United States v. Dowell

10 M.J. 36, 1980 CMA LEXIS 9847

• Court: United States Court of Military Appeals
• Decided: November 17, 1980
• Docket: No. 35,827; CMR No. 436321/G
• Status: Published

Opinions

Opinion of the Court

EVERETT, Chief Judge:

The appellant was tried by general court-martial, consisting of military judge alone, on charges alleging three absences without leave and maiming.¹ Notwithstanding his pleas of not guilty, he was convicted of all three unauthorized absences² and of aggravated assault as a lesser included offense of the charged maiming.³ Thereupon, he was sentenced to a bad-conduct discharge, confinement at hard labor for 18 months, forfeiture of all pay and allowances, and reduction to the lowest enlisted grade. In due course, the convening authority approved these results, and the United States Army Court of Military Review affirmed.

Upon appellant’s petition to this Court, we granted review (5 M.J. 266) to determine if the military judge erred by permitting appellant’s company commander to testify about certain statements made to him while appellant was in pretrial confinement. Specifically, the appellant insists that admission of these statements into evidence violated Article 31(d), Uniform Code of Military Justice, 10 U.S.C. § 831(d), as he had not been fully and correctly advised of his rights under Article 31(b), 10 U.S.C. § 831(b), before making the statements. Also, appellant claims violation of United States v. McOmber, 1 M.J. 380 (C.M.A.1976), since his company commander knew that Dowell was represented by counsel but did not contact that counsel before interviewing appellant. We agree in both respects.

I

Appellant was arraigned on an original charge of unauthorized absence from November 5, 1976, to November 16, 1976, and on additional charges alleging that he had been absent without authority from December 17, 1976, to December 29, 1976, and from January 17, 1977 to May 7, 1977, and that on May 6, 1977, he had maimed Albert H. Moore by disfiguring his face and neck with a bottle. The original charge had been sworn to by Captain Alan C. Black as accuser on November 18, 1976; and on the next day that captain had informed appellant of the charge against him. That charge sheet fails to record when a copy thereof was served on Dowell by the trial counsel. The additional charges had been sworn to by Captain Black on May 17,1977; and on May 19, 1977, he had informed Do-well of the charges against him. A copy of the charges was served on the accused on June 10,1977, by direction of the trial counsel. On June 10, 1977, all of the charges were referred for trial together by a general court-martial convened by orders dated May 10, 1977. Both charge sheets reflected that on May 8, 1977, appellant had been placed in pretrial confinement at Mannheim, Germany.

In an effort to prove the maiming charge, the Government offered the testimony of the victim and of Tom Kelly, an eyewitness to the incident in which Moore had been injured. Joseph P. Smith, an Army Criminal Investigator, testified that soon after the incident involving Moore, he had interviewed appellant in a waiting room at an Army hospital. With the aid of Department of the Army Form 3881, Smith advised appellant of his rights; and on that same form Dowell executed a “waiver” to the effect that, “Understanding my rights as stated above, I am now willing to discuss the offense(s) under investigation without a lawyer being present.”

According to Smith, he had advised appellant that he wished to “interview him concerning the offenses of desertion and an aggravated assault.” Appellant then indicated “that he did not wish to discuss the offense of desertion but would be willing to discuss the offense of aggravated assault without the presence of a lawyer.” Without defense objection, Investigator Smith then recited what Dowell had told him about the injury to Moore on the night of May 6, 1977. Defense counsel brought out on cross-examination that Dowell had been quite cooperative with the investigator.

Subsequently, the Government called as a witness Captain Black, who was the accuser and also the appellant’s company commander. This witness testified that two or three days after appellant had been placed in pretrial confinement, he had visited Dowell at the confinement facility in Mannheim. The purposes of the visit were “primarily, to give him his check for the Army-his pay check, and secondly, to accomplish the required health and welfare visits that I must conduct monthly for personnel in pretrial confinement.”⁴ Captain Black denied that he had asked any questions about the offenses with which appellant was charged; but he maintained that, nonetheless, Dowell had told him about the incidents which gave rise to the charges. The captain’s general question, “Well, how is it going,” received a detailed reply which included an account of how Moore had been cut.

