United States v. Morrison

3 M.J. 408, 1977 CMA LEXIS 8694

• Court: United States Court of Military Appeals
• Decided: October 3, 1977
• Docket: No. 33,177; NCM 76-0783
• Status: Published

Opinions

Opinion of the Court

COOK, Judge:

Contrary to his plea, the appellant was convicted by a special court-martial military judge sitting alone of wrongfully possessing marihuana in violation of Article 92, Uniform Code of Military Justice, 10 U.S.C. § 892. This appeal questions the adequacy of the staff judge advocate’s post-trial review.

Warrant Officer Avery testified that the appellant was interviewed on September 30, 1975, and during this interview the appellant was asked to consent to a search of his personal effects. Appellant initially refused to consent, but a short time later he changed his mind and executed a consent authorization form. The ensuing search produced a quantity of marihuana and various items of evidence tending to show the appellant’s ownership of the forbidden substance. Although the defense objected to the scope of the search, there was no issue raised as to the validity of the consent. Warrant Officer Avery also testified the appellant was interrogated after the search and advised of his rights. See Article 31, UCMJ, 10 U.S.C. § 831; United States v. Tempia, 16 U.S.C.M.A. 629, 37 C.M.R. 249 (1967). While the appellant initially waived his rights and answered some questions, he subsequently requested a lawyer and the interview was terminated.

In his post-trial review, the staff judge advocate summarized the testimony of all the witnesses. His summary of Warrant Officer Avery’s testimony included those portions which discussed the appellant’s initial refusal to consent to a search and his subsequent request for a lawyer. Additionally, the staff judge advocate repeated the appellant’s initial refusal to consent when he summarized the evidence that was produced by the consensual search. On appeal, the appellant submits these references in the post-trial review were made in a manner which raised an inference of guilt from an assertion of his constitutional rights.

A copy of the post-trial review was served upon the trial defense counsel on February 25, 1976, and no deficiencies in the review were asserted by that counsel. As we observed in United States v. Goode, 23 U.S.C.M.A. 367, 370, 50 C.M.R. 1, 4, 1 M.J. 3, 6 (1975), a failure to submit challenges to the review within 5 days of service “will normally be deemed a waiver of any error in the review.” Accord, United States v. Barnes, 3 M.J. 406 (C.M.A.1977). However, appellants submits that the present ease involves abnormal circumstances which make the doctrine of waiver inappropriate. We disagree.

A perusal of the post-trial review reflects that the staff judge advocate did not state that appellant’s assertion of his rights could be considered as evidence against him. Rather, he merely summarized the testimony which was presented during the trial. Nevertheless, the appellant contends the manner in which the testimony was summarized raises an inference that such an assertion could be so used and, absent specific instructions to the contrary, there is a fair risk that the supervisory authority considered the assertion against him. Even if we assume arguendo the review is subject to the appellant’s present interpretation, at most, the review presents an ambiguity which can be interpreted in both a proper and an improper manner. The trial defense counsel obviously did not interpret the review in the manner urged by the appellant on appeal, as is evident from his failure to submit objection thereto. Thus, a specific statement in a post-trial review that an assertion of a constitutional right can be used against an accused is not involved and we do not now address the issue of whether the Goode waiver rule would be applicable under such circumstances. Compare United States v. Walters, 22 U.S.C.M.A. 516, 48 C.M.R. 1 (1973), with United States v. Martin, 16 U.S.C.M.A. 531, 37 C.M.R. 151 (1967). See also United States v. Moore, 1 M.J. 390 (1976). Accordingly, the present case involves no issue which would preclude the application of the waiver rule announced in Goode.1

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

1 . A majority of the Court has not, as the Chief Judge has in his opinion concurring-in-the-result, reevaluated Article 61 of the Uniform Code of Military Justice and repudiated the provisions in the Manual for Courts-Martial, United States, 1969 (Revised edition), relating thereto and our earlier cases on the subject. Nevertheless, I am impelled, because of ramifications in other areas of court-martial procedure, to declare my specific disagreement with the Chief Judge’s statement in his opinion that the functions of the staff judge advocate “include the responsibilities of being the chief prosecutor.”