Opinion of the Court
A general court-martial convened at Stuttgart-Vaihingen, Germany, convicted the accused of premeditated murder and sentenced him to death. The board of review affirmed the findings of guilty, but reduced the sentence to life imprisonment, dishonorable discharge, and forfeiture of all pay and allowances. The accused has brought the case to this Court on fifteen assignments of error.
Four of the claims of error deal with the accused’s mental condition. In different forms, two of these allege that the accused was prejudiced by his counsel’s failure to raise, at trial, issues as to his competency to understand the proceedings against him and his ability to adhere to the right, at the time of the commission of the offense. See Brubaker v Dickson, 310 F2d 30 (CA9th Cir) (1962). The record, however, indicates that, before trial, defense counsel requested a psychiatric evaluation of the accused. In response thereto, a board of medical officers at the 2d General Hospital, Landstuhl, Germany, examined the accused from January 30 through February 11, 1963. Also, previous to the offense, the accused had been examined on separate occasions by other psychiatrists. The purpose of these examinations was to determine whether he should be administratively discharged. The reports of these psychiatrists were known to defense counsel. In one, the doctor certified there was “no evidence of any mental disorder, of psychotic proportions,” and the accused was “mentally responsible, able to distinguish right from wrong and to adhere to the right, and has the mental capacity to understand and participate in board proceedings.”
Various psychological and neurological tests were administered to the accused during his stay at the 2d General Hospital. The results of these tests and the reports of the previous psychiatric examinations were also considered by the board of medical officers. No evidence of “neurological or psychiatric disease” to impair the accused’s “appreciation of reality” was found by the board. Neither did it find any evidence to indicate the accused was “unaware of his actions” at the time of the offense. It concluded the offense was not the result of any mental illness, disease or defect, and that the accused was at all times able to adhere to the right, and to act cooperatively and intelligently in his own behalf.
_ Competent lay testimony, as well as expert opinion, may be sufficient to raise an issue as to the accused’s mental condition. All the expert opinion was adverse to the accused. The mass of other information, apparently assembled by defense counsel, contained only vague allusions to a possible problem; and these the experts had examined and disregarded. The allusions were too insubstantial by themselves to merit serious consideration. Faced with these facts, was it wrong for defense counsel to conclude he had no legitimate sanity issue? We think not. In our opinion, defense counsel was not bound to continue his search on the possibility that he might ferret out a psychiatrist or psychologist willing to testify to a contrary opinion, or a lay person who knew the accused but believed him to be of unsound mind. The fact that expert opinion to that effect was eventually obtained after the trial does not necessarily brand counsel’s efforts or judgment before trial as incompetent or inadequate. On the record before us, we are satisfied that, in this aspect of the case, defense counsel’s efforts were adequate and his professional judgment was sound.
After the trial, appellate defense counsel obtained additional information as to the accused’s sanity. Two psychiatrists and a clinical psychologist reviewed the previous material and some supplemental data, and concluded that the accused was mentally incompetent. Their reports were submitted to the board of review. Also before the board of review were a post-trial psychiatric evaluation of the accused by a board of medical officers at the United States Disciplinary Barracks, Fort Leavenworth, Kansas, and a report by the Chief of the Psychiatry and Neurology Division, Office of the Surgeon General, Department of the Army. These reports confirmed the pretrial evaluations of the accused’s mental capabilities. With the consent of the accused, the board of review directed another examination. A medical board examined the accused and reviewed all the previous medical opinion in the case. The findings and opinions of this board coincided with those of the pretrial psychiatric evaluations.
Reviewing all the material evidence on the matter, the board of review indicated it was “satisfied beyond a reasonable doubt that there is no issue of mental responsibility or competence.” Appellate defense counsel contend that, since the opinions of their experts were before the board
Three assignments of error challenge the admission in evidence of a pair of trousers, stained with several small spots of blood, which was obtained in a search of the accused’s locker. The board of review held that an objection by defense counsel did not go to the question of the legality of the search and seizure. Therefore, it did not consider the merits of the issues raised by the assignments. See United States v Gebhart,
Our interpretation of the defense position at trial does not aid the accused. A chemist at the United States Army Criminal Laboratory, Frankfort, Germany, testified he examined the blood spots on the trousers. Although he determined the blood was of human origin, he was unable “to type” it. His testimony in no way connected the blood spots with the offense. All the evidence as to the trousers contributed nothing significant to the case against the accused. The other evidence against the accused included a pretrial statement in which he admitted he inflicted the stab wounds on the victim and the discovery of his dog tags in the victim’s apartment. From any point of view, even assuming the trousers should have been excluded, their admission in evidence did not prejudice the accused. United States v Smith,
On various grounds set out in five assignments of error, the accused contends that two pretrial statements in which he confessed to killing the victim were erroneously admitted in evidence. The factual background relating to these contentions can be briefly summarized.
