United States v. Brabant

29 M.J. 259, 1989 CMA LEXIS 3580, 1989 WL 111604

• Court: United States Court of Military Appeals
• Decided: September 29, 1989
• Docket: No. 60,838; ACM 26547
• Status: Published

Opinions

Opinion of the Court

SULLIVAN, Judge:

In October 1987, appellee was tried by a general court-martial composed of officer members at Norton Air Force Base, California. Contrary to his pleas, he was found guilty of larceny of a motorcycle with a value of more than $100.00, in violation of Article 121, Uniform Code of Military Justice, 10 USC § 921. He was sentenced to a bad-conduct discharge, confinement for 2 years, forfeiture of $100.00 pay per month for 10 months, and reduction to the lowest enlisted grade. The convening authority approved the sentence as adjudged. The Court of Military Review affirmed the findings of guilty and the sentence. 26 MJ 899 (1988).

Pursuant to Article 67(b)(2), UCMJ, 10 USC § 867(b)(2), the Acting Judge Advocate General of the Air Force requested review of two certified issues. This Court also granted review of an issue assigned by appellee and modified by this Court. These issues are:

CERTIFIED ISSUE I

WHETHER THE AIR FORCE COURT OF MILITARY REVIEW ERRED AS A MATTER OF LAW BY HOLDING THAT A SECURITY POLICE COMMANDER’S MEETING WITH A SUBORDINATE ACCOMPANIED BY AN ADMONITION TO SAY NOTHING WAS A REINITIATION OF INTERROGATION UNDER EDWARDS V. ARIZONA, 451 U.S. 477 [101 S.Ct. 1880, 68 L.Ed.2d 378] (1981).

CERTIFIED ISSUE II

WHETHER THE AIR FORCE COURT OF MILITARY REVIEW ERRED BY EXPANDING EDWARDS V. ARIZONA, SUPRA, TO PROHIBIT ALL CONTACT BETWEEN SECURITY POLICE SUPERVISORY PERSONNEL AND SUBORDINATES WHO HAVE REQUESTED COUNSEL UNDER EDWARDS UNTIL COUNSEL IS MADE AVAILABLE.

GRANTED ISSUE

WHETHER THE COURT OF MILITARY REVIEW ERRED AS A MATTER OF LAW IN CONCLUDING THAT ALTHOUGH [THE ACCUSED’S] INCRIMINATING PRETRIAL STATEMENT TO CAPTAIN GATHRIGHT SHOULD HAVE BEEN SUPPRESSED, THE RECORD WAS STILL SUFFICIENT TO PROVE [THE ACCUSED’S] GUILT BEYOND A REASONABLE DOUBT.

We hold that the acting commander of appellee’s security police squadron reinitiated interrogation when he directed appellee, his subordinate who had previously requested counsel during a criminal interrogation, to meet with him concerning the charged offenses. See Edwards v. Arizona, supra; United States v. Dowell, 10 MJ 36 (CMA 1980); cf. Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed. 2d 297 (1980). We also conclude that admission of appellee’s statements induced by that order was prejudicial error requiring a rehearing.

The facts of this case have been amply set forth in the opinion below and need not be fully repeated here. Appellee observed another servicemember’s motorcycle that he decided to strip for parts. When the opportunity arose, he took the motorcycle, stripped it of the desired parts, and abandoned the remainder. Later, appellee consented to a search of his off-post quarters, and the stolen parts were recovered.

Moreover, the court below stated in its opinion:

The appell[ee] was a security policeman who normally worked the “midnight” shift. He was relieved of police duties as soon as he became a suspect in this case, but he was still required to' report to security police headquarters and spend his normal shift. Sometime after he had been relieved, the appell[ee] was questioned by the security police investigator. After the investigator read him his rights, the appell[ee] exercised his right to remain silent and requested a lawyer. This occurred around 0200 during a normal duty period for the appell[ee].

The assertion of error concerns what happened next. The investigator ended the session as soon as the appell[ee] requested a lawyer. Shortly after the session ended one of the security policemen who had helped the appellfee] take and strip the motorcycle submitted a sworn statement to the investigator explaining how he and another security policeman had helped the appell[ee]. The investigator contacted Captain Michael Gathright, who was the squadron operations officer, acting commander, and appell[ee]’s second level supervisor. Captain Gathright asked the investigator to have the appellee] stand by in the police station and report to him at 0730.

