12 M.J. 205 | United States Court of Military Appeals | 1982
The accused was tried by special court-martial before a military judge alone, and was convicted, contrary to his pleas, among other things, of disrespect to a superior commissioned officer and dereliction of duty, in violation of Articles 89 and 92, Uniform Code of Military Justice, 10 U.S.C. §§ 889 and 892, respectively. He was sentenced to a bad-conduct discharge, confinement at hard labor and partial forfeitures for 5 months, and reduction to Private E — 1. On review, the United States Navy Court of Military Review set aside the findings of guilty of disrespect to a superior commissioned officer on the ground that the accused’s rights under Article 31, U.C.M.J., 10 U.S.C. § 831, had been violated. 9 M.J. 936 (1980).
This case is now before this Court upon certification by the Acting Judge Advocate General of the Navy as to the following issue (9 M.J. 404):
Was the United States Navy Court of Military Review correct, as a matter of law, when it set aside findings of guilty of disrespect toward a superior commissioned officer, in violation of Article 89, UCMJ, and dismissed that charge on the basis that the allegedly disrespectful words were inadmissible in evidence for any purpose, because they were spoken in response to an official inquiry not preceded by required warnings under Article 31, UCMJ, and were related to the subject matter of that inquiry, even though the alleged disrespectful words themselves, together with the manner they were spoken, may have constituted a new offense which had not existed prior to their utterance?
On July 12, 1979, Second Lieutenant Wemyss, Platoon Commander, 1st Platoon, and Corporal Baker, Squad Leader,- were looking for the accused, who “had fallen out” of a physical training session. Lieutenant Wemyss saw the accused walking in the platoon area, reading a comic book. At that moment, the morning flag-raising ceremony began, and the lieutenant told the accused to stop and stand at attention. The accused stopped, but he turned his back to the colors, did not stand at attention, and appeared to continue reading his comic book. After completion of the flag-raising ceremony, Lieutenant Wemyss asked accused, “Why didn’t you stand at attention?”; the accused replied, “I don’t have to stand at attention and I don’t care what you say.”
The Court of Military Review held that Lieutenant Wemyss’ failure to inform the accused of his rights under Article 31 rendered the whole of the accused’s reply inadmissible against him in a trial by court-martial, even assuming that the latter part constituted disrespect to his superior commissioned officer. We disagree.
The special relationship in the military between superior and subordinate persons is recognized by the history and purpose of Article 31. See United States v. Duga, 10 M.J. 206 (C.M.A.1981); United States v. Armstrong, 9 M.J. 374 (C.M.A.1980). Because of a subordinate military person’s obligation to respond to the command of his superior, Congress enacted Article 31 to serve as a protection against the inherent tendency of that relationship, either directly or subtly, to induce an accused to respond to a question by the superior. United States v. Duga, supra; United States v. Armstrong, supra; United States v. Gibson, 3 U.S.C.M.A. 746, 14 C.M.R. 164 (1954). Article 31 provides in pertinent part:
(b) No person subject to this chapter may 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*207 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 may be received in evidence against him in a trial by court-martial.
These provisions accord an accused even broader protection than the Fifth Amendment of the United States Constitution [see United States v. Musguire, 9 U.S.C.M.A. 67, 25 C.M.R. 329 (1958)], and may apply in situations far more subtle than the custodial interrogation situation defined by the Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Cf. United States v. Seay, 1 M.J. 201 (C.M.A.1975); United States v. Souder, 11 U.S.C.M.A. 59, 28 C.M.R. 283 (1959).
However, Congress has also recognized the imperative need to protect the status of the superior from disrespect in his relationships with subordinates. See Articles 89 through 92, UCMJ, 10 U.S.C. §§ 889-892. A military leader is charged with the responsibility to carry out the mission of his armed force and is clothed with the authority to demand “a discipline without counterpart in civilian life.” Schlesinger v. Councilman, 420 U.S. 738, 757, 95 S.Ct. 1300, 1313, 43 L.Ed.2d 591 (1975). Thus, there has been both a recognition and balancing of the duties and obligations owing between superior and subordinate.
Here, Lieutenant Wemyss, as a military superior, had a legitimate concern to determine why the accused failed to show respect to the colors. He was aware that the accused had committed, in his presence, a possible violation of the Uniform Code.
I cannot conceive that Article 31 ... requires that every time he talks to a subordinate about an apparent lapse of performance of duty or conduct as a member of the armed forces he must first warn the subordinate of the right to remain silent.
Thus, in acquiring the knowledge necessary to carry out his functions as an officer, Lieutenant Wemyss forewent the possible use of such information as might be incriminating of the accused. But he did not forfeit the respect due him as an officer and superior of the accused. Although this Court has recognized that there are situations where a military superior may conduct himself in a manner inconsistent with his status and office and thereby lose the protection provided by law for that office [see United States v. Richardson, 7 M.J. 320 (C.M.A.1979); United States v. Rozier, 1 M.J. 469 (C.M.A.1976); United States v. Struckman, 20 U.S.C.M.A. 493, 43 C.M.R. 333 (1971); United States v. Noriega, 7 U.S.C.M.A. 196, 21 C.M.R. 322 (1956)], we have never held that failure to give a proper warning, even in a situation where one is required, created a defense to a charge of disrespect to an officer.
Thus, while accused’s response may not be used against him to establish the truth of the charge that he was derelict in his duty to respect the flag, the statement, qua statement, was admissible as evidence of his disrespect toward Lieutenant Wemyss.
Under these circumstances, we hold that failure to give an Article 31 advisement does not bar admission into evidence of the accused’s statement which, by its substance and context, constitutes a separate and distinct violation of the Uniform Code.
. Defense counsel objected to admission of accused's response on the ground that the accused was then suspected of a violation of the Uniform Code of Military Justice and should have received an Article 31 warning. The military judge overruled the objection.
. Lieutenant Wemyss testified that when ordered to stand at attention, the accused reacted with a “[k]ind of a dull stare . . . dull recognition of who we were.” This, in conjunction with the fact that the accused had “fallen out” of “PT” might well have raised a question as to his mental and physical condition at that particular time.
. Compare Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968), with United States v. Haskins, 11 U.S.C.M.A. 365, 29 C.M.R. 181 (1960).
. Had there been a trial before members, a cautionary instruction as to the limiting usage of the statement would have been required. As the accused was tried by military judge alone, we may assume that the judge understood the law and correctly applied it. United States v. Montgomery, 20 U.S.C.M.A. 35, 42 C.M.R. 227 (1970).
. The Supreme Court in Glickstein v. United States, 222 U.S. 139, 142, 32 S.Ct. 71, 73, 56 L.Ed. 128 (1911), stated:
[I]mmunity afforded by the constitutional guaranty relates to the past and does not endow the person who testifies with a license to commit perjury.
See also Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971).