22 M.J. 777 | U.S. Army Court of Military Review | 1986
OPINION OF THE COURT
Contrary to his plea, appellant was convicted of the premeditated murder of his wife, Yong Ok Ayala, in violation of Article 118, Uniform Code of Military Justice [hereinafter cited as UCMJ], 10 U.S.C. § 918 (1982). He was sentenced to a dishonorable discharge, confinement for life, forfeiture of $300.00 pay per month for life, and reduction to the grade of Private E-l. The sentence was approved by the convening authority.
I.
EX PARTE COMMUNICATIONS OF THE ARTICLE 32 INVESTIGATING OFFICER
Appellant asserts that the military judge erred in refusing to direct a new Article 32(b), UCMJ, investigation because the Investigating Officer’s [hereinafter referred to as the “I.O.”] ex parte communications with his legal adviser prejudiced appellant’s right to a fair and impartial investigation.
After considering the evidence of record relevant to this issue, the legal authorities cited by counsel, and the findings of fact of the military judge, we conclude that this assignment of error is without merit.
We wish to emphasize that ex parte communications should be avoided whenever possible.
II.
CID COMMANDER AS A GOVERNMENT REPRESENTATIVE AT TRIAL
Appellant asserts that the military judge erred in denying the defense’s request to exclude Major W, the commander of the local Criminal Investigation Command office [hereinafter referred to as CID], from functioning as a government representative at trial. Specifically, the government, relying on Military Rule of Evidence [hereinafter cited as MRE] 615, appointed Major W as a government representative and allowed him to sit at its counsel table.
Military Rule of Evidence 615 pertinently provides:
At the request of the prosecution or defense the military judge shall order witnesses excluded so that they cannot hear the testimony of other witnesses____ This rule does not authorize exclusion of ... (2) a member of an armed service ... designated as representative of the United States by the trial counsel____
The Analysis to MRE 615, contained in the Manual for Courts-Martial, United States, 1984 [hereinafter cited as MCM or Manual], Appendix 22, states that:
Rule 615 is taken from the Federal Rule with only minor changes of terminology____ The second portion, consisting of subdivisions (2) and (3), represents a substantial departure from current practice and will authorize the prosecution to designate another individual to sit with the trial counsel____ Under the Rule, the military judge lacks any discretion to exclude potential witnesses who come within the scope of Rule 615(2) and (3) unless the accused’s constitutional right to a fair trial would be violated. Developing Article III practice recognizes the defense right, upon request, to have a prosecution witness, not excluded because of Rule 615, testify before other prosecution witnesses.
(Emphasis added.)
We do not condone the practice used by the government in this case because such a practice might, in certain circumstances, infringe upon an appellant’s due process rights and become a source of possible appellate litigation. Nevertheless, it is clear that MRE 615 is broad enough in scope to allow the government’s appointment of Major W as a government representative even though he was to be called as a witness. Ample precedent exists for the designation of a government criminal investigative agent as the government’s representative at trial even though that agent also is a government witness. United States v. Jones, 687 F.2d 1265, 1267-1268 (8th Cir.1982); United States v. Perry, 643 F.2d 38, 53 (2d Cir.), cert. denied sub nom Patterson v. United States, 454 U.S. 835, 102 S.Ct. 138, 70 L.Ed.2d 115 (1981); In re United States, 584 F.2d 666, 667 (5th Cir.1978); United States v. Wells, 437 F.2d 1144, 1146 (6th Cir.1971); Powell v. United States, 208 F.2d 618, 619 (6th Cir.1953), cert. denied, 347 U.S. 961, 74 S.Ct. 710, 98 L.Ed. 1104 (1954); see United
In this instance, Major W testified as the first government witness before any significant legal argument was presented in open court concerning the suppression motions. He was subject to thorough cross-examination. Subsequently, after other witnesses testified, Major W was recalled twice to testify and each time the defense was given the opportunity to cross-examine him. Such a procedure, that is, the government’s recall of Major W after other witnesses had testified, is not error per se. United States v. Butera, 677 F.2d 1376, 1381 (11th Cir.1982), cert. denied, 459 U.S. 1108, 103 S.Ct. 735, 74 L.Ed.2d 958 (1983); cf. United States v. Scott, 13 M.J. 874, 877 (N.M.C.M.R.1982) (no abuse of discretion in denying request that government representative testify first, especially since agent's testimony was not offered to corroborate testimony of prior witnesses and was not of a nature that the agent could have formulated his responses based on the prior testimony). aff'd on remand, 17 M.J. 724 (N.M.C.M.R.1983), pet. granted on other grounds, 18 M.J. 131 (C.M.A.1984).
We carefully have examined the record of trial and are convinced that in this case, especially since Major W was called as the government’s first witness and was subjected to extensive direct examination, cross-examination, and examination by the military judge, that Major W’s testimony upon his several recalls to the stand was not fabricated or in any manner altered by his observation of other witnesses. Further, we are satisfied that appellant neither has shown specific prejudice, Article 59(a), UCMJ, 10 U.S.C. § 859(a) (1982), nor has he demonstrated to this court’s satisfaction any denial of military due process or the violation of any constitutional right by virtue of the procedure used by the government.
Accordingly, we find the assignment of error is without merit.
III.
SEARCH OF APPELLANT’S ON-POST FAMILY QUARTERS
Appellant asserts that the military judge erred in refusing to suppress the evidence obtained from the unwarranted entry into appellant’s on-post family quarters,
a. The Facts
On or about 8 June 1984, the battered body of an unidentified oriental female was discovered in a trunk on the side of a road near Pueblo, Colorado, approximately forty miles from Colorado Springs and Fort Carson, Colorado. Because of the body’s condition and the lack of any identification, the local police were unable to make an immediate identification of the deceased, Yong Ok Ayala. The finding of the body was well publicized by the local news media.
On Saturday, 7 July 1984, a neighbor of appellant’s, who also was a friend of the deceased, informed the post CID that she suspected that the unidentified body was that of Mrs. Ayala. She later identified the body as that of Mrs. Ayala.
Subsequently, the local CID Chief, Major W, was informed by his agents of these new developments. Major W was told that appellant was in residence at the Ivy Inn and “out of the government quarters”, and that appellant was awaiting approval of his recently requested retirement date.
Based on information that he had received from his agents, Major W believed
Major W subsequently called the judge advocate on-call officer, Captain Kn, for advice. Although some discrepancies exist between the recollections of these two officers, we are convinced that Captain Kn did inform Major W that “if the quarters had been cleared that [the CID] could search the quarters because there was ... no expectation of privacy once the quarters had been cleared. That [they were] government quarters and a government agent could enter the area.” However, Captain Kn also advised Major W that a search authorization should be obtained.
