United States v. Waller

11 C.M.A. 295, 11 USCMA 295, 29 C.M.R. 111, 1960 CMA LEXIS 323, 1960 WL 4469

• Court: United States Court of Military Appeals
• Decided: March 11, 1960
• Docket: No. 13,272
• Status: Published

Opinions

Opinion of the Court

George W. Latimer, Judge:

I

The accused was tried by general .court-martial for rape and sodomy, in violation of Articles 120 and 125 of the Uniform Code of Military Justice, 10 USC §§ 920 and 925, respectively. He was found guilty on both counts and was sentenced to dishonorable discharge, total forfeitures, and confinement at hard labor for seven years. The convening authority and board of review approved the findings and sentence, and we granted accused’s petition to this Court to consider the three following assignments of error:

Whether the law officer erroneously limited defense counsel in his cross-examination of the victim.

Whether the search of appellant’s wall locker and the seizure of its contents by Criminal Investigation Detachment agents was illegal and appellant’s subsequent confession was involuntary and erroneously admitted into evidence.

Whether the instructions on considering the confession were correct.

The issues will be considered in the •order stated, and the facts necessary to a resolution of the questions involved will be stated as each is discussed. For the purpose of orientation, however, we do mention that the sufficiency of the ■evidence to support the findings of guilt :is not involved. The act of intercourse is not in dispute, and the sole issue dividing the parties was whether there was consent on the part of the prosecu-trix. The accused’s pretrial statement, the victim’s testimony, and the independent physical evidence showing force and violence support the findings of guilty of the two offenses.

II

The first assigned error asserts that the law officer erred when he restricted the defense counsel in the cross-examination of the prosecutrix. The facts material to that issue are these. During the course of his cross-examination of the victim, defense counsel asked the following questions and received these answers:

“Q Do you know anybody by the name of William Boyd?

“A No, sir.

“Q Did you ever hear that name before ?

“A No, sir.

“Q Who is William Boyd?

“A It’s a fictitious name that somebody gave me at Fort MeLellan [sic].

“Q What were the circumstances upon which this fictitious name was given to you in Fort MeLellan [sic] ?”

An objection was lodged by trial counsel at that juncture, and the law officer ordered an out-of-court hearing to consider the length to which he would let defense counsel pursue his inquiry. At this hearing, trial counsel requested that the defense make known the purpose of his cross-examination. Defense counsel replied substantially that he did not intend to tip his hand at that time. The law officer then inquired whether the defense intended to show a prior trial for, or conviction of, any offense. Defense counsel replied that he could not produce evidence to that effect but he could show the prosecutrix had on prior occasions made an unwarranted complaint about the conduct of a third party. He admitted his examination would not shed any light on the chastity of the victim, but he thought it might impair her credibility. To present his view in its proper perspective, he offered to disclose his theory and supporting evidence to the law officer in the absence of the prosecution. Trial counsel agreed to the procedure, and a document reflecting the alleged misconduct was handed to the law officer. It is the entries in this exhibit which defense counsel used to support his contention that the proposed cross-examination was proper. An inspection of that document, which is a part of the record, shows it to be a copy of a complaint report filed with a military police unit some sixty days prior to the offenses herein involved. The entries in the report show that at Fort McClellan, Alabama, this same victim requested an investigation of an incident in which a certain William Boyd invited her to go inside a WAC chapel. She refused, and he forced her into the building and attempted to kiss her. She was unwilling and, after some twenty minutes of opposing his advances, they both left, going their own separate ways. On the form is a statement that a check with the post locator shows no person by the name of William Boyd on the post, and the evaluation column is marked opposite the word ■“UNFOUNDED.”

