

   
   
   
   U.S. v. Mitchell



IN THE CASE OF
UNITED STATES, Appellee
v.
Claudius L. MITCHELL, Aviation Ordnanceman
Second Class
U.S. Navy, Appellant
 
No. 98-0248
Crim. App. No. 96-0587
 
United States Court of Appeals for the Armed
Forces
Argued December 2, 1998
Decided August 12, 1999
SULLIVAN, J., delivered the opinion of
the Court in which COX, C.J., and GIERKE and EFFRON, JJ., joined. CRAWFORD,
J., filed a dissenting opinion.

Counsel
For Appellant: Lieutenant Robert
Attanasio, JAGC, USNR (argued).
For Appellee: Lieutenant James
E. Grimes, JAGC, USNR (argued);
Colonel Kevin M. Sandkuhler,
USMC, and Commander D. H. Myers, JAGC, USN (on brief); Colonel
Charles Wm. Dorman, USMC, and Lieutenant Commander Nancy Blankenship
Jones, JAGC, USN.
Military Judge: David P. Holcombe
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION.

Judge SULLIVAN delivered the opinion of the
Court.
In January of 1995, appellant was tried by
a general court-martial consisting of officer members at Naval Air Station,
Jacksonville, Florida. Contrary to his pleas, he was found guilty of attempted
premeditated murder; willful damage to military property; larceny; assault
intentionally inflicting grievous bodily injury; 1
and simple assault, in violation of Articles 80, 108, 121, and 128, Uniform
Code of Military Justice, 10 USC §§ 880, 908, 921, and 928, respectively.
On January 7, 1995, he was sentenced to a dishonorable discharge, 29 years
confinement, total forfeitures, and reduction to E-1. On February 20, 1996,
the convening authority approved the adjudged sentence, but suspended confinement
in excess of 20 years for a period of 20 years from the date sentence was
adjudged. The Court of Criminal Appeals affirmed the approved findings
and sentence in an unpublished opinion dated April 30, 1997.
This Court granted review in this case on July
30, 1998, on the following issue:




I
WHETHER THE MILITARY JUDGE ERRED BECAUSE HE
DENIED APPELLANTS MOTION TO SUPPRESS THE STATEMENT TO CHIEF GRABIEL IN
VIOLATION OF APPELLANT'S CONSTITUTIONAL RIGHT TO COUNSEL.



We hold that the military judge prejudicially
erred when he denied the defense motion to suppress appellants pretrial
statements to Aviation Ordnanceman Chief Grabiel and admitted them at this
court-martial. United States v. Brabant, 29 MJ 259 (CMA 1989); United
States v. Reeves, 20 MJ 234 (CMA 1975); see generally Edwards v.
Arizona, 451 U.S. 477 (1981).
Appellant was arrested on June 4, 1994, after
he allegedly shot his shipmate, Aviation Structural Mechanic (Hydraulics)
First Class Darnell Johnson, USN. The parties to this trial stipulated
to certain facts pertinent to a defense motion to suppress some incriminating
statements made by appellant to Chief Grabiel, his leading petty officer
and work supervisor, the next day during a command visit to appellant in
the brig. The record of trial states:



TC: [Reading] Both counsel have agreed that
at approximately 0507, 4 June 1994, Security Department, Naval Air Station,
Key West, Florida, received a call reporting shots fired at Barracks Enlisted
Quarters 648. That QM2 Robert Bruchsaler, USN, attached to Security Department
received a dispatcher call to proceed to BEQ 648. After securing the crime
scene QM2 Bruchsaler was directed to advise the accused, who was sitting
in the rear seat of a patrol car, his Article 31(b) and counsel rights.
That QM2 Bruchsaler sat in the front seat of
the papatrol car with the accused in the rear seat and established that
the accused was coherent and proceeded to read the accused his Article
31(b) UCMJ and counsel rights from a rights warning card.
QM2 Bruchsaler stated that the accused understood
his rights and requested counsel. That prior to their meeting with the
accused on 5 June 1994, Commander Malinak, Lieutenant Gage, and AOC Grabiel
were aware of the fact that the accused was advised on 4 June of his Article
31(b) and counsel rights by Petty Officer Bruchsaler and that he had declined
to make a statement and requested counsel.
That all questioning by any security personnel
ceased after the accused declined to make a statement and requested a lawyer.
The Security Department, NAS, Key West, turned the case over to the Naval
Criminal Investigative Service, Key West, the same day relaying that the
accused request for--relaying the accused request for a lawyer and desire
not to make a statement. NCIS did not reread the accused rights nor ask
any questions of the accused.
TC: The following day, 5 June 1994, QM2 Bruchsaler
was assigned to guard the accused while the accused command made preparations
for the accused return to the Waterfront Brig, Naval Air Station, Jacksonville,
Florida. On 5 June 1994, around 1400, Lieutenant Jeff Gage, United States
Navy, Legal Officer of VFA-87; Commander Gregory E. Malinak, spelled M-A-L-I-N-A-K,
United States Navy, Executive Officer of VFA-87; and AOC Lawrence Grabiel,
United States Navy, Leading Chief Petty Officer of VFA-87, made contact
with the accused for the purpose of providing a command health and welfare
visit.
That Commander Malinak had been informed that
Petty Officer Mitchell was refusing to eat even though base security had
been offering food. For the purpose of ensuring that the air transportation
of the accused from Key West to the Waterfront Brig, NAS, Jacksonville,
was successfully completed and for Lieutenant Gage to provide the accused
notification of pretrial confinement rights and review process. That the--which
is agreed by both parties to admit the actual notification as a stipulation
of fact.
MJ: Ill make it a part of the stipulation.
Has this stipulation of fact been marked as Appellate Exhibit III?
TC: Yes, sir.
MJ: Thank you.
TC: That the executive officer of the accused
command requested AOC Grabiel to be present as the accuseds leading chief
petty officer and to provide support and a command visit.
Lieutenant Gage read verbatim from the notification
of pretrial confinement review process work sheet to the accused in the
presence of Commander Malinak and AOC Grabiel. The accused acknowledged
his rights in writing by requesting a military lawyer for his magistrate
hearing and to personally appear before the magistrate.
That neither the executive officer or Lieutenant
Gage inquired into any facts surrounding the alleged shooting incident
nor had they explicitly directed or even talked about that to AOC Grabiel
for him to make any such inquiry. After Lieutenant Gage informed the accused
of his pretrial confinement rights, he and Commander Malinak left the room.
AOC
Grabiel talked with the accused inquiring whether he needed anything like
cigarettes or anything to eat.
TC: After returning with cigarettes and
a milk shake, AOC Grabiel asked the accused without informing the accused
of Article 31(b) or counsel rights, "Was it worth it?" That
the accused did not initiate any questions regarding the shooting incident.
In response to this question the accused responded, "The way I wasraised,
it was an eye for an eye. He left me in the alley," or words to that effect.
Chief Grabiel was not acting on behalf of the
Security Department, NAS, Key West----

* * *
TC: The next one [sentence] is that the accused
when with Chief Grabiel did not initiate any questions regarding the shooting
incident.

* * *
TC: The last stipulation is that the accused
was flown from Naval Air Station, Key West, to the Waterfront Brig, NAS,
JAX, and that they departed at 2200 that Sunday, 5 June.



No evidence was presented at trial to suggest
that appellant and Chief Grabiel had any personal contact or friendship
outside of military duties. Chief Grabiel was called and testified that
his motivation to ask the questions was "out of personal curiosity" about
a member of his unit. After the command health and welfare visit, Naval
Criminal Investigative Service (NCIS) Agent Lederberg contacted Chief Grabiel,
as appellants supervisor, to question him about appellants character.
Chief Grabiel voluntarily told NCIS that he spoke with appellant and he
signed a statement on June 9 attesting to appellants incriminating answers.
In this statement, Chief Grabiel wrote in his own handwriting, "PO2 Mitchell
was read his rights by Lt. Gage prior to my questioning him."
At trial, defense counsel filed a written motion
to suppress those incriminating statements made by appellant in response
to Chief Grabiels questions alleging a violation of his Fifth Amendment
rights to the presence of counsel during custodial interrogation. The military
judge denied the motion in part and granted it in part. He said:



At the time of the accuseds statement Chief
Grabiel was a chief petty officer on active duty in the United States Navy
and in the accuseds direct chain of command; and
At the time the chief had no law enforcement
duties other than normal duties of every chief petty officer to ensure
good order and discipline; and
MJ: Three, that on 6 June 1994 when he spoke
to the accused the chief was not acting for or at the direction of any
law enforcement agent;
Four, that at the time the chief asked the
question "Was it worth it," he was motivated solely out of personal curiosity;
Five, however, Im not satisfied with regard
to the questions concerning the "gun" that the chief was strictly motivated
out of strictly personal curiosity. I think that was professional and very
much akin to law enforcement. Therefore, the references to the gun are
suppressed as I told you before references--the answer to the question
"Was it worth it?" is not suppressed.



