United States v. Nelson

23 C.M.A. 258
CourtUnited States Court of Military Appeals
DecidedJanuary 3, 1975
DocketNo. 28,184
StatusPublished

This text of 23 C.M.A. 258 (United States v. Nelson) is published on Counsel Stack Legal Research, covering United States Court of Military Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Nelson, 23 C.M.A. 258 (cma 1975).

Opinion

OPINION OF THE COURT

Ferguson, Senior Judge:

We granted this appellant’s petition for review to consider the question of whether the post-trial review of the staff judge advocate was adequate absent any discussion therein of either of two contested search and seizure issues or a possible grant of immunity to a key prosecution witness.

In a trial by a general court-martial convened by the Commanding General, 3d Infantry Division, at Wurzburg, Germany, the accused pleaded not guilty to offenses alleging extortion, simple assault, sale and possession of morphine, possession of hashish and hydromor-phine, communicating a threat and carrying a concealed weapon, in violation of Articles 127, 128, and 134, Uniform Code of Military Justice, 10 USC §§ 927, 928, and 934. Although acquitting the appellant of the extortion offense, the court composed with members returned findings of guilty on all the remaining charges and specifications and sentenced appellant to a dishonorable discharge, confinement at hard labor for 5 years, forfeiture of all pay and allowances, and reduction to pay grade E-l. The convening authority approved but the United States Army Court of Military Review, after likewise affirming the findings, reduced the confinement portion to 2 years while otherwise affirming the remaining portions of the sentence as adjudged.

The principal figure in the Government’s entire case against this appellant was a Private First Class Garry L. Stephenson, an admitted user of drugs on a rather extensive basis. In addition to providing the only direct testimony bearing on the majority of these charged offenses, PFC Stephenson was formerly instrumental in providing military authorities with the information upon which probable cause for two searches of the appellant were predicated. By a motion for appropriate relief to suppress the items seized, the defense contested the legality of both of those searches at [259]*259an Article 39(a) session by contending, inter alia, that Stephenson’s reliability was not sufficiently established by the officers who authorized those searches to meet the requirement of probable cause.1

Based upon the evidence as presented by the prosecution on these motions, the military judge ruled that both of the searches and seizures were valid. The seized items consisting of various drugs and a statement allegedly forcibly obtained from Stephenson at gun point were subsequently introduced into evidence during the Government’s case in chief before the full court.

Apart and aside from this real evidence, which also consisted of two pistols and a pistol clip seized from another soldier, PFC Stephenson was the Government’s only witness. After thus testifying to all offenses except those involving the accused’s alleged possession of prohibited drugs, Stephenson revealed, on cross-examination, his own past drug use and the fact that he had previously provided information and testified as a prosecution witness in other drug cases. Cross-examination of Stephenson continued with the following:

Q. Have you ever been prosecuted for your use of drugs?
A. No, I haven’t.
Q. Why do you think you haven’t been prosecuted?
A. Because I have a piece of paper in my pocket that says I can’t be prosecuted.
Q. How did you get that piece of paper?
A. From Captain Eastburn.2
Q. And this was in order to get you to testify?
A. Right.
Q. And now you can’t be prosecuted?
A. Right.

During its case in chief, the defense repeatedly attacked Stephenson’s credibility by calling a number of witnesses from Stephenson’s platoon and company, mostly senior noncommissioned officers, who all testified that they would not believe Stephenson under oath. The defense also sought to impeach Stephenson by showing prior inconsistent statements concerning the extent and frequency of his admitted drug involvement. No further mention of Stephenson’s purported grant of immunity is contained in the record of these trial proceedings, however, until a subsequent out-of-court session during which proposed instructions were discussed, and the following transpired:

MJ: ... I will of course, include the portion of the instruction relating to the fact that the witness has a grant of immunity for testifying because he has so testified. Although let me state one thing, I think I may have to check the record. I think he stated he had a grant of immunity in the Wright case.
DC: Your Honor, that is correct; however, his belief in his grant of immunity is what is important. His testimony was that he has not been prosecuted for these offenses because he has a grant of immunity in his pocket. Regardless of what that grant of immunity really is, his testimony indicated that he believed his grant of immunity was to testify for all of the acts he did.
TC: I would like to state for a fact, Your Honor, that this witness does not have a grant of immunity.
[260]*260DC: That fact is not before the court.
MJ: I’m aware of that. I don’t think all this argument is necessary. I will advise them that the reason he has not been prosecuted is the fact that he has a grant of immunity in his pocket. I will advise them that was his testimony. I will also advise them that he may be motivated to falsify his testimony in his own self-interest in order to obtain a grant of immunity from prosecution.

In purporting to summarize the prosecution’s evidence as established at trial, the staff judge advocate, except for noting that the drugs which constituted the subject of the unlawful possession offenses were seized during a search of the appellant’s person and wall locker based upon information provided by Stephenson, did not otherwise include in his post-trial review any of the testimony upon which the Government relied in attempting to establish the probable cause for thé two searches. His only reference to the defense motions seeking to suppress those seized items was as follows:

The defense moved to preclude introduction of drugs and pistols seized repeatively, (sic) 28 July 1972 and 19 September 1972 in the course of searches which the defense argued were illegal.3 Following testimony and argument by counsel the Military Judge denied the motion (R 6-58). While the fruits of an illegal search is unquestionably inadmissible in evidence (MCM 1969 (rev) par 152) my study of the record convinces me that the motion was properly denied.

In addition, the staff judge advocate made no mention whatever in his review of the fact that PFC Stephenson had revealed on cross-examination that he was testifying under a grant of immunity.

Regarding the form and content of a staff judge advocate’s post-trial review, paragraph 85,6, Manual for Courts-Martial, United States, 1969 (Rev.), provides the following:

The staff judge advocate or legal officer to whom a record of trial is referred for review and advice will submit a written review thereof to the convening authority.

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Bluebook (online)
23 C.M.A. 258, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-nelson-cma-1975.