United States v. Souder

Opinion of the Court HomeR FeRguson, Judge: Tried by special court-martial, the accused was found guilty of larceny of two accordions, in violation of Uniform Code of Military Justice, Article 121, 10 USC § 921, and sentenced to bad-conduct discharge, partial forfeitures, reduction in grade, and confinement at hard labor for six months. With some reduction in sentence, intermediate appellate authorities affirmed, and we granted review on the issue of whether accused was prejudiced by receipt in evidence of incriminating statements made by him to a Lieutenant (jg) Gallagher. Two accordions were stolen from an automobile belonging to a person in the naval service. He duly reported his loss to naval security personnel, and they in turn advised local music stores to be on the lookout for the instruments. The accused, accompanied by a fellow sailor, entered a music store in the area, owned and operated by Lieutenant (jg) Gallagher. In their possession was one of the stolen accordions. Lieutenant Gallagher, at all times pertinent hereto a naval officer on active duty, noted that the accordion fitted the description of one of the stolen instruments given him by security personnel. The accused and his companion offered to sell the instrument. Lieutenant Gallagher proceeded to haggle over the price and “bid very low on it, so that they would be thinking about the price rather than the possibility of suspecting anything was at fault or that I might be an officer or that I might be going to call the police or something like that.” Gallagher obtained from the accused and his friend an admission that they owned the accordion and had obtained it “a certain way aboard ship.” He subsequently sought to have both men sign a bill of sale and, after accused’s companion affixed his signature to the document, identified himself as a naval officer and took them into custody. Gallagher’s purpose in interrogating the suspects is made crystal clear by the following declarations in his testimony: “Q. Did you tell these two men that it wasn’t worth $15.00 and would probably take about $60.00 to repair ?' “A. Yes, I did. The reason for that was I have never been on the apprehension end of any military offense, have been legal officer and counsel on cases and I must admit, I was a bit nervous. So I planned it so these men would have something to think about and I could keep talking and give them more to think about so I wouldn’t give myself away. I wanted them to think about the accordian [sic] and the haggling and the price and not anything I might do to give away my status. “Q. You don’t know which one did the talking? “A. No. While I was interviewing them I naturally being aware of the situation, I questioned them very closely as to who this instrument belonged to and made them explain how it happened it belonged to both of them and not just one, and they said ‘well, we, just got it aboard the ship a certain way and it belongs to both of us.’ and in doing so I wanted to make sure either one or the other or both of them would be committed on [61] the actual possession of the instrument. “Q. How did they come about then, that Poston had signed the slip, and not the accused? “A. After identifying myself and asking them for their I.D. Cards, Poston was standing next to me and I realized later that it was my error by not getting both of them to sign. I am certain, reasonably certain at the time, that if I had asked this man for his signature he would have given it to me.” Code, supra, Article 31(b), 10 USC § 831, provides pertinently: “(b) No person subject to this chapter may interrogate, or request any statement from, an accused or a person suspected of an offense without first informing him of the nature of the accusation and advising him that he does not have to make any statement regarding the offense of which he is accused or suspected and that any statement made by him may be used as evidence against him in a trial by court-martial.” Whether viewed from the standpoint of the accused or that of his interrogator, it is obvious that Lieutenant Gallagher was under a duty to advise both sailors of their rights under Code, supra, Article 31, prior to questioning them concerning the stolen musical instrument. He was a “person subject to this chapter” interrogating an individual whom he “suspected of an offense.” In fact, it is patent from his testimony, quoted supra, that Lieutenant Gallagher conversed with the accused and his companion for the express purpose of obtaining incriminating admissions from them. His only apparent regret was his failure to obtain the accused’s signature on the bill of sale for the accordion. Regardless of the quantum of the other evidence in the case, reversal must follow. United States v Williams, 10 USCMA 578, 28 CMR 144. The decision of the board of review is reversed and the record of trial is returned to The Judge Advocate General of the Navy. A rehearing may be ordered.