The cross-examination involved a prior collateral occurrence, and the only point in issue is whether the law officer abused his discretion in not permitting ■defense counsel to bring before the court the facts shown in the exhibit. In United States v Long, 2 USCMA 60, 6 CMR 60, and United States v Hubbard, 5 USCMA 525, 18 CMR 149, we held that a law officer does not abuse his discretion when he bars cross-examination on prior acts which have no reasonable tendency to impair the credibility of a witness except by innuendoes and insinuations. Here defense counsel was seeking to go into a side issue which had for its purpose a showing that the prosecutrix had filed with a military police unit an unfounded complaint against another party. The potentialities for confusion are certainly rampant in that kind of an inquiry. At best, that controversy would revolve around some unknown party’s conclusion that the prosecutrix had no reason to complain. It is noteworthy to mention that while defense counsel contended he could show the complaint was unfounded, it is obvious he had to support his contention by relying upon the rankest sort of hearsay evidence. The prior incident happened at Fort McClellan, Alabama, and the particular offense with which we are involved in the instant case occurred at Fort Jay, New York. The individual who executed the report and made the evaluation is not identified, the source of that particular bit of information is not disclosed, and the value of the document for cross-examination purposes would hinge entirely upon whether the person who accompanied the victim on that occasion had used a fictitious name. The evidence produced up to the time of the out-of-court hearing showed that to be the fact. It would thus appear that had the cross-examination been permitted, it would have elicited evidence of a collateral act which could not possibly be connected up with any misbehavior. Had the law officer opened up that avenue of approach to lack of credibility, nothing of a discrediting nature could have been shown and a diversionary dispute of no relevancy to the witness’ veracity would have been the result. Accordingly, we do not believe he abused his discretion in his ruling.

Ill

The next issue involves two separate questions, only one of which we will answer. The first part of the issue raises the question of whether the search of appellant’s wall locker and the seizure of certain clothing were illegal. This question was considered specifically by the law officer, the staff judge advocate, and the board of review. Each of them sustained the search and seizure as being reasonable, but each assigned different reasons for their holdings. We see no good purpose in resolving their differences or in answering the question for, in our opinion, it makes no difference whether the search and seizure were legal or illegal. It is arguable that they could be found reasonable upon any one of three separate grounds; namely, the property was seized incident to a legal apprehension; the wall locker was open and the articles clearly visible; or, the search was authorized. We merely point out these possibilities to indicate we are not faced with a situation where the acts of the military authorities in obtaining possession of the property were so aggravated that sanctions must be employed by us. We do, however, pretermit discussion of those theories because we prefer to assume arguendo that the search and seizure were illegal and decide the case on other grounds.

Accepting the premise outlined above, we first dispose of the principle that the apparel could not be introduced in evidence because it was obtained illegally. That argument might have merit under a different factual setting, but here the tactics of the defense make that rule inapplicable. The Government did not offer any of the seized articles in evidence. It was counsel for the accused who made use of the victim’s clothing for, in his cross-examination of a criminal investigator, a discrepancy was brought out about the presence of blood on her clothing and the defense offered it in evidence to show the absence of stains. His efforts had a tendency to impeach the witness, and there was no error in that about which the accused can complain. As to the articles of clothing worn by the accused, they were never produced in the courtroom, for the parties stipulated they had been forwarded to a laboratory for analysis of certain stains. The findings were admitted, but the articles were not, and accused cannot assert error in the admission into evidence of a stipulation in which he voluntarily ■joined and which he used to partially support his theory.

With those preliminary matter's out of the way, we move on to discuss the real issue dividing the parties, and that is whether the accused’s pretrial' confession was rendered involuntary by the seizure. When he made his first statement, accused conceded his guilt but, when he became a witness at the trial, he had changed his story and consent by the prosecutrix became his principal line of defense. As a result of accused’s recantation, the voluntariness of his confession becomes of critical importance, and it is on this aspect of the case that we must consider the assumed illegal seizure. The Government carried its burden and proved beyond all reasonable doubt that the confession was voluntary, provided the evidence of the accused did not weaken the showing made. He testified on two occasions, and this is his testimony on involuntariness. He was taken to the company commander’s office and was arrested there by a Mr. Hardin on a charge of rape. The apprehending officer had a rolled bundle of clothing in his hand and the accused recognized his trousers. He did not see the other clothing at that time, but he concluded the victim’s undergarment was rolled up on the inside. He was confused and upset at the time because of being informed he was suspected of rape. He was taken to Criminal Investigation Detachment headquarters, some considerable distance from the place of apprehension, where about one and one-half hours later he admitted committing the crimes. He did not see the clothing at this interview until after he had completed his confession. In response to questions by his counsel, he answered as follows:

“Q . . . Were you afraid for some reason?

