No. 20,779 | United States Court of Military Appeals | May 3, 1968
Opinion of the Court
A general court-martial at Dow Air Force Base, Maine, convicted the accused of falsely altering three Government checks by raising the original amounts for which they were drawn, in violation of Article 123, Uniform Code of Military Justice, 10 USC § 923, and sentenced him to a bad-conduct discharge, confinement at hard labor for six months and accessory penalties. With some modification of the sentence, intermediate authorities affirmed. Under Article 67 (b) (2), Code, supra, 10 USC § 867, the Judge Advocate General of the Air Force certified the case to this Court for consideration of the following question: Was the board of review correct in holding that Prosecution Exhibit 6 was admissible in evidence? We also granted the accused’s petition to consider the correctness of certain instructions as to the exhibit.
Prosecution Exhibit 6 is a written incriminating statement by the accused which he gave to Special Agent Daryl I. Gonyon of the Office of Special Investigations on May 25, 1967. At trial, defense counsel objected to its admission in evidence on the ground it “was not the product of the free will of the accused.” After an out-of-court hearing, the law officer overruled the objection. The issue was again raised in open court, and the law officer adhered to his ruling. On review, the board of review determined there was “ample evidence to support” these rulings. It also independently assessed the evidence, and made its “own findings,” from which it concluded the statement was “freely and voluntarily made.” The accused maintains these determinations are not justified by the evidence. See Davis v North Carolina, 384 U.S. 737" court="SCOTUS" date_filed="1966-06-20" href="https://app.midpage.ai/document/davis-v-north-carolina-107261?utm_source=webapp" opinion_id="107261">384 US 737, 16 L ed 2d 895, 86 S Ct 1761 (1966); United States v O’Such, 16 USCMA 537" court="None" date_filed="1967-03-10" href="https://app.midpage.ai/document/united-states-v-osuch-8574029?utm_source=webapp" opinion_id="8574029">16 USCMA 537, 37 CMR 157.
Although the accused testified that he was interrogated by OSI agents at their office on four or five occasions, only two are material to this appeal. One interview took place on May 22, 1967; the other occurred on May 25, 1967. Either directly or impliedly, the accused admitted that before he was asked any questions at either interview, he was informed he was suspected of forgery; that he had a right to remain silent, but if he elected to speak whatever he said could be used against him in a court-martial; that he was entitled to a lawyer, either his own or one appointed by the Air Force, and the lawyer could be present during the interview; and, finally, that he could “just . . . [walk] out” of the office any time he wanted.
According to the accused, at the May 22d interview he was asked if he had committed the alleged offenses. He answered that he had not. He was accorded an “opportunity” to make a written statement of his denial, but was expressly advised that if he “wrote an untrue statement” he could be charged with perjury. He refused to make a statement, and left the interview room. At trial, he contended the reference to perjury constituted a threat. A threat to prosecute a suspect for a criminal offense unless he makes a statement is improper, and will render inadmissible a statement resulting from the threat. United States v O’Such, supra; United States v Scott, 8 USCMA 309" court="None" date_filed="1957-10-11" href="https://app.midpage.ai/document/united-states-v-scott-8571879?utm_source=webapp" opinion_id="8571879">8 USCMA 309, 24 CMR 119. The perjury remark, however, did not present prosecution as the alternative to reliance upon the right to remain silent. Cf. United States v Bruce, 9 USCMA 362" court="None" date_filed="1958-06-13" href="https://app.midpage.ai/document/united-states-v-bruce-8572275?utm_source=webapp" opinion_id="8572275">9 USCMA 362, 26 CMR 142. On the
At the May 25th interview, the accused took a seat in the corner of the small interview room, as he apparently had on the previous occasions. Agent Gonyon, who mostly questioned the accused in the previous interviews, sat behind a desk; another agent, also present at the previous interviews, sat “with his chair next to the door.” After advising him of his rights, Gonyon showed the accused the allegedly altered checks, and he identified his signature on them. Gonyon then asked him if an Airman Richmond Scott made the alteration on one of the checks; he replied in the negative. According to the accused, Gonyon showed him statements by Scott and another airman, which apparently implicated him in the offenses. Gonyon asked if he “would like to make a statement now.” In reply, he said he “didn’t want to answer any” questions. However, Gonyon “kept on asking them.”
