United States v. Fox

8 M.J. 526, 1979 CMR LEXIS 592

• Court: U.S. Army Court of Military Review
• Decided: September 12, 1979
• Docket: SPCM 13806
• Status: Published

Opinions

OPINION OF THE COURT

LEWIS, Judge:

Contrary to his pleas, appellant was convicted by a military judge, sitting as a special court-martial, of going from his place of duty without authority, willful disobedience of an order of his superior commissioned officer, dereliction of duty, malingering, wrongful appropriation of a government pistol and breach of restriction in violation of Articles 86, 90, 92, 115, 121 and 134,10 U.S.C. §§ 886, 890, 892, 915, 921 and 934, respectively. His sentence of a bad-conduct discharge, confinement at hard labor for three months, forfeiture of $150.00 pay per month for three months and reduction to the grade of Private E — 1 was approved by the convening authority.

Appellant assigns four errors as requiring corrective action. We will discuss the first one asserting that the military judge preju-dicially erred by denying appellant’s motion to suppress an admission to a criminal investigator.

A brief description of the events leading up to appellant’s admission is necessary. On 8 November 1978, a caliber .45 pistol was reported missing from the top of a desk in a medical aid station where it had been laid by the person to whom it was assigned. Criminal Investigator T., responding to the request of the battalion where the loss occurred, conducted a crime scene survey and immediately located the weapon behind a bookcase adjacent to the desk. Following a conversation with appellant’s battery commander, Agent T focused his suspicion upon appellant who, with several other American and Korean military personnel, was in the medical aid station where the weapon was taken. Agent T filled out some preliminary paper work, took appellant’s fingerprints and advised him of his rights from Department of Army Form 3881, stating that he was suspected of larceny of the pistol. The appellant declined to answer questions and indicated that he wanted to see a lawyer. The interview was instantly terminated.

Two days later, while returning from another camp, Agent T stopped at appellant’s camp. He again talked to appellant’s battery commander and learned that the appellant was “pending chárges.”¹ Finding the appellant playing “foosball” in the battalion recreation room, Agent T inquired whether he had seen a lawyer yet. Appellant replied to the effect that his lawyer’s office was at still another camp and that appellant’s commander did not let him have a vehicle to go see him. Appellant at that time reasserted his desire to see counsel, possibly even naming a specific one with whom he had an attorney-client relationship on his existing charges.² Agent T responded by saying, “Well, fine, I can’t question [you] then.” There followed a two hour conversation characterized by both Agent T and the appellant as “friendly” and “social.” It covered, among other topics, the foosball machine, hometowns, airplane flying, personal background and the education plans of each. The appellant testified that he was initially reluctant to speak to Agent T, but following Agent T’s remark that they could not talk about “the incident” and with the encouragement of appellant’s friend,³ he willingly engaged in palaver with the agent.⁴ He felt no restraint and knew he could terminate the conversation and leave at any time. In fact, he finally did so by remarking that he was going “to chow.” They left the recreation center at the same time, the appellant going “to chow” and the agent going toward his vehicle. Because “he was just friendly, and [appellant] liked to talk to him,” appellant walked over to the vehicle to say goodbye. Thereupon appellant asked Agent T what would happen in the case. Agent T responded by saying he did not know because he did not make the decisions on court-mar-tials. “The only thing I did was to gather the facts and information based on peoples [sic] conversations and statements and so forth. And that I had the fingerprints and had the weapon . . . [and] that I would have to send the weapon and the fingerprints off to a lab in Japan.” There followed the admission of appellant that he was startled by being fingerprinted inasmuch as he had wiped his fingerprints from the weapon before he finally threw it behind the bookcase. Agent T then told him, “[R]emember, I have not asked you any questions pertaining to the case. I cannot do that.” It is uncontroverted that, in fact, Agent T never did ask any such questions of appellant.

