                            UNITED STATES, Appellee

                                            v.


                  Michael W. CATRETT, Jr., Senior Airman
                         U.S. Air Force, Appellant


                                     No. 01-0042


                              Crim. App. No. 33133

        United States Court of Appeals for the Armed Forces

                             Argued April 25, 2001

                          Decided September 19, 2001

SULLIVAN, J., delivered the opinion of the Court, in which GIERKE
   and EFFRON, JJ., joined. CRAWFORD, C.J., filed an opinion
   concurring in part and in the result. BAKER, J., filed an
          opinion concurring in part and in the result.

                                        Counsel

For Appellant:  Major Natasha V. Wrobel, USAFR (argued); Colonel James R.
    Wise, Lieutenant Colonel Timothy W. Murphy, and Major Maria A. Fried (on
    brief).



For Appellee:  Lieutenant Colonel Karen L. Manos, USAFR (argued); Colonel
    Anthony P. Dattilo, and Major Lance B. Sigmon (on brief); Captain James
    C. Fraser.



Military Judge:   Amy M. Bechtold

            THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
United States v. Catrett, 01-0042/AF


    Judge SULLIVAN delivered the opinion of the Court.

    During late 1997, appellant was tried by a general court-

martial composed of officer and enlisted members at Cannon Air

Force Base, New Mexico.   Contrary to his pleas, he was found

guilty of aggravated assault and wrongfully damaging an

automobile, in violation of Articles 128(b)(2) and 109, Uniform

Code of Military Justice, 10 USC §§ 928(b)(2) and 909,

respectively.   On December 18, 1997, he was sentenced to a bad-

conduct discharge, confinement for 11 months, forfeiture of

$300.00 pay per month for 11 months, and reduction to airman

basic.   The convening authority approved this sentence, except

for confinement exceeding 8 months, on March 2, 1998.    The Court

of Criminal Appeals affirmed the findings of guilty and the

approved sentence on August 16, 2000.


    On February 6, 2001, this Court granted review on the

following issues:

           I. WHETHER THE MILITARY JUDGE ERRED TO
           THE SUBSTANTIAL PREJUDICE OF APPELLANT IN
           DENYING DEFENSE COUNSEL’S MOTION TO
           SUPPRESS STATEMENTS MADE BY APPELLANT AND
           EVIDENCE DERIVED FROM THOSE STATEMENTS.

           II. WHETHER THE MILITARY JUDGE ERRED TO
           THE SUBSTANTIAL PREJUDICE OF APPELLANT IN
           ALLOWING OPINION TESTIMONY IN REBUTTAL ON
           THE MERITS REGARDING APPELLANT’S MILITARY
           CHARACTER WITHOUT PROPER FOUNDATION.

           III. WHETHER THE STAFF JUDGE ADVOCATE
           ERRED IN FAILING TO RESPOND TO LEGAL
           ERRORS SUBMITTED BY THE DEFENSE TO THE
           STAFF JUDGE ADVOCATE RECOMMENDATION.

We resolve these issues in the Government’s favor and affirm the

decision of the Court of Criminal Appeals.


                                 2
United States v. Catrett, 01-0042/AF



    The Court of Criminal Appeals found the following facts

pertinent to the above issues:
                         I.   Background

            The appellant was deployed from Cannon
          Air Force Base (AFB), New Mexico, to Saudi
          Arabia from 6 May 1997 to 11 July 1997.
          During this deployment, the appellant
          asked his best friend, Airman First Class
          (A1C) Walker, to look after his wife.
          Within weeks, A1C Walker and Mrs. Catrett
          began a sexual affair. The relationship
          continued until shortly before the
          appellant returned home. On 25 July 1997,
          the appellant, his wife, and A1C Walker
          were at the appellant’s house in Clovis,
          NM. Mrs. Catrett proceeded to tell the
          appellant that she was unhappy and was
          leaving him. The appellant became upset
          and asked if she wanted to leave him
          because of A1C Walker. An argument then
          ensued between the appellant and A1C
          Walker. Shortly thereafter, the appellant
          struck A1C Walker in the back of the head
          with an object, knocking him onto a couch,
          and began striking him on his head and
          body with a rawhide dog bone, a brass
          sailfish statue, and his fists. The
          appellant also bit A1C Walker on his head
          and body and gouged A1C Walker’s eyes with
          his fingers. At this point, the
          appellant’s mother, who lived with the
          appellant, stopped the fight; however, the
          appellant indicated he intended to “finish
          this tonight.” A1C Walker, fearing that
          the appellant might attack him again, fled
          the house. Within seconds of A1C Walker’s
          departure, Mrs. Catrett fled the house and
          accompanied A1C Walker to the nearby
          residence of SSgt [Staff Sergeant] R.

                              *   *       *

                  A.   Statements by the Wife

            After leaving the appellant’s house, A1C
          Walker and Mrs. Catrett ran to SSgt R’s
          apartment. Once inside, A1C Walker phoned
          the Clovis Police Department and reported
          that he had been assaulted. Upon the
          arrival of the police, A1C Walker


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United States v. Catrett, 01-0042/AF


          explained to the police what had happened.
          During this discussion, Mrs. Catrett was
          about 5 to 7 feet away from A1C Walker and
          the police. Shortly after the police
          arrived, paramedics came to the apartment,
          examined A1C Walker, and took him to the
          local hospital. Just before A1C Walker
          left for the hospital, Mrs. Catrett told
          one of the responding police officers,
          Officer S, that after she told the
          appellant she did not want to be with him
          anymore, the appellant got a gun and hit
          A1C Walker with it. Both SSgt R and
          Officer S testified that while at the
          apartment, Mrs. Catrett was excited,
          frantic, and appeared afraid. She
          repeatedly asked what was she going to do.
          Thereafter, Mrs. Catrett left SSgt R’s
          apartment with Officer S in a police
          vehicle and went to the appellant’s
          residence.

