United States v. Masemer

FERGUSON, Judge

(dissenting):

I dissent.

The absence of an objection by trial defense counsel does not relieve the Government of its burden to demonstrate, on the record, that a 'proper warning was given an accused as to his right to silence and right to counsel (Article 31, Uniform Code of Military Justice, 10 USC §831; Miranda v Arizona, 384 US 436, 16 L Ed 2d 694, 86 S Ct 1602 (1966) ; United States v Tempia, 16 USCMA 629, 37 CMR 249 (1967)) as a predicate for the introduction into evidence for a pretrial statement. United States v Gustafson, 17 USCMA 150, 37 CMR 414 (1967). And where, despite a defective warning, the statement is admitted in evidence and the accused subsequently testifies, “the Government must shoio that its illegal action did not induce his testimony.” (Emphasis supplied.) Harrison v United States, 392 US 219, 225, 20 L Ed 2d 1047, 1053, 88 S Ct 2008 (1968); United States v Bearchild, 17 USCMA 598, 38 CMR 396 (1968); United States v Hurt, 19 USCMA 206, 41 CMR 206 (1970).

In the case at bar, the record fails to reflect that the accused was asked if he wanted counsel or that he gave a negative reply. That this was an insufficient warning cannot be denied. Miranda v Arizona and United States v Tempia, both supra. See also United States v Bearchild, supra, and cases cited at pages 600 and 601. As the Supreme Court stated in Miranda, 384 US, at page 475:

“An express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver. But a valid waiver will not be presumed simply from the silence of the accused after learnings are given or simply from the fact that a confession was in fact eventually obtained. A statement we made in Carnley v Cochran, 369 US 506, 516, 8 L Ed 2d 70, 77, 82 S Ct 884 (1962), is applicable here:
‘Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.’ ” [Emphasis supplied.]

Despite the defective advice, the statement was admitted in evidence and the accused testified on the merits. My brothers, citing United States v Gustaf-son, supra, hold that since the accused’s testimony was consistent with and was complemented by the pretrial statement, that the defense thereby consented to the receipt of the Government’s illegally obtained evidence. This holding, however, overlooks the fact that Gustafson was decided before Bearchild. Bear-child was mainly concerned with an earlier ruling in United States v Trojanowski, 5 USCMA 305, 17 CMR 305 (1954), that a judicial confession removed the spectre of prejudice arising from the admission of a coerced pretrial statement. Since Bearchild, Trojanowski is no longer the law of this Court.

My brothers’ determination that the pretrial “statement contained nothing that caused the appellant to testify in *370order to explain it,” ignores the following plain language of Bear child:

“Contrary to the argument of appellate Government counsel in this case, we are not now merely concerned with the testing of the evidence for prejudice. The demands of Harrison are more. Above and beyond the arraying of evidentiary matter, the Government is called upon to affirmatively show ‘that its illegal action did not induce his testimony.’ Indeed, it must dispel the inference that no testimonial utterance would have been made had not prosecution already ‘spread the petitioner’s confessions before the jury.’ (36 U. S. Law Week, at page 4550.) It makes no difference, under such a measurement, that not one scintilla of evidence indicates accused was motivated to testify by the admission of his pretrial revelations or that his trial presentation was no more than a reproduction of what he had earlier revealed to interrogating agents. The simple fact of the matter is that the Government may not satisfy the requirements of Harrison by standing on a barren record. Instead they must affirmatively demonstrate the existence of a hiatus — a lack of causal relationship — between that which is illegal and that which would otherwise be tainted thereby.
“There being no such showing in this case, we necessarily conclude that Bearchild’s in-court statement cannot be used to cure the error arising from the use of his concededly inadmissible pretrial statement. Reversal must follow.” [Id., at page 603.]

See also United States v Hurt, supra.

Since in this case the Government has failed to sustain its burden of showing on the record that the accused did not desire counsel and that his testimony was not the product of the admission in evidence of the illegally obtained confession, I would reverse the decision of the Court of Military Review and direct that a rehearing may be ordered. United States v Bearchild and United States v Hurt, both supra.