United States v. Vogel

18 C.M.A. 160, 18 USCMA 160, 39 C.M.R. 160, 1969 CMA LEXIS 549

• Court: United States Court of Military Appeals
• Decided: March 14, 1969
• Docket: No. 21,811
• Status: Published

Opinions

Opinion of the Court

Quinn, Chief Judge:

The accused’s conduct, while serving as a squad leader of a night combat patrol in Vietnam, led to his trial by a general court-martial for unpremeditated murder of a five-year-old child and rape, in violation of Articles 118 and 120 of the Uniform Code of Military Justice, 10 USC §§ 918 and 920, respectively. He was convicted as charged, but the convening authority dismissed the rape charge and reduced the sentence adjudged by the court-martial to dishonorable discharge, confinement at hard labor for thirty-five years, and accessory penalties. A board of review aifirmed the findings of guilty but further reduced the period of confinement to twenty years. On this appeal, the accused contends he was prejudiced by the admission in evidence of a pretrial statement made by him to a criminal investigator, and by other evidentiary rulings of the law officer.

At trial the accused contended, as he contends on this appeal, that when he was questioned by the criminal investigator he was given incomplete preliminary advice as to his right to counsel during questioning, as that right is explicated in Miranda v Arizona, 384 US 436, 16 L Ed 2d 694, 86 S Ct 1602 (1966). See also United States v Tempia, 16 USCMA 629, 37 CMR 249.

Threshold warning as to the right to remain silent and the right to counsel during questioning is required in situations in which the individual is “subjected to custodial police interrogation.” Miranda, supra, at page 439. The Supreme Court has defined custodial police interrogation as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Id., at page 444. Conversely, it is not required in situations in which the individual is not subject to a police dominated atmosphere and is patently unfettered in his decision to speak or to remain silent. Frohmann v United States, 380 F2d 832 (CA8th Cir) (1967), certiorari denied, 389 US 976, 19 L Ed 2d 469, 88 S Ct 478 (1967); Mackiewicz v United States, 401 F2d 219 (CA2d Cir) (1968), certiorari denied, 393 US 923, 21 L Ed 2d 258, 89 S Ct 253 (1968). One situation recognized by the Supreme Court is when the confession is volunteered. As the Court noted in Miranda, supra, at page 478:

“. . . There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime, or a person who calls the police to offer a confession or any other statement he desires to make. Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by . . . [the threshold warning requirement in custodial interrogation].”

Turning to the evidence in this case it appears that, as a result of a report by two of the victims of the squad’s rapacious conduct, the members of the squad were called to the company office for questioning, after they had returned from the field. The procedure of the inquiry is not noted in the record, but it is manifest that the results were unenlightening, and the accused said nothing of an incriminating nature. About noon the inquiry was suspended, and the accused was instructed to “get cleaned up” and return with the squad at 1:00 p.m. He went to his quarters where he shaved and changed clothes. When the squad members reassembled at the company office, they were taken to the chapel to be addressed by a Major Elkins. They arrived about 1:30 p.m.; the Major arrived about 2:00 p.m. Apparently, in the interval, the accused engaged in some soul-searching; at any rate, he spoke to Major Elkins. His testimony as to the circumstances and the content of this conversation is as follows:

“Q. Did you volunteer to make a statement to Major ELKINS prior to going over to CID?

“A. Yes, sir.

“Q. Did you say you’d like to get it off your chest?

“A. I made it down at the chapel, sir, at 1st Battalion, 5th Marines, sir.

“Q. You told Major ELKINS you got to get it off your chest?

“A. Yes, sir.

“Q. And was this with the same desire that you went in to see Top ELLIS?

“A. Yes, sir.

“Q. You did want to get if [sic] off you chest?

“A. Yes, sir.”

The accused further testified that after he talked to Major Elkins, Elkins drove him to division headquarters in a jeep. He did not consider himself to be “in custody.” On their arrival, Major Elkins took him first to the Division Legal Office. We are not informed as to what transpired at this office, but Major Elkins and Major Bailey, from the legal office, then accompanied the accused to the office of Master Sergeant Charles W. Ellis, Chief Investigator of the Military Police Company. Major Elkins informed Sergeant Ellis that the accused was “willing to talk” about the matters “that had taken place out there.” Apparently, this was the first information Ellis had about these matters. The accused admitted that when he went to see Investigator Ellis he “still want[ed] to get this off . . . [his] chest”; he “wanted to hurry and get it off . . . [his] chest so . . . [he] could get something to eat, get some sleep.”

