Lead Opinion
Opinion of the Court
In May and July of 1988, appellant was tried by a general court-martial composed of officer and enlisted members at Fort Riley, Kansas. Contrary to his pleas, he was convicted of rape of a minor female, indecent exposure, and three specifications of committing indecent acts with several other young girls, in violation of Articles 120 and 134, Uniform Code of Military Justice, 10 USC §§ 920 and 934, respectively. He was sentenced to a dishonorable discharge, confinement for 25 years, total forfeitures, and reduction to Private El.
On December 26, 1990, this Court set aside the decision of the Court of Military Review and remanded this case for reconsideration in light of the decision of the Supreme Court in Minnick v. Mississippi,
On October 2, 1991, this Court granted appellant’s petition for further review. The issue before us now is as follows:
WHETHER THE MILITARY JUDGE ERRONEOUSLY DENIED APPELLANT’S MOTION TO SUPPRESS THE STATEMENTS OF 9, 10, AND 11 NOVEMBER 1987, TAKEN IN VIOLATION OF ARTICLE 31 AND THE CONSTITUTION.
We hold that the military judge did not err in denying appellant’s motion to suppress these pretrial statements. See generally McNeil v. Wisconsin, — U.S. -,
The facts giving rise to the granted issue are fully developed in the decisions of the Court of Military Review and need not be recounted here. We note, however, that the challenged pretrial statements directly pertained only to two of appellant’s alleged sexual offenses, i.e., the ones which occurred at Fort Riley, Kansas. Accordingly, some additional discussion of appellant’s offenses and the Government’s proof thereof is appropriate.
Appellant was found guilty, contrary to his pleas, of the following offenses: (1) committing indecent acts with Teresa (age 6) between on or about May 28, 1987, and July 31, 1987, at Manhattan, Kansas; (2) committing indecent acts with Amber (age 6) on or about August 1, 1987, at Manhattan, Kansas; (3) indecent exposure in the presence of Teresa, Sandy (age 7), and Sheila (age 5) between on or about May 28, 1987, and July 31, 1987, at the same place; and finally, (4) rape of Rebecca (age 7); and (5) committing indecent acts with Amanda (age 5) on November 7, 1987, at Fort Riley, Kansas.
At trial, all of the children, except Amber, testified against appellant, and some medical evidence was offered supporting their testimony. Additional evidence of appellant’s guilt of the Fort Riley offenses was introduced by the Government. First, there was evidence of appellant’s typewritten and signed statement to Special Agent (SA) Hayes on November 9, 1987, in which appellant stated that he mistakenly laid upon Rebecca at Fort Riley, Kansas, on the evening of November 6, 1987. In that statement, he also admitted that he was earlier investigated for having sexual relations with some other children, including a girl named Teresa, in Manhattan, Kansas. Second, there was evidence of appellant’s oral statement to another CID agent, SA Dutko, on November 10, 1987, in which appellant stated that he engaged in indecent sexual acts with Rebecca and Amanda on November 6 and 7,1987, at Fort Riley in an attempt to discover what their father purportedly did to them. Finally, there was evidence of appellant’s typewritten and signed statement to SA Hayes on November 11, 1987, recording the above-noted oral admissions.
In its remand decision, the Court of Military Review reiterated its purported
In our original opinion, we made the following findings of fact:
a. The appellant was properly advised of his rights to remain silent and to have assistance of counsel on all occasions that he was questioned by Riley County authorities. Sager,30 MJ at 782 .
b. The appellant did not invoke his right to counsel during any of the Riley County interviews. Sager,30 MJ at 784 .
c. The appellant’s attorney-client relationship with Attorney Rapp began on 10 September 1987 after the appellant’s mother retained Attorney Rapp to represent the appellant on the Manhattan incidents. The attorney-client relationship did not evolve from any invocation of rights by the appellant to civil or military authorities. Sager,30 MJ at 779, 784 .
