United States v. Jordan

35 M.J. 856, 1992 WL 251479
CourtU.S. Navy-Marine Corps Court of Military Review
DecidedSeptember 8, 1992
DocketNMCM 86 1006R
StatusPublished
Cited by12 cases

This text of 35 M.J. 856 (United States v. Jordan) is published on Counsel Stack Legal Research, covering U.S. Navy-Marine Corps Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Jordan, 35 M.J. 856, 1992 WL 251479 (usnmcmilrev 1992).

Opinions

MOLLISON, Judge:

On 3 February 1985, Electrician’s Mate Second Class Gregory Y. Swafford, U.S. Navy disappeared from his duty station. His body was later discovered in a tidal creek in Chesapeake, Virginia. On 31 July and 3 August 1985, the appellant confessed to civilian police that Petty Officer Swafford had been strangled and robbed by the appellant and another servicemember. The appellant was tried by general court-martial in October of 1985. He was found guilty of conspiracy to commit robbery, robbery and murder while engaged in the perpetration of a robbery in violation of Articles 81, 122, and 118, Uniform Code of Military Justice [hereinafter UCMJ or “the Code”], 10 U.S.C. § 881, 922, 918, respectively, and was sentenced to confinement for life, a dishonorable discharge, total forfeitures, and reduction to pay grade E-l.

At trial and on appeal, the appellant asserted that his pretrial confessions to civilian police should be suppressed on grounds they had been taken contrary to the Constitution and Military Rule of Evidence (Mil-R.Evid.) 305(e).1 Initially the appellant was placed in pretrial confinement in a Navy brig to await trial for Swafford’s murder. Though military charges had not yet been preferred, a military lawyer was appointed to represent the appellant, and the appellant consulted with him on 31 July 1985. The same day, Navy officials delivered the appellant to the civilian authorities on a civilian arrest warrant for the same murder. The civilian police detective who executed the arrest warrant was aware of the appointment of military defense counsel. The same detective initiated the interrogation that resulted in a confession. The civilian police detective did not notify the appellant’s military defense counsel of his intent to interrogate the appellant. A second interrogation was initiated three days later by a police sergeant of a different civilian jurisdiction. He apparently had no knowledge of the appointment of military defense counsel. The appellant again confessed. In light of the matters revealed in the second confession, the appellant was returned to the Navy and the aforementioned court-martial ensued.2 The appellant claimed that the first confession was inadmissible because military defense counsel was not given notice of the interrogation and was not present for it. He also claimed the first confession tainted the second.

The Fifth Amendment to the Constitution provides that no person shall be compelled in any criminal case to be a witness against himself. In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the United States Supreme Court held that in order to ensure an accused’s Fifth Amendment right against compulsory self-incrimination is protected, an accused’s [859]*859pretrial statements made to police while in their custody would be inadmissible against the accused unless the statement was preceded by advice to the accused that he had the right to remain silent and the right to the presence of counsel, retained or appointed, and the accused voluntarily, knowingly and intelligently waived those rights. 384 U.S. at 444-45, 86 S.Ct. at 1612-13. In Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), the Supreme Court further held that when an accused has invoked his right to have counsel present during a custodial interrogation, the accused may not be subjected to further interrogation by the authorities until counsel is made available to him unless the accused himself initiates further communication, exchanges, or conversations with the police. It also held in Edwards that a waiver of the accused’s previously-invoked right to the presence of counsel cannot be shown only by the fact that the accused responded to further police-initiated custodial interrogation, even if he has been readvised of his rights. 451 U.S. at 484-85, 101 S.Ct. at 1884-85. These same constitutional limitations on the admissibility of pretrial statements have been applied to trials by court-martial. E.g., United States v. Goodson, 22 M.J. 22 (C.M.A.1986); United States v. Tempia, 16 C.M.A. 629, 37 C.M.R. 249 (1967); Mil.R.Evid. 304(a), (c). See also United States v. King, 30 M.J. 59 (C.M.A.1990).

The President has promulgated the Military Rules of Evidence for use in trials by court-martial. Article 36, UCMJ; 10 U.S.C. § 836. Mil.R.Evid. 304 provides that an accused’s involuntary statements are inadmissible. A statement is “involuntary” under the rule if it is obtained in violation of the self-incrimination privilege or due process clause of the Fifth Amendment, Article 31 of the Code, 10 U.S.C. § 831, or through the use of coercion, unlawful influence, or unlawful inducement. Mil.R.Evid. 304(c)(3). Mil.R.Evid. 305 also provides that an accused’s pretrial statement is involuntary, and hence inadmissible, if it is obtained without first observing certain procedures. Inter alia, a service-member accused or suspected of an offense must be warned of his right to consult with and have present counsel, retained or appointed, prior to interrogation: (1) if the servicemember is in custody or is deprived of his freedom of action in any significant way, or (2) if the interrogation is conducted subsequent to preferral of charges or the imposition of pretrial restraint and the interrogation concerns the offenses or matters that were the subject of the preferral of charges or the imposition of pretrial restraint. Mil.R.Evid. 305(d). Additionally, counsel must be given notice of an intended interrogation and a reasonable opportunity to attend. Mil.R.Evid. 305(e). The requirements of Mil.R.Evid. 305 apply to persons subject to the Code, including persons acting as knowing agents of a military unit or of a person subject to the Code. Mil.R.Evid. 305(b)(1).

These two grounds for suppression—one based on the Constitution, the other on regulation—differ. The Fifth Amendment Miranda/Edwards constitutional requirements apply to military and civilian law enforcement authorities conducting an interrogation of an accused in custody. If the accused invokes his right to counsel, the interrogation must cease and may not again be initiated by such authorities in the absence of counsel. However, this rule “applies only when the suspect ‘has expressed’ his wish for the particular sort of lawyerly assistance that is the subject of Miranda. It requires, at a minimum, some statement that can reasonably be construed to be expression of a desire for the assistance of an attorney in dealing with custodial interrogation by the police.” McNeil v. Wisconsin, — U.S. -, -, 111 S.Ct. 2204, 2208, 115 L.Ed.2d 158 (1991) (citation omitted). See also Moran v. Burbine, 475 U.S. 412, 423 n. 1, 106 S.Ct. 1135, 1141 n. 1, 89 L.Ed.2d 410 (1986). The assertion of counsel for these purposes must be within the context of custodial interrogation. McNeil, — U.S. at-n. 3, 111 S.Ct. at 2211 n. 3. On the other hand, Mil.R.Evid. 305 applies only to military personnel, persons acting as their agents, or persons acting as agents of a military unit. It applies to custodial in[860]

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Bluebook (online)
35 M.J. 856, 1992 WL 251479, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-jordan-usnmcmilrev-1992.