United States v. Roy

4 M.J. 840, 1978 CMR LEXIS 767

• Court: U.S. Army Court of Military Review
• Decided: February 13, 1978
• Docket: CM436152
• Status: Published

Opinions

OPINION OF THE COURT

Before JONES, MITCHELL and DeFORD, Appellate Military Judges.

JONES, Senior Judge:

The appellant was convicted of rape¹ and sentenced to reduction in grade and confinement at hard labor for two years.

The primary contention is the sufficiency of the evidence. The act of intercourse was not disputed; the issue is one of consent. Weighing all of the evidence and giving special consideration to the findings of the members who saw and heard the witnesses, we conclude that the evidence establishes appellant’s guilt beyond a reasonable doubt. Although the victim initially gave appellant reason to believe his advances would be successful, she eventually refused to give her consent and the act was accomplished through force.

One other assigned error merits consideration and that concerns the admissibility of the second pretrial statement made by appellant. Appellant asserts the statement was taken by the criminal investigator without affording his assigned counsel an opportunity to be present. The investigator, who also took the first statement from appellant nine days earlier, advised appellant fully of his rights. He did not, however, ask appellant if he in fact had counsel and appellant did not volunteer that he had been assigned and consulted with counsel two days previously. Appellant waived his rights and made a statement.

At the time the investigator questioned appellant the second time, the investigator did not know appellant had counsel but he knew that an Article 32 investigation was scheduled for the next day. He also knew that an accused usually had counsel at that investigation.

The United States Court of Military Appeals in United States v. McOmber, 24 U.S.C.M.A. 207, 51 C.M.R. 452, 1 M.J. 380 (1976), and United States v. Lowry, 25 U.S.C.M.A. 85, 54 C.M.R. 51, 1 M.J. 1165 (1976), held that:

“once an investigator is on notice that an attorney has undertaken to represent an individual in a military criminal investigation, further questioning of the accused without affording counsel reasonable opportunity to be present renders any statement obtained involuntary under Article 31(d) of the Uniform Code. . . .” United States v. McOmber, 24 U.S.C.M.A. at 209, 51 C.M.R. at 454, 1 M.J. at 383.

In both McOmber and Lowry, the investigator had actual knowledge of the accused’s representation by counsel. Here the investigator had no such information. Absent a showing of bad faith or an attempt to circumvent the holding of McOmber and Lowry, we decline to extend those cases to an investigator who probably should but does not in fact know that an accused has counsel.²

We have considered the other errors but they do not require discussion or corrective action.

The findings of guilty and the sentence are affirmed.

Judge DeFORD concurs.

1 . A violation of Article 120, Uniform Code of Military Justice, 10 U.S.C. § 920.

2 . In conjunction with this error, the appellant also asserts that the government agents did not follow their own regulation, AR 195-2, in questioning appellant without coordinating with the staff judge advocate and making arrangements through counsel. We find no substance to that assertion.