18 C.M.A. 194 | United States Court of Military Appeals | 1969
Opinion of the Court
This case involves important questions as to the relationship between civilian and military criminal investigations and the procedural requirements of each, as defined in recent eases by the Supreme Court of the United States and this Court, which control the admission into evidence of information obtained from an accused in the course of interrogation.
During the night of December 16, 1966, Airman First Class William G. Hoyer and his roommate, Airman First Class' Ralph L. Welling, had their respective wfdlets stolen from their
By this time, three Government investigative agencies were involved in the case. Hoyer and Welling had reported the loss of their wallets to the Air Police; a Postal Investigator was apparently investigating the mail thefts; and the Seattle Office of the Secret Service had assigned Special Agent Wallace A. Primrose to investigate the alteration of the Government checks. When the report on the Bank of Tacoma incident came in, Agent Primrose had recovered at least one of the stolen pay checks from the Federal Reserve system. This check had been altered by changing the amount of $47.77 to $947.77, and it, too, was endorsed in the name of “William G. Hoyer.” Inquiry at the Washington Motor Vehicle License Division revealed that the vehicle used by the person involved in the Bank of Tacoma attempt was registered to Clarence C. Pinckney, an airman stationed at Mc-Chord Air Force Base. Primrose communicated with Special Agent L. L. Lohmeier of the Office of Special Investigations at McChord. What followed is important to this appeal, but for the present it is sufficient to note that the investigation by Lohmeier and OSI Agent Francis M. Mazurkiewicz resulted in the discovery of a number of United States Treasury checks in the car, including the one presented to the Bank of Tacoma, and identification cards stolen from Hoyer and Welling were discovered in the accused’s locker. Later, Secret Service Agent Primrose interviewed the accused at the base. He obtained two samples of handwriting from him. Over a period of time, he obtained three other handwriting exemplars composed by the accused in his presence.
At trial, the exemplars were offered in evidence to provide the foundation for testimony by a Treasury Department document analyst calculated to identify the accused as the author of endorsements on a number of forged checks. Defense counsel attempted to inquire into the extent to which the accused had been advised of his rights before he furnished the exemplars, but trial counsel resisted the effort on the ground that the matter of threshold advice was “irrelevant” because Agent Primrose was engaged in a Secret Service investigation, and Federal civilian law did not require him to provide such advice in connection with the procurement of handwriting samples from an accused.
Before we consider the specific problems raised by the appeal, we are constrained to point out that the circumstances under which evidence is obtained from an accused are relevant to admissibility at trial. A police officer may have authority to perform a particular act, but the manner in which he performs that act may exceed limits allowed by law and thereby taint the whole of what he does. Kremen v United States, 353 US 346, 1 L Ed 2d 876, 77 S Ct 828 (1957); Rochin v California, 342 US 165, 96 L Ed 183, 72 S Ct 205 (1952). Evidence that the accused had, or had not, been advised of his rights in a criminal investigation is, therefore, relevant to whether exemplars of his handwriting are admissible. The record of the Article 32 investigation contains two Secret Service forms captioned, “WARNING AND CONSENT TO SPEAK,” which recite the right to remain silent and the right to counsel; both forms bear the signature of the accused and a certificate by Agent Primrose indicating he had orally advised the accused of the rights recited in the forms before the accused signed them. Had such evidence been received at trial this case might not now be before us. We cannot properly take account of these documents in connection with this appeal because we are bound to review the law officer’s ruling on the basis of the evidence in the record of trial and because the accused has not had the opportunity to challenge their admissibility or their content. Cf. United States v Hurt, 9 USCMA 735, 751, 27 CMR 3.
Military criminal law and civilian criminal law have constitutional differences and constitutional identities. For example, a constitutional difference exists in the form of initiation of a prosecution in that the Consti
In Gilbert v California, 388 US 263, 18 L Ed 2d 1178, 87 S Ct 1951 (1967), and United States v Wade, 388 US 218, 18 L Ed 2d 1149, 87 S Ct 1926 (1967), the Supreme Court of the United States held that a police officer may direct an accused to provide samples of handwriting, without infringing upon the accused’s constitutional right against self-incrimination. In the Supreme Court’s contemplation a handwriting exemplar is merely an “identifying physical characteristic” which, like a fingerprint, can be taken from the accused without preliminary advice that he has the right to refuse to provide the exemplar. Gilbert v California, supra, 388 US, at page 267. On the other hand, this Court has held that, under Article 31 of the Uniform Code of Military Justice, 10 USC § 831, a sample of handwriting obtained from an accused is inadmissible in evidence against him, unless he was first advised of his right to do and say nothing. United States v Minnifield, 9 USCMA 373, 26 CMR 153; United States v Rosato, 3 USCMA 143, 11 CMR 143. After Gilbert and Wade were decided by the Supreme Court, we reaffirmed our previous determination as to the meaning of the precepts of Article 31 and reaffirmed our conclusion that the Article required the exclusion from evidence of handwriting exemplars obtained from an accused when he was not preliminarily informed of his rights. United States v White, 17 USCMA 211, 38 CMR 9.
