United States v. Vandermark

14 M.J. 690, 1982 CMR LEXIS 894
CourtU.S. Navy-Marine Corps Court of Military Review
DecidedAugust 12, 1982
DocketNMCM 82 0588
StatusPublished
Cited by2 cases

This text of 14 M.J. 690 (United States v. Vandermark) is published on Counsel Stack Legal Research, covering U.S. Navy-Marine Corps 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. Vandermark, 14 M.J. 690, 1982 CMR LEXIS 894 (usnmcmilrev 1982).

Opinion

ABERNATHY, Senior Judge:

Appellant was convicted at a special court-martial bench trial of sixteen specifications of failure to go to his appointed place of duty and two periods of unauthorized absence totalling nearly seven months, all violations of Article 86, 10 U.S.C. § 886, Uniform Code of Military Justice (UCMJ). The court sentenced appellant to a bad-conduct discharge, forty-five days confinement at hard labor and the forfeiture of $330.00 pay per month for four months. Reviewing authorities approved the sentence as adjudged. At trial appellant, through his own testimony, raised the affirmative defense of duress for the alleged periods of unauthorized absence. His single assigned error challenges the striking of that testimony by the military judge, leaving appellant without evidence of record to support his defense. We find the assignment to be without merit, but since it addresses a first impression interpretation of Mil.R.Evid. 301(f)(2), a discussion is in order. The error as assigned is that:

THE MILITARY JUDGE IMPROPERLY STRUCK THE APPELLANT’S TESTIMONY, TO THE APPELLANT’S SUBSTANTIAL PREJUDICE, WHEN:
A. HE DENIED GOVERNMENT COUNSEL’S REQUEST TO WITHDRAW ITS MOTION TO STRIKE.
B. HE MECHANICALLY APPLIED RULE 301(f)(2) MRE WITHOUT DUE REGARD TO THE FACTS OF THE CASE.
C. HE RULED THAT THE QUESTION POSED BY GOVERNMENT COUNSEL TO THE APPELLANT, WHO REFUSED TO ANSWER, WAS RELEVANT TO THE DEFENSE OF DURESS.

The accused voluntarily took the stand for the limited purpose of testifying in defense of the two unauthorized absence specifications. Appellant stated that he owed a substantial amount of money to some shipmates and that one of his creditors had threatened bodily harm if payment was not tendered. Furthermore, appellant claimed that this creditor had, on one occasion, actually assaulted him and another creditor had threatened to throw the accused overboard. Appellant extensively described his sense of fear that these threats would materialize into seriously harmful action. The accused also testified that he’d often spoken with the ship’s chaplain and an NIS agent concerning these threats in a three week period [692]*692between the assault and his unauthorized absence. In an attempt to establish an early termination date appellant also testified that he had turned himself in to the U. S. Consulate in Palma, Spain.

On cross-examination trial counsel questioned appellant in detail about the alleged debts, probing appellant’s financial background in relation to his ability to pay as well as establishing the fact that appellant owed money to several other shipmates. Counsel then asked appellant why he owed these amounts of money. Defense counsel objected on grounds of relevance. Trial counsel argued that the questions were relevant because they related to whether the accused knowingly or negligently placed himself in a position where coercion would be probable and because this line of questioning had a direct bearing on the defense’s contention of a reasonably well grounded apprehension of bodily harm.

The military judge researched trial counsel’s proposition and concluded that the government’s argument was persuasive. Defense counsel then expressed an intention to exercise appellant’s right to remain silent since he contemplated revelation of uncharged misconduct by the prosecution’s line of questioning. The trial judge expressed an inclination to strike appellant’s entire testimony upon proper motion and informed appellant of the potential results this action might have upon his case. After a short recess to discuss the matter, appellant persisted in exercising his right to remain silent with respect to any further cross-examination. Trial counsel’s motion to strike appellant’s testimony pursuant to Mil.R.Evid. 301(f)(2) was then granted.1 Appellant asserts here that the questions, why he owed the money, were immaterial to his direct testimony and also argues that the military judge abused his discretion by striking all of appellant’s direct testimony. We disagree for the reasons which follow.

Mil.R.Evid. 301(f)(2) states:

If a witness asserts the privilege against self-incrimination on cross-examination, the military judge, upon motion, may strike the direct testimony of the witness in whole or in part, unless the matters to which the witness refuses to testify are purely collateral.

As noted in the editorial commentary on this Rule in SALTZBURG, SCHINASI, and SCHLEUTER, MILITARY RULES OF EVIDENCE MANUAL (1981), it is not clear to those commentators what happens when an accused is the witness who takes the stand and refuses to answer questions on cross-examination.

Mil.R.Evid. 301(f)(2) is a codification of a long-standing common law rule of evidence which is well-established in civilian and military practice.2 The rule’s language, the drafter’s analysis, editorial commentary, and the civilian and military judicial cases which are the basis for the rule, provide an excellent insight for its application in the present circumstances where the recalcitrant witness is the accused himself.3

[693]*693An accused who takes the stand and voluntarily testifies on his own behalf waives his privilege against self-incrimination with respect to all relevant matters raised by his direct testimony. Brown v. United States, 356 U.S. 148, 154-156, 78 S.Ct. 622, 626-627, 2 L.Ed.2d 589 (1958). This general rule is founded upon cogent considerations which balance the privilege against self-incrimination and the importance of cross-examination as a trial’s most important tool for arriving at the truth through reliable evidence. See generally United States v. Panza, 612 F.2d 432, 436-439 (9th Cir. 1979).

The accused’s right to testify has never been an unqualified one. While it is a basic right in our system of justice, it overlaps other fundamental interests,4 including a most significant limitation that by testifying the accused opens himself to cross-examination on all matters reasonably related to his direct testimony. For this reason, an accused’s decision to take the stand may be a difficult one. Mr. Justice Frankfurter, in United States v. Brown, supra 356 U.S. at 155-56, 78 S.Ct. at 626-627, put the issue in this manner:

“[A] witness has the choice, after weighing the advantage of the privilege against self-incrimination against the advantage of putting forward his version of the facts and his reliability as a witness, not to testify at all. He cannot reasonably claim that the Fifth Amendment gives him not only this choice but, if he elects to testify, an immunity from cross-examination on the matters he has himself put in dispute. It would make of the Fifth Amendment not only a humane safeguard against judicially coerced self-disclosure but a positive invitation to mutilate the truth a party offers to tell.”

An accused as a witness is distinguishable from a non-party witness, since an accused has the right not to testify at all.

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Related

United States v. Welker
37 M.J. 1066 (U.S. Navy-Marine Corps Court of Military Review, 1993)
United States v. Ray
15 M.J. 808 (U.S. Navy-Marine Corps Court of Military Review, 1983)

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Bluebook (online)
14 M.J. 690, 1982 CMR LEXIS 894, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-vandermark-usnmcmilrev-1982.