United States v. Masemer

Opinion of the Court DARDEN, Judge: Plagued by the constant theft of Government property at Clark Air Base, Republic of the Philippines, the Office of Special Investigations enlisted the aid of Sergeant Greenwald, a confessed thief and willing informer. Through a Filipino accomplice he met other Philippine Nationals who supplied a list of desired property. Later, he was introduced to Sergeant Wetzel, a security policeman, and the two talked about ways to move material off the base. To advance their plans, a meeting was then arranged between Greenwald and the appellant. According to the former, the appellant agreed to furnish his car to transport stolen electron tubes and Thermapaper and to make certain that Sergeant Wetzel could drive through the post gate. If a “crime stop” — a procedure causing cars to be stopped at the gate and searched — was initiated, Masemer was to have it called off. On December 17, 1968, Greenwald drove a Government vehicle to a post dining hall parking lot and there transferred to the appellant’s car three boxes of electron tubes and two boxes of Thermapaper that had been supplied him by the OSI. Wetzel was to drive the car through “Clarkview” Gate “[W]here Sergeant Masemer was supposed to be.” Informed of this transfer, OSI operators followed Wetzel through the post. When he reached the gate his way was blocked, he was seized, the car searched, and the boxes taken. The appellant countermanded a “crime stop” alert that was initiated to apply to an automobile of the same description and license number as the one Wetzel was driving. On this same day the appellant was interrogated by members of the OSI, and an oral statement was taken. Counsel was not then present. Masemer told his interrogator that he was aware Sergeant Wetzel had borrowed his car to obtain food from the dining hall for a squadron party that would be attended by approximately one hundred and twenty-five persons. Because of the large quantity involved, the food was to be stored in either the Town Patrol refrigerator or in his private freezer at home. Believing that food was in the trunk of his car, he ended the “crime stop.” He denied knowing Greenwald, or that electron tubes and Thermapaper were in the vehicle. Queried about the warning first given the appellant, the interrogator testified, in part: “. . . I advised him that any statement he might make could be used as evidence against him in a trial by court-martial, or in a judicial or administrative proceeding. I advised him he did not have to make any statement. I further advised him of his right to have legal counsel present; that he could obtain legal counsel of his own choice or, if he couldn’t afford to do this, that the Air Force would provide legal counsel without cost to him. Pie said he understood.” The record does not show specifically that accused was asked if he wanted counsel or that he gave a negative reply. Relying primarily upon Miranda v Arizona, 384 US 436, 16 L Ed 2d 694, 86 S Ct 1602 (1966), defense counsel [368] urge that the oral statement was erroneously admitted because prosecution failed to show that accused made a knowing and intelligent waiver of his right to counsel, and that in the absence of such a display, admission of the statement was prejudicially erroneous. Government counters with several arguments, but, for the purpose of this case, we need look only to the contention that the pretrial statement was an essential part of the defense and that counsel wanted it before the court to buttress Masemer’s own trial testimony. Cf. paragraph 153a, Manual for Courts-Martial, United States, 1969 (Revised edition). The admissibility of the challenged pretrial statement is sustainable on this ground even if the warning were inadequate. During the trial proper the appellant testified on the merits. He told the court that on December 1, 1968, he had been promoted to technical sergeant and had been transferred from Town Patrol to the “base proper.” While in town he had received information concerning the removal of supplies that involved security patrolmen. After Ma-semer’s reassignment to base, Sergeant Wetzel was to replace him as a contact for the informers in town. He also asked Wetzel, who had mess hall contacts, to get food for a party. Masemer stated that in December he had met Greenwald, who talked about having “stuff stashed behind the Supply complex” and of moving goods on and off base. The appellant declared that he played along with Greenwald in order to obtain the latter’s confidence and to secure more information. Ma-semer maintained that he thought food was to be taken off the post on the night in question. He denied discussing a “crime stop” with Greenwald or entering into a conspiracy or an attempt to steal “tubes and paper” or other Government property from Clark Air Base. Miranda v Arizona, supra, prohibits use of exculpatory and inculpatory statements without a showing of warning of right to counsel and a waiver of this right. Despite a defective warning to an accused, however, this Court unanimously declared in United States v Gustafson, 17 USCMA 150, 151-152, 37 CMR 414 (1967) : “. . . The burden is on the United States to establish compliance with Miranda and Tempia, both supra, beyond a reasonable doubt, and absence of objection thereto does not excuse its failure to prove a proper warning. United States v Smith, 15 USCMA 416, 35 CMR 388. Nevertheless, accused may consent to receipt of the evidence. United States v Smith, supra; United States v Bryson, S USCMA 329, 12 CMR 85; Manual for Courts-Martial, United States, 1951, paragraph 140a. Here, he clearly did so.” [Emphasis supplied.] Gustafson entered a plea of not guilty to larceny, one of two offenses charged against him. During the trial, following receipt of oral pretrial statements without defense objection, counsel for Gustafson actively cross-examined prosecution’s witness to bring out even more of the details. Exculpatory in nature, this evidence formed the “basis for accused’s claim of losing the property he was alleged to have stolen” (17 USCMA, at page 152) and of defense counsel’s final argument that Gustafson was innocent of larceny. Here there is enough similarity for us to apply the Gustafson rule. The appellant’s pretrial statement was admitted into evidence without objection by the defense. Cross-examination of the OSI agent, though brief, emphasized the size of the planned party and the appellant’s belief that food was being carried in his car. Masemer’s in-court testimony is consistent with and is complemented by the earlier statement. Each reinforces the other. For this reason, we believe the defense “consent [ed] to receipt of the evidence.” United States v Gustafson, supra, at page 152; United States v Schell, 18 USCMA 410, 40 CMR 122 (1969) ; cf. United States v Kaiser, 19 USCMA 104, 41 CMR 104 (1969). In these circumstances, the statement contained nothing that caused the ap [369] pellant to testify in order to explain it. Both his out-of-court and in-court utterances were beneficial in that they contradicated the Government’s case and established a defense. That Ma-semer would not have offered an in-court explanation of his actions except for the out-of-court statement is conjectural. But this area needs no further development, for United States v Bearchild, 17 USCMA 598, 38 CMR 396 (1968), does not govern the results of this case. That case, we said in United States v Hurt, 19 USCMA 206, 41 CMR 206 (1970), is not to be so broadly construed as to deprive an accused of a defense. Application of Bearchild here would have that effect, and that case was hardly intended to cause this result. United States v Hurt, supra. Accordingly, the decision of the Court of Military Review is affirmed. Chief Judge Quinn concurs.