United States v. Sager

36 M.J. 137, 1992 CMA LEXIS 834, 1992 WL 333630
CourtUnited States Court of Military Appeals
DecidedSeptember 30, 1992
DocketNo. 64,701; CM 8801566
StatusPublished
Cited by15 cases

This text of 36 M.J. 137 (United States v. Sager) 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. Sager, 36 M.J. 137, 1992 CMA LEXIS 834, 1992 WL 333630 (cma 1992).

Opinions

Opinion of the Court

SULLIVAN, Chief Judge:

In May and July of 1988, appellant was tried by a general court-martial composed of officer and enlisted members at Fort Riley, Kansas. Contrary to his pleas, he was convicted of rape of a minor female, indecent exposure, and three specifications of committing indecent acts with several other young girls, in violation of Articles 120 and 134, Uniform Code of Military Justice, 10 USC §§ 920 and 934, respectively. He was sentenced to a dishonorable discharge, confinement for 25 years, total forfeitures, and reduction to Private El.1 The convening authority approved the findings [139]*139and sentence on November 30, 1988. On March 30, 1990, the Court of Military Review affirmed the findings and sentence. 30 MJ 777.

On December 26, 1990, this Court set aside the decision of the Court of Military Review and remanded this case for reconsideration in light of the decision of the Supreme Court in Minnick v. Mississippi, 498 U.S. 146, 111 S.Ct. 486,112 L.Ed.2d 489 (1990); United States v. Sager, 32 MJ 244. On May 24, 1991, the Court of Military Review again affirmed the findings of guilty and the sentence. 32 MJ 968.

On October 2, 1991, this Court granted appellant’s petition for further review. The issue before us now is as follows:

WHETHER THE MILITARY JUDGE ERRONEOUSLY DENIED APPELLANT’S MOTION TO SUPPRESS THE STATEMENTS OF 9, 10, AND 11 NOVEMBER 1987, TAKEN IN VIOLATION OF ARTICLE 31 AND THE CONSTITUTION.

We hold that the military judge did not err in denying appellant’s motion to suppress these pretrial statements. See generally McNeil v. Wisconsin, — U.S. -, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991); see United States v. Jones, 26 MJ 353 (CMA 1988); Delap v. Dugger, 890 F.2d 285 (11th Cir.1989), cert. denied, 496 U.S. 929, 110 S.Ct. 2628, 110 L.Ed.2d 648 (1990).

The facts giving rise to the granted issue are fully developed in the decisions of the Court of Military Review and need not be recounted here. We note, however, that the challenged pretrial statements directly pertained only to two of appellant’s alleged sexual offenses, i.e., the ones which occurred at Fort Riley, Kansas. Accordingly, some additional discussion of appellant’s offenses and the Government’s proof thereof is appropriate.

Appellant was found guilty, contrary to his pleas, of the following offenses: (1) committing indecent acts with Teresa (age 6) between on or about May 28, 1987, and July 31, 1987, at Manhattan, Kansas; (2) committing indecent acts with Amber (age 6) on or about August 1, 1987, at Manhattan, Kansas; (3) indecent exposure in the presence of Teresa, Sandy (age 7), and Sheila (age 5) between on or about May 28, 1987, and July 31, 1987, at the same place; and finally, (4) rape of Rebecca (age 7); and (5) committing indecent acts with Amanda (age 5) on November 7, 1987, at Fort Riley, Kansas.

At trial, all of the children, except Amber, testified against appellant, and some medical evidence was offered supporting their testimony. Additional evidence of appellant’s guilt of the Fort Riley offenses was introduced by the Government. First, there was evidence of appellant’s typewritten and signed statement to Special Agent (SA) Hayes on November 9, 1987, in which appellant stated that he mistakenly laid upon Rebecca at Fort Riley, Kansas, on the evening of November 6, 1987. In that statement, he also admitted that he was earlier investigated for having sexual relations with some other children, including a girl named Teresa, in Manhattan, Kansas. Second, there was evidence of appellant’s oral statement to another CID agent, SA Dutko, on November 10, 1987, in which appellant stated that he engaged in indecent sexual acts with Rebecca and Amanda on November 6 and 7,1987, at Fort Riley in an attempt to discover what their father purportedly did to them. Finally, there was evidence of appellant’s typewritten and signed statement to SA Hayes on November 11, 1987, recording the above-noted oral admissions.

In its remand decision, the Court of Military Review reiterated its purported 2 fac[140]*140tual decisions which it believed determinative of the Minnick question we had presented. It said:

In our original opinion, we made the following findings of fact:
a. The appellant was properly advised of his rights to remain silent and to have assistance of counsel on all occasions that he was questioned by Riley County authorities. Sager, 30 MJ at 782.
b. The appellant did not invoke his right to counsel during any of the Riley County interviews. Sager, 30 MJ at 784.
c. The appellant’s attorney-client relationship with Attorney Rapp began on 10 September 1987 after the appellant’s mother retained Attorney Rapp to represent the appellant on the Manhattan incidents. The attorney-client relationship did not evolve from any invocation of rights by the appellant to civil or military authorities. Sager, 30 MJ at 779, 784.
d. The appellant was fully advised of and waived his rights each time that he was questioned by the Criminal Investigation Command (CID) during the period 8-11 November 1987. The post-polygraph examination interview on 11 November was not unwarned as it was a continuation of the prior warned interview that evening and the appellant was asked and stated that he still understood his rights as read to him earlier in the evening. Sager, 30 MJ at 782.
e. During the period 8-11 November 1987, the CID did not question the appellant on the Manhattan incidents. The appellant mentioned them and was told that they were matters under civilian jurisdiction. The questioning of the appellant during this period dealt solely with the 8 November 1987 allegations against the appellant regarding alleged sexual assaults committed by the appellant at Fort Riley, Kansas. These assaults were committed upon different children than those involved in the Manhattan incidents. Sager, 30 MJ at 783.
f. The appellant never invoked his right to remain silent or to seek the assistance of counsel at any time between his first meeting with Riley County officials on 1 August 1987 and his rendering of the last statement at issue on 11 November 1987. Sager, 30 MJ at 783-784.
g. The military did not assume active jurisdiction over the Manhattan incidents until 16 November 1987. Sager, 30 MJ at 783.
h. The appellant first requested assistance of counsel to CID on 20 November 1987 at which time the interview terminated and military counsel was provided.2 Sager, 30 MJ at 781, 783.
Our further review of the record of trial confirms these findings of fact.

32 MJ at 970.

INTRODUCTION

As a starting point, we note that the granted issue as framed does not fully reflect the complexity of appellant’s suppression arguments on this appeal. In his final brief, he posits at least five separate grounds for asserting inadmissibility of one or all of his pretrial statements.

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Bluebook (online)
36 M.J. 137, 1992 CMA LEXIS 834, 1992 WL 333630, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-sager-cma-1992.