United States v. Wilson

2 C.M.A. 248, 2 USCMA 248

• Court: United States Court of Military Appeals
• Decided: February 27, 1953
• Docket: No. 647
• Status: Published

Opinions

Opinion of the Court

Paul W. BROSMAn, Judge:

I

Appellants have been convicted of premeditated murder, in violation of Article of War 92, 10 USC § 1564, and sentenced to death. The convening authority approved, but recommended that the sentence as to each be commuted to dishonorable discharge, total forfeitures, and confinement at hard labor for life. A board of review in the office of The Judge Advocate General, United States Army, affirmed the findings and sentences with no recommendation of commutation. In view of the outstanding sentences to death, automatic review in this Court is provided by the Uniform Code of Military Justice, Article 67(b)(1), 50 USC § 654.

Numerous assignments of error have been made by appellate defense counsel. We shall not report them at the outset, but shall discuss them in substantially the order raised. In connection with each we shall recreate only the necessary factual background. Certain asserted errors were pressed more strongly than others, but we shall consider all.

II

It is contended that the joint trial of appellants resulted in substantial prejudice to each. However, as we recently pointed out, a joint trial, where a joint offense is charged, is the usual, not the unusual, course. United States v. Evans and Parker (No. 457), 4 CMR 133, decided August 8, 1952. Here appellants were charged with having engaged in a joint shooting foray in which a Korean male was killed. It is evident from the record that the same witnesses would have testified to the same issues, had each appellant been separately tried. No implemented attempt has been made to demonstrate to us how appellants were, or could have been, prejudiced by their joint trial, and we have been able to discern no prejudice.

III

The specification under which appellants were convicted alleged that they “acting jointly, and in pursuance of a common intent, did, at Puchang-ni, South Korea, on or about 10 April 1951, with malice aforethought, willfully, deliberately, feloniously, unlawfully and with premeditation kill Hong Jae Gun, a human being, by shooting him with a carbine.” (Emphasis supplied) The specification reflected in the charge sheet at the opening of the trial did not contain the emphasized words. After a single witness had been heard, trial counsel requested and was granted an indefinite continuance without objection by defense. The following morning the coui't was reopened, and on motion of the prosecution, made on direction of the convening authority, the specification was amended to include the emphasized words. Defense counsel stated that he had no objection, but at the time requested and received a continuance of one week “in view of the amendment.” When the court reopened, both appellants pleaded not guilty to the amended specification, and the trial proceeded without further interruption.

Appellants would have us hold that their trial on the amended specification violated the provisions of the Uniform Code of Military Justice, Article 44, 50 USC § 619, protecting them against double jeopardy. That Article states that:

“(a) No person shall, without his consent, be tried a second time for the same offense.

“(b) No proceeding in which an accused has been found guilty by a court-martial upon any charge or specification shall be held to be a trial in the sense of this article until the finding of guilty has become final after review of the case has been fully completed.

“(c) A proceeding which, subsequent to the introduction of evidence but prior to a finding, is dismissed or terminated by the convening authority or on motion of the prosecution for failure of available' evidence or witnesses without any fault of the accused shall be a trial in the sense of this article.”

A reading of this language makes manifest that appellants were not put twice in jeopardy for the same offense, for the plain reason that they had- not yet been placed in jeopardy when they were arraigned on the amended specification. Artice 44(b), supra, spells out when jeopardy normally attaches. This is-when the findings of guilty have become final by the exhaustion of appellate review. The specific exception of the third subdivision of the Article obviously has no bearing here. We note parenthetically that the specification amendment procedure followed here accords fully with the requirements of the Manual for Courts-Martial, United States, 1951, paragraph 69b.¹ It is to be observed also that under both the original and amended specifications appellants were charged with the same offense — premeditated murder.

IV

Because the regularly appointed defense counsel consulted with them once only prior to trial, and then only for a period of some ten minutes, appellants argue that they were in fact denied their' right to counsel. We think this argument overvalues the utility of interviews between accused and counsel, and fails to take into account that in the usual case the lion’s share of counsel’s time is spent in preparation outside the presence of accused, searching for evidence,. examining witnesses, and the like. Once defense counsel has his client’s complete story — and this need take but little time in many cases, and almost certainly in this one — there may well be no need for further conference before trial. However this may be, we simply cannot say on the basis of appellants’ showing that they were in any way prejudiced in this particular matter. For reasons which will shortly become apparent, we need not consider generally the adequacy of appellants’ representation at the trial. But cf. United States v. Marshall and Shelton (No. 548), 6 CMR 54, decided November 14, 1952.

