UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                          Before
                              LIND, 1 KRAUSS, 2 and PENLAND
                                 Appellate Military Judges

                             UNITED STATES, Appellee
                                          v.
                         Specialist GARNARD W. BURNSIDE
                            United States Army, Appellant

                                      ARMY 20130193

                  Headquarters, 21st Theater Sustainment Command
                         Reynold P. Masterton, Military Judge
          Lieutenant Colonel Sean C. McMahon, Acting 3 Staff Judge Advocate


For Appellant: Mr. William E. Cassara, Esquire (argued); Captain Timothy J.
Kotsis, JA; Mr. William E. Cassara, Esquire (on brief); Captain Patrick J. Scudieri,
JA.

For Appellee: Captain Jaclyn E. Shea, JA (argued); Major A.G. Courie III, JA;
Major John K. Choike, JA; Captain Jaclyn E. Shea, JA (on brief).


                                        6 August 2015

                                 ----------------------------------
                                  OPINION OF THE COURT
                                 ----------------------------------

PENLAND, Judge:

       A panel with enlisted representation sitting as a general court-martial
convicted appellant, contrary to his pleas, of three specifications of rape and one
specification of assault consummated by a battery in violation of Articles 120 and
128, Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 920, 928
(2012). The panel sentenced appellant to a dishonorable discharge, confinement for


1
    Senior Judge LIND took final action in this case prior to her retirement.
2
    Judge KRAUSS took final action in this case prior to his retirement.
3
  We note that the pretrial advice was signed by the “Deputy Staff Judge Advocate.”
Rule For Courts-Martial (R.C.M.) 406 requires the staff judge advocate to personally
sign the pretrial advice. We hold such error harmless in this case.
BURNSIDE — ARMY 20130193

two years, forfeiture of all pay and allowances, and reduction to E-1. The convening
authority approved the adjudged sentence.

        We review this case under Article 66, UCMJ. Appellant raises two
assignments of error. His first assigned error alleging the military judge abused his
discretion when he denied the defense motion to suppress appellant’s sworn
statement taken in violation of the Fifth Amendment and Article 31, UCMJ, because
US Army Criminal Investigation Command (CID) Special Agents (SA) PS and RW
failed to scrupulously honor appellant’s invocation of the right to remain silent,
merits discussion and relief. We have considered matters personally submitted
pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982); they are without
merit. 4

       We hold the military judge abused his discretion, resulting in prejudice, when
he denied appellant’s motion to suppress his oral and written statements to CID
agents, who failed to scrupulously honor appellant’s invocation of his constitutional
right to remain silent and obtained involuntary statements from him. We grant relief
in our decretal paragraph.

                                  BACKGROUND

       On 22 August 2012, appellant’s spouse, NB, contacted military police (MP) in
Heidelberg, Germany, and alleged that appellant assaulted her. Military Police
authorities forwarded this information to appellant’s commander, who ordered a
subordinate officer to take appellant to the MP Investigations (MPI) office at
Kapaun Air Station the next day. At 0900 on 23 August 2012, appellant was taken
to the MPI office, where Investigator (INV) RJ advised appellant that he suspected
him of assault; INV RJ further advised appellant of his rights to silence and counsel,
which he waived. For two hours, appellant talked to INV RJ about a physical
altercation with NB, but appellant explicitly told him he did not want to provide a
written statement. Appellant told INV RJ that: toward the end of the altercation, he
made sexual advances toward NB; NB said “no” multiple times, then ultimately said,
“[d]o whatever you want with me,” after which appellant engaged in sexual activity
with NB.

       Hearing appellant’s characterization of this sexual encounter, INV RJ asked
no more questions but allowed him to continue talking. When appellant finished,
INV RJ excused himself and called the MP noncommissioned officer (NCO) who
received NB’s initial complaint. Investigator RJ asked the NCO whether NB had
mentioned any sexual activity regarding appellant on the night of their physical
altercation; NB had not.