The dead body of Maria Margarete Seipelt, forty-one-year-old proprietress of the Gasthaus Sonne in Ossweil, Germany, was found in the street several yards from the entrance to the Gasthaus, at about 2:00 a.m., November 17, 1962. She was clad only in a nightgown and shoes. The body bore multiple stab wounds in the back, chest, and head. A trail of blood spots led from the body to an apartment above the Gasthaus, which was occupied by
At trial, the prosecution offered the November 17th statement in evidence, but on defense counsel’s objection, the law officer ruled it inadmissible because the accused had not properly been advised of his rights under Article 31, Uniform Code of Military Justice, 10 USC § 831. A second sworn statement was made by the accused to a third investigator, on the afternoon of November 21st. Defense counsel objected to the admissibility of this statement on the ground it was the product of the inadmissible statement of November 17th. The accused testified in open court in support of the objection. He admitted that previous to making the statement he had been informed of his rights under Article 31; that at the time he had understood his rights under the Article; that he knew he did not have to make any further statement, but nevertheless he made one of his “own free will.” However, he maintained he made the second statement because “according to the first statement that was taken, — then necessarily, —give me any reason not to give a second statement.” The law officer overruled the objection and admitted the second statement.
Improper procurement by the Government of a particular item of evidence does not immunize the accused from the use by the Government of similar items of evidence which were thereafter legally obtained. The connection between the two items may be so attenuated that the taint of the first does not affect the second. Wong Sun v United States,
Where there are successive statements, it is not a precondition to the admission of a properly obtained statement, that the accused be informed that a previous statement cannot be used against him. Monge, supra, page 100. But the fact that an inadmissible statement was previously obtained is a factor to be considered in determining the volun-tariness of the later statement. United States v Powell,
We also find no merit in the conten
Between the accused’s trial and his petition to this Court, the Supreme Court of the United States decided Escobedo v Illinois,
This Court has always been alert to the accused’s need for counsel at all stages of the proceedings against him. We are not persuaded, however, that the right to counsel must be extended to include the investigative processes. Under Article 31 of the Uniform Code of Military Justice, the accused must be informed he has the right to say absolutely nothing; but if he speaks, whatever he says may be used against him in a trial by court-martial. And, it must appear that the accused understands his right to remain silent. If the accused exercises his right to say nothing, but the agent persists in continuing the interrogation, such continued questioning may constitute coercion, and invalidate any statement obtained in the interrogative session. Nothing in the Uniform Code, supra, or in the decisions of this Court, and nothing in our experience with military methods of interrogation, indicate that the only feasible way to give maximum effect to the Constitutional right to the assistance of counsel is that the accused have counsel beside him during police questioning. Cf. United States v Moore,
A third aspect of the group of alleged errors, in the admission of the pretrial statements, deals with the testimony of Dr. Thomas B. Hauschild. Dr. Haus-child was Chief of the Psychiatric and
In United States v Higgins,
Before the board of review, and in this Court, the accused enlarged the scope of his objection to Dr. Haus-child’s testimony. He now contends that when “a psychiatrist examines an accused solely for the purpose of testifying on the issue of mental competency or responsibility, he should not be permitted to relate to the court any statements made by the accused which pertain largely to the question of guilt or innocence.” He places heavy reliance upon 18 USG § 4244, which establishes a proceeding for the Federal district courts in which to determine, before trial, the accused’s mental competency to stand trial. In part, the statute provides : “No statement made by the accused in the course of any examination . . . , whether the examination shall be with or without the consent of the accused, shall be admitted in evidence against the accused on the issue of guilt in any criminal proceeding.” In United States v Shaw,
Many valid reasons are apparent to support the Manual rule. For example, medical examination or treatment in the military is often required for official purposes unrelated to prosecution for a violation of the Uniform Code of Military Justice. Cf. United States v Wilson,
Military criminal practice “parallels, but does not duplicate, that in the civilian community.” United States v Kirsch,
A Criminal Investigations Detachment agent was the Government’s last witness. After he had given his name and organization, the law officer interrupted the examination to caution trial counsel to “hide” something he had in his hand. He also indicated that if the object had been obtained as a result of the November 17 th statement, which he had ruled to be inadmissible, it, too, would be excluded. At trial counsel’s request, an out-of-court hearing was held. The record of this hearing shows that the object in trial counsel’s hand was a knife covered by a black sheath. Trial counsel offered to prove that the knife had been obtained in a search of the roof of the building in which the accused lived. However, when the witness indicated the search had been made on November 17th, as the result of information received from the accused, trial counsel withdrew his proffer of the knife. At that point, defense counsel moved for a mistrial. He noted that, several times during the trial, the law officer had had to caution trial counsel for holding objects in his hand in a way which made them visible to the court members before the objects were offered into evidence. The motion was denied. The accused contends he was prejudiced by this ruling.