Captain Black conceded that at the time of his visit to the stockade, he knew that Captain Richard H. Gasperini “was already the accused’s attorney.”⁵ Captain Black, however, did not tell Gasperini that he was going down to visit the accused at the confinement facility, nor subsequently did he inform defense counsel that he had been there. Furthermore, although the captain told Dowell that he did not have to say anything about the incident, he “did not officially advise him of his rights under Article 31.” Even though Captain Black realized that appellant was discussing with him the very incident that gave rise to the maiming charge, he “made no effort to properly advise him of his rights under Article 31.” During the approximately twenty-five minutes that Captain Black was there with him, Dowell spent about fifteen minutes talking about the possible offenses. Black made no mention of any right to legal counsel.

The largest question in Dowell’s mind at the time of Captain Black’s visit “had to do with an assault charge, and he could not understand where this charge came from or how it was initiated. He was not aware of this charge.” Captain Black added:

I believe this charge was made after he had initially spoken with his defense lawyer, and he was quite disturbed about this particular charge. And that was primarily-my comments there were that I knew nothing about them either; that I had simply been informed by legal personnel in our unit that there was going to be an additional charge based on two statements that had surfaced after the incident. That was the primary-that was about the only time that I said anything to Private Dowell. He was conversing with me reference these items.

After argument had been presented to the military judge concerning the admissibility of Dowell’s statements to Captain Black, the appellant testified about the circumstances under which the statement was obtained. According to him, after a question by the captain as to how he was doing, they sat down in the interview room at the stockade; and Captain Black “told me why he was down there-was to bring me my charge-an additional charge which had been added to my charges that they had preferred to me.” However, Captain Black had already read to Dowell the unauthorized absence charges and an assault charge even before he was placed in pretrial confinement.⁶

Appellant denied that Captain Black, had given him a pay check when he came to visit Dowell at the stockade. Indeed, he denied receiving a check from anyone during his fifty-five days of pretrial confinement.⁷ According to appellant, Captain Black, after reading him the charges, had asked about what happened, but had not advised Dowell of his right to remain silent or to have a lawyer.

When the trial counsel declined an invitation by the military judge to present further evidence, the judge on his own motion recalled Captain Black. In response to a specific question from the judge, the witness corrected his earlier testimony in this way:

I must correct that. Yes, that was— that was a third reason for me going down there. I did have to read him charges. I had to read him that additional charge that showed up after he initially went to pretrial.

The reading of the charges occurred “after some preliminary remarks to the effect, How are you doing?, and things of that nature.” The reading of the additional charge for assault disturbed the appellant, whose first comment was “ T don’t understand,’ where did this come from type thing.” Captain Black’s “answer to him was, that I didn’t know, an additional witness had obviously surfaced, and that was the extent of my knowledge as far as this latter charge.” Thereupon, Dowell said, “Wow, I can’t believe this. [H]e started to discuss his involvement in the various charges after this.” He began with the charge of unauthorized absence in November, at which point Captain Black made the comment that appellant did not have to discuss the matter.

Upon cross-examination by defense counsel, Captain Black was not sure that he had taken a cheek down to appellant at the confinement facility. He persisted, however, in denying that he had asked Dowell to discuss any of the charges. Captain Black testified that at the time of his interview with appellant at the confinement facility he had not been aware that Dowell had already spoken to CID agents.

Upon this evidence the military judge stated that he was “satisfied that the statements made by the accused were not obtained from him by Captain Black.” Therefore, he ruled that Captain Black might “testify as to what the accused said to him on that occasion in the stockade.” Of course, the accused’s statements, as described by the captain, were quite damaging to the defense.