26 MJ at 900.

At no time before reporting to Captain Gathright did appellee see requested counsel, and such action was not reasonably practicable at this early hour. Regarding this meeting, Captain Gathright testified that the following occurred:

Q: What were your purposes in calling Sergeant Brabant in to speak with you?

A: My sole purpose was to inform him that he needed to talk to a lawyer.

Q: When you told him that he needed to talk to a lawyer, did he say anything or attempt to say anything?

A: Yes, he did.

Q: And can you tell us what happened?

A: When I first asked him to report in or have him report in, immediately after his salute, he tried to make a spontaneous comment. I tried to stop him, told him, “Don’t say anything; you need to see a lawyer” and ended up saying that twice and he did, in fact, make a spontaneous comment after the third time.

Q: It’s important for you to try to recall that as close as you can. What was that comment or the comments that he made to you?

A: It was basically “What can I do to make this right; I will give the victim my motorcycle, sign over the pink slip; take an Article 15, [UCMJ, 10 USC § 815,] lose a stripe, whatever it takes.”

(Emphasis added.)

At trial, appellee moved to suppress his statements to Captain Gathright. The military judge denied the motion on the basis that Captain Gathright had not intended to conduct an interrogation when appellee made his voluntary statements. On appeal, the Court of Military Review held that the morning interview violated the mandate in Edwards v. Arizona, supra, for the “police to ‘go away’ for a reasonable time once an accused has requested a lawyer.” Insofar as this was not done, the court below concluded that the evidence should have been suppressed. Nonetheless, it held that there was overwhelming admissible evidence to support the conviction and concluded that the error “most likely had only a minor effect on the ultimate outcome of the case.” 26 MJ at 902.

I

The decision of this Court in United States v. Goodson, 22 MJ 22 (CMA 1986), recognized applicability of Edwards v. Arizona, supra, and its progeny, to the military justice system. In this light, the first question we will address is whether the court below properly construed these decisions in this case. It held that they prohibit a police commander from subjecting his subordinate, who has previously exercised his right to counsel, to a subsequent meeting at the same police station to give him further advice to contact counsel concerning the same offense. We agree with the Court of Military Review.

In Edwards v. Arizona, supra, the Supreme Court stated

[t]hat when the accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.

451 U.S. at 484-85, 101 S.Ct. at 1884-85 (footnote omitted). In Arizona v. Roberson, 486 U.S. 675, 681-82, 108 S.Ct. 2093, 2097-98, 100 L.Ed.2d 704 (1988), the Supreme Court further explained what evil this “bright line” test was designed to combat:

Thus, the prophylactic protections that the Miranda [v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)] warnings provide to counteract the “inherently compelling pressures” of custodial interrogation and to “permit a full opportunity to exercise the privilege against self-incrimination,” 384 U.S., at 467, 86 S.Ct., at 1624, are implemented by the application of the Edwards corollary that if a suspect believes that he is not capable of undergoing such questioning without advice of counsel, then it is presumed that any subsequent waiver that has come at the authorities’ behest, and not at the suspect’s own instigation, is itself the product of the “inherently compelling pressures” and not the purely voluntary choice of the suspect. As Justice WHITE has explained, “the accused having expressed his own view that he is not competent to deal with the authorities without legal advice, a later decision at the authorities’ insistence to make a statement without counsel’s presence may properly be viewed with skepticism.” Michigan v. Mosley, 423 U.S. 96, 110, n. 2, 96 S.Ct. 321, 329, n. 2, 46 L.Ed.2d 313 (1975) (concurring in result).

The pivotal question in the case before us is whether Captain Gathright’s order to appellee to attend this meeting constituted a “reinitiation of interrogation,” so as to trigger application of the “bright line” test enunciated above. See Rhode Island v. Innis, supra; Arizona v. Mauro, 481 U.S. 520, 107 S.Ct. 1931, 95 L.Ed.2d 458 (1987). On this point we note that in United States v. Dowell, 10 MJ at 40, this Court stated, concerning the requirement to give warnings under Article 31, UCMJ, 10 USC § 831:

When one takes action which foresee-ably will induce the making of a statement and a statement does result, we conclude that the statement has been “obtained” for the purposes of Article 31, 10 USC § 831. We need not question the good faith of Captain Black, who had a specific duty to inform the accused of the charges against him. See para. 32f (1), Manual [for Courts-Martial, United States, 1969 (Revised edition)]. However, since the acts involved in performing that duty had the natural tendency to induce the making of a statement by appellant, the warning requirement of Article 31(b), 10 USC § 831(b) was applicable.10 Thus, the absence of any warning to Dowell precluded receipt of his statements in evidence.

