United States v. Strong

16 C.M.A. 43, 16 USCMA 43, 36 C.M.R. 199, 1966 CMA LEXIS 300, 1966 WL 4445

• Court: United States Court of Military Appeals
• Decided: March 4, 1966
• Docket: No. 18,821
• Status: Published

Opinions

Opinion of the Court

Kilday, Judge:

Tried on a charge of premeditated murder, the appellant was found guilty of voluntary manslaughter, in violation of Article 119, Uniform Code of Military Justice, 10 USC § 919, and sentenced to confinement at hard labor for thirty-six months, pay loss of $100.00 per month for the same period, and reduction to the grade of E-l. The convening authority adjusted the loss of pay to $46.00 per month and the board of review, while affirming the findings and sentence, noted that the forfeitures would apply to pay becoming due on or after the date of the convening authority’s action.

We granted the appellant’s petition for review to consider whether the law officer erred to the substantial prejudice of the petitioner when he ruled that further contact by counsel and petitioner with adverse witnesses during the court-martial would cease.

At the conclusion of the first witnesses’ testimony, the record reflects the following:

“LO: Sergeant, you are excused at this time subject to recall.

“You are advised that you will not discuss your testimony with anyone which you have given here other than counsel for the government calling you in this ease, and if anyone approaches you for that purpose you will make the fact known to trial counsel so appropriate action can be taken. You will remain under oath and you may be subject to recall later in the case.

“Does the defense desire any further instructions to the witness at this time?

“IC: This is the first time a witness has ever been excused in a case where this question occurred to me — but in this case it’s improper. Can I speak to him? Before he took the stand I could interview him. Now, am I prevented from interviewing him hereafter?

“LO: Ordinarily the sidé calling him adopts him as a witness with limited cross-examination.

“However, you may discuss matters pertinent to the case, your testimony with counsel for either side but with no one else.

“WITNESS: Yes, sir.

“LO: You are now excused.

“(The witness withdrew.)

“LO: Gentlemen of the court, as you realize it is necessary for me to make rulings from time to time on matters both on proffered proof, testimony and the like. You are cautioned not to speculate on the reasons for those rulings or as to what the testimony may be. It cannot be but obvious that the government is seeking to elicit certain testimony which is not admissible in this case, at least in the present posture of the case, and therefore I caution the court quite sincerely that they shall draw no inferences from the exchange and colloquy with respect to this witness, only to testimony actually given.”

The second witness received a similar warning:

“LO: Right. Mrs. Chapman, you are excused at this time subject to recall. You are reminded that you will remain under oath, that you will not discuss your testimony in this case with anyone, the testimony that you have given, or the testimony that anyone else may be going to give in this case. If anyone should approach you with a view to discussing your testimony or theirs, that you refuse to engage in this conversation and report the matter immediately to Captain Hansen, trial counsel, the side calling you as a witness in this case.

“Defense counsel desire that specific authority be given for any further interviews on the part of the defense ?

“IC: We ask that it be given, one, and, two, that Mrs. Chapman be particularly cautioned that the ends of justice will best be served if she doesn’t discuss with her husband, who traveled with her to Zama today and who will be a witness at an early stage in the proceedings, any matters or questions that were covered.

“LO: All right, it may be appropriate, in connection with recall or discussion of the matter, to have some discussion with defense counsel in this case. You are authorized a discussion on the basis similar to discussions prior to the case being brought to trial. I particularly caution you not to discuss this matter with your husband, particularly since he will be a witness later in the case, and I particularly suggest that you do not discuss what you have said here today, or permit him to discuss with you what he may say at such time as he may be called.

“Are these instructions clear?

“WITNESS: Yes, sir, they are.

“LO: You are excused subject to recall.

“(The witness withdrew.)”

There then followed a colloquy concerning the time for convening the court the next day and the court then closed. The following morning, at the request of the defense counsel, the law officer called an out-of-court hearing attended by himself, the accused, counsel for both sides, and the reporter. After handling the matter for which the hearing was requested, the law officer said:

“Since we are having this out-of-court hearing I would also like to mention the fact for the record — as I advised you a few moments ago informally — that I intend to reverse the ruling which I made yesterday to permit adverse counsel to question witnesses who testified in court. I intend to make a brief statement reversing that ruling, pointing out that in the absence of surprise or lack of opportunity for adequate pretrial investigation, the time the witness has testified in court, that further contact with adverse witnesses has ceased and the witnesses are entitled to be protected from such contact and further examination of them by the adverse party will take place on the record in court.