Not every kind of criminal investigator is subject to Article 31. The language of the Article directly limits its application to persons “subject” to the Uniform Code.
Our cases identify at least two situations in which Article 31 extends to the civilian investigator. These are: (1) When the scope and character of the cooperative efforts demonstrate “that the two investigations merged into an indivisible entity,” United States v Swift, 17 USCMA 227, 232, 38 CMR 25; and (2) when the civilian investigator acts “in furtherance of any military investigation, or in any sense as an instrument of the military,” United States v Grisham, 4 USCMA 694, 697, 16 CMR 268; United States v Aau, 12 USCMA 332, 30 CMR 332; cf. United States v Holder, 10 USCMA 448, 28 CMR 14. Where the evidence presents a question of fact as to the continued independence of the civilian and military investigations that question is determinable by the court members, under appropriate instructions as to the effect of a failure to comply with Article 31. United States v Plante, 13 USCMA 266, 271-272, 32 CMR 266; United States v Murphy, 14 USCMA 535, 34 CMR 315. Cf. United States v Dicario, 8 USCMA 353, 24 CMR 163. With these principles in mind, we turn to the evidence.
As noted earlier, Secret Service Agent Primrose testified he asked OSI Agent Lohmeier for “assistance” in the investigation he was conducting into the forgery of United States Treasury checks. According to his testimony, he asked for assistance “in the apprehension [and search] of individuals who drove the car” in the Bank of Tacoma incident. Lohmeier was unavailable as a witness, but OSI Agent Mazurkiewicz, his superior officer, testified to the nature of the investigation by the military. Mazurkie-wicz said Lohmeier told him of Primrose’s request and that Primrose had provided a description of the man involved in the incident, as related by a teller of the bank, together with information about the check, including the name of Hoyer as the purported endorser. Primrose also gave Loh-meier the license number of the car used by the person who presented the check, and Lohmeier ascertained from the records at the Air Police office that the car was registered in Pinckney’s name. Sometime during the afternoon of May 9, Lohmeier and Mazurkiewicz “consulted” with the base Staff Judge Advocate. About 10:30 that night they went to Colonel Gene C. Willms, the Base Commander, apprised him of the reported attempt to cash the stolen check, and obtained written authorization to search Pinckney’s vehicle for Treasury checks not in his name and for military identification issued to Hoyer. Shortly thereafter, and before execution of the search authorization, the agents questioned Pincknéy. Advised of his rights under Article 31, Pinckney told them that he, his superior, a Sergeant Ruf-fin, and the accused were the only persons who had used his car on May 9. Ruffin was also “interview [ed].” About 1:30 a.m., the accused was called to the Air Police office, from his place of duty on the flight line, to be questioned by Lohmeier and Mazurkiewicz. Although disputed by accused at trial, there is ample evi
The questioning of the accused lasted about fifteen minutes. The agents then left the office to search Pinckney’s car. In the glove compartment, they discovered five Treasury checks, one of which was the Hill check that the accused had tried to cash at the Bank of Tacoma. The agents returned to the Air Police office and called the accused’s squadron commander, Colonel Roy S. Walser. When he arrived at the office, they informed him of the results of the investigation, including Pinckney’s statements and the accused’s admissions, and obtained authority to search the accused’s room. Accompanied by Colonel Walser, the agents, the accused, and other security personnel, proceeded to the accused’s dormitory. Before going to the accused’s room, the accused asked to speak to Lohmeier and Mazurkiewicz “away from his squadron commander.” They stepped aside, and Mazurkiewicz reminded the accused of his rights under Article 31. The accused informed them “there would be some items found in his wall locker that he found at Fox Island.” Agent Mazurkiewicz told the accused to say nothing more, and “just, honestly, walked away.” The accused’s room was searched. A number of identification cards in the name of Hoyer and Welling were found in his locker. Apparently, Colonel Walser authorized the accused’s overnight detention in a cell at the security headquarters, “pending . . . interview” by the Secret Service in the morning, It was then about 5:00 a.m., May 10.