“A A little bit afraid.

“Q Why?

“A Of what might happen to this. A possibility they might put me in the stockade, and that I felt that I was completely innocent of the charges they had placed against me. It was just in the fear state of mind and I didn’t exactly know what to think.

“Q Did the fact that the clothes were there make you afraid?

“A little bit, sir, because-

“TRIAL COUNSEL: The witness just testified, sir, that he didn’t see the clothes until after he made his statement. Now Lieutenant Kunin is sort of putting words in his mouth.

“Q Was the fact that you had seen the clothes in Mr. Hardin’s hand at the time you were first arrested— was that anything to make you feel any way ? Will you tell the court how you felt in relationship-

“A When I come in that night I knew that my trousers had blood on them, and then when I saw them in his hands that morning I knew that it would hurt me in some way, him having them trousers.

“Q Would this have caused you to sign any statements or anything like that?

“A Yes, sir. I was willing to make a statement.

“Q Thank you.”

After testifying that he was not threatened by the investigators and that no compulsion was used, he was interrogated by a court member. On this examination, he offered the explanation contained in these answers:

“Q And you were frightened?

“A Well, I was put in a state of mind of shock.

“Q You were upset?

“A Yes, sir, I was.

“Q And you were somewhat frightened?

“A A little.

“Q You were frightened because you saw the clothing, trousers?

“A I was frightened because of the charges they had placed on me.

“Q The charges. And because of your fright you signed this statement?

“A Yes, sir, I did.

“Q Did you read the statement before you signed it ?

“A I looked over the statement. I didn’t read it.”

To the questions of another court member, he gave the following responses:

“Q If you had not seen your trousers in the investigators hand, would you have made this statement?

“A No, sir.

“Q And signed it?

“A No, sir, I didn’t think I would.

“Q In other words, the sight of the trousers made you agree to sign the statement ?

“A It made me — It put me in a shock of mind where I didn’t actually realize what I — know what I was doing there.”

That was his testimony on the interlocutory issue of admissibility but when he took the witness stand in his own behalf, he made the following explanation. When he gave the pretrial confession, he had a bad headache, he had been without food for twelve or thirteen hours, and he was frightened because charges were being pressed against him. Eventually, he testified that as the statement was read to him, he denied it was the truth, that he did not realize he was signing a statement, that he initialed the corrections without reading them because he had been informed he was only acknowledging a typographical error, and that he signed the statement “to get something to eat and get something for my headache.”

The testimony of the accused must be considered in the light of other undisputed evidence, part of which was furnished by him. He was a member of a military police detachment and, at the time of the incident, was assigned to duty as a militaxy policeman. He had .been trained in military police techniques and knew the risk he assumed in giving an incriminating statement. He had been fully advised of his rights, knew he need not say anything, and was aware of the rule of evidence which permitted the use of a statement in courts-martial if voluntarily given. He was not subjected to extensive examination or to any coercion, force, improper influence, or inducements, and the investigators were friendly. The oral statements were given at approximately 1:00 p.m., he had a sandwich and drink at 3:00 p.m., and he signed the written statement at 5:00 p.m. During the interim, he was not molested, and he had time to consider his oral utterances before he executed the document.

The evidence of the Government on this issue is not related by us for the reason that we are convinced as a matter of law that the seizure of the property did not induce, in whole or in part, accused’s pretrial confession. While the prosecution’s evidence was strong, that is unimportant, for our problem is to determine whether the accused’s testimony alone required the law officer to submit to the court-martial without request the question of whether the confession was induced by the search and seizure. For the reasons set forth hereinafter, we conclude that he was not bound to submit an instruction setting out that theory.