Thereafter, Major W, at least one CID agent, and two civilian detectives entered appellant’s quarters.
Realizing from the disarray of the kitchen that appellant could not have cleared his quarters, Major W immediately departed the quarters and obtained a search authorization.
On 11 July 1984, a large amount of blood evidence was found in the child’s bedroom by trained laboratory personnel. Appellant’s quarters had been sealed off by the CID on July 7th and no unauthorized personnel had access to the quarters thereafter.
b. Appellant’s Interest In The Family Quarters
In resolving issues concerning the search of appellant’s family quarters, the military
We find that at the time of the initial entry, appellant had moved out of his family quarters; that he had removed all personal property therefrom except that which he had abandoned or left for the cleaning lady; and that he was no longer using the premises for their intended purpose as a place of residence.
However, appellant had neither abandoned nor cleared these quarters.
c. Resolution
(1) Probable Cause
Considering the totality of the relevant evidence concerning the search of appellant’s quarters, we are convinced that probable cause for the search did not exist at the time of the CID agents’ initial entry into appellant’s assigned family quarters.
(2) Threshold Basis
In order to have a legitimate threshold basis [hereinafter referred to as “standing”] to challenge an alleged unlawful search, an accused must have enjoyed “a reasonable expectation of privacy” in the place or property searched.
We recognize that “members of the armed forces cannot and do not enjoy the same rights of privacy as do the civilian elements of our society.” United States v. Thomas, 21 M.J. 928, 932 (A.C.M.R.1986). Nevertheless, within so-called “family housing” quarters and other military facilities authorized for use as places of temporary residence for service member dependents or non-military guests, we believe that persons lawfully residing therein generally are vested with “a reasonable expectation of privacy” within the meaning of MRE 311(a)(2).
It is apparent from the facts of this case that appellant still possessed an interest in the quarters since he had not “cleared” them as required by applicable regulation. But, it is equally clear that appellant also had voluntarily relinquished any right to use the quarters as a residence before the time they initially were entered and searched by CID agents.
We are convinced, after considering all of the relevant factors
Suppression of evidence “can be successfully urged only by those whose rights were violated by the search itself, not by those who are aggrieved solely by the introduction of damaging evidence.” Alderman v. United States, 394 U.S. 165, 171-172, 89 S.Ct. 961, 965-966, 22 L.Ed.2d 176 (1969). The “capacity to claim the protection of the Fourth Amendment depends not upon a property right in the invaded place but upon whether the person who claims the protection of the Amendment has a legitimate (that is, a reasonable) expectation of privacy in the invaded place.” Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387 (1978). Thus, unless the appellant can demonstrate a reasonable expectation of privacy in the place searched, his mere possessory interest in the searched government quarters will not establish a Fourth Amendment violation. See United States v. Salvucci, 448 U.S. at 91-92, 100 S.Ct. at 2552-2553; United States v. Quinn, — U.S.-, 106 S.Ct. 1623, 89 L.Ed.2d 803 (1986) (per curiam decision dismissing writ of certiorari as improvidently granted); Rawlings v. Kentucky, 448 U.S. 98, 105-106, 100 S.Ct. 2556, 2561-2562, 65 L.Ed.2d 633 (1980); United States v. Miller, 13 M.J. 75, 77 (C.M.A.1982) (person seeking to suppress search evidence bears burden of proving he had a legitimate expectation of privacy in area being searched); cf. United States v. Harris, 5 M.J. at 46-47 (recognizing that actual standing by virtue of a reasonable expectation of privacy may be established, in certain circumstances, by a proprietory interest in premises seized).
The test for determining whether appellant has demonstrated a reasonable expectation of privacy is twofold. First, appellant must have exhibited an actual (subjective) expectation of privacy and, second, the expectation must be one that society is prepared to recognize as objectively reasonable. California v. Ciraolo, — U.S. -, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986); Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan J., concurring); United States v. Portt, 21 M.J. 333, 334-335 (C.M. A.1986); State v. Biggar, 716 P.2d 493 (Hawaii 1986).
Appellant has the burden of establishing that he had a reasonable expectation of privacy in the area being searched. United States v. Miller, 13 M.J. 75, 77 (C.M.A. 1982).
Appellant asserts that he exhibited and attempted to preserve a subjective expectation of privacy by locking the quarters door. We disagree. Our review of the trial record discloses only that the CID agents found appellant’s quarters locked,
Accordingly, we find this assignment of error to be without merit.
(3) Inevitable Discovery
In view of our determination of appellant’s lack of “standing” to challenge the alleged unlawful search of his assigned government quarters, we need not resolve the issue of inevitable discovery. See generally, Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984); United States v. Kozak, 12 M.J. 389 (C.M.A.1982); United States v. Carrubba, 19 M.J. 896 (A.C.M.R.1985); United States v. Anderson, 21 M.J. 751 (N.M.C.M.R.1985). Accordingly, we need not determine whether the inevitable discovery analysis should focus on the independence and inevitability of the lawful means of discovery, or should include the so-called “active pursuit” test which requires a showing that the lawful means by which the evidence would have been inevitably discovered was in progress at the time the evidence was found. Compare United States v. Silvestri, 787 F.2d 736 (1st Cir.1986), and United States v. Merriweather, 777 F.2d 503 (9th Cir.1985), mth United States v. Cherry, 759 F.2d 1196 (5th Cir.1985), and United States v. Satterfield, 743 F.2d 827 (11th Cir.1984), and United States v. Romero, 692 F.2d 699 (10th Cir.1982).
However, mindful of our responsibilities as an intermediate appellate court and of our statutory fact finding power, we will at this time resolve certain controverted questions of fact relevant to this legal issue.
In addition to the findings of fact previously made herein, we find that: (1) it was the intent of the law enforcement personnel to search appellant’s quarters for blood stains and other evidence of homicide at the time of their entry into the premises; and, if their subsequent request for a search authorization had been denied, they would have renewed their search efforts as soon as appellant had, in fact, “cleared” the quarters; (2) prior to the law enforcement agents’ initial entry into appellant’s quarters, on Saturday, 7 July 1984, appellant had attempted to clean the blood spatters and stains; (3) appellant’s efforts to remove all blood spatters and stains from the quarters were ineffective; (4) at the time of the law enforcement officers’ initial entry into the quarters, appellant had completed his attempts to clean the blood spatters and stains; (5) the contract cleaning
From the testimony of record and the above facts, we also infer that: (1) the contract cleaning team would not have washed any of the walls or the ceiling of appellant’s quarters;
IV.
