United States v. Annis

COOK, Judge

(concurring in the result):

I disagree with a number of aspects of the principal opinion. Suffice it to refer specifically to the statement that an inference as to the “regularity of exposition of Article 31 warnings” may properly be drawn from Major Gross’ testimony. The witness made no reference whatever to the Article and I cannot see that what he said inexorably referred to Article 31.1

I concur in the determination that the situation confronting the accused was not that of a “custodial interrogation”; there*354fore, the Government was not obligated to prove, affirmatively, as a condition to the admission of accused’s pretrial remarks, that he had been preliminarily advised as to the right to remain silent and right to counsel’s presence at the interrogation. United States v. Tempia, 16 U.S.C.M.A. 629, 37 C.M.R. 249 (1967). I concur, also, in the determination that accused’s remarks were properly received into evidence, but do so on the ground that the accused did not object to them at trial, and no manifest miscarriage of justice would result to refuse to predicate reversal upon a claim of inadmissibility asserted for the first time in this Court. United States v. Dial, 9 U.S.C.M.A. 700, 26 C.M.R. 480 (1958). I concur, too, with the determination that the accused consented to the substitution of counsel for the post-conviction proceedings before the convening authority. For the reasons indicated, I join in affirmance of the decision of the Court of Military Review.

. Uniform Code of Military Justice, 10 U.S.C. § 831.