

   
   
   
   U.S. v. Ruiz



United States, Appellee
v.
Roy H. RUIZ, Senior Airman
U.S. Air Force, Appellant
 
No. 99-0509
Crim. App. No. S29457
 
United States Court of Appeals for the Armed
Forces
Argued December 10, 1999
Decided September 18, 2000
EVERETT, S.J., announced the judgment of
the Court. GIERKE, J., filed an opinion concurring in part and in the result
and dissenting in part. CRAWFORD, C.J., filed an opinion concurring in
the result. SULLIVAN, J., filed a dissenting opinion. EFFRON, J., filed
a dissenting opinion, in which SULLIVAN, J., joined.
Counsel
For Appellant: Captain Bryan A. Bonner
(argued); Colonel Jeanne M. Rueth (on brief); Colonel Theodore
J. Fink and Major Margo Stone Newton.
For Appellee: Captain Martin J. Hindel,
USAFR (argued); Colonel Anthony P. Dattilo, Lieutenant Colonel
Ronald A. Rodgers, and Captain James C. Fraser (on brief).
Military Judge: Mary M. Boone
 
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION


Senior Judge EVERETT announced the
judgment of the Court.
Contrary to his pleas, a special court
martial with officer members convicted Senior Airman Roy H. Ruiz of stealing
several items from the Army and Air Force Exchange Service (AAFES) post
exchange (PX) located at Fitzsimmons Garrison, Colorado.1
See Art. 121, Uniform Code of Military Justice, 10
USC §
921. His sentence included a bad-conduct discharge, confinement for 2 months,
and reduction to the grade of E-1. This sentence was approved by the convening
authority on September 24, 1997. The Court of Criminal Appeals affirmed
the findings and sentence on December 21, 1998. 50 MJ 518.
This Court granted review of these issues:

I

WHETHER THE MILITARY JUDGE ERRED IN DENYING
THE DEFENSE MOTION TO SUPPRESS STATEMENTS ALLEGEDLY MADE BY APPELLANT TO
AAFES STORE DETECTIVES.

II

WHETHER IT WAS PLAIN ERROR FOR THE PROSECUTION
TO CROSS-EXAMINE APPELLANT AND ARGUE, AND FOR THE MILITARY JUDGE TO PERMIT
THE CROSS-EXAMINATION AND ARGUMENT, ABOUT THE FACT THAT APPELLANT DID NOT
PROCLAIM HIS INNOCENCE WHEN HE WAS APPROACHED BY THE AAFES STORE DETECTIVES,
IN VIOLATION OF APPELLANTS
FIFTH AMENDMENT AND ARTICLE 31 RIGHTS.

Finding no prejudicial error, we affirm.
I. MOTION TO SUPPRESS STATEMENTS MADE TO AAFES
STORE DETECTIVES.
As to appellants
motion to suppress, the facts were summarized by the court below:

On 23 November 1996, Jean Rodarte, a civilian
store detective for AAFES at the Fitzsimmons Garrison post exchange (PX),
Colorado, observed the accused pick up a compact disc receiver in the electronics
section of the PX and place it in his hand basket. He was wearing a large
winter jacket despite relatively mild temperatures outside. Later, he went
to the mens clothing section and took an item into the dressing room.
When he departed the dressing room, the accused took the receiver box back
to the electronics section. The accused purchased a few items and then
departed the store. On the street outside the PX, Ms. Rodarte and another
store detective stopped the accused and asked him if he would accompany
them back to the PX office. The accused agreed to do so. Once back in the
office, the accused was invited to sit. Ms. Rodarte told the accused, "There
seems to be some AAFES merchandise that hasnt [sic] been paid for." The
accused said, "Yes," took the receiver (without the box), a compact disc,
and some razor blades from inside/under his coat and placed them on the
table. He then said, "You got me." Ms. Rodarte telephoned the Department
of Defense (DoD) civilian police who were responsible for policing Fitzsimmons
Garrison. While in the office, the store detectives asked the accused for
his identification card, although Ms. Rodarte can not remember when in
the sequence of events this occurred. When the DoD police arrived, Ms.
Rodarte provided them with a statement describing this incident and then
left the room. The empty box for the receiver was found on the shelf in
the store.
Prior to entering his pleas, the accused moved
to suppress the statements he made to Ms. Rodarte. The accused claimed
that his statements were the product of an unlawful interrogation because
Ms. Rodarte did not advise him of his rights under Article 31, UCMJ. The
accused did not assert that he was in custody, and therefore, should have
been advised of his right to counsel. After conducting a hearing in which
Ms. Rodarte was the only witness, the military judge denied the motion
and admitted the accuseds statements and the merchandise he allegedly
took from beneath his jacket. The military judge concluded that Ms. Rodartes
statement was not an interrogation, so no Article 31(b) warnings were necessary,
that the accuseds statements were spontaneous and voluntary, and that
the evidence would have been inevitably discovered.