            Upon arrival at the residence, while
          still in the police vehicle, Mrs. Catrett
          told Officer S that she was not having an
          affair with A1C Walker, that she still
          loved her husband, and had been with him
          since she was 13 years old. While in the
          car, Mrs. Catrett was still afraid and
          continued to be concerned with the
          consequences of what had happened. After
          this brief conversation, Officer S took
          Mrs. Catrett to the police station to
          obtain a written statement from her.
          Prior to taking her statement, Officer S
          informed her that she would have to sign
          the statement under oath, and that it
          would be used as evidence of what happened
          that night. At this point, Mrs. Catrett
          said she could not write, was scared,
          shaking and could not hold a pen. Officer
          S told her he would write the statement
          for her if she would relate to him what
          happened. She stated that after getting
          back from the party, she told her husband
          she was going to leave him. The appellant
          became furious, ran to their bedroom, and
          returned with a gun. After the appellant
          pushed her out of the way, the appellant
          and A1C Walker began to fight. She ran in
          and out of the room a number of times. At
          one point, she saw the appellant hit A1C
          Walker with a rawhide dog bone. After a
          few minutes the fight stopped, and she saw


                                4
United States v. Catrett, 01-0042/AF


          that A1C Walker was bleeding. The
          appellant then stated he was going to get
          another gun and this is when she and A1C
          Walker ran from the house. After giving
          this statement to Officer S, Mrs. Catrett
          was crying and was concerned about where
          she would go. After writing the
          statement, Officer S took Mrs. Catrett to
          Detective S in order to have him notarize
          the statement. When Detective S met with
          Mrs. Catrett, she was still emotionally
          upset. She was crying and nervous. At
          this time, Detective S felt that Mrs.
          Catrett was too upset to sign her
          statement in front of a notary and decided
          to let her leave the police station. She
          returned later that morning and stated
          that she did not want to sign the
          statement. She told Detective S that she
          had nowhere to go, no one to be with, and
          did not want to get her husband into any
          other trouble because she could only live
          in Clovis with him.

            During the period 24 September 1997 to 3
          December 1997, Mrs. Catrett provided one
          oral statement and one written, sworn
          statement to the appellant’s defense team
          in which she stated that her statements to
          the local police authorities were false
          and denied the allegations against her
          husband. Additionally, in between her
          statements to the defense, she provided a
          written, sworn statement to the Cannon Air
          Force Base Office of Special
          Investigations (AFOSI) in which she
          reaffirmed the statements she made to the
          local police authorities on 25 July 1997.
          Finally, at trial, Mrs. Catrett asserted
          her privilege not to testify against her
          husband.

                            *   *       *

          B.   The Appellant’s Admissions to Civilian
                             Police

            After talking with A1C Walker at SSgt
          R’s apartment, three police officers went
          to the appellant’s residence. At the time
          the police entered the appellant’s
          residence, they were aware of the
          allegation that the appellant had
          assaulted A1C Walker with a handgun and


                                    5
United States v. Catrett, 01-0042/AF


          considered him a suspect. Upon entering
          the residence, Officer M patted the
          appellant down and found a knife.
          Further, Officer M saw blood on the walls,
          floor, and couch and noticed that the
          appellant exhibited no injuries. Officer
          M informed the appellant they were
          responding to an assault complaint and
          asked the appellant what happened. The
          appellant informed the police that his
          wife had had an affair with A1C Walker.
          At this point the appellant began to get
          agitated and was advised to remain calm.
          The appellant was then informed that a
          handgun was allegedly used in the assault.
          After denying that a gun was used, the
          appellant consented to a search of his
          residence.

            At one point during the search, the
          appellant, accompanied by Officer L, went
          to the kitchen to get a Popsicle. The
          appellant was then told that he needed to
          either remain in the living room or have
          an officer accompany him if he left the
          room. Thereafter, Officer A remained with
          the appellant in the living room.
          Additionally, while the search was still
          on-going, the appellant talked with his
          mother, who resided with him, and talked
          with his father on the telephone. At no
          time did the police attempt to interfere
          with these conversations.

            During the search, Officer M found a gun
          holster but no handgun. After finding the
          gun holster, Officer M went back to the
          living room and again asked the appellant
          what happened. At this point, Officer M
          noticed a rawhide dog bone on the floor
          with blood on it. He asked the appellant
          if he had hit A1C Walker with the bone.
          The appellant responded that he had.
          Officer M then reiterated to the appellant
          that “apparently a gun was involved.” The
          appellant responded that there was no gun,
          that he hit A1C Walker with the dog bone,
          and that he had also hit A1C Walker with a
          brass sailfish statue, which was located
          on a stereo. The dog bone and sailfish
          were later seized by Detective S who
          arrested the appellant and took him to the
          police station where, for the first time,
          he was read his Miranda warnings. The


                                6
United States v. Catrett, 01-0042/AF


          appellant declined to make a statement and
          requested a lawyer.