Chief Grabiel later testified on the merits to
appellants statements. Appellant also testified to the defense of accident
and voluntary intoxication. Specifically, he said that he did not intend
to injure Petty Officer Johnson; rather he intended to shoot the gun in
the air. When asked to explain his "eye for an eye" statement, appellant
testified:



Petty Officer Johnson really scared me in
the alley, and it was my intent to scare him just as bad as he had scared
me. I wanted to also bring up the fact that what he had done in the alley,
because they had also told me that I couldnt say anything or ask any questions
concerning the case.



___ ___ ___
Appellants complaint at trial and on this
appeal is that his pretrial statement to Chief Grabiel was "obtained in
violation of the bright line rule annunciated by the Supreme Court in Edwards
v. Arizona, 451 U.S. 477 (1981)." Final Brief at 3. He further avers
that the prosecution failed to show this violation of his right to have
counsel at his interrogation was harmless beyond a reasonable doubt. The
Government disagrees, and, relying on the decisions of this Court in United
States v. Pittman, 36 MJ 404 (1993) and United States v. Jones,
24 MJ 367 (1987), argues that Chief Grabiels personal inquiries were not
interrogation and, therefore, not violative of Edwards. Answer to
Final Brief at 6. During oral argument, the Government additionally contended
that any error under Edwards was harmless beyond a reasonable doubt
in view of the overwhelming evidence of appellants guilt.
Our starting point in resolving the granted
issue is the case law of this Court applying Edwards v. Arizona,
supra,
in the military justice system. 2
United States v. Brabant, 29 MJ 259; United States v.
Goodson, 22 MJ 22 (CMA 1986); United States v. Reeves, 20 MJ
234; see also United States v. Faisca, 46 MJ 276 (1997);
United
States v. Vaughters, 44 MJ 377 (1996) (applies Edwards in break-in-custody
context). These decisions are entirely consistent with the Presidents
adoption of this Supreme Court precedent as reflected in Mil. R. Evid.
305(d)(1), (e)(1) and (f). Faisca, supra at 278 n.3. In this
light, the particular question before us is whether Chief Grabiels questioning
of appellant in custody, after invocation of his rights to counsel, violated
Edwards
v. Arizona, supra.
The Supreme Court in Edwards, 451 U.S.
at 484-85, established a rule concerning custodial interrogations. It said:



We further hold that an accused, such as
Edwards, having expressed his desire to deal with the police only through
counsel, is not subject to further interrogation by the authorities until
counsel has been made available to him, unless the accused himself initiates
further communications, exchanges, or conversation with the police.



In Arizona v. Roberson, 486 U.S. 675, 687
(1988), it further recognized that, in applying Edwards, "we attach
no significance to the fact that the officer who conducted the second interrogation
did not know that respondent had made a request for counsel." Still later,
in Minnick v. Mississippi, 498 U.S. 146 (1990), that Court applied
Edwards
where a county police officer unknowingly interrogated a suspect after
he had previously invoked his rights to federal investigators. See also
Illinois v. Perkins, 496 U.S. 292, 300 (1990) (Brennan, J., concurring
in the judgment).
The question before us today concerns the scope
of Edwards as applied in a particularly military context. In the
past, we have often been asked to decide whether questioning by command
authorities constitutes interrogation for the purpose of Miranda,
Edwards,
or Article 31, UCMJ, 10 USC § 831. See Mil. R. Evid. 305(d)(1)(A),
Manual for Courts-Martial, United States (1994 edition)
3
(right to counsel applies when "the interrogation is conducted by a person
subject to the code who is required to give warnings under Article 31 .
. . .") . Common to these decisions is recognition of the fact that "care
must be exercised to prevent the creation of situations where the subordinates
sense of loyalty, trust, and confidence in his leader obscures his legal
rights under the Constitution and the Uniform Code of Military Justice."
Brabant,
29 MJ at 263; see United States v. Beck, 15 USCMA 333, 339,
35 CMR 305, 311 (1965). Analogous issues arise in the civilian context
with respect to questioning of suspects in custody by various governmental
non-police actors. See United States v. D.F., 63 F.3d 671,
680-84 (7th Cir. 1995) (and cases cited therein), reaffirmed,
115 F.3d 413, 420 (7th Cir. 1997).
The Governments basic argument in this case
is that Chief Grabiels questioning of appellant was not police interrogation
as prohibited in Miranda and Edwards. See generally
1 W. LaFave and J. Israel, Criminal Procedure § 6.10(c) at
542 (1984) ("Miranda does not inevitably apply whenever questions
are asked in a custodial setting by a government employee"); United
States v. Eide, 875 F.2d 1429, 1434 (9th Cir. 1989); see
also United States v. Borchardt, 809 F.2d 1115, 1117 n.4 (5th
Cir. 1987). There is no per se rule for delineating when non-police government
questioning comes within Miranda; rather the courts have tended
to view each case in light of the totality of its circumstances to determine
whether impermissive coercion has occurred or continued. See United
States v. Morales, 834 F.2d 35, 38 (2d Cir. 1987) (questioning
by prison physicians assistant motivated by personal "curiosity" is not
interrogation by police); cf. United States v. Webb, 755
F. 2d 382, 389 (5th Cir. 1985) (questioning by prison classification
officer not normally attendant to classification procedure is interrogation).
We have taken a similar approach where the government questioner is a representative
of command. See United States v. Brabant and United States
v. Reeves, both supra; see also Commonwealth
v. McGrath, 495 A.2d 517, 525-26 (Pa. 1985).
Turning initially to the federal civilian cases
noted above, we consider appellants case quite similar to United States
v. Webb, supra, where a violation of Edwards was determined
to have occurred. There a soldier suspected of the murder of his son was
advised by FBI agents of his rights under Miranda and asserted his
right to counsel. Those agents ceased questioning the suspect and brought
him to the El Paso County Jail for purposes of custody. "[T]he classification
officer on duty [Simmons] allowed Webb to make a telephone call and then
gave him something to eat and drink." The Court then noted:



According to Simmons, in order to determine
where in the jail population to place Webb, Simmons asked Webb, "[W]hat
kind of shit did you get yourself into?" According to Simmons, Webbs surprising
reply was: "I murdered my son and buried him in the desert."



Id. at 386.
In Webb, the Government maintained that
Officer Simmons inquiry was simple administrative questioning "attendant
to custody" which was exempt from the Supreme "Courts definition of interrogation"
in Edwards. The Fifth Circuit rejected this claim and said:



The record, however, does not support this
position. First, it is undisputed that Simmons knew that Webb had been
charged with murder on a federal reservation. Second, the FBI agent that
took Webb to the jail testified that he did not inform the classification
officer of Webbs prior suicide threat. Third, another classification officer
testified that it is not normal procedure to ask a defendant the charge
against him since that information was on the booking card. Finally, Simmons
testified that he saw his own role as one of helping the FBIs investigation
in whatever way he could. Given the facts of this case, we are inescapably
led to the conclusion that Simmons question of Webb was not a question
normally attendant to custody such that it was not "interrogation." To
the contrary, Simmons expressly questioned Webb, and that questioning falls
within the Supreme Courts definition of interrogation. Moreover, even
if no express questioning was involved, the entire episode, including the
reference to a Christian burial, was reasonably likely to elicit an incriminating
response, and Simmons should have known that such a response was reasonably
likely. This Court holds that Simmons questioning constituted a police-initiated
interrogation. Consequently, Webbs jailhouse statements were obtained
in violation of Edwards, and should not have been admitted at Webbs
trial.



755 F.2d at 389 (footnote omitted).
Likewise, Chief Grabiel was appellants work
supervisor and military superior who was visiting him in a military jail
as part of an official command visitation team which included two commissioned
officers. In addition, he was present when those officers advised appellant
of his pretrial confinement rights, including his right to counsel, and
he exercised that right. Third, he was also aware of the offenses that
appellant was suspected of committing and that he had previously exercised
his right to counsel to military police. Fourth, Chief Grabiel admitted
that he was not a friend of appellant but provided him a milkshake and
cigarettes as a part of his command visitation duties. Finally, he admitted
that he had command disciplinary responsibility for both appellant and
the alleged victim and that his inquiries were partially motivated by his
prior disciplinary pronouncements on gun possession within his command.
Under the rationale of Webb, Edwards was violated.
Our own case law even more clearly supports
our conclusion that Edwards was violated in appellants case. First,
like Brabant and Reeves, this was a case where a command
representative questioned a member of his command while in confinement
in a military jail. This circumstance was not present in the two Article
31 warning cases primarily relied on by the Government on this appeal.
See
Pittman, 36 MJ at 406 (released by Criminal Investigation Command into
custody of company commander); Jones, 24 MJ at 368 (under company
escort in unit orderly room). Second, unlike Pittman and Jones,
the command representative deliberately questioned his subordinate knowing
he was suspected of a particular offense and that he had exercised his
rights to counsel on two occasions with respect to it. Finally, the record
shows the absence of any personal relationship between appellant and Chief
Grabiel, and that "military formality was maintained" at all times during
this command visit in accordance with its purpose.
See Brabant,
29 MJ at 263. In these circumstances we conclude that, despite Chief Grabiels
"personal curiosity," the "inherently compelling pressures of the initial
interrogation continued to exist for this command meeting." Id.
at 263.
The second question raised in this case is
whether this constitutional error was harmless beyond a reasonable doubt
such that we need not set aside appellants convictions on this basis.
See
generally Arizona v. Fulminante, 499 U.S. 279 (1991); Chapman
v. California, 386 U.S. 18, 22-24 (1967). The Supreme Court has placed
the burden on the Government "to prove beyond a reasonable doubt that"
inadmissible evidence obtained from a violation of the Constitution "did
not contribute to the verdict obtained." Id. at 24; see Reeves,
supra
at 237. It has not done so here.
In this regard, we note that appellant was
charged with attempted premeditated murder and assault intentionally inflicting
grievous bodily injury. He was also charged with several other offenses
with specific-intent type elements. Thus, intent was a key issue in this
case, and the members had to specifically find that appellant had a specific
intent to injure Petty Officer Johnson. Appellant raised the defense of
accident when he testified that he never intended to actually shoot Johnson,
but rather, he merely planned to scare Johnson by shooting at the ceiling
as Johnson opened the door. He further testified that he did not know that
he had actually shot Johnson; instead he shot at the door handle to keep
Johnson from coming out to attack him further. Thus, the inadmissible evidence
on appellants intent to shoot Johnson was clearly pertinent to the critical
issue in this case.
Furthermore, the Government offered Chief Grabiels
testimony as a substantial part of their case-in-chief. During its closing
argument, the Government repeatedly referred to appellants statement to
his chief as evidence of appellants specific intent to kill. In fact,
it characterized that statement as the best evidence of appellants intent
to kill. Specifically:



Now, probably the biggest statement that
the accused made that really shows his intent was, was when he was talking
with Chief Grabiel. Now, whats important there, this wasnt the same
time all this happened. This was after he had thought about what he had
just done, after he had been told that Petty Officer Johnson had been shot
by him. After he knew all the facts of this, Chief Grabiel asked him "Was
it worth it?" The accused responded "Where I come from its an eye for
an eye. He left me in the alley." It shows absolutely no remorse and
it shows what he planned to do, he did what he planned to so, and it shows
what his motive was. He wouldnt say that if he just had an accident. Thats
not the kind of statement you say if you just have an accident, "it was
an eye for an eye." He did a deliberate act of shooting Petty Officer Johnson.
Thats the only reason why he made that statement.



Finally, the Governments argument on harmless
error is not persuasive. It contends that the overwhelming evidence of
appellants intent to injure, otherwise admitted in this case, negated
any prejudice he might have suffered from erroneous admission of his pretrial
statements. It particularly notes evidence in the record that appellant
drove over 50 miles to retrieve the gun; that he loaded the gun with a
round in the chamber; that he did not tell anyone about his merely threatening
intentions; and, according to one witness, that an unidentified voice said,
"You know youre a dead man" in the hall just prior to the shooting.
For error to be found harmless beyond a reasonable
doubt, an appellate court must be convinced that there was no reasonable
likelihood that the erroneously admitted evidence contributed to the verdict.
United
States v. Bins, 43 MJ 79, 86-87 (1995). Here, there was other evidence
in the record, including appellants testimonial assertion of accident,
which challenged the prosecutions circumstantial proof of intent and rendered
it less than overwhelming. In light of the highly incriminating nature
of appellants pretrial statements, their clear undermining of his trial
testimony, and their exploitation by the prosecution, we find a reasonable
likelihood of prejudice existed in this case.
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is reversed. The findings of guilty and
the sentence are set aside. The record of trial is returned to the Judge
Advocate General of the Navy. A rehearing may be ordered.
FOOTNOTES:
1 This offense was dismissed
shortly after findings were announced. (R. 431)
2 The
granted issue in this case asks whether appellant was denied his "constitutional
right to counsel." The Supreme Court has held that a servicemember has
no Sixth Amendment right to counsel at a summary court-martial, which it
characterized as a disciplinary proceeding outside the scope of that Amendment.
See
Middendorf v. Henry, 425 U.S. 25 (1976). Moreover, more recently in
Davis
v. United States, 512 U.S. 452 (1994), the Supreme Court assumed, but
did not decide, whether Miranda v. Arizona, 384 U.S. 436 (1966),
and the Fifth Amendment right-to-counsel cases are applicable in trials
by general courts-martial. Id. at 457. The parties to this appeal
do not dispute applicability of these Fifth Amendment Supreme Court decisions
to appellants case and neither do we. See United States v. Goodson,
22 MJ 22 (CMA 1986); United States v. Tempia, 16 USCMA 629, 37 CMR
249 (1967).
3 This
version was in effect at the time of trial. The current version is unchanged.
 