II

“No statement obtained from any person in violation of” Article 31(b) of the Uniform Code “may be received in evidence against him in a trial by court-martial.” Article 31(d). Paragraph 140a, Manual for Courts-Martial, United States, 1969 (Revised edition), places upon the Government the burden of establishing that suitable warnings were given before a confession or admission was obtained.

At about 1:45 a. m. on the morning of May 7, 1977, appellant received a full warning of his rights from the Army’s criminal investigators. At this time he was being interviewed in the waiting room at an Army hospital. The contested statements were made to Captain Black several days later. According to the captain’s testimony, this was on May 10 or 11, two or three days after Dowell had been placed in pretrial confinement. Significantly, the charge sheet containing the additional charges recites that Captain Black informed the accused of the charges against him on May 19, 1977. Since that date appears to have been written on the charge sheet in Captain Black’s handwriting and is accompanied by his signature, the logical inference is that the interview with appellant occurred some eleven days after Dowell had been placed in confinement.

It appears then that at least three days-and probably twelve days-passed between the CID warning to appellant and his interview with his company commander. We do not believe that the language of Article 31(b), 10 U.S.C. § 831(b) contemplates that a warning of rights given several days before will be adequate.⁸ The omission of a new warning is all the more fatal when, as in the case at bar, an accused has been placed in confinement during the intervening period. Concern with “custodial interrogation” underlies the Supreme Court’s ruling in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), in which a warning requirement was imposed upon investigators. After a suspect has been placed in confinement, he should be reminded before further interrogation, that his rights to remain silent and to consult with counsel still exist.

Captain Black had been a company commander for some months before his interview with appellant. Frequently, he “had advised persons of their rights on other occasions.” However, he readily conceded that he gave no Article 31(b), 10 U.S.C. § 831(b) warning to appellant and did not advise him of his right to counsel.

Under the wording of Article 31(d), 10 U.S.C. § 831(d) of the Code and of paragraph 140a of the Manual for Courts-Martial, inadmissibility is dictated only as to statements that are “obtained” without warning. A spontaneous admission by a suspect may not be “obtained” within the meaning of the statute. Cf. Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). However, in the case at hand a service member held in pretrial confinement was being told by his company commander that the commander had accused him of serious offenses. In permitting receipt in evidence of an “admission by silence,” the 1969 Manual for Courts-Martial states, “If an imputation against a person comes to his attention under circumstances that would reasonably call for a denial by him of the accuracy of the imputation if the imputation was not true, a failure on his part to utter such a denial will support an inference that he thereby admitted the truth of the imputation.” Para. 140a(4). The underlying fact of human nature on which this Manual inference is based-namely, that persons falsely accused of a crime deny the accusation rather than remain silent-also makes it quite foreseeable that one who has been notified of serious charges against him will feel a need to say something in response to those charges.⁹ The foreseeability of such a reaction is all the greater when the accused is in confinement and the charges against him are being presented to him by his unit commander.

When one takes action which foreseeably will induce the making of a statement and a statement does result, we conclude that the statement has been “obtained” for purposes of Article 31, 10 U.S.C. § 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. 321(1), Manual, supra. 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 U.S.C. § 831(b) was applicable.¹⁰ Thus, the absence of any warning to Dowell precluded receipt of his statements in evidence.

Ill

At the time of the interview with appellant, Captain Black knew that Dowell was represented by Captain Gasperini. Apparently this representation extended to all the charges preferred by Captain Black against the appellant. Nonetheless, Captain Black believed that he had no obligation to advise the defense counsel of his visit to the stockade.

The danger here of interference with the accused’s right to counsel is not unlike that which concerned us in United States v. McOmber, supra. There we ruled that if the right to counsel, provided in Article 27, UCMJ, 10 U.S.C. § 827, is to retain its vitality, then a military investigator who is .on notice that a service member is represented by a lawyer in connection with the criminal investigation he is conducting may not question that person without affording counsel a reasonable opportunity to be present. Of course, Captain Black can be distinguished in some respects from the investigators involved in McOmber.11 Nonetheless, he was the accuser-the very person who swore to the charges against the appellant. Moreover, his encounter with the accused to inform him of the charges was a mandatory initial step towards -trial. It went far beyond delivery of a check or inquiry into Dowell’s health and welfare.

