United States v. Miller

7 M.J. 90, 1979 CMA LEXIS 10383

• Court: United States Court of Military Appeals
• Decided: June 18, 1979
• Docket: No. 33,139; SPCM 11275
• Status: Published

Opinion

Opinion of the Court

COOK, Judge:

A special court-martial convicted the accused of several offenses in violation of the Uniform Code of Military Justice, including disrespect to a superior commissioned officer and assault upon an enlisted man with intentional infliction of grievous bodily harm.¹ When accused first petitioned this Court for review, we returned the record for proper authentication of the trial transcript and further proceedings thereon. 4 M.J. 207 (C.M.A.1978). On this appeal the accused contends that an oral incriminating declaration made by him at the scene of the offenses, which bears upon the mentioned delicts, was admitted into evidence in violation of Article 31(b) and (d), UCMJ, 10 U.S.C. §§ 831(b) and (d).

Although incriminatory in nature, a declaration that is spontaneous, rather than the result of action by a person in authority, is not within the exclusionary rule of Article 31. See United States v. Dohle, 1 M.J. 223 (C.M.A.1975). On further examination of the record of trial in the light of the arguments of the respective parties, we conclude that the trial ruling on admissibility was correct. Appellate defense counsel acknowledge the existence of “a substantial conflict” in the testimony “as to whether the [accused’s declaration] was spontaneous or the result of questioning by” the officer. When “evidence of record supports factual determinations made at the trial level and affirmed by the Court of Military Review,” as they do here, this Court will not overturn those findings. United States v. Wilson, 6 M.J. 214, 215 (C.M.A.1979).

The decision of the United States Army Court of Military Review is affirmed.

Chief Judge FLETCHER and Judge PERRY concur.

1 . In violation of Articles 89 and 128, Uniform Code of Military Justice, 10 U.S.C. §§ 889 and 928 respectively.