United States v. Gorko

Opinion of the Court Kilday, Judge: A tragic incident at Forbes Air Force Base, Kansas, led to accused’s trial by general court-martial on a charge of premeditated murder, in violation of Article 118, Uniform Code of Military Justice, 10 USC §918. He was convicted of the lesser included crime of unpremeditated murder under the same Article and was sentenced to dishonorable discharge, total forfeitures, and confinement at hard labor for twenty-five years. The convening authority approved, but thereafter a board of review set aside the findings and sentence and ordered a rehearing. Pursuant to Article 67 (b) (2), Uniform Code of Military Justice, 10 USC § 867, The Judge Advocate General of the Air Force has filed a certificate for review of the board’s decision, requesting this Court to resolve the following issue: “WAS THE BOARD OF REVIEW CORRECT IN DETERMINING THAT, UNDER THE FACTS OF THIS CASE, THE LAW OFFICER COMMITTED PREJUDICIAL ERROR BY FAILING TO SUBMIT TO THE COURT-MARTIAL, UNDER INSTRUCTIONS RELATING TO VOLUNTARINESS, THE QUESTION OF WHETHER THE REQUIREMENTS OF ARTICLE 31(b) WERE APPLICABLE TO THE PRETRIAL STATEMENT OF THE ACCUSED ?” The nature of the certified question renders it unnecessary to set forth the evidence relating to the substantive offense. In that regard, suffice it to state the record shows that the victim — Airman Cheers — was shot and killed by accused during the early hours of May 27, 1960. Our concern is with an incident that transpired at the scene of the shooting after its occurrence. At approximately 12:45 a.m. on the night in question, accused and the victim were posted as security guards at a gate to the flight line on the base. Quite shortly thereafter, one Francis —an airman on duty as “blotter clerk” at security headquarters, whose responsibilities included taking calls and making reports — received a telephone call from accused to the effect that he had shot Cheers. Francis asserted he expressed disbelief, whereupon accused repeated most emphatically: “ T did shoot him, and I want you to call an ambulance right away.’ ” This witness also testified accused called him a second time inquiring whether medical assistance had been dispatched. There is no substantial difference in the accused’s version of these telephone conversations. The witness Francis gave the information he had received by telephone from accused to the desk sergeant on duty. And, Francis related, the desk sergeant in turn called an ambulance and notified a person Francis believed to be the flight commander — one Sergeant Holt — that accused had shot Cheers. Holt testified that as the result of information he received by telephone, he proceeded to the scene of the shooting. Conversations had by him — 626 — upon his arrival there give rise to the certified question. The details of events transpiring at that time, and their exact order, are not entirely clear. Sergeant Holt, however, testified as to what was said and done as follows: “A. When I arrived at Gate M, I saw Airman Gorko walking up and down on the south side of the gate. I also saw an unidentified airman lying on the north side of the gate shack. I went immediately around the gate shack to the north and found the airman to be Amman Third Class Cheers. “Q. How did you know this was Airman Cheers? Had you known him previously? “A, Yes, sir. “Q. Go ahead. “A. Airman Cheers stated that Defense counsel immediately objected to any statement by Cheers and the law officer sustained the objection. The sergeant testified that he examined Cheers and found him to be wounded. Trial counsel then asked the witness if he had' at that time talked to the accused. Holt responded affirmatively, stating he had asked accused what happened. Thereupon the defense objected to the response made by accused for the reason no predicate had been established for its admission. Accordingly, trial counsel adduced testimony that Sergeant Holt was not detailed as an air police investigator, but had gone to the scene to investigate in his capacity and in accordance with his responsibility as flight commander. As such, he claimed he was not a criminal investigator, and the prosecution argued the witness was neither performing in the latter capacity nor under any duty to investigate crime. Accused’s statement to the flight commander, trial counsel urged, was made spontaneously at the scene in the absence of suspicion, and was admissible. At that juncture the law officer questioned Sergeant Holt and received these answers to his inquiries: “LO: Did you suspect Airman Gorko of having committed a criminal offense at the time of your investigation? “A. No, sir. “LO: Was this statement made to you in response to a question by you ? “A. Yes, sir.” Thereupon the law officer overruled the objection and permitted trial counsel to continue examining the witness. The following testimony was elicited: “Q. And you asked him what? “A. I asked . . . [the accused] what happened. “Q. And he replied what? “A. He replied, ‘I don’t know what happened, Sarge. I told him I was going to shoot him. I pulled my weapon and shot him.’ ”1 Sergeant Holt was also permitted to testify that the victim Cheers had, at the scene, stated to him, “ ‘He got me in the shoulder.’ ” The accused’s version of his conversation with Sergeant Holt, as given in his own testimony, may be gleaned from the following questions and answers: “Q. When Sergeant Holt came, what then happened? “A. He parked his car in the Gate 2 area, the other side of the fence. He got out of the car and I pointed to Cheers over there. He ran over there and as he ran over there, he asked me what happened and I believe I said I shot him. “Q. Tell me exactly what you said to him. “A. I was nervous and he asked me a couple of times. The only thing I could tell him was, T don’t know what happened,’ but I said, since Cheers had been shot, and I was the only one there, I must have shot him. He knelt down by him and as he knelt — 627 — down, he asked me for a rag. I gave him my handkerchief, and he applied it to the wound. “Q. Did you see it? “A. I can’t remember. “Q. He asked for the handkerchief ? “A. Yes, sir. I remember giving it to him. “Q. Did you have any further conversation with Sergeant Holt up to this point? “A. About then he asked me what happened. “Q. Did he ask you that twice? “A. I think he asked me two times. “Q. He is superior to you, is he not? “A. Yes, sir.” It is undisputed that Sergeant Holt failed to advise the accused of the provisions of Article SI of the Uniform Code, 10 USC §831. While defense counsel did not request any instructions as to the effect of the ruling by the law officer in admitting the accused’s incriminating statement, as testified to by the sergeant, the defense did object to the admission thereof. The law officer gave no such instruction to the court-martial, either at the time of his ruling or in his final charge to the members on the merits. The board of review, concluding that an issue was raised as to whether or not Sergeant Holt suspected accused of an offense when he asked him “what happened,” held that the law officer erred prejudiciously in failing to submit that question to the court members under appropriate instructions. See United States v Jones, 7 USCMA 623, 23 CMR 87; United States v Powell, 8 USCMA 381, 24 CMR 191; United States v Dison, 8 USCMA 616, 25 CMR 120; United States v Himmler, 9 USCMA 115, 25 CMR 377. It is that determination to which the certified issue relates. The Government contends that the question of whether a person is a suspect within the purview of Article 31, supra, is interlocutory, is unrelated to factual voluntariness, and though posed by disputed evidence is for resolution by the law officer alone. In support of another avenue of attack, it is also urged by the Government that a conflict in the evidence is necessary in order to raise an issue of the variety necessitating ultimate resolution by the court-martial. From there it is argued that, assuming the question in the case at bar to -be of the type for resolution by the triers of fact in a proper case, the board of review erred in its finding that the evidence in the present instance required such submission. There can be no quarrel, as the board of review noted, but that a question whether Holt suspected accused was posed by the evidence. It is true the former testified he harbored no such suspicion; but that is not necessarily conclusive of the matter. See United States v Doyle, 9 USCMA 302, 26 CMR 82. And there are other factors which could fairly lead to either conclusion. For example, though the record doe's not indicate exactly what information was conveyed to Sergeant Holt, it may be inferred he was told what Francis had heard the desk sergeant tell someone. Thus, he may be found to have been on notice that accused was responsible for shooting his fellow guard, Cheers, when he proceeded to the gate, rather than going there only upon receiving general information as to some untoward event. In that case and if, as also may be concluded, the victim’s statement was made to Holt before the latter asked accused for an explanation, then indeed there is sufficient predicate to support a finding of suspicion. Cf. United States v Wilson, 2 USCMA 248, 8 CMR 48. On the other hand, in addition to Holt’s explicit denial, other items are consistent with want of suspicion. Thus, there is evidence that in loosening the victim’s clothing, the sergeant handed Cheers’ weapon to accused. Further, there is testimony that accused was not disarmed by Holt, but surrendered his weapon later when his relief arrived to take over the guard assignment. Certainly those circumstances militate against concluding Holt subjectively suspected accused. — 628 — Thus, the issue was joined