On his own initiative, the law officer had cautioned trial counsel three times about his handling of the exhibits. The first occasion occurred about midway in the trial. Five photographs, showing various views of the stab wounds on the victim’s body, had been marked Prosecution Exhibits 20 through 25 for Identification. Just before they were offered in evidence, the law officer instructed trial counsel to keep them turned in the direction opposite to the court members. Eventually, four of the exhibits were admitted into evidence; the fifth, Prosecution Exhibit 24 for Identification, was excluded, on defense counsel’s objection that it was cumulative. Assuming the court members were improperly permitted to see the photographs before they were admitted in evidence, there certainly is no basis for the claim of prejudice as to the four photographs which were finally submitted to the court members. By defense counsel’s own assessment, the fifth photograph was merely cumulative. As such, it can hardly be regarded as prejudicial. See Simmons v United States, 308 F2d 324 (CA DC Cir) (1962).
A pair of shoes and the knife contained in the sheath were eventually ruled inadmissible by the law officer. From certain remarks by the law officer it may fairly be inferred that the shoes were visible to the court members; it is, however, questionable whether the knife w;as seen by them. For present purposes, we may assume both were observed. The assumption does not import error in the law officer’s ruling. At the time of the motion for a mistrial, the evidence against the accused included two pretrial confessions and 'the fact that the accused’s identification tags were found in the victim’s
In addition to the photographs mentioned above, the law officer admitted three other photographs, reflecting different views of the body of the victim at the place of its discovery in the street. At trial, defense counsel contended that certain of the photographs were unduly inflammatory; appellate defense counsel have extended the objection to all. One of the photographs could have been ruled out as cumulative and unnecessary to a full understanding of the location and nature of the bruises it was intended to show. However, the law officer has wide discretion in the admission of evidence of this kind, and we find no abuse of his discretion in the admission of even this exhibit. United States v Hurt,
In the last assignment of error, appellate defense counsel contend the accused was denied due process of law because, at trial, defense counsel failed to present any evidence m mitigation and offered no argument against the death sentence. For three days, defense counsel represented the accused with competence and vigor. Time and again, he presented multiple objections to exhibits and testimony damaging to the accused. As the board of review observed, he waged “a hard fought, hotly contested” case up to the findings. But, except for some incidental comments, defense counsel was unaccountably silent during the sentence proceedings. He offered no evidence in mitigation; and he presented no argument as to the sentence, even though trial counsel demanded the death penalty.
In this unusual and ambiguous situation, the law officer should have had an out-of-court conference to determine, if possible, the reasons for defense counsel’s silence at this critical time. The board of review considered several possible explanations, some militating against the accused. However, it resolved all doubts in the accused’s favor. That decision was correct. It observed that by law the court-martial could adjudge only death or life imprisonment for premeditated murder. Article 118, Uniform Code of Military Justice, 10 USC § 918. It then reviewed “all of the circumstances of the case” and concluded that only the lesser punishment should be affirmed. This action removed all risk of prejudice resulting from the alleged deficiency in defense counsel’s representation of the accused in the sentence proceedings. United States v Weaver,