The statement is in the accused’s own handwriting. It is prefaced by printed material as to the accused’s rights at the interrogation. Some of this material was crossed out and initialled by
Agent Gonyon denied the accused said “anything,even closely related to wanting to leave” during the May 25th interview. He was “positive” the accused did not get out of his chair during the interview. He also denied the accused ever said, in words or substance, that he did not want to make a statement. Asked whether he had ever told any accused he could not leave the interrogation room until he had made a statement, he testified he had said “something to that effect” in another investigation, which he was “positive” did not involve this accused. To the “best of . . . [his] knowledge” that occasion was “the first, once and only time” he had ever employed that “technique” in interviewing a suspect.
When a person subjected to custodial interrogation indicates he wants to assert his right to remain silent, the questioning must cease; if it does not, and a statement is obtained through further interrogation, it is inadmissible in evidence against the accused. United States v Bollons, 17 USCMA 253" court="None" date_filed="1967-10-27" href="https://app.midpage.ai/document/united-states-v-bollons-8574147?utm_source=webapp" opinion_id="8574147">17 USCMA 253, 38 CMR 51; United States v Westmore, 17 USCMA 406" court="None" date_filed="1968-02-23" href="https://app.midpage.ai/document/united-states-v-westmore-8574216?utm_source=webapp" opinion_id="8574216">17 USCMA 406, 38 CMR 204. If the accused’s testimony is believed, he had manifested a desire to rely upon his right of silence and his statement should have been excluded from evidence. However, if Agent Gonyon’s testimony is believed, the accused willingly and freely waived his right to remain silent. Notwithstanding the law officer and the board of review resolved the conflict in testimony against the accused, appellate defense counsel contend the accused’s testimony is so- “clear and definite” and Agent Gonyon’s is so “vague and indefinite” that this Court should reverse their findings.
The burden of establishing a voluntary waiver of the right to remain silent is on the Government; and the evidence must “clearly and convincingly demonstrate” the waiver. United States v Bollons, supra, at page 257. Gonyon was certain and firm in his contention that the accused gave no indication, by word or act, that he desired to rely upon his right to remain silent. On the other hand, the accused was far from convincing in his assertion that he told Gonyon he did not want to answer any questions, but Gonyon “kept on asking them.” Other testimony by him reveals this contention as his interpretation of what he said, not as a recital of what he actually said at the interview.
In his in-court testimony, the accused referred to his earlier meetings with Agent Gonyon. Questioned by his counsel as to the circumstances of these meetings, he stated that Gonyon asked him questions which, while phrased differently, “were the same”; his uniform answer to all these questions was “ ‘No.’ ” In the interviews in issue, he was asked the “same questions” as to whether he had “anything to do with the forgery or did . . . [he] have any knowledge of it.” He kept saying “ ‘No’ to them.” Asked several times by defense counsel to explain what he meant in his use of the word “ ‘No’ ” he replied, variously, that he meant he “didn’t want to answer his questions,” and that he meant he “didn’t do it or . . . didn’t want to answer the questions,” Putting aside the temptation to compare the accused’s word usage with that of Humpty-Dumpty in Lewis Carroll’s “Through the Looking-Glass and What Alice Found There,” the inescapable conclusion from the whole of the accused’s testimony is that he was, at all times, willing to be questioned by Agent Gonyon, but he reserved the option to refuse to answer specific questions. Cf. United States v Bollons, supra.
We turn to Gonyon’s alleged threat to keep the accused “all day” in the interrogation room. We put aside consideration of whether a threat of deten
In separate assignments of error, appellate defense counsel contend the instructions as to the court members’ right to determine the voluntariness of the statement were prejudicially erroneous. The first assignment deals with an alleged material deficiency in the law officer’s summary of the evidence pertinent to the issue. It is contended he should have advised the court members that they could consider evidence of the physical features of the interrogation room as bearing upon the vol-untariness of the statement. The room was described as a single room, well lighted, but with no windows; it contained a desk, three chairs, and some ash trays. The walls were panelled with a sound-reducing material. Nowhere in the record is there the slightest indication that the physical features of the room had any effect upon the accused. The total absence of any connection between these factors and the reasons given by the accused for the making of the statement fully justified the law officer’s failure to comment on them in his summary of the evidence. See United States v Davis, 2 USCMA 505" court="None" date_filed="1953-05-14" href="https://app.midpage.ai/document/united-states-v-davis-8570751?utm_source=webapp" opinion_id="8570751">2 USCMA 505, 512, 513, 10 C.M.R. 3" court="None" date_filed="1953-05-14" href="https://app.midpage.ai/document/united-states-v-davis-8570751?utm_source=webapp" opinion_id="8570751">10 CMR 3; cf. United States v O’Such, supra. Appellate defense counsel also contend the law officer prejudiced the accused by omitting mention of testimony by him to the effect that he was not properly advised as to his right to counsel. The evidence indicates no issue as to the correctness of the advice given the accused on this point.
