United States v. Carter

13 M.J. 886, 1982 CMR LEXIS 957

Opinions

OPINION OF THE COURT

PER CURIAM:

Contrary to his plea, appellant was convicted of robbery in violation of Article 122, Uniform Code of Military Justice, 10 U.S.C. § 922. He was sentenced to a dishonorable discharge, confinement at hard labor for one year and nine months, and forfeiture of all pay and allowances. The convening authority approved the sentence.

Appellant contends that the trial judge erred in admitting testimony regarding statements he made to his battery commander while in pretrial confinement. Appellant claims that admission of his statements into evidence violated Article 31(d), 10 U.S.C. § 831(d) because he was not advised of his rights under Article 31(b) before speaking with his battery commander. Appellant also urges that the rule in United States v. McOmber, 1 M.J. 380 (C.M.A.1976) was violated because his battery commander did not contact defense counsel before visiting appellant in confinement under circumstances where the commander should have known the appellant was represented by counsel.

I

On 22 January 1981 appellant was placed in pretrial confinement. On 30 January 1981, appellant received a visit from his battery commander, Captain Thomas. The visit was in response to several requests made by appellant to talk about his pretrial confinement, the reasons therefor, and the possibility of release therefrom. As CPT Thomas did not seek to interrogate appellant nor otherwise to elicit information from him, he did not advise him in accordance with Article 31, UCMJ. He “simply went there on [appellant’s] request to see what he had to say as far as why he wanted to be released.”

The visit resulted in a conversation between appellant and his commander which lasted “two hours or more”. CPT Thomas did not interrogate appellant. However, during the course of the conversation appellant did in fact discuss the reasons why he felt he should be released from confinement. According to CPT Thomas’ testimony, appellant stated that he had only been involved in one of the robberies

Footnotes

•

* and that the only person who could connect him to that robbery was Private Marshall. Appellant’s statement was admitted at trial over defense objection.

Admissibility of a statement made by an accused is predicated upon compliance with the provisions of Article 31, UCMJ. When an accused is interrogated by a person subject to the Code, the accused must be warned in accordance with Article 31(b), UCMJ. If not so warned the statement obtained is inadmissible. Article 31(d), UCMJ. Any statement secured through the “functional equivalent” of interrogation without first warning the accused of his Article 31(b) rights is “obtained” within the meaning of Article 31(d). United States v. Dowell, 10 M.J. 36 (C.M.A.1980). Where a person subject to the Code without warning an accused “takes action which forseeably will induce the making of a statement and a statement does result”, that statement is inadmissible as the functional equivalent of interrogation. Id. at 40.

Appellant claims that his statement was obtained in violation of Article 31(b) because it was reasonable for his battery commander to expect that appellant would make a statement regarding the charges against him when visited in pretrial confinement to discuss the basis for that confinement. Conversely, the Government insists that the statement was spontaneously made to CPT Thomas who did no more than present himself to appellant at appellant’s own insistence. The Government argues that the commander, acting in a neutral manner, did not take any action which forseeably would induce the making of a statement by the appellant regarding the charges against him. Thus, there could have been no reasonable expectation that appellant would make any such statement. We find the Government’s position untenable.

The mere act of a unit commander visiting an accused in pretrial confinement does not necessarily tend to induce the accused to make a statement regarding the charges against him. Had appellant’s battery commander only called on him in pretrial confinement and discussed appellant’s general welfare, this case might not be before us. The fact that appellant was in confinement and his visitor was his unit commander are significant but ancillary considerations. See United States v. Dowell, supra at 40.

The crucial act which we must examine is the battery commander’s participation with appellant in a discussion of the basis for appellant’s confinement. The sine qua non of pretrial confinement is an offense which an accused is alleged to have committed. A belief, by whomever held, that a discussion of the reasons why an accused is in pretrial confinement and the reasons why he should be released from such confinement would not include at some point a statement by the accused regarding the charges against him is beyond the pale of reason. We believe it was inevitable that the action of CPT Thomas would induce the making of a statement by appellant. Accordingly, the absence of an Article 31(b) warning by CPT Thomas precluded the receipt of appellant’s statement in evidence.

II

Although the question of a McOmber violation is mooted by our decision in this case, we believe a few comments are in order. The Court of Military Appeals held in United States v. McOmber, supra, that once an investigator is on notice that an attorney has undertaken to represent an individual in a military criminal investigation, further questioning of the accused without affording counsel reasonable opportunity to be present renders any statement obtained involuntary under Article 31(d) of the Uniform Code. Id. at 383. The cessation of questioning is triggered by actual notice to the interrogator of actual representation by counsel. We know of no case, and none has been cited to us, which stands for the proposition that if an interrogator should have known that an accused might be represented by counsel, questioning may not begin until the interrogator ascertains whether the accused has such counsel, and if so, notifies that counsel. We would decline to so extend the McOmber rule.

The findings of guilty and the sentence are set aside. A rehearing may be ordered by the same or a different convening authority.

Appellant was suspected of participating in at least ten robberies. While ten specifications of violating Article 122 were preferred, only the one robbery, described in the specification of which he stands convicted, was referred to trial.