 
CRAWFORD, Judge (dissenting):
Appellant testified that in the early morning
hours of June 4, he went to the victims room with the intention of pointing
a loaded gun "up in front of [appellant]," so that when the victim opened
his door, appellant could "cycle the bullets" from the magazine onto the
floor. Mitchell testified:



Q: What the  could you please explain to
the members exactly  all right, exactly what it is you planned on doing
with that firearm in front of that door?
A: My plan was to walk up to the door, knock
on the door, Petty Officer Johnson would answer the door, and I would cycle
the bullets and tell him if he ever hit me again that was going to be him.
Q: When you just pointed down at the ground,
what did you mean?
A: The bullets down on the ground. The visual
effect for seeing the bullets pop out of the gun.
Q: You thought that would scare him?
A: Yes, sir, I did.



Appellant and Johnson, who were close friends,
had been in a drunken brawl earlier that night, and appellant wanted Johnson
to think that he should never hit appellant again because if he did, "he
could be shot." He claimed that he did not know that he had loaded a bullet
into the chamber and that the gun discharged accidentally. Appellant also
testified that after the gun discharged, he continued to shoot at the cipher
lock on Johnsons door to keep Johnson from coming out and trying to fight.
Testimony from the only other eyewitness to
the shooting, Aviation Ordnanceman First Class Hill, appellants supervisor,
paints a somewhat different picture of this incident, as follows:



Q: How did  how was the gun raised up?
A: Brought up to his side like this [witness
raises arm in shooting motion].
TC: May the record reflect that the witness
has indicated the weapon was tilted sideways  parallel to the deck.
MJ: Very well.
Q: Did you see the gun discharge?
A: I really cant say on that. I heard it,
but I cant say I saw it discharge.
Q: Okay. After you saw the accused fire the
weapon, what did you do then?
A: I looked at him and you know, I asked him
what  whats going on.
Q: Did he respond to you at all?
A: He turned on me and looked at me and he
said, "I said you dont know me."

***
Q: Now after he said that to you, what did
you do in response to that?
A: Well, I started backing up down the hallway.
Q: Okay, by backing up where were you trying
to go to?
A: Back up to the other passageway where I
could go downstairs.
Q: What was the next thing that happened while
you were backing up?
A: Well, as I got to the-the connecting passageway
to head downstairs, just as I got through the double doors I heard some
more gun shots.



This evidence alone casts enormous doubt on appellants
defense of accident. In addition, Aviation Support Equipment Technician
Third Class Scruggs, who was at the barracks on security duty that night,
testified that when appellant came down to the security desk and laid the
gun on the counter, "he said, My boy did me bad or something like that."
The Government also introduced evidence that
appellant drove 29 miles from the bar where appellant and Johnson had scuffled
to the house where appellant knew this gun was kept, then drove another
21 miles from that house to Johnsons barracks. Though appellant testified
that he was weaving as he drove, that he was able to drive those 50 miles
without incident tends to diminish his defense of voluntary intoxication.
Furthermore, appellant himself brought out in his testimony that he had
previously been to Level 3 alcohol treatment almost 2 years prior to this
incident. Furthermore, the Government was able to counter his voluntary-intoxication
defense with testimony from an expert in addiction psychology that though
his blood alcohol content was high, he may have felt the effects of the
alcohol to a lesser extent than would have been expected in someone with
a less-developed tolerance.
In all, appellant shot seven bullets from the
weapon. He had loaded all thirteen bullets that were kept with the gun.
Appellant was in the service for 12 years and was "familiar with semi-automatic
handguns." In fact, he testified that though he had never fired this particular
weapon, he had "fired similar types of weapons."
Contrary to the majoritys recital, ___ MJ
at (15), the panel found appellant guilty of attempted premeditated murder,
willfully damaging military property, larceny of the gun, assault with
the intent to inflict grievous bodily harm1,
and simple assault on the victims roommate2.
Thus, the panel clearly did not believe appellants fantastic story of
how this event occurred.
Given the overwhelming case the Government
presented, I would hold that even if the military judge erred by allowing
appellants statement to Chief Grabiel into evidence, such error was harmless
beyond a reasonable doubt. See Arizona v. Fulminante, 499
U.S. 279, 306-12 (1991)(harmless error analysis for confession); United
States v. Remai, 19 MJ 229 (CMA 1985)(Edwards violations are
subject to harmless-error analysis).

WAS THERE AN EDWARDS VIOLATION?
However, I do not believe that the military
judges denial of the defense motion to suppress appellants statement
was clearly erroneous.
Chief Grabiels testimony at trial was that
a day and a half after the shooting, he asked appellant "if it was worth
it," and appellant replied, "He left me in an alley and where I come from
its an eye for an eye." Appellant explained at trial what he meant by
that, as follows:



Petty Officer Johnson really scared me in
the alley, and it was my intent to scare him just as bad as he had scared
me. I wanted to also bring up the fact that what he had done in the alley,
because they had also told me that I couldnt say anything or ask any questions
concerning the case.