50 MJ at 519-20.
A military judges
evidentiary rulings are generally reviewed under the abuse-of-discretion
standard. However, a ruling that a statement was made voluntarily may present
a question of law which this Court may review de novo. See
United States v. Martinez, 38 MJ 82, 86 (1993). Likewise, whether
an Article 31(b) warning is required may also require de novo review.
United States v. Ravenel, 26 MJ 344, 352 (CMA 1988) (Cox, J., concurring
in the result).
A person subject to the Uniform Code of Military
Justice may not "interrogate" a suspect without first informing the suspect
of the nature of the accusation, the right to remain silent, and that any
statement made may later be used as evidence in a court-martial. Art. 31(b),
UCMJ, 10 USC §
831(b). Subject to a few exceptions, any statement obtained in violation
of this provision is inadmissible. Mil.R.Evid. 305(c) and 304(a), Manual
for Courts-Martial, United States (1998 ed.). Moreover, the Manual for
Court Martial requires that, under some circumstances, persons not subject
to the Code provide warnings to a suspect.2
This Court has previously addressed the question
whether an AAFES store detective must give a warning. United States
v. Quillen, 27 MJ 312 (1988). There we held that an AAFES store detective
"in a very real and substantial sense acted as an instrument of the military"
and thus was subject to the warning requirement of Article 31(b). Id.
at 314. Despite the urging of the Government, we see no need to disturb
or revisit that holding, even though in this case the military judge and
the Court of Criminal Appeals have disagreed on whether the AAFES security
personnel at Fitzsimmons were similarly instruments of the military and
subject to the warning requirement of Article 31(b).
In denying the motion to suppress the accuseds
statement to Ms. Rodarte, the military judge made several essential findings.
Among other things the judge found

that Ms Rodarte and Ms Ray received specific
training from AAFES which prohibits them from restraining or attempting
to physically detain suspected shoplifters if they refuse to accompany
them to the managers
office or walk away from them. Similarly they are trained that they are
not to ask questions or interrogate suspected shoplifters. They were however,
trained to make the statement about unpaid merchandise as part of standard
operating procedures. In making the statement, Ms Rodarte admitted that
"we would hope to get a response,"
but she didnt expect anything in particular, because her experience in
the past has been that a lot of times she doesnt get a response, some
suspects sit still and never respond.