d. The appellant was fully advised of and waived his rights each time that he was questioned by the Criminal Investigation Command (CID) during the period 8-11 November 1987. The post-polygraph examination interview on 11 November was not unwarned as it was a continuation of the prior warned interview that evening and the appellant was asked and stated that he still understood his rights as read to him earlier in the evening. Sager,30 MJ at 782 .
e. During the period 8-11 November 1987, the CID did not question the appellant on the Manhattan incidents. The appellant mentioned them and was told that they were matters under civilian jurisdiction. The questioning of the appellant during this period dealt solely with the 8 November 1987 allegations against the appellant regarding alleged sexual assaults committed by the appellant at Fort Riley, Kansas. These assaults were committed upon different children than those involved in the Manhattan incidents. Sager,30 MJ at 783 .
f. The appellant never invoked his right to remain silent or to seek the assistance of counsel at any time between his first meeting with Riley County officials on 1 August 1987 and his rendering of the last statement at issue on 11 November 1987. Sager,30 MJ at 783-784 .
g. The military did not assume active jurisdiction over the Manhattan incidents until 16 November 1987. Sager,30 MJ at 783 .
h. The appellant first requested assistance of counsel to CID on 20 November 1987 at which time the interview terminated and military counsel was provided.2 Sager,30 MJ at 781, 783 .
Our further review of the record of trial confirms these findings of fact.
INTRODUCTION
As a starting point, we note that the granted issue as framed does not fully reflect the complexity of appellant’s suppression arguments on this appeal. In his final brief, he posits at least five separate grounds for asserting inadmissibility of one or all of his pretrial statements. The development and, indeed, the somewhat belated introduction of legally distinct arguments during his appeal subsumed the initial objections made by defense counsel at trial.
Trial defense counsel had contended that appellant’s pretrial statements were inadmissible for three reasons. He asserted:
On appeal before the Court of Military Review, appellate defense counsel expanded upon the above arguments. He asserted that the challenged statements were also coerced in violation of Article 31(d), UCMJ, 10 USC § 831(d). He also contended that they were extracted by police questioning prohibited by the Supreme Court decision in Arizona v. Roberson,
After our Court remanded this case to the Court of Military Review for reconsideration in light of Minnick v. Mississippi,
Arguably, all of the above arguments fit somewhere within defense counsel’s initial objections at this court-martial. Moreover, the evidence of record is adequate to decide these questions, although neither the judge at trial nor the Court of Military Review can be faulted for failing to address specific objections not particularly raised before them. In any event, we will address appellant’s arguments in the order presented in his final brief.
I
Appellant initially attacks admission of government evidence of his pretrial statements of November 1987 on the basis that he was denied his right to effective pretrial assistance of counsel. See United States v. King,
The premise of appellant’s argument is that a servieemember is entitled to immediate representation by a military lawyer when he is under investigation by civil
We first note that appellant was being investigated by civilian police authorities on August 26, 1987, when he went to the Fort Riley Trial Defense Service. He was not then in custody, and he had not previously invoked his right to counsel when questioned by civilian police. Moreover, no formal charges had been lodged against him by civilian authorities. In these circumstances, appellant was not entitled to free legal representation under the Fifth or Sixth Amendments. See generally Moran v. Burbine,
We also note that appellant was not being investigated by military authorities on August 26, 1987, when he went to the Fort Riley Trial Defense Service. Moreover, he was not in military custody, and he did not even have occasion to invoke his right to counsel to military police. Finally, no formal charges had been lodged against him by military authorities at that time. In these circumstances, appellant was not entitled to free military legal representation under our decisions in United States v. King,
We further hold that the Uniform Code of Military Justice,
We do not find appellant’s argument based on Solorio v. United States, supra, to be persuasive in this context. That case does not concern itself with the attachment of the right to counsel; instead it deals with potential court-martial jurisdiction which still requires exercise by military authorities. Moreover, it surely did not intend to expand a servicemember’s Fifth and Sixth Amendment right to counsel beyond that noted above.
