United States v. Cates

Opinion of the Court

Homer Ferguson, Judge:

Accused was tried by general court-martial for premeditated murder, and convicted of unpremeditated murder, in violation of Article 118 of the Uniform Code of Military Justice, 10 USC § 918. The facts, insofar as pertinent to this appeal, are as follows: Accused shot to death another serviceman following an altercation involving the obligation of accused’s wife, a barroom waitress, to accept payment in foreign specie from the deceased. Accused executed four pretrial statements, in the fourth of which, for the first time, he admitted an intention to shoot at the deceased. During the course of trial, when the prosecution sought to lay a foundation for the introduction of these exhibits, defense counsel requested and was granted an out-of-court conference. In that conference, stating that he did *482not wish the court-martial members to even know of the existence of accused’s incriminatory fourth pretrial statement, defense counsel objected to its introduction into evidence. The law officer refused to rule as to its admissibility. Instead he replied that the hearing on the question of admissibility should be held in open court and after the prosecution was accorded an opportunity to lay a necessary foundation. Thereupon, the defense made a proffer of proof. Included therein was the assertion that the accused, who had enjoyed only an eighth grade education prior to entering military service, had been advised that he could not consult with counsel until after he had signed the statement in question. When it was offered in evidence in open court, the defense counsel objected to its admission upon the grounds of his prior proffer of proof. He offered no other evidence and his objection was overruled. In admitting the challenged prosecution exhibit into evidence, the law officer instructed the court:

“. . . In this regard, the law recognizes that involuntary statements are often untrustworthy and unreliable. Therefore, the voluntariness of this statement, which has been contested by claims that it was obtained by compulsion, duress and coercion, constitutes a matter you should consider in determining what weight, if any, you are to give to this statement, and you should give weight to the statement only to the extent you believe it to be truthful.”

Thereafter, accused voluntarily took the stand in his own behalf. He testified that after his arrest his wife had procured civilian counsel, which testimony was corroborated by the wife. He further testified he was induced to sign the incriminatory statement because of advice to him from the investigating agents that he could not consult with his counsel until he had signed. However, he also stated the only reason he executed the statement was that the same agents had told him “it would go better” with him if he did so. Testimony of the agents involved contradicted accused upon both these points. While testifying as to the shooting of the deceased, accused’s testimony evidenced considerable confusion. At one point he said, “It flashed through my mind to kill the man,” and at another he stated, “I had no intention of shooting him unless it become [sic] complete [sic] necessary,” and thereafter responded that it had become necessary. However, in contrary vein, accused repeatedly stated he had entertained no intention of firing at the deceased but that the shooting was an accident occasioned by a third person bumping into him.

In instructing upon premeditated murder, the law officer advised:

“. . . Thus, the law presumes, and you would be justified in inferring, that a person must have intended the natural and probable consequences of any act purposely done by him. The weight, if any, to be given an inference of the accused’s intent must of course depend upon the circumstances attending the proved facts which give rise to the inference, as well as all evidence in the case. It is for you to make this determination.”

And instructing on unpremeditated murder, the law officer advised:

“. . . A person is presumed to have intended the natural and probable consequences of an act purposely done by him. Hence, if a person does an intentional act likely to result in death or great bodily injury, he may be presumed to have intended death or great bodily harm.”

We granted accused’s petition for review to determine three issues which will be stated and discussed in the course of the opinion.

I

There are some decisions to the effect that the failure to hold the preliminary hearing outside the hearing of the jury is not prejudicial if the evidence is sufficient to support the trial judge’s ruling admitting the pretrial statement into evidence. Tyler v United States, 193 F2d 24 (CA DC Cir) (1951); Tooisgah v United States, 137 F2d 713 (CA 10th Cir) (1943); Ramsey v United States, *48333 F2d 699 (CA 8th Cir) (1929). But the later and better rule is that the duty to hold such a hearing is mandatory and the refusal to hold it when requested is reversible error. United States v Carignan, 342 US 36, 72 S Ct 97, 96 L ed 48; Wright v United States, 250 F2d 4 (CA DC Cir) (1957) ; Schaffer v United States, 221 F2d 17 (CA 5th Cir) (1955); Brown v United States, 228 F2d 286 (CA 5th Cir) (1955).

This Court has voiced its approval of the later rule. United States v Cooper, 2 USCMA 333, 8 CMR 133; United States v Jones, 7 USCMA 623, 23 CMR 87. See also United States v Floyd, CM 397304, decided November 29, 1957.

In United States v Dicario, 8 USCMA 353, 24 CMR 163, we said:

“. . . It is, of course, possible to raise several objections to the admissibility of a confession. Some of the grounds may be presented to the law officer in an out-of-court hearing, and others may be presented to the court members. The division may be founded upon the accused’s desire to keep evidence material to the issue of voluntariness, but of possible disadvantage to him, away from the court members.” [Emphasis supplied.]

Consequently, we are of the opinion that the law officer’s refusal to accord accused the requested out-of-court hearing on the question of admissibility of his pretrial statement was prejudicial error.

II

The second issue involves the correctness of the law officer’s instruction to the effect that a person is presumed to have intended the natural and probable consequences of an act purposely done by him. The instruction as given in relation to the charge of premeditated murder is identical with that whieh we approved in United States v Miller, 8 USCMA 33, 23 CMR 257, although subject to the same criticism for the unnecessary use of the word “presumption,” as we made in that case. However, when he instructed on unpremeditated murder, the law officer neglected, with reference to this presumption, to add the clarifying explanation found in United States v Miller, supra. Therefore, this instruction was defective. We have held that if the court has been instructed both rightly and wrongly on a material issue, the correct instruction does not cancel out the prejudicial taint of the erroneous one. United States v Noe, 7 USCMA 408, 22 CMR 198. Failure of the defense counsel to object to the instruction on unpremeditated murder did not constitute a waiver. United States v Williams, 1 USCMA 186, 2 CMR 92.

Accordingly, we find the law officer’s instruction on unpremeditated murder to be prejudicially erroneous.

Ill

The third issue concerns the correctness of the law officer’s instruction that the court-martial might consider accused’s pretrial statement to the extent it found that statement to be truthful.

If accused was prompted to sign the incriminatory pretrial statement solely because of the advice of the investigating agents that “it would go better” with him if he signed it, this evidence alone might not be sufficient to raise the issue of voluntariness. United States v Kluttz, 9 USCMA 20, 25 CMR 282. However, since accused also testified that the investigating agents advised him he would not be allowed to consult with counsel until he had signed the statement, we have no way of determining whether he was persuaded to sign by the advice “it would go better” for him if he did so, or by the belief he could not consult with counsel until he had affixed his signature to the statement. Consequently, whether we approach the problem from the view of deprivation of counsel1 or that of an unlawful inducement alone affecting voluntariness, that question is posed. The instruction is in substance the same which we condemned in United States v Jones, and United States v Dieario, *484both supra, and United States v Schwed, 8 USCMA 305, 24 CMR 115.

The accused’s testimony was clearly not of the dignity of a judicial admission, removing all questions of doubt, and thus permitting the introduction of his incriminatory pretrial statement into evidence as was the case in United States v Trojanowski, 5 USCMA 305, 17 CMR 305.

The findings of guilty and the sentence are set aside. A rehearing may be ordered.

Chief Judge Quinn concurs.

United States v Gunnels, 8 USCMA 130, 23 CMR 354; United States v Rose, 8 USCMA 441, 24 CMR 251.