On the basis of these findings, the judge distinguished
Quillen,
where "the scope and character of the cooperative efforts between BX store
detectives and the base military police . . . merged into an indivisible
entity."Furthermore, the judge found that "no interrogation" had been
"conducted" within the meaning of Article 31(b).
Unlike the military judge, the Court of Criminal
Appeals concluded that "[t]he facts of this case are not sufficiently different
to distinguish it from Quillen."3
Accordingly, that court held that the AAFES store detectives
who detained Airman Ruiz were agents of the military who were subject to
the Code and "required to advise him of his rights under Article 31(b)
before interrogating him." 50 MJ at 522.
We need not decide between the respective positions
taken below to resolve the fact-specific issue of whether the Article 31(b)
requirement applied to the AAFES security personnel in this case. Instead,
we affirm because we join both the military judge and the Court of Criminal
Appeals in holding that Ms. Rodarte did not "interrogate" the accused.
We recognize, of course, that to conform with the purpose of Article 31,
"interrogation" must be construed to include "any formal or informal questioning
in which an incriminating response is sought or is a reasonable consequence
of such questioning." Mil.R.Evid. 305(b)(2). For example, asking a suspect
to point out his clothing, his locker, or his automobile may constitute
questioning and require a warning. See, e.g., United States
v. Taylor, 5 USCMA 178, 17 CMR 178 (1954). Mil.R.Evid. 305 (b)(2) is
derived from Supreme Court precedents and was purposefully drafted in a
broad fashion to thwart "attempts to circumvent warnings requirements through
subtle conversations." S. Saltzburg, L. Schinasi, and D. Schlueter, Military
Rules of Evidence Manual 225 (4th ed. 1997). Therefore,
interrogation involves more than merely putting questions to an individual.
Cf.
Brewer v. Williams, 430 U.S. 387, 399, 97 S.Ct. 1232, 1240 (1977)
(concluding that deliberately and designedly setting out to elicit information
constituted interrogation).
Ruiz argues that Ms. Rodartes statement that
"[t]here seems to be some AAFES merchandise that has not been paid for"
constituted an interrogation. In support of this contention, he points
to the testimony of Ms. Rodarte that the AAFES store detectives "would
hope to get a response" when they make this statement. Appellant maintains
that this statement constituted interrogation because an incriminating
response either was sought or was a reasonable consequence of that statement.
However, interrogation does not include "words
or actions . . . normally attendant to arrest and custody." Rhode Island
v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689 (1980). Accordingly,
in United States v. Byers, 26 MJ 132 (1988), this Court noted that
merely informing a person that he was suspected of using drugs would not
mandate an Article 31 rights advisement. Id. at 135 n.2.
In United States v. Powell, this Court
concluded that initial statements made by a shoplifting suspect to AAFES
store detectives had been "spontaneously made and not in response to interrogation."
However, this Court also ruled that later statements by the shoplifter
were in response to interrogation. The former statements were made immediately
after the suspect had been informed why he was being detained, 40 MJ 1,
3 (1994), while the later statements were made after a military policeman
had arrived and after the suspect had been asked a number of further questions,
id.
at 2, 3.
Appellant tries to distinguish Powell
on the ground that in Powell the shoplifting suspect initiated the
conversation by asking the AAFES detectives why he was being detained.
However, this is not a significant distinction because Ms. Rodartes statement
-- like the initial conversation in Powell -- was merely informing
appellant that he was suspected of not having paid for some merchandise.
In Quillen, this Court noted that the questioning of the suspect
went beyond asking him "to produce his receipt for the merchandise, a practice
to which" this Court had "no objection on constitutional or codal grounds."
27 MJ at 315. In this case, appellant treats as "interrogation" the mere
statement that "[t]here seems to be some AAFES merchandise that has not
been paid for." In context, however, this statement is not functionally
different from asking the suspect to provide a receipt for the stolen merchandise
or informing him of the potential charges against him.
Accordingly, we agree with the lower courts
holding "that Ms. Rodarte did not interrogate the accused," but instead
"did no more than advise the accused why he was stopped and why she asked
him to accompany her back to the office." 50 MJ at 522. Because Ms. Rodartes
statements and actions constituted words and actions normally attendant
to the detention process for suspected shoplifters, the accuseds statements
were voluntary and admissible under the Military Rules of Evidence and
the precedents of this Court and the Supreme Court.
II. THE TRIAL COUNSELS COMMENTS ON THE ACCUSEDS
SILENCE.
Sergeant Ruiz took the stand to testify in
his own defense. His testimony, which was in substantial conflict with
that of the prosecution witnesses, was summarized by the court below in
this manner:
On direct examination, he testified that he
looked at the CD player, put it back on the shelf, bought a few minor items,
and then, without exiting the store, decided to go back and purchase the
CD player and razor blades. He insisted that he was taking the CD player
to the layaway counter when Ms. Rodarte stopped him, inside the PX. He
claimed that the CD player was under his arm, not his jacket, and that
it was still in its box when he handed it over to the store detectives.
He claimed that the CD player was taken out of the box when the store detectives
and Officer Segrest were searching for the accuseds identification card.
During cross-examination, the accused testified
that he did not go to the dressing room and that he actually exited the
exchange, but was still inside the building, in the foyer where concessionaires
sell merchandise, when Ms. Rodarte stopped him. He also disputed Ms. Rodartes
version of what happened in the managers office. The accused insisted
that when they arrived at the managers office, he asked, "Is there a problem?
I can pay for these items," to which one of the detectives answered, "Its
too late." To test the credibility of this statement, the trial counsel
asked the accused if he had ever said, "Too late for what?" The accused
claimed to have instead asked, "Whats going on?" to which the detective
did not reply. Trial counsel then asked the accused if he had protested
his innocence. The accused testified that he did not because they might
use it against him. The trial counsel continued to probe how little sense
that made in light of his other questions to the detectives. Trial counsel
also questioned why the accused did not proclaim his innocence to Officer
Segrest when he arrived on the scene. The accused replied that he knew
Officer Segrest did not have the authority to release him, so it would
have been a wasted effort.
During his closing arguments on findings, the
trial counsel highlighted the differences between the testimonies of the
prosecution witnesses and of the accused. He also commented on the unreasonableness
of the accuseds version of what occurred in the managers office. The
trial counsel repeated this theme during his rebuttal argument.
50 MJ at 523.
Despite the failure of his counsel to object
at trial, appellant now asserts that he should not have been cross-examined
about his failure to proclaim his innocence and that the prosecutor should
not have argued any inferences therefrom.
Usually any objection to questions asked on
cross-examination must be made at the time they are asked. Also, failure
to make timely objection to matters raised in argument will waive any issue
on appeal with respect thereto in the absence of plain error. See United
States v. Ramos, 42 MJ 392, 397 (1995). To show plain error, an appellant
must establish an error which "must not only be both obvious and substantial,
it must also have had an unfair prejudicial impact on the jurys deliberations."
United
States v. Fisher, 21 MJ 327, 328 (CMA 1986) (quoting United States
v. Young, 470 U.S. 1, 16-17 n.14, 105 S.Ct. 1038, 1047, 84 L.Ed.2d.
1 (1985)); see also United States v. Powell, 49 MJ
460 (1998); United States v. Riley, 47 MJ 276 (1997). This Court
may exercise its discretion to reverse on a forfeited error only if the
error materially prejudices the substantial rights of appellant, see
Powell, 49 MJ at 465, or the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings, see Johnson
v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 1549 (1997). The
plain-error doctrine "is
to be used sparingly, solely in those circumstances in which a miscarriage
of justice would otherwise result." United States v. Frady, 456
U.S. 152, 163 n.14, 102 S.Ct. 1584, 1592 n.14 (1982).
Certainly this is not a case where plain error
was committed. Indeed, we doubt that there was any error whatsoever. Of
course, as Sergeant Ruiz contends, "A persons failure to deny an accusation
of wrongdoing concerning an offense for which at the time of the alleged
failure the person was under official investigation . . . does not support
an inference of an admission of the truth of the accusation." Mil.R.Evid.
304(h)(3); see also United States v. Cook, 48 MJ 236 (1998)
(holding military judge erred by admitting, over objection of the accused,
evidence of an accuseds silence in response to a friends question as
to whether he had committed rape).
Here, however, trial counsel "was not commenting
on the accuseds silence." As the court below noted, "the prosecutor was
attacking the accuseds version of the events in the managers office,"
which portrayed him "as an innocent man . . . wrongly accused . . . by
the lying AAFES store detective." In his testimony, appellant had "contradicted
Ms. Rodartes version of" the events and conversations at the store. Trial
counsel "had a duty to . . . point out the inconsistencies and" unbelievable
nature of appellants story. Like the court below, we also "suspect
that the defense counsel and the experienced military judge did not intervene
because they recognized the prosecutors actions for what they were - proper
cross-examination." 50 MJ at 525. Trial counsel was not focusing on appellants
silence but instead was attacking the credibility of what appellant claimed
he did say. This was perfectly appropriate cross-examination and argument.

