No. 9645 | United States Court of Military Appeals | Jan 17, 1958
Lead Opinion
Opinion of the Court
A general court-martial, convened in August 1956, at the Presidio of San Francisco, found the accused, Captain Cleary W. Melville, guilty of having wrongfully cohabited with Mrs. Lore 'Rosa Tipton, a woman not his wife. The accused officer was sentenced to be dismissed from the service and to forfeit all pay and allowances. From the board of review’s affirmance of the findings and sentence, the accused before this Court urges several errors upon which he seeks reversal of his conviction. His major contention is that he was prejudiced by the involuntary exclusion of his individual counsel during a pretrial interrogation conducted by agents of the Criminal Investigation Detachment. Additionally, he claims that the law officer erred in instructing the court on the maximum authorized sentence.
The issue relating to the exclusion of the accused’s civilian counsel during an interrogation by agents of the Criminal Investigation Detachment arose in the following manner. On or about April 15, 1956, the accused became aware that his relationship with Mrs. Tipton had ripened into the subject of a criminal investigation. He immediately retained the services of civilian counsel to advise and assist him. On April 17, 1956, the accused was requested to appear at the Criminal Investigation Detachment office. He ar
At trial the accused testified he had been advised that he was suspected of having committed the offenses of forgery and adultery and had been read Article 31, Uniform Code of Military Justice, 10 USC § 831, and explained his rights by the agents. During this session he was requested to make a written statement, which he declined to do until he had first “consulted with counsel.” He was thereupon released and requested to return within the next few days.
Following this first interrogation, the accused and his counsel returned to the latter’s office where counsel contacted Agent Hallett and complained that the agent had taken advantage of him by misrepresenting the nature of the interrogation. Two days later, however, the accused returned to the Criminal Investigation Detachment office, where he was once more warned of his rights under Article 31, supra. Civilian counsel once again accompanied him, and once again waited in the anteroom. During this second session, the accused assisted the agents in preparing a statement. While the statement was being typed the accused was permitted to visit the hospital in order to obtain medication for a heart condition. Upon his return, he read and signed the statement, which was subsequently admitted into evidence at trial. The accused acknowledged that he knew he did not have to make a statement and that any statement he did make could be used against him. He also agreed that no promises or threats were used in obtaining the statement.
Counsel vigorously objected to the statement’s admission on the ground that he had not been permitted to be present during the interrogation. He asserted that had he been present, the accused would not have incriminated himself. He also argued that had he been advised of the true nature of the interrogation, he would have properly advised the accused though not present himself. An out-of-court conference was held in which Agent Hallett readily admitted that he had dénied counsel the opportunity to be present. He based his denial on “[o]ur Manual for Criminal Investigation, FM 19-20, dated July 1951,
I
The case at bar differs substantially from the recent cases of United States v Gunnels, 8 USCMA 130" court="None" date_filed="1957-07-19" href="https://app.midpage.ai/document/united-states-v-gunnels-8571803?utm_source=webapp" opinion_id="8571803">8 USCMA 130, 23 CMR 354, and United States v Rose, 8 USCMA 441" court="None" date_filed="1957-11-22" href="https://app.midpage.ai/document/united-states-v-rose-8571939?utm_source=webapp" opinion_id="8571939">8 USCMA 441, 24 CMR 251. In Gunnels, supra,
We believe that under the circumstances presented, the accused was not prejudiced by the exclusion of his counsel during interrogations. Under our approach to the case we need not reach the specific issue raised for the statement admitted in evidence was voluntarily obtained after the accused had sufficient, opportunity to consult with counsel. Nothing of an incriminating nature arising out of the first interrogation was presented. Concerning the second interrogation, during which the statement was obtained, the accused conceded that he was fully advised of his rights and that he received neither promises nor threats by the agents. Thus, in our view, we believe it unnecessary to decide the first issue. We do not, however, wish to be understood in any manner as placing our approval on the practice of excluding the presence of individually retained counsel from an interrogation prior to the pre-ferral of charges. We simply do not reach that issue in this case.
II
This leaves for consideration the question of the law officer’s instructions on the maximum sentence. The accused contends that the maximum imposable period of confinement for the offense of wrongful cohabitation is the same as that for any other general disorder, namely, confinement at hard labor for four months and partial forfeitures of two-thirds pay per month for a like period. The law officer had advised the court that because of the inclusion of the words “a married man” in the specification, the offense — for sentence purposes — could be equated to that of adultery which carries a maximum period of confinement of one year. Before this Court the Government took the position that the law officer had correctly stated the maximum sentence and that assuming arguendo he was in error, the accused could not have been prejudiced by reason of the fact that the court adjudged a sentence no more severe than dismissal and total forfeitures.
The Table of Maximum Punishments, Manual for Courts-Martial, United states, 1951, makes no specific provision for the offense of wrongful cohabitation. From this circumstance the Government argues that cohabitation by a married man with a woman not his wife is “closely related” to the ' offense of adultery so that the maximum punishment prescribed for that offense is authorized.
“. . . there was an attempt by the Government in pleading the marital status of the accused to allege a more serious degree of the offense of wrongful cohabitation. It is the opinion of the Board that such language is unnecessary, and that the Government should not be permitted to create new and more serious degrees of simple and well-established offenses.
