United States v. O'Such

Opinion of the Court Ferguson, Judge: Convicted of premeditated murder, in violation of Uniform Code of Military Justice, Article 118, 10 USC § 918, the accused was sentenced to dishonorable discharge, forfeiture of all pay and allowances, confinement at hard labor for life, and reduction. On his appeal, this Court granted his petition for review upon the following issues: 1. WHETHER THE EVIDENCE IS SUFFICIENT TO ESTABLISH ACCUSED’S GUILT OF PREMEDITATED MURDER. 2. WHETHER THE BOARD OF REVIEW CORRECTLY FOUND ACCUSED HAD MADE ORAL ADMISSIONS OF HIS GUILT AND, IF SO, WHETHER SUCH WERE VOLUNTARY. 3. WHETHER ACCUSED WAS DEPRIVED OF HIS RIGHT TO COUNSEL, THE INVESTIGATION INVOLVING HIM HAVING REACHED AN ACCUSATORY STAGE.1 I On the morning of June 16, 1963, Sergeant Michael W. Stack was found dead near Koza City, Okinawa. Death resulted from injuries which he suffered as a result of three gunshot wounds, two of which were fired into his back. These were inflicted by a .45 caliber automatic pistol. The evidence tended to indicate the homicide occurred at approximately 11:15 p.m. on June 15, 1963. Stack was last seen with the accused on the evening of June 15. The weapon with which Stack was slain was found in accused’s place of duty, in a safe to which he had access. It was also shown that accused had previously sought to obtain another barrel for a .45 caliber automatic pistol and had possession of proper ammunition prior to the slaying. More significantly, the deceased’s identification card and liberty card were found concealed in the office in which accused worked, and, upon his arrest as a suspect, a promissory note made in deceased’s favor was found in his wallet. It was due on June 25, 1963, along with a large amount of interest. Finally, it was shown by expert testimony that accused’s shoes bore bloodstains of the same type as the victim’s. In addition, evidence was received that accused, subsequent to his apprehension, admitted killing Sergeant Stack. II Appellate defense counsel urge the foregoing evidence is insufficient to establish accused’s guilt of premeditated murder. In so contending, reference is made to conflicts in the evidence and attacks leveled at the credibility of witnesses. But these are matters of no concern to us in measuring the legal sufficiency of the proof. United States v McCrary, 1 USCMA 1, 1 CMR 1; United States v Brand, 10 USCMA 437, 28 CMR 3. We view the evidence as a matter of law and, so examining it, conclude it is sufficient to have permitted the court to find accused guilty as charged. United — 540 — States v Marymont, 11 USCMA 745, 29 CMR 561; United States v Snook, 12 USCMA 613, 31 CMR 199. In like manner, we dispose of the argument the record does not establish accused made oral admissions of his guilt. To the contrary, it affirmatively demonstrates he admitted killing the deceased. We are not free to disregard that testimony or to hold the board of review, erred in refusing to ignore it. Again, whether such admissions were in fact made was one of credibility to be resolved below and may not be disturbed here. United States v McCrary, supra; cf. United States v Ledlow, 11 USCMA 659, 29 CMR 475. Ill We turn, therefore, to the remaining question before us, which inquires whether accused’s pretrial statements were voluntarily obtained. A depiction of the shocking facts surrounding accused’s interrogation is essential to establish the reasons for our conclusion his statements were coerced and, hence, as a matter of law, inadmissible in evidence against him. During the day of June 16, accused was briefly interviewed by criminal investigators concerning his connection with the deceased on the previous evening and released. Other evidence came to their attention, and he was apprehended at approximately 7:15 p.m. in his barracks. A search of his locker was conducted, and a pair of shoes were seized. He was taken to the military police office, handcuffed, and thence transported to an Army Criminal Investigations Detachment office. There, accused was interrogated until approximately 4:00 a.m. on June 17. He was then escorted to a local “crime lab,” where material was apparently obtained from his skin for various tests. Thereafter, he was redelivered to his unit. The balance of the day was apparently spent in processing O’Such for confinement in the Joint Services Stockade. Authorities there, however, refused to accept him. At approximately 4:00 p.m., he was delivered to the Camp Butler Brig for confinement. There, accused was deprived of all his personal effects, issued a helmet, fatigue clothing and underwear, and marched back to the brig’s segregation cells. O’Such was then stripped of all clothing except his underwear and confined “in a box more or less.” This cell, normally used for the punishment of recalcitrant prisoners, was approximately seven feet, five inches in depth and four feet, ten inches wide. It had a sloping ceiling varying in height from eight feet in the front to seven feet, six inches in the rear. It was constructed of concrete block on all four sides. At the rear, high on the wall, was a small ventilation slit, hooded to prevent the admission of light. Its door was of solid construction and contairied an additional ventilation slit and a screened opening through which the cell’s inhabitant might be viewed. Both these openings were also hooded to prevent the admission of light. The cell’s sole furniture consisted of a wooden