            While at his residence, the appellant
          was never told he was under arrest nor was
          he handcuffed. Although the appellant was
          never told he could not leave the
          premises, Officer M testified that the
          appellant was not free to leave the
          premises and would have been stopped if he
          tried. Officer M stated that while the
          appellant was detained, he was not in
          custody. Officer M explained that an
          individual who was detained, although not
          free to leave, was not handcuffed.
          However, a person in custody, although not
          free to leave, was handcuffed. Officer
          M’s intent in detaining the appellant was
          to secure the crime scene, secure any
          weapons for the officers’ safety, and to
          ask preliminary questions to get an idea
          of what happened. Officer M stated that
          the decision to place the appellant in
          custody was to be made by Detective S.

Unpub. op. at 2-6 (emphasis added).

                                 I

    The first question before us is whether the trial judge erred

in denying the defense motion to suppress appellant’s statements

to civilian police and any evidence derived therefrom.   See

Miranda v. Arizona, 384 U.S. 436 (1966).   Appellant contends that

the judge erred in concluding that he was not in custody when

questioned by civilian police in his apartment.   He further

argues that the Court of Criminal Appeals erred when it found

that his in-custody questioning was justified under the “public

safety” exception to Miranda recognized in New York v. Quarles,

467 U.S. 649, 655 (1984).   Finally, he broadly asserts that the

recent decision of the Supreme Court in Dickerson v. United

States, 530 U.S. 428 (2000), invalidated the “public safety”

exception to Miranda.


                                 7
United States v. Catrett, 01-0042/AF



    Initially, we note our agreement with the Court of Criminal

Appeals (CCA) that appellant was in custody when questioned by

civilian police in his apartment on July 25, 1997.    It said:

            After reviewing the evidence, we
          disagree with the military judge and
          conclude the appellant was in custody once
          the police told him he was not free to
          leave the living room unless a police
          officer accompanied him. After receiving
          this instruction the appellant never left
          the living room until he was taken to the
          police station. While the appellant was
          in the living room, there was always a
          police officer present to control his
          movements. Therefore, from that time on,
          the appellant was under constant police
          supervision. According to Officer M’s
          testimony, the appellant was under
          detention, was not free to leave, and
          would have been stopped if he attempted to
          do so.

            Based upon these factors, we find that a
          reasonable person, finding themselves in
          like circumstances, would conclude they
          were not free to leave the control of the
          police. In this regard, we find the facts
          present in this case are not unlike those
          found in Orozco v. Texas, 394 U.S. 324
          (1969).

Unpub. op. at 7.   This is a de novo question of law to be decided

on the basis of facts found by the factfinder (the CCA) (see

Thompson v. Keohane, 516 U.S. 99, 112-13 (1995)).    We likewise

conclude that Orozco v. Texas, supra, is persuasive authority.

See New York v. Quarles, 467 U.S. at 659 n.8.


    Our next concern is whether appellant’s questioning in

custody without the required Miranda warning was nonetheless

justified by “the public safety exception” to Miranda recognized

in New York v. Quarles, supra at 655.   See also United States v.



                                 8
United States v. Catrett, 01-0042/AF


Loukas, 29 MJ 385, 389 (CMA 1990).    The Court of Criminal Appeals

held that Quarles was applicable in this case:


            Although we find the appellant was in
          custody, his Miranda rights were not
          violated. Prior to arriving at the
          appellant’s residence, Officer M was
          informed that a gun was used in the
          assault. Upon entering the residence, he
          was concerned with locating the gun
          because of officer safety concerns. This
          was evident by his telling the appellant
          to keep his hands where he could see them
          and by his search of the appellant’s
          person and seizure of the knife. His
          latter [sic] discovery of the empty gun
          holster only added to his concerns about a
          gun. His questioning of the appellant was
          directly attributable to his desire to
          locate the gun and secure it. It was
          while asking the appellant further
          questions about the gun that Officer M
          noticed the rawhide dog bone with blood on
          it in plain view. Officer M asked the
          appellant if he hit A1C Walker with the
          bone. When the appellant replied that he
          had, Officer M, still worried about the
          gun, specifically said to the appellant,
          “Apparently a gun was involved.” The
          appellant then reiterated that no gun was
          involved because he hit A1C Walker with
          the dog bone and the brass sailfish.
          These admissions were directly related to
          Officer M’s attempts to locate the gun
          because of his concern for the safety of
          the police officers at the appellant’s
          residence. Accordingly, the public safety
          exemption [sic] to the Miranda warnings as
          announced by the Supreme Court in Quarles
          is applicable to this case and the
          appellant’s admissions; the rawhide dog
          bone and the brass sailfish were properly
          admitted into evidence.

Unpub. op. at 8-9 (emphasis added).


    Appellant disagrees and asserts: “Officer [M] interrogated

the Appellant not to secure the safety of any police officer or




                                9
United States v. Catrett, 01-0042/AF


the public but simply to obtain a confession.”    Final Brief at

14.