Conclusion
The decision of the United States Air Force
Court of Criminal Appeals is affirmed.
FOOTNOTES:
1Until recently
this was the location of Fitzsimmons Army Hospital.
2
On the other hand, we have held that under some circumstances a person
subject to the Code - for example, an undercover agent - is not within
the scope of the warning requirement in Article 31(b). See, e.g.,
United
States v. Gibson, 3 USMCA 746, 14 CMR 164 (1954).
3As
the Court of Criminal Appeals noted, "Since Quillen, it appears that AAFES
has attempted to change the way in which store detectives operate." 50
MJ 518, 521 (1998) (observing that the detective in question "testified
that she doesnt work for any military establishment," or "in conjunction
with any military law enforcement agency[,]" nor has she received any training
from the military). However, the court below, after reviewing the applicable
regulations, concluded that "[l]ittle, if anything has changed, since the
Court of Military Appeals found that AAFES was under the control of military
authorities." Id. (quoting United States v. Quillen, 27
MJ 312, 314 (1988)). AAFES remains "a joint command of the Army and Air
Force. Air Force Regulation (AFR) 147-7. Army and Air Force Exchange
Service General Policies, ¶ 1-7a (17 Jun 1988). Installation commanders"
are still under the obligation to "ensure that incidents of criminality
at exchanges are reported . . . to the appropriate military investigative
organization[,] [i]d. at ¶ 2-6a(8)[,]" and commanders are still
"responsible for revoking or suspending exchange privileges of those who
steal AAFES merchandise. AFR 147-14, Army and Air Force Exchange Service
Operating Policies, ¶ 2-15 (15 Jan 93)." 50 MJ at 521.