Agent Gonyon testified he specifically advised the accused “he had a right to choose a lawyer of his own choice or . . . the Air Force would appoint a lawyer for him.” In the out-of-court hearing, the accused did not dispute this testimony. On the contrary, he acknowledged he heard Gonyon’s testimony as to the advice “concerning . . . [his] rights,” and he admitted he “in fact” received such advice. He further admitted he understood he was “entitled to a lawyer.” In his in-court
“Q. [Trial Counsel] What were the rights that he told you, you had ?
“A. That I could come and go as I pleased or I could be silent.
“Q. Did he say anything with respect to counsel?
“A. Yes.
“Q. What did he say?
“A. That I had a right to have a counsel present.
“Q. Did he say whether or not anybody would supply you with counsel?
“A. No, sir.
“Q. You understood that you had the right to have counsel?
“A. Yes.
“Q. And have counsel present with you in the interrogation room?
“A. Yes.” [Emphasis supplied.]
We do not construe the emphasized part of this excerpt from the accused’s testimony as contradicting his earlier admissions that Gonyon had informed him the Air Force would appoint counsel for him. Trial counsel’s question was imprecise, and apparently was construed by the accused to ask if Gonyon had advised him whether a particular person would obtain counsel for him. Consequently, his negative answer does not imply, as appellate defense counsel contend, that Gonyon did not tell him counsel would be appointed for him if he did not choose his own. Considering trial defense counsel’s alertness to the issue and the several objections he interposed to the admission of the statement, it is reasonably certain that if he had construed the quoted testimony as a repudiation of the accused’s previous admissions, he would have advanced it as another basis for exclusion of the statement. See United States v Gordon, 14 USCMA 314" court="None" date_filed="1963-12-20" href="https://app.midpage.ai/document/united-states-v-gordon-8573545?utm_source=webapp" opinion_id="8573545">14 USCMA 314, 34 CMR 94. We conclude that the accused’s testimony did not raise any issue of incorrect advice as to the right to counsel. Cf. United States v McCauley, 17 USCMA 81" court="None" date_filed="1967-06-09" href="https://app.midpage.ai/document/united-states-v-mccauley-8574091?utm_source=webapp" opinion_id="8574091">17 USCMA 81, 37 CMR 345.
Finally, appellate defense counsel maintain the instructions were prejudicial in that they failed to inform the court members “what legal effect their resolution of the factual questions would have upon the issue of voluntariness.” They contend the court members should have been separately advised that they must exclude the statement from their consideration, if they were not convinced beyond a reasonable doubt of either of two circumstances: (1) That the accused had not “expressed a desire not to answer further questions”; and (2) that he had not been told he would be compelled to remain in the interrogation room until he made a statement. We find no merit in either aspect of this assignment. The law officer advised the court members they could accept the statement as evidence only if they determined beyond a reasonable doubt it was voluntary; otherwise they “must reject the statement and disregard it as evidence in the case.” He reviewed the accused’s and Gonyon’s testimony and instructed the court members that they must “determine whether and to what extent . . . either . . . should be believed, bearing in mind that the burden of proof is upon the Government and any reasonable doubt must be resolved in favor of the accused.” In our opinion, these instructions adequately covered the “legal effect” of the alleged threat. Referring to the legal effect of the accused’s alleged desire not to answer further questions, he instructed as
We answer the certified question in the affirmative, and affirm the decision of the board of review.
The accused explained his refusal to make a written statement as follows: “[T]o me my right was that I didn’t have to write a statement or make a statement.”
This statement was materially qualified in the accused’s in-court testimony, which is set out later in the text.
Although the accused’s testimony in the out-of-court hearing before the law officer is different from his testimony in open court, the parties have blended the two. In the circumstances, we need not separate the testimony to consider the validity of the out-of-court ruling on defense counsel’s objection to admissibility apart from the in-court ruling. Cf. United States v Dicario, 8 USCMA 353, 24 CMR 163.