United States v. Gehmlich

Opinion of the Court FERGUSON, Judge: In this trial by general court-martial for attempted robbery and wrongful appropriation, in violation of Uniform Code of Military Justice, Articles 80 and 121, 10 USC §§ 880, 921, respectively, the accused’s pretrial statement to a member of the Criminal Investigations Detachment was received, although the record discloses the only advice given him regarding counsel was that he “could consult with counsel and [346] have counsel present at the time of the interview.” In addition, a statement allegedly made to a military policeman regarding a supposed attempt to visit the East Zone of Germany was likewise received despite a palpably deficient warning regarding counsel. On the showing made, both statements should have been excluded, and it was prejudicial error to receive them. United States v Burns, 17 USCMA 39, 37 CMR 303; United States v Lincoln, 17 USCMA 330, 38 CMR 128; United States v Groover, 17 USCMA 295, 38 CMR 93. Finally, hearsay testimony by the military policeman as to a reported attempt to cross the zonal border should also have been excluded. United States v Wilson, 2 USCMA 248, 8 CMR 48; United States v Smith, 3 USCMA 15, 11 CMR 15. The decision of the board of review is reversed, and the record of trial is returned to the Judge Advocate General of the Army. A rehearing may be ordered. Chief Judge Quinn and Judge Kilday concur.