United States v. Loukas

29 M.J. 385, 1990 CMA LEXIS 8, 1990 WL 5600

• Court: United States Court of Military Appeals
• Decided: February 13, 1990
• Docket: No. 62334; ACM 26543
• Status: Published

Opinions

Opinion of the Court

SULLIVAN, Judge:

During August 1987, the accused was tried by a general court-martial composed of a military judge sitting alone at Pope Air Force Base, North Carolina. Contrary to his pleas, he was found guilty of wrongfully using cocaine and being incapacitated for duty, in violation of Articles 112a and 134, Uniform Code of Military Justice, 10 USC §§ 912a and 934, respectively. He was sentenced to a dishonorable discharge, confinement for 8 months, total forfeitures, and reduction to the lowest enlisted grade. On December 7, 1987, the convening authority approved the findings and sentence as adjudged.

On December 16, 1988, a panel of the Court of Military Review set aside the findings of guilty and the sentence because evidence was admitted in violation of Article 31(d), UCMJ, 10 USC § 831(d). 27 MJ 788. On January 5, 1989, the Government moved for en banc reconsideration of part of that decision. This motion was granted but the en banc court affirmed the previous action of its panel on March 16, 1989. 28 MJ 620.

The Judge Advocate General of the Air Force, pursuant to Article 67(b)(2), UCMJ, 10 USC § 867(b)(2), certified the following question to this Court on April 12, 1989:

WHETHER THE AIR FORCE COURT OF MILITARY REVIEW ERRED AS A MATTER OF LAW IN HOLDING THAT THE NEW YORK V. QUARLES, 467 U.S. 649, 104 S.CT. 2626, 81 L.ED.2D 550 (1984), “PUBLIC SAFETY EXCEPTION” DID NOT APPLY TO THE FACTS OF THIS CASE.

We hold that the Court of Military Review need not have made such a legal holding because admission of the challenged testimony was not barred in the first instance by the Fifth Amendment or by Article 31.

In its initial decision, the Court of Military Review panel stated the facts pertinent to admission of Sergeant Dryer’s testimony concerning the accused’s first pretrial admission of cocaine use, as follows:

[Loukas’] admissions were made during the course of a C-130 aircraft mission in support of drug suppression efforts in South America.

The evidence developed during the suppression hearing was that [Loukas] was on temporary duty from Pope Air Force Base, North Carolina, along with other crew members. [Loukas] was the load-master. Following an overnight stay at Panama City, Panama, [Loukas’] crew was scheduled to depart Howard Air Force Base for an early morning flight to Trinidad, Bolivia, where they were to receive a load of. unspecified cargo. [Loukas] was not present at the scheduled crew show time. When he finally arrived at the aircraft he was two hours late. The record, surprisingly, does not reflect that he received a particularly unfriendly or otherwise negative greeting from his fellow crew members, all of whom were senior in grade to him. The co-pilot kidded him about the number of ladies he had been with the evening before. SSgt Dryer recalled in his testimony that he teased [Loukas] about his lateness. Apparently none of the crew members, at that point, noted anything in [Loukas’] appearance or demeanor that was alarming.

After the aircraft had been in flight for four or more hours the assistant crew chief, an Airman First Class Taranto, stepped into the cargo section. [Loukas] was the only other person present in that portion of the plane. There was no cargo or equipment on board at that time. Airman Taranto testified that he observed that [Loukas] was acting in an irrational manner. He pointed in the direction of the flight deck and inquired of Airman Taranto, “Do you see them?” and, “Do you see her?” Airman Taranto did not see anyone. It was apparent to him that [Loukas] was experiencing a hallucination. [Loukas] handed Airman Taranto his survival vest and .38 calibre pistol and told him to take it (apparently referring to the firearm) and that he didn’t want it. The witness reported the incident to his immediate superior, SSgt Dryer, the crew chief.

