(dissenting):
I am unable to follow the path of decision set out in the principal opinion. To begin with, I am impressed with the argument suggested by the board of review below that the law officer may have erred by not submitting the issue of the accused’s alleged request for counsel to the court-martial as a question of fact for its determination. See United States v Odenweller, 13 USCMA 71, 32 CMR 71. I do not construe Lieutenant Lo Presti’s explanation of his initial statement that he was accused’s “counsel” as “a mere play on words.” He consistently maintained that if the accused had “asked for counsel, I would have ceased the investigation because he [the accused] has a right to counsel if he specifically asks for it.” And he denied the accused asked for counsel. Why then did he say he was accused’s counsel ? His explanation is simple, and plausible.
In addition to his other duties, Lo Prestí was both the Marine Barracks legal officer and investigating officer. Consequently, when during the interrogation it appeared that the accused was unsure about what course to follow, he felt responsible for “safeguarding” the accused’s rights. Accordingly, he assumed that this part of the interrogation required him to provide “legal counselling” to the accused; so, he figuratively “took off . . . [his] hat as investigating officer” and donned that of the legal officer. The following extract from his testimony serves to illustrate the point:
“Q. And you state that you coun-selled him when he asked you questions as to the tenor of what would happen to the guilty person?
“A. Yes, sir.
“Q. Is this what you considered as legal counselling?
“A. Yes, sir.
“Q. And responses to questions that he directed in that line?
“A. Yes, sir.”
At no time, however, did he ever consider that the accused had asked for counsel; nor did the accused “even assert that he wanted to see someone else first before talking.” In short, Lo Presti’s testimony can reasonably be construed to indicate that the accused never directly or indirectly requested counsel; and that the true meaning of his earlier statement that he was accused’s “legal counsel” is that he merely gave the accused advice which he “considered as legal counselling.”
Assuming arguendo that I misread the import of Lo Presti’s testimony and that the accused’s admission to Lo Prestí was inadmissible, I still cannot accept the conclusion that this statement as a matter of law made inadmissible the accused’s later statements to Colonel Layer and Agent Caputo. An inadmissible confession or admission does not “perpetually” disable the confessor from making a usable confession, after the conditions which invalidated the first statement are removed. United States v Bayer, 331 US 532, 91 L ed 1654, 67 S Ct 1394; United States v Hogan, 9 USCMA 365, 26 CMR 145. Whether the influence of the first confession taints a later confession is, basically, a question of fact that depends for its determination upon consideration of all the relevant circum*370stances. United States v Monge, 1 USCMA 95, 2 CMR 1. There is at least one circumstance, which the principal opinion disregards, but which, in my opinion, the law officer and the court-martial could properly consider, that indicates the later statements were free from any taint of the statement to Lo Presti.
The accused testified in connection with his statement to Lo Presti. He admitted he knew, and was informed by Lo Presti, that he did not have to say anything whatever to the lieutenant; and that if he did speak, what he said could be used against him. He also admitted he knew he had a right to counsel (and he maintained he asked for counsel). According to his testimony, he was afraid that if he remained silent he “was going to [be] loek[ed] . . . up.” He, therefore, asked the lieutenant what would happen to the “ ‘person [who took the ring] if he was to come up here and admit he did it?’” The lieutenant advised him that this person would probably be “confined.” The accused’s testimony in material part continues as follows:
“. . . [S]o I said to Lieutenant Lo Presti — I said, ‘Well, sir, I believe I know the person,’ and I says T don’t think he’d be confined,’ so Lieutenant Lo Presti said, ‘There isn’t anything I can do. It’s out of my hands. It’s up to the Colonel.’ . . . So at that time I told Lieutenant Lo Presti to call the Colonel.”
This evidence indicates that while the accused was young in years, he was not overawed by his superior in age and rank; and he was quite prepared to match his own evaluation of Colonel Layer’s response to the situation against that of Lieutenant Lo Presti. This evidence is sufficient to raise at least a question of fact as to whether the accused’s later admissions to Colonel Layer were the result of a conviction that the “eat was already out of the bag,” or merely to further the accused’s own personal interests. See United States v Wheaton, 9 USCMA 257, 26 CMR 37; United States v Acfalle, 12 USCMA 465, 469, 31 CMR 51.
Substantially the same argument relating to the statement to Colonel Layer applies to the statement to Agent Caputo. Additionally, there is other evidence from which it can independently be concluded that this statement was completely voluntary and unrelated to the Lo Presti statement. The point is summarized in trial counsel’s argument to the court-martial as follows:
“. . . [I]n the accused’s conversations with Mr. Caputo, the accused was specifically told that he was not being questioned with regard to the missing ring, [but] . . . the accused himself volunteered this information without prompting whatsoever from Mr. Caputo.” [Emphasis supplied.]
Turning to the instructions, they could have been more specific and more-artful. However, we rejected a challenge to similar instructions on the latter ground in United States v Cotton, 13 USCMA 176, 32 CMR 176. As to the present demand for greater specificity, the question of voluntariness was the only real disputed issue in the case. The issue was extensively argued in the closing arguments, with particular emphasis on the probable influence of the statement to Lo Presti on the later statements to Colonel Layer and Agent Caputo. Considering the instructions in the light of these arguments, there is so apparent a continuum between the two as to compel the conclusion that the court-martial knew, and understood, that the effect of the taint of the Lo Presti statement was one of the issues it had to decide. See United States v Williams, 13 USCMA 208, 32 CMR 208. In my opinion, therefore, the law officer’s failure to spell out the voluntariness issue with greater particularity did not prejudice the accused. Cf. United States v Acfalle, supra; United States v Shanks, 12 USCMA 586, 31 CMR 172.
I would affirm the decision of the board of review.