound, had done the firing?
“A. Well, yes, sir. From the comments within that group, it was evident that someone right there had done some shooting and one of the drivers had been hit. Who had been hit, who had done the shooting, where he’d been hit —-I had no idea.”
Other testimony by Fleming supports an interpretation different from that advanced by appellate defense counsel. From that testimony it would appear that Captain Fleming meant the words “right there” to mean there in the compound, not in the group. This interpretation is consistent with Fleming’s testimony to the effect that as early as the time he began his approach to the motor pool area he “realized” that the shots had come from within the compound, not outside it. Nothing in his testimony, as to “the comments” he heard from the group, suggests that the person who did the shooting was in that group. Fleming’s elaboration of his reason for asking “who shot who” indicates he did not suspect any member of the group as the individual who [101]*101did the shooting. The following excerpts are illustrative of that indication:
“Q. At this time, Captain Fleming, did you suspect anybody?
“A. No, sir.
“TC: Did you suspect anyone in this group you described as being one of the people who may have been involved in the shooting?
“WIT: At that moment I had no suspect at all. I was still trying to ascertain what had happened.
“Q. As you walked up, you said you heard some comments before you said anything. What comments did you hear to the best of your recollection? In other words, just the substance of what you heard.
“A. I ascertained from the comments that the wounded man had been taken over already to the aid station. I still didn’t know who it was. I ascertained also that some GIs had apparently been in an argument and one had shot the other. I ascertained that from the comments. Hence, I asked my question.”
Considering the whole of Captain Fleming’s testimony, we are satisfied that it could reasonably be concluded, as the trial judge in fact concluded, that “[n]o particular person was suspected [by Fleming] at that point.” United States v Hopkins, 7 USCMA 519, 22 CMR 309 (1957). Since Fleming suspected none of the group of being involved in the shooting and had no information that reasonably should have put him on notice, he did not need to give preliminary advice as to the right to remain silent. United States v Schafer, 13 USCMA 83, 88, 32 CMR 83 (1962).
The decision of the United States Army Court of Military Review is affirmed-
[102]*102APPENDIX
Diagram of area.
Not drawn to scale.