board, seventy-six inches long and thirty inches in width. It was realistically portrayed by one witness as “a section . . . out of a bowling alley. Actually it was a hard chunk of wood.” At night, however, accused was furnished with only a thin mattress on which to sleep. He had no other bedding or covering. In short, the facilities were those used by the brig for the punishment in solitary confinement of prisoners violating prison regulations.2 A special guard post was mounted outside accused’s cell. Personnel manning it were instructed to observe the accused at all times. During the day, he was to be watched constantly through the door grating. At night, a flashlight was to be played on him at five minute intervals, by sliding open the hooded screen. The discipline maintained over the accused was identical to that inflicted as a penal measure on one in solitary confinement. — 541 — Thus, for the relevant period, he was deprived of clothing, writing materials, reading materials, and his smoking severely limited. In addition, he was not permitted to lie down on his slab between reveille and retreat. ' The accused remained confined under these conditions until June 18. At the trial, he testified that, while he attempted to obtain rest during this period, he was not permitted to do so in the daytime and could not do so at night, due to the noise and light involved in the five-minute checks. He also complained, albeit less stringently, of the cold food furnished him, and the indignities inherent in the conditions under which he was held. On the evening of June 18, he was released from the “black box” and returned to the custody of criminal investigators and counterintelligence agents. He was once more interrogated until approximately 11:45 p.m., with, however, occasional breaks being taken. During this period, accused made several statements, some of which indicated he was present during the slaying of Stack and that espionage was involved. On occasions when he stated that he did not wish to speak further out of fear of reprisal against himself or his family, he was promised protection. When he nevertheless persisted in his silence, he was threatened with exposure of his family to danger through arrest of one of his alleged contacts — ostensibly on the basis of information which he had furnished. He was also informed that his refusal to make further statements constituted the offense of misprision of a felony, subjecting him to punishment by court-martial.3 Finally, during the last break in interrogation, one of the agents approached O’Such and suddenly accused him of murdering Stack. Accused as suddenly admitted he was responsible and had killed the victim. — 542 — Thereafter, interrogation was resumed, but almost immediately terminated when accused expressed a desire to consult with counsel. He was returned to his cell. Several days later, through intervention of his counsel, he was furnished with a cot, clothing, and the strictures theretofore placed on him considerably relaxed. Agents admitted accused appeared tired throughout his interrogation. Indeed, Sergeant Morrow, who actually obtained his oral confession, when asked why accused had not been questioned earlier during the day, candidly replied: “A: Well, he had been up for about two days and two nights and also we had sevéral things that we had to check out before we could question him.” The accused, queried as to his condition, at the time of his confession, declared: “About the time, sir, from lack of sleep and physical exhaustion, myself from the manner of having a matter like this resting on me and having to go through this interrogation. I folded or something . . . I don’t know.” The Government, pointing to evidence of breaks in the period of interrogation; proof that the accused at night was at least lying down with his eyes closed during some of his confinement; that he was furnished food regularly; that, on one occasion, he agreed to continuation of interrogation when asked if he desired it terminated; and that his clothing during his incarceration was adequate for the Okinawan climate, ui’ges the record presents substantial evidence to support the decision of the law officer and the court-martial that the statements were voluntarily made. On the other hand, the defense insists accused’s confinement and interrogation are such as to invalidate any statement he may have made. An examination of the total record causes us to conclude that, under the circumstances of this case, accused’s statements were involuntarily made and thus improperly received in evidence against him. See Jordan v Fitzharris, 257 F Supp 674 (ND Cal) (1966). First, accused, after interrogation throughout the night of June 16 and processing throughout the day of June 17, was subjected to confinement conditions bespeaking a brutality completely at odds with any civilized notion of treatment of a suspect held pending trial. His tiny cell was so constructed that he was denied even light. His bed was a plank; his bedding a thin pallet; and his uniform a set of underwear. Before us, the Government has conceded these accommodations were identical to those involved in United States v West, 12 USCMA 670, 31 CMR 256. There, we expressly condemned them as coercive in nature and “the unmistakable in-dicia of a return in one jurisdiction to those practices which led to the Code’s enactment.” United States v West, supra, at page 675. Moreover, the record l'eflects accused was accorded the same