United States v. Goodson

18 M.J. 243, 1984 CMA LEXIS 18869

• Court: United States Court of Military Appeals
• Decided: July 23, 1984
• Docket: No. 44430; SPCM 16459
• Status: Published

Opinions

Opinion

COOK, Senior Judge:

Tried by special court-martial, military judge alone, the accused was convicted, in accordance with his pleas, of possession and use of marijuana, and, contrary to his pleas, of attempting to possess, transfer, and use amphetamines, in violation of Articles 134 and 80, Uniform Code of Military Justice, 10 U.S.C. §§ 934 and 880, respectively. The approved sentence extends to a bad-conduct discharge, confinement at hard labor for 3 months, forfeiture of $334.00 pay per month for 3 months, and reduction to E-l. The findings and sentence were affirmed by the Court of Military Review. 14 M.J. 542 (1982).

We granted review of the following issue:

WHETHER THE MILITARY JUDGE ERRED BY RULING THAT THE APPELLANT VOLUNTARILY AND VALIDLY WAIVED HIS RIGHT TO COUNSEL DURING INTERROGATION AFTER BEING DETAINED FOR NINE OR TEN HOURS IN THE MILITARY POLICE STATION AWAITING INTERROGATION, AND AFTER CLEARLY ARTICULATING ON THREE SEPARATE OCCASIONS REQUESTS FOR COUNSEL WHICH WERE DENIED.

Finding no error, we affirm.

During the early morning hours of February 28, 1981, the accused and eight others were apprehended at Aberdeen Proving Grounds, Maryland, on suspicion of wrongful possession of a controlled substance. The nine suspects were transported to the military police station where processing and interrogation were conducted by Military Police Investigator (MPI) Dennis Allinder. Sergeant Faron Slye, a military policeman who assisted in the apprehension, testified that shortly after arrival at the station the accused “said that he didn’t want to make a statement; that he requested a lawyer.” Slye responded, “[F]ine, I will relay this information, this message, to the investigator.” Slye “explained to him that all that we were going to be doing was that he was going to be read his rights and a field interview worksheet taken on him.” Later on the accused made a second re.quest to Slye to see a lawyer, and Slye said he would relay the request to MPI Allinder. Slye testified that he did in fact inform Allinder of the accused’s requests.

MPI Allinder testified that he did not recall anyone informing him that the accused wanted to see an attorney. He was the only investigator on duty at the time, and he interviewed the suspects singularly. He did not get to the accused until approximately nine hours later. When the accused came into his office, Allinder “advised him of his rights on the DA Form 3881, asked him if he understood, which he said he did.” The accused initialed several places on the form, including the acknowledgment that he understood his “right to talk to a lawyer before or after questioning or have a lawyer present with me during questioning.” The accused signed the form in the section entitled “Waiver”¹ and signified that he was “now willing to discuss the offense(s) under investigation ... and make a statement without talking to a lawyer first and without having a lawyer with me.” Allinder stated that the accused never requested a lawyer, never indicated that he wished to remain silent, and never indicated that he had previously asked to see a lawyer.

The accused offered a different version of the events of the morning. He said that, upon arrival at the station, Sergeant Slye “told me not to sign it [a statement form], just say I didn’t want to speak.” He related the two times he asked Slye for counsel, but said that Slye said he “couldn’t have one.” He further testified that he “asked to call and Investigator Allinder, he told me that the acting JAG on duty was just for their use only and I couldn’t use him.” However, he admitted that when he was “called ... in for questioning,” he did not request a lawyer because “[t]hey already knew” and he “didn’t think ... [he would] get one.” The accused made an incriminating oral statement to Allinder, and it was used to prove the contested allegations.

On the 2nd of March, the accused’s company commander, Captain Candace Fox, having been informed of the incident, called the accused into her office. She advised him of his rights as set out on DA Form 3881. She was unaware of the events at the police station. The accused waived his rights again and made a written statement which he later swore to before the battalion adjutant. The accused never asked for counsel from her, and she did not know of his earlier requests. After taking the statement, she called the defense counsel and made arrangements for the accused to see him.

The accused confirmed that he did not “ask for a lawyer” from Captain Fox, since “I thought I was already hung, sir, I just didn’t stand a chance because they already knew.”

