UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                             Before
                                 BURTON, HAGLER, and FLEMING
                                    Appellate Military Judges

                              UNITED STATES, Appellant
                                             v.
                         Private First Class WYATT J. ALCORN
                              United States Army, Appellee

                                      ARMY MISC 20190313

                          Headquarters, 25th Infantry Division
                           Kenneth W. Shahan, Military Judge
                      Colonel Terri J. Erisman, Staff Judge Advocate


For Appellant: Colonel Steven P. Haight, JA; Lieutenant Colonel Eric K. Stafford,
JA; Major Catharine M. Parnell, JA; Captain Allison L. Rowley, JA (on brief).

For Appellee: Lieutenant Colonel Tiffany D. Pond, JA; Major Jack D. Einhorn, JA;
Captain Benjamin A. Accinelli, JA; Captain Benjamin J. Wetherell, JA (on brief).


                                              11 July 2019
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                       MEMORANDUM OPINION AND ACTION ON APPEAL
                          BY THE UNITED STATES FILED PURSUANT TO
                      ARTICLE 62, UNIFORM CODE OF MILITARY JUSTICE
                   -------------------------------------------------------------------------

    This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

BURTON, Senior Judge:

       The United States appeals the ruling of a military judge suppressing
statements made by the accused. 1 Presented with only the limited issue of whether
the military judge erred when he found that appellee unequivocally invoked his right
to silence, we AFFIRM the military judge’s ruling suppressing all statements made

1
 We have jurisdiction over this appeal under Article 62, Uniform Code of Military
Justice, 10 U.S.C. § 862 [UCMJ]. The parties raise no jurisdictional issues to our
attention nor have we independently identified any. Unlike our reviews under
Article 66, UCMJ, our review is limited solely to questions of law.
ALCORN—ARMY MISC 20190313

by the accused to CID on 15 August 2018 at 05:02:11 and beyond (of the videotaped
interview) and the accused’s written statement made thereafter.

                                    BACKGROUND

       The accused is charged with three specifications of sexual assault in violation
of Article 120, Uniform Code of Military Justice, 10 U.S.C. § 920 (2012) [UCMJ]
and one specification of providing a false official statement to a military law
enforcement agent in violation of Article 107, UCMJ. 2 The allegations of sexual
assault involve the accused’s civilian dependent wife. 3

       The accused was questioned by the United States Army’s Criminal
Investigative Command (CID) on 26 July 2018. During the course of the interview,
the accused agreed to return at a later date to undergo a polygraph examination.

      On 15 August 2018, the accused returned to CID. The voluntariness of the
pre-polygraph interview or the accused’s statements and participation in the
polygraph examination were not challenged by the defense.

       After the polygraph, the accused consented to a videotaped interview. At
about 2:34:05 of the interview, the CID agent informed the accused that he had
failed the relevant questions on the polygraph examination.

      At 4:54:35 of the interview, the agent began asking the accused several
questions, none of which he answered. “For the next 8 minutes, the accused is in a
hunched over position with his head in his hands, not answering any questions.” 4
The following colloquy occurred during the interview:

               Q: Going back to the night of the 13th [of June 2018] what
               are you thinking? What are your thoughts from that night?
               What’s re-playing through your mind?             Help me
               understand what you’re thinking.




2
  As the parties do not contest the military judge’s findings of fact as to the
underlying facts and circumstances of the interrogation, we adopt them here.
3
 Due to the limited issue presented in this interlocutory appeal, the substantive facts
underlying the alleged offenses need not be discussed.
4
    The quoted language is from the military judge’s findings of fact.




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ALCORN—ARMY MISC 20190313

             Q: Wyatt, you gotta talk about this stuff. I’m here to help
             you talk about this stuff and I can’t talk about it without
             you.

             Q: Is it something you regret? Is it something that you are
             sorry for? When are you going to talk to me about this
             stuff, quit keeping it all bottled up inside of you?

             A: I . . . I honestly don’t really want to say at this point
             anymore.

             Q: You don’t want to say at this point? What does that
             mean?

             A: I . . . I don’t . . .

             Q: Tell the truth and be honest about it. That’s all.
             That’s the only thing I’ve ever asked you to do. I told you
             you’re not going to get out of this situation unless you’re
             one hundred percent honest about what we’re here to talk
             about.

