Lead Opinion
Opinion of the Court
As а consequence of Ms activities on the nights of July 1 and 3, 1968, the appellant was convicted by a general court-martial on three counts of larceny. His sentence now consists of a bad-conduct dischаrge, total forfeitures, and one year’s confinement at hard labor. Truman has successfully petitioned this Court to consider the following two instructional issues:
Whether the law officer’s instructions on the voluntariness of аppellant’s confession were so confusingly structured and worded that they failed to provide the court-martial with meaningful legal guidelines.
Whether the law officer erred by failing to instruct the court-martial that the Government has the burden of proving appellant did not in any manner indicate he did not wish to be interrogated before his alleged confession could be found voluntary, as raised by appellant’s testimony.
On July 8, 1968, authorities confronted the appellant regarding the two larcenies of July 3, 1968. On that day he was interrogated separately by Military Police Investigator Noffsinger and by his company commander, Captain Motley. To bоth he professed innocence, telling Noffsinger that he had been in San Francisco, California, on the night in question, and the Captain that he did not want to make a statement and that he had not been involved. In eаch instance Truman was advised of his Article 31 rights and his right to counsel.
Statements by others that conflicted with his assertions, however, plus information regarding the earlier larceny, resulted in Noffsinger’s meeting with him twice the following dаy. Only one hour intervened between these meetings, but nevertheless the appellant was twice warned. Noffsinger said Truman acknowledged that he understood his rights and then rejected the assistance of counsel. When made aware of information then in Noffsinger’s possession, the appellant became visibly shaken and asked to speak in private to his commanding officer, who was then present. Noffsinger left the rоom.
According to the Captain, Truman initiated this five or ten minute conversation by asking if he would receive a court-martial or “get a 212 out of the Army”
At trial Truman continued to assert his innocence, contending that he confessed after being promised a “212” discharge by Captain Motley, аnd that this was the sole reason for his confession. Such a discharge had first been mentioned on July 8, 1968, when,
The defense moved at trial to suppress the introduction of the appellant’s confessions. These motions, which were grounded on involuntariness, inadequate warning, and violation of Miranda v Arizona,
“The court is advised that the issue of voluntariness has been raisеd by the evidence with respect to the pretrial oral statement of the accused. With regard to the contention of counsel for both sides concerning this issue, you must consider all the relevant facts аnd circumstances; including, but not limited to, evidence presented by the accused, with regard to the statement. While the accused was suspected of an offense, and a person subject to the Uniform Codе of Military Justice, and that before this statement was obtained from the accused, he was not advised;
“First: Of the nature of the offense of which he was then suspected;
“Second: He was not advised of his right to remain silent;
“Third: That any statement he made may be used as evidence against him in a criminal trial; and
“Fourth: That he had the right to consult with counsel, and to have counsel present with him during the questioning;
“Fifth: That he could retain civilian counsel at his own expense, or, if he wanted military counsel, he would be appointed for him at no expense to the accused.
“This warning is an absolute prerequisite to questioning. No amount of evidence that an accused may have been apрrised or made aware of his rights, will suffice in its stead.
“The law further requires that after being so advised, and before making a statement in the absence of counsel, the accused must first freely, knowingly, intelligently, and specifiсally waive his right to remain silent, and his right to consult with counsel, and to have counsel present with him during the questioning. A statement obtained from the accused is involuntary, and may not be used against him, unless the Government has proved beyond a reasonable doubt that the accused was warned, and all the warnings given to the accused prior to questioning. Also, if you find any of those warnings were not given to the accused, beyond a reasоnable doubt, then you must disregard his statement in its entirety.
“Now, if you find from the evidence before this court . . . from the testimony, that the accused made his statement on the basis that he was going to get an administrative discharge, thаt is an unlawful inducement, and if the court finds that, they must disregard the statement made by the accused to Noffsinger, and to Captain Motley, and not consider it for any purpose whatsoever. As I say, the burden to establish the fact that the statement was voluntary on the part of the accused, and that he waived his rights, and that he knew what he was doing before that . . . but, and I want to reiterate again, that if he made that statement*507 to Captain Motley and Noffsinger on the basis that he was going to get an administrative discharge, that is unlawful inducement, and you must disregard the statement that he made, in other words, confessing to the larcenies, and not consider it for аny purpose whatsoever.”
Appellate defense counsel attack the instruction as being unintelligible, for providing the court-martial with an erroneous warning prerequisite as well as an erroneous burden of proof standard, and for failing to cover his request for counsel. They urge that it cannot be cured by subsequent instructions, citing United States v Waller,
The instruction is obviously not a model of clarity, but syntactical nicety is not the standard of instructional adequacy. In United States v Smith,
In the case at bar a single sentence covering the Government’s burden of proof is submerged by the accompanying misadvice. If the court found that essential warning elements were not given beyond a reasonable doubt then the statеment was to be disregarded. Similarly, they were to disregard the appellant’s statement only if they affirmatively found unlawful inducement. In each instance, the burden of proof was obviously and erroneously shifted to this appellаnt. United States v Odenweller,
The decision of the Court of Military Review is reversed. The findings and sentence are set aside. The record of trial is returned to the Judge Advocate General of the Army. A rehearing may be ordered.
Notes
Army Regulation 635-212.
Dissenting Opinion
(dissenting) :
I am satisfied that the final instructions as to the voluntariness of the confession were understood by counsel and the court members to be controlling. This last statement was explicit and correct and left no doubt that the burden of proving the voluntariness of the confession was on the Government and that the finding of voluntariness had to be beyond a reasonable doubt.
As to the second issue, although the accused twice indicated to the Military Police investigator that he did not wish to make a statement, the record indicates that substantial additional evidence implicating the accused was ob
I would affirm the decision of the United States Army Court of Military Review.