The remainder of Chief Grabiels testimony was
that appellant was an exemplary worker and a man of "flawless" military
character. There is no dispute that appellant had been read his rights
and invoked his right to counsel twice before Chief Grabiel spoke with
him or that Chief Grabiel was aware of this fact and of the acts with which
appellant was charged.
The Government used this statement in their
closing argument and rebuttal as evidence of appellants motive and intent.
The defense explained it away in its closing as meaning "reciprocal treatment.
In Petty Officer Mitchells mind that was a scare for a scare. Not a shooting
for a scare. In Petty Officer Mitchells mind if it had worked out as planned
that would have been an equitable trade, an eye for an eye. Evenness
and not escalation was his intent but not by shooting  not by shooting."
In Edwards v. Arizona, 451 U.S. 477,
484-85 (1981), the Supreme Court held



that when an accused has invoked his right
to have counsel present during custodial interrogation, a valid waiver
of that right cannot be established by showing only that he responded to
further police-initiated custodial interrogation even if he has been advised
of his rights. We further hold that an accused, such as Edwards, having
expressed his desire to deal with the police only through counsel, is not
subject to further interrogation by the authorities until counsel has been
made available to him, unless the accused himself initiates further communication,
exchanges, or conversations with the police.



(Footnote omitted.)
The Supreme Court elucidated the definition
of interrogation for Miranda v. Arizona, 384 U.S. 436 (1966), and,
hence for Edwards purposes in Rhode Island v. Innis, 446
U.S. 291 (1980). There it was stated:



The concern of the Court in Miranda
was that the "interrogation environment" created by the interplay of interrogation
and custody would "subjugate the individual to the will of his examiner"
and thereby undermine the privilege against compulsory self-incrimination.
[384 U.S.] at 457-458. The police practices that evoked this concern included
several that did not involve express questioning....It is clear that these
techniques of persuasion, no less than express questioning, were thought,
in a custodial setting, to amount to interrogation.
This is not to say, however, that all statements
obtained by the police after a person has been taken into custody are to
be considered the product of interrogation.... It is clear ... that the
special procedural safeguards outlined in Miranda are required not
where a suspect is simply taken into custody, but rather where a suspect
in custody is subjected to interrogation. "Interrogation," as conceptualized
in the Miranda opinion, must reflect a measure of compulsion above
and beyond that inherent in custody itself.



446 U.S. at 299-300 (footnote omitted). In this
respect, the Court noted that those "words or actions on the part of the
police (other than those normally attendant to arrest and custody) that
the police should know are reasonably likely to elicit an incriminating
response from the suspect" are considered "interrogation." Id. at
301.
In a footnote, the Court noted that though
the inquiry should focus on the suspects view, it should not entirely
exclude consideration of the intent of the police. Id. at 301 and
n.7. The intent of the police "may well have a bearing on whether the police
should have known that their words or actions were reasonably likely to
evoke an incriminating response." Id. at n.7.

