United States v. Lovig

Opinion of the Court Hilda Y, Judge: Accused was arraigned and tried before a general court-martial convened at Camp Lejeune, North Carolina. Charged with larceny and burglary, in violation of Articles 121 and 129, Uniform Code of Military Justice, 10 USC §§ 921 and 929, he pleaded not guilty. He was convicted as charged, and the court sentenced accused to bad-conduct discharge, confinement at hard labor for one year, total forfeitures, and reduction to the grade of E-1. With the exception of a minor modification of the finding as to value in the larceny count, the convening authority approved the findings and sentence, and a board of review in the office of The Judge Advocate General of the Navy affirmed. Thereafter, accused petitioned this Court for grant of review, and we elected to hear his appeal in order to resolve the following issue: [71] Whether the law officer erred in overruling the defense objection that the cross-examination of the accused exceeded the scope of direct examination. The Government’s evidence showed that the premises in question had been burglarized, and various property was stolen at that time. Also introduced against accused, without objection by the defense, was his pretrial confession, in which he freely admitted both offenses. After the prosecution rested accused was called to the witness stand by the defense to testify in his own behalf. Defense counsel specifically stated accused would limit his testimony to the burglary charge. On direct examination, accused recounted generally his activities on the evening in question. He sought to explain his entry into the premises where the offenses were committed in the following manner. Although he denied he was drunk, he stated he had been drinking. He continued: “ . . . I knew what I was doing, but it just didn’t bother me. I left the pavilion and walked about two or three hundred yards to the right of the pavilion and just walked into a motel. I don’t know why. I just walked into it. “DC: What were your intentions when you walked into this motel? “A: Well sir, I didn’t really have no intentions. I didn’t know why I was walking in. Like I said I was to the point where I knew what I was doing, just didn’t bother me. [[Image here]] “Q: When you entered this motel, did you have any intent to steal anything? “A: No, sir; I didn’t have any intent to steal anything. Like I said I dont [sic] know why.” Thus, it is apparent that the thrust of his testimony was to deny that he entered the premises with intent to steal, one of the requisite elements of burglary as alleged in the specification with which accused was charged, On cross-examination, trial counsel’s first inquiry of accused was: “What did you do when you entered the hotel?” Defense counsel immediately objected that the question exceeded the scope of direct examination, for the reason that accused had taken the stand to testify as to the burglary only. The law officer, however, overruled the objection, and in answer to the question accused admitted that he looked around, then went straight into the bedrooms and took two ladies’ handbags. On further examination, he related his disposition of the purses and the contents thereof, effectively judicially confessing the larceny offense. The foregoing facts give rise to the issue which we must resolve. The problem is not new to us, for it is settled that an an accused may — as appellant in the case at bar indicated he chose to do — elect to restrict the scope of his testimony. And when he so limits his testimony, he may not be cross-examined as to offenses concerning which he has not testified. See Manual for Courts-Martial, United States, 1951, paragraph 1496(1); United States v Kelly, 7 USCMA 218, 22 CMR 8; United States v Kauffman, 14 USCMA 283, 34 CMR 63. Under the circumstances, there can be no question but that trial counsel was entitled to probe areas reflecting on accused’s intent at the time he entered the premises. And indeed, with regard to this matter, appellate defense counsel candidly concede that subsequent larceny is relevant to show an intent to steal at the time of breaking and entering, and usually a proper subject for cross-examination. Manifestly this is true, for the acts performed by a person after he enters are strong evidence of the intent he harbored when he went in. Nonetheless, relying on United States v Marymont, 11 USCMA 745, 29 CMR 561, the defense asserts in its brief that an accused who has testified as to. some of several issues “may not be cross-examined so as to bring out information re72 lating to those other charges, though the testimony sought to be elicted [sic] is otherwise admissible and relevant to the charges to which he limited his testimony and would be a proper subject of cross-examination of any ordinary witness.” The defense position is unpersuasive. True it is, when an accused has restricted stricted his testimony to less than all the offenses charged, he is insulated from cross-examination as to those remaining. However, as we recently stated in United States v Miller, 14 USCMA 412, 415, 34 CMR 192, in discussing an analogous situation: "... Equally well settled, however, in cases where an accused purports to limit the scope of the evidence he gives, is the rule that ‘the content of the testimony upon direct examination and not the announcement of his limiting his testimony . . . [will] control.’ United States v Kauffman, 14 USCMA 283, 299, 34 CMR 63. And if the accused in his testimony touches on the general issue of his guilt or innocence, he opens the door to cross-examination on such matters about which he testified on direct examination. United States v Kauffman, supra; United States v Wannenwetsch, supra; United States v Kelly, 7 USCMA 218, 22 CMR 8; United States v Hatchett, supra.” Indeed, Marymont itself, the case upon which the defense grounds its position, is consistent with the above-quoted rule. Thus, while the Marymont decision is cognizant that combining separate offenses might hamper or embarrass an accused in his defense when he chooses to testify only as to one, it also expressly states that cross-examination is not circumscribed when “the accused voluntarily extends his testimony to . . . [the] allegations [of the other charge].” United States v Marymont, supra, at page 751. In the case at bar, accused did just that. While he purported to limit his testimony in his own behalf to the burglary count alone, he failed to do so. Rather, in an endeavor to exculpate himself partially in that regard,1 he denied that he harbored the intent to steal. He, himself, injected that item into his testimony. Having undertaken to do so, he effectively opened the door to the questioned cross-examination. The situation is substantially similar to that in United States v Kelly, supra. There, defending against charges of car theft, unauthorized absence, and escape from custody, accused was attempting to lessen his guilt regarding the taking of the auto, and purported to limit his testimony to that offense. Accused, who had been picked up by military police for a trafile offense, testified, in response to his counsel’s questions, that he left the post and returned to the city from which he had taken the car. There he stayed for three days in an attempt to locate the owner of the auto. On cross-examination, the prosecution developed that accused had bolted and run from the police station when he heard the desk sergeant mention the word “stolen” on the telephone. Accused asserted he had done so to return the car to its owner. We held: “In view of the accused’s testimony on direct, it does not appear that the law officer abused his discretion with regard to the scope of the trial counsel’s cross-examination. The difficulty which confronted the accused was that in order to explain his intent as to the larceny charge, he was forced of necessity into the area of the escape' offense. According to his testimony, he escaped from custody and remained in an absentee status for three days in order to find the owner of the automobile. Counsel for the accused undoubtedly realized that when his client took the stand, he could not but help trespassing in this area. However, this is the risk which the accused knowingly incurred [73] when he took the stand.” [United States v Kelly, supra, at page 221.] One other item merits brief comment. Appellate defense counsel point out that the connection between the larcenous intent in burglary and the larcenous intent in theft is merely incidental. Suffice it to say that the two offenses here are closely related. Even though strictly speaking, as a matter of legal theory, the intents are not identical, here they are closely tied together. Even the defense concedes that the distinction they press is “metaphysical,” and it is apparent from the allegations that the defense should have been on notice that broaching the issue of larcenous intent as to the burglary would involve accused’s larcenous intent with regard to the theft. As we have previously noted, what was done upon accused’s gaining entry is strong evidence of his intent in entering. For the above-stated reasons, we hold the accused opened the door to trial counsel’s cross-examination. Accordingly, the law officer did not abuse his discretion in overruling the defense objection to the scope thereof. United States v Miller, supra; United States v Kauffman, supra; United States v Wannenwetsch, 12 USCMA 64, 30 CMR 64; United States v Marymont, supra; United States v Kelly, supra; United States v Hatchett, 2 USCMA 482, 9 CMR 112. The granted issue is resolved adversely to accused and the decision of the board of review is affirmed. Chief Judge Quinn concurs. Footnotes [1] Under accused’s testimony, he would not be guilty of burglary, but only unlawful entry of the premises. The law officer properly instructed on that lesser offense. Cf. United States v Kuefler, 14 USCMA 136, 33 CMR 348.