10 On the same reasoning, these actions by Captain Black were the “functional equivalent” of "custodial interrogation.”

(Emphasis added.) This reasoning is virtually identical to that expressed in Rhode Island v. Innis, supra at 301, 100 S.Ct. at 1689-90. There, the Supreme Court stated:

[T]he term “interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police.

446 U.S. at 301, 100 S.Ct. at 1689-90 (emphasis added; footnotes omitted). In United States v. Byers, 26 MJ 132, 134 (CMA 1988), this Court also noted the broad definition of “interrogation.” We said there:

If we were not equally realistic in our treatment of investigative tactics which are “the ‘functional equivalent’ of interrogation,” we would be providing investigators a ready means for circumventing Article 31(b) and thwarting congressional intent.

In the instant case, the evidence of record discloses that appellee was required to stand by for 5 hours at the police station, the situs of his initial interrogation, before meeting with his squadron commander. Cf. United States v. Long, 866 F.2d 402, 405 (11th Cir.1989). He was not provided a break in this custody or, in light of the early hour, a reasonable opportunity to consult with counsel. See Davis v. Puckett, 857 F.2d 1035, 1037 (5th Cir.1988); cf. Dunkins v. Thigpen, 854 F.2d 394, 397 (11th Cir.1988), cert. denied, — U.S. —, 109 S.Ct. 1329, 103 L.Ed.2d 597 (1989); United States v. Vendrell-Pena, 700 F.Supp. 1174 (D.P.R.1988). Moreover, the purpose of the meeting was not explained to him, and Captain Gathright maintained both a military and police investigatory relationship with appellee at this time. Cf. United States v. Eide, 875 F.2d 1429, 1433-34 (9th Cir.1989). Strict military formality was maintained at the meeting; and Sergeant Marchbanks, appellee’s previous police interrogator, was present for the meeting between Captain Gathright and appellee, who was then visibly shaken.

Under these circumstances, we conclude that “inherently compelling pressures” of the initial interrogation continued to exist for this command meeting. Unlike Rhode Island v. Innis, supra, where that accused simply overheard remarks between police officers which led to a volunteered admission, this case involved a direct and deliberate confrontation between the appellee and an officer of the military police. Indeed, it is the directness of this confrontation which renders Arizona v. Mauro, supra, inapplicable as well. Moreover, in light of Captain Gathright’s ambiguous position and the obvious redundance and superfluity of his purpose, we do not consider this meeting to be merely informational in the sense permitted by Arizona v. Roberson, 486 U.S. at 687, 108 S.Ct. at 2101. Cf. Shedelbower v. Estelle, 859 F.2d 727 (9th Cir.1988). See generally Berger, Compromise and Continuity: Miranda Waivers, Confession Admissibility, and the Retention of Interrogation Protections, 49 U.Pitt.L.Rev. 1007, 1036-42 (1988).

As was the case in Dowell, we need not question the motives of Captain Gathright since this confrontation “had the natural tendency to induce the making of a statement by” an accused. 10 MJ at 40. Instead, we need only note that a good commander is a leader who inspires trust and loyalty in his subordinates. See United States v. Austin, 27 MJ 227, 232 n. 7 (CMA 1988). In some instances, however, the commander’s efforts to maintain trust and loyalty in the subordinate might conflict with his responsibility to maintain law and order in the command. Accordingly, care must be exercised to prevent the creation of situations where the subordinate’s sense of loyalty, trust, and confidence in his leader obscures his legal rights under the Constitution and the Uniform Code of Military Justice. Accordingly, we conclude that ordering appellee to attend this morning meeting was, under the circumstances of this case, the functional equivalent of a “reinitiation of interrogation” prohibited by Arizona v. Roberson, Edwards v. Arizona, and United States v. Byers, all supra. See United States v. Reeves, 20 MJ 234, 236 (CMA 1985); cf. United States v. Jackson, 863 F.2d 1168, 1172 (4th Cir.1989).