4
 Resolving this case in light of the Fifth Amendment, we need not address Article
31 or appellant’s second assignment of error.


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BURNSIDE — ARMY 20130193

       Investigator RJ then contacted SA PS at the CID office in Kaiserslautern and
requested CID assume authority for the investigation. Special Agent PS agreed to
take over and told INV RJ he would come to the MPI office. However,
understanding INV RJ had developed rapport with appellant during their two-hour
interview, SA PS instructed INV RJ to again advise appellant of his rights to counsel
and silence for the offense of rape using Department of the Army Form (DA) 3881
and continue interviewing him.

      Investigator RJ followed SA PS’s guidance and re-advised appellant, who
invoked his right to silence upon learning he was now a rape suspect. At 1147 hours
on 23 August 2012, appellant checked the block on the DA 3881 Form next to the
words, “I do not want to be questioned or say anything.” Investigator RJ contacted
SA PS again and informed him of appellant’s invocation. Special Agent PS
responded he was en route to INV RJ’s office.

       Special Agent PS arrived at the MPI office a few minutes later, and INV RJ
briefed him again on his interview with appellant. Investigator RJ and another MP
Investigator drove appellant to the Kaiserslautern CID office approximately twenty
minutes away on Kleber Kaserne. Appellant was transferred into CID custody, and
after multiple hours of “administrative processing,” SA PS again advised him of his
rights to silence and counsel, again using a DA Form 3881 to inform him he was
suspected of rape. Special Agent PS informed appellant that, because another law
enforcement agency had previously advised him of these rights, CID was required to
advise him anew. Appellant waived his rights to silence and counsel at 1545 on 23
August 2012 and began his interview with SA PS, during which he admitted to facts
amounting to rape and assault consummated by battery. After appellant said
multiple times that he would not provide a written statement, SA PS ended the
interview and prepared to release him to his unit.

        At 2030 hours on 23 August 2012, CID agents informed appellant’s unit that
he was ready to be picked up. Sergeant ED was tasked with this escort duty and he
arrived at the CID office at 2100. A CID official met him in the entry foyer and told
him appellant was completing some paperwork and would be ready to leave in a few
minutes. About fifteen minutes later, another CID official came into the foyer and
told SGT ED “that they were still trying to finish some things up and it would be
just a little bit longer.” After the second CID official returned to the office interior,
SGT ED heard appellant speaking with the CID officials. Sergeant ED heard CID
officials tell appellant that it “would only help him if he would tell them what
happened.” He also heard appellant say he “did not want to, that he told them
everything he wanted to . . . . [h]e was tired” and “just done.” Criminal
Investigation Command officials told SGT ED to leave and that CID would call him
when appellant was ready to leave. Special Agent RW then spoke with appellant.
Between 2100 on 23 August 2012 and 0509 on 24 August 2012, appellant provided




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BURNSIDE — ARMY 20130193

SA RW with a written statement. Appellant’s oral statements to SA PS and written
statement to SA RW were used against him in his court-martial.

                               A. Motion to Suppress

        The defense filed a motion to suppress appellant’s oral and written statements
to CID because CID failed to scrupulously honor appellant’s invocation of his right
to silence to MPI INV RJ. The military judge held an Article 39(a) session to
litigate the motion on 5 February 2013. The government approached its
interlocutory burden of proof by introducing summarized testimony from SA PS and
SA RW given at appellant’s Article 32 investigation. At the Article 32 investigative
hearing, SA PS testified, according to the summarized transcript, he was aware
appellant had invoked his right to silence at the MPI office, however “since
[appellant] invoked his right to not speak with an [sic] Military Police Investigation
Investigator, we would re-advise him and see if he would like to make a verbal or
written statement to our office . . . . The rights [appellant] was provided were by
Military Police Investigations which is a separate investigative agency, which was
earlier in the morning.” Special Agent PS testified, again according to the
summarized transcript, appellant was willing to give an oral statement to him about
the alleged rape of NB but he refused to provide a written statement. At that point
SA PS decided to end the interview and arranged to have SGT ED retrieve appellant.
Special Agent PS also testified at the Article 32 that when completing administrative
processing to release appellant, appellant complained that SA PS’s words would
represent “his story.” Special Agent RW was leaving the building and overheard
appellant. Special Agent RW told appellant he could put his story in writing “your
words, your story.” Appellant then agreed to make a written statement.