      The Supreme Court in New York v. Quarles, 467 U.S. at 657-58,

recognized a narrow exception to the Miranda-warnings’

requirement with respect to questioning a suspect in custody.      It

said:

              The police in this case, in the very act
            of apprehending a suspect, were confronted
            with the immediate necessity of
            ascertaining the whereabouts of a gun
            which they had every reason to believe the
            suspect had just removed from his empty
            holster and discarded in the supermarket.
            So long as the gun was concealed somewhere
            in the supermarket, with its actual
            whereabouts unknown, it obviously posed
            more than one danger to the public safety:
            an accomplice might make use of it, a
            customer or employee might later come upon
            it.

              In such a situation, if the police are
            required to recite the familiar Miranda
            warnings before asking the whereabouts of
            the gun, suspects in Quarles’ position
            might well be deterred from responding.
            Procedural safeguards which deter a
            suspect from responding were deemed
            acceptable in Miranda in order to protect
            the Fifth Amendment privilege; when the
            primary social cost of those added
            protections is the possibility of fewer
            convictions, the Miranda majority was
            willing to bear that cost. Here, had
            Miranda warnings deterred Quarles from
            responding to Officer Kraft’s question
            about the whereabouts of the gun, the cost
            would have been something more than merely
            the failure to obtain evidence useful in
            convicting Quarles. Officer Kraft needed
            an answer to his question not simply to
            make his case against Quarles but to
            insure that further danger to the public
            did not result from the concealment of the
            gun in a public area.




                                 10
United States v. Catrett, 01-0042/AF


              We conclude that the need for answers to
            questions in a situation posing a threat
            to the public safety outweighs the need
            for the prophylactic rule protecting the
            Fifth Amendment’s privilege against self-
            incrimination. We decline to place
            officers such as Officer Kraft in the
            untenable position of having to consider,
            often in a matter of seconds, whether it
            best serves society for them to ask the
            necessary questions without the Miranda
            warnings and render whatever probative
            evidence they uncover inadmissible, or for
            them to give the warnings in order to
            preserve the admissibility of evidence
            they might uncover but possibly damage or
            destroy their ability to obtain that
            evidence and neutralize the volatile
            situation confronting them.

(Emphasis added.)



    In appellant’s case the civilian police were responding to a

domestic-assault complaint in which a gun was reportedly

involved.   See United States v. Simpson, 974 F.2d 845, 847 (7th

Cir. 1992), cert. denied, 507 U.S. 936 (1993).     Although

appellant denied using a gun, an empty holster was also found

during a search of appellant’s apartment before the challenged

questioning.   See New York v. Quarles, supra at 657.    Finally,

the questions asked by the police, although phrased in terms of

the cause of the reported assault, were found by the judge to be

legitimate attempts by police to locate the still-missing gun.

(R. 138)    Compare United States v. Williams, 181 F.3d 945, 953
(8th Cir. 1999), with Quarles, supra at 659 n.8.    We agree with

the appellate court below that the public-safety exception to

Miranda applied in these circumstances.   See generally United

States v. Loukas, 29 MJ at 389.



                                  11
United States v. Catrett, 01-0042/AF



    Our final inquiry on this granted issue is whether the recent

decision of the Supreme Court in Dickerson v. United States, 530

U.S. 428 (2000), undermined the public-safety exception to

Miranda as contended by Judge Young at the service court below.

Unpub. op. at 11.    The basic argument is that, although

exceptions to the court-made exclusionary rule may be carved out

by the Supreme Court, exceptions to a constitutionally based rule

against coerced confessions may not.    See 530 U.S. at 452-53

(Scalia, J., dissenting).    Chief Justice Rehnquist, writing for

the majority in Dickerson v. United States, supra at 441,

rejected this argument (“no constitutional rule is immutable”)

and so do we.


    Regardless of the impact, if any, of Dickerson upon Quarles,

we still would find any Miranda violation in this case harmless

beyond a reasonable doubt.    See Arizona v. Fulminante, 499 U.S.

279, 295 (1991).    In response to the challenged questioning by

civilian police, appellant admitted to civilian police that he

hit A1C Walker with a dog bone and a sailfish statue.    However,

the alleged victim testified in this case that appellant so

assaulted him.   Moreover, evidence of statements made by

appellant’s wife, an eyewitness, to the same effect were admitted

in this case.    Finally, the bloodied dog bone, which was admitted

as evidence in this case, was discovered in plain view in

appellant’s apartment before he made the challenged incriminating

admissions.




                                 12
United States v. Catrett, 01-0042/AF



                                 II

    The second question presented in this appeal is whether the

military judge erred in allowing a civilian landlord to testify

to appellant’s poor military character.    See generally Mil. R.

Evid. 404(a)(1), Manual for Courts-Martial, United States, 1984.

Previously, the defense had called two senior enlisted military

members during its case-in-chief to testify to appellant’s good

military character. (R. 367-72; 377-80)    The defense offered this

evidence to support its contention that appellant did not commit

the charged offenses.    See United States v. Piatt, 17 MJ 442,

445-46 (CMA 1984).    The Government offered the challenged

testimony of the landlord to rebut the defense evidence of good

military character, and the defense objected based on this

witness’ qualifications to provide such testimony. (R. 385)


    Mil. R. Evid. 405(a) provides:

          Rule 405.    Methods of proving character
            (a) Reputation or opinion. In all
          cases in which evidence of character or a
          trait of character of a person is
          admissible, proof may be made by testimony
          as to reputation or by testimony in the
          form of an opinion. On cross-examination,
          inquiry is allowable into relevant
          specific instances of conduct.

