United States v. Jordan

38 M.J. 346, 1993 CMA LEXIS 147, 1993 WL 503119

• Court: United States Court of Military Appeals
• Decided: September 30, 1993
• Docket: No. 58,976; CMR No. 86 1006R
• Status: Published

Opinions

Opinion of the Court

COX, Judge:

Appellant was convicted of murdering a shipmate, and of robbing and conspiring to rob him.¹ The murder and robbery occurred within the territorial limits of the City of Norfolk, Virginia; the body was dumped into a river within the territorial limits of the City of Chesapeake, Virginia. This case concerns admissibility of two statements made by appellant to law enforcement officials of those municipalities in conjunction with their investigations into appellant’s crimes.

When this case was initially before us, on September 28, 1989, we affirmed, resolving numerous evidentiary questions against appellant regarding the two statements. 29 MJ 177. On December 10,1990, the United States Supreme Court granted appellant’s petition for certiorari, vacated our judgment, and remanded the case to us for further consideration in light of its then-new decision in Minnick v. Mississippi, 498 U.S. 146, 111 S.Ct. 486, 112 L.Ed.2d 489 (December 3, 1990). Jordan v. United States, 498 U.S. 1009, 111 S.Ct. 575, 112 L.Ed.2d 580.

We, in turn, set aside the decision of the Court of Military Review and remanded the case to it, noting that

we have reexamined the decision of the United States Navy-Marine Corps Court of Military Review and our opinion in this case and consider it appropriate, in the first instance, that the Court of Military Review should have the initial opportunity to review this case in light of Minnick.

32 MJ 376 (1991).

On remand, the Court of Military Review again affirmed, holding that Minnick afforded appellant no relief. 35 MJ 856 (1992). We agree with the Court of Military Review, and we again affirm.

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Supreme Court ruled, inter alia, that the Fifth Amendment privilege against self-incrimination requires that a suspect in custody be clearly informed, prior to interrogation, that he has a right to remain silent and that anything he says may be used against him in court. In addition, the suspect must be clearly informed that he has a right to consult with counsel and to have counsel with him during the interrogation, and that, if he is indigent, an attorney will be appointed to represent him. 384 U.S. at 467-72, 86 S.Ct. at 1624-26.

Of particular significance to this appeal, the Court also stated:

Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.

384 U.S. at 473-74, 86 S.Ct. at 1627-28 (emphasis added).

Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), represented an extension of Miranda. In Edwards, the defendant was taken into custody and advised of his rights. At some point, Edwards indicated a willingness to “make a deal,” but he wanted an attorney first. 451 U.S. at 479, 101 S.Ct. at 1882. Questioning ceased at this point, and Edwards was taken to the county jail for the night. The next morning, two different detectives went to the jail and readvised Edwards of his rights; Edwards eventually confessed, having seen no lawyer.

The Supreme Court held that

when 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 conversation with the police.

451 U.S. at 484-85, 101 S.Ct. at 1884-85 (emphasis added; footnote omitted).

Minnick v. Mississippi, supra, represents a clarification of Edwards. Minnick was questioned by police in jail; he also invoked his right to counsel. Thereafter, appointed counsel actually met with Min-nick at the jail. Later, law enforcement officers returned, readvised Minnick of his rights, and Minnick confessed. 498 U.S. at 148-49, 111 S.Ct. at 488-89. The Supreme Court held that the officers could not, under the Fifth Amendment, “reinitiate interrogation” of Minnick unless Minnick’s attorney was present. Id. at 153, 111 S.Ct. at 491. The fact that the attorney had seen Minnick did not remove the protections of Miranda and Edwards.

The facts of the instant case, however, differ significantly from those of Minnick. Here, despite numerous rightsadvisements, appellant never invoked his right to counsel until after the statements in issue had been taken. See 29 MJ at 178-83. Notwithstanding this lack of invocation, Naval defense counsel was assigned to appellant while appellant was still under Naval control.² This appointment was apparently triggered by appellant’s brief detention in a Navy brig pending completion of the civilian investigation. Naval counsel duly met with appellant at the brig just prior to service of the civilian arrest warrant. After this meeting, the civilian warrant was served, and appellant was released to the custody of civilian officials for the purpose of prosecution.

Appellant was subsequently advised of his Fifth Amendment Miranda rights by civilian officials. It is undisputed that appellant waived his rights and agreed to talk with the civilian law enforcement officials. In the course of those interrogations, he made the admissions here in issue. At no time prior to or during the making of these statements did appellant ever invoke a right to counsel in any way to any official, Naval or civilian. See 29 MJ at 188 and 35 MJ at 862. Cf. Moran v. Burbine, 475 U.S. 412, 422-23, 106 S.Ct. 1135, 1141-42, 89 L.Ed.2d 410 (1986). Each and every time appellant was advised of his rights, he waived them and agreed to make a statement. Thus, notwithstanding the Naval attorney’s meeting with appellant at the brig, Miranda, Edwards, and Minnick were scrupulously honored. Under the circumstances, we agree with the Court of Military Review that Minnick v. Mississippi, supra, provides appellant no relief.

Regarding the other claims and theories raised by appellant in conjunction with this appeal, we are satisfied with our treatment of them in our first opinion and with their treatment by the Court of Military Review.

The decision of the United States Navy-Marine Corps Court of Military Review on further review is affirmed.

Judges CRAWFORD and GIERKE concur.

1 . Appellant was convicted of violations of Articles 118, 122, and 81, Uniform Code of Military Justice, 10 USC §§ 918, 922, and 881, respectively. His approved sentence includes a dishonorable discharge, confinement for life, total forfeitures, and reduction to E-l.

2 . Since the murder and robbery had been committed off-post, Naval jurisdiction over the offenses was not obvious at this critical juncture of the investigation, and military charges were not instituted at this point. See O’Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969); Retford v. Commandant, 401 U.S. 355, 91 S.Ct. 649, 28 L.Ed.2d 102 (1971). A few days later, after appellant had been released to the custody of civilian officials but not yet indicted, those officials obtained appellant’s admission that the plot to rob the deceased was hatched previously on board the Naval installation. This admission strengthened the argument for Naval jurisdiction, and the case was ultimately returned to the Navy for prosecution. Despite this additional evidence of "service connection," appellant’s first pretrial motion was to dismiss the charges due to an alleged lack of subject-matter jurisdiction. The subject-matter jurisdiction debate was ultimately resolved by the Supreme Court in Solorio v. United States, 483 U.S. 435, 107 S.Ct. 2924, 97 L.Ed.2d 364 (1987).