       Special Agent RW’s summarized Article 32 testimony states that he saw
appellant in the CID processing room. Special Agent RW introduced himself as
“with the Kaiserslautern office for the Special Victim’s unit” and SA RW believed
appellant knew he was a CID agent. Appellant asked him “what he needed to do
next.” Special Agent RW told appellant the next step was to provide a written
statement which could be that night or the next day. Appellant followed SA RW out
of the room and told him he wanted to provide a written statement that evening,
which he did.

       The defense called MPI INV RJ, MPI INV TJ, SGT ED, and appellant to
testify. Investigator RJ testified he set up appellant’s appointment with MPI on 23
August 2012 to discuss the alleged assault of NB. Appellant waived his rights to
silence and to an attorney and agreed to give a verbal statement but not a written
one. When appellant made rape admissions, INV RJ called SA PS and briefed him
on the situation. Special Agent PS told INV RJ to advise appellant of his rights
because he and appellant had built a good rapport and SA PS thought it would be
“easier for [INV RJ] to get through the form with [appellant].” Investigator RJ



                                          4
BURNSIDE — ARMY 20130193

advised appellant of his rights for being a suspect of committing a rape. Appellant
signed the DA 3881 form invoking his right to remain silent. Shortly thereafter SA
PS arrived and appellant was transported to the CID office. 5

       Sergeant ED testified he received a call at approximately 2030 hours on 23
August 2012 from CID that appellant was ready for pick up. Sergeant ED drove to
CID and arrived in approximately fifteen minutes. He waited for approximately
fifteen minutes when a CID agent advised him they were finishing up with appellant
and it would be just a little longer. SGT ED heard a conversation between a CID
agent and appellant that “it would only help them if he would tell them what
happened.” Appellant repeatedly replied he “told them everything he wanted to. He
just wanted—or he was tired, he was just done.” A few minutes later, a CID agent
told SGT ED that appellant changed his mind and wanted to continue to talk to CID
and that SGT ED should leave and come back later. Sergeant ED left and received a
telephone call at approximately 0430 hours on 14 August 2012 to come to CID and
pick up appellant. When he arrived, appellant looked “a bit bedraggled . . . .
[E]xtremely tired . . . . a bit anxious about everything that happened.”

       Finally, appellant testified for the motion. He testified that he was ordered to
go to MPI and that he agreed to give an oral statement about the assault allegation
but did not want to give a written statement. When advised of his rights for rape,
appellant testified he told INV RJ he had “nothing to discuss about that” and
checked the block on the DA 3881 form indicating he did not want to be questioned.
Appellant was then transported to CID and was not free to leave. At CID, appellant
was administratively processed then taken to an interview room. Special Agent PS
advised appellant of his rights stating appellant had to complete the rights advisal
form because it was a different form than used by MPI, the earlier rights advisal
form he completed at MPI “didn’t count,” and SA PS instructed him to sign the form
acknowledging that he would be talking to SA PS without a lawyer. Appellant spoke
with SA PS for five to six hours but refused to give a written statement. Then, while
appellant was in the processing room pending release, he was approached by SA RW
who “introduced himself as a special victims [sic] guy.” Appellant replied “so you
are the Family Advocate Program representative that I am supposed to meet with.”
Special Agent RW answered “yes’ and told appellant he needed to get appellant’s
statement and that SA RW had nothing to do with the investigation. Special Agent
RW told appellant he needed the statement that evening and that appellant should
not rely on SA PS’s words to tell his story. Appellant testified SA RW told him that
he needed to make a written statement because “the statement would be going to a
panel for like a case review and because I am African-American . . . it was important
for me to write down in my own words what happened because the people on this
panel don’t reflect African-Americans.” Appellant then made a written statement.
On cross-examination appellant testified SA RW did not say his statement would go