In our opinion, the accused’s testimony demonstrates that he went to the Military Police with the desire, and for the express purpose, of making a voluntary statement.¹ It is indeed true, as appellate defense counsel stress in their brief, that the accused testified that when he went to talk to Investigator Ellis he was tired, hungry, and scared. Nothing in all of the accused’s testimony about these circumstances, however, casts doubt upon the volun-tariness of his statement. As he himself testified, he simply “wanted to hurry and get it off . . . [his] chest,” so that he could then go and get something to eat. There is no doubt whatever that the interrogation was not initiated by the Government, but by the accused. The accused was not called to the Military Police office for the purpose of questioning, but he had manifestly determined to go because he affirmatively wanted to confess to his part in the patrol’s delicts. Cf. United States v Hardy, 17 USCMA 100, 37 CMR 364. In such a situation, the Supreme Court has said, as we noted earlier, that “[t]here is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime.” Miranda, supra, at page 478. We need not be detained, therefore, by the accused’s contentions that there were imperfections in the threshold advice. Such advice is calculated to overcome the coercive influence of custodial interrogation, and there was manifestly no such interrogation here. On this record, we are entirely satisfied that the Government fully met its burden of demonstrating that the accused’s statement to Sergeant Ellis was given “freely and voluntarily without any compelling influences.” Miranda, supra, at page 478.²

In the course of the presentation of its case, the Government introduced testimony indicating the commission of acts of misconduct by both the accused and members of the patrol other than the two offenses charged to the accused. In part, there was testimony to the effect that the husband of the victim of the rape was killed; that the victim’s sister-in-law was raped; that another child was killed; that the privacy of various Vietnamese homes was invaded, without apparent justification; and that on his return to the command post, the accused made a false report to a superior commissioned officer as to contact with Viet Cong. Defense counsel objected to some of the evidence, but allowed other testimony about the sequence of events to come in without objection. Whether or not all the evidence of other offenses was properly admitted need not be determined. The record of trial demonstrates that none of it was prejudicial to the accused as to the findings of guilty. The rape charge was dismissed, and the accused’s complicity in the murder of the child was compellingly established by other evidence, including his own pretrial statements. We have no hesitancy in concluding that there was no reasonable possibility that the challenged evidence contributed to the outstanding findings of guilty. United States v Johnson, 17 USCMA 479, 38 CMR 277; United States v Kirby, 16 USCMA 517, 37 CMR 137. See also Chapman v California, 386 US 18, 17 L Ed 2d 705, 87 S Ct 824 (1967). Consequently, the findings of guilty of the offense of which the accused stands convicted are unimpeachable.

Left for consideration is the effect of the evidence of other offenses on the sentence. If we assume this evidence was admissible, it was admissible only for a limited purpose. United States v Petty, 3 USCMA 87, 11 CMR 87. This circumstance was recognized by the law officer who instructed the court members specifically on the matter in connection with their deliberations as to the accused’s guilt or innocence. However, in his later instructions on the sentence, the law officer did not remind the court members of the limited purpose for which the evidence was received. In United States v Pender-grass, 17 USCMA 391, 394, 38 CMR 189, we held that it was “the duty of the law officer once more to call the attention of the court to this matter in connection with reaching a proper sentence.” It may be doubted whether, at the time of sentencing, the court’ members recalled the earlier admonition as to the limited purpose of the evidence, or even whether they regarded the instruction as binding upon them in regard to the sentence. United States v Gewin, 14 USCMA 224, 34 CMR 4. The doubt must be resolved in favor of the accused. United States v Kirby, supra, at page 520. We also note that the law officer’s instructions on the sentence extended no further than advising them as to the maximum sentence and the voting procedure; in the circumstances of the case, these instructions were inadequate. United States v Wheeler, 17 USCMA 274, 38 CMR 72. While the sentence was reassessed by the board of review, the reassessment did not take into account the instructional errors. Corrective action, therefore, is still required. United States v Kirby, supra.

The decision of the board of review as to the sentence is reversed. The record of trial is returned to the Judge Advocate General of the Navy for submission to the board of review. In its discretion, the board of review may reassess the sentence in light of this opinion, or order a rehearing thereof before a court-martial.

Judge Darden coucurs.

1 It may also be fairly inferred from the fact that Major Elkins took the accused first to the Division Legal Office that the accused received legal advice before he went to the Military Police office. The dissenting opinion postulates the existence of some kind of taint in the accused’s statements to Major Elkins. The accused’s testimony and the excerpt from the tape of his conversation with Agent Ellis, which is quoted in the dissent, demonstrate that the accused’s disclosures to Major El-kins were uninfluenced by anything save his own decision to tell the truth. See United States v Jackson, 3 USCMA 646, 650, 14 CMR 64; United States v Ledlow, 11 USCMA 659, 29 CMR 475. While it is true, as the dissent points out, that defense counsel argued that bringing the patrol to the chapel “and warning them of their rights” was “moral” compulsion, the plain fact is that the accused made no claim whatever that he was influenced to speak to Major Elkins because he was in the chapel. There is just no evidence of any reason for the accused’s statement to Major Elkins, other than his testimony, quoted in the text, to the effect that he “volunteer [ed] to make a statement to Major ELKINS.”

2 Several days later, the accused made a second statement to Sergeant Ellis. No objection was interposed to the admission of this statement, and the accused admitted it was “part” of the first statement. It is reasonably infer-able that the second statement was prompted by the same considerations which led to the first statement and was an integral part of it. See United States v White, 17 USCMA 211, 38 CMR 9.