United States v. Grady

— 243 — Opinion of the Court Kilday, Judge: I An Army general court-martial convened by the commander of the 7th Infantry Division, in Korea, found accused guilty, contrary to his pleas, of one specification each of arson, robbery, and attempted arson, in violation of Articles 126, 122, and 80, respectively, of the Uniform Code of Military Justice, 10 USC §§ 926, 922 and 880. In each specification it was alleged that accused Grady had acted in conjunction with two other men- — -Privates First Class Cameron and Hobbs. After a pre-sentence hearing, the court-martial sentenced accused to be dishonorably discharged from the service, to forfeit all pay and allowances, and to be confined at hard labor for nine years. In accordance with the recommendation of his staff judge advocate, the convening authority approved the finding of guilty of robbery, but set aside accused’s convictions for arson and attempted arson. He approved only so much of the sentence as provided for dishonorable discharge, total forfeitures, and confinement at hard labor for two years. Thereafter, a hoard of review in the office of The Judge Advocate General of the Army affirmed the findings and sentence, as modified. Upon his appeal to this Court, we granted accused’s petition for review to consider whether the law officer erred in: 1. Allowing reference to homosexuality on the part of Grady and his principal witness; 2. Failing to instruct the court-martial to disregard references to homosexuality; and 3. Instructing the court that said references could be considered on the issue of credibility. We also elected to hear arguments on: 4. Whether the corroboration of the accomplice witness is sufficient to support a conviction; and 5. Whether the alleged threat to his witness, Hobbs, prejudiced the right of accused to a fair trial. II At the time of accused Grady’s trial, both Cameron and Hobbs — with whom he was alleged to have acted in conjunction — had been convicted of all three offenses, but review by the convening authority had not been completed in their cases. The Government produced Pfc Cameron as a witness. He testified to all of the elements necessary to convict the present appellant of all three specifications against him. Upon cross-examination, however, Cameron admitted he had previously made sworn inconsistent statements exculpating Grady. The appellant produced Pfc Hobbs as a witness in his behalf. Hobbs exonerated Grady as to the two specifications subsequently dismissed, and did not testify as to the remaining one. The Government was permitted to elicit from Hobbs information as to homosexual acts with appellant. Objection was made to the admission thereof as being inadmissible for impeachment purposes; that it brought out a crime for which the appellant was not on trial and was highly prejudicial to his rights. The law officer admitted the same on the question of credibility and overruled the objection. The defense witness Hobbs also testified that trial counsel had told him, shortly before he took the witness stand, that, if he testified in Grady’s behalf, his own then outstanding sentence to eight years’ confinement would not be cut; however, if he did not give evidence as a witness, there was a chance it might be reduced to four years. Such other facts as are pertinent to our inquiries will be set out in the course of the treatment of the issues. III The question of sexual deviation is present in a rather peculiar setting in this record. After the defense witness Hobbs had been questioned with ref — 244 — erence to such conduct between himself and appellant, defense counsel, having recalled the Government accomplice witness Cameron, asked him whether he had ever had any homosexual relations with the accused. Cameron refused to answer under the provisions of Article 31, Uniform Code of Military Justice, 10 USC § 831, on the grounds that his answer might tend to incriminate him, and he made the same response to a question as to whether he ever had homosexual relations with the defense witness Hobbs. Thus, after the law officer overruled its objection, the defense sought to inquire into the same area with regard to the prosecution’s principal witness. Nevertheless, our initial inquiry must be whether the law officer erred in refusing to foreclose the Government from eliciting, from Hobbs, evidence as to this sort of repulsive activity between him and accused. Reference to the authorities indicates that cross-examination of a witness as to his relationship with the accused is permissible even though such relationship be illicit. And such inquires, bearing as they do on bias, motive, and prejudice, are not restricted as going to collateral matters. Thus, in 98 CJS, Witnesses, § 548, the rule is summarized in this language: “The existence of immoral relations between a witness and the party for whom such witness was called may be shown as a circumstance affecting the credibility of the witness.” See also 58 Am Jur, Witnesses, § 720. To like effect is the following statement of the rule, quoted from 3 Wharton, Criminal Evidence, 12th ed, § 879: “It is proper to cross-examine the accused’s witness as to his relations with the defendant, as bearing upon his bias, motives, and general credibility. A witness may be cross-examined as to his or her