5
    Military Police Investigator TJ testified consistently with MPI INV RJ.


                                            5
BURNSIDE — ARMY 20130193

to a case review panel that discriminated against African-Americans but that was
“the impression of what he was implying.”

                             B. The Military Judge’s Ruling

         In an email dated 11 February 2013, the military judge ruled:

               I have decided to deny the defense’s suppression motion.
               Below is a summary of my findings; I may provide more
               detailed findings at trial. 6

               The defense has asked me to suppress certain oral and
               written statements made by the accused to CID agents on
               23 and 24 August 2012. Based on the defense motion [App.
               Ex. III] and government response [App. Ex. IV] and the
               evidence submitted by the parties I find and rule as follows:

               1. The accused is charged with rape and assault of his wife,
               [NB], on 22 August 2012.

               2. On the early morning of 22 August, [NB] contacted the
               military police to report a domestic incident involving her
               husband, the accused. The accused’s chain of command
               ordered the accused to report to Military Police
               Investigations office (MPI) early in the morning of 23
               August to be questioned regarding the incident.

               3. The accused was escorted to MPI on the morning of 23
               August. The accused was read his rights for assault by MPI
               Investigator [RJ], using a Rights Warning Waiver
               Certificate, DA Form 3881 [App. Ex. III, Encl. 1]. The
               accused voluntarily waived his rights, agreeing to talk
               about the incident. The accused explained that he and his
               wife had been involved in a mutual affray.             MPI
               Investigator [TJ] was also present for portions of the
               interview.    The accused refused to make a written
               statement.    At the end of the interview the accused
               explained that he had sex with his wife and she said “no –
               no – no” and then “do what you want with me.”

               4. Suspecting the accused of rape, [INV RJ] realized that
               the case was no longer within the purview of MPI. The


6
    The military judge did not supplement his ruling.


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BURNSIDE — ARMY 20130193

         relevant Army regulations provide that assault allegations
         will be investigated by MPI, while rape allegations should
         be investigated by the Army Criminal Investigation
         Division [sic] (CID). [Investigator RJ] contacted CID and
         made arrangements to transfer the accused to their office
         for processing. CID [sic] told [INV RJ] to go ahead and
         read the accused his rights for rape, since [INV RJ] was
         already in the process of interviewing the accused.

         5. When [INV RJ] read the accused his rights for rape at
         approximately 1147, again using a DA Form 3881 [App. Ex.
         III, Encl. 2], the accused invoked his right to remain silent,
         explaining that he did not want to discuss his private sexual
         life. The accused did not invoke his right to an attorney
         and at no time asked for an attorney. The accused was
         simply not interested in talking to [INV RJ] about the rape
         allegation at that time. The accused checked the block at
         the bottom of the form indicating that he did not want to be
         questioned; he did not check the block asking for a lawyer.
         [Investigator RJ] immediately stopped questioning the
         accused and continued making arrangements to transport
         the accused from his office to the CID office, which was on
         another military installation a short distance away.
         [Investigator RJ] informed CID that the accused had
         invoked his right to remain silent.