V

Appellants next argue that the evidence of guilt was insufficient as a matter of law in that the proof of corpus delicti was fatally defective for failure to establish beyond a reasonable doubt that the person named in the specification as the victim was in fact the person who was shot by them, and who died shortly thereafter. We have encountered and. passed on similar arguments in United States v. Roman (No. 191), 2 CMR 150, decided March 19, 1952, and United States v. Jarvis (No. 94), S CMR 102, decided May 6, 1952. In those cases we approved-the general rule, theretofore prevailing in both civilian and military courts, that similarity of incidents may complete a chain of identity.

Here, a Korean man named Hong Jae Gun was shot in the left arm and abdomen sometime between 1:00 p.m. and 2:00 p.m. on April 10, 1951. He was removed to the 2d Medical Battalion by a military policeman in a jeep, and was accompanied by his wife. At about 2:30 p.m. on April 10, 1951, a military policeman in a jeep brought a Korean man and his wife to the 2d Medical Battalion. The man, who had been shot in the left arm and abdomen, died shortly thereafter. The chain of identity established here was painfully complete.

VI

The next assignment of error is that certain admissions of the accused should have been excluded as involuntary. The operative facts are these. A military police sergeant named Wang, while on patrol duty, received notice of a shooting in the 503d Battalion area. He went to the area and there observed a group of soldiers standing about a fire. A military policeman pointed out appellants as the persons identified to him by a group of Koreans as the men who had shot their countryman. The sergeant approached the group and, without addressing any member by name— but looking directly at appellants— asked who had done the shooting. He made no preliminary reference to the privilege against self-incrimination secured at that time by Article of War 24, 10 USC § 1495. Appellants responded to the question with the statement that they had “shot at the man.” This was the substance of Sergeant Wang’s testimony at the trial. The joint oral admission, which is.said to have been involuntary, is, of course, that made by appellants that they had “shot at the man.”

Appellate defense counsel concedes that these statements did not constitute confessions but amounted only to admissions. Of course, the distinction is that a confession admits to guilt of the commission of crime whereas, an admission — although penally self-disserv-ing — falls short of this. The distinction becomes important as it bears on the burden placed on the Government in introducing each in evidence. In offering a confession, the prosecution is required to make an affirmative showing of vol-untariness, unless such showing is waived. However, in the case of an admission, no similar showing is required, unless there is some affirmative indication of involuntariness. Manual for Courts-Martial, United States, 1951, paragraph 140a. We have no hesitancy in stating categorically that there is not a scintilla of evidence in the record to indicate that these admissions were not in fact voluntary.

However, this does not dispose of the problem raised by their reception in evidence. Sergeant Wang did not preface his question with any sort of warning of the rights secured by Article of War 24, supra. Was it, therefore, error to receive the admissions in evidence, and, if so, does that error require reversal?

We must first observe that, although the facts here involved transpired prior to May 31, 1951, arraignment and trial were not held until after that date. Accordingly, the admissibility of the statements of admission is governed by the Uniform Code of Military Justice and the Manual for Courts-Martial, United States, 1951. United States v. Merritt (No. 53), 1 USCMA 56, decided November 20, 1951; United States v. Sonnenschein (No. 8), 4 USCMA 778, decided November 27, 1951.

Article 31 (b) and (d) of the Code, 50 USC § 602, provides that:

“(b) No person subject to this code shall interrogate, or request any statement from, an accused or a person suspected of an offense without first informing him of the nature of the accusation and advising him that he does not have to make any statement regarding the offense of which he is accused or suspected and that any statement made by him may be used as evidence against him in a trial by court-martial.

“(d) No statement obtained from any person in violation of this article, or through the use of coercion, unlawful influence, or unlawful inducement shall be received in evidence against him in a trial by court-martial.”

