United States v. Sessions

10 C.M.A. 383, 10 USCMA 383, 27 C.M.R. 457, 1959 CMA LEXIS 302, 1959 WL 3650

• Court: United States Court of Military Appeals
• Decided: May 1, 1959
• Docket: No. 12,551
• Status: Published

Opinions

Opinion of the Court

Homer Ferguson, Judge:

Upon their joint trial by general court-martial, the accused were convicted of two specifications alleging forgery of checks, in violation of Article 123, Uniform Code of Military Justice, 10 USC § 923, and were sentenced to a dishonorable discharge, partial forfeiture for two months, confinement at hard labor for eighteen months, and reduction to the lowest enlisted grade. Following approval by the convening authority, this sentence was affirmed by the board of review. Acting pursuant to authority granted by Article 74(a) of the Code, supra, 10 USC § 874, The Judge Advocate General of the Air Force has suspended execution of the punitive discharge of each accused until release from confinement.

The facts upon which the convictions rest, and those upon which our decision turns, are clear.

Master Sergeant Lee R. Walden maintained a checking account at the Yokota Branch, Chase Manhattan Bank. When he received his statement from that facility covering his June 1957 transactions, he discovered two cheeks which he had not drawn had been charged against his account. Each was dated “June 1, 1957,” was payable to “Harlam H. Kennedy,” in the sum of $50.00, and bore the signature of “Lee R. Waldren” as maker. These checks were endorsed “Harlam H. Kennedy” and were cashed at the Johnson Air Base Facility of the Chase Manhattan Bank by a cashier who was unable to identify the individual presenting them.

The checks were examined by a handwriting expert assigned to the Military Police Laboratory, Camp Fuchinobe. Infrared photography disclosed that a serial number customarily affixed by the Bank as a means of identifying an account had been obliterated from each check prior to presentation. The Bank’s records disclosed the checks were issued to the accused, Brown, on June 1, 1956. He became a suspect and thereafter voluntarily supplied samples of his handwriting and printing. Exemplars of the accused, Sessions, were also obtained. Upon analysis, the handwriting expert concluded each had written or printed portions of the checks in question.

A few days after Sessions submitted his exemplars, Special Agents Hanson and Gaines, Office of Special Investigations, proceeded to the quarters occupied by Sessions and his wife on the base, to conduct a search of the premises. When the prosecution sought to elicit the testimony of Hanson relative to the results of this search, counsel for the accused interposed an objection for no evidence of authorization for the search was before the court-martial. Thereupon, Hanson testified he had the verbal permission of the Base Commander. His complete testimony on this subject is as follows:

“Q Mr. Hanson, you stated that you searched the quarters of Sergeant Brown in the barracks and that you searched Sergeant Sessions’ residence; is that correct?

“A That is correct, sir.

“Q I see. What, if anything — ■ Strike that, please. Did you have authority for this search ?

“A Yes, sir; I did.

“Q Would you explain this, please," to the court in your own words.

“A This authority came verbally. Just prior to the search it was followed by written authority from the Base Commander of Yokota Air Base signed the following day.

“Q Now, you have stated that you received verbal permission to conduct the search; is that correct?

“A That is correct.

“Q Arid whorn did you talk to?

“A Whom did I talk to?

“Q Yes.

“A On the seax*ch?

“Q To get the authorization for the search.

“A Mr. Heller, detachment commander.

“Q You talked to Mr. Heller?

“A Mr. Heller personally called.

“Q Now, just a moment, please. I just asked you who you contacted. Did you personally talk to the Base Commander prior to making the search?

“A No, sir; I did not.

“DC: I object to what has been marked as Prosecution Exhibit 8 for identification.

“LO: Do you have any further argument ?

“TC: I have no discussion on this point. No, sir.

EXAMINATION BY THE COURT

“Questions by the Law Officer:

“Q Mr. Hanson, you say that there was a written authorization for the search?

“A Yes, sir.

“Q Subsequently?

“A Yes, I had the authority. I have the authority with me now.

“Q When was that executed?

“A The following day.

“Q Who signed it?

“A Colonel Johnston, Base Commander.

“Q He is the Base Commander?

“A Yes, sir; at that time he was.

“LO: The objection is overruled.”

The exhibit (Prosecution Exhibit 8) thus received contained words and letters in a handwriting identified by the expert as that of the accused. It was in this form:

“I have I ha a Walden den Walden Walden Walden Walden Walden den Walden.”