         6. [Investigators RJ and TJ] subsequently transported the
         accused to the CID office where the accused was processed,
         as required. This processing included, among other things,
         the taking of fingerprints, mug shots and the collection of a
         DNA sample and administrative data. The accused was read
         his rights for rape by [SA PS] of CID at approximately
         1545, again using a DA Form 3881 [App. Ex. III, Encl. 6].
         This time he waived his rights and agreed to talk to CID.
         The accused made a number of statements to CID and
         eventually gave a full written statement. The written
         statement was completed at approximately 0509 [hours] on
         24 August [App. Ex. III, Encl. 8]. At no time during the
         interview with CID did the accused ask for an attorney or
         even hint that he wanted an attorney. He wanted to orally
         tell his side of the story to CID and eventually wanted to
         put his story in writing. This took a long while, but the
         accused was never coerced to provide a statement, either
         written or oral.



                                       7
BURNSIDE — ARMY 20130193

         7. Between the time that the accused initially invoked to
         remain silent to MPI and the time he waived his rights to
         CID, approximately four hours had passed. The accused
         was transported to CID only because this was required by
         Army regulations and not in an effort to subvert his right to
         remain silent. The accused was in a different location, the
         CID office, and was being questioned by a different
         investigator, [SA PS], when he waived his rights at 1545.

         8. The accused testified at the motions hearing that he was
         under the impression that he had to talk to MPI and CID. I
         do not find this [testimony] to be credible; it is contradicted
         by the rights warnings he was given. I find that the accused
         was properly advised of and understood his rights to remain
         silent and to speak with an attorney. The accused also
         testified that [SA RW] mis-identified himself as a “special
         victims” person, implying that he was working for a family
         advocacy agency rather than law enforcement. I do not
         believe the accused on this point; [SA PS] clearly identified
         himself as a CID agent in the Rights Warning Waiver
         Certificate completed at 1545. The accused also testified
         that CID failed to give him breaks and gave him nothing to
         eat or drink during his questioning, other than a single bag
         of chips and a small bottle of water. I do not find this
         testimony to be completely credible. In the accused’s
         sworn statement he admitted that he had been given breaks
         and that he had been given nutrition, beverages, and breaks.
         Although the accused testified that CID simply made up the
         answers to these questions, I do not believe the accused’s
         testimony on this point. I believe the testimony which [SA
         PS] gave at the Article 32 investigation (enclosure 5 of AE
         III) that the accused was given several breaks and was
         approached several times and offered food and water; all
         the accused asked for was water and chips. I find that the
         accused was provided reasonable breaks and received all
         the food and water that he requested. I also find that the
         accused was willing to give his side of the story by talking
         to the CID agents. I find that the accused’s statements to
         CID, both oral and written, were voluntary.

         9. I find that neither the accused’s right to remain silent
         under the Fifth Amendment [see Michigan v. Mosley, 423
         US 96 (1975)] nor his Article 31 rights [see United States
         v. Watkins, 34 MJ 344 (C.M.A. 1992)] were violated when



                                       8
BURNSIDE — ARMY 20130193

             CID re-advised the accused of his rights four hours after he
             had invoked his rights to remain silent to MPI investigators.
             I also find that the accused’s subsequent statements to CID
             were voluntary.

             10. Based on the forgoing, the defense motion is denied.

                                        LAW

      “A military judge’s decision to admit or exclude evidence is reviewed for an
abuse of discretion.” United States v. Olson, 74 M.J. 132, 134 (C.A.A.F. 2015)
(quoting 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.’” Id. (quoting United States v. Wicks, 73 M.J. 93,
98 (C.A.A.F. 2014)).

       In response to appellant’s motion to suppress, “the prosecution [had] the
burden of establishing the admissibility of the evidence.” Military Rule of Evidence
[Mil. R. Evid.] 304(e). “The military judge must find by a preponderance of the
evidence that a statement made by the accused was made voluntarily before it may
be received into evidence.” Mil. R. Evid. 304(e)(1). “If a person chooses to
exercise the privilege against self-incrimination . . . questioning must cease
immediately” Mil. R. Evid. 305(f)(1). Non-compliance with Mil. R. Evid. 305(f)
renders a statement involuntary. Mil. R. Evid. 304(a). “The military judge’s
determination that a confession is voluntary is a question of law, requiring
independent, i.e., de novo, review.” United States v. Ford, 51 M.J. 445, 451
(C.A.A.F. 1999) (citing Arizona v. Fulminante, 499 U.S. 279, 287 (1991)); see also
United States v. Bubonics, 45 M.J. 93 (C.A.A.F. 1996).