Sometime during the morning of May 10, Agent Primrose was informed by an OSI agent that the accused was “in custody.” About 11:00 a.m., the accused was awakened and taken from the detention cell at the Air Police offices to be interviewed by Primrose. The record of the Article 32 investigation indicates the accused was advised by Agent Primrose of his right to remain silent and his right to counsel, and that no military persons were present during this interview, but none of this evidence was introduced at the trial. Pursuant to Primrose’s request the accused composed two exemplars of his handwriting on forms used by the Secret Service. On the same day, Mazurkiewicz turned over to Primrose the five checks discovered in the glove compartment of Pinckney’s car; he also gave Primrose the identification card in Hoyer’s name which had been discovered in the accused’s wall locker, but retained the identification cards in Welling’s name, which had also been found in the locker.
From the accused’s testimony, it appears that subsequent to the interview with Primrose, he was released without “any kind of restriction.” According to Primrose, he decided not to take the accused, and Pinckney, who still was a suspect, into custody because he believed they “would be available for trial” when required. On May 12, Primrose again met the accused and obtained a third handwriting exemplar. The place and circumstances of this meeting are not disclosed in the record of trial. These three exemplars, and two provided by Pinckney, were forwarded to a Treasury Department document analyst. On June 7, Primrose was informed by an Assistant United States Attorney that his office would not “take jurisdiction in this matter” because the crime “began on a military reservation,” and involved “many other things” that were “strictly” military. By this time,
Primrose testified that every action he took in the case was part of his “own independent investigation.” He maintained that, notwithstanding concurrent investigation by any other agency, his investigation was required by the Treasury Department to “determine whether or not the payee was involved and whether or not he is entitled to the issuance of a duplicate check.” A material part of his testimony on that point is as follows:
“Q Was there ever any question up until the day of this trial as to whether or not the individuals apprehended would be brought to trial in the civilian community or the military ?
“A It was not known at the time we first talked to Penn until we discussed it, I believe it was on the 7th of June, that the United States Attorney finally declined prosecution in favor of the military, but we still did not relinquish our rights in the case. We are charged with the suppression of forgery and counterfeiting of any government obligation, and regardless of what the OSI does, we never relinquished our part of reporting to the Treasury on any check that may have been forged or may have been altered. And during the course of this, numerous other checks showed where your client was involved.”
The independent nature of concurrent civilian and military investigations may be so apparent from the record as to make manifest the inapplicability of Article 31 to the civilian proceeding. United States v D’Arco, supra. Here, the chain of investigative events that led to the accused began with the Secret Service. The report of the attempt to cash a suspicious check at the Bank of Tacoma was made to the Secret Service, not to the military; and the Secret Service, not the military, determined that the cheek was one of those that had been stolen, and that the car used by the person presenting the check was owned by Pinckney, an airman at McChord. At this point, it was appropriate, and not at all unusual, for the Secret Service to request the assistance of the military in apprehending the suspects. The evidence in the record of trial demonstrates that every step taken by the military complied with military law. When the accused was questioned at the Air Police office, the military investigators fully informed him of his rights under the Constitution and the Uniform Code of Military Justice. When they desired to search the car and the accused’s room, they obtained proper authorization, which specifically enumerated the objects of the search. These circumstances compellingly indicate that the military investigators believed their procedures had to comport with military law, not the legal requirements to which the Secret Service might be subject. As far as Primrose is concerned, his testimony leaves no doubt that his investigation was entirely a Secret Service matter in regard to which the military had “no control over . . . [his] actions” at “any point in the case.” His conduct is equally indicative of the separate and independent nature of his investigation.
Testifying on the admissibility of
On the basis of the evidence before him, the law officer had ample justification to conclude, as he did, that the Secret Service investigation was independent and separate from the military investigation. It follows that, under Gilbert and Wade, both supra, Primrose could direct the accused to provide handwriting exemplars, without first warning him of his right to remain silent. The exemplars, therefore, were properly admitted in evidence. United States v D’Areo, supra.
The decision of the board of review is affirmed.
In part, trial counsel’s argument was as follows;
“The reason that the reading of rights in respect to the securing of
Since the sufficiency of the advice would present a different issue, we think it more appropriate to reach the merits of the appeal rather than return the record of trial for consideration of the limited question of whether the accused was advised of his right to remain silent and his right to counsel during interrogation by Agent Primrose. Cf. United States v DuBay, 17 USCMA 147, 37 CMR 411.
In pertinent part, Article 31, Uniform Code of Military Justice, 10 USC § 831, reads as follows:
“(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 to 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 against 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.”