ALLEGED APPREHENSION OF APPELLANT AT THE IVY INN AND THE ADMISSION OF EVIDENCE OBTAINED THEREAFTER
Appellant asserts that “the military judge erred in refusing to suppress evidence ... obtained as a result of the unlawful ... entry (of) appellant’s temporary quarters at the ‘Ivy Inn’ and resulting from the illegal ... apprehension of appellant.”
a. The Relevant Facts
After discovering what appeared to be blood spatters or stains on a door leading to the laundry room, in a storage room adjacent to the laundry room, and in the laundry room of appellant’s quarters, Major W, Special Agent D, and Detective B proceeded to the Ivy Inn
Before going to the Ivy Inn, Major W again contacted Captain Kn, the judge advocate on-call officer, who advised Major W of the requirement for probable cause to apprehend. He informed Major W that he [Major W] “had quite a bit of evidence” from which Major W could conclude that he had probable cause to apprehend appellant, and opined that “there [is] no requirement for an arrest warrant in the military.”
Upon arriving at the Ivy Inn, seeing appellant's car parked outside, and ascertaining from a desk clerk that appellant was “registered in the room” and had not been seen coming out, Major W and the two other investigators proceeded to appellant’s room and knocked on the door. When appellant did not answer, the investigators continued knocking on his door. They knocked at least on eight or nine separate occasions and they knocked at least five or six times during each interval. The knocks were loud enough to wake up anyone sleeping inside the room, and caused several other people further down the hallway to open their doors. At some point when appellant did not respond to the loud knock
When it appeared that appellant would not respond to the knocking, and believing appellant was in the room, Major W again called Captain Kn and informed him of what was transpiring. Captain Kn advised Major W “to contact the desk manager” to obtain a pass key to enter the room. However, Captain Kn did admonish Major W that if “they desired to search the ... room at the Ivy Inn, that they would have to obtain independent search authorization to do that.”
After receiving this advice, the investigators obtained a pass key, and Special Agent D opened appellant’s door. The investigators did not physically enter the room, but looked into it from their position in the common hallway. The appellant was observed lying on his bed, naked except for his socks. He appeared either to be asleep or unconscious. No movement of appellant’s chest or stomach was observed. The appellant was called by name several times but he did not respond. Major W thought appellant might be intoxicated or might have overdosed on drugs; however, no alcohol or drugs were in view. At this point, the investigators, being concerned about appellant’s “medical health”, physically entered the room.
Special Agent D walked over to the bed to see if appellant was breathing; he shook the bed and called appellant’s name several times. Appellant opened his eyes, looked at the agent and closed his eyes again. Special Agent D was concerned that appellant had overdosed on alcohol or some other type of drug, as his response did not appear “to be a normal reaction.”
Major W promptly called the military police and asked them to send a patrol and paramedics to the Ivy Inn. He then called Captain Kn and informed him of the situation. Captain Kn, apparently independently, advised Major W to call for medical assistance.
The paramedics entered appellant’s room and set a medical bag on the floor. One of the medics apparently yelled at appellant, who immediately awoke. Appellant appeared to be surprised, but he did not appear intoxicated. After observing appellant and detecting no medical impairment, the paramedics departed. Special Agent D then asked appellant if he “would put [his] clothes on, and accompany [the agents] to the [CID] office” for questioning. Appellant was not told that he was under apprehension nor was he handcuffed, although he would not have been free to refuse to accompany the agents at that point in time. Appellant was transported to the CID office in Major W’s vehicle and taken to the second floor of the CID building where he was placed in Special Agent D’s office.
Appellant was advised of his Article 31/Tempia
Appellant thereafter consented to the search of his person, his quarters, and his vehicle, and to the household goods and personal property that had been picked up from his quarters by a commercial moving company. This consent was made in writ
Shortly after consenting to the search, appellant terminated the interview by requesting an attorney.
Subsequently, the CID obtained a commander’s authorization to search appellant’s car and a civilian search warrant to search appellant’s household goods which had been transported from his quarters to a civilian storage facility in Kansas. The CID searched the car and the household goods in the storage facility, and discovered blood-spattered items belonging to appellant at both locations.
b. Military Judge’s Findings
The military judge made certain specific findings concerning the investigators’ initial opening of the door to appellant’s room, as well as concerning their entry into the room and their apprehension of appellant. Included therein were the findings that: (1) the individuals in the hallway knocked loudly enough to awaken anybody sleeping in appellant’s room; (2) people have a right to refuse to answer their doors; (3) in a transient facility it is reasonable to expect that if you refuse to answer a knock at your door, someone, such as a maid, maintenance man or manager, may open the door anyway; (4) the appellant, and any person so situated, “lacks standing to have any reasonable expectation of privacy with respect to a room similar to a motel room simply from having the door opened and having someone look in____”; (5) the investigators’ entry into appellant’s room was precipitated by their desire to ascertain whether appellant needed medical attention and render it if needed; (6) Major W had probable cause to apprehend appellant; (7) the investigators believed that the reddish or brownish stains previously found by them in appellant’s family quarters were blood; and, (8) appellant was placed under apprehension in his quarters, although not informed of that fact by the agents.
Except for findings (3) and (4), we agree with the foregoing findings of the military judge. However, for reasons hereinafter discussed, we decline to uphold findings (3) and (4).
c. The Resolution
(1) Ivy Inn Entry
Considering the totality of the facts, we find that although the investigative agents had probable cause to apprehend appellant at the Ivy Inn,
As early as 1976, this court held that “absent exigent circumstances, appropriate authorization by a responsible commander based upon probable cause must be obtained before a private dwelling may be entered to make an arrest even though the person entering possesses authority to arrest and has probable cause to do so.” (Emphasis added.) United States v. Jami-son, 2 M.J. 906 (A.C.M.R.1976). The Jami-son opinion was considered “compellingly
The United States Supreme Court previously has held that the protection of the Fourth Amendment did not preclude a warrantless arrest based upon probable cause which was accomplished midday and in public. United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). Nevertheless, in Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979), the Court expressed its concern with protecting individuals against unreasonable intrusions into their privacy by holding that the police violated the Fourth Amendment when, without probable cause, they seized petitioner and transported him to the police station for interrogation. Id. at 216, 99 S.Ct. at 2258. One year later, in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), the Court opined that absent exigent circumstances, the Fourth Amendment prohibits the police from making a warrantless and nonconsensual entry into a suspect’s home in order to make an arrest.