relations with the accused, whether business, social, sexual, or otherwise.” And it is further stated in section 881 of the same treatise: “A witness may be asked on cross-examination any question that affects his credibility, even though it tends to disgrace or disparage him.” Along the same line is this comment' in an annotation on the subject at 27 ALR 278: ' “It appears to be well established that for the purpose of showing bias a witness in a criminal prosecution is properly subject to cross-examination concerning any illicit relations with the defendant.” So, too, in Underhill, a Treatise on the Law of Criminal Evidence, 5th ed, § 246, we read the following with regard to liberality in the manner of proof of bias: “The bias of the witness and his interest in the event of the prosecution are not collateral, and may always be proved to enable the jury to estimate his credibility. They may be proved by his own testimony upon cross-examination or by independent evidence, and, while much latitude is allowed, the extent of such cross-examination rests very much in the sound discretion of the court.” Particularly apposite to the question here before us is the decision of the United States Court of Appeals for the District of Columbia in Ewing v United States, 135 F2d 633 (1942). There Justice Rutledge — later Associate Justice of the Supreme Court of the United States — wrote: “. . . a witness may be cross-examined as to facts tending to show bias for or against a party, or his willingness to be unscrupulous in giving testimony, for impeachment purposes; that bias may be shown by extrajudicial statements of the witness from which an inference as to his feelings toward a party may be drawn and by extrinsic evidence independently of cross-examination; and that the witness may be contradicted, if he denies having made such a statement.” [135 F 2d at page 640.] See also Gordon v United States, 344 US 414, 97 L ed 447, 73 S Ct 369 (1953); Tla-Koo-Yel-Lee v United States, 167 US 274, 42 L ed 166, 17 S Ct 855 — 245 — (1897); Spaeth v United States, 232 F 2d 776 (CA 6th Cir) (1956); Bram v United States, 226 F 2d 858 (CA 8th Cir) (1955); McFarland v United States, 174 F 2d 538 (CA DC Cir) (1949); Meeks v United States, 163 F 2d 598 (CA 9th Cir) (1947); Murray v United States, 247 Fed 874 (CA 4th Cir) (1917)—cited in the annotation, 27 ALR, supra; Motley v Alabama, 207 Ala 640, 93 So 508, 27 ALR 276 (1922); Daywood v State, 157 Tex Crim 266, 248 SW 2d 479 (1952); Crist v State, 21 Tex App 361, 17 SW 260 (1886)—also cited in the ALR annotation, supra; Manual for Courts-Martial, United States, 1951, paragraphs 153&(2)(d) and 149&. Cf. Brown v State, 168 Tex Crim 67, 323 SW2d 954 (1959), in a case involving only misdemeanors. Nor are we persuaded that — as a matter of law — evidence of this character must be barred because proof of an illicit relationship shows reprehensible conduct that could possibly be inflammatory. To bind the hands of a law officer with a flat prohibition would be to place a premium on illicit relations directly proportional to the gravity thereof. Further, in that connection it should be borne in mind that, in many instances, the more reprehensible the association, the greater is the bias and motive of the witness to color his testimony. Obviously, rulings on such matters fall in a discretionary area. We therefore conclude it was not error to permit the cross-examination of the witness Hobbs as to an illicit relationship with the appellant, nor was it error to fail to instruct the court to disregard such references. The references to an illicit relationship between Hobbs and appellant were admissible for the purposes stated by trial counsel, and sustained by the law officer, “Sir, this bears heavily on the issue of [the witness’] credibility, bias, motive, prejudice in this case.” In that connection we note that in an out-of-court hearing defense counsel requested the law officer to admonish the members of the court-martial that evidence accused might be guilty of a crime not charged should not be considered as going toward guilt of the offenses for which he was on trial, and trial counsel agreed such an instruction was appropriate. The law officer concurred, properly charging the court members on the limited purpose for which such evidence was admitted and that it could not be considered as evidence on any issue involved in the case, and the defense expressed satisfaction with the instruction given. Further, we deem it appropriate to point out that the defense examined the witness Hobbs only as to the specifications alleging arson and attempted arson, and not regarding the charge of robbery. The convening authority, as we have heretofore noted, disapproved the findings of guilty as to those two specifications involving arson, and accused stands convicted only of robbery. Moreover, defense counsel at the trial revealed to the law officer that he was informed, before he offered Hobbs ás a witness, of the existence of the references to homosexuality. It appears, therefore, that the defense was. not surprised, but assumed the calculated risk that the importance of the evidence to be offered by Hobbs justified the risk of proof as to the illicit relationship between him and the appellant. In any event, and in line with the authorities cited, we