Finally, we find that the challenged pretrial statements of November 1987 do not contain inculpatory admissions concerning the Manhattan offenses for which appellant sought legal assistance at the Trial Defense Service Office. Accordingly, any error in failing to provide legal assistance to appellant on that date had no impact on his conviction of those offenses. Moreover, we are simply not persuaded that a single instance of denial of assistance of military counsel for the Manhattan offenses impermissibly chilled appellant’s decision to request military counsel 2 months later for the Fort Riley offenses. At that point he was expressly and repeatedly advised that military authorities were investigating the Fort Riley offenses and that he was entitled to counsel. Moreover, he had previously retained the services of a civilian attorney on the Manhattan offenses whom he also could have consulted. This is not the frustrated-suspect situation referred to in United States v. King and United States v. Tempia, both supra, see
II
Appellant next contends that his challenged pretrial statements were tainted by his illegal arrest on November 8, 1987, and that his subsequent incriminating statements should be suppressed. See generally Wong Sun v. United States,
Appellant concedes that the totality-of-the-circumstances test is the proper approach for determining the lawfulness of Mrs. Sager’s consent. Schneckloth v. Bustamonte,
We have found no per se rule invalidating consent on the above grounds. Moreover, we do not have any basis for concluding that the Court of Military Review ignored these circumstances in its analysis of this issue. See generally United States v.
Ill
Appellant’s next argument supporting suppression is that the challenged statements were unlawfully taken from him after he invoked his right to counsel as guaranteed by the Fifth Amendment. See Minnick v. Mississippi,
A similar argument was entertained and rejected by the Supreme Court in McNeil v. Wisconsin, — U.S. -,
A question remains whether appellant’s November 8 notice to SA Hayes of his representation by civilian counsel concerning the Manhattan offenses constituted invocation of his Fifth Amendment right to counsel during his questioning on the Fort Riley offenses. See McNeil v. Wisconsin, supra. We think not. This statement was not proffered by appellant in response to his advisement of his right to consult counsel. Instead, it was a spontaneous and unsolicited disclosure by appellant during a background inquiry by SA Hayes. Accordingly, we conclude along with the Eleventh Circuit that reference to representation in another matter did not even equivocally invoke a suspect’s right to counsel under Miranda. Delap v. Dugger,
IV
The next issue in this case particularly concerns appellant’s post-polygraph oral statement to SA Dutko on November 10, 1987. Appellant asserts that he unequivocally invoked his right to remain silent prior to these admissions and that therefore they were inadmissible under the decision of the Supreme Court in Miranda v. Arizona,
The Supreme Court in Miranda v. Arizona, supra, made clear the procedure to be followed by law enforcement officers when a suspect in custody exercises his right to remain silent. Chief Justice Warren wrote:
Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked.