Clearly, the Fourth Amendment protections recognized in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, apply to members of the military. See generally, United States v. Mitchell, 12 M.J. 265, 269 (C.M.A.1982); United States v. Hays, 16 M.J. 636, 637 (A.F.C.M.R.1983); United States v. Baker, 14 M.J. 602, 605 (A.F.C.M.R.1982); United States v. McCormick, 13 M.J. 900, 904 (N.M.C.M.R.), pet. denied, 14 M.J. 289 (C.M.A.1982); RCM 302(e). However, the Payton rule would appear to be limited in its military application to circumstances where the service member’s apprehension occurs within a “private dwelling or residence”. See United States v. McCormick, 13 M.J. at 903; United States v. Mitchell, 12 M.J. at 269; see also United States v. Baker, 14 M.J. at 605; United States v. Hays, 16 M.J. at 637. Certainly, no requirement currently exists under the Fourth Amendment that military law enforcement officers obtain search warrants or other authorization from a commander or a magistrate before effectuating a probable cause apprehension in a public place. United States v. Tipton, 16 M.J. 283, 285 (C.M.A.1983), citing United States v. Santana, 427 U.S. 38, 42, 96 S.Ct. 2406, 2409, 49 L.Ed.2d 300 (1976) and United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). Thus, for example, a search warrant or other search or arrest authorization is not required in order to effect lawfully a probable cause apprehension of a service member in a barracks hallway, a military vehicle, a field tent, a bunker, or a similar public place. See generally, United States v. Tipton, 16 M.J. at 285; United States v. McCormick, 13 M.J. 900; RCM 302(e); see also United States v. Baker, 14 M.J. 602.
Accordingly, we initially must determine whether appellant’s Ivy Inn room should be generally categorized as a “private residence” or as a “public place”. Although the record contains only minimal evidence regarding the physical structure, management policies, and daily operating procedures of the Ivy Inn, we conclude from the totality of the available evidence that the Ivy Inn is not a barracks and is not operated as such. Rather, we find that notwithstanding its technical classification, the Ivy Inn, in fact, was being operated in a manner more closely analagous to a military guest house. That is, its operating
We reject any notion that appellant relinquished his reasonable expectation of privacy in his room at the Ivy Inn when he failed to respond to the knocks on his door. In fact, failing to answer a knock on the door is one way in which many members of the public preserve their privacy within their private dwellings. Assuming arguendo, even in the absence of any evidence concerning the room-entry procedures used by any maids or maintenance personnel at the Ivy Inn, that appellant gave “ ‘implied or express permission’ to ‘such persons as maids, janitors or repairmen’ to enter his room ‘in the performance of their duties,’ ” the conduct of the law enforcement agents in this case “was of an entirely different order.” See Stoner v. California, 376 U.S. at 489, 84 S.Ct. at 893; United States v. Jeffers, 342 U.S. 48, 51-52, 72 S.Ct. 93, 95-96, 96 L.Ed. 59 (1951). Any such conditional right of entry should not automatically be extended to the police, unless society and its courts are willing to substitute a “mere maid” rule for Fourth Amendment privacy protection whenever one checks-in at such facilities. We find this type of proposition unacceptable.
We believe that when the law enforcement agents opened appellant’s door they effected an entry, albeit not a physical entry, of the room within the meaning of Payton. Cf. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Fourth Amendment violated by attaching electronic equipment to outside of a phone booth even though device used did not penetrate wall of booth). The investigators’ action clearly infringed on appellant’s privacy, as it exposed appellant’s naked body to their view and to the view of any other person in the public corridor who by happenstance should walk by at that moment.
All factors considered, we are convinced that appellant exhibited a subjective expectation of privacy within his Ivy Inn room; and, that society is prepared to and does recognize as objectively reasonable a soldier’s expectation of privacy in his on-post motel/hotel-type accommodations, such as the Ivy Inn. We believe this especially to be true where the facilities’ guests lawfully may include military dependents and other civilians.
The government argues that the entry into appellant’s quarters was based on exigent circumstances. We find that the facts do not establish that such an exigency existed when appellant’s door was opened and his privacy was invaded.
(2) The Effect Of The Payton Violation
The constitutional principle which underpins both Payton and Dunaway is the Fourth Amendment protection of a citizen’s reasonable expectation of privacy. As members of the Armed Forces cannot and do not enjoy the same rights to privacy as do members of our civilian society, United States v. Thomas, 21 M.J. at 932, we must carefully determine what effect should be given to a Payton violation which occurs in an on-post private dwelling or in other on-post facilities being used as private residences.
. Shortly after his illegal apprehension, appellant was taken to the CID office where he was properly warned of his Article 31/Tempia rights, which he voluntarily waived. Subsequently, appellant made certain admissions to the investigators and consented to various searches. We are convinced that this action satisfied existing Fifth Amendment procedural requirements, and thus met the “threshold requirement” for Fourth Amendment analysis. See Dunaway v. New York, 442 U.S. at 217, 99 S.Ct. at 2259, citing Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975).
We believe that in the military, a Payton violation should not result in automatic case reversal. Such a policy would not substantially deter investigative misconduct and would serve to undermine the interests of justice and judicial integrity.
In testing to determine whether such exploitation occurred, the basic question to be answered is whether the presumed connection between this unconstitutional police conduct [appellant’s illegal apprehension], and the incriminating admissions and the consent to search subsequently made by appellant during his interrogation by the CID, was nevertheless sufficiently attenuated to permit the use of the information gained therefrom at trial. Dunaway v. New York at 216, 99 S.Ct. at 2258; see Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939); see also, Brown v. Illinois, 422 U.S. at 590, 95 S.Ct. at 2254. This type of inquiry is both fundamentally fair and will provide an effective deterrent to future police misconduct of a similar nature. Moreover, the exclusionary rule has never been applied so rigidly as “to proscribe the use of illegally seized evidence in all proceedings or against all persons.” Brown v. Illinois, 422 U.S. at 600, 95 S.Ct. at 2260, citing, United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 620, 38 L.Ed.2d 561 (1974).
The United States Supreme Court has identified “several factors” which must be considered in determining whether the appellant’s admissions and consent to search were obtained by exploitation of an illegal arrest: (1) the temporal proximity of the arrest and appellant’s admissions and consent to search; (2) the presence of intervening circumstances; and (3) “particularly”, the purpose and flagrancy of the official misconduct. Dunaway v. New York, 442 U.S. at 218, 99 S.Ct. at 2259; Brown v. Illinois, 422 U.S. at 603-604, 95 S.Ct. at
In regard to temporal proximity, only about 15 minutes elapsed from the time appellant was awakened until he was in the CID office being advised of his Article 31-Tempia rights. Thus, any psychological impact or coercion resulting from appellant’s illegal apprehension would not be dissipated by the mere passage of time.