Each accused was a witness in his own behalf. Sessions denied any par-ticpation in the forgery. Adverting to Prosecution Exhibit 8, he explained that after he had supplied specimens of his handwriting, he and his wife jotted down some of the words he had been requested to write by the investigators. They then compared their handwriting to determine whether they could detect any similarities. Because so little of the sheet he had used was marked, he saved it for the children to use as scrap paper. This was observed when the premises were searched and was discarded immediately thereafter by his wife in an effort to clean up “the confusion of paper” produced by the search. Sometime thereafter the agents returned and took the exhibit.

A more complete description of the circumstances of this discovery is found in the testimony of Agent Hanson as stipulated by the parties. He was informed of the paper by Gaines after the search was completed. So he returned to Sessions’ quarters, was admitted, and was given the paper by the accused after the agent had informed him of the object of his return.

The accused, Brown, also denied complicity. He acknowledged that in June 1956 he had opened a checking account in the bank and had received a book of checks bearing the number appearing on the forged instruments. However, he averred that shortly thereafter he had closed the account and had discarded the unused checks.

The importance of the challenged evidence to the prosecution’s case against Sessions cannot be overemphasized, for it was relied upon by the prosecution as the sole support of the handwriting expert’s testimony. The latter testimony need not be reviewed in detail, since sufficiency of the evidence is not the subject of this appeal. However, it must be observed that standing alone it was far from convincing and could not possibly be described as compelling.

Whenever an accused challenges the receipt of evidence obtained upon a search, the prosecution must affirmatively estab-lish the justification for the search to the satisfaction of the law officer. United States v Berry, 6 USCMA 609, 20 CMR 325; United States v Weaver, 9 USCMA 13, 25 CMR 275. The latter passes on this question as an interlocutory matter (Article 51(b) of the Code, supra, 10 USC § 851) and his ruling is reviewable only for abuse of discretion. But this discretion is to be exercised in the light of the evidence before him at the time he makes his ruling. United States v Richard, 7 USCMA 46, 21 CMR 172.

The instant record reflects no tenable basis for a claim of the right to search other than that urged by Agent Hanson at the trial, namely, a specific authorization by the Base Commander. A contention by the Government to the effect that the accused consented to the second search in which the exhibit was seized is immediately rejected. There was no such contention made at the trial and nothing reflected by this record even remotely suggests such a possibility— the second search was well under way before the object thereof — Prosecution Exhibit 8 — was mentioned.

Hanson’s testimony on the question was initiated by the positive declaration that the search was verbally authorized. He took pains to omit, it seems to us, the source of this verbal authorization, and certainly he was careful to stress the existence of a written authorization issued subsequent to the search by the Base Commander. When pressed in cross-examination to disclose the source of his authority, he parried with equivocation, and finally acknowledged that he had spoken only to his Detachment Commander. Although he stated the latter had “personally called,” he failed to identify the person called or even the subject of the call. Throughout his brief testimony on the subject, he never once positively identified the source of the authority relied upon, but very obviously sought to leave the inference the Base Commander had authorized the search. This falls far short of the standard of evidence the Government must produce to sustain its burden of establishing justification of a search.

If we were to credit the testimony with justifying, even slightly, the inference the agent sought to suggest, that slender reed would not support the Government’s position. It is fundamental learning that statements of others not under oath, and not in court subject to cross-examination, are inadmissible when offered to prove the truth thereof. United States v Mounts, 1 USCMA 114, 2 CMR 20; paragraph 139a, Manual for Courts-Martial, United States, 1951. In this case, the witness could testify that Major Heller had authorized the search only if such authority was vested in Major Heller, for only the fact of that statement, not its truthfulness, is material. However, he cannot testify that Major Heller had told him the Base Commander had told Major Heller the search was authorized. This is hearsay of the rankest sort, yet it is the most that can be inferred from the testimony before us.

The Government argues that Hanson’s reference to the “written authorization for the search” is sufficient to establish justification to the required degree. In this connection, we are told the allied papers contain a photostatic copy of the authorization relied on now as confirmatory of the verbal permission granted earlier. The trouble with this argument is that it overlooks the basic requirement that evidence, to be considered by a court-martial and by appellate tribunals, must be in the record, not retained in the pocket of the witness. United States v Scales, 10 USCMA 326, 27 CMR 400.