Turning to appellant’s claim, we conclude that it fails for several reasons. First, appellant was arguably not in custody at the time of his post-polygraph interview, and thus the Miranda invocation-of-silence rule did not even apply to him. See Jacobs v. Singletary,
Second, assuming SA Dutko’s conduct as a whole constituted custody within the meaning of Miranda, appellant did not unequivocally assert his right to silence. He did not say that he wished to remain silent, and in fact he initially declined to assert that right. Admittedly, in the midst of a heated argument with his questioner, he got up from the table, opened the door, and threatened to leave the room. However, such conduct can be rationally viewed as constituting no more than a mere ploy on appellant’s part to convince the agent of his innocence or sincerity. See United States v. Jones,
Finally, assuming appellant’s conduct at least equivocally invoked his right to silence, we conclude that SA Dutko’s statement concerning the probability of future prosecution can be reasonably construed as an attempt to clarify appellant’s intention concerning his rights. See Delap v. Dugger,
V
The next question we will address is whether appellant’s typewritten and signed statement to SA Hayes on November 11, 1987, should have been suppressed under Miranda v. Arizona, supra. Appellant notes that the Court of Military Review ignored the uncontroverted fact that appellant concluded his interview on November 10, 1989, with SA Dutko by invoking his right to silence. Accordingly, he asserts that SA Hayes’ subsequent continuation of this interview including preparation of the typewritten statement on November 11, 1987, violated Michigan v. Mos
Again, we note that appellant’s claims based on Miranda and its progeny must be predicated on a finding of custody at the time of the suspect’s unlawful questioning. However, SA Dutko’s testimony established that, prior to the interview, he advised appellant that he was free to go at any time. Moreover, we are not convinced that the mere typing and securing of appellant’s signature concerning his prior admissions can be likely perceived as interrogation for purposes of Miranda. See generally Pennsylvania v. Muniz,
In any event, the typewritten statement of appellant’s admissions dated November 11, 1987, was clearly cumulative of appellant’s earlier oral admissions to Agent Dutko as witnessed by Agent Hayes. Accordingly, harmless error, if any error, occurred in admission of this evidence. See Arizona v. Fulminante, 499 U.S.-,
VI
The final question we must address is whether admission of appellant’s November 11 pretrial statement was barred by MiLR.Evid. 305(e). Appellant asserts that both SA Dutko and SA Hayes knew that appellant was represented by a civilian counsel for the Manhattan offenses prior to the making of the November 11 statement. He also asserts that SA Dutko had earlier asked at least one question about the Manhattan offenses and probably more went unrecorded. Finally, he contends that SA Hayes’ conduct on November 20, 1987, in attempting to question him without notifying his counsel demonstrated an overall intentional disregard for his civilian defense counsel.
McNeil v. Wisconsin, — U.S. -, -,
(e) Notice to counsel. When a person subject to the code who is required to give warnings under subdivision (c) intends to question an accused or person suspected of an offense and knows or reasonably should know that counsel either has been appointed for or retained by the accused or suspect with respect to that offense, the counsel must be notified of the intended interrogation and given a reasonable time in which to attend before the interrogation may proceed.
(Emphasis added.) Accordingly, military police investigators normally would not be required by the Constitution or the Manual to contact civilian counsel as a result of appellant’s retention of a lawyer on other offenses. See United States v. Spencer,
The remainder of appellant’s complaint is also without merit. We note that it is based in part on speculation that the military police investigators probably asked additional questions on the Manhattan offenses. We cannot entertain such an extra-record premise. See generally Art. 67, UCMJ, 10 USC § 867. Moreover, it also suggests that the agent’s knowledge and appellant’s comment on his previous investigation concerning the Manhattan offenses somehow merged or linked the two sets of crimes for purposes of Mil.R.Evid. 305(e). Such an argument is unsupported as a matter of law. Finally, he admits that his post-statement interview on November 20, 1987, was properly terminated in accord with his exercise of his right to counsel without any incriminating admissions. An egregiousgovemment-misconduct claim cannot be sustained in this context. See generally United States v. Luttrell,
In sum, appellant’s statements were properly found to be voluntary and admissible by the military judge and the Court of Military Review.
The decision of the United States Army Court of Military Review is affirmed.
Notes
. A post-trial session was held by the military judge on September 24, 1988. See Art. 39(a), Uniform Code of Military Justice, 10 USC § 839(a). He invited counsel for both sides to submit matters to him with respect to the decision of the Supreme Court in Arizona v. Roberson,
. What a suspect was told by police and what he said and did in response thereto are questions of fact for the factfinder at trial and for the Court of Military Review with its unique fact-finding power. Whether the police conduct or an accused’s response met the requirements of Miranda v. Arizona,
. We note that at the time of the 20 November 1987 interview military authorities, and particularly CID personnel, were on notice that Attorney Rapp was representing the appellant on both the Manhattan incidents and the military charges. Therefore, the 20 November interview should never have been started without prior notice to Attorney Rapp pursuant to Manual for Courts-Martial, United States, 1984, Military Rule of Evidence 305(e). We further note however that the 20 November 1987 interview was not at issue at trial nor is it at issue before this court. No information was gained from the interview as it was terminated immediately after it began. We find this error to have had no impact on the admissibility of the appellant's statements of 8-9 and 10-11 November and to have caused no prejudice to the appellant’s case.