SSgt Dryer went to the back of the aircraft and confronted [Loukas]. He testified during the hearing on the motion to suppress that he noted he [Loukas] appeared to be nervous and that he was perspiring profusely even though it was cool in that portion of the plane. [Loukas] continued to hallucinate. Gesturing in the direction of the flight deck, he inquired why “those people” were there and wondered why “they” didn’t just come down and get him. The witness stated that he asked [Loukas] if he had taken any drugs. [Loukas] responded that he had not. SSgt Dryer leaned over close to where [Loukas] was sitting so that he could observe his eyes and asked in a more insistent manner, “Come on, what have you taken?” or, “What are you on?” or words to that effect. [Loukas] replied that he had taken some cocaine the night before. SSgt Dryer asked, “Is that all?” He received an affirmative answer. SSgt Dryer advised [Loukas] to secure his seatbelt and relax. According to his testimony he was somewhat concerned for the safety of the aircraft and its flight crew, particularly if [Loukas] started “freaking out.”

SSgt Dryer reported his observations of [Loukas] to the flight engineer, a Technical Sergeant Drummond. The latter went to the back of the aircraft and observed [Loukas]. He retrieved bullets that [Loukas] had on his person. He returned to the flight deck area and consulted with SSgt Dryer. They concluded that the situation was under control and that it would not be necessary to alert the aircraft commander, Captain Cottam. It was agreed that someone would maintain direct observation of [Loukas] during the remainder of the flight.

27 MJ at 790-91 (emphasis added).

The stated premise of the Court of Military Review majority opinions, both panel and en banc, (6-3), was that Sergeant Dryer was obligated by Article 31(b) to warn the accused of his rights before questioning him about possible drug use. This legal conclusion was drawn on the basis of the decision of this Court in United States v. Duga, 10 MJ 206 (CMA 1981), and a finding of fact that Sergeant Dryer was acting officially and not simply out of “idle curiosity.” 27 MJ at 792. We disagree as a matter of law because the crew chiefs inquiry was not a law-enforcement or disciplinary investigation which is also required before Article 31(b) becomes applicable. United States v. Gibson, 3 USCMA 746, 752, 14 CMR 164, 170 (1954); see United States v. Duga, supra at 211.

In reaching this conclusion we first note the statutory language of Article 31, which states:

(a) No person subject to this chapter may compel any person to incriminate himself or to answer any question the answer to which may tend to incriminate him.

(b) No person subject to this chapter may interrogate, or request any statement from an accused or a person suspected of an offense without first informing him of the nature of the accusation and advising him that he does not have to make any statement regarding the offense of which he is accused or suspected and that any statement made by him may be used as evidence against him in a trial by court-martial.

(c) No person subject to this chapter may compel any person to make a statement or produce evidence before any military tribunal if the statement or evidence is not material to the issue and may tend to degrade him.

(d) No statement obtained from any person in violation of this article, or through the use of coercion, unlawful influence, or unlawful inducement may be received in evidence against him in a trial by court-martial.

(Emphasis added.)

This Court has long intimated that this statute requires warnings only when questioning is done during an official law-enforcement investigation or disciplinary inquiry. See generally Article 31(b): Who Should Be Required To Give Warnings?, 123 Mil. L. Rev. 151, 199 n.181 (1989); J. Munster and M. Larkin, Military Evidence § 7.26 at 153 n.86 (2d ed.1978). Chief Judge Quinn has articulated the following rationale for our construction of this important codal provision:

Article 31(b), supra, extends the provisions of its predecessor, Article of War 24, ... to persons “suspected” as well as “accused,” but no intention to extend the requirement to other than “official investigation” is found in the legislative history of the Uniform Code.

Taken literally, this Article is applicable to interrogation by all persons included within the term “persons subject to the code” as defined by Article 2 of the Code, supra, 50 USC § 552, or any other who is suspected or accused of an offense. However, this phrase was used in a limited sense. In our opinion, in addition to the limitation referred to in the legislative history of the requirement, there is a definitely restrictive element of officiality in the choice of the language “interrogate or request any statement, ” wholly absent from the relatively loose phrase “person subject to this code,” for military persons not assigned to investigate offenses, do not ordinarily interrogate nor do they request statements from others accused or suspected of crime. See United States v. Wilson and Harvey, 2 USCMA 248, 8 CMR 48. This is not the sole limitation upon the Article’s applicability, however. Judicial discretion indicates a necessity for denying its application to a situation not considered by its framers, and wholly unrelated to the reasons for its creation.

