United States v. Applewhite

20 M.J. 617, 1985 CMR LEXIS 3736
U.S. Army Court of Military Review·Decided April 29, 1985·No. CM 446544·Published·Cited by 3 cases

Opinion

OPINION OF THE COURT

MARDEN, Senior Judge.

Appellant was convicted, contrary to his pleas, of rape and sodomy of one Daisy R and indecent, lewd and lascivious acts against one Almida Y in violation of Articles 120, 125, and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 920, 925 and 934. He was sentenced to a dishonorable discharge, confinement at hard labor for ten years, forfeiture of all pay and allowances and reduction to the lowest enlisted grade. The convening authority approved the sentence.

I.

On 19 February 1984, after accepting an automobile ride from appellant, Daisy R was raped and sodomized by appellant and another soldier in the Chiva Chiva Training Area, Republic of Panama. On 12 April 1984, Almida Y and her sister were picked up by appellant and another soldier at a bus stop in Panama City, Panama. After driving to the Empire Range Training Area, the two women were threatened by the two soldiers who wished to have sex [618] with the women. After initially refusing, Almida Y told both men they could have intercourse with her if they would leave her sister alone. Subsequently both men did in fact have intercourse with Almida Y.

On 12 April 1984, appellant was interviewed by Criminal Investigation Division (CID) Special Agent (SA) Walter Yarnell concerning the Almida Y incident, which was then being investigated as a rape. After a proper rights warning and waiver, appellant made a voluntary statement concerning this incident.

Appellant was again interviewed on 25 April 1984 concerning the Almida Y incident. During the second interview, SA Bernardi, who had taken over the case, advised appellant of his rights for the offense of adultery. Appellant acted as if SA Bernardi was kidding and invoked his right to counsel. Special Agent Bernardi terminated the interview without taking a statement from appellant concerning the adultery offense. However, he did ask appellant if he would consent to a polygraph examination pertaining to the rape offense. Appellant agreed to take a polygraph examination.

On 30 April 1984, appellant returned to the CID and was again advised of his rights which he waived. Further, the polygraph operator, SA Light, who so advised appellant, told appellant that in addition to the Almida Y incident, he wished to interview appellant regarding a separate suspected rape and forcible sodomy incident with one Daisy R. He further explained the polygraph examination would be administered for one incident and then readministered for the other incident. Appellant waived his rights regarding both incidents. Thereafter he executed a written statement regarding the Daisy R rape and sodomy charge to SA Jaime Davila, the agent in charge of that case, and an oral statement to SA Bernardi regarding the Almida Y indecent acts case. During the latter interview appellant again invoked his right to counsel and the interview was terminated.

II.

At trial, appellant moved to suppress his statements of 12 and 30 April, contending that they were involuntary1 and that, since he invoked his right to counsel on 25 April, he could not be reinterviewed on 30 April. Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). The motion to suppress the 12 April statement was withdrawn by appellant’s trial defense counsel and was admitted by the military judge. The military judge also admitted appellant’s 30 April written statement regarding the Daisy R rape and forcible sodomy incident but suppressed appellant’s oral statement of the same date regarding the Almida Y indecent acts charge.2

Appellant now contends before this Court that the military judge erred by admitting appellant’s written statement relating to the rape and forcible sodomy charges because of the application of Edwards v. Arizona, supra. We disagree.

III.

The rule announced in Edwards v. Arizona, supra, as applied to the military, holds that once a suspect invokes his right to counsel the suspect may not be again interrogated until after he consults with or has a reasonable opportunity to consult with counsel, United States v. Whitehouse, supra note 2, or unless the accused himself initiates further communication or conversation. See Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983).

[619] When a suspect requests counsel during a custodial investigation his right must be scrupulously honored by investigators. Edwards v. Arizona, supra; United States v. Muldoon, 10 M.J. 254 (CMA 1981); United States v. Hill, 5 M.J. 114 (CMA 1978). However, once divergent factors, such as other offenses or different-investigators, enter into the picture, the parameters of this area of the law are clouded and not entirely settled. E.g., United States v. Harris, 19 M.J. 331 (CMA 1985).3

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United States v. Applewhite, 20 M.J. 617, 1985 CMR LEXIS 3736 (usarmymilrev 1985).

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