sort of punitive confinement as if he had committed an infraction of brig regulations and had been duly sentenced therefor, when in fact his conduct throughout his detention was unexceptionable. Such treatment is expressly forbidden by the Code. United States v West, supra. Thus, Code, supra, Article 13, 10 USC § 813, provides : “Subject to section 857 of this title (article 57), no person, while being held for trial or the result of trial, may be subjected to punishment or penalty other than arrest or confinement upon the charges pending against him, nor shall the arrest or confinement imposed upon him be any more rigorous than the circumstances require to insure his presence, but he may be subjected to minor punishment during that period for infractions of discipline.” In United States v Bayhand, 6 — 543 — USCMA 762, 21 CMR 84, we declared, at page 768: “From the foregoing, the conclusion is inescapable that Congress, the framers of the Manuals for Courts-Martial, and the Army must have recognized that gross injustices might result from any confinement system in which one accused of crime was treated no better than one proved guilty. Therefore, to eliminate any and all forms of punishment prior to trial, except that which is inherent in all confinement, laws and regulations were enacted to protect the untried confinee. It must be remembered that the only valid ground for ordering confinement prior to trial is to insure the continued presence of the accused, as where he has earlier indicated that his obligation to remain with his unit weighs lightly with him, or where the seriousness of the offense alleged is likely to tempt him to take leave of his surroundings.” And, speaking of our decision in Bayhand, supra, we added in United States v West, supra, at page 673: “If an accused should not be confined except upon these ‘valid grounds,’ then a fortiori, the limitation upon his freedom of action should not extend to punishment which is not only unauthorized but, indeed, forbidden to be adjudged by courts-martial.” We are, however, most directly concerned with accused’s confinement as it bore upon the voluntariness of his statements. Here, the record reflects that the discipline imposed upon him served to deprive him of rest and sleep until his interrogators successfully attained the desired information. Thus, not only was he confined in the “black box” under the squalid conditions outlined above, but he was, at five-minute intervals, subjected to having his cell-door grating opened and a flashlight played upon him. And, from reveille to retreat, he was not permitted to lie down, under punitive rules applied normally to prisoners held in solitary confinement. It was with frankness that one of his questioners disclosed his knowledge that O’Such “had been up for about two days and two nights.” And it is small wonder accused testified he was led to speak from lack of sleep and physical exhaustion. The test of the voluntariness of a confession is whether accused, at the time it was made, possessed the mental freedom to speak or remain silent. United States v Monge, 1 USCMA 95, 2 CMR 1; United States v Colbert, 2 USCMA 3, 6 CMR 3. The matter in issue is not the tendency of measures taken by the Government to cause a false statement to be obtained, but whether they are consistent with constitutional due process. United States v Monge, supra; United States v Askew, 14 USCMA 257, 34 CMR 37. In Rogers v Richmond, 365 US 534, 5 L ed 2d 760, 81 S Ct 735 (1961), the Supreme Court succinctly stated, at page 540: “Our decisions . . . have made clear that convictions following the admission into evidence of confessions which are involuntary, i.e., the product of coercion, either physical or psychological, cannot stand. This is so not because such confessions are unlikely to be true but because the methods used to extract them offend an underlying principle in the enforcement of our criminal law: that ours is an accusatorial and not an inquisitorial system — ■ a system in which the State must establish guilt by evidence independently and freely secured and may not by coercion prove its charge against an accused out of his own mouth.” Measured by such a standard, it is impossible to reach any conclusion in this record other than that O’Such’s statements were, as he testified, the product of coercive measures employed against him. True, “the question whether a particular criminal defendant’s will has been overborne and broken is one . . . that must be decided on the peculiar, individual set of facts of his case,” Culombe v Connecticut, 367 US 568, 622, 6 L ed 2d — 544 — 1037, 81 S Ct 1860 (1961), but the facts presented here show the accused was questioned all night; subjected to criminological tests and processing all the following day; flung into solitary confinement without even the solace of light; harassed at night with flashlight checks every five minutes ; not allowed even to lie down in the daytime; furnished with only a plank and pallet on which to lie at night; and, finally, brought forth on the evening of June 18th to be again subjected to hours of interrogation. That such bespeaks coercion is apparent. Indeed, though the Supreme Court has many times condemned lesser practices as coercive, see Rogers v Richmond and Culombe v Connecticut, both supra, we have not seen reported in recent times as bold an invasion of the rights of an accused person as is depicted upon this record. While the conditions here pictured are