24 M.J. 686 | U.S. Army Court of Military Review | 1987
OPINION OF THE COURT
Appellant was tried by a military judge sitting as a general court-martial. Contrary to his pleas, he was convicted of absence without leave (Charge I), larceny (Charge II), and fourteen specifications each of falsely making and uttering checks with the intent to defraud (Charge III), in violation of Articles 86, 121 and 123, Uniform Code of Military Justice, 10 U.S.C. §§ 886, 921 and 923 (1982) [hereinafter UCMJ], respectively. His sentence to a
I
The appellant was apprehended in Florida and transported to Fort Hood, Texas, where he was placed in pretrial confinement at the Installation Detention Facility. On the morning of 27 March 1986 both Special Agent (SA) J of the Criminal Investigation Command (CID) and Senior Defense Counsel Major (MAJ) C, U.S. Army Trial Defense Service, went to talk to the appellant.
After consulting with MAJ C, the appellant left the room while MAJ C remained behind to prepare for his next client interview. Minutes thereafter, when MAJ C emerged from the office, he did not see either SA J or the appellant. In the meantime, when the appellant had left the interview with MAJ C, he was taken into custody by SA J who frisked the appellant, handcuffed him, took him to the CID office and advised him of his rights. The appellant invoked his rights to silence and to counsel.
Agent J did not question the appellant regarding the offenses he was investigating, but required him to complete check exemplars. Some of the samples were executed in an incriminating manner.
The defense contends on appeal, as it did at trial, that SA J had an obligation under United States v. McOmber, 1 M.J. 380 (C.M.A.1976), to provide reasonable notice to counsel of the “first” interview, the initial approach to the appellant by SA J at which the appellant invoked his rights, and that SA J had an additional McOmber notification requirement at the initiation of the “second” interview, the questioning that took place after the appellant indicated that he wished to talk to SA J.
The rule set forth in McOmber, codified in Manual for Courts-Martial, United
We agree with the military judge’s findings that MAJ C was on notice that SA J was waiting to interview the appellant and that MAJ C expressed no interest or concern in appearing at the interrogation. We specifically reject the defense argument that there were two interviews. Factually, there was only one interview which MAJ C, knowing that SA J was waiting in the wings, chose not to attend.
II
Appellant also contends that the military judge erred by failing to dismiss the 14 specifications of Charge III alleging the making of false checks as multiplicious for findings with the 14 companion specifications of Charge III alleging the uttering of the same checks. We agree. The military judge made no findings as to whether the making and uttering of each check occurred at the same time and place.
III
Specifications 1, 3, 5, 7, 9,11,13,15, 17, 19, 21, 23, 25, and 27 of Charge III are consolidated with Specifications 2, 4, 6, 8, 10, 12, 14, 16, 18, 20, 22, 24, 26, and 28 of Charge III, respectively, by inserting in each of the latter specifications after the words “with intent to defraud” the words “falsely make in its entirety and.” The findings of guilty of Charge III and its consolidated specifications, and of Charges I and II arid their specifications are affirmed. Since the military judge denied the defense motion that the making and uttering specifications be treated as multiplicious for sentencing, we will reassess the sentence.
IV
The other assignment of error personally raised by the appellant has been duly considered and found to be without merit.
Reassessing the sentence on the basis of the error noted and the entire record, we affirm only so much of the sentence as provides for a dishonorable discharge, confinement for four years, forfeiture of all pay and allowances, and reduction to the grade of Private E-l.
. While military law requires the early assignment of counsel for a prisoner confined for more than a brief period, United States v. Jackson, 5 M.J. 223 (CMA 1978), Major C was not the appellant’s appointed defense counsel for purposes of trial, but consulted with the appellant to give him advice because he was a new pretrial confinee. Major C informed the appellant of his limited appointment and that a Captain (CPT) O would be representing him at any court-martial proceedings. Under Army Regulation 27-10, Legal Services: Military Justice, para. 5-13b (1 July 1984), counsel from the U.S. Army Trial Defense Service is to consult with an accused within 72 hours of the latter's entry into pretrial confinement. For a related procedure, compare Manual for Courts-Martial, United States, 1984, Rule for Courts-Martial 305(f) (counsel "may be assigned for the limited purpose of representing the accused only during the pretrial confinement proceedings before charges are referred”).
. We find SA J’s actions in this regard were proper. See generally United States v. Harden, 18 M.J. 81 (C.M.A.1984); United States v. Roa, 20 M.J. 867 (A.F.C.M.R.1985). Notwithstanding the appellant's exercise of his rights, the investigator could properly continue the interview so long as he did not conduct interrogation in violation of those rights. See Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Further, the compelled production of a handwriting exemplar, even in an incriminating style uncharacteristic of the accused, does not violate the fifth amendment. In re Special Federal Grand Jury Empanelled October 31, 1985 (John Doe), 809 F.2d 1023 (3d Cir.1987).
. We note our concern with the limited nature of the representation undertaken by MAJ C. See note 1, supra. We have carefully examined the record of trial in this case and we are satisfied that the appellant was not denied the effective assistance of counsel, especially in the period between his consultation with MAJ C and CPT O’s active entry into the case.
. Also contested at trial was whether SA J, during the exemplar-taking, engaged in the "functional equivalent” of interrogation. See Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). The military judge found that SA J did not attempt to interrogate the appellant in violation of his right to counsel. We agree. The taking of the exemplars at the CID office by the criminal investigator was not a subterfuge to place the appellant in a coercive interrogation environment that was likely to undermine the appellant’s previous invocation of his rights. After the appellant exercised his rights, SA J asked the appellant no questions about the offenses or his conduct until the appellant himself initiated further communication. See generally Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983) (plurality); Wyrick v. Fields, 459 U.S. 42, 103 S.Ct. 394, 74 L.Ed.2d 214 (1982) (per curiam); United States v. Applewhite, 23 M.J. 196 (C.M.A.1987).
. The military judge found that the preparation of a forged document and its uttering "may be done at different times and at different loca