United States v. Endsley

Opinion of the Court HomeR FeRGüson, Judge: Accused, after entering not guilty pleas, stands convicted by general court-martial of twenty specifications, in violation of Article 121, Uniform Code of Military Justice, 10 USC § 921, and intermediate appellate bodies have affirmed. We granted accused’s petition for review to determine whether or not the law officer committed prejudicial error by advising the accused in open court of his right to testify or to remain silent. The facts, insofar as pertinent to this appeal, are as follows: After the prosecution had rested its case, the following colloquy occurred between the defense counsel, who had been certified in accordance with Article 27 (b) of the Uniform Code of Military Justice, 10 USC § 827, and the law officer: “Defense has no opening statement. The rights of the accused as a witness have been explained to him and he elects to remain silent. The defense rests. “LO: Airman Endsley, if you will stand up, I would like to explain your rights to you again. Airman Ends-ley, as the accused in this case you have these rights: First, you may be sworn and take the stand as a witness. If you do that, whatever you say will be considered and weighed as evidence by the court just as is the testimony of other witnesses, and you can be cross-examined on your testimony by the trial counsel and the court. If your testimony should concern less than all of the offenses charged against you and you do not desire to, or do not testify concerning the others, then you may be questioned about the whole subject of those offenses concerning which you do testify but you will not be questioned about any offenses concerning which you do not testify. Second, you may remain silent, that is to say nothing at all. You have a right to do this if you wish and if you do so the fact that you do not take the witness stand yourself will not count against you in any way with the court. It will not be considered as an admission that you are guilty, nor can it be commented on in any way by the trial counsel in addressing the court. Take time to consult with your counsel and then advise the court whether you wish to testify or to remain silent.” [Emphasis supplied.] [257] Appellate defense counsel urges that we reverse accused’s conviction upon the basis of United States v Allinder, 9 USCMA 575, 26 CMR 355. There the law officer remarked to the defense counsel in open court: “I think you can establish what your’re [sic] trying to establish by asking the accused questions.” In finding that this action constituted prejudicial error necessitating reversal, we said in part: “The law officer cannot comment upon the failure of the accused to take the witness stand. Paragraph 726, Manual for Courts-Martial, United States, 1951. Neither can he directly or indirectly indicate that the accused should or must testify. “. . . In our opinion, the law officer’s general instruction to disregard any comment he may have made in regard to the guilt or innocence of the accused did not cure the error.” In our opinion the law officer’s advice to the accused, which we note was a verbatim recitation of the explanation to be given an accused as suggested in Appendix 8a, Manual for Courts-Martial, United States, 1951, falls short of being a “comment” upon the accused’s failure to take the stand within a fair meaning of that concept as embodied in Allinder, supra. The aforesaid suggestion embodied in Appendix 8a of the Manual, supra, is prefaced as follows: “NOTE. — Unless there is an affirmative showing of record that the accused understands his rights as a witness, the court should assure itself through the LO (president of a special court-martial) by questions addressed directly to the accused that he understands his rights. The following explanations may be used: Here, the qualified defense counsel did make such an affirmative showing of record that the accused had been advised of his rights. The procedure followed by the law officer in the instant case appears to be a hold-over from the time when the accused was not represented by a qualified lawyer and it was uncertain as to whether he would be properly advised of his rights. See United States v Rinehart, 8 USCMA 402, 24 CMR 212. We regard the procedure as unnecessary and undesirable under the system developed under the Uniform Code. Certainly we attribute no improper motive to the law officer, but his insistence on again advising the accused of his right to testify or not to testify and his requiring the accused to rise and announce his decision was inappropriate even under the Manual, supra. The Manual for Courts-Martial procedural item employed by the law officer in the present case was designed primarily to insure that the accused be aware of his rights. When the accused is represented by qualified counsel, there should be little need for the law officer to advise him regarding his fundamental rights since any qualified counsel should be fully aware of his obligation to render advice to his client in this regard. Undoubtedly, if the defense counsel announces that the accused has been so advised, there would appear to be no necessity for any action by the law officer. In this regard, affirmative action by the law officer would ordinarily be limited to those cases where no showing has been made, or a showing which the law officer finds to be inadequate has been offered that the accused has been adequately informed as to his fundamental right to testify or not to testify. See the comparable holding regarding the warning on a witness’s right to claim self-incrimination. United States v Howard, 5 USCMA 186, 17 CMR 186, concurring opinion of Chief Judge Quinn. In any event, should the law officer feel impelled to inform the accused in this regard, we believe it would be a far better practice to call defense counsel to the bench and inquire accordingly or to act in an out-of-court session if necessary. In this connection, we take occasion to criticize the statement in paragraph 53h of the Manual, supra, that such explanation be given to the accused “in open court,” since such a procedure might result in emphasizing the ac [258] cused’s failure to testify in the minds of the court-martial members. Assuming here, without deciding, that the law officer’s action constituted error, we look to the result. In so doing, we find no prejudice. The record of trial clearly displays an abundance of caution and solicitude for the rights of the accused by the law officer. The decision of the board of review is affirmed. Chief Judge QUINN concurs.