UNITED STATES, Appellee v. HANS J. GEHMLICH, Private First Class, U. S. Army, Appellant

UNITED STATES, Appellee v HANS J. GEHMLICH, Private First Class, U. S. Army, Appellant 17 USCMA 345, 38 CMR 143 No. 20,600 December 22, 1967 Colonel Daniel T. Ghent, Major Jack G. McKay, and Captain Mark Kessel were on the pleadings for Appellant, Accused. Lieutenant Colonel David Rarick and Captain William R. Steinmetz ■ were on the pleadings for Appellee, United States. [MAJORITY — FERGUSON, Judge:] Opinion of the Court FERGUSON, Judge: In this trial by general court-martial for attempted robbery and wrongful appropriation, in violation of Uniform Code of Military Justice, Articles 80 and 121, 10 USC §§ 880, 921, respectively, the accused’s pretrial statement to a member of the Criminal Investigations Detachment was received, although the record discloses the only advice given him regarding counsel was that he “could consult with counsel and have counsel present at the time of the interview.” In addition, a statement allegedly made to a military policeman regarding a supposed attempt to visit the East Zone of Germany was likewise received despite a palpably deficient warning regarding counsel. On the showing made, both statements should have been excluded, and it was prejudicial error to receive them. United States v Burns, 17 USCMA 39, 37 CMR 303; United States v Lincoln, 17 USCMA 330, 38 CMR 128; United States v Groover, 17 USCMA 295, 38 CMR 93. Finally, hearsay testimony by the military policeman as to a reported attempt to cross the zonal border should also have been excluded. United States v Wilson, 2 USCMA 248, 8 CMR 48; United States v Smith, 3 USCMA 15, 11 CMR 15. The decision of the board of review is reversed, and the record of trial is returned to the Judge Advocate General of the Army. A rehearing may be ordered. Chief Judge Quinn and Judge Kilday concur.