United States v. Lewis

33 M.J. 758, 1991 CMR LEXIS 1200, 1991 WL 185346
CourtU.S. Army Court of Military Review
DecidedSeptember 19, 1991
DocketACMR 8900478
StatusPublished
Cited by2 cases

This text of 33 M.J. 758 (United States v. Lewis) is published on Counsel Stack Legal Research, covering U.S. Army 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. Lewis, 33 M.J. 758, 1991 CMR LEXIS 1200, 1991 WL 185346 (usarmymilrev 1991).

Opinion

OPINION OF THE COURT

HAESSIG, Judge:

Contrary to his pleas, the appellant was convicted by a general court-martial com[760]*760posed of officer and enlisted members of attempted rape and breaking restriction in violation of Articles 80 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 880 and 934 (1982) [hereinafter UCMJ]. His approved sentence provides for a dishonorable discharge, confinement for eight years, total forfeitures, and reduction to Private E1.1

I

Facts

The appellant was apprehended the morning after an allegation of rape had been lodged against him, and was taken to the Fort Devens, Massachusetts, field office of the U.S. Army Criminal Investigation Command. There, Special Agent (SA) David A. Ross properly advised the appellant of his rights against self-incrimination and to counsel. UCMJ art. 31(b), 10 U.S.C. § 831(b), Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The appellant waived his rights and agreed to discuss the facts of the rape allegation. SA Ross knew at the time he started interrogating the appellant that the appellant was then undergoing nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, 10 U.S.C. § 815, and was pending involuntary administrative separation from the Army under the provisions of Army Regulation 635-200, Personnel Separations, Chapter 14 (20 July 1984) (Cll, 22 Feb. 1988) [hereinafter Chapter 14 proceedings]. He testified that it was his experience that a soldier facing such proceedings would normally be advised of his rights to counsel.

In existence at the time SA Ross began interrogating the appellant was message guidance to judge advocates and legal counsel in the field resulting from the United States Supreme Court holding in Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988). Message, HQ, Dep’t of Army, DAJA-CL, 251231Z Jul 88, Subject: Arizona v. Roberson [hereinafter message]. The message advised that suspects should be asked whether they have previously requested counsel after having been read their rights to counsel, and if the answer is affirmative, the interrogator should inquire as to when and where. The message also provided that if the answer was affirmative, and such a request for counsel was made within thirty days, the interrogation should cease and counsel should be notified. The record does not reflect whether SA Ross was aware of the message. In any event, he did not make such an inquiry of the appellant.

During SA Ross’ interrogation of the appellant, the appellant initially claimed that his involvement with the victim was consensual. SA Ross, unsatisfied with the appellant’s version of the facts, told the appellant:

[A]n investigation was nothing more than a puzzle, there was really no mystery behind it, that all the pieces more or less fit together, and what he was telling me wasn’t consistent with the facts that had been previously reported to me.

SA Ross then described the statements to the appellant, who again maintained that his sexual encounter with the victim was consensual. SA Ross said he then:

[I]nformed [the appellant] that I wanted to help him, and in order to help him I needed to obtain the truth from him, as ammunition, because I needed to brief his commander, and I related something to the effect that if he was a commander and he had two soldiers before him, both equally guilty of a crime, one of them making a confession and the other not, that when it comes time to dip into the leniency bucket I’m sure he’d agree that the individual who made the confession, the commander would be more lenient on him than the other individual ...

[761]*761SA Ross also told the appellant of a prior instance where he had testified in favor of a soldier, and in that case the soldier had been dealt with leniently. The appellant ultimately made a statement to SA Ross in which he admitted that he sexually forced himself on the victim. The statement later became Prosecution Exhibit 2 at trial.

II

The Pretrial Statement

Based on these facts, the appellant asserts that the military judge erred in failing to grant a defense motion to suppress the appellant's incriminating statement to SA Ross. First, he argues that SA Ross was required to notify the counsel he consulted regarding the nonjudicial punishment and Chapter 14 proceedings by either the Manual for Courts-Martial, United States, 1984, Military Rule of Evidence 305 [hereinafter Mil.R.Evid.], or by the holdings of the United States Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981); and, Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988). Second, he argues that the message from the Office of The Judge Advocate General created an independent right which required that the counsel he had consulted with respect to the other actions pending against him be notified. Third, he argues that the statement to SA Ross should have been suppressed because it was based on improper inducements in violation of Article 31, Uniform Code of Military Justice, and the fifth and sixth amendments to the Constitution. We disagree.

Military Rule of Evidence 305(e) provides that:

When a person subject to the code who is required to give warnings under [Mil. R.Evid. 305(c)] intends to question an accused or person suspected of an offense and knows or reasonably should know that counsel either has been appointed for or retained by the accused or suspect with respect to that offense, the counsel must be notified____ [emphasis added].

It is well settled that the “notice to counsel” rule, embodied in Military Rule of Evidence 305 and first enunciated in United States v. McOmber, 1 M.J. 380 (C.M.A.1976), does not apply to interrogations concerning unrelated offenses. This is true even if the interrogator knows that the accused is represented by counsel with respect to the other offense. See, e.g., United States v. Spencer, 19 M.J. 184 (C.M.A.1985); United States v. Sutherland, 16 M.J. 338 (C.M.A.1983); United States v. McDonald, 9 M.J. 81 (C.M.A.1980), and United States v. Lowry, 2 M.J. 55 (C.M.A.1976). Since there was no relationship between the offense for which the appellant was undergoing nonjudicial punishment and the offense about which SA Ross interrogated him, Military Rule of Evidence 305 imposed no obligation on SA Ross to notify the counsel the appellant had consulted with respect to either his Article 15 or Chapter 14 proceedings. Assuming, arguendo,

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Related

United States v. Lewis
36 M.J. 299 (United States Court of Military Appeals, 1993)
United States v. Felix
36 M.J. 903 (U S Air Force Court of Military Review, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
33 M.J. 758, 1991 CMR LEXIS 1200, 1991 WL 185346, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-lewis-usarmymilrev-1991.