In this context, any interrogation of an accused is subject to the same requirement announced in McOmber-namely, that counsel must be provided an opportunity to be present. Since informing an accused of the charges preferred against him is the “functional equivalent” of interrogation because it tends to induce the making of a statement-as discussed in earlier parts of this opinion-the practical result is that the accused’s lawyer must be notified before any such interview with the accused takes place with respect to the offense charged. Even mere listening to the accused’s comments on the charges is not immune from this requirement. Evidence which has been obtained in violation of this requirement is inadmissible.

IV

We have examined the record closely to determine whether the accused’s sworn testimony at trial constituted a judicial confession to the aggravated assault of which he was convicted or whether it sufficed to raise an issue of self-defense. The question is very close; but, taking all the evidence in context and resolving every doubt in appellant’s favor, we conclude that self-defense was raised and that admission of the statement made by appellant to Captain Black may have been prejudicial as to that issue.

The decision of the United States Army Court of Military Review is reversed as to the offense of aggravated assault and the sentence. The findings thereon are set aside. The record of trial is returned to the Judge Advocate General of the Army for submission to a convening authority, who may dismiss the aggravated assault charge and reassess the sentence based on the remaining findings of guilty, or order a rehearing on the aggravated assault charge and the sentence.

Judge FLETCHER concurs.

1 . These offense were charged as violations of Articles 86 and 124, Uniform Code of Military Justice, 10 U.S.C. §§ 886 and 934, respectively. A further additional charge of aggravated assault, in violation of Article 128, UCMJ, 10 U.S.C. § 928, which grew out of the same incident as the alleged maiming, was not referred to trial on the recommendation of the Article 32, 10 U.S.C. § 832, investigating officer. See Article 32, UCMJ, 10 U.S.C. § 832. In some of the testimony about reading to the appellant a charge of aggravated assault, the witness may have been referring to this charge rather than to the maiming charge.

2 . The termination date of the last absence, however, was amended.

3 . The conviction of the lesser included offense of aggravated assault was a violation of Article 128 vice Article 124.

4 . Captain Black testified that he was required by regulations to make a monthly health-and-welfare visit to anyone in his command in pretrial confinement.

5 . This same lawyer represented Dowell at the trial pursuant to the orders of May 10, 1977, which appointed a general court-martial to which Gasperini was detailed as defense counsel.

6 . Also appellant’s initial contact with his attorney, Captain Gasperini, had occurred at or about that same time and before he was placed in confinement.

7 . Black did not indicate in his testimony whether he made any subsequent visits to the appellant during his 55 days of such confinement; the appellant testified that he did not. See n. 4, supra.

8 . Of course, Captain Black did not try to incorporate by reference any warnings to Dowell that might have been given by the CID agents; he was unaware at the time that they had already interviewed appellant.

9 . Regardless of any change in the applicable rule of evidence, see Mil.R.Evid. 304h (3), effective September 1, 1980, the reality of human nature remains the same.

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

11 . McOmber involved a military investigation of the same offense in which defense counsel represented the accused. In United States v. Lowry, 2 M.J. 55 (C.M.A. 1976), we extended the McOmber mandate to an interview of an accused' about an offense related to that for which counsel had been appointed. However, the line was drawn in United States v. McDonald, 9 M.J. 81 (C.M.A. 1980), where the Court declined to hold the McOmber rationale applicable to an independent civilian investigation into an offense unrelated to that in which the accused was represented by defense counsel. The present case involves discussion of military offenses related to the charges for which defense counsel was representing appellant. See United States v. Lowry, supra.