United States v. Borsella

Opinion of the Court Robert E. Quinn, Chief Judge: An Air Force general court-martial in Japan convicted the accused of one charge of wrongful appropriation and several charges of larceny and housebreaking, in violation of Articles 121 and 130, Uniform Code of Military Justice, 10 USC §§ 921, 930. With some modification of the findings of guilty and the sentence, the conviction was affirmed. We granted review to consider a number of assignments of error. Two of the claims of error pertain to the accused’s mental state. It is contended the accused was prejudiced by the denial of pretrial requests for psychiatric examination, and that he was prejudiced at trial by the law officer’s denial of a motion for a psychiatric examination by military authorities and for a continuance until completion of the examination. Since the trial motion is a renewal of the pretrial requests and is supported by the same evidence, we need not consider whether the pretrial motions were denied by the staff judge advocate rather than the convening authority, or even whether, as the accused contends, an erroneous standard was used to decide the motions.1 We can properly review the correctness of the denial of the examination on the basis of the ruling by the law officer. See United States v Mickel, 9 USCMA 324, 26 CMR 104; United States v Wilson, 10 USCMA 337, 342, 27 CMR 411. The need for a psychiatric examination of the accused by civilian doctors is, in an appropriate case, adequate ground for a continuance. See United States v Frye, 8 USCMA 137, 23 CMR 361; United States v Schick, 7 USCMA 419, 22 CMR 209. It is clear, however, that the accused here was not interested in obtaining a continuance for the purpose of examination by civilian doctors. Rather, a continuance was the necessary result of his request for an order for examination “by military authorities.” Consequently, evidence of the cost and the difficulty incident to an examination by Japanese doctors, which was submitted by the accused in support of the trial motion, has no bearing upon the narrow question of whether the accused was properly entitled to an examination by military psychiatrists. The Manual for Courts-Martial, supra, provides that if before trial it appears to defense counsel there is “reason to believe” the accused insane, that fact “and the basis of the observation” should be reported to the convening authority, who will refer the matter to a board of medical officers. Manual for Courts-Martial, supra, paragraph 121, page 201. To justify the reference, however, the report on sanity must indicate a “substantial basis for the belief” that the accused is insane. Other language is used in the Manual to describe the procedures at trial. At that stage of the proceeding further inquiry may be had on “the bare assertion from a reliable source that the accused is believed to lack mental capacity.” Manual, supra, paragraph 1226, page 202. But it is further provided that “a mere assertion” is not “necessarily sufficient” to impose any burden of inquiry. At least, superficially, it would appear that further inquiry may be granted at the trial upon a lesser showing of insanity than seems to be necessary to support a pretrial application. Whether this be so in fact need not detain us. Earlier, we observed that we can appropriately measure the correctness of the [83] denial of the requested examination by the evidence offered at trial. Thus, assuming there are two standards of proof, the measure of the lesser of the two is the touchstone for our review. We note first that defense counsel himself never asserted the accused lacked mental capacity to stand trial or to commit the offenses charged. In the out-of-court hearing on the motion, he iterated and reiterated that the defense was not “alleging that the accused is insane”; it only wanted to be “allowed to find out” what the accused’s mental capacity was. Consequently, if there is even a bare assertion of insanity in the record, it must be found in the six-page report of the Senior Clinical Psychologist of one of the schools of the California Youth Authority, submitted by the defense in support of the motion. The report bears a date almost six years previous to the trial. We have read it carefully. Nowhere in it is there any expression of doubt as to the accused’s mental competency. On the contrary, the psychologist concluded his report with the observation that the accused is of “bright normal in general intelligence,” and shows “no essential emotional pathology nor any distortion of the rational processes nor any basic organic abnormality that is primarily in the etiology.” He indicated the accused was an “affectionately deprived lad,” whose delinquency was symptomic of an attempt “to gain status” and emotional and social satisfaction. The psychologist gave it as his opinion that as the accused matured he could, “with his good mental capacity” and favorable personality traits, “very probably . . . overcome many of his early behavior deviations.” It is impossible to read this report and say it constitutes even a “bare assertion . . . that the accused is believed to lack mental capacity.” It speaks exactly to the contrary. We