regarding suspicion. Even so, however, the law officer — after making his initial ruling on admissibility — did not submit this question to the court-martial members for their ultimate determination. And although the defense made no request for any such instruction, it did put the law officer on notice concerning the issue through its objection to the admissibility of the evidence. In light of that fact and, under all the circumstances, we do not deem the doctrine of waiver applicable. See United States v Dykes, 5 USCMA 735, 738, 19 CMR 31. See also United States v Williams, 7 USCMA 434, 22 CMR 224. Nor do we understand the Government to argue that the case is controlled by that principle. Consequently, we proceed to the merits of the question. The provisions of Article 31, Uniform Code of Military Justice, supra, which are pertinent to our present inquiry, prescribe as follows: “(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. “(d) No statement obtained from any person in violation of this article, or through the use of coercion, unlawful influence, or unlawful inducement may be received in evidence against him in a trial by court-martial.” This Court has been called upon numerous times to construe Article 31 along with paragraph 140a, Manual for Courts-Martial, United States, 1951. We have consistently held that the ini-tial question of whether to admit a confession or admission against interest is for the law officer. When he has done so, however, and the question of vol-untariness is placed in issue by the evidence, the law officer must submit the matter to the court members for decision under appropriate instructions as to the authority of each to come to his own conclusion regarding the voluntary nature of the confession or admission in rejecting, or accepting, and weighing the same accordingly. See United States v Jones, supra; United States v Schwed, 8 USCMA 305, 25 CMR 115; United States v Perry, 8 USCMA 401, 24 CMR 211; United States v Wenzel, 9 USCMA 140, 25 CMR 402; United States v Bruce, 9 USCMA 362, 26 CMR 142. Cf. United States v Dykes, supra; United States v Higgins, 6 USCMA 308, 20 CMR 24. In other instances this Court has made similar holdings where the question was raised whether the accused had been warned of his rights under Article 31, and on other occasions where the question was whether an accused was able to understand such advice as may have been given to him. See United States v Powell, supra; United States v Dison, supra; United States v Himmler, supra. See also United States v Gibson, 3 USCMA 746, 14 CMR 164. In its disposition of this case the board of review has, essentially, required the same procedure in determining whether the accused was suspected of an offense by Sergeant Holt at the time of the critical conversation in which the former made such incriminating answers. And, as previously noted, the Government’s principal argument is that the question posed in the present instance was an interlocutory matter to be determined by the law officer without the necessity of instructing the court members thereon and submitting it to them. The Government invites attention to the fact that the exclusionary rule in the criminal courts of Texas bears marked similarity in many respects to Article 31 of the Uniform Code of Military Justice, supra. See Article 727, Vernon’s Annotated Code of Criminal Procedure of the State of Texas, 1941. The Texas provision is to the effect that a confession shall not be — 629 — used if, at the time it was made, the defendant was in jail or other place of confinement, nor while he is in the custody of an officer, unless it be made after warning and in accordance with other requirements of Article 727 of the Texas Code. We agree that there is, in many ways, substantial similarity between the two statutes. For example, the question of whether an individual is under arrest is analogous to that of whether a person is a suspect, both situations being the basis for requiring a warning under the respective rules. Accordingly, decisions by the Texas courts may be of assistance in resolving the issue before us. In that connection the Government cites Bingham v State, 97 Texas Crim 594, 262 SW 747 (1924), as a holding by the Court of Criminal Appeals of Texas that the controverted question of whether the defendant was in jail, place of confinement, or in the custody of an officer, is to be decided by the judge, not the triers of fact. Certain language from that decision would, at first blush, seem to support the Government’s position. However, upon close analysis, we do not so understand the holding in the Bingham, case. There the trial judge did not pass upon the question of whether the defendant was under arrest, but instead submitted the entire matter to the jury. It was held the trial judge had erred by avoiding the responsibility of making his own initial ruling as to