(Emphasis added.)



    In United States v. Toro, 37 MJ 313, 317 (1993), cert.

denied, 510 U.S. 1091 (1994), this Court commented on the

foundation required before such opinion evidence is admitted at a

court-martial:


                                 13
United States v. Catrett, 01-0042/AF



          To lay a proper foundation for opinion
          evidence, the proponent must show that the
          character witness personally knows the
          witness and is acquainted with the witness
          well enough to have had an opportunity to
          form an opinion of the witness’ character
          for truthfulness. In United States v.
          Perner, 14 MJ 181, 184-85 (CMA 1982), this
          Court held that an enlisted psychiatric
          technician who “had seen” the accused’s
          “wife professionally” on three occasions
          did not enjoy a sufficiently close
          relationship to express an opinion as to
          untruthfulness.

Appellant argues that Mr. Graham, appellant’s civilian landlord,

was not qualified to offer an opinion on his military character.

(R. 385-87)   See also United States v. Jenkins, 27 MJ 209 (CMA

1988).


    The military judge is charged with deciding whether a party

has established a sufficient foundation for admission of opinion

evidence concerning a person’s character.   See generally Mil. R.

Evid. 104(a).   She has considerable discretion in this regard.

See United States v. Breeding, 44 MJ 345, 351 (1996) (and cases

cited therein).   For several reasons, we conclude that the

military judge did not abuse this discretion in permitting Mr.

Graham, a civilian, to testify about appellant’s military
character.    Cf. id. at 348-51.


    The record in this case shows that Mr. Graham was a civilian

who had not previously served in the military. (R. 403)   However,

it also shows that his father had been in the military, and he

grew up on the “civil service side” of the military community.




                                   14
United States v. Catrett, 01-0042/AF


(R. 405)   Moreover, Mr. Graham did have regular contact with the

military and its personnel in various capacities.    He testified:



           Q: And do you belong to any organizations
           in Clovis?

           A: Several. I belong to the Chamber of
           Commerce. I belong to the Air Force Armed
           Services Committee. I belong to a church
           organization, Rotary, and Lions Club.

           Q: Professionally, what kind of
           interaction do you have with Cannon Air
           Force Base?

           A: Professionally, of course, involved
           with the chamber. We do a lot of events
           that involve -- community service type
           events that involve the community. I
           participate in a lot of the events that
           involve change of command. Of course, we
           attend those. Some of the social
           functions out here. I have a very strong
           involvement with the Cannon Air Force Base
           housing office, with us leasing to
           virtually hundreds of tenants every year.
           We deal with them on a daily basis. We
           have dealt with -- I have been on some
           strategic planning committees that involve
           the base commander and wing commander in
           reference to housing needs in the Clovis
           market during the years of Cannon’s
           expansion and reorganization. So I’ve
           served on a lot of those committees.
           Basically -- a lot of involvement, of
           course, with the legal office, helping
           people review their leases and go over
           information, and things like that over the
           years.

           Q: Okay, sir. And about how many rental
           units do you think you have?

           A:   We have 583 units currently.

           Q: And your best guess, about how much --
           what percentage are rented to military
           personnel?

           A: Typically, our makeup is somewhere
           around 300 to 200 nonmilitary. So usually


                                 15
United States v. Catrett, 01-0042/AF


          around 300 active military are in our
          units at all times. Over the last 10
          years, we’ve rented to over 10,000 people
          and, in that group, probably about 7 to
          8,000 have been military. So I’ve had a
          lot of contact over the years with the
          military.

(R. 401-02)   In our view, the military judge had some basis for

her ruling and she did not abuse her discretion in admitting

military-character testimony from this witness.   Cf. United

States v. Armon, 51 MJ 83, 87 (1999)(military-character testimony

of officer who did not know accused or his service record

inadmissible).

                                III

    The third question in this case is whether the staff judge

advocate prejudicially erred by failing to respond to appellant’s

post-trial claims of legal error at his court-martial.   Appellant

submitted a nine-page response to the staff judge advocate’s

recommendation delineating in great detail four legal errors.

These alleged errors are summarized by him as follows:



          First, whether the evidence presented at
          trial was sufficient to support the
          conviction of aggravated assault; second,
          whether the trial judge improperly
          admitted the hearsay statements of the
          Appellant’s wife; third, failure of the
          local police to advise the Appellant of
          his Miranda rights prior to questioning
          him; and fourth, whether the military
          judge improperly allowed the court members
          to hear opinion evidence.

Final Brief at 23.




                                16
United States v. Catrett, 01-0042/AF


    Appellant contends that the staff judge advocate in his

addendum failed to respond or even mention any of these errors.


    RCM 1106(d)(4), Manual, supra, states in pertinent part:



            (4) Legal errors. The staff judge
          advocate or legal officer is not required
          to examine the record for legal errors.
          However, when the recommendation is
          prepared by a staff judge advocate, the
          staff judge advocate shall state whether,
          in the staff judge advocate’s opinion,
          corrective action on the findings or
          sentence should be taken when an
          allegation of legal error is raised in
          matters submitted under RCM 1105 or when
          otherwise deemed appropriate by the staff
          judge advocate. The response may consist
          of a statement of agreement or
          disagreement with the matter raised by the
          accused. An analysis or rationale for the
          staff judge advocate’s statement, if any,
          concerning legal errors is not required.