The final issue in this case is whether the court below erred in concluding that it could nonetheless uphold appellee’s conviction. Although we agree with that court that substantial evidence of his guilt existed in this record of trial, we nevertheless conclude that the error in admission of his inculpatory statements prejudiced him. See generally United States v. Remai, 19 MJ 229 (CMA 1985).

In the Government’s opening argument, initial closing argument, and closing argument in rebuttal, counsel substantially rested the prosecution case upon appellee’s admissions. In opening argument, government counsel informed the members that they would hear “the statements of a guilty man.” In closing argument, government counsel stated:

And, ultimately, the most important thing involved perhaps is that when he was confronted by Captain Gathright— or at least talked with Captain Gathright at some later time — he didn’t make the statements of an innocent man. The statements he made were “I’ll do anything; I’ll sign over my motorcyele to him; he can have my pink slip; give me an Article 15, take a stripe, anything.”

Gentlemen of the jury, madam, those are the words of a man who knows he’s been caught; a man who knew that the jig was up; a man who was certain that the evidence had been formulated and had come together against him.

That is the culmination of the case which proves inescapably, without any doubt whatsoever, that the accused stole the motorcycle on that night in question. Thank you.

(Emphasis added.) Finally, in the closing argument in rebuttal, trial counsel once more brought appellee’s admissions to the forefront of the members’ consideration:

And if there isn’t a motorcycle fairing [see 26 MJ at 900], why did the accused make inculpatory statements acknowledging that he’d do anything to get out of trouble? He’d sign over his motorcycle; he’d give the victim his pink slip. Did the motorcycle fairing cause him to lose sight of the fact that an innocent person has the right to proclaim, “I didn’t do it. I’ll do anything to prove I didn’t do it.” Did the motorcycle fairing make him decide that he had to sign over his own bike?

* * * * * *

But if you believe in common sense, if you believe that people make dumb mistakes, if you believe that greed sometimes impels what may be, in other ways, a good cop to do things that are stupid, and if you agree with the fact, as presented here, that all of the evidence points in the direction of the accused, then the very fact that he did all these acts in preparation up to the point that he ultimately ended up with the stolen parts in his possession and made statements indicating nothing other than guilt, then you must believe that the Government has proven its case beyond a reasonable doubt, and that the accused is, in fact, guilty of the offense. Thank you.

As Judge Michalski noted below in his dissent, “Had this vital prosecution evidence been suppressed, the keystone of the government’s case would have been removed.” 26 MJ at 903. He further noted that appellee challenged the entire government case with an innocent explanation. Id. In this context we cannot say that the improper admission of these statements had no effect on the members in reaching their findings. See generally Chapman v. California, 386 U.S. 18, 24-25, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). See United States v. Davis, 26 MJ 445, 449-50 n. 4 (CMA 1988). Accordingly, the error here is not harmless beyond a reasonable doubt.

II

This case might also be decided on evidentiary grounds alone. Brabant’s statements to his commanding officer should have been excluded under Mil.R. Evid. 410, Manual for Courts-Martial, United States, 1984. See United States v. Barunas, 23 MJ 71 (CMA 1986).

As noted earlier, in the military there exists a special relationship between a commander and one of the servieemembers in his command. That relationship is unique in our American society. A good commander not only leads and disciplines his troops but also has a paramount responsibility to take care of them. A good commander inspires trust in his subordinates. See United States v. Austin, supra at 232 n. 7. The challenged statements that morning, in reality, constituted a request to the commander that he resolve Brabant’s troubles in an administrative fashion. These statements were based upon that special subordinate/commander relationship and as such we find them to be part of a plea bargain negotiation under the rationale of Barunas. See Mil.R.Evid. 410. Accordingly, they never should have been introduced in this case.

The decision of the United States Air Force Court of Military Review is reversed.

* The findings of guilty and the sentence are set aside. The record of trial is returned to the Judge Advocate General of the Air Force. A rehearing may be ordered.

Chief Judge EVERETT concurs.

The second certified question is overly broad, and we decline to answer it to the extent it goes beyond the facts and circumstances in this case.