United States v. Gibson, supra at 752, 14 CMR at 170 (emphasis added).

Judge Latimer opined similarly in his opinion concurring in the result in the same case:

I would affirm the conviction on the basis of the test laid down by me in my dissent in United States v. Wilson and Harvey, supra. In that case I stated:

“... Accordingly, I believe before the advice required by the Article need be given, three conditions should be fulfilled: first, the party asking the question should occupy some official position in connection with law enforcement or crime detection; second, that the inquiry be in furtherance of some official investigation; and third, the facts be developed far enough that the party conducting the investigation has reasonable grounds to suspect the person interrogated has committed an offense.”

Collectively, all three conditions suggest that the interrogation be surrounded with an air of some officiality and I believe the Manual for Courts-Martial, United States, 1951, ..., and the hearings before the Committees of Congress support that proposition (see Comments, pages 990-991, Hearings Before the House Committee on Armed Services, 81st Congress, 1st Session, on H.R. 2498, Uniform Code of Military Justice). Moreover, a reading of the Article is convincing that Congress could not have intended Article 31(b) to cover casual conversations, because the language used compels the conclusion that the interrogator is pursuing some official inquiry as he must know that the person to whom he is talking is suspected of a crime; he must inform him of the nature of the accusation; and he must explain to him that what he says may be used against him in a court-martial.

3 USCMA at 763, 14 CMR at 181 (emphasis added).

Finally, Chief Judge Everett, speaking for the Court in United States v. Duga, 10 MJ at 211, more recently suggested the same criteria when he stated:

In the case at hand, the evidence only permits the conclusion reached by the Air Force Court of Military Review that the questioning of appellant by Byers did not fall within the purview of Article 31(b). The two prerequisites which determine whether Article 31(b) warnings were required are not met in this case. As found by the Court of Military Review, the record reveals that the questioning was not done in an official capacity — that is, Byers was not acting on behalf of the Air Force — either as a security policeman or as an agent of the OSI. Since the appellant declined to present any evidence on the issue, cf. United States v. Beck, [15 USCMA 333,] at 339, 35 CMR at [305,] 311, Byers’ testimony is completely uncontroverted as to their camaraderie and affiliation in the same security police squadron, and his statement that when the appellant rode up to the gate on his bike, he was only “speaking [to him] more or less like a friend to a friend,” or, as elsewhere described by him — it was “more or less like-buddy-to-buddy talk you might say.” No evidence contradicts the inference that the questioning by Byers was solely motivated by his own personal curiosity and was entirely unconnected with his previous contact with the OSI. In any case, in what the OSI told Byers, it neither directed nor advised him to question the appellant. In view of the uncontradicted nature of the testimony, we have no choice but to uphold the lower court’s finding of a lack of the officiality which is essential to requiring the Article 31(b) warning.

(Emphasis added.) Accordingly, we conclude that the Court of Military Review in both its panel and its en banc decisions too broadly construed and applied this codal provision. 10 MJ at 210 n.6, citing United States v. Dohle, 1 MJ 223 (CMA 1975).

An example of official, but not law-enforcement or disciplinary, questioning which is permitted without warnings under Article 31 is found in United States v. Fisher, 21 USCMA 223, 44 CMR 277 (1972). This decision was cited by Chief Judge Hodgson and Judge Holte, as well as Judge Murdock, in their dissenting opinions in the court below. 28 MJ at 623, 625. In that case, we held that a military doctor, not performing an investigative or disciplinary function or engaged in perfecting a criminal case, was not required to preface his medical diagnostic questions to a military subordinate with Article 31 warnings. See United States v. Malumphy, 13 USC-MA 60, 61-62, 32 CMR 60, 61-62 (1962); United States v. Malumphy, 12 USCMA 639, 640, 31 CMR 225, 226 (1962); United States v. Baker, 11 USCMA 313, 29 CMR 129 (1960).

