United States v. Morris

13 M.J. 297, 1982 CMA LEXIS 17181

Opinions

Opinion

FLETCHER, Judge:

We granted (10 M.J. 334) review in the present case¹ to consider the appropriateness of this military judge’s denial of a motion for mistrial. At trial appellant objected to an alleged pretrial admission of guilt to a South Korean security guard which was recited in the guard’s testimony at trial. Before us he urges that mistrial was the only sufficient remedy and that the military judge’s various jury instructions to disregard this testimony were insufficient to obviate the court members’ exposure to this supposedly inadmissible statement prejudicial to appellant. However, inasmuch as I have concluded that no Article 31(b)² warnings were required under the facts as presented and that the statement itself was admissible in evidence, no prejudice occurred to appellant, so his claims are without merit.

A summary recital of the facts elucidates the basis of my conclusion. On May 23, 1980, Private Chase loaned a combination radio/cassette/television unit to a Private Larkins, who fell asleep around 1:00 the following morning while watching it. Arising at 5:30 a. m., he discovered the unit was missing, and immediately reported that fact to appellant, the Charge of Quarters. In company with appellant, Larkins checked the barracks; during this search appellant repeatedly assured Larkins that he didn’t have possession of this unit.

While in his barracks, appellant picked up an empty laundry bag and later Larkins observed him carrying the empty bag into a dayroom which they had not searched. Larkins then observed appellant leaving the dayroom with the bag, now filled “real tight” and he subsequently lost track of him.

Appellant testified that the laundry bag in question contained his “yobo bag” and that his departure from camp was to notify a Private Jones that he had received an emergency phone call. Although appellant’s tour of duty did not end until 9:00 a. m., he left at about 5:30 a. m. Private Pearson, a Charge of Quarters’ runner, testified no such call was received for Jones. Appellant claimed he went to Jones’ “hootch” and could not find him. Jones, in contrast, testified that he was there all evening and did not see or hear appellant.

At the time of his departure from the camp, appellant was seen by Mr. Pak, a Korean security guard. Mr. Pak observed appellant carrying under his arm a laundry bag containing a fairly large rectangular object. This meeting was admitted by appellant. During the testimony of Mr. Pak, trial counsel asked him, “While you talked with [appellant], how was he acting?” Mr. Pak answered, “He told me that he was the CQ, and it was cassette.” Appellant objected that no warnings pursuant to Article 31(b) had been given. The military judge denied a subsequent motion for a mistrial by appellant in which he had argued that the response was improper and that an instruction could not cure the error. There were no specific findings by the military judge as to whether the statement was illegally obtained; rather he assumed that Mr. Pak’s answer was improper, and instructed the members to completely disregard it.

We are confronted, thus, even before resolution of the granted issue, with the question of the admissibility of this evidence of appellant’s pretrial statement. This need not detain me long, for the adequate evidentiary record conclusively demonstrates to me no suspicion on the part of Mr. Pak that appellant had committed any offense. The test to determine if a person is a suspect is whether, considering all facts and circumstances at the time of the interview, the government interrogator³ believed or reasonably should have believed that the one interrogated committed an offense. United States v. Anglin, 18 U.S.C. M.A. 520, 523-24, 40 C.M.R. 232, 235-36 (1969). Only servicemembers suspected of a crime must be given Article 31(b) warnings before official interrogation. United States v. Graham, 21 U.S.C.M.A. 489, 45 C.M.R. 263 (1972); United States v. Henry, 21 U.S. C.M.A. 98, 44 C.M.R. 152 (1971). Thus, I conclude that evidence of appellant’s pretrial statement that prompted the request for mistrial was not obtained in violation of appellant’s right under Article 31(b) of the Code.

This conclusion, therefore, makes it unnecessary for me to rule specifically on the validity of the adverse ruling on appellant’s motion for a mistrial. The decision of the United States Army Court of Military Review is affirmed.

Footnotes

1

. Appellant was tried at Camp Casey, Republic of Korea, before a special court-martial composed of officer members and found guilty of two larceny charges, in violation of Article 121, Uniform Code of Military Justice, 10 U.S.C. § 921. He was sentenced to a bad-conduct discharge, confinement at hard labor for 6 months, forfeiture of $298 pay per month for 6 months, and reduction to the grade of E-l. The convening authority approved the sentence and the court below affirmed.

2

. Uniform Code of Military Justice, 10 U.S.C. § 831(b).

3

. We need not rule here whether Mr. Pak, as a contract security guard, qualified as a United States Government interrogator within the meaning of Article 31(b).

3

. “An instruction not objected ... to ... must for the purposes of the case be taken as the law. Right or wrong, the instruction becomes the law of the case and is binding upon the jury ... as well as on the court and counsel.” 75 Am.Jur.2d, Trial § 927 (footnotes omitted). See United States v. Holcomb, 18 U.S.C.M.A. 202, 207, 39 C.M.R. 202, 207 (1969). Cf. United States v. Tapio, 634 F.2d 1092, 1094 (8th Cir. 1980). See also United States v. Starr, 1 M.J. 186 (C.M.A.1975), where we held that evidence which was erroneously excluded could not be considered on the merits, but the correctness of the exclusion could be considered to show “that other evidence which has been admitted is not illegally tainted.” Id. at 190.