However, we find the presence of intervening circumstances in this case. After opening the door to appellant’s room and thereby effecting a warrantless entry, the law enforcement officers chose to observe appellant visually from their position in the common hallway. Based on their visual observations of the naked appellant, coupled with appellant’s failure to respond to the investigators’ repeated loud knocking at the door, the investigators reasonably concluded in good faith that appellant was in need of immediate medical help. In view of this, the investigators physically entered appellant’s room, attempted to obtain a normal response from him, and failing to do so, immediately called for medical assistance and notified Captain Kn of the situation. One of the paramedics arriving on the scene awoke appellant, questioned him, and visually examined him sufficiently to ascertain that appellant was not under the influence of any intoxicants. During the course of the paramedics’ observation of appellant, the investigative agents voluntarily subordinated their law enforcement goals to the medical goals of the former. Thus, for example, they did not ask appellant to accompany them to the CID office until after the paramedics had departed. We also note that at no time, either before or after the departure of the paramedics, did the investigators use force, physical restraints, threats or overt coercion on appellant to compel him to accompany them, nor did they expressly order appellant to accompany them. Rather, the apprehension and subsequent interrogative detention of appellant subtly arose from the totality of the circumstances surrounding this event. Based on these facts, we are satisfied that the concerned presence of the paramedics, before appellant was taken to the CID office, intervened to dissipate substantially any psychological impact on or presumed coercion of appellant caused by the Payton violation.
Regarding the purpose and flagrancy of the official misconduct, we find that the investigators neither intended to abuse nor did abuse flagrantly appellant’s constitutional rights. From the outset, the investigators had probable cause to apprehend appellant
Finally, we note that appellant properly was warned of his Article 31/Tempia rights and voluntarily waived those rights before making any admissions to the investigators. Moreover, we find that he voluntarily executed the written consent to search
Thus, considering the above factors and all relevant evidence of record, we find that the investigators’ illegal apprehension of appellant, in violation of the Payton doctrine, had been adequately attenuated, and that the derivative evidence in question was admissible.
V.
BLOOD SPATTER EVIDENCE
Appellant asserts that the military judge erred in denying the defense motion in limine to exclude blood spatter evidence gathered from appellant’s quarters.
During the course of their investigation, military investigators found numerous blood stains in appellant’s quarters and on items of his household goods which had been removed from those quarters and placed into commercial storage or into his car. The majority of these stains were located in a single room in appellant’s quarters. This room was identified at trial as the “infant’s bedroom.”
Over 1,000 stains were found in appellant’s quarters and on his personal property which had been located in the quarters. Investigators subsequently performed laboratory tests on a representative sampling of these stains. Many of the stains were too small to test. Of the stains tested, 171 stains proved to be human blood. A number of other stains tested gave an indication of being some kind of blood, but due to sample size or other reasons, more specific identification was not possible through the use of scientific procedures.
For example, in the infant’s bedroom, 401 suspected blood stains gave a positive reaction to a two-color test. Thirty-four of these stains were subjected to further laboratory testing. Twenty-nine of these stains were determined to be blood, and 23 of the 29 stains were large enough for their species to be identified as human blood. One stain was of sufficient size for typing and
Laboratory tests of stains found on certain items of appellant’s personal property yielded the following results: On a Pampers box, found in appellant’s car and established as having been located in the infant’s bedroom, 73 stains tested positive to a two-color test. Sixteen of these stains were selected for further testing, 15 of which were determined to be blood, and 11 of which were human blood stains. A comforter was tested and 30 stains, all of which tested positive to a two-color test, were selected for further testing. Twenty-three of the 30 stains were determined to be blood and 15 of these 23 stains were human blood. Three of these 15 human blood stains were large enough to group and were found to be group B blood. Group 0 human blood was found on two comers of a towel. An infant’s crib had 161 stains which tested positive in a two-color test. Forty-one of the stains received further testing, and 39 of these stains were determined to be blood. Thirteen of the 39 stains were confirmed to be human blood. None of these stains were large enough to group. A blanket, seized in appellant’s stored household goods, had 29 stains which tested positive. Twenty-three of these stains were determined to be blood, of which three were found to be human blood. One stain area was found to be PGM 1 + human blood. Some of the staining on the blanket appeared to have been washed or diluted. Human blood also was found on appellant’s stereo set, a stereo speaker, a record album, and a night stand. We find that all of these items had been located in the infant’s bedroom at the time of Yong Ok Ayala’s death.
The nature of the wounds suffered by Yong Ok Ayala were such that she would have bled profusely at the situs of the attack. An expert in blood spatter stain interpretation testified, and we so find, that three major impact areas could be found in the infant’s bedroom. The spatters were medium or high velocity impact spatters and were almost without exception too small for serological examination. To produce this type of small spattering “[i]t would have been a considerable blow, many of them to produce that much spatter throughout that room. A very deliberate and extended beating.” “[T]he majority of the stains have the same trajectory ... the majority of the stains are type 0 blood.” Further, the majority of the blood stains had been wiped or washed — an attempt had been made to remove them from the wall. The largest stain, found on the inset of the window of the infant’s room, was grouped as 0, PGM 1 +, the victim’s blood type.
Before admitting the blood spatter evidence, the military judge pertinently found that, regardless of whether the blood samples in question were a representative or an exhaustive sampling, the
[ejvidence of all of the reddish-brown stains or all of the stains identified as human blood would assist the trier of fact in resolving matters in issue.
. [T]he defense objection goes to weight rather than admissibility.
[AJfter an appropriate circumstantial evidence instruction the evidence ... would be admissible. That is, the relevant factors would outweigh its possible prejudicial effect.
We find no legitimate basis for reversing the military judge’s findings. The threshold question is whether the blood spatter
We also agree with the military judge that the probative value of this relevant evidence was not “substantially outweighed” by the danger of “unfair prejudice” or by any other factor required to be considered in applying the MRE 403 balancing test.