(Emphasis added.)   Here, paragraph 2 of the Addendum to the Staff

Judge Advocate Recommendation stated:

          2. The matters submitted by the defense
          are attached to this Addendum and are
          hereby incorporated by reference. Nothing
          contained in the defense submissions
          warrants further modification of the
          opinions and recommendations expressed in
          the Staff Judge Advocate’s
          Recommendations. Of course, you must
          consider all written matters submitted
          before you determine the appropriate
          action to be taken in this case.

(Emphasis added.)   In our view, this statement satisfied the

minimal-response requirement of RCM 1106(d)(4).


    The decision of the United States Air Force Court of Criminal

Appeals is affirmed.




                                17
United States v. Catrett, Jr., No.01-0042/AF


CRAWFORD, Chief Judge (concurring in part and in the result):

     I agree with the majority’s discussion of Issues II and III.

However, as to Issue I, I agree with the military judge that a

“[p]oliceman’s ... uncommunicated decision to arrest ... does not

bear on whether the suspect is in custody.”    Based on the facts

and this conclusion of law, she correctly held that appellant was

not in custody.

                               FACTS

     After returning home from a 2 months’ deployment, appellant

became convinced that his best friend, A1C Walker, had began a

sexual relationship with appellant’s wife.    In Walker’s presence,

appellant’s wife said she wanted to leave him.    Appellant than

“struck A1C Walker on the back of the head with an object,

knocking him onto a couch,” and “gouged A1C Walker’s eyes with

his fingers.”   Then “appellant’s mother, who lived with the

appellant, stopped the fight;” but “appellant indicated he

intended to ‘finish this tonight.’”    Walker, fearing for his

life, and appellant’s wife, “fled the house” and went “to the

nearby residence of SSgt R.   Unpub. op. at 2.

     After leaving the house, Walker phoned the Clovis, New

Mexico, Police Department and reported the assault.    A bit after

the police arrived at SSgt R’s residence, appellant’s wife told

the police that her husband had used a gun to hit Walker.    Both

SSgt R and the police officer “testified that while at the

apartment,” appellant’s wife “was excited, frantic, and appeared
United States v. Catrett, Jr., No.01-0042/AF


afraid.”    She was taken back to her home.   Arriving at her home,

appellant’s wife told the police officer “that she was not having

an affair”; still loved her husband, and had been with him” for

many years.    Unpub. op. at 3.

     Later, the officers informed appellant that they were

investigating the alleged assault.    At the time they noticed

“blood on the walls, floor, and couch,” but observed that

“appellant exhibited no injuries.”    Appellant became agitated

when he was telling the police about his wife’s affair with

Walker.    When appellant was informed that a weapon had been used

in the assault, he denied using a gun.    After this denial, he

“consented to a search of his residence.”     While the search was

ongoing, appellant went to the kitchen to get a popsicle; he then

returned to the living room and talked to his mother who lived

with him.    He also talked to his father on the telephone.    Later,

a police officer found a holster but no gun, and asked appellant

what had happened.    At the same time the officer noticed a

bloodstained rawhide dog bone on the floor.      He asked appellant

if the dog bone was used to hit Walker.    Appellant responded that

he had used it.    The officer again questioned appellant about a

gun but appellant repeated his denial of using a gun, saying he

only used the dog bone and a sailfish statue.     After seizure of

the dog bone and the sailfish statue, appellant was arrested and

warned of his rights.    He asked for counsel.   Unpub. op. at 5-6.

     According to the court below:



                                  2
United States v. Catrett, Jr., No.01-0042/AF


           While at his residence, the appellant was never told
           he was under arrest nor was he handcuffed. Although
           the appellant was never told he could not leave the
           premises, Officer M testified that the appellant was
           not free to leave the premises and would have been
           stopped if he tried. Officer M stated that while the
           appellant was detained, he was not in custody.

Unpub. op. at 6.

                                 DISCUSSION

     The judge’s decision on the suppression motion is reviewed

for an abuse of discretion.   United States v. Young, 49 MJ 265,

266-67 (1998); United States v. Schelkle, 47 MJ 110, 112 (1997),

cert. denied, 522 U.S. 1078 (1998).    A judge’s findings of fact

are accepted unless clearly erroneous.    See, e.g., United States

v. Bins, 43 MJ 79, 83 (1995); United States v. Wallace, 39 MJ

284, 286 (CMA 1994).   However, the question of custody is “a

‘mixed question of law and fact’ qualifying for independent

review.”   Thompson v. Keohane, 516 U.S. 99, 113 (1995).

     In United States v. Miller, 45 MJ 149 (1996), this Court,

relying on Stansbury v. California, 511 U.S. 318 (1994), adopted

an objective test rather than a subjective test to determine

whether a person is in custody.    See also United States v. Meeks,

41 MJ 150, 161 n.3 (CMA 1994).    Thus, the subjective intent of

the officer as to what might happen if appellant tried to leave

is not taken into consideration in determining whether custody

existed, unless this intent is communicated to appellant.