sufficient in themselves to demand exclusion of accused’s statements, we point out that other factors as gravely infect it with the character of involuntariness. Thus, it is admitted on the record that, when accused expressed fear of speaking because of the possibility of alleged accomplices harming his family, he was at first offered protection. When, however, he continued to maintain his silence, one of the officers interrogating him threatened to make it appear as if he had confessed and implicated others so that his wife and child would indeed be placed in jeopardy. That such a threat constitutes an additional coercive measure requires only that we point to United States v Askew, supra, wherein we held a confession motivated by threats to one’s family could not be “the product of a free and unfettered choice between speaking and remaining silent.” Id., at page 263. See also Rogers v Richmond and Culombe v Connecticut, both supra. Finally, it is also conceded on the record that accused, yet obdurate, was told his continued silence would lead to prosecution for a criminal offense, misprision of a felony. Though he was earlier made thoroughly aware of his rights under Code, supra, Article 31, such a later admonition had the effect of rendering the requisite warning nugatory. Cf. United States v Dalrymple, 14 USCMA 307, 34 CMR 87; United States v Williams, 2 USCMA 430, 9 CMR 60. Moreover, it was an outright threat to prosecute the accused if he continued to withhold information regarding the offense of which he was suspected, despite his undoubted right to remain silent. United States v Williams, supra. And, as has been well stated, “[n]o confession induced by official threat of prosecution is voluntary.” Cannan v United States, 19 F2d 823, 824 (CA5th Cir) (1927). The totality of evidence produced in this record, therefore, leads us inevitably to the conclusion that the statements admitted in evidence were obtained coercively and in violation of the accused’s rights. Their use necessitates reversal of this conviction. We add only a reiteration of the hope expressed in United States v West, supra, that we will not again be confronted with treatment accorded an unsentenced and presumably innocent prisoner such as is depicted here. It goes without saying that security must be maintained over an individual suspected of a violent and despicable crime, and we have no disposition to interfere with such matters. Thus, we have carefully considered the views of our dissenting brother. But, when these measures are converted into engines of oppression and punishment in violation of constitutional and codal rights, we do not hesitate to enforce the will of Congress by setting aside convictions thereby obtained. Discipline requires justice and fair play no less than it does strictures and obedience. The findings of guilty are set aside. The decision of the board of review is reversed and the record of trial is returned to the Judge Advocate General of the Navy. A rehearing may be ordered. — 545 — — 546 — — 547 — Footnotes [1] In light of our disposition of the case, it is unnecessary to consider this issue. [2] Pictures of a scale model of the cell produced at the trial as well as photographs of its actual interior are appended. [3] These facts are not controverted, nor could they be, as they are present in a tape recording of this interrogation produced in court upon motion of the defense. The most striking statements are those referring to the threat to his family: “Q: All right. Now if I go out and pick one of these people up and I don’t pick the rest of them up then what you say might happen might happen. Mighten it? And I might just decide to go down and pick one of them tonight just to try and see. I’ll guarantee, if you don’t start telling me some facts and tell Jim some facts I’m going to start picking them up one at a time because I don’t have any reason to pick them all up at one time. Now, if you think this will happen because one person is picked up then rest assured it may happen because if I don’t get what I want from you then I’m going to get it someplace else. And if it requires going out and picking up one at a time, then I’m going out and pick up one at a time, or Jim is going to pick up one at a time. Is that what you want? “M: Let’s look at it this way. We don’t have to let anyone know you’ve said anything to us. We don’t have to let anyone know you’ve said anything to us until we pick them all up . . . until we scoop them all up in one batch. We are not compelled to say anything, because we’re protecting you. My interest is to protect you. If this is in fact what you’re afraid of. That’s also gunner Harris’, but we can’t protect you unless we know. As he said, we’ve got names. We could pick part of them up. “Q: We talked about this thing once and you brought out what harm it could do you. Is that not true? ooooooooooo Can you not? O’Such? Now, if you’re trying to protect your family you will want them picked up at once. Is this true? “Q: I don’t expect you to. I don’t expect you to at all. O’Such, all I expect you to do is give us the names of the people who you’re involved with. The people who told you to get the weapon ooooooooooo. O’Such, all your [sic] doing so far is trying to provide an alibi for yourself. If you were really interested in your family and their welfare, son, you’d be talking ooooo Now if you’re in this category, I would suggest that you start talking. What do you think O’Such?”