In arriving at these conclusions, we are aware of other cases which have admitted blood spatter or stain evidence without requiring each of the spatters or stains to be typed. United States v. Garries, 19 M.J. 845; see State v. Melson, 638 S.W.2d 342, 365 (Tenn.1982); Linder v. State, 273 Ark. 470, 620 S.W.2d 944 (1981); Brewer v. State, 599 S.W.2d 141 (Ark.1980); State v. Bauman, 77 Wash.2d 938, 468 P.2d 684 (1970); State v. Wheeler, 74 Wash.2d 289, 444 P.2d 687 (1968).
VI.
VIEW OF THE PREMISES
Appellant asserts that the military judge erred in allowing, over defense objection, various views and inspections of appellant’s quarters and of certain items of physical evidence which had been admitted
After carefully considering the posture of the evidence before the court-martial members, the military judge allowed the members to view appellant’s quarters. Consistent with evidence of record regarding their prior location in appellant’s quarters, certain items
Rule for Courts-Martial [hereinafter cited as RCM] 913(c)(3) provides that “[t]he military judge may, as a matter of discretion, permit the court-martial to view or inspect premises or a place or an article or object.” However, “[a] view or inspection should be permitted only in extraordinary circumstances.” RCM 913(c)(3), Discussion.
Because the decision whether to grant a request for a view rests solely in the sound discretion of the military judge, the proper test of such a decision is that of abuse of discretion. See United States v. Borner, 12 C.M.R. 62, 66 (C.M.A.1953). Thus, we will not overturn the military judge’s decision in the absence of clear abuse. Cf. United States v. Thomas, 22 M.J. 57, 59 (C.M.A.1986) (military judge’s decision to grant or deny a continuance is within his broad discretion and, absent clear abuse will not be overturned); United States v. Redmond, 21 M.J. 319, 326 (C.M.A.1986) (military judge has wide discretion in determining the admissibility of inflammatory evidence; and, absent a clear abuse of discretion, his determination to admit evidence will not be disturbed on appeal. No abuse of discretion found when military judge admitted a skull into evidence before a court-martial with officer members).
In the case at bar, two expert witnesses testified that many of the blood spatters were so small that a layman or person untrained to detect blood spatters might not have detected them in appellant’s quarters. Testimony also was received that anyone could enter appellant’s quarters, observe that certain blood spots on the walls apparently had been washed, and see the difference between the wiped and non-wiped blood spatters and stains. Testimony also exists that various spots in the closet were not quite as far apart, when viewed by looking back to the closet, as they appeared to be in a certain exhibit.
Based on the totality of the relevant evidence, including the above, the military judge found that “extraordinary circumstances” existed, and that “[a] view ... would assist the trier of fact in evaluating the weight to be given to the expert’s testimony, and generally to evaluate ... the government’s traumatic blood spatter theory and also ... the defense nosebleed theory”
This assignment of error is without merit.
VII.
SUFFICIENCY OF THE EVIDENCE TO ESTABLISH SPECIFIC INTENT TO KILL AND PREMEDITATION
Appellant asserts that the government failed to introduce any evidence to establish premeditation. Specifically, he asserts that no evidence was introduced on which a court could find beyond a reasonable doubt that he had committed this offense “with a specific intent to kill accompanied by prior consideration of his act.”
Both specific intent to kill and premeditation can be proven by circumstantial evidence. MCM, part IV, para. 43c (2)(a); United States v. Barnes, 15 M.J. 121, 123 (C.M.A.1983); United States v. Cruz, 17 M.J. 534, 536 (A.C.M.R.1983); United States v. Stark, 19 M.J. 519, 523 (A.C.M.R. 1984). The existence of these elements can be established based on inferences drawn on the circumstances surrounding the killing, including the viciousness or cruelty of the assault. United States v. Ayers, 34 C.M.R. 116, 123 (C.M.A.1964); United States v. Matthews, 13 M.J. 501, 517 (A.C. M.R.1982) (en banc), aff'd sentence rev’d on other grounds, 16 M.J. 354 (C.M.A. 1983); United States v. Cruz, 17 M.J. at 536; see United States v. Teeter, 16 M.J. 68 (C.M.A.1983) (victim’s throat slit followed by stabbing her 32 times).
The evidence of record establishes, and we so find, that the appellant’s homicidal assault upon his wife, Yong Ayala, was brutal and vicious. Appellant repeatedly struck his wife with a threaded object, such as a pipe, large bolt or file. Although Yong Ayala attempted vainly to defend herself and in the process received “classic defense wounds” on her hands and arms, she was struck at least 12 times. From these forceful blows, she received about 13 lacerations, abrasions or bruises of the skin surface, a fractured jaw, and multiple skull fractures and bruises under the scalp surface. The multiple fractures of her skull resulted in seven loose bone pieces. She also received a puncture-type wound of the left elbow and a round hole-type wound over the right ear (which originally was erroneously suspected of being a gunshot wound). She bled profusely as a result of the wounds.
None of these wounds were of such a nature as to cause Yong Ayala’s immediate death. Ultimately she died from a loss of blood coupled with a swelling of the tissue
Based on the above facts and all relevant and competent evidence of record, we find beyond a reasonable doubt that at the time appellant murdered his wife, Yong Ayala, he already had formed both the requisite specific intent and the requisite premeditated design to kill by giving consideration to the act intended to cause her death.
Thus, we conclude that this assignment of error is without merit.
The findings of guilty and the sentence are affirmed.
. The legal adviser to the Article 32 investigating officer should not only be fair and impartial, but also should conduct his or her investigation in a manner which avoids any appearance of impropriety.
. Major W actively participated in the criminal investigation of this case and was clearly a potential government witness at the time of his designation as government representative.
. One of the unique physical features of Mrs. Ayala’s body which facilitated her'identification was that an implant from a former breast augmentation operation had been surgically removed from one breast. This fact was known to the CID at the time of the search, together with information that one of Mrs. Ayala’s neighbors had seen Mrs. Ayala entering her quarters the night before she disappeared. Mrs. Ayala was not seen alive again and did not meet with this neighbor for coffee the next morning as planned. The CID also had received information that appellant and his wife fought frequently; and, that appellant had informed the same neighbor that Mrs. Ayala had gone to Korea to visit her family, but later stated that she had gone to California to visit a brother.
. Once a soldier clears quarters, he relinquishes to the government all possessory interest that he had in those quarters.
. In resolving issues concerning Major W’s good faith during the course of this investigation, we note that "[mjilitary officers are public officers and, as such, it ... is presumed that they perform their official duties in a regular manner and in good faith, as well as in compliance with the law.” United States v. Martinez, 19 M.J. 744, 751 (A.C.M.R.1984), pet. denied, 21 M.J. 27 (C.M. A.1985). See also, Wilkes v. Dinsman, 48 U.S. (7 How.) 89, 12 L.Ed. 618 (1849).