Berkemer v. McCarty, 468 U.S. 420, 442 (1984).    See also

Stansbury, 511 U.S. at 319.   Where the intent to make a seizure



                                   3
United States v. Catrett, Jr., No.01-0042/AF


has not been communicated to the suspect, a number of federal

courts have held that an interrogation in a suspect’s home is

non-custodial.    See, e.g., United States v. Rith, 164 F.3d 1323,

1332 (10th Cir.), cert. denied, 528 U.S. 827 (1999), United

States v. Mitchell, 966 F.2d 92, 98 (2d Cir. 1992); United States

v. Lanni, 951 F.2d 440, 442-43 (1st Cir. 1991).

     In Dickerson v. United States, 530 U.S. 428, 431-32 (2000),

the Court stated that Miranda v. Arizona, 384 U.S. 436 (1966),

“held that certain warnings must be given before a suspect’s

statement made during custodial interrogation could be admitted

in evidence.”    Because Miranda is a rule of “constitutional”

dimension, the Court held that Congress does not have the right

to overrule it.    The Court reiterated that the reason for Miranda

was the difficulty of sorting out what constitutes a voluntary

confession.   530 U.S. at 435.   It is particularly difficult to

determine voluntariness when an interrogation takes place in the

isolation of the police station where there are no witnesses

other than the suspect and police officers.    Id. at 435.    The

Court emphasized in Miranda that in a custodial interrogation,

the suspect “was cut off from the outside world,” and placed in a

“police-dominated atmosphere.”    Miranda, 384 U.S. at 445.

Generally, interrogations involving deceit and trickery can occur

in the secrecy of the police station.    As has been said:

          Custodial arrest is said to convey to the suspect
          a message that he has no choice but to submit to
          the officers’ will and to confess.... [C]ustodial
          arrest thrusts an individual into ... “an


                                  4
United States v. Catrett, Jr., No.01-0042/AF


            interrogation environment ... created for no
            purpose other than to subjugate the individual
            to the will of the examiner.” Many of the
            psychological ploys discussed in Miranda
            capitalize on the suspect’s unfamiliarity with the
            officers and the environment.... Finally,
            the coercion inherent in custodial interrogation
            derives in large measure from an interrogator’s
            insinuations that the interrogation will continue
            until a confession is obtained.

Minnesota v. Murphy, 465 U.S. 420, 433 (1984)(citation

omitted).

      The Supreme Court has addressed custodial interrogations

outside the stationhouse in two cases.    Beckwith v. United

States, 425 U.S. 341 (1976), and Orozco v. Texas, 394 U.S. 324

(1969).    Cf. Minnesota v. Murphy, supra.

     In Beckwith, two special agents from the IRS went to the

defendant’s private residence at 8:00 a.m.    Upon arrival they

identified themselves as IRS agents and asked to speak to

Beckwith.    They were invited into the house and asked to wait

while Beckwith finished dressing.     Then Beckwith came out and sat

down at the dining room table with the agents.    They informed

Beckwith that they were investigating a possible criminal tax

fraud.    Without giving a complete Miranda warning, they did

advise him that under the Fifth Amendment to the Constitution of

the United States, you cannot be compelled to answer any

questions.    Beckwith acknowledged that he understood his rights

and was interviewed by the agents for nearly 3 hours.    The

conversation was described as friendly and relaxed and Beckwith

was not pressed.    At the conclusion of the interview the senior


                                  5
United States v. Catrett, Jr., No.01-0042/AF


agent received permission from Beckwith to inspect certain

records.    The Court held that this interrogation did not

constitute a custodial interrogation.      Likewise, in Murphy, the

Court held that an interrogation at the defendant’s office was

not a custodial interrogation.    465 U.S. at 429-30.

       This is not a case that takes place at the police station or

where four officers are permitted to enter the defendant’s

boardinghouse room at 4:00 a.m. “by an unidentified woman.”

Orozco, supra at 325.    The Court noted that while “petitioner was

interrogated on his own bed, in familiar surroundings,” id. at

326, Orozco was “under arrest and not free to leave.”      Id. at

327.    The dissenters in Orozco stated:   “Even accepting Miranda,

the Court extends the rule here and draws the straitjacket even

tighter.”    Id. at 328 (White and Stewart, JJ., dissenting).

       In this case, there was no “‘formal arrest or restraint on

freedom of movement’... associated with a formal arrest.”

California v. Beheler, 463 U.S. 1121, 1125 (1983).      This

interrogation took place on appellant’s “own turf.”      United

States v. Helmel, 769 F.2d 1306, 1320 (8th Cir. 1985).     The

Miranda decision was aimed at alleviating the subtle and not so

subtle pressures that take place at a stationhouse interrogation

or where an individual is placed in unfamiliar surroundings

removed from family members and friends.     Appellant was free to

talk on the telephone, to go to the kitchen to get a popsicle,

was not handcuffed, and was not ordered to remain in a specific



                                  6
United States v. Catrett, Jr., No.01-0042/AF


location.    While appellant “at some point” was asked in effect

not to interfere with the search or investigation, this is

reasonable police conduct constituting no more than a temporary

detention and did not result in a formal arrest or custody at

that time.    Cf. Illinois v. McArthur, 121 S. Ct. 946 (2001).     In

fact, when the police arrived at the house, they did not use

their lights or sirens and did not use any of the subtle

coercions mentioned in Miranda.    Nor is this an instance like

Helmel where the police “answered all incoming telephone calls.”

