United States v. Mitchell

51 M.J. 234, 1999 CAAF LEXIS 1231
Court of Appeals for the Armed Forces·Decided August 12, 1999·No. 98-0248/NA·Published·Cited by 12 cases

Opinions

Judge SULLIVAN

delivered the opinion of the Court.

In January of 1995, appellant was tried by a general court-martial consisting of officer members at Naval Air Station, Jacksonville, Florida. Contrary to his pleas, he was found guilty of attempted premeditated murder; willful damage to military property; larceny; assault intentionally inflicting grievous bodily [235]*235injury;1 and simple assault, in violation of Articles 80, 108, 121, and 128, Uniform Code of Military Justice, 10 USC §§ 880, 908, 921, and 928, respectively. On January 7, 1995, he was sentenced to a dishonorable discharge, 29 years’ confinement, total forfeitures, and reduction to E-l. On February 20, 1996, the convening authority approved the adjudged sentence, but suspended confinement in excess of 20 years for a period of 20 years from the date sentence was adjudged. The Court of Criminal Appeals affirmed the approved findings and sentence in an unpublished opinion dated April 30, 1997.

This Court granted review in this case on July 30,1998, on the following issue:

I
WHETHER THE MILITARY JUDGE ERRED BECAUSE HE DENIED APPELLANT’S MOTION TO SUPPRESS THE STATEMENT TO CHIEF GRABIEL IN VIOLATION OF APPELLANT’S CONSTITUTIONAL RIGHT TO COUNSEL.

We hold that the military judge prejudicially erred when he denied the defense motion to suppress appellant’s pretrial statements to Aviation Ordnanceman Chief Grabiel and admitted them at this court-martial. United States v. Brabant, 29 MJ 259 (CMA 1989); United States v. Reeves, 20 MJ 234 (CMA 1985); see generally Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).

Appellant was arrested on June 4, 1994, after he allegedly shot his shipmate, Aviation Structural Mechanic (Hydraulics) First Class Darnell Johnson, USN. The parties to this trial stipulated to certain facts pertinent to a defense motion to suppress some incriminating statements made by appellant to Chief Grabiel, his leading petty officer and work supervisor, the next day during a command visit to appellant in the brig. The record of trial states:

TC: [Reading] Both counsel have agreed that at approximately 0507, 4 June 1994, Security Department, Naval Air Station, Key West, Florida, received a call reporting shots fired at Barracks Enlisted Quarters 648. That QM2 Robert Bruehsaler, USN, attached to Security Department received a dispatcher call to proceed to BEQ 648. After securing the crime scene QM2 Bruehsaler was directed to advise the accused, who was sitting in the rear seat of a patrol car, his Article 31(b) and counsel rights.
That QM2 Bruehsaler sat in the front seat of the pa-patrol car with the accused in the rear seat and established that the accused was coherent and proceeded to read the accused his Article 31(b) UCMJ and counsel rights from a rights warning card.
QM2 Bruehsaler stated that the accused understood his rights and requested counsel. That prior to their meeting with the accused on 5 June 1994, Commander Malinak, Lieutenant Gage, and AOC Grabiel were aware of the fact that the accused was advised on 4 June of his Article 31(b) and counsel rights by Petty Officer Bruehsaler and that he had declined to make a statement and requested counsel.
That all questioning by any security personnel ceased after the accused declined to make a statement and requested a lawyer. The Security Department, NAS, Key West, turned the case over to the Naval Criminal Investigative Service, Key West, the same day relaying that the accused request for — relaying the accused request for a lawyer and desire not to make a statement. NCIS did not reread the accused rights nor ask any questions of the accused.
TC: The following day, 5 June 1994, QM2 Bruehsaler was assigned to guard the accused while the accused command made preparations for the accused return to the Waterfront Brig, Naval Air Station, Jacksonville, Florida. On 5 June 1994, around 1400, Lieutenant Jeff Gage, United States Navy, Legal Officer of VFA-87; Commander Gregory E. Malinak, spelled M-A-L-I-N-A-K, United States Navy, Executive Officer of VFA-87; and AOC Lawrence Grabiel, United States Navy, [236]*236Leading Chief Petty Officer of VFA-87, made contact with the accused for the purpose of providing a command health and welfare visit.
That Commander Malinak had been informed that Petty Officer Mitchell was refusing to eat even though base security had been offering food. For the purpose of ensuring that the air transportation of the accused from Key West to the Waterfront Brig, NAS, Jacksonville, was successfully completed and for Lieutenant Gage to provide the accused notification of pretrial confinement rights and review process. That the — which is agreed by both parties to admit the actual notification as a stipulation of fact.
MJ: I’ll make it a part of the stipulation. Has this stipulation of fact been marked as Appellate Exhibit III?
TC: Yes, sir.
MJ: Thank you.
TC: That the executive officer of the accused command requested AOC Grabiel to be present as the accused’s leading chief petty officer and to provide support and a command visit.
Lieutenant Gage read verbatim from the notification of pretrial confinement review process work sheet to the accused in the presence of Commander Malinak and AOC Grabiel. The accused acknowledged his rights in writing by requesting a military lawyer for his magistrate hearing and to personally appear before the magistrate. That neither the executive officer or Lieutenant Gage inquired into any facts surrounding the alleged shooting incident nor had they explicitly directed or even talked about that to AOC Grabiel for him to make any such inquiry. After Lieutenant Gage informed the accused of his pretrial confinement rights, he and Commander Malinak left the room. AOC Grabiel talked with the accused inquiring whether he needed anything like cigarettes or anything to eat.
TC: After returning unth cigarettes and a milk shake, AOC Grabiel asked the accused without informing the accused of Article 81(b) or counsel rights, ,cWas it worth it?” That the accused did not initiate any questions regarding the shooting incident. In response to this question the accused responded, “The way I was raised, it was an eye for an eye. He left me in the alley, ” or words to that effect.
Chief Grabiel was not acting on behalf of the Security Department, NAS, Key West—
* H* ❖
TC: The next one [sentence] is that the accused when with Chief Grabiel did not initiate any questions regarding the shooting incident.
sH H* H*
TC: The last stipulation is that the accused was flown from Naval Air Station, Key West, to the Waterfront Brig, NAS, JAX, and that they departed at 2200 that Sunday, 5 June.

No evidence was presented at trial to suggest that appellant and Chief Grabiel had any personal contact or friendship outside of military duties.

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United States v. Mitchell, 51 M.J. 234, 1999 CAAF LEXIS 1231 (Ark. 1999).

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