GIERKE, Judge (concurring in part and in the
result and dissenting in part):
To the extent that the lead opinion suggests
that "an unfair prejudicial impact on the jurys deliberations" (__ MJ
at (13)) is an element of plain error, I disagree. Likewise, to
the extent that the opinion suggests that reversal is mandatory if there
is plain error, I disagree. To the extent that the opinion holds that our
Court has discretion to decide whether relief is warranted even if it finds
plain error, I agree. See United States v. Schlamer, 52 MJ
80, 86 (1999); United States v. Powell, 49 MJ 460, 464-65 (1998);
United
States v. Riley, 47 MJ 276, 281 (1997) (Gierke, J., concurring). Finally,
to the extent that the lead opinion holds that appellant failed to carry
his burden of persuading us that there was plain error, I agree.


CRAWFORD, Chief Judge (concurring in the result):
I agree with the majority and the court below
that Ms. Rodartes statement to appellant, "There seems to be some AAFES
merchandise that has not been paid for," did not constitute an interrogation.
Unlike the majority, I would accept the Governments proposal to revisit
United
States v. Quillen, 27 MJ 312 (CMA 1988).
In Quillen, the majority of the three-Judge
Court focused on whether the store detective was "an instrument of the
military," citing United States v. Penn, 18 USCMA 194, 199, 39 CMR
194, 199 (1969). Penn predated Mil.R.Evid. 305(b)(1). This Military
Rule of Evidence defines the term "person subject to the code" as including
"a person acting as a knowing agent of a military unit or of a person subject
to the code." Accordingly, the analysis in Quillen should have turned
to the question whether a store detective was "a knowing agent of a military
unit or of a person subject to the code." It did not.
Trial counsel committed no error in his cross-examination
of appellant, even if we were to view this cross-examination as an attack
on appellants silence. Appellant was not in custody and no Article 31(b),
UCMJ, 10 USC § 831(b), warnings were necessary or given. Nothing in
the Constitution prohibits use, for the purposes of impeachment, of an
accuseds silence prior to arrest or after arrest if no Miranda
warnings are given. See Fletcher v. Weir, 455 U.S. 603, 606-07
(1982); Jenkins v. Anderson, 447 U.S. 239 (1980); see also
Brecht v. Abrahamson, 507 U.S. 619 (1993). As Doyle v. Ohio,
426 U.S. 610 (1976), has been interpreted and explained, comment on accuseds
silence constitutes error only when that accused remains silent in reliance
on a government inducement, e.g., Miranda or Article 31(b)
warnings. See Splunge v. Parke, 160 F.3d 369, 372-73 (7th
Cir. 1998); cert. denied, 120 S. Ct. 91 (1999); Pitts v. Anderson,
122 F.3d 275, 282 (5th Cir. 1997); United States v. Balter,
91 F.3d 427, 439 (3d Cir.) cert. denied sub nom. DeJesus
v. United States, 519 U.S. 1011 (1996); Vick v. Lockhart, 952
F.2d 999, 1002-03 (8th Cir. 1991); United States v. Harrold,
796 F.2d 1275, 1279 (10th Cir. 1986), cert. denied, 479
U.S. 1037 (1987). Cf. United States v. Cook, 48 MJ 236, 241
(1998)(Crawford, J., with whom Cox, S.J. joins, dissenting).
Once a defendant elects to testify, "his credibility
may be impeached and his testimony assailed like that of any other witness."
Brown
v. United States, 356 U.S. 148, 154 (1958); see generally
Portuondo v. Agard, ___ U.S. ___, 120 S. Ct. 1119, 1125 (2000).
"The safeguards against self-incrimination are for the benefit of those
who do not wish to become witnesses in their own behalf and not for those
who do." Raffel v. United States, 271 U.S. 494, 499 (1926); see
Jenkins v. Anderson, supra. Use of silence for impeachment
can add to the truth-finding objectives of a criminal hearing and promote
the reliability of the entire process. See Combs v. Coyle, 205 F.3d
269, 285 (6th Cir. 2000). Trial counsels questioning of appellant
in this case was proper cross-examination, as was trial counsels argument,
which properly ensued from this cross-examination.