“The laws of many, if not most, jurisdictions denounce unlawful or ‘lewd’ cohabitation of persons not married to each other as a misdemeanor. . . . However, our attention has been directed to no statute on this subject which provides different or heavier penalties depending upon the marital status of either party to the transaction. Prosecution under such statutes is normally had in courts of limited jurisdiction, and not infrequently have as their principal object some purpose in addition to the punishment of the offender or his reformation.”
We believe the Smith case is the better reasoned opinion in that the conduct alleged in this specification is not so closely related to and destructive of military discipline that it should be punished as a felony in the absence of some specific provision contained in the Table of Maximum Punishments. Wrongful cohabitation differs in many respects from the offense of adultery. In a prosecution for the latter offense, it is necessary to prove that one of the parties to the relationship was married at the time the offense was committed, whereas the offense of wrongful cohabitation requires no such proof. 1 Am Jur, Adultery, §§ 6 and 7; Evans v Murff, 135 F Supp 907 (D Md) (1955). Another critical distinction between the two offenses is that an essential element of adultery is that sexual intercourse be shown while the offense of wrongful cohabitation contains no such element although quite often intercourse is inferred by the very nature of the relationship. 1 Am Jur, Adultery, § 9.
An accused is entitled to know with some degree of specificity the nature of the offense of which he is accused in order that he can intelligently and properly prepare his defense. By charging the accused with the offense of wrongful cohabitation, the prosecution was relieved from the duty of proving that sexual intercourse had taken place. It therefore seems manifestly unfair to us now to permit the accused to be punished on the basis of the more serious offense of adultery, which in the military is classified as a felony. We conclude, therefore, that the offense of wrongful cohabitation is punishable
The decision of the board of review with respect to the findings of guilty is affirmed. The sentence, however, is set aside and a rehearing on the sentence is ordered.
Paragraph 63 of the Field Manual provides:
“. . . In response to a request by the person being questioned for legal counsel, the investigator should courteously but firmly refuse and state that the Uniform Code of Military Justice does not provide for counsel prior to charges being preferred.”
This paragraph is headed “RIGHTS OF PERSON BEING INTERROGATED,” and it would appear that this provision is only applicable to the accused’s entitlement to appointed military counsel and has no application to the accused’s retention of individual civilian counsel. See United States v Moore, 4 USCMA 482, 16 CMR 56.
Paragraph 127c, Manual for Courts-Martial, supra, makes the following provision in the event a particular offense is not specifically listed in the Table of Maximum Punishments.
“The punishment stated opposite each offense listed in the Table of Maximum Punishments is hereby prescribed as the maximum punishment for that offense, and for any lesser included offense if the latter is not listed, and for any offense closely related to either if not listed. If an offense not listed in the table*601 is included in an offense which is listed and is also closely related to some other listed offense, the lesser punishment prescribed for either the included or closely related offense will prevail as the maximum limit of punishment.”
At trial, Mrs. Tipton testified that she had never engaged in any illicit relationship with the accused and that while living with him she shared a room with his mother, but never with him.
Concurrence in Part
(concurring in part and dissenting in part) ;
I concur with my associates on the disposition of the first issue, but I dissent from the holding that the law officer erred in his instruction on the maximum sentence imposable.
I find no reason to decide this case on the theory that an accused is entitled to know the nature of the offense of which he is charged in order to prepare his defense. That is a proper principle of law, but it has no relevancy to the issue in this case. Here the specification is certain and the accused was put on notice that he, as a married man, must defend against a charge that he unlawfully cohabited with a woman not his wife for some sixteen-odd months. He was found guilty of that offense, and the legal and factual issues involved in that conviction were resolved adversely to him before the question which now concerns us arose. Here we deal with a question of law, and the accused was and is free to meet the issue in any manner he desires.
The President of the United States has been empowered to fix the maximum sentences for offenses and, therefore, I look to the Manual for guidance. It is conceded by all that this offense is not specifically listed in the Table of Maximum Punishments, and when that situation exists, paragraph 127e of the Manual is controlling. It provides:
“The punishment stated opposite each offense listed in the Table of Maximum Punishments is hereby prescribed as the maximum punishment for that offense, and for any lesser included offense if the latter is not listed, and for any offense closely related to either if not listed. If an offense not listed in the table is included in an offense which is listed and is also closely related to some other listed offense, the lesser punishment prescribed for either the included or closely related offense will prevail as the maximum limit of punishment.”
The offense of adultery is listed and, from the foregoing, it is apparent that if the offense charged and proven is lesser included therein or closely related thereto, the punishment listed for the former is appropriate in this instance. Even a cursory reading of the specification and the transcript of testimony will disclose how closely similar the pleadings and facts of the case are to those necessary to allege and prove the crime of adultery. The accused was a married man and he lived openly and notoriously with an enlisted man’s wife over an extended period of time. Those circumstances might have supported a finding of sexual relations. However, regardless of the absence of proof of specific acts of intercourse, the conduct of the accused so nearly equates to the behavior of an adulterer that I see little difference in its impact on both the civilian and military societies. It offends against the canons of decency and so prejudicially affects the credit of the military service that to hold it to be no more than a mere disorder for punishment purposes is contrary to my concepts of proper military jurisprudence. Disorders are generally considered to be offenses which are petty, and I would not force a crime which demoralizes the military community into that class.
For the foregoing reasons, I would affirm the decision of the board of review.