United States v. Seay

1 M.J. 201, 1975 CMA LEXIS 602

Opinions

OPINION

FLETCHER, Chief Judge:

After receiving several inquiries from the local post exchange concerning checks of Specialist Seay which had been returned for insufficient funds, Captain Knauer in his capacity as troop commander “informally” counseled the accused with regard to his “moral and legal [obligation] to take care of his bad checks.” Only after the third such session did Captain Knauer finally advise the accused of his rights under Article 31(b), Uniform Code of Military Justice, 10 U.S.C. § 831(b).

Although he admitted suspecting the accused of a criminal offense and acknowledged questioning Specialist Seay in his official capacity during the “informal” sessions, Captain Knauer maintained that he did not ask incriminating questions, nor did the accused provide incriminating responses.

When cross-examined further as to the specifics of his unwarned inquiries, Captain Knauer admitted telling the accused “that he had some bad checks over at the PX and that he should go over and take care of the matter.” Captain Knauer also acknowledged that Specialist Seay agreed to “take care of” the checks, a statement which the captain interpreted as implying that the accused had' written the cheeks.

As the number of bogus checks written by Specialist Seay continued to escalate, Captain Knauer again counseled the accused, but on this occasion he “formally” warned him of his rights. Specialist Seay’s subsequent admission that the checks “were written by him, and it was his signature” provided the Government with its primary evidence of authorship in subsequently prosecuting the accused for uttering 18 worthless checks with intent to defraud.¹

In receiving the accused’s admission into evidence over defense objection, the trial judge ruled that, even though Captain Knauer violated Article 31 by “informally” questioning Specialist Seay without first warning him, the accused’s subsequent admission “was made voluntarily and [was] not tainted by any prior admissible [sic] statements.”

I

Government counsel urge affirmance of the trial judge’s ruling on either of two theories. Pointing to paragraph 3-lc, Army Regulation 600-15 (Feb. 11, 1970), the Government first asserts that we need not address the taint question since the trial judge erroneously ruled that the “informal” questioning of Specialist Seay was barred by Article 31, Uniform Code of Military Justice, 10 U.S.C. § 831.² In pertinent part, that regulation requires a commanding officer to interview any member of his command after notification of an outstanding debt to inform the individual of the complaint as well as to instruct him as to his rights and responsibilities. Urging that the troop commander acted properly in counseling the accused as he did, government counsel suggest that an Article 31 warning preceding such an interview “would both unnecessarily alarm the soldier and obfuscate the real purpose of the interview.”

The position advanced by government counsel on both the effect and appropriate interpretation of the regulation contains a fallacious premise in assuming that the regulation should be accorded precedence over the statute if in conflict with Article 31 of the Code. As is true with conflicting Manual provisions, a regulation which flies in the face of a statutory pronouncement must be overturned. United States v. Greer, 3 U.S.C.M.A. 576, 13 C.M.R. 132 (1953). Wherever possible, however, a regulation should be interpreted in a manner which accords with existing statutory law. United States v. Jacoby, 11 U.S.C.M.A. 428, 29 C.M.R. 244 (1960).

The regulation in question is not controlling in disposing of the question before us for it merely directs commanders to advise soldiers of their rights and obligations rather than requiring commanders to question those concerned. To the extent that the regulation’s use of the term “review” implies a questioning of an individual, the regulation must be read in conjunction with Article 31, UCMJ, 10 U.S.C. § 831. Irrespective of whether an Article 31 warning may have alarmed the appellant or obfuscated the purpose of the interview, a warning was still required since the commander acting in his official capacity³ sought to question the appellant whom he suspected of a criminal offense. United States v. Woods, 22 U.S.C.M.A. 369, 47 C.M.R. 124 (1973); United States v. Harvey, 21 U.S.C.M.A. 39, 44 C.M.R. 93 (1971); United States v. Murphy, 14 U.S.C.M.A. 535, 34 C.M.R. 315 (1964).⁴

II

Government counsel also contend that, even assuming the “informal” questioning sessions required an Article 31 warning, the subsequent confession made by appellant after being properly warned of his right to remain silent and his right to counsel was voluntary.

In United States v. Hundley, 21 U.S.C.M.A. 320, 325, 45 C.M.R. 94, 99 (1972), we reiterated the well-settled evidentiary standard ⁵ governing the admission of such statements:

If the Government secures admissions without full compliance with the law and the admissions are a kind likely to produce a later confession, convincing evidence must exist that a later warning severed the presumptive influence of the first statement on the later one. United States v. Bennett, 7 U.S.C.M.A. 97, 21 C.M.R. 223 (1956).

Similarly, in United States v. Foecking, 22 U.S.C.M.A. 46, 48, 46 C.M.R. 46, 48 (1972), we stressed that “[t]o the extent that some evidence indicates the statement was ‘the likely product of other evidence which was illegally obtained, the Government has a heavier burden than in a case in which the statement stands apart from any such possible taint.’ ” Accord, United States v. Spero, 8 U.S.C.M.A. 110, 113, 23 C.M.R. 334, 337 (1957). See also United States v. Heslet, 23 U.S.C.M.A. 88, 48 C.M.R. 596 (1974).