SULLIVAN, Judge (dissenting):
I disagree with the majoritys conclusion that
Ms. Rodartes statement to appellant, "There seems to be some AAFES merchandise
that has not been paid for[,]" did not amount to an interrogation. SeeRhode
Island v. Innis, 446 U.S. 291, 301 (1980); United States v. Quillen,
27 MJ 312 (CMA 1988).
Ms. Rodarte (the AAFES store detective) testified
as follows at appellants suppression hearing to questions by the defense:



Trial Defense Counsel (DC): Are you expecting
any type of response [to the statement, "There seems to be some AAFES merchandise
that has not been paid for"]?
A: Well, we would hope to get a response.
A lot of times we dont.

* * *
Q: And you also stated that when you made that
statement, you were hoping to get a response?
A: Well, sure.



R. 22, 29 (emphasis added).



Later the military judge asked:
[T]rial counsel was posing a question and when
he asked that question, you were pretty quick at stating that you didnt
ask a question. In your training, do they talk to you about whether
you can ask questions or not of people?
A: We dont interrogate people or ask people
questions.
Q: And thats what theyve told you not to
do?
A: Yes.

* * *
Q: What in any of your training have you been
told about asking questions or not? Have they told you at all about rights
advisements or any of those things, when youve had any training?
A: Theyve just told us we dont ask questions.
Q: And did they tell you that so you dont
have to get into rights advisements or those things?
A: I would presume so.
Q: Okay. But they have never really said that.
They just said, "Dont ask questions."
A: Right.



R. 33, 36 (emphasis added).
This Court has already decided that AAFES store
detectives are persons subject to the code, thus requiring them to give
Article 31 rights warnings before they may "interrogate, or request any
statement from, an accused or a person suspected of an offense." Article
31(b); see United States v. Quillen, supra; see
also United States v. Raymond, 38 MJ 136, 144 (1993) (Sullivan,
C.J., dissenting).
The outcome in Quillen is just as applicable
to appellants case. In Quillen, an AAFES store detective escorted
the accused to the managers office, where she then asked the accused "if
he had a receipt for" items in plain view of the detective, as well as
a few more particularized questions. In finding that the store detective
was required to read the Article 31 warnings to the accused, this Court
stated: "We are also persuaded that appellant perceived that Mrs. Holmes
inquiries involved more than casual conversation" and that it was "of great
significance that questioning of appellant did not occur at the original
stop but after he was escorted to the managers office by store employees."
27 MJ at 315.
Ms. Rodartes statement to appellant was not
simply the equivalent of asking for a receipt for merchandise. Cf.
United
States v. Quillen, supra. At the time he was taken into the
Post Exchange (PX) office, appellant was not carrying any merchandise visible
to others, so there would be no merchandise for which Ms. Rodarte could
ask for a receipt. Ms. Rodartes statement was designed to elicit an incriminating
response from appellant. See Rhode Island v. Innis, 446 U.S.
at 303 n.9 (noting that a conversation between two police officers in the
presence of the accused did not amount to the functional equivalent of
interrogation because, among other reasons, there was no evidence in the
record to suggest that the conversation was "designed to elicit a response");
see also 2 Rudstein et al., Criminal Constitutional Law
¶ 4.02(3)(b)(iii)(1999)(noting various comments that have been held
by courts to be the functional equivalent of interrogation).
It appears that Ms. Rodarte was trained not
to ask questions in order to avoid implicating Article 31, but the trainers
obviously did not understand that interrogation can mean more than explicit
questioning. See Rhode Island v. Innis, 446 U.S. at 301.
The military judge, in making her ruling, likewise did not understand this
broader definition of interrogation. See Appellate Exhibit II
at 2 (Ruling on Defense Motion to Suppress Out-of-Court Statement of the
Accused). Article 31 warnings cannot be avoided simply by transforming
a question into a statement designed to elicit a confession. See
Rhode Island v. Innis, 446 U.S. at 301.
Any reasonable person in appellants position
would understand that Rodartes statement was more than a casual remark
or routine booking statement. See id.; United States v.
Quillen, supra at 315. The practice that store detective Rodarte
was trained to employ (making the statement, "There seems to be some AAFES
merchandise that has not been paid for") was one which Ms. Rodarte knew
was "reasonably likely to evoke an incriminating response" from appellant
and therefore amounted to the functional equivalent of interrogation. See
446 U.S. at 302 n. 7. During oral argument, the Government even conceded
that had the statement been made by a law enforcement officer, Article
31 would have been violated. Oral Argument, United States v.
Ruiz, No. 99-0509 (December 10, 1999).
I further believe that allowing the prosecution
to use appellants incriminating statements was prejudicial to his defense.
See
Article 59(a), UCMJ, 10 USC § 859(a). Appellants defense was that
he was still in the PX when Ms. Rodarte stopped him and that he was going
to the layaway counter with the merchandise which was not hidden in his
jacket. R. 206-09. Appellants admission to Ms. Rodarte -- "You got me"
-- was in direct conflict with the story he told at trial. If the unwarned
admission was suppressed, as it should have been, appellants explanation
may have been believed by the members. I would reverse under our case law.