whether the defendant’s confession was made while he was under arrest. But, in addition, the Texas appellate tribunal went on to state, in answer to a motion for rehearing : . . If, after hearing the inquiry, the judge is of the opinion that the proffered evidence is admissible, the evidence on the preliminary hearing may be embraced in a bill of exceptions, so that the reviewing court may decide with the facts before it whether the ruling of the trial judge was correct. If the evidence touching the arrest is conflicting or its truth called in question, the court, upon the request of the accused, may, by an appropriate instruction, call upon the jury to determine whether at the time the declaration was made the accused was under arrest. It is possible that instances might arise in which, on such request, the court should submit the matter to the jury.” [262 SW at page 750.] And other Texas cases indicate the propriety of a practice, under Article 727 of the Texas Code, supra, for the court to instruct the jury that if the defendant was under restraint at the time the statement was made, it should be disregarded. See Jones v State, 86 Texas Crim 371, 216 SW 884 (1919); Warren v State, 98 Texas Crim 639, 267 SW 723 (1924). Further, we note that such a practice is consistent with the requirement that when the evidence fairly raises the question of whether there has been a proper warning as provided by Article 727, such issue should be submitted ultimately to the triers of fact under appropriate instructions. See Benavides v State, 112 Texas Crim 52, 14 SW2d 67 (1929). Perusal of Article 31 of the Uniform Code, supra, shows there are several criteria laid down which may require excluding an accused’s extrajudicial statements from evidence. Previous decisions of this Court have recognized that various factors — including warning — which surround the making of a pretrial statement, may relate to whether the same is voluntary. See United States v Gibson, supra, 3 USCMA at page 751; United States v Josey, 3 USCMA 767, 780, 14 CMR 185; United States v Powell, supra; United States v Himmler, supra. And as we have previously pointed out, issues as to warning and voluntariness of statements are properly for consideration by the court-martial after an initial ruling admitting them into evidence, under the settled and approved procedure set forth in paragraph 140a of the Manual, supra. It is true this Court has not heretofore directly passed upon the precise question as to whether the same procedures should be followed in determining whether an interrogator in fact suspected an accused at the time of a state — 630 — ment by the latter. But we believe, consistent with the Texas cases cited, that a finding of whether an accused was suspected is markedly similar to a determination as to voluntariness and should be treated in the same fashion. Indeed, in United States v Aau, 12 USCMA 332, 30 CMR 332, we provided some indication of our view. In that instance a question was raised as to whether civilian police were, because of the nature of an existing cooperative agreement, acting as agents for military authorities. The opinion there observes that the evidence raised “a question of fact for the court-martial. It was submitted to the court for its determination by instructions,” which we later pointed out would require the triers of fact to reject the statement if the civilian police were acting as an instrument of the military. 12 USCMA at pages 337 and 338. There was substantial evidence as to whether or not the accused was suspected at the time Sergeant Holt questioned him. Further, there is no quarrel over the fact that accused was not warned in accordance with Article 31, supra, and the defense promptly and properly objected to the admission of the statement accused made to Holt. In view of all the matters we have previously set out, we hold the issue should have been submitted by the law officer to the court-martial for their ultimate resolution, in substantially the same manner as voluntariness. United States v Jones, supra; United States v Himmler, supra; United States v Aau, supra. Cf. United States v Ornelas, 2 USCMA 96, 6 CMR 96; United States v Berry, 6 USCMA 609, 20 CMR 325. Of course, since we are not here confronted with such a situation, we express no view on, and our ruling does not pertain to, instances where a spontaneous exclamation may be involved. The certified question is answered in the affirmative, and the decision of the board of review is affirmed. Judge FeRguson concurs. Footnotes [1] As the board of review pointed out, the highly incriminating nature of this extrajudicial statement allegedly made by accused, and its considerable impact on the findings, is obvious. It bears heavily on his intent, and in none of accused’s other pretrial statements nor in his testimony on the stand does he admit intentionally shooting Cheers.