(emphasis added). Based on this exchange, the military judge found appellee had
unequivocally invoked his right to remain silent and, therefore, suppressed any
statement made by appellee after this point of the interview.

      Following the military judge’s ruling, the government did not move for
reconsideration and instead filed a timely notice of appeal pursuant to R.C.M. 908,
challenging only whether the military judged erred when he found that appellee
unequivocally invoked his right to remain silent.

                               LAW AND DISCUSSION

       “In an Article 62, UCMJ, appeal, this court reviews the military judge’s
decision directly and reviews the evidence in the light most favorable to the party
which prevailed at trial.” United States v. Pugh, 77 M.J. 1, 3 (C.A.A.F. 2017).

       A military judge’s decision to exclude evidence is reviewed for an abuse of
discretion. United States v. Jasper, 72 M.J. 276, 279 (C.A.A.F. 2013). “A military
judge abuses his discretion if his findings of fact are clearly erroneous or his
conclusions of law are incorrect.” United States v. Olson, 74 M.J. 132, 134
(C.A.A.F. 2015) (internal quotation marks omitted) (citation omitted). These
standards also apply to interlocutory appeals under Article 62, UCMJ. United States
v. Michael, 66 M.J. 78, 80 (C.A.A.F. 2008); see also United States v. Mitchell, 76



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M.J. 413, 417 (C.A.A.F. 2017). “[T]he abuse of discretion standard of review
recognizes that a judge has a range of choices and will not be reversed so long as the
decision remains within that range.” United States v. Gore, 60 M.J. 178, 187
(C.A.A.F. 2004) (citation omitted); see United States v. Criswell, 78 M.J. 136, 141
(C.A.A.F. 2018).

       Miranda v. Arizona established a bright-line rule that when a suspect
“indicates in any manner . . . that he wishes to remain silent, the interrogation must
cease.” 384 U.S. 436, 473-74 (1966). The Supreme Court has subsequently
clarified and clearly established the law governing the invocation of one’s right to
remain silent. See, e.g., Garcia v. Long, 808 F.3d 771 (9th Cir. 2015).

        First, once a suspect has consented to interrogation, the right to cut off police
questioning is triggered only when the suspect unambiguously and unequivocally
invokes it. See Berghuis v. Thompkins, 560 U.S. 370, 381-82 (2010). If an officer
seeks to clarify an unambiguous request and elicits an equivocal response, the post-
request statements “may not be used to cast retrospective doubt on the clarity of the
initial request itself.” Smith v. Illinois, 469 U.S. 91, 100 (1984). Miranda is a
“bright-line prohibition” necessary to prevent authorities from “wear[ing] down the
accused and persuad[ing] him to incriminate himself notwithstanding his earlier
request.” Long, 808 F.3d at 778 (citing Smith, 469 U.S. at 98).

       Second, an ambiguous or equivocal Miranda invocation does not require the
cessation of questioning. Davis v. United States, 512 U.S. 452, 459 (1994).
However, once an unambiguous invocation of the right is made, authorities must
“scrupulously honor” this right and immediately cease questioning. Michigan v.
Mosley, 423 U.S. 96, 104 (1975).

      The limited question of law presented to this court is whether the accused’s
statement, “I honestly don’t really want to say at this point anymore” was an
unequivocal invocation of his right to remain silent. As such, we review this
question de novo. United States v. Bresnahan, 62 M.J. 137, 141 (C.A.A.F. 2005).

        In accordance with Smith, we decline the government’s request to consider the
totality of the interrogation. 469 U.S. at 93, 100. Instead, we follow our superior
court’s precedent and “consider[] events immediately preceding, as well as
concurrent with, the invocation” when determining whether the statement was
equivocal or ambiguous.” United States v. Delarosa, 67 M.J. 318, 324 (C.A.A.F.
2009) (citation omitted).

       During the interview, the accused began a period of silence for approximately
eight minutes, while the special agent asked a variety of questions. The final
question prior to the invocation was “[w]hen are you going to talk to me about this
stuff, quit keeping it all bottled up inside of you?” The accused sat silent for



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ALCORN—ARMY MISC 20190313

approximately 25 seconds and then replied, “I honestly don’t really want to say at
this point anymore.”