After argument from counsel the military judge denied the motion to suppress the statements to Allinder and Fox, and made these findings:

1. That in the early morning hours of 28 February 1981 the accused was apprehended by military police and transported to building 2004, Aberdeen Proving Ground, Maryland for interrogation, arriving at approximately 0230 hours.

2. That the interrogation of the nine suspects resulting from the apprehension was conducted by one agent, MPI Allinder, and that the accused was not interviewed by Allinder until approximately 1200 hours, some nine to ten hours after the initial apprehension. During this wait the accused was held with the other suspects in a waiting area that was adjacent to the Military Police Investigator’s offices. The suspects were not cuffed or placed in cells while awaiting interviews.

3. During the wait to be interviewed and [to have] their rights explained by the MPI Agent the accused requested to see a lawyer and permission to call a lawyer approximately three times in the first two hours. He was told that he could not see a lawyer at that time and that the on-duty JAG officer could not be called by the accused.

4. At one point during the wait the accused was informed that he should not make any statements and sign anything until his rights were read to him by the MPI Agent.

5. At approximately 1200 hours the accused’s turn came to be interviewed by MPI Allinder who proceeded to explain fully what the accused was suspected of and what his rights were. After informing the accused of his rights as found on Prosecution Exhibit 1 for Identification and eliciting that the accused understood his rights, Agent Allinder asked the accused if he wanted a lawyer present. The accused stated no, and that he was willing to discuss the offenses.

6. The wait, although long, was not prejudicial to the accused in any way because no attempted interrogation was begun until after he waived his rights. Nothing presented would indicate that the accused’s waiver was anything other than intelligently, consciously, and voluntarily given. The government actions in interviewing the accused may have been slow because of the number of suspects, but was not in any way improper or illegal.

7. We find the questioning conducted by Captain Fox on the 2nd of March was done pursuant to rights required by Article 31 and that the interview was conducted by Captain Fox with the knowledge that the accused was arrested on drug charges on the 28th of February. We find the accused consciously, intelligently and voluntarily waived his rights as found in Prosecution Exhibit 2 for Identification and that the statement which is marked Prosecution Exhibit 3 for Identification was properly taken by Captain Fox as a result of this interview.

We further find that in relation to the 28th of February, that the accused’s initial request for a lawyer made soon after he was brought to the station to talk to a lawyer was not made at a time when he had full knowledge of his rights and was not due to any interrogation whatsoever. It is not uncommon for one arrested to want to see a lawyer, but the state of the law does allow the government to inform the accused of his rights and then ask if he understands them. Once ascertaining the suspect understands his rights, the next question is to whether he wants a lawyer present. The accused had his opportunity at that point when questioned by Agent Allinder to state that he did want an attorney and that would require the government to suspend any further questioning. In this case the accused, after being informed of his rights completely and for the first time by MPI Agent Allinder at approximately 1200 hours, he consciously elected not to demand a lawyer and waived his rights. Therefore the statement taken by MPI Agent Allinder was voluntarily and intelligently given by the accused with full knowledge of his rights.

Both at trial and on appeal the accused argued that the then recently-decided case² of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), bars his interrogation by the military police after he made a request for counsel. We do not believe that Edwards is determinative in the instant factual context.³

Edwards was arrested pursuant to a complaint charging him with robbery, burglary, and murder, and taken to the police station. There he was advised of his rights under the fifth amendment as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Edwards stated that he was willing to submit to questioning and gave a statement denying involvement and presenting an alibi defense. However, after being told that another suspect had implicated him, Edwards “sought to ‘make a deal.’ ” After attempting to call the county attorney, Edwards hung up and said: “I want an attorney before making a deal.” 451 U.S. at 479, 101 S.Ct. at 1882. Questioning stopped and Edwards was taken to the county jail. The next morning two detectives came to the jail and asked to see Edwards. Edwards said he did not want to talk to anyone, but a detention officer “told him that ‘he had’ to talk and then took him to meet with the detectives.” Id. at 479, 101 S.Ct. at 1882. After being readvised of his Miranda rights, Edwards eventually implicated himself in the crimes. Over his objection, his statement was admitted against him at trial. On appeal the Arizona Supreme Court held that Edwards had invoked both his right to remain silent and to counsel during the interrogation, but that he had voluntarily waived both rights at the second interview. The Supreme Court, however, held that the use of his confession at trial violated his fifth- and fourteenth-amendment rights and reversed the conviction.

