(dissenting):
This case is being reversed on a ground never raised by the accused. True, in requesting a side-bar conference, defense counsel indicated he had “some question in . . . [his] mind” as to whether the bottle was properly taken from the accused. However, his actual objection at the time the bottle was offered in evidence was that it had “been tampered with by to [sic] many people” and, therefore, a proper “foundation” had not been laid. Since the evidence demonstrated a chain of custody and complete safeguard of the contents of the bottle, the law officer correctly overruled that obj ection. I would not, therefore, consider the present allegation that the seizure was illegal. United States v Fisher, 4 USCMA 152, 15 CMR 152; United States v Webb, 10 USCMA 422, 27 CMR 496. In any event, this case is substantially on all fours with United States v Woodruff, 11 USCMA 268, 29 CMR 84. There, as here, the accused elected to testify on the merits, and in his testimony he maintained he did not know how the contraband article came into his possession. Discussing the effect of his testimony, Judge Ferguson, writing for the Court, said:
“. . . Thus, he chose to fight out at the trial level the issue of his possession of the cameras and the knife in the apparent hope of convincing the members of the court-martial that his control over these prosecution exhibits was innocent. His informed action in this respect served to overcome any violation of Code, supra, Article 31, involved in the earlier receipt of the exhibits. United States v Kelly, 7 USCMA 218, 22 CMR 8; United States v Smith, 2 USCMA 440, 9 CMR 70. In short, he may not now be heard to complain that the court-martial considered against him the inferences to be drawn from his own freely given testimony concerning the fruits of the searches.” [Woodruff, supra, page 270.]
I would affirm the decision of the board of review.