To raise an issue on involuntariness, there must be facts produced from which it could be inferred reasonably that the use of the illegally obtained evidence caused the accused to be deprived of his right of free choice. It must in some way overcome his knowledge of his right to remain silent or it must be so closely connected with his confession that the statement is given when the accused did not possess the mental freedom to confess or deny participation in the crime. In the ease at bar, neither probability is presented. Prior to the time of his confession the accused had seen his trousers in the possession of the investigating officer. That was in the company commander’s office, and at that time no incriminating statements were made. He was driven from that locale to Criminal Investigation Detachment headquarters where he was interviewed. He was thoroughly briefed on his right to remain silent. The clothing was neither exhibited nor mentioned until some one and a half hours later, after he had confessed, and then only for identification purposes. He had been trained in military police work and was in the hands of friends. Since his defense was consent, the clothing would not be incriminating under the circumstances in this case, for it would only be evidence of the act of intercourse and that was admitted. There was no pressure exerted by the investigators, no subterfuges employed, and no extensive questioning.

In explaining his reasons for confessing, the accused first assigns fright, confusion, deprivation of necessities, illness, and the glimpse of his trousers, but then he goes on to say he did not read the statement, denied the portion that was read to him, and placed his initials thereon only to acknowledge the corrections. Finally, when asked why he signed an untruthful statement which admitted the commission of two serious offenses, he stated he did so to get food and medicine. In that conglomeration of excuses, it is not reasonable to find that the mere sight of his clothes in the company commander’s office, at a much earlier hour, would induce the accused to admit he physically beat the victim to obtain sexual satisfaction when, according to him, she willingly consented. True it is that in answer to one leading question, he stated that after seeing the clothing he was willing to give a statement, but this was some time before he was interviewed, there were intervening events and advice, he was not suddenly confronted with the evidence, and there are no facts to support that bald statement. In the overall picture painted by him the sight of the clothing was trivial or insubstantial in light of his knowledge of the consequences of his confession. His situation is not unlike the accused in United States v Choate, 9 USCMA 680, 26 CMR 460, and there we said:

“Certain circumstances may be more vivid and compelling to one person than to another. Consequently, the effect of a particular act or statement by a law enforcement agent upon an accused under investigation depends upon many factors such as the age, intelligence, education, societal experience and background of the accused. What may not make any impression whatever upon a person wise in the ways of law enforcement may loom large in the eyes of a timid, immature, and suggestible youth. Cf. Stein v New York, 346 US 156, 183, 97 L ed 1522, 73 S Ct 1077 (1952). Whatever the circumstance, however, it must rest on fact, not imagination.”

Here, the entire thrust of accused’s contention was that a myriad of influences which caused him fear and discomfort impelled him to confess. The record shows that the issue of involuntariness covering those matters generally was submitted to the court under proper guidance from the law officer unless he was required sua sponte to isolate the alleged unlawful search and seizure and particularly call it to the attention of the court-martial. Under the facts of this case, there can be no doubt that any causal connection between the possession of the clothes and the confession is so remote that we agree with the statement of the board of review that the evidence in this case shows no more than that the accused confessed because of his fear of the consequences of his act and his sense of guilt. Consequently, this issue is decided against the accused.

IV

The last question raises the inaccuracy of an instruction given by the law officer at the time he admitted the confession in evidence. Apparently he attempted to advise the court without the benefit of notes. Perhaps he rambled and inartfully stated the principle involved, and his charge lacked the specificity necessary to a finished instruction. However, he expressly informed the members of the court they would be instructed further on the matter at the proper time, and he did not give the court-martial a rule inconsistent with his later advice. No instruction was required at that time; the advice the law officer gave was not incorrect, but at worst only incomplete; and any deficiency in the information then given was corrected and the rule governing the issue was stated properly in his final charge. At that time, he advised the court in strict accordance with the latest decisions of this Court. Accordingly, we find no error in the law officer’s instructions.

For all of the foregoing reasons, the decision of the board of review is affirmed.

Chief Judge Quinn concurs.