In attempting to avoid an inelastic application of these concepts, we observed in United States v. Wimberley, 16 U.S.C.M.A. 3, 9, 36 C.M.R. 159, 165 (1966), that “[wjhere there are successive statements, it is not a precondition to the admission of a properly obtained statement that the accused be informed that a previous statement cannot be used against him.” See also United States v. Monge, 1 U.S.C.M.A. 95, 2 C.M.R. 1 (1952). Instead, the existence of an improper statement must be considered together with the surrounding circumstances in determining whether the former statement tainted the latter. United States v. Powell, 13 U.S.C.M.A. 364, 32 C.M.R. 364 (1962).

Among the factors to be weighed in resolving whether the presumptive taint of the former interrogation has been overcome are the time lapse between the questioning periods, whether the accused was again questioned by the individual who obtained the prior inadmissible statement, whether the accused himself made an acknowledgement that his prior admissions did not influence his decision to incriminate himself again, and whether the interrogator relied upon the prior admissions in seeking a subsequent statement.

In application, only the strongest combination of these factors would be sufficient to overcome the presumptive taint which attaches once the Government improperly has secured incriminating statements or other evidence. United States v. Wimberley, supra. In addition to rewarning the accused, the preferable course in seeking an additional statement would include advice that prior illegal admissions or other improperly obtained evidence which incriminated the accused cannot be used against him.⁶

Turning to the facts before us, the record indicates that the accused was counseled by the same individual concerning the same course of conduct on four occasions during a relatively brief time frame.⁷ Can it be said that the last incriminating statement was insulated from the effect of all that went before? Clewis v. Texas, 386 U.S. 707, 710, 87 S.Ct. 1338, 18 L.Ed.2d 423 (1967). Stated somewhat differently, was there a break in the stream of events sufficient to conclude that the giving of the final statement was uninfluenced by the events which had preceded it? Darwin v. Connecticut, 391 U.S. 346, 88 S.Ct. 1488, 20 L.Ed.2d 630 (1968). We think not.

Nothing in the testimony of Captain Knauer indicates that he sought to insulate the final counseling session from the ones which had preceded it. In fact, the Government has relied upon the effect of the prior sessions on the accused in urging that a more detailed explanation of the nature of the offense was unnecessary during the “formal” interrogation. We conclude, therefore, that the trial judge prejudicially erred in admitting the tainted confession into evidence over defense objection. United States v. Hall, 23 U.S.C.M.A. 549, 50 C.M.R. 720, 1 M.J. 162 (1975).

The decision of the U. S. Army Court of Military Review is reversed. The record of trial is returned to the Judge Advocate General of the Army. A rehearing may be ordered.

Footnotes

1

. The trial judge found the accused guilty of 17 of the 18 charges.

2

. Reexamination of a trial judge’s ruling which is relied upon as a foundation to establish that subsequently admitted evidence is tainted has been sanctioned previously by the Court. E. g., United States v. DeLeon, 5 U.S.C.M.A. 747, 756-57, 19 C.M.R. 43, 52-53 (1955).

3

. The contention that Captain Knauer was acting in an unofficial capacity in questioning appellant is belied not only by the witness’ testimony at trial but also by government counsel’s own argument on appeal in which they assert that Army Regulation 600-15 obligated the commander to question appellant as part of his official duties. Cf. United States v. Carlisle, 22 U.S.C.M.A. 564, 48 C.M.R. 71 (1973); United States v. Dandaneau, 5 U.S.C.M.A. 462, 18 C.M.R. 86 (1955).

4

. See generally Moyer, Justice and the Military §§ 2-200 — 2-219 (1972); Hansen, Miranda and the Military Development of a Constitutional Right, 42 Mil.L.Rev. 55 (1968).

5

. We note that the Supreme Court refined a similar rule in Clewis v. Texas, 386 U.S. 707, 87 S.Ct. 1338, 18 L.Ed.2d 423 (1967), shortly after announcement of the Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), standard. Since 1968, it has been unnecessary for the Court to again restate the principle. Military practice, on the other hand, continues to evidence a disturbing reluctance to accept and to properly apply the voluntariness test enunciated by the Supreme Court and adopted by this Court. See, e. g., United States v. Heslet, 23 U.S.C.M.A. 88, 48 C.M.R. 596 (1974); United States v. Troy, 22 U.S.C.M.A. 195, 46 C.M.R. 195 (1973); United States v. Pyatt, 22 U.S.C.M.A. 84, 46 C.M.R. 84 (1972); United States v. Hundley, 21 U.S.C.M.A. 320, 45 C.M.R. 94 (1972). As was succinctly stated by the Supreme Court, quoting Reck v. Pate, 367 U.S. 433, 442, 81 S.Ct. 1541, 1547, 6 L.Ed.2d 948 (1961), a “constitutional inquiry into the issue of voluntariness ‘requires more than a mere color-matching of cases.’ ”

6

. An obvious dilemma arises where, as here, the questioner, himself, does not know that the prior statements were illegally obtained. In providing a second incriminating statement, the accused, of course, was operating under a similar handicap.

7

. The last “informal” counseling session occurred on approximately May 7, 1973. The “formal” session transpired “sometime [thereafter] in May,” according to Captain Knauer’s testimony.