United States v. Williams

8 C.M.A. 443, 8 USCMA 443, 24 C.M.R. 253, 1957 CMA LEXIS 333, 1957 WL 4756

Opinions

Opinion of the Court

Robert E. Quinn, Chief Judge:

We granted review in this special court-martial case on the following issue:

“Whether testimony concerning the alleged surrender of the knife by the accused was admissible.”

After it had presented some evidence regarding an alleged assault committed 'by the accused by drawing a knife and holding it in a threatening manner, the prosecution called the unit’s legal officer as a witness. He testified that on the morning after the incident he interviewed the accused. In the course of the interview the accused admitted that he had the knife in his locker. The legal officer told the accused he “would like to have the knife” and he would “like for him [the accused] to go to his locker . . . and get it.” The accused left. Shortly afterward, he returned with the knife. At no time did the legal officer “specifically mention Article 31 or give him [the accused] a formal warning.” He merely advised the accused that “you do not have to do this.” Later that morning, the accused was questioned by the investigating officer. Article 31 was read to him, and he ipdicated that he understood it. The accused admitted to the investigating officer that he had drawn a knife and had “dared” the alleged victim to hit him.

A defense objection to the admission of the knife in evidence was sustained. However, no specific objection was made by defense counsel, and no instruction was given by the president, regarding the testimony of the legal officer. This testimony was patently obtained in violation of Article 31, Uniform Code of Military Justice, 10 USC § 831, and was therefore inadmissible. United States v Taylor, 5 USCMA 178, 17 CMR 178. Whether under other circumstances the failure to object would constitute a waiver need not detain us. Cf. United States v Fisher, 4 USCMA 152, 15 CMR 152. We are not disposed to apply the doctrine of waiver in a special court-martial case in which the appointed defense counsel was not a lawyer in the sense of Article 27, Uniform Code of Military Justice, 10 USC § 827. United States v Williams, 7 USCMA 434, 438, 22 CMR 224. It was, therefore, error not to strike the legal officer’s testimony and instruct the Court members to disregard it.

In United States v Wilson, 2 USCMA 248, 8 CMR 48, we reviewed the Congressional background of Article 31. We pointed out that the Article occupies so important a position in the administration of military justice that we would not sanction any “departure from the clear mandate” of its provisions. Id. at 255. Over the years, we have consistently reiterated this principle; we have refused to uphold a conviction based upon evidence obtained and admitted in violation of the Article; and we have consistently declined to weigh the other evidence of guilt for the purpose of affirming a conviction. United States v Holmes, 6 USCMA 151, 19 CMR 277; United States v Taylor, supra; United States v Hernandez, 4 USCMA 465, 16 CMR 39; see also United States v Yearty, 8 USCMA 191, 23 CMR 415. Time and experience have served to emphasize the fundamental correctness of our position.

The decision of the board of review is reversed. The findings of guilty of Charge II and its specification are set aside and the charge is ordered dismissed.¹ The record of trial is returned to The Judge Advocate General for submission to the board of review for reassessment of the sentence on the basis of the remaining findings of guilty.

Judge FeRGüson concurs.

1 Normally, in similar situations, we have permitted a rehearing of the charge. The accused here, however, has already been separated from the service. We believe, therefore, that it is more appropriate to dispose of the charge in the way that we have.