United States v. Harris

16 M.J. 562, 1983 CMR LEXIS 895
CourtUnited States Court of Military Appeals
DecidedMay 13, 1983
DocketSPCM 17338
StatusPublished
Cited by4 cases

This text of 16 M.J. 562 (United States v. Harris) is published on Counsel Stack Legal Research, covering United States Court of Military Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Harris, 16 M.J. 562, 1983 CMR LEXIS 895 (cma 1983).

Opinions

OPINION OF THE COURT

WERNER, Judge:

Contrary to his pleas, appellant was found guilty of wrongful possession and sale of marijuana, in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934 (1976). He also pled guilty to and was convicted of assault and battery, in violation of Article 128, Uniform Code of Military Justice, 10 U.S.C. § 928 (1976). His sentence, which was approved by the convening authority, provides for a bad-conduct discharge, confinement at hard labor for six months, forfeiture of $100.00 pay per month for six months, a fine of $1,500.00 and reduction to the grade of Private E-l.

I.

On the morning of 8 July 1981, forty-five plastic baggies containing 150 grams of marijuana were discovered among appellant’s possessions during a scheduled health and welfare inspection. The inspectors notified the military police desk sergeant who dispatched Specialist Griffith, a military policeman, to appellant’s unit. Upon arriving at the unit and learning of the seizure of marijuana from appellant, Specialist Griffith apprehended him and advised him of his testimonial and counsel rights under Article 31, Uniform Code of Military Jus[563]*563tice, 10 U.S.C. § 831, and Miranda/Tempia.1 Appellant expressed a desire to remain silent and requested legal counsel. Thereupon, Griffith transported him to the military police station where he remained in custody awaiting interrogation by investigators of the Joint Drug Suppression Team (JDST). For reasons unexplained by the record, Griffith neglected to inform the agents of the JDST of appellant’s request for counsel.

About three hours later, Agents Finch and Ortiz of the JDST began to interview the appellant. They too advised him of his testimonial and counsel rights after which he agreed to make a statement without legal counsel. Additionally, Agent Finch testified, “I specifically asked him during the rights advisement if he had been advised of his rights [by the military police] and requested a lawyer, and he replied no.” Appellant then gave the agents a statement denying guilt.

As they did not believe him, the agents called in Agent Rubio, the senior investigator of the JDST, to continue the interview. Rubio also was unaware of appellant’s earlier request for counsel. He did ascertain that appellant had been advised of his rights by Agents Finch and Ortiz; that he understood them; and that he still wished to make a statement without legal counsel present. During the interview, appellant confessed to the marijuana offenses.

II.

At trial, appellant unsuccessfully moved to suppress his confession on the ground that he was denied counsel during the interrogation by the JDST agents. For the same reason, he now challenges the military judge’s adverse ruling. I find his challenge to be without merit and that his confession was properly admitted into evidence.

The question presented for resolution is whether appellant voluntarily, knowingly and intelligently waived his right to have counsel present during the interrogation at which he confessed. Appellant maintains he did not so waive that right and cites the Supreme Court’s holding in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), in support of his position. Specifically, he refers to the following language from that opinion as compelling us to rule in his favor:

[W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold 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 (footnote omitted). However,

we do not hold or imply that Edwards was powerless to countermand his election or that the authorities could in no event use any incriminating statements made by Edwards prior to his having access to counsel. Had Edwards initiated the [subsequent] meeting ..., nothing in the Fifth and Fourteenth Amendments would prohibit the police from merely listening to his voluntary, volunteered statements and using them against him at the trial.

[564]*564Id. at 485, 101 S.Ct. at 1885.2

At first glance, the evidence of record appears to support appellant under the Edwards criteria. First, his request for legal counsel to Specialist Griffith occurred during a custodial interrogation. See United States v. Hartsock, 14 M.J. 837 (A.C.M.R.1982). Second, he was subjected to a subsequent interrogation by JDST agents without counsel being present or without being given a reasonable opportunity to obtain counsel. See United States v. Goodson, 14 M.J. 542 (A.C.M.R.), pet. granted, 14 M.J. 441 (C.M.A.1982); United States v. Whitehouse, 14 M.J. 643 (A.C.M.R.1982). Third, the second interrogation was not initiated by the accused. Although the Supreme Court manifested a distrust of such counsel-less interrogations, I do not believe that the Court established a rule of exclusion whenever and for whatever reason counsel was not provided. Rather, it held that waiver of counsel is “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.’ ” Edwards v. Arizona, 451 U.S. at 482, 101 S.Ct. at 1884, quoting with approval Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). Consequently, the fact that appellant did not initiate the interrogation with the JDST agents does not constrain me from determining whether he waived his right to counsel. My examination of the facts and circumstances of this case convinces me that Edwards does not require exclusion of the appellant’s confession.

Edwards was designed to prevent the police from supervening an accused’s assertion of the right to counsel through repeated confrontations. The decision recognizes that such confrontations emit a subtle pressure which, even with Miranda warnings, are likely to wear down the accused’s original resistance to proceeding without counsel. Conversely, it does not purport to keep out evidence given to the police by an acoused who has, by his own affirmative action, countermanded an earlier request for counsel. While Edwards holds that one of the ways an accused may accomplish this is by initiating the subsequent contact with the police, it does not hold that it is the only way. In my opinion, the situation evident in the instant case demonstrates another.

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Related

United States v. Grooters
35 M.J. 659 (U.S. Army Court of Military Review, 1992)
United States v. Reeves
20 M.J. 234 (United States Court of Military Appeals, 1985)
United States v. Harris
19 M.J. 331 (United States Court of Military Appeals, 1985)
United States v. Reeves
17 M.J. 832 (U.S. Army Court of Military Review, 1984)

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16 M.J. 562, 1983 CMR LEXIS 895, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-harris-cma-1983.