Edwards v. Arizona, supra, is concerned with the voluntariness of a waiver of Miranda rights after advisement and after assertion of those rights:

It is reasonably clear under our cases that waivers of counsel must not only be voluntary, but must also constitute a knowing and intelligent relinquishment or abandonment of a known right or privilege, a matter which depends in each case “upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.”

Id. at 482, 101 S.Ct. at 1884, quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). The Court further held

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.

Id. at 484-85, 101 S.Ct. at 1884-1885. Thus, Edwards is merely an extention and interpretation of the Miranda decision. The Supreme Court “emphasize[d] that it is inconsistent with Miranda and its progeny for the authorities, at their instance, to reinterrogate an accused in custody if he has clearly asserted his right to counsel,” id. at 485, 101 S.Ct. at 1885, unless the two-part test has been met to establish a “knowing and intelligent” waiver of that right.⁴

The factual situation before us here is quite different. Goodson made all of his requests for counsel before he was advised of his rights and while the ease against him was still in the investigatory stage. He had previously been advised not to make a statement and to say that he did not want to speak when he was brought to the military police office where he “was going to be read his rights and a field interview worksheet taken on him.” Although a period of some 9 hours⁵ lapsed before his rights were read to him, no attempt was made to interrogate him before he was formally advised of his rights by the military police investigator who was conducting the investigation.

The question is: Does an accused have a right to have an attorney appointed at that time? Miranda v. Arizona, supra, applies only to “custodial interrogation,” which was there defined as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” 384 U.S. at 444, 86 S.Ct. at 1612 (footnote omitted). A person in such custody must be advised of his “right to remain silent, that any statement he does make may be used ... against him, and that he has a right to the presence of an attorney, either retained or appointed.” Id. However:

This does not mean, as some have suggested, that each police station must have a “station house lawyer” present at all times to advise prisoners. It does mean, however, that if police propose to interrogate a person they must make known to him that he is entitled to a lawyer and that if he cannot afford one, a lawyer will be provided for him prior to any interrogation. If authorities conclude that they will not provide counsel during a reasonable period of time in which investigation in the field is carried out, they may refrain from doing so without violating the person’s Fifth Amendment privilege so long as they do not question him during that time.

Id. at 474, 86 S.Ct. at 1628. Furthermore:

When an individual is in custody on probable cause, the police may, of course, seek out evidence in the field to be used at trial against him. Such investigation may include inquiry of persons not under restraint. General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding. It is an act of responsible citizenship for individuals to give whatever information they may have to aid in law enforcement.

Id. at 477-78, 86 S.Ct. at 1629-30.

Our consideration of Miranda leads to the conclusion that the right to appointed counsel does not arise until in-custody interrogation has begun. The corollary is that a waiver of the Miranda rights cannot occur unless there has been a full advisement of rights. The cases following Miranda, including Edwards; Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct. 2830, 77 L. Ed.2d 405 (1983); and Solem v. Stumes, _ U.S. _, 104 S.Ct. 1338, 79 L.Ed.2d 579 (1984), have examined alleged waivers made after advisements of rights had been given and requests for attorney assistance had been made. Hence, they are not helpful in resolving the specific question now before us.

Our own cases of United States v. Hill, 5 M.J. 114 (C.M.A. 1978), and United States v. Muldoon, 10 M.J. 254 (C.M.A. 1981), are likewise concerned with interrogation of an accused after advisement and assertion of rights guaranteed by Miranda and United States v. Tempia, 16 U.S.C. M. A. 629, 37 C.M.R. 249 (1967).⁶ They also do not address the question we are considering here.