. These people were not available since this meeting occurred on a Saturday afternoon when the Housing Office was closed.
. We find that at the time of this team’s physical entry, all participating law enforcement personnel believed in good faith that appellant previously had cleared his family quarters.
. We find that at the time the CID team entered appellant’s quarters, all of appellant’s personal property had been removed therefrom, except for minor items which appellant either had abandoned or left for the use of the quarters cleaning team he had hired. Further, the cleaning team already had commenced cleaning before the CID team entered the premises.
. The military judge found, and we agree, that this search authorization issued by the installation commander was not based on probable cause. We are convinced, however, that Major W was not aware of this fact and that he subsequently relied on the authorization in good faith. See generally, United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 rehearing denied, 468 U.S. 1250, 105 S.Ct. 52, 82 L.Ed.2d 942 (1984); but cf., United States v. Johnson, 21 M.J. 553, 555 (A.F.C.M.R.1985) ("We find the ‘good faith’ exception does not apply to trials by courts-martial governed by the Military Rules of Evidence____”), cert. for review filed, 21 M.J. 300 (C.M.A.1985) (the Leon issue is included in this certification).
. In view of existing Army regulations, we seriously doubt that any soldier can unilaterally abandon his assigned government quarters. He can only relinquish his possessory interest therein in the manner prescribed by regulation. See generally, Army Regulation 210-50, Installations: Family Housing Management (1 Feb. 1982).
. Compare the facts of this case with the differing facts of State v. Johnson, 716 P.2d 1288 (Idaho 1986) (police should have known from personal items found inside the premises that tenant still enjoyed a reasonable expectation of privacy in the rented property, even though landlord told police that tenant had moved).
. Continued use of the term “standing" currently is of questionable validity. See United States v. Salvucci, 448 U.S. 83, 87 n. 4, 100 S.Ct. 2547, 2551 n. 4, 65 L.Ed.2d 619 (1980); MCM, Appendix 22, Analysis to MRE 311(a)(2).
. Property rights are only one factor to be considered in determining whether appellant has "standing” to contest the search of his as
. Although "family housing” units are places in which individuals normally can enjoy a "reasonable expectation of privacy," their expectation is not of the same level of privacy that a civilian enjoys when residing in a rented apartment. An installation commander remains responsible for the proper and safe use of government quarters and government furnishings located on his installation. In this regard, he has certain powers in excess of those that most civilian landlords enjoy. Thus, for example, to preclude anti-deficiency act violations from occurring when utility funding is critical, an installation commander can direct that heating/air conditioning thermostat settings not exceed certain levels, and can authorize staff personnel to inspect for compliance. The level of privacy which reasonably can be expected in quarters in the process of being “cleared” obviously is even more diminished. We have no doubt that all military personnel who are assigned family housing are aware that administrative inspections are an inherent aspect of the quarters clearance process.
. It is a matter of common knowledge to Army personnel that on a military installation master keys are available to open government buildings, including family quarters. These keys are available for official use by such persons as military law-enforcement personnel, post engineers, housing personnel, and by building occupants who have lost or misplaced their keys.
. Incidentally, the relevant testimony of the cleaning lady concerning her cleaning activities in appellant’s quarters and this finding of fact both are consistent with our years of military experience concerning normal quarters clearance practices.
. The Ivy Inn is an on-post government facility “designated as a Visiting Officers Quarters (VOQ), Visiting Enlisted Quarters (VEQ) and Distinguished Visitors Quarters (DVQ).” Distinguished Visitors Quarters can be “established to provide hotel-or-motel type accommodations____” Visiting civilian contractor personnel can obtain rooms on a confirmed basis. The Ivy Inn also allowed PCS [permanent change of station] families and retirees and their dependents to have rooms on a space available basis. Moreover, some dependents, such as Mrs. S, apparently were allowed to stay unaccompanied in the Ivy Inn for a period of time after their military spouses were assigned and had reported to overseas units.
. At no time did the investigators announce who they were prior to entering appellant’s room.
. Appellant "looked up and saw [Special Agent D] in his hotel room and didn’t question [the agent] being there, not knowing who [the agent] was.”
. Special Agent D’s office was 10' X 10' with one window (without bars) and two doors. Only about 15 minutes elapsed from the time appellant awoke until he was advised of his rights in the CID office. The only question which appellant asked on the way to the CID office was whether “this was about the disappearance of his wife.” The agents declined to discuss the matter until they were at the CID office. Appellant was allowed to smoke and to go unescorted down the second floor hall to obtain coffee. The record reflects that appellant was not subjected to any form of unlawful inducement, coercion, or influence at anytime during the interrogation process.
. Article 31, UCMJ, 10 U.S.C. § 831 (1982); United States v. Tempia, 37 C.M.R. 249 (C.M.A. 1967).
. Appellant was not informed of the prior search of his quarters until after his written consent to search had been obtained.
. We find no evidence in the trial record concerning the policies and practices of the Ivy Inn in employing maids and maintenance personnel, or of the procedures used by such persons in gaining access to a guest’s room within that facility. Moreover, we do not believe that the speculations of the trial judge concerning such matters are sufficient, especially, as in this case, where the provisions of MRE 201 (Judicial Notice of Adjudicative Facts) are not adequately met. We are well aware of the widely differing policies adopted by various military visitor facilities and civilian hotel/motel facilities concerning such matters, and do not choose to guess what the practice might have been at the Ivy Inn, or whether appellant knew or reasonably should have known of that practice on the day in question.
. We believe that the blood stains found earlier in the day at appellant’s quarters, coupled with the prior information known to the agents, provided probable cause for appellant’s apprehension; and, that the location of appellant’s car, coupled with the information supplied by the desk clerk and the sound and light coming from appellant's room, provided the agents with reasonable grounds to believe appellant was, in fact, in his room when they opened his door.
. The police had probable cause to arrest Theodore Payton; however, they entered his apart-merit without an arrest warrant.
. We note that in championing "knock and announce and daytime [entry] requirements”, the dissent in Payton stated: “The ... requirements protect individuals against the fear, humiliation, and embarrassment of being roused from their beds in states of partial or complete undress.” Payton v. New York, 445 U.S. at 617, 100 S.Ct. at 1395 (White, J., dissenting). Thus, we are satisfied that the investigator’s conduct at the Ivy Inn spawned a type of privacy invasion to which the Supreme Court is sensitive.