       The privilege against self-incrimination is a fundamental Constitutional right.
“No person . . . shall be compelled in any criminal case to be a witness against
himself . . . .” U.S. Const. amend. V. In Miranda v. Arizona, 384 U.S. 436 (1966),
the U.S. Supreme Court established required warnings in order to improve
compliance with that right. The warnings included pre-interrogation notice of the
right to remain silent. Miranda further established that such a person’s statements
could be used only after the prosecution demonstrated he was notified of these rights
and knowingly and intelligently waived them, adding, “any evidence that the
accused was threatened, tricked, or cajoled into a waiver will, of course, show that
the defendant did not voluntarily waive his privilege.” Miranda, 384 U.S. at 476.

       In United States v. Tempia, 16 U.S.C.M.A. 629, 37 C.M.R. 249 (1967), our
superior court adopted the rights warnings of Miranda for trials by courts-martial.
Necessary corollaries from the rights warnings entitlements include the one at the
heart of appellant’s case: “[i]f the individual indicates . . . prior to or during



                                          9
BURNSIDE — ARMY 20130193

questioning, that he wishes to remain silent, the interrogation must cease.”
Miranda, 384 U.S. at 473-474. This common law principle developed into the
enduring restatement in Michigan v. Mosley, 423 U.S. 96 (1975): “the admissibility
of statements obtained after the person in custody has decided to remain silent
depends under Miranda on whether his ‘right to cut off questioning’ was
‘scrupulously honored.’” Id. at 104. Applying Mosley to courts-martial, our
superior court described what may be described as a totality of the circumstances
analysis in United States v. Watkins, 34 M.J. 344 (C.M.A. 1992):

              Whether there is a violation of Miranda by approaching an
              individual after invoking his rights depends on which right
              was invoked, who initiates communication, the subject
              matter of the communication, when the communication
              takes place, where the communication takes place, and the
              time between invocation of the right and the second
              interview.

Id. at 345.

      Whether a suspect is in custody for purposes of Miranda warnings is a “de
novo question of law to be decided on the basis of the facts found by the factfinder
(the CCA)”. United States v. Catrett, 55 M.J. 400, 404 (C.A.A.F. 2001) (citing
Thompson v. Keohane, 516 U.S. 99, 112-13 (1995)).

                                     ANALYSIS

       We respect the primacy of the military judge in deciding interlocutory matters
such as these and do not hastily substitute our own judgment for his, because “[t]he
abuse of discretion standard is a strict one, calling for more than a mere difference
of opinion.” United States v. Jones, 73 M.J. 357, 360 (C.A.A.F. 2014) (quoting
United States v. McElhaney, 54 M.J. 120, 130 (C.A.A.F. 2000)); see also United
States v. Flesher, 73 M.J. 303 (C.A.A.F. 2014) (abuse of discretion occurs when a
“military judge’s decision on the issue at hand is outside the range of choices
reasonably arising from the applicable facts and the law.”). However, we give less
deference to the military judge when his conclusions of law are based on incomplete
findings of fact. United States v. Collier, 67 M.J. 347, 353 (C.A.A.F. 2009)(citing
United States v. Manns, 54 M.J. 164, 166 (C.A.A.F. 2000)).

