United States v. Briggs

39 M.J. 600, 1994 CMR LEXIS 18, 1994 WL 23583
CourtU.S. Army Court of Military Review
DecidedJanuary 31, 1994
DocketACMR 9201428
StatusPublished
Cited by1 cases

This text of 39 M.J. 600 (United States v. Briggs) is published on Counsel Stack Legal Research, covering U.S. Army Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Briggs, 39 M.J. 600, 1994 CMR LEXIS 18, 1994 WL 23583 (usarmymilrev 1994).

Opinion

OPINION OF THE COURT

CREAN, Senior Judge:

The appellant was found guilty, on mixed pleas, by a general court-martial composed of officer members, of use of cocaine, three specifications of larceny of currency, unlawful [599]*599entry, and uttering worthless checks (20 specifications totaling $2,044.45), in violation of Articles 112a, 121, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 912a, 921, and 934 (1988) [hereinafter UCMJ]. The appellant’s “announced” sentence was a dishonorable discharge, confinement for eight years, forfeiture of $350.00 pay for ninety-six months, and reduction to Private El. The convening authority approved a dishonorable discharge, confinement for six years, forfeiture of $350.00 pay per month for seventy-two months, and reduction to Private El.1

The appellant asserts, inter alia, that the military judge erred in admitting into evidence a statement the appellant made to law enforcement personnel; that the military judge erred because he did not give a limiting instruction on the use of uncharged misconduct in determining the sentence; and that the convening authority increased the forfeiture portion of the sentence. We disagree on all assertions of error except for that pertaining to the convening authority increasing the forfeiture. We affirm the findings of guilty but affirm only part of the forfeiture portion of the sentence.

On 13 January 1992, the appellant went to Cutler Army Hospital at Fort Devens, Massachusetts, to renew a prescription for medication that he had lost. He discussed his needs with licensed practical nurse (Nurse) Williams, who had previously prescribed the medication for the appellant. Nurse Williams wrote a new prescription for the appellant and had it approved by a doctor. Nurse Williams and the appellant left the examining room together but went in opposite directions. A few minutes later, Nurse Williams heard a scream, turned and saw a doctor standing in the doorway of her office. The appellant then exited the office, pushed the doctor and ran out of the hospital. The doctor discovered approximately $100.00 missing from her purse that had been in the office.

The military police were immediately notified of the theft and given a description of the perpetrator. Military police patrols were told to be on the lookout for the thief. A few minutes later, military policeman (MP) Burger spotted the appellant making a call from a phone booth located approximately a quarter mile from the hospital. Since the appellant matched the description of the thief, MP Burger approached the appellant. As MP Burger approached, the appellant waved to him. MP Burger apprehended the appellant. The appellant told MP Burger he needed help because he was coming down off a cocaine induced high. MP Burger told him to be quiet until he was taken to the military police station and read his rights.

At the military police station, the appellant was placed in an interrogation room while MP Burger informed the on-duty military police investigator (MPI), Sergeant Chazen, of the apprehension. MP Burger told MPI Chazen that the appellant may be under the influence of drugs. MPI Chazen observed the appellant through the one-way mirror in the interrogation room. MPI Chazen had been an emergency medical technician before entering the Army and had extensive training in the detection and treatment of individuals under the influence of cocaine. MP Burger had little or no training in this area. MPI Chazen called her legal advisor who advised her to ensure that the appellant understood his rights and was not under the influence of any drugs before questioning him.

MPI Chazen interviewed the appellant, with MP Burger present, advising the appellant of his rights using the standard rights warning form. She advised him that he was suspected of burglary, larceny, and damage to government property, and asked the appellant if he received legal advice from an attorney in the last 30 days. The appellant responded that he had seen an attorney for another offense involving drugs but not for any of the offenses mentioned by MPI Chazen. The appellant had, in fact, recently received Article 15, UCMJ, punishment for drug use and had been advised by a lawyer.

MPI Chazen again contacted her legal adviser who informed her that if the appellant [600]*600had not been counseled by a lawyer for the offenses she was investigating, she could continue to question the appellant without informing the appellant’s lawyer. The appellant filled in the blanks at the top of the Department of Army Form 3881, corrected his social security number, and initialed the form where required. The appellant at first informed MPI Chazen that he wished to invoke his rights to remain silent. She told the appellant that she could not help him if he invoked his rights and remained silent. The appellant then said that he wanted help and would talk to her. MPI Chazen and MP Burger both testified that the appellant appeared to understand all that he was told and was logical and cooperative in answering questions.

MPI Chazen had a number of unsolved case files on crimes committed on Fort Devens. In some of these cases, the appellant, along with other soldiers, was considered a potential suspect. She asked the appellant about these crimes and the appellant admitted to committing them. One of these crimes involved the theft of money from another purse at the hospital on 8 January 1992. Another crime was the unlawful entry and larceny of currency from the cash box of the dining facility at Cutler Army Hospital. During this entire period of interrogation, the appellant did not appear to be under the influence of any drugs.

During the questioning, the appellant told MPI Chazen that he needed help for drug addiction. MPI Chazen told the appellant that she would call his company commander and suggest he needed help. She also told the appellant that she would call some people she knew who worked in the Alcohol and Drug Abuse office and ask for assistance for the appellant.

The appellant was picked up from the military police station by Sergeant Livingston from his unit. The appellant told Sergeant Livingston that he wanted .to volunteer to take a urinalysis test for drug detection. When he was brought before the commander, Captain Napora, the appellant renewed his request for drug testing. Captain Napora arranged for an immediate drug test. The appellant was tested and the results were positive for cocaine.

The military judge, in extensive findings of fact, ruled that the appellant had been properly advised of his rights by MPI Chazen and that he was not under the influence of any drugs when he elected to make a statement. He also determined that MPI Chazen did not make any promises to the appellant as an unlawful inducement to have him make a statement. He determined that the statement appellant made to MPI Chazen was voluntary and admissible. He also determined that the request to take a urinalysis test originated with the appellant and was clearly voluntary.

In his sworn testimony at the sentencing portion of the trial, the appellant, in response to a question from his individual defense counsel, indicated that he sold drugs for profit to finance his drug habit.

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Related

United States v. Briggs
42 M.J. 367 (Court of Appeals for the Armed Forces, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
39 M.J. 600, 1994 CMR LEXIS 18, 1994 WL 23583, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-briggs-usarmymilrev-1994.