“Does the government have any objection to that?

“TC: No, sir, the government will abide by your brief instruction on the defense witnesses.

“LO: Do you wish to make any objection for the record, Captain Massee?

“IC: Yes, sir, I object to the ruling of the law officer.

“LO: Do you wish to advance any other reason for it?

“IC: No.

“LO: All right.”

When the court opened, the law officer told the court members:

“Gentlemen, before proceeding I want to make a note for the record of a reversal of a ruling I made yesterday. At the request of defense counsel in excusing two witnesses I indicated that witnesses might communicate with counsel for the adverse party as well as the counsel calling him. In reflection overnight I believe this was error on my part. Counsel for the defense has indicated they have not contacted these witnesses. The reason this is error is that in the event there is no showing of surprise or lack of opportunity for pretrial investigation, once a witness is called by one side, thereafter that testimony being in the record, questions by the adverse counsel should be on the record in open court. Consequently, if these witnesses are recalled my instructions to them will be changed, and all future witnesses will be advised in accordance with the standard warning.”

Thereafter, he instructed each witness that he was to discuss the case with no one except the counsel who had called him. Where a witness was utilized by both trial and defense counsel, the warning was broadened to include each.

It is at once apparent that the law officer was acting under the impression that once a witness had testified for one side or the other, opposing counsel was thereafter limited in his right to question that witness to the judicial process of cross-examination, absent a showing of surprise or lack of opportunity for pretrial investigation.

The Government, in its brief, conceded this to be error when it stated that “the ruling of the law officer may have been based upon an incorrect interpretation of the law”; however, it argued that his action “should not constitute grounds for reversal under the circumstances of the case at bar absent a showing of material prejudice to the appellant’s substantial rights.”

We agree with the Government’s concession of error. The rule is quite plainly set forth in paragraph 42c of the Manual for Courts-Martial, United States, 1951:

“Counsel may properly interview any witness or prospective witness for the opposing side in any case without the consent of opposing counsel or the accused.”

The rule is augmented in paragraph 4&g of the Manual, supra, where it provides that:

“Ample opportunity will be given the accused and his counsel to prepare the defense, including opportunities to interview each other and any other person.”

These provisions correctly state the law. United States v Smith, 13 USCMA 105, 32 CMR 105.

In United States v Aycock, 15 USCMA 158, 159, 35 CMR 130, we had occasion to consider the validity of an order by Aycock’s commanding officer that the accused was “ ‘not to contact Airman . . . D- or his wife . . . or discuss the case with them at any time prior to the trial.’ ” Both were prospective witnesses against Aycock on charges then pending. In reviewing and dismissing his conviction for failure to obey this order on the ground that it was unlawful and unenforceable, we reviewed and cited numerous civilian authorities {ibid, pages 160-162) in support of the rule. See also United States v Enloe, 15 USCMA 256, 35 CMR 228, and the cases cited therein, where an Office of Special Investigations (Air Force) Command letter, establishing certain criteria for interviews by defense of OSI agents, was held to be invalid on the ground that it was restrictive of an accused’s right to interview any and all witnesses. Additional citations of authority for this well-established proposition are not deemed necessary as they would merely be redundant.

We are at a loss to understand the reasoning behind the law officer’s ruling. He did not dispute either counsel’s right to interview any and all witnesses prior to trial and there was no suggestion of impropriety on the part of counsel (see United States v Aycock, supra) or any indication of those special circumstances necessitating a limitation on an unfettered, private interview (see United States v Enloe, supra). He quite simply believed this right to be limited, as noted above, once a person has been called as a witness by one side or the other. This view, if it ever had any validity, was quite properly laid to rest and the rule correctly stated by the Supreme Court of Rhode Island in State v Papa, 32 RI 453, 80 Atl 12, 15 (1911):

“. . . Witnesses are not parties, and should not be partisans. They do not belong to either side of the controversy. They may be summoned by one or the other or both, but are not retained by either.”

In Commonwealth v Balliro, 209 NE2d 308, 315 (Mass) (1965), the Supreme Judicial Court of Massachusetts stated:

“. . . Witnesses belong neither to the Commonwealth nor to the defence. They are not partisans and should be available to both parties in the preparation of their cases.”