While we recognize a significant difference between deprivation of counsel in violation of the sixth amendment and violation of the right against self-incrimination prohibited by the fifth amendment, we have examined sixth-amendment cases to see if they recognize a right to counsel prior to the in-custody interrogation phase of a prosecution. Although we note that Edwards specifically declined to decide whether there was a sixth-amendment deprivation of counsel in that situation, in view of Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), 451 U.S. at 480-02 n. 7, 101 S.Ct. at 1882-84 n. 7, our examination of sixth-amendment cases fails to reveal any case creating the right to counsel earlier than the initiation of in-custody interrogation.

In Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970), the petitioners claimed that they had been subjected to a station-house line-up under circumstances so unduly prejudicial as to taint a later in-court identification and to deprive them of a fair trial; that a preliminary hearing in Alabama had been a “critical stage” of the prosecution and failure there to provide them with counsel was a violation of their sixth and fourteenth amendment rights. Following the dictates of Powell v. Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 64, 77 L.Ed. 158 (1932), United States v. Wade, 388 U.S. 218, 226, 87 S.Ct. 926, 1932, 18 L.Ed.2d 1149 (1967) (footnotes omitted), held “that in addition to counsel’s presence at trial, the accused is guaranteed that he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel’s absence might derogate from the accused’s right to a fair trial.” Therefore, the Coleman Court concluded that “critical stages” included pretrial arraignment, pretrial line-ups, and the preliminary hearing held in that particular case. It added that Miranda held “that the privilege against compulsory self-incrimination includes a right to counsel at a pretrial-custodial interrogation.” Id. at 7, 90 S.Ct. at 2002. Later cases have focused on the right to counsel at pretrial line-ups and out-of-court identifications. See Moore v. Illinois, 434 U.S. 220, 98 S.Ct. 458, 54 L.Ed.2d 424 (1977), and cases cited therein.

I conclude that the reference in Coleman v. Alabama to Miranda as “Cf.” would indicate that it represented the farthest point from trial that the right to counsel has been recognized, but then only in the fifth-amendment context.

There is nothing in either the Uniform Code of Military Justice or the Manual for Courts-Martial, United States, 1969 (Revised edition), that would establish a right to appointed counsel prior to a pretrial investigation under Article 32. Our case law and service regulations give greater access to counsel at other earlier stages of prosecution and investigation.⁷

The Military Rules of Evidence offer little guidance. Mil.R.Evid. 305 defines “[¡Interrogation” as “any formal or informal questioning in which an incriminating response either is sought or is a reasonable consequence of such questioning.” A noted text states:

It is clear that not every encounter between an investigator and another individual must be preceded by rights warnings; they are only required before interrogation of a suspect or accused by individuals required to give the warnings. The terms “suspect” and “accused” are not defined in the Rule but military cases have applied a two-pronged subjective-objective test in determining whether an individual was a suspect when questioned.

S. Saltzburg, L. Schinasi, and D. Schlueter, Military Rules of Evidence Manual 92 (1981). The Drafters’ Analysis of Rule 305 includes these remarks:

Rule 305(d)(1)(B) codifies the Supreme Court’s decisions in Brewer v. Williams, 430 U.S. 387 [97 S.Ct. 1232, 51 L.Ed.2d 424] (1977) and Massiah v. United States, 377 U.S. 201 [84 S.Ct. 1199, 12 L.Ed.2d 246] (1964). As modified by Brewer, Massiah requires that an accused or suspect be advised of his or her right to counsel prior to interrogation, whether open or surreptitious, if that interrogation takes place after either arraignment or indictment. As the Armed Forces lack any equivalent to those civilian procedural points, the initiation of the formal military criminal process has been utilized as the functional equivalent. Accordingly, the right to counsel attaches if an individual is interrogated after preferral of charges or imposition of pretrial arrest, restriction or confinement. The right is not triggered by apprehension or temporary detention. Undercover investigation prior to the formal beginning of the criminal process will not be affected by this, but jailhouse interrogations will generally be prohibited.

Appendix 18, Manual, supra.

I conclude that there is nothing in the Constitution, the Uniform Code of Military Justice, Federal case law, or our own cases that would recognize a right to have counsel provided upon request to a person who is merely waiting to be interviewed about a suspected crime. I hold that, in accordance with well-settled law, the right to appointed counsel arises first upon advisement of rights prior to in-custody interrogation.

