United States v. McLaren

38 M.J. 112, 1993 CMA LEXIS 124, 1993 WL 413840
CourtUnited States Court of Military Appeals
DecidedSeptember 28, 1993
DocketNo. 68,117; CMR No. 28996
StatusPublished
Cited by52 cases

This text of 38 M.J. 112 (United States v. McLaren) is published on Counsel Stack Legal Research, covering United States Court of Military Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. McLaren, 38 M.J. 112, 1993 CMA LEXIS 124, 1993 WL 413840 (cma 1993).

Opinions

Opinion of the Court

GIERKE, Judge.

Pursuant to his conditional pleas of guilty, appellant was convicted of attempted rape, rape, sodomy (2 specifications), and committing indecent acts with his stepdaughters (3 specifications), in violation of Articles 80, 120, 125, and 134, Uniform Code of Military Justice, 10 USC §§ 880, 920, 925, and 934, respectively. The general court-martial, composed of officer and enlisted members, sentenced appellant to a dishonorable discharge, 35 years’ confinement, forfeiture of $424.00 pay per month for 420 months and reduction to E-l. The convening authority reduced the confinement to 15 years pursuant to a pretrial agreement but otherwise approved the sentence. The Court of Military Review affirmed the findings and the approved sentence. 34 MJ 926 (1992)

This Court granted review of the following issues:

I
WHETHER APPELLANT’S FIFTH AMENDMENT RIGHTS WERE VIOLATED WHEN THE MILITARY JUDGE FAILED TO SUPPRESS APPELLANT’S STATEMENTS TO THE AFOSI [AIR FORCE OFFICE OF SPECIAL INVESTIGATIONS] AFTER HE STATED “I THINK I WANT A LAWYER” OR WORDS TO THIS EFFECT AND THE AFOSI FAILED TO CEASE THEIR QUESTIONING OR CLARIFY APPELLANT’S REQUEST FOR COUNSEL.
II
WHETHER THE MILITARY JUDGE ERRED, TO THE SUBSTANTIAL DETRIMENT OF APPELLANT, WHEN HE DENIED THE DEFENSE CHALLENGE TO A COURT MEMBER, CAPTAIN JAMES, WHO REFUSED TO CONSIDER THE PUNISHMENT OPTION OF “NO PUNISHMENT.”

I. Admissibility of Confession

A. Factual Background

On April 15, 1990, OSI Special Agent (SA) Sarantis received a complaint that appellant was sexually abusing the older of his two stepdaughters. On April 16, SA Sarantis interviewed both stepdaughters at the base clinic. On April 17, SA Sarantis went to appellant’s on-base quarters, intending to advise Mrs. McLaren of the allegations and ask her to accompany him to the base clinic. Both appellant and Mrs. McLaren answered the door. SA Sarantis told Mrs. McLaren that he “needed to speak with her in reference to her daughter [A] who was at the clinic. [He] explained that [A] was not hurt but that an incident had come up and [he] needed to speak to her and [A] at the clinic.” Mrs. McLaren accompanied SA Sarantis and SA Bianco to the clinic. Appellant followed in a separate car. In the parking lot of the base clinic, appellant “wanted to know what was going on.” SA Sarantis told him, “No, we’ll talk to you later.” Later that same day SA Sarantis and SA Bianco returned to appellant’s quarters and Sarantis said, “Okay, we can have that conversation now. Let’s go over to the clinic.”

Appellant accompanied SA Sarantis and SA Bianco to the clinic in an OSI vehicle, and they went to a conference room inside the clinic. SA Sarantis advised appellant of his rights, including his right to counsel, and informed him that he was suspected of rape, carnal knowledge, and assault with a deadly weapon. When SA Sarantis asked [114]*114appellant if he wanted a lawyer, appellant responded, “Not at this time.” When asked if he wanted to make a statement, appellant indicated that he wanted to talk.

After a few introductory questions, SA Sarantis steered the conversation toward the allegations of sexual abuse. SA Sarantis testified, “As I was coming right up to it, he began to well up inside. He came up and his eyes were filling full of water. He just kind of—from the outside it looked as if he was about to burst, just as we were there.” SA Sarantis asked appellant when he “first had sex with” his older stepdaughter. Appellant replied, “These things happen.” Agent Sarantis then repeated the question. Appellant then looked down and said something to the effect, “I think I want a lawyer,” or “I think I need to talk to a lawyer.” SA Sarantis responded, “Well, yes, these charges seem—are serious.” SA Bianco said, “Yes, this is a decision that you’ll have to make. We can’t force you to stay here. You need to decide what you want to do.”

SA Sarantis testified that after a brief pause, without further questions or comments from the two special agents, appellant “began talking again.” SA Bianco testified that, when appellant began talking again, he responded to SA Sarantis’ most recent question, saying, “It just happened” and shaking his head, “Yes.” The interview then resumed, and appellant orally confessed. His oral confession was then typed, signed, and sworn to.

Appellant testified on the motion to suppress as follows:

It was after he asked me—Mister Sarantis asked me about when was the first time I had sex with [A] and I replied, “Whoa, I want a lawyer,” and he asked me why and I told him because he was accusing me of having sex with [A], And then when he—he said that “We were not accusing you. We knew it was true. We have statements. We need the details.” I looked over at Mister Bianco and he was scribbling out.

Appellant testified further that he “sat there for a few minutes and Mister Sarantis asked me again about — ‘We need to know when was the first time you had sex with [A].’ ”

The military judge denied appellant’s motion to suppress his confession because “[a]fter a pause, and apparent reflective deliberation about his verbalized thoughts concerning his perceived need for a lawyer, [appellant] resumed the interrogation process by proceeding to answer the incriminatory question previously posed.” Additionally, he found that “[t]he agents reasonably construed this resumption by the accused as an election by him not to then act on his perceived need, if any, for a lawyer.”

The Court of Military Review found that appellant’s statement, “I think I want a lawyer,” or “I think I need to talk to a lawyer” was at most “an equivocal request for counsel.” 34 MJ 926, 929 (1992). That court further held that appellant re-initiated the interrogation following a period of silence after SA Bianco told him it was his decision as to how to proceed. The court below concluded its analysis and holding as follows:

In sum, after [appellant] uttered his equivocal reference to counsel, the investigators ceased their interrogation. Their subsequent comments were neutral and provided [appellant] the opportunity to clarify his vague statement. [Appellant] reinitiated the interrogation by resuming the conversation, even though he did not explicitly clarify his earlier reference to counsel. Focusing on this narrow factual scenario, we hold that where a suspect voluntarily reinitiates discussions related to the investigation, he effectively clarifies the earlier ambiguous request for counsel. At that point, investigators have no further obligation to pursue the suspect’s indecision and may resume the interview. [Appellant’s] confession was otherwise voluntary and properly admitted in evidence against him. His Fifth Amendment rights were not violated.

34 MJ 931-32.

B. Discussion

Appellant argues that: (1) his request for counsel (“I think I want a law[115]*115yer”) was not equivocal; (2) assuming arguendo that his request for counsel was equivocal, the investigators should have considered the right to counsel invoked and ended the interrogation rather than seek clarification of appellant’s equivocal request for counsel; and (3) assuming arguendo

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Bluebook (online)
38 M.J. 112, 1993 CMA LEXIS 124, 1993 WL 413840, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-mclaren-cma-1993.