Admittedly, we have cited and discussed cases dealing with pretrial interviews but we do not believe the rule to be different once a witness has taken the stand. No cases or authorities have been called to our attention or disclosed by our research to sustain the law officer’s ruling. To the contrary, Byrnes v United States, 327 F2d 825 (CA9th Cir) (1964), apparently favors our view. Byrnes was tried three times for attempted extortion and soliciting money for the purpose of influencing his actions as they related to his employment as an investigator for the Alcohol Tobacco Tax Division (ATTD), Treasury Department, United States Government. The original conviction was reversed and a new trial granted without explanation. On the second trial, the jury disagreed and a mistrial was declared. Following his third trial, Byrnes alleged that the court erred in denying his motion to dismiss the indictment based on the Government’s intimidation of defense witnesses.

The intimidation charged was based on the original position taken by ATTD that under Treasury Régula-' tions it could not and would not permit its employees to talk about the case. This was modified to permit interviews' with ATTD employees, but only if had in the presence of the United .States Attorney or Regional Counsél for' ATTD. But this second position was modified and the restrictions were lifted prior to the second trial arid remained lifted thereafter.

Byrnes’ attorney desired to interview eight Government employees as prospective witnesses, and the trial judge, at a pretrial hearing, advised each and every one of them that they were under no restrictions and in fact encouraged them to talk. Four of these persons were subsequently called by the defense and three of them by the Government.

The Court of Appeals assumed that the attorneys for Byrnes spoke with those witnesses he desired to speak to prior to the third trial. At least no claim was made by Byrnes prior to trial that any witness refused. We are unaware of the identity of the witnesses at the first or second trial but it is logical to assume that the three who testified for the Government at the third trial also so testified at the prior two. These then, were witnesses called by the Government, and denominated as such, for while this third trial was a separate and distinct action, in which before its commencement witnesses had not yet testified, if necessary their prior testimony could have been utilized in this trial by the Government under certain well-known conditions. See the discussion of the admissibility of prior testimony in United States v Eggers, 3 USCMA 191, 11 CMR 191.

More to the point are decisions by two District Courts of Appeals of California (Walker v Superior Court, 155 Cal App 2d 134, 317 P2d 130 (1957), and Clark v Superior Court, 190 Cal App 2d 739, 12 West’s Cal Reptr 191 (1961)) where it was held that neither the sheriff nor the prosecuting attorney has the right to instruct a witness who had appeared before the grand jury in behalf of the State not to talk to the defendant or his attorney. See also Leahy v State, 111 Tex Crim 570, 13 SW2d 874 (1928).

While, for the most part, we have referred to the right of counsel to interview witnesses, it goes without saying the right is basically that of the defendant since counsel’s participation is dependent upon their relationship.

Having found error herein, our only concern is with whether that error prejudiced the substantial rights of the accused. We do not think it did.

Some suggestion has been advanced that the law officer’s error operated to deprive accused of the effective assistance' of counsel. We do not so evaluate the matter, however, for we find no indication it resulted in even the slightest circumscription of any right the defense desired to exercise.

In United States v Enloe, supra, we found substantial prejudice since the contemplated interview of the Office of Special Investigations agents was an important part of his counsel’s pretrial preparation and, as such, involved his right to be represented by counsel. Here there was no pretrial bar, nor was application ever made to the law officer to reverse his ruling. It should perhaps also be noted that, when counsel had completed examination of the witnesses in open court and they had been released, a request to recall them for further cross-examination would have been, in the ordinary circumstance, a matter within the law officer’s discretion. See United States v Smith, 15 USCMA 416, 35 CMR 388. There is no indication in the record, and nothing is presented on this appeal, to indicate even the remotest interest on the part of the defense to interview the witnesses to determine whether further examination was necessary or desired. Trial defense counsel at no time indicated he desired to interview any witness who had received the warning, nor has there ever been any claim that the law officer’s ruling prevented him from properly and adequately defending his client; the point is not urged by counsel at this or any other level. Leahy v State, supra. See also numerous cases collated in West’s General Digest, Criminal Law, Key 6664, Consultation between accused or counsel and witnesses.

The decision of the board of review is affirmed. •

Chief Judge Quinn concurs.