United States v. Malumphy

Memorandum Opinion of the Court Kilday, Judge: After our decision in United States v Malumphy, 12 USCMA 639, 31 CMR 225, affirming his conviction for aggravated assault, but before promulgation of our mandate, accused filed a timely petition for new trial pursuant to the provisions of Article 73, Uniform Code of Military Justice, 10 USC § 873. Said petition was initially grounded upon accused’s allegation that trial counsel had entered into an attorney-client relationship with him with respect to the offenses he later prosecuted as trial counsel, the impropriety of which action accused did not realize. In answer to the petition, the Government filed affidavits executed by trial counsel and by his superior, the chief of the military justice division in the office of the staff judge advocate of the command involved, who assigned trial counsel the duty of prosecuting the case. The sworn averments of the last-mentioned two men conclusively demonstrate accused is not entitled to the relief sought on the ground first submitted. However, in the course of the statement by the chief of military justice, the affiant volunteered certain information upon which the defense now endeavors to base a second argument supporting the requested relief. This new contention — asserted in a brief in support of the petition for new trial— finds its roots in the statement that, upon assigning trial counsel to the case almost immediately after the offenses were committed, the chief of military justice apprised him “we were sending . . . [accused] to the hospital for a psychiatric examination to determine his mental responsibility.” Notwithstanding the apparent truth of those facts, no cloud is cast, by the affidavits and pleadings presently before this Court, on the conclusion reached in our opinion, supra. The experts appearing for the Government in rebuttal testified only as to their evaluations of accused and not to any statements made by him. And regardless of any action taken by the chief of military justice or trial counsel’s knowledge thereof, it is clear beyond peradventure that from the standpoint of the psychiatrists accused was not a suspect. Absent here, too, is any indication the doctors were made unwitting tools of anyone responsible for administering military justice who was bent on cir-cumventng accused’s rights against self-incrimination. Cf. United States v Nitschke, 12 USCMA 489, 31 CMR 75. He was, so far as the psychiatrists knew or were concerned, admitted to the hospital for medical reasons only, and the evidence ineluctably leads to the conclusion that they interviewed him for the last-mentioned purpose. Their inquiries were not in anywise a criminal investigation, and they were not concerned with determining his mental capacity and responsibility for his offenses.' Under the circumstances of the case at bar, their evaluations of [62] accused were not improperly allowed into evidence. One other matter bears mention. It has been suggested that further inquiry might disclose the existence of a deliberate suppression of evidence in the case at bar. See Alcorta v Texas, 355 US 28, 2 L ed 2d 9, 78 S Ct 103 (1957). It may be noted, parenthetically, that the statement was voluntarily furnished and not ferreted out by the defense. But quite apart from that fact and, more important, although the affidavit indicates his superior told trial counsel accused was to be sent for determination of his responsibility, there is totally absent that nexus between those men and the psychiatrists as would cause the formers’ actions to affect the admissibility of the questioned evidence. Thus, the information now brought to our attention does not constitute a material matter that would affect the merits, and the present situation is to be distinguished from Alcorta and allied cases. Accordingly, accused’s petition for a new trial is denied. Chief Judge Quinn concurs.