Even so the court in Helmel held that there was no custodial

interrogation.    See, e.g., 769 F.2d at 1320.   The police did not

threaten Catrett with criminal charges or imprisonment, or

subject him to a prolonged interrogation.    See, e.g., Lanni, 951

F.2d at 441-43 (interview in defendant’s home around 8 a.m. just

after she had awakened, gotten dressed, and opened the door not

custodial interrogation).    Thus, Catrett was not in custody and

no rights’ warnings were required.

     For these reasons only I agree with the majority’s

disposition of Issue I.




                                  7
United States v. Catrett, No. 01-0042/AF


BAKER, Judge (concurring in part and in the result):

     I agree with the majority on Issues II and III.      On

Issue I, the majority concludes that appellant was in

custody.   I agree.   The court below found:   “At one point

during the search, the appellant. . . was then told that he

needed to either remain in the living room or have an

officer accompany him if he left the room.     Thereafter,

Officer A remained with the appellant in the living room.”

Unpub. op at 5 (emphasis added).    At this point, appellant

was no longer free to leave and was in custody.     Orozco v.

Texas, 394 U.S. 324, 327 (1969).    Police questioning of

appellant occurred before and after appellant was taken

into custody.   It was after he was taken into custody that

appellant told the police that he had hit the victim with a

dog bone and the sailfish statue.

     In this case, there is a tension between the

conclusion that appellant was in custody and application of

the public-safety exception, where that exception is alone

premised on the safety of the police officers exercising

custody over appellant.    As a result, for the reasons

stated below, I vote to affirm this case on the basis that

if there were error below, it was harmless beyond a

reasonable doubt.




                               1
United States v. Catrett, No. 01-0042/AF


     Under the public-safety exception to Miranda, a

custodial statement obtained in the absence of Miranda

warnings need not be suppressed if police obtain the

statement in light of an objectively reasonable need to

protect either the police or the public from immediate

danger.   New York v. Quarles, 467 U.S. 649, 659 n. 8

(1984); United States v. Jones, 26 MJ 353, 356 (CMA 1988).

This narrow Miranda exception is limited to questions

necessary to secure the safety of police officers and the

safety of the public.   Once such information has been

obtained, the suspect must be given the Miranda warnings,

before custodial interrogation continues.   Significantly,

while recognizing that the public-safety exception ran

against the Court’s interest in preserving Miranda

“clarity,” the Court intended that the exception be

“workable” and not require officers faced with the

immediacy of events to engage in precise on-scene balancing

between permitted and prohibited questions.   Quarles, supra

at 658.

     In determining whether there is an objectively

reasonable basis to invoke the exception, courts have

looked to the totality of the circumstances presented,




                              2
United States v. Catrett, No. 01-0042/AF


including:    the imminence of danger from weapons1; the

possible presence of bystanders who could be harmed by

weapons2; the possible presence of additional individuals

who could use weapons3; and a suspect’s freedom of movement

and potential access to weapons.4


      In this case there came a time when appellant was

under police custody and his mobility controlled.             The home

had been searched and no additional individuals were

located or identified who might present a threat to the

officers or to the public at large.          The public did not

have access to the home.       The empty holster was cause for

concern, but absent appellant, the record does not indicate

the presence of any other individuals who might threaten

the officers.     If the officers felt that the presence of


1
  State v. Finch, 975 P.2d 967, 990-91 (Wash.)(exception applicable
during telephone negotiations by SWAT team with defendant barricaded in
home where Miranda warnings could further upset defendant and erode
potential for peaceful resolution), cert. denied, 528 U.S. 922 (1999).
See United States v. Moses, 45 MJ 132, 134 and n. 3 (1996).
2
  Trice v. United States, 662 A.2d 891, 896 (D.C. 1995)(exception applies
in light of "strong circumstantial evidence" of gun at defendant's
residence and presence of small children in home at time of arrest,
notwithstanding that arrest and questioning occurred 4 days after
shooting and detective waited 1 hour after arrest to ask question at
police station).
3
  People v. R. Simpson, 76 Cal.Rptr.2d 851, 853 (Cal.App. 4 Dist.
1998)(objectively reasonable. . . to question the suspect about the
presence of weapons and other potential dangers in execution of search
warrant “upon premises” of “known drug trafficker,. . . probable cause
to believe substantial quantities of illegal drugs will be found,” and
“not knowing who else might be present on the property”).
4
  United States v. DeSantis, 870 F.2d 536, 541 (9th Cir. 1989)(even if
right to counsel was invoked         when police came into the house,
exception allowed questioning about whether there were weapons in



                                    3
United States v. Catrett, No. 01-0042/AF


appellant’s mother created risk, they did not act that way.

Nor is this a case where the police asked the offending

question before searching the home.         Based on the totality

of these circumstances, it is not clear that a reasonably

objective need existed to protect the officers or the

public once appellant was in custody.


      Nonetheless, if there were error in admitting

appellant’s statements about the dog bone and the sailfish

statue, after he was in custody, such error was harmless

beyond a reasonable doubt.       Appellant’s statements could

not have substantially influenced the findings in light of

the other evidence against appellant.         This evidence

included:    (1) the victim's testimony; (2) the wife's

statement; and (3) the bloody dog bone, which was found in

plain view and, at the very least, would inevitably have

been discovered.




adjoining bedroom when defendant asked to go in there to change
clothes).


                                   4