hold, therefore, that the law officer did not abuse his discretion in denying a psychiatric examination by military authorities. Having ruled properly on that part of the defense prayer for relief, it follows that the denial of the request for a continuance until completion of the psychiatric examination was correct; in other words, there was no reason for a continuance. Turning to another ruling by the law officer, the accused contends that one of his pretrial confessions was improperly admitted into evidence because he made it under a promise of immunity from prosecution. Briefly the claim is based on the following evidence. Some of the charges were pending against the accused on November 28, 1958. On that day he talked with his assistant defense counsel about the “possibility” of entering a plea of guilty to several of the charges. Counsel told the accused that if he entered a plea of guilty and agreed to testify as a prosecution witness in another case, one of the charges of larceny would be dropped and another would be reduced to wrongful appropriation. Counsel also informed the accused that if he pleaded guilty to the charges then pending, he “would not” be prosecuted for any offenses already committed but not yet charged. The defense counsel had “no absolute authority” to give these assurances to the accused. On December 3d the accused had an interview with office of Special Investigations agents. He was properly advised of his rights under Article 31, Uniform Code of Military Justice, 10 USC § 831. During the interview he “remembered that promise” of his counsel and it was that which made him “decide” to give the agents a statement. On cross-examination, he admitted he did not disclose to the agents his reason for making the statement. He also admitted he had furnished “the Japanese” with other statements in regard to the same general matter on November 30th. Before signing the statement, the accused told the agents his attorney would be “displeased” at him for making a statement because counsel had “advised . . . [him] that . . . [he] shouldn’t sign any statements or make any oral or written statements.” The law officer overruled defense counsel’s objection to the admission of the statement for the reason there was no evidence that the Government had- offered any “inducement to the accused.” [84] There is no question but that the accused was advised of and fully understood his rights under Ar-tide 31, and that he acted freely and voluntarily in giving the statement. The latter fact is especially emphasized by his remark that he was acting contrary to his counsel’s advice. The only issue is whether he was improperly induced to confess; and the only evidence of inducement consists of an earlier conversation between the accused and his lawyer which was not disclosed to the Government agents at the time the statement was made. Whether, with the possible exception of fraud, a private conversation between the accused and his lawyer can ever be the basis for the accused’s repudiation of the legal consequences of his free and voluntary confession is not at all certain. See United States v Washington, 9 USCMA 589, 26 CMR 369. That question aside, there is no basis for a claim of unlawful inducement. Considered in the most favorable light for the accused, the evidence shows he confessed because he believed that if he entered a plea of guilty to the pending charges other probable charges would not be pressed. Since he “planned to plead guilty” at the trial, he decided he could ignore his lawyers advice and give the Government a pretrial confession of his guilt. For some undisclosed reason, the accused altered his plans, and at trial actually entered a plea of not guilty. Reduced to its simplest terms, the accused now wants to wipe out the past because he later changed his mind and his conduct. We can best answer that argument with the following lines from Edward Fitzgerald’s translation of the Rubaiyat of Omar Khayyam: “The Moving Finger writes; and, having writ Moves on: nor all your Piety nor Wit Shall lure it back to cancel half a Line, Nor all your Tears wash out a Word of it.” The record of trial contains no evidence which even suggests that the accused’s confession was the product of anything but the accused’s free and uninfluenced will. The law officer, therefore, was entirely correct in admitting his pretrial statement into evidence. Finally, the accused contends the law officer committed prejudicial error by instructing the court-martial on the effect of “prima facie proof.” The same instruction was considered in United States v Simpson, 10 USCMA 543, 28 CMR 109. For the reasons set out in the opinion in that case, we hold that the instruction is erroneous, but not prejudicial. The decision of the board of review is affirmed. Judge Latimer concurs. Footnotes [1] Defense counsel contend that under the Manual for Courts-Martial, United States, 1951, a request for further inquiry into the accused’s sanity should be granted if there is a “substantial basis” for believing the accused is insane. They maintain that the pretrial requests were denied because there was “not conclusive” evidence of insanity presented in support of the motions.