10 C.M.A. 578 | United States Court of Military Appeals | 1959
Lead Opinion
Opinion of the Court
Tried by general court-martial, the accused was found guilty of one specification of aggravated assault and two specifications of assault, all in violation of Article 128, Uniform Code of Military Justice, 10 USC § 928. The court-martial adjudged a penalty of dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for five years. The convening authority approved the sentence, and the board of review affirmed. We granted the accused’s petition for review on the question whether it was prejudicial error to admit in evidence an identification which he made of certain of his clothing without having been warned of his rights under Article-31, Code, supra, 10 USC § 831.
Following the admission of the foregoing testimony, the defense counsel moved that it be stricken as follows:
“DEFENSE: On the basis of Specialist Burgess’ testimony, I am going to ask the court to strike from his testimony and direct the court — ask the law officer to direct the court to not consider it on the grounds that by asking him where his laundry bag was, without reading him his rights under Article 31, constituted an illegal search and seizure, and that any testimony resulting from that would be improper, and that his description of the clothing must be stricken from the court’s mind.
“LAW OFFICER: Any comments from the trial counsel?
“PROSECUTION: Trial counsel, sir, would just like to mention that I think it was brought out that he was apprehended and that this was a lawful search after apprehension.
“DEFENSE: If my recollection serves me correctly, sir, it is in the Taylor case, sir, in 17 CMR, that the request to identify one’s personal property does fall within the purview of illegal search and seizure.
“DEFENSE: We’ll stick with our position, sir, that regardless whether Burgess was moving under the authority of the OD into the room and all, still, asking the accused where his laundry bag was clearly falls within the purview of Article 31 and constitutes an illegal search and seizure.”
The law officer denied the defense motion to strike.
The Government quite properly concedes that the agent’s testimony, establishing that the accused had identified the stained uniform as the one he had worn on the night in question, affirmatively indicates that the information was obtained in violation of Article 31, Code, supra, and should not have been admitted in evidence. United States v Holmes, 6 USCMA 151, 19 CMR 277; United States v Taylor, 5 USCMA 178, 17 CMR 178. It urges, however, that the error was waived, as the objection at the trial level was premised on the ground of illegal search and seizure rather than a violation of Article 31, Code, supra. We are not disposed to accept this contention.
In United States v Shaw, 9 USCMA 267, 26 CMR 47, it was argued before us that certain psychiatric testimony was inadmissible because the record did not disclose that the examining physician advised the accused of his rights under Article 31, Code, supra. In holding that a waiver of the error occurred, we pointed out that, not only was there no objection at the trial, but the defense questioned the doctor at length on several beneficial aspects of his examination. Further, the doctor’s testimony did not indicate that the accused was not advised of his rights, and, had there been a proper objection, the prosecution might well have established the lacking predicate. United States v Shaw, supra, at page 270.
In United States v Dial, 9 USCMA 700, 26 CMR 480, we again had occasion to concern ourselves with a waiver
The foregoing recital establishes the controlling distinctions between Dial and Shaw, both supra, and the situation with which we are now confronted. Contrary to the facts in those cases, this record affirmatively establishes that the accused was required to identify his clothing without the required preliminary advice under Article 31, Code, supra, being given. Further, while inartfully phrased, defense counsel’s objection clearly put the law officer on notice that the principal foundation of his complaint was the failure to warn. Indeed, he cited one of the cases on which the Government bases its concession of error. United States v Taylor, supra. While he did not include its pagination in Volume 17, Court-Martial Reports, we do not agree that this minor imprecision misled either the law officer or the trial counsel. Thus, we brush to one side as frivolous the Government’s argument that Volume 17 contains reports of three decisions entitled United States v Taylor. We decide, therefore, that the accused, by his assertions at the trial level did not waive his right to complain on appeal of the agent’s violation of his rights under Article 31, Code, supra. The admission of the description of the blood-stained clothing as belonging to the accused requires, of course, reversal of the conviction of aggravated assault to which it directly relates.
The findings of guilty of specification 1 are set aside. The record of trial is returned to the board of review which may reassess the sentence on the basis of the remaining findings of guilty or order a rehearing.
Concurrence Opinion
(concurring in the result) :
I concur in the result.
It is clear to me that the law officer was led into believing defense counsel was objecting to the admission of the real evidence secured through the search and seizure because the accused was not advised of his rights under Article 31 of the Code, 10 USC § 831. I do not understand the law to be that when a search, as here, was conducted incidental to apprehension and under orders of the commanding officer, it becomes illegal because of failure to warn. On that aspect of the objection the law officer ruled correctly but his error was in failing to segregate the admissible from the inadmissible testimony and in permitting the Government to show ownership of the clothes and the time they were worn by accused’s admission made prior to being warned of his rights. Had defense counsel stated his objection clearly and properly, however, it is reasonably conceivable that the questioned evidence would not have been admitted.
In spite of the dubious nature of the objection interposed, I am not inclined to rely on the doctrine of waiver, for the colloquy between the counsel and the law officer should have alerted the latter to the inadmissible statements. The real difficulty I encounter in joining in a reversal is that the evidence obtained in violation of Article 31 was