In the case before us, Sergeant Dryer was the crew chief of an operational military aircraft who was similarly responsible for the plane’s safety and that of its crew, including the accused, his military subordinate. In addition, his questioning of the accused was limited to that required to fulfill his operational responsibilities, and there was no evidence suggesting his inquiries were designed to evade constitutional or codal rights. United States v. Cross, 14 USCMA 660, 662-63, 34 CMR 440, 442-43 (1964). See United States v. Malumphy, 13 USCMA at 62, 32 CMR at 62. Cf. United States v. Lee, 25 MJ 457 (CMA 1988). Finally, the unquestionable urgency of the threat and the immediacy of the crew chief’s response underscore the legitimate operational nature of his queries.

* See United States v. Hessler, 7 MJ 9 (CMA 1979). See also United States v. Henry, 21 USCMA 98, 44 CMR 152 (1971). Under our precedents, the prosecution satisfactorily showed that Article 31 warnings were not required in this operational context. United States v. Beck, 15 USCMA 333, 35 CMR 305 (1965); see Mil. R. Evid. 304(e), Manual for Courts-Martial, United States, 1984. See generally United States v. Battles, 25 MJ 58, 60 (CMA 1987).

As far as the so-called “public safety exception” referenced in the certified issue is concerned, we note that, strictly speaking, this is an exception to the Miranda warning requirements established by the Supreme Court to preserve Fifth-Amendment rights. New York v. Quarles, 467 U.S. 649, 655-56, 104 S.Ct. 2626, 2631-32, 81 L.Ed.2d 550 (1984). These warnings apply to a suspect in custody and his interrogation by law-enforcement officials. There is no contention in this case that the accused was a suspect in custody or that Sergeant Dryer was a law-enforcement official, so New York v. Quarles, supra, is not readily applicable. Cf. United States v. Morris, 28 MJ 8, 13 (CMA 1989); United States v. Jones, 26 MJ 353, 355 (CMA 1988). Whether a similar exception to Article 31 exists for military superiors acting in a command disciplinary function when questioning a suspect who is not in custody is an issue beyond the facts of this case. See generally United States v. Beck, supra at 339, 35 CMR at 311; see United States v. Ricks, 2 MJ 99, 101 (CMA 1977); United States v. Vail, 11 USCMA 134, 28 CMR 358 (1960).

Finally, we agree with the court below that Captain Cottam’s subsequent questioning of the accused without warnings violated Article 31(b) of the Code. See United States v. Loukas, 27 MJ at 791-92. However, his testimony was cumulative of Sergeant Dryer’s testimony and, accordingly, we hold that its admission under the circumstances of this case was harmless error. Art. 59(a), UCMJ, 10 USC § 859(a). To the extent that United States v. Reynolds, 16 USCMA 403, 406, 37 CMR 23, 26 (1966), might be cited as precluding such an examination for prejudice, we hold that its authority has by now dissipated. See generally Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972). See United States v. Quillen, 27 MJ 312, 315 (CMA 1988); United States v. Hallock, 27 MJ 146, 148-49 (CMA 1988); United States v. Applewhite, 23 MJ 196, 199-200 (CMA 1987); United States v. Remai, 19 MJ 229, 233 (CMA 1985).

The decision of the United States Air Force Court of Military Review setting aside the findings of guilty and the sentence is reversed. The record of trial is returned to the Judge Advocate General of the Air Force for resubmission to that court for further review under Article 66, UCMJ, 10 USC § 866.

This Court has implicitly held that a superior in the immediate chain of command of the suspect subordinate will normally be presumed to be acting in a command disciplinary function. United States v. Seay, 1 MJ 201 (CMA 1975). See United States v. Doyle, 9 USCMA 302, 310, 26 CMR 82, 90 (1958); cf. United States v. Hopkins, 7 USCMA 519, 521-22, 22 CMR 309, 311-12 (1957). However, this presumption is not so broad or inflexible as to preclude a limited exception where clearly justified. See United States v. Beck, 15 USCMA 333, 338-39, 35 CMR 305, 310-11 (1965).