(concurring):
I agree with the opinion authored by Judge Sullivan. I write only to make two additional points. First, my reading of the record convinces me that the military judge worked competently and assiduously to resolve the issue before him. The question was whether the confession should be admitted into evidence or be suppressed. He concluded that it should be suppressed. His effort deserves affirmance.
Second, if a military judge’s finding of fact is supported by the evidence of record (or lack thereof), then it shall not be disturbed on appeal taken under Article 62, Uniform Code of Military Justice, 10 USC § 862. United States v. Burris, 21 MJ 140 (CMA 1985).
Waiver is defined as “an intentional relinquishment or abandonment of a known right.” See Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). Affirmative, used as an adjective, is defined as “asserting that the fact is so.” See Webster’s Ninth New Collegiate Dictionary 61 (1988). Thus, in combination an “affirmative waiver” is an express relinquishment of a known right.
Mil.R.Evid. 305(g)(2) does not create an exception to the requirement that an accused must intentionally relinquish his right to counsel; rather it permits proof of the waiver by evidence other than the accused’s own expression that he knows of his right to counsel, understands his right, and intentionally elects to relinquish that right. My reading of the record, convinces me that the military judge understood this distinction, albeit he may have used imprecise language. Thus, whether the Government proved that the accused had waived his right to counsel, either expressly or by necessary implication, becomes a question of fact. The military judge’s findings concerning this factual question are supported by the record and, therefore, may not be disturbed on appeal.