Those provisions are as plain and unequivocal as legislation can be. According to the Uniform Code, Article 2, 50 USC § 552, Sergeant Wang was a “person subject to this code,” and appellants, at the time the question was directed to them, were persons “suspected of an offense.”. Consequently, the statements should have been excluded in accordance with Article 31(d), and their admission was clearly erroneous. At this point we observe that Article 31 (b) extends the comparable provision of Article of War 24, supra, “to protect not only persons who are accused of an offense but also those who are suspected of one.” House Report No. 491, 81st Congress, 1st Session, April 28, 1949, at page 19, on H. R. 4080, Uniform Code of Military Justice. That this constitutes a considerable extension of the preceding safeguard is manifest in this very case. At the time appellants made the statements concerned they were not “accused” persons and were not, under Article of War 24, supra, entitled to be advised of the rights secured to them by that Article. However, merely because it is new and works in their favor, we do not hesitate to accord to them the protection of the provisions of Article 31(d) of the Code, supra. This Article enunciates — among other items —a rule of evidence available at the time of trial, but non-existent when the offense allegedly was committed. Ordinarily such a rule will be applied under these circumstances — and this Court has held similarly on occasions without number. This is especially true where the principle, the use of which is under scrutiny, involves a new legislative mandate which redounds to the benefit of an accused person, whereas the older and superseded rule would have operated to his detriment. Cf. United States v. Emerson (No. 77), 1 CMR 43, decided November 14, 1951; United States v. Downard (No. 266), 3 CMR 80, decided April 28, 1952. It is, of course, beyond the purview of this Court to pass on the soundness of the policy reflected in those portions of Article 31, supra, which extend the provisions of its comparable predecessor, Article of War 24, supra and no sort of opinion is expressed thereon.

We turn now to the problem of whether the erroneous admission of these statements requires that these convictions be reversed, entertaining no doubt that an affirmative answer is required.. Where — as here — an element of officiality attended the questioning which produced the admissions, there is more than a violation of the naked rule of Article 31(b), supra; there is an abridgment of the policy underlying the Article which must — we think — be regarded as “so overwhelmingly important in the scheme .of military justice as to elevate it to the level of a ‘creative and indwelling principle’.” United States v. Lee (No. 200), 2 CMR 118. To put the matter otherwise, we must and do regard a departure from the clear mandate of the Article as generally and inherently prejudicial. United States v. Berry (No. 69), 2 CMR 114, decided March 18, 1952. We might also observe that even under the old service view of an error of this nature reversal would be required. It appears to be settled in decisions of the boards of review that admission of a confession or other incriminating statement secured without prior warning of rights under Article of War 24, supra, although error, does not require reversal where guilt is established by compelling evidence ali-unde the confession. Absence of prejudice is, of course, the rationale of this rule. ACM 1440, Thorne, 1 CMR(AF) 791; 797; United States v. Estrada, 80 BR 183; United States v. Blakeley, 73 BR 307; United States v. Gonzalez, 35 BR 243; United States v. Rowley, 27 BR 353. There is simply not reflected in the record of this trial sufficient evidence aliunde the illegally received admissions to sustain the convictions of the accused — as will be demonstrated more explicitly in subsequent portions of this opinion.

VII

The next assignment of error has to do with appellant Harvey’s contention that receipt in evidence of extrajudicial statements of identification of him as the offender was error. No witness whatever took the stand and testified from firsthand observation that Harvey had been at the scene of the crime. One witness, a brother of the victim, was present at the shooting, but at the trial could not identify Harvey, although he did identify Wilson. A Private Sluder testified that certain Koreans had pointed out appellants as the men who had done the shooting. Sergeant Wang testified that Private Sluder had related to him the Koreans’ identification of appellants.

