7 M.J. 154 | United States Court of Military Appeals | 1979
Lead Opinion
In accordance with his pleas, the appellant was convicted by a general court-martial, consisting of members, of absence
Appellant was arrested on May 13, 1977, by civilian authorities on charges unrelated to the present proceedings and was detained in a civilian confinement facility. On May 18, agents of the Criminal Investigation Division, in Albuquerque, New Mexico, interrogated him. This interrogation produced the pretrial statement in question. Special Agent Parrotte testified that before questioning appellant, he advised him of his rights, as set forth in DA Form 3881,
Q: Mr. Parrotte, I believe you testified that you read the back of the DA Form 3881 to Sergeant Harris.
A: Yes, sir.
Q: Did you read the portion that says you may ask for a military lawyer of your choice by name and he will be detailed for you if his superiors determine he is reasonably available?
A: Yes, I did.
Q: Did you expand or elaborate on that statement in any way?
A: I normally do. I cannot recall if I did in this specific instance.
Q: What do you normally do?
A: Normally I tell him if there’s a lawyer that he’s heard of — that he would like to represent him, he doesn’t have to worry — if he’s in another division or something — he can ask for him by name and his superiors will determine whether or not he’s available.
Q: When you expand on this, do you say — do you limit the attorneys to those available to the two divisions or the corps here in Fort Hood?
A: For a specific attorney?
Q: Yes.
A: Yes, sir.
Special Agent Blair was also present during the interrogation. His testimony substantiates that of his colleague. Additionally, he testified appellant did not appear to have been physically abused, although he did appear to be “somewhat haggard.” The parties stipulated that previous to the interrogation, appellant entered into an attorney-client relationship with a member of the Albuquerque Public Defender’s office “in reference to the civilian criminal charges.”
Appellant testified that he was held in three jails between May 13 and May 18; he explained that part of the reason for the movement was that “they wanted just to have me go before a judge.” He further testified that he missed the evening meal on May 17 because he was transferred to another jail and placed in a “tank” with approximately 25 people. As a result of an altercation with some of his fellow inmates,
On the basis of the foregoing evidence, the military judge ruled in an out-of-court hearing that the pretrial statement was admissible, and appellant stated that he did not desire to relitigate the issue before the court members. Appellant claims on appeal, as he did at the trial level, that the statement was inadmissible for three reasons: (1) the agents improperly restricted his right to counsel; (2) the agents were obligated to ascertain if appellant was represented by counsel and to communicate with him; and (3) the conditions of his confinement were so severe as to amount to duress and coercion.
Appellant asserts that Agent Parrotte improperly restricted his right to counsel by limiting the pool of lawyers to those located at Fort Hood, Texas. While Parrotte’s testimony is not that precise, I assume appellant’s interpretation of it is correct; but limiting the pool of available lawyers does not necessitate rejection of the pretrial statement. Appellant submits he was confused by Parrotte’s explanation and concluded he was not entitled to counsel until transferred to Fort Hood. That contention is inconsistent with his trial testimony that he did not request counsel because he determined he did not need one. The fact is, appellant was specifically advised he had a right to have a lawyer during the questioning, and he voluntarily declined to exercise the right. See United States v. Hofbauer, 5 M.J. 409 (C.M.A.1978).
As to appellant’s argument that the agents were obligated to ascertain the name of his civilian counsel and to communicate with him, United States v. McOmber, 1 M.J. 380, 383 (C.M.A.1976), is instructive. There, the Court held that
once an investigator is on notice that an attorney has undertaken to represent an individual in a military criminal investigation, further questioning of the accused without affording counsel reasonable opportunity to be present renders any statement obtained involuntary under Article 31(d) of the Uniform Code.
United States v. Lowry, 2 M.J. 55 (C.M.A.1976), noted that the McOmber requirement was predicated on an accused’s right to counsel as set forth in Article 27, 10 U.S.C. § 827, rather than the Sixth Amendment. The distinction is important here because the McOmber rule differs from that in the civilian community. See United States v. Newell, 578 F.2d 827 (9th Cir. 1978); cf. Brewer v. Williams, 430 U.S. 387, 405-406, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977). Furthermore, the civilian counsel’s representation of appellant encompassed unrelated charges, which distinguishes this case from United States v. Lowry, supra, where the offenses were so interrelated they could not be practically separated for the purpose of an interrogation. Additionally, the present case does not involve a denial of counsel’s request to consult with his client as in United States v. Turner, 5 M.J. 148 (C.M.A.1978). As the existing attorney-client relationship with counsel did not encompass an Article 27 right, I conclude that the McOmber requirement is inapplicable to this case. In any event, the agents were unaware that an attorney-client relationship had been established, and I decline appellant’s invitation to impose guidelines for, or a requirement that, an inquiry be made, although I
Considering the effect of the alleged conditions of confinement upon the voluntariness of the statement, appellant proposes that an agent be required to inquire into the circumstances of a suspect’s confinement before he initiates an interrogation. No such procedure is required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and United States v. Tempia, 16 U.S.C.M.A. 629, 37 C.M.R. 249 (1967), and I am not persuaded it is a necessary addition to the existing interrogation procedure. However, circumstances of confinement can be considered in evaluating the voluntariness of a statement obtained from a person in confinement. United States v. O’Such, 16 U.S.C.M.A. 537, 37 C.M.R. 157 (1967). In this case the matter was resolved against the appellant by the military judge, and I am satisfied the evidence of record amply supports his decision. See United States v. Carmichael, 21 U.S.C.M.A. 530, 45 C.M.R. 304 (1972). As my Brothers agree that appellant’s statement was properly admitted, the decision of the United States Army Court of Military Review is affirmed.
. This form was admitted into evidence. It incorporates the rights as set forth in Article 31, Uniform Code of Military Justice, 10 U.S.C. § 831, and United States v. Tempia, 16 U.S.C.M.A. 629, 37 C.M.R. 249 (1967).
Concurrence Opinion
(concurring).
As Judge Cook’s opinion indicates, the appellant urges three alternative grounds for concluding that his pretrial statement to the military investigators was inadmissible in his court-martial. As to the matter of the investigators’ restriction of the scope of his right to counsel of his choice, I find the appellant’s trial testimony that he believed at the time that he did not need a lawyer dispositive of any claim of prejudice arising from the misadvice. See United States v. Copes, 1 M.J. 182 (C.M.A.1975); United States v. Whitmire, 21 U.S.C.M.A. 268, 45 C.M.R. 42 (1972); United States v. Turner, 20 U.S.C.M.A. 167, 43 C.M.R. 7 (1970).
The second ground concerns the failure of the agents to ascertain that he was represented by a civilian lawyer in the charges for which he was confined in the civilian confinement facility. However, the agents did inquire of the facility authorities whether the appellant was represented and received (erroneously) a negative reply; further when the agents advised the appellant of his right to counsel in conformity with Article 31,
Finally, the facts surrounding the interrogation, taken in the light most favorable to the Government,
. Uniform Code of Military Justice, 10 U.S.C. § 831.
. UCMJ, 10 U.S.C. § 827.
. U.S.Const. amend VI.
. United States v. Lowry, 2 M.J. 55, 58-9 (C.M.A.1976).