       The military judge’s ruling did not address two decisive matters: appellant’s
unambiguous invocation of his right to remain silent and SGT ED’s testimony. The
ruling did not conclude whether appellant unambiguously invoked his right to
silence in response to INV RJ’s warning that he suspected him of raping NB. The
ruling did not mention appellant’s multiple invocations of his right to silence at the
CID office. This claim was an essential point for the military judge to consider; if



                                          10
BURNSIDE — ARMY 20130193

appellant did not unambiguously invoke, Army law enforcement would have been
free to interrogate him. We reject the government’s arguments on appeal that
appellant ambiguously invoked at the MPI office. In its brief, the government
emphasizes appellant’s statements in response to the second rights warning: “I’m
confused. I am not sure why it is going this way. I am not sure why CID is getting
involved. . . . I just don’t want to talk to you. I don’t want to write a statement.”
Assuming arguendo that these last two sentences were ambiguous, appellant
resolved any doubt on the matter when, in the presence of two MPI investigators, he
checked the block next to the words, “I do not want to be questioned or say
anything.” The government asserts that SA PS knew appellant “had elected that he
did not want to speak to [MPI],” but it was unclear whether appellant had invoked
his right to not speak with a CID agent. This argument is unpersuasive. 7 The right
to remain silent in a criminal case emanates from the Constitution, not individual
law enforcement offices or agents.

       The ruling did not mention SGT ED’s testimony. Sergeant ED was the most
objective, disinterested witness relevant to the matter of appellant’s experience at
CID. During the night of 23 August 2012, SGT ED heard multiple CID agents
pressuring appellant to submit a written statement, despite his continued protests
that he had already told them everything he had to say and wanted to leave the CID
office. Appellant was noticeably fatigued when he was released from CID custody
at around 0500 hours the next morning—very shortly after signing the written
statement. The military judge could not make reliable conclusions of law without
evaluating the testimony of SGT ED. 8

7
 We note the following from trial counsel’s written response to the motion to
suppress: “The Accused explicitly invoked his right to remain silent by selecting the
appropriate box on the DA Form 3881. . . .” (emphasis added).

8 The  military judge’s ruling did address appellant’s claim that SA RW mis-
identified himself as a Family Advocacy representative, but the underlying logic is
somewhat unclear. The military judge found, “I do not believe the accused on this
point; [SA PS] clearly identified himself as a CID agent in the Rights Warning
Waiver Certificate completed at 1545.” However, we are unable to discern how SA
PS’s self-identification during the previous rights warning at 1545 hours is probative
of whether SA RW truthfully identified himself several hours later.

      The military judge’s ruling did not explicitly address appellant’s claim that
SA RW invoked race in his effort to obtain a written statement. We note that, if
credible, this allegation would indicate “unwarranted references to race or ethnicity

                                                                      (continued . . .)




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BURNSIDE — ARMY 20130193

       In evaluating the motion to suppress and the evidence before the military
judge, we conclude that while in law enforcement custody, appellant unambiguously
invoked his right to remain silent with respect to the rape allegation against him.
Applying the Watkins factors, we further hold that SA PS and SA RW did not
scrupulously honor appellant’s decision to remain silent. We note first that after
appellant invoked his right to silence to INV RJ, he remained in the inherently
coercive atmosphere of law enforcement custody and interrogation. Appellant was
transported from MPI’s interrogation room to CID’s interrogation room.
Approximately four hours later, SA PS initiated the communication with appellant
by again advising him of his rights to silence and counsel, telling him, in so many
words, that the previous rights warning and his invocation were of no legal effect.

       The record demonstrates that SA PS, rather than acknowledge appellant’s
invocation of his right to silence to INV RJ or simply ask appellant whether he
would be willing to speak with CID despite his previous invocation, suggested that
the previous invocation did not mean anything, advised him again and questioned
him regarding the same rape allegation of which INV RJ previously informed
appellant. This fact in conjunction with the totality of the circumstances, including
the agents’ subsequent disregard of appellant’s repeated requests to cease the
interrogation, informs our conclusion that CID failed to scrupulously honor
appellant’s right to remain silent. By logic, telling a suspect his previous invocation
of a right is invalid cannot be somehow equivocated to “scrupulously honoring” that
same invocation. To the opposite, the CID agents did nothing but dishonor or
invalidate the previous invocation. Appellant’s subsequent waiver of that right was
involuntary under Miranda. Accordingly, the military judge erred in denying the
defense motion to suppress appellant’s oral statements to SA PS and appellant’s
written statement to SA RW.