We conclude, therefore, that the law officer’s ruling in receiving the challenged evidence lacked any foundation in the record. It constituted an abuse of discretion and was erroneous. This conclusion brings us to a consideration of the final point of the case — the possibility of prejudice to each of the accused.

This is not, as the Government argues, a case in which the evidence, apart from the challenged exhibit, compellingly establishes guilt. - Indeed, the only other evidence linking Sessions to the crime was that supplied by the handwriting expert. His testimony was seriously attacked upon cross-examination, and the basis for the conclusion he expressed was all but destroyed by the defense counsel. Under these circumstances, only invocation of a theory of waiver arising out of the accused’s testimony in open court can sustain the conviction.

As to this, our decision in United States v Haimson, 5 USCMA 208, 223, 17 CMR 208, is control-ling. There, in its attempt to rebut evidence of the accused’s good character, the Government was permitted to introduce evidence of specific acts of misconduct allegedly committed by him. When this was questioned on appeal, it was contended that the accused had waived any error by returning to the witness stand in an effort to refute the extraneous allegations. Speaking through Judge Brosman, the Court declared :

“. . . There is doubtless authority for the position that the defense objection afforded an adequate protection to Captain Haim-son, and that — when affirmative evidence bearing on the same incidents was offered thereafter — he waived the right to object in this Court. However, we are unwilling to hold the defense to an ‘all or nothing’ reliance on the soundness of its objection in the persent sort of situation, and cannot agree that the accused should be compelled to entrust the correction of the error to the sometimes untender mercies of reviewing authorities — with, at best, the concomitant necessity to undergo a rehearing. We are sure that in electing the course he chose, the accused did not intend thereby ‘to fight this issue out at the trial level’ — as the Government contends —and to forfeit the right to have the law officer’s admissibility ruling reviewed on appeal.”

The same principle applies to the case at bar. Evidence obtained as the result of a challenged search, unjustified by any showing made at the trial level, put the accused in the position of “explaining” that which should never have been before the court-martial. The necessary effect of this was to divert the court’s thinking processes to the point where it was willing to conclude that where there is so much smoke, there must be fire. Sound judgments are not based upon such foundations. Convictions so predicated cannot stand.

The prejudice to the accused, Sessions, having been shown, we turn to a consideration of the effect of this error upon the co-accused, Brown. At the threshhold of this consideration, we are met by a Government contention that the case of United States v Bass, 8 USCMA 299, 24 CMR 109, shows with definitiveness that Brown has no standing to complain inasmuch as he had no proprietary interest in the premises searched. If our problem turned solely on whether Brown could suppress the illegally seized exhibit, an unbroken chain of precedent would support the Government’s position. Holt v United States, 42 F 2d 103 (CA 6th Cir) (1930). In re Nassetta, 126 F 2d 924 (CA 2d Cir) (1942); Grainger v United States, 168 F 2d 236 (CA 4th Cir) (1946); Gaskins v United States, 218 F 2d 47 (CA DC Cir) (1954); Lovette v United States, 230 F 2d 263 (CA 6th Cir) (1956). But we are not at all concerned with that problem here. Having determined that the questioned evidence was improperly received, our inquiry is simply whether that error adversely affected the substantial rights of either or both of the accused. As we have seen, Sessions was prejudiced. We further conclude that the effect upon Brown was equally noxious.

The specifications allege joint offenses; the proceedings resulting in their conviction was a joint trial; in addition to the handwriting testimony, the Government relied upon but a single item of corroborating evidence: As to Sessions, Exhibit 8; as to Brown, the identification number upon the reverse side of the checks. In the main, therefore, these accused were intimately linked in the substance and the form of the Government’s presentation. The position of each accused at trial served to join them together in a strong common bond. Each unequivocally denied his guilt, and each declared he knew the other only slightly and solely in connection with the performance of military duties. In these circumstances, permitting hearsay evidence which tends strongly to destroy the veracity of Sessions — were his explanation thereof rejected — would have the necessary effect of destroying Brown’s claim that his association with Sessions was on an altogether official basis.

When two accused are so intimately linked at trial, and when the evidence is in such delicate balance, it is impossible to say with any degree of certainty that the prejudicial effect of improperly received evidence was limited to a single accused. Cucchia v United States, 17 F2d 86 (CA5th Cir) (1927); United States v Kidd, 153 F Supp 605, 610 (WD La) (1957).

The decision of the board of review, as to each accused, is reversed. A rehearing may be ordered.

Chief Judge Quinn concurs.