United States v. Speer

2 M.J. 1244, 1976 CMR LEXIS 931
CourtU S Air Force Court of Military Review
DecidedJanuary 23, 1976
DocketACM 21915
StatusPublished
Cited by7 cases

This text of 2 M.J. 1244 (United States v. Speer) is published on Counsel Stack Legal Research, covering U S Air Force Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Speer, 2 M.J. 1244, 1976 CMR LEXIS 931 (usafctmilrev 1976).

Opinion

DECISION

ORSER, Judge:

Tried by a general court-martial, the accused was convicted, despite pleas to the contrary, of a single offense of larceny of lawful currency and postal money orders of the United States valued at $15,649.52, in violation of Article 121, Uniform Code of Military Justice, 10 U.S.C. § 921. The approved sentence provides for a bad conduct discharge, confinement at hard labor for one year, forfeiture of all pay and allowances and reduction to the grade of airman.

Appellate defense counsel have invited our attention to eight assertions of error advanced on the accused’s behalf by his trial defense counsel and have submitted a brief in support of two. In our judgment, all but two of the errors urged are either without merit or were considered by the staff judge advocate in his review and properly resolved adversely to the accused. Further discussion herein is accordingly unwarranted.

The first of the remaining errors we here address contends:

the military judge erred to the prejudice of the accused in unduly limiting cross-examination of government witness Heck as to statements made to him by the accused during a continuing dialogue concerning the offense.

During the direct examination of a Major Heck, the trial counsel elicited testimony that on two separate occasions, some four months apart, the accused, in the course of routine conversations, volunteered incriminating statements respecting the offense for which he was tried. On the first occasion, he expressed the notion of being perplexed that though he was accused of taking approximately $15,000.00, he could only recollect having taken some $12,000.00. On the second occasion, he spontaneously stated he intended to plead guilty at his forthcoming trial as he believed, testified Major Heck, that “he had some moral obligation to himself to admit to the guilt of this.”

During the cross-examination of Major Heck, the defense counsel made an effort to [1246]*1246elicit exculpatory statements respecting intent the accused may have voiced during their conversations. The trial counsel objected and, following argument, the military judge permitted the defense counsel to educe such information only if it was related to the two conversations referenced by the witness in his direct examination, or at most, provided the utterances occurred on the same days as the other conversations. Within this limitation, the witness was permitted to testify that on both occasions, the accused indicated he intended to return the money he had taken. And, in a negative sense, on neither occasion did the accused indicate in any manner that he intended to keep any of the money he had appropriated. The defense counsel was not permitted to question the witness respecting other statements of a similar self-serving nature the accused may have made in the course of unrelated conversations.

As correctly noted by the staff judge advocate in his review and applied by the military judge at trial:

If only part of a confession or admission or supposed confession or admission of the accused is shown, the defense by cross-examination or otherwise may introduce all other parts of the statement— which may consist of a connected series of statements — that are explanatory of, or in any way relevant to, that part. Manual for Courts-Marital, 1969 (Rev.), paragraph 140a (6).

Within this rule, after Major Heck related the accused’s oral incriminating statements, any exculpatory, or self-serving statements the accused may have made contemporaneous with, or in any manner related to the admissions, were admissible in explanation of his intent at the time he took the property in issue. Furthermore, as we recently pointed out in United States v. Smith, 50 C.M.R. 634 (A.F.C.M.R.1975), “under military rules of evidence . . . exculpatory, or self-serving statements of an accused are admissible when they are not made under circumstances indicative of insincerity or are not inherently improbable and unworthy of belief.” Citing Manual for Courts-Martial, supra, paragraph 142d; United States v. Hoy, 12 U.S.C.M.A. 554, 31 C.M.R. 140 (1961); 4 Wigmore, Evidence, sec. 1144 (Chadbourn Revision). Moreover, and focusing directly on the issue here involved, “under the current Manual rule, it is not even necessary to show, as a prerequisite to its admissibility, that an exculpatory statement was connected or related to an accused’s incriminating statement.” United States v. Smith, supra, at page 636.

On the basis of this latter application of the principles discussed, the military judge was overly restrictive in limiting the defense to eliciting possible exculpatory or self-serving statements of the accused only if made in connection with, or on the same day as his incriminating ones. Having so concluded does not, however, necessitate remedial action, for we are convinced the accused suffered no prejudice.

In our judgment, even if the defense had been permitted to attempt to elicit further identical or similar exculpatory statements made by the accused to witness Heck, (and as we read the record that is precisely what counsel had in mind) such testimony, though certainly relevant, would have been largely repetitive. Moreover, in addition to the exculpatory statements respecting the accused’s intent concerning which Major Heck was permitted to testify, the accused, in his own testimony, insisted he at all times intended to eventually return the ever increasing sums of money he withheld •from the Government. In the circumstances, we are satisfied the defense placed before the court all evidence having a significant bearing on the accused’s intent.

The final assigned error warranting our attention asserts:

the military judge’s instruction on proof of intent was inadequate and misleading.

After properly instructing the court members on the elements of larceny, as well as the lesser included offense of wrongful appropriation, the military judge, at the request of the trial counsel as to the first sentence and the defense as to the second, further instructed:

[1247]*1247An intent to permanently deprive may be inferred from a wrongful and intentional dealing with the property of another in a manner highly likely to cause him to suffer permanent loss thereof. You are, however, cautioned that it is the intent of the accused at the time of the wrongful withholding that governs.

During an Article 39(a) session which preceded the findings instructions, the defense counsel objected to the instruction proposed by the trial counsel. The defense argued, both at trial and on this appeal, that such instruction tends to erroneously make the matter of the accused’s intent in larceny an objective rather than a subjective matter. Their position, in essence, is that whereas the critical consideration is what was actually in the accused’s mind at the time of the taking of the property, the challenged instruction would permit a conviction simply upon application by the court of a “reasonable man” test. In other words, the instruction created a risk of conviction if the court members determined that the accused’s conduct made it “highly likely” the property was gone forever, irrespective of whether or not he, in fact, intended to return it.

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Bluebook (online)
2 M.J. 1244, 1976 CMR LEXIS 931, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-speer-usafctmilrev-1976.