The law requires balancing the accused’s rights against self-incrimination and the rights of the Government to investigate and prosecute violations of criminal law. The amendments to the Constitution and judicial interpretations thereof, and the Uniform Code and judicial interpretations thereof, represent attempts to insure that the power of the state does not overwhelm a person accused or suspected of a crime. On the other hand, the suspected person must assert his rights, particularly at those critical points where the rights arise. If the investigator here had been informed of the earlier requests for counsel — and there is a conflict in the evidence that he had— then he should have discussed the matter more fully with the accused. However, the accused also had an obligation to renew his request at the proper time. The accused himself admitted that the investigator already knew everything because one of his confederates had already made “a three-hour statement” and “told everything.” At that point, he reasonably may have concluded that counsel would be of little value to him. It is unrealistic to require that police investigators be alert and respond to every request made by a suspect under investigation. To exclude evidence taken after the proper advisement of rights and the waiver of those rights solely because a person, at some earlier point to another person, had requested counsel would unduly penalize the Government and the society it represents in a criminal prosecution.

The decision of the United States Army Court of Military Review is affirmed.

1 . The waiver section reads: "Understanding my rights as stated above, I am now willing to discuss the offense(s) under investigation without a lawyer being present." However, the italicized words were lined out, and these words written in (presumably by MPI Allinder): "and make a statement without talking to a lawyer first and without having a lawyer with me.” The accused’s initials appeared after the period.

2 . Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378, was decided on May 18, 1981. The accused was tried on May 21, 1981. His interrogation occurred as noted on February 28, 1981. In Solem v. Stumes, _ U.S _, 104 S.Ct. 1338, 79 L.Ed.2d 579 (1984), the Supreme Court held that since "Edwards established a bright-line rule to safeguard preexisting rights,” it would not be applied retroactively at least "in collateral review of final convictions.” 104 S.Ct. at 1343, 1345. Whether it would be applied and at what stage of the proceedings, in direct-review cases, was not then decided.

3 . The military judge was provided with a copy of the slip opinion in Edwards, and his findings indicate that he did not believe it applied.

4 . There seems to be some doubt as to whether the “two-part” test is now only one part. The majority in Solem v. Stumes, supra, defined Edwards in this fashion: "Edwards established a new test for when that waiver would be acceptable once the suspect had invoked his right to counsel: the suspect had to initiate subsequent communication.” 104 S.Ct. at 1343. Justice Powell, concurring in the judgment, believed that the majority had “established a new per se rule and to that extent overruled Johnson v. Zerbst," 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Id. at 1346. Earlier in Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983), Justice Powell, concurring separately, stated:

But the question of whether a suspect has waived this important right to counsel is uniquely one of fact, and usually'must and should be left to the judgment of the trial court that has had the benefit of hearing the evidence and assessing the weight and credibility of testimony.

Id. at 2838.

5 . The evidence here does not reveal the sort of police conduct condemned by United States v. Hill, 5 M.J. 114 (C.M.A. 1978) (after advisement of rights and a request for counsel, accused was placed in a detention cell for 9 hours and then confronted with an assertion that he had been implicated by one of the participants in the robbery — no effort was made to provide him with counsel); or United States v. Muldoon, 10 M.J. 254 (C.M.A. 1981) (after being advised of his rights and requesting counsel, accused was “placed ... in a ‘very bare’ detention cell” for 2 hours, id. at 255, and then confronted with an implicating statement from a confederate — no attempt was made to provide him with counsel).

6 . In United States v. Tempia, 16 U.S.C.M.A. 629, 37 C.M.R. 249 (1967), which brought the doctrine of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), into the field of military justice, the accused had been advised of his right to counsel prior to custodial interrogation and had asked for counsel. Instead, under then current regulations of the Air Force, he was referred to the Staff Judge Advocate who merely explained his legal rights but specifically refused to enter into an attorney-client relationship with him. We held that this procedure was inadequate to comply with the Miranda guarantees.

7 . See United States v. Tempia, supra; cf. United States v. Wimberley, 16 U.S.C.M.A. 3, 36 C.M.R. 159 (1966); United States v. Gunnels, 8 U.S.C. M.A. 130, 23 C.M.R. 354 (1957).