Clearly the above scenario did not involve an in-custody interrogation so as to activate the rule of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and United States v. Tempia, 16 U.S.C.M.A. 629, 37 C.M.R. 249 (1967).⁵ Likewise, it does not involve the rule of United States v. McOmber, 1 M.J. 380 (C.M.A.1976), or that of United States v. Lowry, 2 M.J. 55 (C.M.A.1976), because the appellant’s attorney detailed to represent him in defending against then-pending charges had no relationship with the appellant in connection with the totally unrelated pistol incident. Finally, it does not involve any impairment of freedom of will of the nature condemned in United States v. Borodzik, 21 U.S.C.M.A. 95, 44 C.M.R. 149 (C.M.A.1971), or a violation of the warning requirements of Article 31, UCMJ, 10 U.S.C. § 831, inasmuch as appellant’s admissions were not elicited by the investigator.

What the scenario does involve, however, is more difficult to label and appraise. It was not improper for the agent to contact appellant to ascertain whether he had seen counsel when the agent did not know otherwise.⁶ Accordingly, had he done so and then immediately left the recreation center with the appellant approaching the agent with his question and subsequent admission, the situation would fit comfortably within established precedent allowing the admission of the statement into evidence. Distinguishing this case, of course, is the two hours “social” chat during which no rights warnings pursuant to Article 31, UCMJ, and Tempia, supra, were given. Carefully examining that “chat”, we find that foosball was not the only game appellant was playing in the recreation center. He was also voluntarily engaged in a cat- and-mouse game with the investigator.⁷ He acquitted himself well during the game through its conclusion.⁸ If interrogation were the aim of the cat, it was successfully thwarted by the mouse. It was not until afterward that the incriminating statement was made. We are satisfied that, at the time it was made, the statement was totally the product of appellant’s free will and not in any way then elicited by Agent T. Because their mutual game had ended, we need not decide whether it constituted a subtle form of interrogation, improper both for lack of rights warnings and for any erosion of appellant’s right to counsel. We would be remiss, however, if we failed to strongly caution against such police practices. In this case, it was only the appellant’s sure-footedness in avoiding any admission during their game that kept the constable from blundering. Furthermore, appellant’s intelligence and demonstrated sagacity convince us that the subsequent admission was not the product of the earlier, probably improper, conversation. Accordingly, this assignment of error lacks merit.

We have also considered the other assignments of error and find that they likewise lack merit.

The findings and sentence are affirmed.

Judge CLAUSE concurs.

1 . In his testimony, Agent T steadfastly denied being told that any charges had been referred for trial. He also repeatedly denied being aware before he saw appellant later in the afternoon that the appellant was already represented by counsel in connection with those charges.

2 . The charges were for many of the same Article 86 and 115 offenses of which he was convicted in the instant case. Having occurred before the pistol and disobedience incidents, they had been first referred on 19 October for trial by regular special court-martial. There is no evidence that Agent T knew any more at that point than that some charges were pending disposition somewhere and that the appellant had a lawyer in connection with them.

3 . “Spec. 4 Cain was next to me [at the foosball table] and he said, ‘don’t be an ass hole, speak to him and see what he has to say.’ ” Appellant also testified that Specialist Cain said, “Now you don’t need to be prickish [sic] about it, just go ahead and speak to him it might be important, it would be beneficial to you.”

4 . Asked what effect his friend’s advice had upon him, appellant testified, “Nothing really, because, he’s just a friend. I have got a mind of my own and I can think for myself, sir." He further testified that, while Agent T had said that they could not talk about the incident until he had talked to his lawyer, he had the feeling that Agent T wanted to get something out of him.

5 . See also United States v. Hill, 5 M.J. 114 (C.M. A. 1978).

6 . United States v. Harris, 7 M.J. 154 (C.M.A. 1979).

7 . As for Agent T’s testimony that his purpose for the protracted conversation became purely social after appellant said that he still had not seen his counsel, we remain incredulous. The life of a policeman cannot be so lonely as to convince us that he could not find better company than a person whom he is investigating for larceny of a pistol and who he knows is already under charges for unrelated offenses.

8 . The appellant is intelligent, a secondary school graduate enrolled in college courses and a medical aid man who ranked high in his medical classes. Moreover, he apparently was thoroughly on guard during the period in question. See note 4, supra.