. Trial defense counsel as part of his unlawful-coercion argument did assert that military police investigators ignored appellant’s attempt to stop his interview on November 10, 1987.
. See n.l, supra.
. Article 27, UCMJ, 10 USC § 827, states, inter alia:
(а) (1) Trial counsel and defense counsel shall be detailed for each general and special court-martial. Assistant trial counsel and assistant and associate defense counsel may be detailed for each general and special court-martial. The Secretary concerned shall prescribe regulations providing for the manner in which counsel are detailed for such courts-martial and for the persons who are authorized to detail counsel for such courts-martial.
(Emphasis added.)
. ROM 502(d)(6), Manual for Courts-Martial, United States, 1984, similarily states:
(б) Duties of defense and associate or assistant defense counsel. Defense counsel shall represent the accused in matters under the code and these rules arising from the offenses of which the accused is then suspected or charged. Under the supervision of the defense counsel an associate or assistant defense counsel may perform any act or duty which a defense counsel may perform under law, regulation, or custom of the service.
(Emphasis added.)
. Paragraph 6-3, AR 27-10 (22 Dec.l989)-Legal Services, Military Justice provides:
h. Trial defense counsel. A trial defense counsel is a JA [judge advocate], certified under Article 27(b), UCMJ, whose primary duties are to represent soldiers in courts-martial, administrative boards, and other proceedings and act as consulting counsel as required by law or regulations. Trial defense counsel perform other defense-related duties as prescribed by the Chief, USATDS.
(Emphasis added.)
Paragraph l-5(d), U.S. Army Trial Defense Service [USATDS]: Standard Operating Procedures, provides:
d. Limitations.
(2) USATDS counsel will provide representation or counseling only when authorized by Army Regulation or directed by the Chief, USATDS. The following services will not be provided either by USATDS counsel, or their support personnel, except with the specific approval of the Chief, USATDS or, in Europe, at the SRDC:
(a) Counseling with regard to summarized Article 15, UCMJ, proceedings;
(b) Representation at formal Article 15, UCMJ, hearings; and,
(c) Representation at summary courts-martial.
(3) Representation of clients before civilian courts or grand juries will not be undertaken by counsel assigned to USATDS. Military personnel who are charged or indicted by civilian authorities are not normally entitled to TDS representation.
(a) Advice to clients under investigation by the Department of Justice (DOJ) will not be undertaken by TDS counsel unless DOJ and DA have concurrent jurisdiction. If DA has no jurisdiction, no representation or advice is authorized. In cases of concurrent DOJ/DA jurisdiction, representation and ad*143 vice will be limited to that required to protect the client from pending or potential judicial, nonjudicial or adverse administrative actions within DA. TDS counsel will not provide advice to clients concerning any concurrent civilian court or grand jury proceedings.
(b) Exceptions to this policy can only be granted by The Judge Advocate General. Requests for exception will be sent, in writing, through the Chief, TDS to The Judge Advocate General.
(Emphasis added.)
Concurrence Opinion
(concurring in the result):
I agree with the result reached in the majority opinion but write separately to clarify several matters concerning the Miranda doctrine; Art. 31(b), Uniform Code of Military Justice, 10 USC § 831(b); and the Sixth Amendment right to counsel. Although those clarifications do not change the result in this case, they could have a significant impact on the application of corresponding law and ensuing requirements to the facts of future cases. Thus I shall discuss the Miranda doctrine, Art. 31(b), and the Sixth Amendment right to counsel in turn.
