United States v. Green

FERGUSON, Judge

(concurring in part) :

I concur.

I agree with the principal opinion that the law officer was correct in his ruling that the statement made by the accused after he had been advised of his rights under Article 31, Uniform Code of Military Justice, 10 USC § 831, was not induced by an earlier inadmissible statement and was therefore admissible. Under the circumstances of this case I cannot say that the law officer erred as a matter of law in his holding that the subsequent statement was not involuntary.

However, in the result reached by a majority of the Court in United States v Dutcher, 7 USCMA 439, 22 CMR 229, it was noted that if a ruling by the law officer can properly be sustained on one ground, it is unnecessary to consider whether it satisfies other grounds. For that reason I believe it unnecessary to go into the question of whether the law officer was correct in ruling that the first statement was inadmissible because it was obtained in violation of Article 31 (b). In particu lar, I wish to disassociate myself from the proposition set forth in United States v Gibson, 3 USCMA 746, 14 CMR 164, and United States v Dandaneau, 5 USCMA 462, 18 CMR 86, and endorsed above, that a prerequisite to the application of the provisions of Article 31, supra, is “officiality” of investigation or of the questioner. All persons subject to the Code must fulfill the prerequisites of Article 31 before they may interrogate or request any statement from an accused or person suspected of an offense. The fact that a person compelling another person to incriminate himself or answer a question, the answer to which might incriminate him, is not acting in an official capacity does not mean that *543Article 31(a) has not been violated. Any person subject to the Code is, in my opinion, required to fulfill the provisions of Article 31(b) before asking any questions, of a person accused or suspected of an offense, pertaining to the suspected offense.

However, in this case the challenged ruling was that a subsequent statement was not “tainted”; i.e., that the circumstances of the first statement did not render the questioned statement involuntary and hence inadmissible. We agree that it was not.