United States v. Hill

5 M.J. 114, 1978 CMA LEXIS 11576

• Court: United States Court of Military Appeals
• Decided: May 15, 1978
• Docket: No. 33980; CM 434629
• Status: Published

Opinions

Opinion of the Court

COOK, Judge:

Appellant was convicted, by a general court-martial military judge sitting alone, of robbery, in violation of Article 122, Uniform Code of Military Justice, 10 U.S.C. § 922. We granted review to determine whether the appellant’s pretrial statement was properly admitted into evidence.

The facts are not in dispute. Appellant was apprehended during the early morning hours of September 20, 1975. At approximately 6:00 a.m. on that day, he was interviewed by Special Agent Steven Volk, U. S. Army Criminal Investigation Detachment (CID), who advised him of his Article 31, UCMJ,¹ and Miranda/Tempia2 rights. Appellant told Agent Volk that he wanted counsel and indicated he did not wish to make a statement. At that point, the interview terminated and appellant was placed in a detention cell with three other individuals who allegedly were involved in the same incident.

Special Agent Volk left the area without making any effort to obtain counsel for appellant. He returned at approximately 3:00 p.m., September 20. His testimony as to what occurred upon his return is as follows:

A: I had occasion to come back. . I was tired and I was up until 10:00 or 11:00 in the morning and I went home, slept a couple of hours, and came back in the afternoon to prepare the report, and that’s when I was in the vicinity of the MP desk and the detention cell, and I was talking with them and asked them if they were getting food, if they were being treated okay, and also had told them that we had information — that I had information, which I did, in the form of a statement, that these four people had committed a robbery, admitted by Hunter. The conversation with the people — they wanted to talk to me individually.

Appellant was interviewed on an individual basis. Agent Yolk admitted he did not ascertain whether counsel had been provided for the appellant, but he readvised the appellant of his rights and received an acknowledgement from him that he understood those rights and no longer desired counsel. Agent Volk questioned appellant regarding his involvement in the incident. Appellant executed a statement in which he admitted his presence at the site of the robbery, but advanced an innocent explanation for being there. Over defense objection, his statement was admitted into evidence.

In United States v. Lowry, 2 M.J. 55 (C.M.A.1976), and United States v. McOmber, 1 M.J. 380 (C.M.A.1976), the Court held that when a law enforcement investigator is on notice that an accused is represented by counsel, Article 27, UCMJ,³ requires that such counsel be given the opportunity to be present during any interrogation of the accused. As there is no evidence on the matter, we assume, for the purpose of this appeal, that appellant was not represented by counsel. Thus, neither Lowry nor McOmber are controlling. However, while a request for counsel does not forever bar a subsequent interview, the fact that the request has been made makes it more difficult for the Government to satisfy its burden of establishing that an accused has voluntarily waived the right to counsel and the right to have counsel present at an interview. United States v. Heslet, 23 U.S. C.M.A. 88, 48 C.M.R. 596 (1974); accord, United States v. Solomon, 17 U.S.C.M.A. 262, 38 C.M.R. 60 (1967). As noted by the United States Supreme Court in Michigan v. Mosley, 423 U.S. 96,104,96 S.Ct. 321,326, 46 L.Ed.2d 313 (1975), regarding the right to remain silent:

[T]he admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his “right to cut off questioning” was “scrupulously honored.”

Thus, the Court held in Mosley that a pretrial statement was properly admitted into evidence although the accused had previously asserted his right to remain silent. The Court also implied in Mosley, supra, 423 U.S. at 104 n. 10, 96 S.Ct. at 326, that an assertion of the right to counsel may dictate a contrary result as Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), “distinguished between the procedural safeguards triggered by a request to remain silent and a request for an attorney and directed that ‘the interrogation must cease until an attorney is present’ only ‘[i]f the individual states that he wants an attorney.’ 384 U.S., at 474, 86 S.Ct. 1602.” However, a per se exclusionary rule appears to have been rejected in Brewer v. Williams, 430 U.S. 387, 405-06, 97 S.Ct. 1232, 1243, 51 L.Ed.2d 424 (1977), when the Court held:

The Court of Appeals did not hold, nor do we, that under the circumstances of this case Williams could not, without notice to counsel, have waived his rights under the Sixth and Fourteenth Amendments. It only held, as do we, that he did not. [Footnote omitted.]⁴

See United States v. Rodriquez-Gastelum, 569 F.2d 482 (9th Cir., 1978).

Looking at the evidence in the present case, we cannot conclude that it supports the trial judge’s determination that appellant had voluntarily waived his -rights to counsel and to remain silent. When appellant requested counsel and indicated he did not want to make a statement, he was returned to a detention cell. The agent conceded that he made no attempt to determine whether the appellant’s request for counsel had been honored, or if any effort had been made to obtain counsel for appellant. As appellant was incarcerated, he obviously could not consult with counsel without the cooperation of the enforcement authorities. Nevertheless, the agent confronted the appellant, approximately 9 hours later, with the assertion that a statement implicating him had been made by one of the participants in the robbery.⁵ Rather than demonstrating a voluntary relinquishment of his rights, such evidence reflects an erosion of such rights by the government official involved. See United States v. Collier, 1 M.J. 358 (C.M.A.1976); United States v. Borodzik, 21 U.S.C.M.A. 95, 44 C.M.R. 149 (1971). Under such circumstances, the appellant’s rights have not been “scrupulously honored.”

The decision of the United States Army Court of Military Review is reversed, and the findings of guilty and the sentence are set aside. The record of trial is returned to the Judge Advocate General of the Army and a rehearing may be ordered.

1 . Article 31, Uniform Code of Military Justice, 10 U.S.C. § 831.

2 . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); United States v. Tempia, 16 U.S.C.M.A. 629, 37 C.M.R. 249 (1967).

3 . Article 27, UCMJ, 10 U.S.C. § 827.

4 . As we observed in United States v. Lowry, 2 M.J. 55 (C.M.A.1976), and United States v. McOmber, 1 M.J. 380 (C.M.A.1976), Article 27 requires a contrary result where a police agent is aware of the attorney-client relationship.

5 . Contrary to the dissenting judge, I do not conclude from the evidence of record that appellant “initiated” the second conversation which resulted in his incriminating statement. The agent conceded in his own testimony that appellant and the other individuals involved in the incident were told that the agent possessed information which implicated them in a robbery. I can think of no better way to elicit a response from the individuals involved. Furthermore, the appellant’s confinement for nine hours without any effort being made to honor his request for counsel rendered the agent’s advice “the second time around” a meaningless and empty phrase to the appellant.