EFFRON, Judge, with whom SULLIVAN, Judge, joins
(dissenting):
I agree with the majority that we should not
revisit or disturb our holding in United States v. Quillen, 27 MJ
312 (1988). I also agree that we should assume for purposes of this appeal
that under Quillen, the AAFES security personnel were required to
advise appellant of his rights under Article 31, Uniform Code of Military
Justice, 10 USC § 831. I do not agree with the majority, however,
that the security personnel were not required to give Article 31 warnings
because they did not interrogate appellant.

A. Interrogation of Appellant
1. Background
AAFES store detective Rodarte testified that
she saw appellant place merchandise under his clothes and leave the post
exchange. After calling for her supervisor as backup, they stopped appellant
near the PX parking lot about 35 or 40 feet from the building. They identified
themselves as store security personnel and invited appellant to come to
the manager's office to talk. Appellant complied.
Ms. Rodarte testified that if appellant had
not agreed to go with them to the office, she "would have followed him
to his car, taken down his [license] plate number, and called the base
DODs [Department of Defense (DoD) police]." The AAFES personnel did not
use handcuffs or any other kind of physical restraint, and they did not
touch appellant in any manner. Ms. Rodarte stated that appellant "could
get up and walk out at any time. I'm not gonna touch him." The AAFES personnel
did not tell appellant that he was "under arrest," in custody, under detention,
or that "in any way, shape, or form" he could not leave. Ms. Rodarte noted
that, in the past, she had permitted people to "walk out on" her. In such
circumstances, AAFES security personnel would simply follow the person,
take down the license plate number, and call the DoD police.
Ms. Rodarte testified that after appellant
accompanied her and her supervisor to the office, she made the following
comment to appellant: "There seems to be some AAFES merchandise that has
not been paid for." According to Ms. Rodarte, appellant responded, "You
got me," and removed various items of merchandise from "under his clothing"
and his pocket. DoD police arrived shortly thereafter. Appellant testified
that he carried all the merchandise in open view and that nothing was hidden
on his person. He denied making the incriminating statement.
During litigation on appellant's motion to
suppress Ms. Rodarte's testimony regarding his incriminating statement,
Ms. Rodarte testified that the store security personnel were trained not
to initiate questions, but to make the precise statement at issue in this
case: "There seems to be some AAFES merchandise that has not been paid
for." When trial counsel asked her whether she "was expecting any type
of response" to the statement at issue, Ms. Rodarte stated that she "hope[d]
to get a response".
The record is devoid of any evidence that the
AAFES security personnel were trained to make the statement at issue in
order to facilitate arrest, custody, or detention, or that it served any
purpose other than to provoke an incriminating response. Instead, the record
makes clear that the store detectives were trained to make the statement
specifically in hopes of provoking a verbal or non-verbal incriminating
response. As Ms. Rodarte testified, the statement at issue was designed
to give a suspect "a chance to voluntarily place it [the merchandise in
question] on the desk if they want to."
The military judge ruled that evidence of appellant's
statement was admissible. She concluded that the facts of this case were
distinguishable from Quillen, that Rodarte was not a person subject
to Article 31's warning requirements, and that her statement to appellant
was not an interrogation. She expressed concern that if Rodarte's statement
was viewed as an interrogation, "security personnel would be precluded
from even informing a suspected shoplifter why they were being detained."
2. Discussion
As the majority opinion recognizes, "[I]nterrogation
involves more than merely putting questions to an individual" and it includes
"'any formal or informal questioning in which an incriminating response
is sought or is a reasonable consequence of such questioning.' Mil. R.
Evid. 305(b)(2)." ___ MJ at (8). Indeed, commentators have observed that
Mil. R. Evid. 305(b)(2) "was purposefully drafted in a broad fashion to
thwart 'attempts to circumvent warnings requirements through subtle conversations.'"
___ MJ at (8), quoting S. Saltzburg, L. Schinasi, and D. Schlueter, Military
Rules of Evidence Manual 225 (4th ed. 1997). When government personnel
who are required to give Article 31 warnings against self-incrimination
make the type of comment that is attendant to events such as arrest or
custody, rights' warnings are not required. See Rhode Island
v. Innis, 446 U.S. 291, 301 (1980).
In the present case, if the store had a detention
policy that required agents to make a statement reasonably designed to
facilitate detention, no rights' warnings would have been required. The
record in the present case, however, not only fails to demonstrate that
there was any such policy, but also makes it quite clear that appellant
was not detained and that the comment had no purpose other than to hopefully
provoke an incriminating response, rather than merely communicating information.
See
United States v. Byers, 26 MJ 132, 135 n.2 (CMA 1988).
Under the principles of law set forth in the
majority opinion, with which I agree, the record establishes both the subjective
and the objective measures of an interrogation found in Mil. R. Evid. 305(b)(2).
In making her comment to appellant, Ms. Rodarte sought to provoke an incriminating
response and an incriminating response was a reasonable consequence of
her comment.

B. Prejudice
1. Background
Appellant's incriminating statement was an
important focal point of the prosecution's case. In trial counsel's brief
opening statement to the members, there were two references to appellant's
incriminating statement. During the prosecution's case-in-chief and rebuttal,
Ms. Rodarte repeatedly testified about the statement. The military judge
specifically addressed the incriminating statement in her instructions,
charging the members that they could consider the statement on the issue
of appellant's guilt if they were convinced beyond a reasonable doubt that,
in fact, appellant had made the statement.
Trial counsel made appellant's incriminating
statement the focal point of his closing argument. At the very outset of
his argument to the members, trial counsel said:
"You got me." That was the culmination of the
events on the 23rd of November 1996.
Trial counsel concluded his closing argument
on the same note with a final reference to appellant's incriminating statement:
"You got me." Yes, yes, we do. We've got you,
and we ask that you convict him.
Likewise, in trial counsel's argument in rebuttal,
he twice more quoted appellant's incriminating statement.
2. Discussion
The Government asks us to sustain the military
judge's conclusion that even if the statement was inadmissible, any error
in failing to provide rights' warnings was harmless. The Government notes
that the DoD police, who arrived shortly after appellant's stop in response
to the store detective's call, would have had probable cause to apprehend
appellant and to search him incident to his apprehension. In the course
of that process, the merchandise hidden on appellant's person would have
been discovered. The Government contends that Ms. Rodarte's observations
of appellant, coupled with the physical evidence of the merchandise that
would have been found on his person during a search incident to apprehension,
sealed appellant's doom, regardless of his incriminating statement.
The Government's position does not address
the critical role that appellant's statement played in the case against
him. Appellant disputed all testimony suggesting that he had surreptitiously
concealed any merchandise in an attempt to steal it. The prosecution relied
heavily on appellant's incriminating statement to undermine his testimony
at trial. The prosecution made frequent and obvious use of the statement
in its opening remarks, during its case-in-chief, during rebuttal on the
merits, during its closing argument, and during the rebuttal argument.
In this context, the error clearly was prejudicial.


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