United States v. O'Such

16 C.M.A. 537, 16 USCMA 537, 37 C.M.R. 157, 1967 CMA LEXIS 341, 1967 WL 4216
CourtUnited States Court of Military Appeals
DecidedMarch 10, 1967
DocketNo. 19,339
StatusPublished
Cited by18 cases

This text of 16 C.M.A. 537 (United States v. O'Such) 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. O'Such, 16 C.M.A. 537, 16 USCMA 537, 37 C.M.R. 157, 1967 CMA LEXIS 341, 1967 WL 4216 (cma 1967).

Opinions

Opinion of the Court

Ferguson, Judge:

Convicted of premeditated murder, in violation of Uniform Code of Military Justice, Article 118, 10 USC § 918, the accused was sentenced to dishonorable discharge, forfeiture of all pay and allowances, confinement at hard labor for life, and reduction. On his appeal, this Court granted his petition for review upon the following issues:

1. WHETHER THE EVIDENCE IS SUFFICIENT TO ESTABLISH ACCUSED’S GUILT OF PREMEDITATED MURDER.
2. WHETHER THE BOARD OF REVIEW CORRECTLY FOUND ACCUSED HAD MADE ORAL ADMISSIONS OF HIS GUILT AND, IF SO, WHETHER SUCH WERE VOLUNTARY.
3. WHETHER ACCUSED WAS DEPRIVED OF HIS RIGHT TO COUNSEL, THE INVESTIGATION INVOLVING HIM HAVING REACHED AN ACCUSATORY STAGE.1

I

On the morning of June 16, 1963, Sergeant Michael W. Stack was found dead near Koza City, Okinawa. Death resulted from injuries which he suffered as a result of three gunshot wounds, two of which were fired into his back. These were inflicted by a .45 caliber automatic pistol. The evidence tended to indicate the homicide occurred at approximately 11:15 p.m. on June 15, 1963.

Stack was last seen with the accused on the evening of June 15. The weapon with which Stack was slain was found in accused’s place of duty, in a safe to which he had access. It was also shown that accused had previously sought to obtain another barrel for a .45 caliber automatic pistol and had possession of proper ammunition prior to the slaying. More significantly, the deceased’s identification card and liberty card were found concealed in the office in which accused worked, and, upon his arrest as a suspect, a promissory note made in deceased’s favor was found in his wallet. It was due on June 25, 1963, along with a large amount of interest. Finally, it was shown by expert testimony that accused’s shoes bore bloodstains of the same type as the victim’s.

In addition, evidence was received that accused, subsequent to his apprehension, admitted killing Sergeant Stack.

II

Appellate defense counsel urge the foregoing evidence is insufficient to establish accused’s guilt of premeditated murder. In so contending, reference is made to conflicts in the evidence and attacks leveled at the credibility of witnesses. But these are matters of no concern to us in measuring the legal sufficiency of the proof. United States v McCrary, 1 USCMA 1, 1 CMR 1; United States v Brand, 10 USCMA 437, 28 CMR 3. We view the evidence as a matter of law and, so examining it, conclude it is sufficient to have permitted the court to find accused guilty as charged. United [540]*540States v Marymont, 11 USCMA 745, 29 CMR 561; United States v Snook, 12 USCMA 613, 31 CMR 199.

In like manner, we dispose of the argument the record does not establish accused made oral admissions of his guilt. To the contrary, it affirmatively demonstrates he admitted killing the deceased. We are not free to disregard that testimony or to hold the board of review, erred in refusing to ignore it. Again, whether such admissions were in fact made was one of credibility to be resolved below and may not be disturbed here. United States v McCrary, supra; cf. United States v Ledlow, 11 USCMA 659, 29 CMR 475.

Ill

We turn, therefore, to the remaining question before us, which inquires whether accused’s pretrial statements were voluntarily obtained. A depiction of the shocking facts surrounding accused’s interrogation is essential to establish the reasons for our conclusion his statements were coerced and, hence, as a matter of law, inadmissible in evidence against him.

During the day of June 16, accused was briefly interviewed by criminal investigators concerning his connection with the deceased on the previous evening and released. Other evidence came to their attention, and he was apprehended at approximately 7:15 p.m. in his barracks. A search of his locker was conducted, and a pair of shoes were seized. He was taken to the military police office, handcuffed, and thence transported to an Army Criminal Investigations Detachment office. There, accused was interrogated until approximately 4:00 a.m. on June 17. He was then escorted to a local “crime lab,” where material was apparently obtained from his skin for various tests. Thereafter, he was redelivered to his unit. The balance of the day was apparently spent in processing O’Such for confinement in the Joint Services Stockade. Authorities there, however, refused to accept him. At approximately 4:00 p.m., he was delivered to the Camp Butler Brig for confinement. There, accused was deprived of all his personal effects, issued a helmet, fatigue clothing and underwear, and marched back to the brig’s segregation cells.

O’Such was then stripped of all clothing except his underwear and confined “in a box more or less.” This cell, normally used for the punishment of recalcitrant prisoners, was approximately seven feet, five inches in depth and four feet, ten inches wide. It had a sloping ceiling varying in height from eight feet in the front to seven feet, six inches in the rear. It was constructed of concrete block on all four sides. At the rear, high on the wall, was a small ventilation slit, hooded to prevent the admission of light. Its door was of solid construction and contairied an additional ventilation slit and a screened opening through which the cell’s inhabitant might be viewed. Both these openings were also hooded to prevent the admission of light.

The cell’s sole furniture consisted of a wooden board, seventy-six inches long and thirty inches in width. It was realistically portrayed by one witness as “a section . . . out of a bowling alley. Actually it was a hard chunk of wood.” At night, however, accused was furnished with only a thin mattress on which to sleep. He had no other bedding or covering. In short, the facilities were those used by the brig for the punishment in solitary confinement of prisoners violating prison regulations.2

A special guard post was mounted outside accused’s cell. Personnel manning it were instructed to observe the accused at all times. During the day, he was to be watched constantly through the door grating. At night, a flashlight was to be played on him at five minute intervals, by sliding open the hooded screen. The discipline maintained over the accused was identical to that inflicted as a penal measure on one in solitary confinement. [541]*541Thus, for the relevant period, he was deprived of clothing, writing materials, reading materials, and his smoking severely limited. In addition, he was not permitted to lie down on his slab between reveille and retreat. '

The accused remained confined under these conditions until June 18. At the trial, he testified that, while he attempted to obtain rest during this period, he was not permitted to do so in the daytime and could not do so at night, due to the noise and light involved in the five-minute checks. He also complained, albeit less stringently, of the cold food furnished him, and the indignities inherent in the conditions under which he was held.

On the evening of June 18, he was released from the “black box” and returned to the custody of criminal investigators and counterintelligence agents. He was once more interrogated until approximately 11:45 p.m., with, however, occasional breaks being taken.

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Cite This Page — Counsel Stack

Bluebook (online)
16 C.M.A. 537, 16 USCMA 537, 37 C.M.R. 157, 1967 CMA LEXIS 341, 1967 WL 4216, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-osuch-cma-1967.