United States v. Thompson

31 M.J. 781, 1990 CMR LEXIS 1223, 1990 WL 173929
U.S. Army Court of Military Review·Decided November 6, 1990·No. ACMR 8802746·Published·Cited by 4 cases

Opinion

OPINION OF THE COURT

VARO, Judge:

Contrary to his pleas, a special court-martial empowered to adjudge a bad-conduct discharge composed of officer and enlisted members convicted the appellant of eight specifications of violation of a general regulation by fraternization in violation of Article 92, Uniform Code of Military Justice, 10 U.S.C. § 892 (1982) [hereinafter UCMJ]. His approved sentence includes a bad-conduct discharge, confinement for sixty days, forfeiture of $300.00 pay per month for two months, and reduction to the grade of Private El.

The appellant asserts two assignments of error from his court-martial:

1. that the military judge erred in taking judicial notice of a Fort Gordon regulation; and

2. that the military judge erred in admitting inculpatory statements by the accused, as these statements were the result of inadequate warnings under Article 31, Uniform Code of Military Justice, 10 U.S.C. § 831.

Judicial Notice

Over defense objection at trial, the military judge took judicial notice of Fort Gordon Regulation 600-91 which proscribes relationships between cadre and soldiers in training. The defense objection went to the issue of whether the regulation was properly filed and authenticated. After reviewing the applicable Army Regulations in effect at the time of promulgation of the Fort Gordon Regulation2, the mili[783]*783tary judge took judicial notice of the regulation. He also heard testimony from Fort Gordon personnel responsible for control and distribution of regulations on the installation. Based on our review of the record of trial, we find no error in the military judge’s determination.

The appellant now wishes to challenge the regulation on a totally different basis, that being that the regulation was never properly issued by the Commander, Fort Gordon. As this issue was not raised at trial, we consider it waived. Manual for Courts-Martial, United States, 1984, Rule for Courts-Martial 801(g); See United States v. Dial, 26 C.M.R. 480 (C.M.A.1958). Assuming arguendo that the objection at trial was sufficient to preserve the objection on appeal, we have found the military judge’s determination with regard to filing and authentication to be proper. Further, the appellant has provided no additional grounds for his assertion and we find no basis upon which to ignore the presumption of administrative regularity. United States v. Masusock, 1 C.M.R. 32 (C.M.A.1951). Thus, the assertion of error is without merit.

Article 31(b), UCMJ Warnings

The appellant further asserts that the military judge erred in admitting evidence of the appellant’s statements to Sergeant (SGT) Lowery (another drill sergeant), and Sergeant First Class (SFC) Snyder (the appellant’s first sergeant), because these statements were made without proper rights warnings required by UCMJ Article 31.

On 15 August 1988, SGT Lowery was performing duties as Charge of Quarters. She also was the drill sergeant responsible for the female platoon in the company. During her watch, several of the female soldiers under her responsibility came to her to complain about various acts of sexual fraternization by the appellant. The appellant arrived while some of the trainees were talking to SGT Lowery. The appellant entered her office and told her he wanted to tell the truth. SGT Lowery’s immediate response was “[wjhat are you doing with my Privates?” The appellant proceeded to tell her that he had become involved with only one Private and that he intended to continue to see her.

On 16 August 1988, SGT Lowery advised SFC Snyder that he needed to talk to the appellant about potential problems with personnel in the female platoon. SFC Snyder summoned the appellant to his office sometime between 1200 and 1400 hours. He advised the appellant of his rights under Article 31, and told him that appellant’s name was brought to his attention with regard to possible fraternization with certain female soldiers in the unit. The appellant waived his rights and agreed to talk with SFC Snyder stating “you go right ahead and do what you got to do. I have nothing to hide.” SFC Snyder did further investigation after the appellant left and then called the appellant back to his office around 1900 hours the same day. At this time, SFC Snyder did not re-read the appellant his rights under Article 31. Rather, he just confronted him by telling him he did not believe he was telling the truth. According to SFC Snyder, the appellant then admitted to having an affair with one of the female soldiers in question.

The appellant’s oral statements to SGT Lowery and SFC Snyder were admitted at trial over defense objection.

1. Statement to Sergeant Lowery

We agree with the appellant’s assertion that the military judge was incorrect in ruling that because there was no custodial situation involved, the appellant’s statement to SGT Lowery was admissible. With a custodial situation, the obligation to give Fifth Amendment warnings under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and United States v. Tempia, 37 C.M.R. 249 (C.M.A.1967) would have arisen. However, custody is not required to activate the duty to warn under UCMJ Article 31. See United [784]*784States v. Churnovic, 22 M.J. 401 (C.M.A.1986).

The determination of admissibility of the statement to SGT Lowery thus rests on whether she was required to give warnings under Article 31 when speaking to the appellant. The standard for making this determination is set forth in Manual for Courts-Martial, United States, 1984, Military Rule of Evidence 305 [hereinafter Mil. R.Evid.].3

Applying the applicable portions of Military Rule of Evidence 305 to the facts in question, we hold that Sergeant Lowery was not required to give Article 31 warnings in this ease. The nature of her conversation with the appellant was one which we do not find to be an interrogation as defined by Military Rule of Evidence 305. We come to this conclusion for the following reasons:

a. SGT Lowery was receiving unsolicited complaints about the appellant from female personnel when the appellant came into her office and stated: “I want to tell you the truth.”

b. SGT Lowery had not summoned the appellant officially or unofficially to her office. In fact, she stated she was surprised to have him just walk in and start talking.

c. SGT Lowery responded to the appellant’s presence by stating: “[w]hat are you doing with my Privates?”

d. Although SGT Lowery’s response to the appellant was in the form of a question, we find it to be a statement of concern for her subordinate personnel, and not a question to which she expected an incriminating answer from the appellant.

e. The appellant had a conversation with SGT Lowery, and at least two of the complainants, during which appellant admitted he had become involved in a relationship with one trainee.

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United States v. Thompson, 31 M.J. 781, 1990 CMR LEXIS 1223, 1990 WL 173929 (usarmymilrev 1990).

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