United States v. Quintana

5 M.J. 484, 1978 CMA LEXIS 9659
CourtUnited States Court of Military Appeals
DecidedOctober 23, 1978
DocketNo. 34,113; NCM 76 1617
StatusPublished
Cited by8 cases

This text of 5 M.J. 484 (United States v. Quintana) 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. Quintana, 5 M.J. 484, 1978 CMA LEXIS 9659 (cma 1978).

Opinions

Opinion of the Court

COOK, Judge:

A special court-martial consisting of military judge alone convicted the appellant of wrongfully appropriating ship’s store funds during the period from June to October 1975, and the larceny of ship’s store funds on December 15, 1975, in violation of Article 121, Uniform Code of Military Justice, 10 U.S.C. § 921. We granted review to determine whether appellant’s pretrial statement to a Naval Investigative Service (NIS) agent, in which he confessed to the offense of wrongful appropriation, was properly admitted into evidence. We conclude that it was.

Defense counsel objected to the introduction of the statement and appellant testified on the issue as follows:

Q. Seaman Quintana, directing your attention to 18 December 1975, did you have occasion to converse with any NIS agent that day?
A. Yes, I did.
Q. Who, if anyone did you converse with?
A. I can’t recall the name,____
Q. What, if any rights did this man read to you?
[485]*485A. That, I have the right to remain silent, I had a right to a lawyer, I had a right to terminate the questioning at any time.
Q. And, which if any of these rights did you elect to avail yourself of?
A. I told [him] that I wanted to see a lawyer, I wanted to terminate the questioning then. I had been advised by a shipmate that I should get a lawyer, and at that time he got mad, and he said, that if I got a lawyer, it would probably end up in a court-martial. That it would show that 1 had reason to fear something, they would have reason to think I was guilty. So, it kind of scared me. I was afraid to get a lawyer, because I did not want it to come to a court-martial.

Appellant further testified that his shipmate’s wife, who worked in the NIS building, made an appointment for him to see a lawyer, but he did not keep the appointment as a result of the interview with the NIS agent on December 18. He made no incriminating statements on that day. However, on January 14,1976, he was interviewed again by two agents, neither of whom was the agent he had seen on December 18. Neither agent referred to the December interview. They advised appellant that the purpose of the meeting was to conduct a polygraph examination of him which he had agreed to undergo; exactly when he had agreed to that examination was unstated and it might inferentially have been either during or after the December 18 interview. He was advised of his rights, but he did not assert them. Appellant admitted he was aware that the larceny from the ship’s store was under investigation, but he maintained he was told he must reveal every other theft of which he was aware or the polygraph examination would not accurately reflect appellant’s involvement in the theft under investigation.

Additionally, he testified he was advised that the answers he gave to questions about such thefts could not be used against him; accordingly, he admitted he had wrongfully taken money from the fund in an earlier period. This pretrial statement was admitted into evidence over defense objection.

Special Agent White interviewed appellant on January 14, 1976. His testimony indicates appellant was advised of his Article 31, UCMJ, 10 U.S.C. § 831,1 and Miranda/ Tempia 2 rights. Regarding the advice as to the nature of the offense under investigation, White stated:

Q. That is what I am asking you. What specifically did you advise him, sir.
A. I advised him that he was a suspect in a theft of U. S. government property, larceny of U. S. Government property, as I recall specifically, ship’s store funds from the USS HASSAYAMPA.

Agent White further noted that he had not conducted an investigation of the incident in question and he was not told the details of any other interview.

Contrary to appellant’s testimony, Agent White testified appellant was not advised that his answers to any question could not be used against him. He acknowledged that, when appellant admitted his wrongful appropriation of ship’s store funds, he did not readvise him of his rights or redefine the nature of the offense under investigation.

The defense challenge to the admissibility of the pretrial statement on appeal is twofold. The first is that the December 18 interview improperly restricted appellant’s right to counsel and the January admissions were the product of that restriction. Secondly, he submits White’s advice as to the nature of the offense was deficient because such advice did not include the acts of wrongful appropriation.3

[486]*486At trial, the judge rejected the first aspect on the ground that:

[E]ven, if, the interrogator on 18 December 1975, improperly advised the accused as to the effect of requesting counsel, such taint did not effect [sic] the accused^] statement to Special Agent White on 14 January.

The Court of Military Review accepted the appellant’s testimony that he was improperly advised of his right to counsel on December 18, but also found that the December interview did not taint the January statement. It further held appellant was adequately advised of the nature of the offense. This finding is reasonably supported by the evidence and we must, therefore, accept it. United States v. Lowry, 2 M.J. 55 (C.M.A.1976).

Relying on Lowry and United States v. McOmber, 1 M.J. 380 (C.M.A.1976), which require an agent, if he has notice that an accused is represented by counsel, to notify counsel of a proposed interview, appellant submits that rejection of his pretrial statement is required. He concedes that, unlike those cases, there was no attorney-client relationship established between him and a lawyer. Recently, in United States v. Hill, 5 M.J. 114 (C.M.A.1978), we noted that Lowry and McOmber do not apply when no attorney-client relationship has been established. We noted in Hill that assertion of the right to remain silent and the right to consult counsel do not forever bar a subsequent interview, although it “makes it more difficult for the Government to satisfy its burden of establishing that an accused has voluntarily waived” his rights. Id. at 115.4 Accord United States v. Heslet, 23 U.S.C.M.A. 88, 48 C.M.R. 596 (1974); United States v. Collier, 1 M.J. 358 (C.M.A.1976). See also Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975); and Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 423 (1977).

In Hill, the Court held that the Government had not met its burden of proof, but the facts of the present case support a contrary conclusion. The accused in Hill, after an initial interview at which he asserted his rights to counsel and to remain silent, was placed in pretrial confinement.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. SCOTTGEORGE
Navy-Marine Corps Court of Criminal Appeals, 2026
United States v. Simpson
54 M.J. 281 (Court of Appeals for the Armed Forces, 2000)
United States v. Lincoln
40 M.J. 679 (U.S. Navy-Marine Corps Court of Military Review, 1994)
United States v. Erie
29 M.J. 1008 (U.S. Army Court of Military Review, 1990)
United States v. Huelsman
27 M.J. 511 (U.S. Army Court of Military Review, 1988)
United States v. Leiffer
13 M.J. 337 (United States Court of Military Appeals, 1982)
United States v. Chambers
12 M.J. 443 (United States Court of Military Appeals, 1982)
United States v. Dillon
11 M.J. 922 (U S Air Force Court of Military Review, 1981)
United States v. Courney
11 M.J. 594 (U S Air Force Court of Military Review, 1981)

Cite This Page — Counsel Stack

Bluebook (online)
5 M.J. 484, 1978 CMA LEXIS 9659, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-quintana-cma-1978.