hold that the assignments numbered 1, 2, and 3 herein, must be resolved adversely to petitioner. IV As to the assignment dealing with corroboration of an accomplice, the law officer fully and properly instructed the court on accomplice testimony and the necessity for corroboration. See Manual for Courts-Martial, United States, 1951, paragraph 153a; United States v Bennington, 12 USCMA 565, 31 CMR 151. After careful examination of the entire record we are convinced of the sufficiency of the evidence to support the conviction. The testimony of the accomplice witness Cameron was not self-contradictory, uncertain or improbable. While there was evidence of prior inconsistent state — 246 — ments by him, this issue was properly submitted to the court-martial by the law officer in his instructions. Additionally, there is direct evidence in the record, as well as very strong circumstantial evidence, corroborating the accomplice witness. We regard all of the evidence, when taken and considered together, sufficient to support the findings. Thus, we find this assignment lacking in merit and overrule the same. V We turn, then, to the issue which concerns alleged intimidation of the defense witness Hobbs. As we have noted earlier, he asserted that trial counsel threatened him if he testified in accused’s behalf. We must observe that, if there was any threat or other attempt to intimidate Hobbs, it did not prejudice the appellant, for Hobbs did appear as a witness for Grady and, in his testimony, fully and completely exculpated appellant of the two specifications as to which he testified. The findings of guilty as to those two offenses, incidentally, were disapproved by the convening authority and are not before us. We would not condone any action by trial counsel which deprives an accused before a court-martial of the benefit of testimony in his behalf. However, this question is not submitted to us. The record fails to reflect that the witness was in anywise inhibited. Hobbs took the witness stand under oath, and testified fully and in complete exoneration of the appellant. We are not called upon to determine what the situation might be if the alleged threat had caused Hobbs to refuse to testify. Nor is that the only reason for deciding this issue against the accused. In explaining the alleged threat, Hobbs testified that he was charged, in conjunction with our present appellant and the witness Cameron, for the offenses here involved; that he had been tried by court-martial for those offenses; and that he had been convicted and sentenced, inter alia, to dishonorable discharge and confinement at hard labor for eight years. The affidavit of the trial counsel who prosecuted the instant petitioner has been presented to this Court. In it he denies having attempted to influence Hobbs to do anything other than tell the truth. He acknowledges having spoken to Hobbs and in effect said to him that he could testify as he pleased, but should, however, bear in mind that the convening authority would probably be less inclined to reduce his eight-year sentence if he became a perjurer. Further, he avers that he told Hobbs he had heard the latter’s eight-year sentence would probably be reduced to four years; and that he offered to bring Hobbs’ lawyer to him if he desired, but that Hobbs declined. We note parenthetically that the records of this Court indicate that the confinement portion of Hobbs’ sentence was reduced by the convening authority to three years. United States v Hobbs, CM 406370, docket number 15,773, pet den April 2, 1962. Trial counsel is an officer of the Army and is certified under Article 27(b), Uniform Code of Military Justice, 10 USC § 827, as professionally qualified. Therefore he has successfully stood the screening required in both capacities.. We find no comparable certification for the veracity of Hobbs. Even were such a question properly presented for our determination, we would hardly be justified, on the basis of this record, in resolving an issue of fact between the two men in favor of Hobbs. But apart from that, we agree with the position taken by defense counsel in his argument to the court-martial that, rather than weakening the testimony of Hobbs, the same was strengthened by the alleged incident. The defense made much over the fact that Hobbs had every reason to have testified to the contrary and in accordance with the alleged desires of trial counsel, because he had been convicted of the offenses involved and sentenced to eight years; his case was still pending approval of the convening authority; and trial counsel had made a statement to Hobbs which the latter could consider as an offer from a person with apparent authority to make it, to cut the sentence in half. Notwithstanding, defense counsel urged, Hobbs had “stuck his own — 247 — neck out. He took the chance of spending his full sentence in jail, rather than come into court and lie to you.” We believe the trial strategy of defense counsel to have merit. No doubt such was his purpose in developing the conversation between Hobbs and trial counsel. He asked for no relief and claimed no prejudice by reason of that conversation. Rather than prejudice, we deem the same to have resulted in advantage to appellant. VI The decision of the board of review is affirmed. Chief Judge Quinn concurs.