In Miranda v. Arizona,
the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant, unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination____ Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed____ If, however, he [the defendant] indicates in any manner*148 and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him.
(Emphasis added.)
Contrary to the implication by the majority,
Concerning invoking the right to silence, Miranda overlaps with Article 31(b). Article 31(b) provides:
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.
The right-to-silence component of Article 31(b) is different from the right-to-silence element of Miranda because Miranda is only triggered when there is a custodial interrogation. The right to silence under Article 31(b), however, is triggered when the individual is a suspect. Thus, it is incomplete to discuss the right to silence in the military only in terms of custodial interrogations.
When a suspect unequivocally invokes “in any manner” his or her right to silence or his or her right to counsel, all questioning must cease. Miranda v. Arizona,
When the assertion of a right is equivocal, the agent must either cease the interrogation or clarify the assertion. See, e.g., United States v. DeChamplain, 22 USC-MA 150,
Lastly, the majority appears to confuse the Fifth Amendment right to counsel as set forth in Edwards v. Arizona,
The Court distinguished Roberson in McNeil v. Wisconsin, [— U.S.-]111 S. Ct. 2204 [115 L.Ed.2d 158 ] (1991) when it held that an invocation of Sixth Amendment rights was “offense-specific” and that the police could therefore initiate questioning on crimes other than the crime with which the defendant was charged.
S. Saltzburg & D. Capra, American Criminal Procedure, Cases and Commentary 548 (4th ed. 1992).
. This opinion was filed after release of the majority opinion in order to permit further consideration of the issues that was not possible during the closing days of the term of Court. It was circulated to the other judges on October 6, 1992.
. As Professors LaFave and Israel state:
And in any event, because the Sixth Amendment right is "offense-specific" and "cannot be invoked once for all future prosecutions,” it follows that "its Michigan v. Jackson [475 U.S. 625 ,106 S.Ct. 1404 ,89 L.Ed.2d 631 (1986)] effect of invalidating subsequent waivers in police-initiated interviews is offense-specific.” This means, for example, that if a defendant exercises his Sixth Amendment right when brought into court on an armed robbery charge, that is no bar to subsequent police-initiated questioning about an unrelated murder.
[T]he Court later [so] held in McNeil v. Wisconsin, reasoning that invocation of the Sixth Amendment interest does not also constitute
*149 invocation of Miranda as to other, uncharged offenses, for a defendant "might be quite willing to speak to the police without counsel present concerning many matters, but not the matter under prosecution.” W. LaFave & J. Israel, Criminal Procedure 310 (footnotes omitted), 342 (footnote omitted) (2d ed. 1992).
Concurrence Opinion
(concurring):
I write only to add a dimension to the discussion in Part VI of the majority opinion regarding appellant’s claimed violation of Mil.R.Evid. 305(e), Manual for Courts-Martial, United States, 1984.
As that opinion points out, Mil.R.Evid. 305(e) is “ ‘offense specific’ ” in that its notice requirement kicks in only when the suspect has counsel “with respect to that offense____”
Granted there is some similarity in the nature of the two groups of offenses, since both involve child sexual abuse. I do note, though, that one of the Fort Riley offenses was rape, a sex crime markedly more serious than committing indecent acts or indecent exposure, which were the subjects of all Manhattan charges, as well as the other Fort Riley charge. More significantly, the two sets of crimes involved different victims, different places (the Manhattan civilian community and the Fort Riley military community), and different time frames (the Manhattan offenses being grouped between May 28 and July 31, as well as August 1, 1987, while the Fort Riley offenses both occurred several months later on November 7, 1987).
Under these circumstances, I am satisfied that the Manhattan offenses were not related to the Fort Riley offenses for purposes of MiLR.Evid. 305(e), so I concur in the majority opinion.