       The government relies heavily on the fact that PFC Alcorn was largely silent
throughout his interrogation and did not speak in the eight minutes leading up to his
invocation. The government is correct in citing Thompkins, for the premise that
mere silence is not an unequivocal invocation of the right to remain silent. 560 U.S.
at 381. However, the Supreme Court’s full opinion explains that, had the suspect
made a simple statement indicating he wanted to invoke his rights, he would have
adequately invoked his right to cut off questioning. Id. at 382 (citing Smith, 469
U.S. at 98). The Court’s hypothetical mirrors the facts in this case. Private First
Class Alcorn was silent for the majority of his post-polygraph interview. He then
affirmatively spoke and said ‘I honestly don’t really want to say at this point
anymore.”

       The agent testified he attempted to clarify what in his mind was an ambiguous
statement. Assuming arguendo that it was ambiguous, the next question the agent
asked was, “You don’t want to say at this point? What does that mean?” Appellee’s
response, “I . . . I don’t . . .”, made it clear that appellee was making an unequivocal
invocation of his right to remain silent and was therefore entitled to a temporary
respite and a cessation of questions.

       The government claims ambiguity and plausible alternate meanings to
appellee’s statement, but provides no insight into what those might be. As this court
has observed, “equivocal” means “having different significations equally appropriate
or plausible; capable of double interpretation; ambiguous.” United States v.
Rittenhouse, 62 M.J. 509, 512 (Army Ct. Crim. App. 2013) (quoting Coleman v.
Singletary, 30 F.3d 1420, 1425-26 (11th Cir. 1994)) The authorities cited by the
government define “equivocal” in line with Rittenhouse, but do not assist this court
in determining whether PFC Alcorn’s statements could be reasonably subject to
differing interpretations.

      During his ruling, the military judge addressed the statement by the accused:

          Despite the unusual phrasing and the use of some filler
          words, the statement can be distilled down to the phrase “I
          don’t want to say any more.” The word “honestly” does not
          create ambiguity; if anything it adds strength to the
          accused’s invocation. The phrase “at this point” means
          “now” and likewise only serves to strengthen the accused’s
          assertion.




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ALCORN—ARMY MISC 20190313

       The military judge then applied the definition of “equivocal” recognized by
this court in Rittenhouse. 62 M.J. at 512. First considering the plain language of
the statement, the military judge could “think of no other signification that could be
as equally plausible as the accused signifying that he does not want to make a
statement.” We agree. We further agree that the agent, and not the accused,
continued the questioning without respite.

       As such, we find that the military judge applied the correct law to the
question at hand. The military judge concluded, pursuant to Rittenhouse, that the
statement was unequivocal and not capable of double interpretation. 62 M.J. at 512.
Considering the “events immediately preceding, as well as concurrent with, the
invocation” by appellant, the CID agent should have recognized appellant’s
statement as an unequivocal request to remain silent. Delarosa, 67 M.J. at 324. As
such, we are bound to “scrupulously honor” the invocation of the constitutional right
to silence. See United States v. Watkins, 34 M.J. 344, 346 (C.M.A. 1992) (citing
Michigan v. Mosley, 423 U.S. 96 (1975)).

       Having found that the military judge correctly applied the law in determining
that PFC Alcorn’s statement was unequivocal, we further find that he did not abuse
his discretion in suppressing the portions of the videotaped statement from the
moment of invocation of his right to silence and the subsequent written statement
that was obtained contemporaneously in the interrogation.

                                   CONCLUSION

       The government’s appeal pursuant to Article 62, UCMJ, is DENIED. We
AFFIRM the military judge’s ruling suppressing all statements made by the accused
to CID on 15 August 2018 at 05:02:11 and beyond (of the videotaped interview) and
the accused’s written statement made thereafter.

       The record will be returned to the military judge for action not inconsistent
with this opinion and R.C.M. 908(c)(3).

      Judge HAGLER and Judge FLEMING concur.

                                        FOR THE COURT:




                                        MALCOLM H.
                                        MALCOLM     H. SQUIRES,
                                                       SQUIRES, JR.
                                                                JR.
                                        Clerk of Court
                                        Clerk of Court




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