       We acknowledge SA PS’s explanation that, as a law enforcement agency
distinct from MPI, CID was required to re-administer the rights warnings. His logic
was objectively inconsistent and unsupported by the facts. The record establishes
that SA PS instructed INV RJ to re-advise appellant and continue interviewing him
in response to the allegation of rape. If appellant had waived his rights and spoken
to INV RJ about the rape allegation, CID would have honored that decision.
However, CID refused to honor appellant’s decision to invoke. Army law
enforcement authorities cannot have it both ways.



(. . . continued)
[that] have no place in either the military or civilian forum.” United States v.
Rodriguez, 60 M.J. 87, 89 (C.A.A.F. 2004). If credible, the allegation would also
indicate unlawful psychological coercion probative of whether CID agents
scrupulously honored appellant’s constitutional right to silence and whether his
written statement was voluntary.  


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      Our reasoning with respect to the constitutional violation surrounding
appellant’s oral statements to SA PS applies equally to the written statement that SA
RW obtained. The military judge made conclusions of law without considering the
testimony of SGT ED, an objective, disinterested witness. During the night of 23
August 2012, he heard multiple CID agents pressuring appellant to submit a written
statement, despite appellant’s continued protests that he had already told them
everything he had to say and wanted to leave the CID office. It is only after SGT
ED heard this discussion that appellant gave his written statement to SA RW. Based
on these facts, we conclude as a matter of law that SA RW did not scrupulously
honor appellant’s constitutional right to remain silent under Mosley.

       Considering the constitutional error in this case, we assess whether it was
harmless beyond a reasonable doubt. United States v. Mott, 72 M.J. 319, 332
(C.A.A.F. 2012) (citing United States v. Paige, 67 M.J. 442, 449 (C.A.A.F. 2009)).
Constitutional error “[is] not harmless beyond a reasonable doubt if ‘there is a
reasonable possibility that the evidence complained of might have contributed to the
conviction.’” Id. at 332 (quoting United States v. Moran, 65 M.J. 178, 187
(C.A.A.F. 2007) and Chapman v. California, 386 U.S. 18, 24 (1967)). We also are
mindful that “[e]rroneous admission of a confession ‘requires a reviewing court to
exercise extreme caution before determining that the admission of the confession at
trial was harmless.’” Id. at 332 (quoting Arizona v. Fulminante, 499 U.S. 279, 296
(1991)). There is no reasonable possibility that appellant’s admissions to SA PS
and SA RW contributed to his conviction for assault consummated by a battery.
These statements were cumulative with appellant’s properly admitted statement to
INV RJ. There is, however a reasonable possibility that appellant’s statements to
SA PS and SA RW contributed to appellant’s convictions of the three specifications
of rape where—in its opening statement, case-in-chief, closing and rebuttal
arguments—the government prominently emphasized statements obtained in
violation of the Fifth Amendment and where the panel’s findings were remarkably
consistent with admissions in those statements.

                                  CONCLUSION

       The findings of guilty to Specifications 1, 2, and 3 of Charge I and Charge I
are set aside. The remaining findings of guilty are AFFIRMED. The sentence is set
aside. A rehearing may be ordered by the same or a different convening authority.
See generally R.C.M. 810. All rights, privileges, and property, of which appellant
has been deprived by virtue of the findings and sentence set aside by this decision
are ordered restored. See UCMJ arts. 58a(b), 58b(c), and 75(a).

      Senior Judge LIND and Judge KRAUSS concur.




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                           FOR THE
                           FOR THE COURT:
                                   COURT:




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




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