. The exigent circumstances doctrine applies only when the inevitable delay incident to obtaining an arrest authorization or (search) warrant must give way to the need for immediate action. See United States v. Satterfield, 743 F.2d 827, 844 (11th Cir.1984).
. Application of the Payton and Dunaway doctrines to military justice cases is in an infant stage of development. One need only examine the facts of this case to see the problems that law enforcement officials currently have in obtaining definitive legal advice concerning these matters.
. Thus, the giving of a proper Article 31-Tem-pia, warning is both part of the threshold requirement for establishing that no Fifth Amendment violation occurred, Dunaway v. New York, 442 U.S. at 217, 99 S.Ct. at 2259, and a factor in determining whether an exploitation of the illegality of appellant’s arrest occurred which would trigger the use of the exclusionary rule to effectuate the Fourth Amendment. Brown v. Illinois, 422 U.S. at 603, 95 S.Ct. at 2261.
. We note, for example, that although appellant was surprised to find the medics and investigators in his room, he did not engage in any form of emotional outburst or otherwise challenge their authority to be in his room. Rather, he remained relatively calm and collected, and ultimately maintained that he required no further medical assistance.
. Cf. United States v. Cherry, 759 F.2d 1196, 1212 (1980) (the intervening acquisition of probable cause is an important attenuation factor).
. We do not fault the legal adviser in this case as this is a complex and rapidly developing area of military law.
. We also note in determining the scope and degree of the agents’ misconduct that they were careful not to inform appellant of their prior search of his quarters before obtaining his consent to search.
. See generally, United States v. Christian, 22 M.J. 519, 522-523 (N.M.C.M.R.1986) (test in reviewing consent search).
. We further find that when subsequently searching both appellant’s car and his household goods stored in Kansas, the CID were in possession of a commander’s search authorization and a civilian search warrant, respectively, upon which they also, in good faith, relied. See n. 9, infra.
. This stain is numbered 167 on Prosecution Exhibit 34.
. The blood spatter evidence was probative in this case, for example, by assisting in establishing (1) the origin of the blood; (2) the number of blows necessary to cause the stains and spatters; (3) the general locations where assaults occurred; (4) the direction of the blows; (5) the velocity required to make such spatters; (6) the duration and ferocity of the attack; (7) the fact that the victim was attempting to defend herself during the attack; (8) the reason why most of the stains were too small to type; and (9) the identity of certain stains as "cast off’ stains.
. ‘There is little doubt that the trial judge is given enormous leeway under this Rule [MRE 403] to judge the merits and demerits of admitting any evidence that satisfies the other Rules of Evidence.” Military Rules of Evidence Manual, Saltzburg, Schinasi and Schlueter 342 (2d ed. 1986). Moreover, “[t]he use of the word ‘substantially’ in [MRE 403] suggests that in close cases the drafters intended that evidence should be admitted rather than excluded. If evidence is admitted, the trial judge can give explanatory or cautionary instructions to the court-members____” Id. at 343. In this case, the military judge, during his findings instructions, gave the court members a very detailed, tailored explanatory instruction concerning circumstantial evidence. Included within this instruction was a thorough reference to the blood spatter and serological evidence and to certain permissible inferences which could be drawn therefrom. We are convinced that these instructions provided the members with a meaningful, accurate, and unbiased blueprint to aid them in resolving controverted issues of fact during their deliberations. Compare United States v. Owens, 21 M.J. 117, 124 (C.M.A.1985) ("prejudicial tendencies” of certain evidence “were substantially reduced” by military judge’s limiting instruction), with United States v. Bejar-Matrecios, 618 F.2d 81, 84 (9th Cir.1980) (reversed where trial judge never instructed the court members why certain prejudicial, but admissible evidence, was admitted or how it could be used by the fact finders).
In reaching our determination in this matter, we also are aware that “the necessity of the evidence to prove the Government’s case is a factor to be used in weighing its admissibility under balancing tests____” United States v. Day, 591 F.2d 861, 877 n. 29 (D.C.Cir.1978).
. These items included the baby crib, a box of Pampers, a stereo and speakers, a nightstand (upon which the stereo was placed) and a wastebasket. These items all had been splattered with blood.
. Before making his ruling, the military judge clearly considered the alterations that had been made to appellant’s quarters since the investigation of the homicide, which was largely concentrated in appellant’s quarters, had commenced. We do not find that the changes made either to these quarters or to the items of evidence repositioned therein were prejudicial to any substantial rights of appellant. The military judge twice instructed the court members regarding the effect of alterations made to the quarters during the investigation, and he instructed them in detail concerning the procedures to be used during the view. We find no reason to assume that the court members did not follow these instructions.
Further, mere alterations to the crime scene will not per se provide the basis for determining that a military judge clearly abused his discretion by permitting a view. See People v. Rainge, 112 Ill.App.3d 396, 68 Ill.Dec. 87, 445 N.E.2d 535 (1983) (jury viewed crime scene after victim testified as to certain crime scene changes); Commonwealth v. Dominico, 1 Mass.App. 693, 306 N.E.2d 835 (1974) (jury view during daylight hours was not an abuse of discretion though crime occurred at night); see also, People v. Mallory, 421 Mich. 229, 365 N.W.2d 673 (1984) (difference in weather and lighting conditions).
. This court does not consider the activity of the court members during the view to constitute "the taking of evidence, but rather an attempt by them to relate the evidence heard at the trial to their present surroundings.” See generally United States v. Zinsmeister, 48 C.M.R. 931, 935 (A.F.C.M.R.1974). We agree that generally “a
. As we have repeatedly stated in resolving abuse of discretion issues, the test is not what action this court would have taken if faced with the issue at trial. Part of the responsibilities of the military judge for managing and controlling courts-martial include the responsibility for determining when extraordinary circumstances factually exist warranting the authorization of a crime scene view. Although views should not normally be conducted, we will not second-guess a decision of a military judge to authorize a view without valid grounds existing for finding a clear abuse of discretion. In the absence of such an abuse, we will "zealously defend the military trial judge’s authority to manage the proceedings over which he presides” and will not reverse his rulings concerning the view. Cf. United States v. Thomas, 22 M.J. 57, 59 (C.M.A. 1986), citing United States v. Browers, 20 M.J. 356, 360-361 (C.M.A.1985) (Cox, J. concurring) (”[W]e must continue to give military trial judges the responsibility and authority to manage and control courtsmartial.”)
. We also find from the direct and circumstantial evidence of record that appellant had a motive for murdering his wife; specifically, he was unhappy with his wife and his marriage and wanted to terminate both.
