Lead Opinion
OPINION
Aрpellant was convicted, contrary to his pleas, of one specification alleging the larceny of 4 M16 rifles and 14 padlocks. We granted his pеtition for grant of review to consider a ruling of the trial judge admitting into evidence, over defense objection, pretrial statements of the appellant.
On the morning of December 27, 1973, Sergeant Prosser, a unit armorer, discovered that four M16 rifles were missing from the company arms room. Since the appеllant had access to the arms room, he was one of the individuals questioned about the missing rifles. Appellant consented to a search of his room. During thе subsequent search, the four rifles were found. Appellant was then taken to the orderly room where he was advised of his rights under Article 31, Uniform Code of Military Justicе, 10 U.S.C. § 831, and given a MirandaTempia
Sergeant Prosser was detailed to guard the aрpellant while his transfer to confinement was being arranged. Without advising him of his rights, Prosser questioned the appellant about the theft. Appellant stated in response to the questions that he had taken the rifles. It is this admission with which we are concerned.
Prosser testified that the appellant was a good friend at the time in issue. He asked the question of the appellant because he was confused and bewildered as to why anyone would want to take the rifles. Morеover, he did not believe when he asked the question that the appellant had taken the rifles. He stated he was acting in a personal capаcity, not professional; he had
Whenever the government attempts to use a pretrial statement of an accused against him in a criminal prosecution, it must establish, even absent an objection, that the statement was voluntary— thаt it was freely, knowingly, and intelligently given. Where an accused’s statements are not volunteered, the government must prove, first, that its agents who obtained the statеment advised the accused of his Miranda-Tempia right to counsel and his Article 31 right to remain silent, and, second, that the individual waived those rights and consented to the interview. If the рerson indicates that he wishes to exercise his right to remain silent or to consult with an attorney, there can be no interview. United States v. DeChamplain,
While we are concerned with the appellant’s request for counsel and its continuing validity at the time of Prosser’s inquiries,
Article 31, UCMJ, provides, in material part:
(b) No person subject to this chapter may interrogate, or request any statement from, an accused or a person suspected of an offense without first informing him of the nature of the accusation and advising him that he does not have tо make any statement regarding the offense of which he is accused or suspected and that any statement made by him may be used as evidence agаinst him in a trial by court-martial.
(d) No statement obtained from any person in violation of this article, or through the use of coercion, unlawful influence, or unlawful inducement may be received in evidence against him in a trial by court-martial.
Read literally, this Article is broader in application than the Fifth Amendment to the United States Constitution and we have so held. United States v. Musguire,
Throughout its brief history, this Court has had occasion to consider the applicability of Article 31 in factual situations relevant to the instant case. United States v. Carlisle,
We are not here concerned with voluntary statements that are made by an accused spontaneously or without prior police action. Miranda v. Arizona, supra; United States v. Vogel,
Consequently, we hold that where a person subject to the Code interrogates— questions — or requests a statement from an accused or suspect over whom the questioner has some position of authority of which the accused or suspect is aware, the accused or suspect must be advised in accordance with Article 31.
Since each of these factors existed when Prosser questioned the appellant without giving an Article 31 warning, that Article was violated.
The admission of the appellant’s statements affects the validity of only that part of the findings involving the larceny of the M16 rifles.
Notes
. Miranda v. Arizona,
. United States v. Heslet,
. See the typically excellent discussion in Moyer, Justice and the Military § 2-206 (1972).
. Prosser was in a position of authority both as a guard and as a noncommissioned officer.
. The padlocks were discovered during аn inventory of the appellant’s belongings after he had been ordered into confinement. Appellant’s statements did not concern the padloсks nor lead to their discovery.
Concurrence Opinion
(concurring in the result):
I concur in the result. See United States v. Beck,
Concurrence Opinion
(concurring in the result):
I concur in the disposition ordered, but for the reasons discussed in my opinion concurring in the result in United States v. Seay,