As we understand it, this phase of the case hardly presents the customary extrajudicial identification problem, but rather one principally of a hearsay nature. As to the issue of whether appellants were in fact those who had done the shooting, Private Sluder’s testimony was clearly hearsay, and Sergeant Wang’s was hearsay once removed. It was clear error to receive it. See Manual for Courts-Martial, supra, paragraph 139. Of course, this testimony, properly limited, might have been received in evidence, not for the purpose of establishing that appellants had done the shooting, but to show (1) that the Koreans had told Sluder that appellants had done the shooting, and (2) that Sluder had told Y^ang- that the Koreans had thus identified appellants —if the existence of those narratives was relevant for any purpose in point of fact. Manual, supra, paragraph 139a; United States v. Jewson (No. 532), 5 CMR 80, decided August 29, 1952. There is no indication that the evidence was received under such limitation, or that, thus limited, it was in any way relevant. The existence of real danger of prejudice to Harvey flowing from this error must be apparent. It is to be observed that — apart from these hearsay statements and his own unusable admission — the only evidence bearing in any degree on his complicity is the testimony of Corporal Preston Smith. The most that can be said for this contribution is that it placed Harvey in the company of Wilson sometime after the time of the homicide and somewhere near its physical location. Approximation as to both hour and place were distinctly involved in this witness’ testimony.

VIII

Appellants’ final assignment of error is that there was insufficient evidence before the court-martial to sustain their conviction. After an examination of the record we have concluded that this asserted error is soundly based. The crime charged was premeditated murder. The all-important element distinguishing this crime from other degrees of homicide is its requirement of a preconceived intent to kill. The record of trial in this case is quite brief and a number of important matters were under-developed by both trial and defense counsel. We cannot say at all that the element of premeditation was proved beyond a reasonable doubt. United States v. O’Neal (No. 25), 2 CMR 44, decided February 7, 1952; United States v. Shull (No. 45), 2 CMR 83, decided February 18, 1952. Appellants were reported as having said that the deceased had thrown stones at them. The brother of the deceased testified that he saw the shooting — but he appears not to have been aware of what, if anything, had transpired between deceased and appellants prior to the events immediately preceding the shooting. At least he reported nothing. Appellants were reported to have fired five or six rounds at the deceased, yet only one slug struck him, despite the closeness of the range and the fact that appellants were soldiers trained in the use of weapons. It would be a perfectly logical and entirely reasonable conclusion that appellants did not have a premeditated design to kill the deceased. This conclusion would seem the more logical where, as here, the record is barren of evidence relating to motive. Of course, we do not ignore the fact that appellants approached the house of the deceased, climbed the wall surrounding it, and thereafter discharged their weapons. Concededly, this tends to support a conclusion of premeditation. However, in our view it is insufficient alone to sustain these convictions under the peculiar circumstances involved. The presumption of innocence weighs always in an accused’s favor, and requires proof beyond a reasonable doubt as to each element of the offense charged. That burden of proof was not met here as to the element of premeditation.

We appreciate the difficult conditions under which the trial of the charges involved here was held. However, minimum standards of proof in a trial for a capital offense cannot vary with distance from the area of combat. We acknowledge fully that — as to Wilson, at least — the record conveys a firm impression of guilt of homicide in some degree. However, there must be more to sustain a conviction of premeditated murder and a sentence of death.

The evidence of record, including that which we have held erroneously admitted, is insufficient to support the charges of premeditated murder. However, the same is not true of the lesser offenses to that charged. Although, without the evidence we have herein held inadmissible, there would be fatal evidentiary weaknesses with respect to the lesser offenses as well, it appears from the nature of the evidence we have discarded that admissible substitutes are or may be available. For that reason a rehearing is ordered, limited to the lesser offenses.

Chief Judge Quinn concurs.

1 “Defects in charges and specifications.— (1) General. — If a specification, although alleging an offense cognizable by courts-martial, is defective in some matters of form as, for example, that it is inartfully drawn, indefinite, redundant, or that it misnames, the accused, or is laid under the wrong article, or does not contain sufficient allegations as to time and place, the objection should be raised by motion for appropriate relief.

“(2) When accused, is not misled.— If it clearly appears that the accused has not in fact been misled by the form of the charges and specifications, and that a continuance is not necessary for the -protection of his substantial rights, the court may proceed immediately with the trial upon directing an appropriate amendment of the defective charge or specification.

“ (3) When accused may be misled.— If the specification is defective to the extent that it does not fairly apprise the accused of the particular offense charged, the court, upon the defect being brought to its attention, will, according to the circumstances, direct the specification to be stricken and disregarded, or continue the case to allow the trial counsel to apply to the convening authority for directions as to further proceedings, or permit the specification to be amended so as to cure the defect, and continue the case for such time as in the opinion of the court may suffice to enable the accused properly to prepare his defense in view of the amendment.”