APPLICATION TO THE MILITARY
Applying the Edwards rule, the majority
determines that because of the disparity in rank between Aviation Ordnance
Chief Grabiel and Aviation Ordnanceman Second Class Mitchell, the "inherently
compelling pressures of the initial interrogation continued to exist for
this command meeting." __MJ at (15), quoting United States v.
Brabant, 29 MJ 259, 263 (CMA 1989).
Brabant, a security policeman who had exercised
his rights to remain silent and to counsel when he became a suspect in
a larceny, was ordered by his supervisor  that is, Captain Gathright,
who was also the squadron operations officer and acting commander  to
come into the Captains office at the police station just as Brabants
shift was ending. There Brabant made "spontaneous" incriminating statements.
Id.
at 260-61. This Court determined that these circumstances constituted "the
functional equivalent of" an interrogation.3
We admonished that "care must be exercised to prevent the creation of situations
where the subordinates sense of loyalty, trust, and confidence in his
leader obscures his legal rights under the Constitution and the Uniform
Code of Military Justice." Id. at 263.
As then-Judge Cox perceptively pointed out
in his separate opinion, however, the Courts decision went too far when
it characterized the "conversation as an interrogation." Id. at
265 (concurring in part and dissenting in part)(If it is one, "it is the
strangest one" he has ever seen as a judge.). His concerns are quite apropos
here: Such an expansive and "inflexible application of" the rule could
"seriously undermine the important, if not vital, relationship between
a company commander and a member of his unit.... This case illustrates
once again the traps, pitfalls, and obstacles placed in front of military
officials trying  in good faith  to carry out the responsibilities incumbent
upon them." Id. at 265. Judge Cox concluded that "courts can examine
the conduct of officials involved and rationally determine whether it constitutes
interrogation or the functional equivalent thereof." Id. at 268.
The majority also cites United States v.
Reeves, 20 MJ 234 (CMA 1985), in support of its holding. In that case,
Reeves company commander, Captain Kozak, questioned him at the stockade
where his confinement was being processed. Captain Kozak even borrowed
a rights warning card and read Reeves his rights before questioning him.
Id.
at 235. Finding this to be clearly an interrogation, we sent the case back
to the lower court for their determination of whether Reeves "initiated"
the conversation when Captain Kozak showed up for a regular command visit
and whether admission of the evidence was harmless error.
Id. at
236-37.
On remand, the lower court found that the Government
had failed to show that Reeves initiated the conversation or that admission
of the statement was harmless error. 21 MJ 768, 769, 770 (ACMR 1985). However,
the court expressly rejected the Governments request to determine that
Edwards
does not apply to military commanders, stating that "such a determination
is beyond the scope of the remand in this case." Id. at 768. Furthermore,
the court found itself "not persuaded by the facts in this case that [Reeves]
company commander was not engaged in a law enforcement function when he
interrogated" Reeves. Id. at 769. Given this factual and procedural
posture, I do not share the majoritys opinion that this case is supportive
of its holding.
Furthermore, we have previously found that
disparity in rank or supervisory status is not dispositive on this issue.
For instance, in United States v. Loukas, 29 MJ 385, 389 n.* (1990),
we noted in a footnote: "This Court has implicitly held that a superior
in the immediate chain of command of the suspect subordinate will normally
be presumed to be acting in a command disciplinary function. However, this
presumption is not so broad or inflexible as to preclude a limited exception
where clearly justified." (Citations omitted.) Thus, it was not the rank
per se which we considered important but the role which the supervisor
was in when talking with the suspect or accused, and even that was not
dispositive. Additionally, the Court there looked to the "circumstances
of the case to determine if what occurred was an interrogation or a request
for a statement." Id. at 390 (Cox, J., concurring).

ARTICLE 31(b) CHALLENGES
Also, our case law on challenges based in Article
31(b) is illustrative of the inquiry we should follow here. Though one
is rooted in statute and the other in constitutional proscriptions, the
purposes served by Article 31 and the Edwards prophylactic rule
are the same, and their inquiries should be as well. The distinguishing
feature is that in an Edwards scenario, the questioning is in a
custodial setting, but that can easily be accounted for in the inquiry.
It should be remembered that Article 31 gave servicemembers protection
that their civilian counterparts did not have until the Supreme Court decided
Miranda
v. Arizona, supra. See United States v. Gibson,
3 USCMA 746, 14 CMR 164 (1954). The Edwards rule is merely a "corollary"
to that established by the Court in Miranda.
See Arizona
v. Roberson, 486 U.S. 675, 681 (1988).
In United States v. Duga, 10 MJ 206
(1981), we found that the test for applicability of Article 31 is "whether
(1) a questioner subject to the Code was acting in an official capacity
in his inquiry or only had a personal motivation; and (2) whether the person
questioned perceived that the inquiry involved more than a casual conversation.
Unless both prerequisites are met, Article 31(b) does not apply." Id.
at 210 (citing United States v. Gibson, supra). In that case,
the Court determined that though the questioner was on security police
duty when he questioned Duga, his motivation was purely personal. Id.
at 211. Also, in that case, the Court noted that the questioner had not
been tasked with questioning Duga by the investigative team, just as the
military judge found here with regard to Chief Grabiel.
The Court in Gibson, 3 USCMA at 752,
14 CMR at 170, referred to this as the "restrictive element of officiality."
To interpret the language of Article 31(b) without such a limitation would
make communications within the military structure unwieldy and rigid. The
Court also noted in United States v. Dandaneau, 5 USCMA 462, 464,
18 CMR 86, 88 (1955):



Not every inculpatory statement made by an
accused in conversation with another is inadmissible because of a failure
to warn him of his rights under Article 31. The prohibition of the Article
extends only to statements elicited in the course of official interrogation.
It is essential, therefore, to determine whether the question asked by
Captain Lucas, when he first met the accused in the squadron office, is,
as a matter of law, so clearly official or so demanding of an answer by
virtue of his superior rank as to fall within the interdiction of the Uniform
Code.



(Citation omitted.) Because Captain Lucas had
testified in that case that his motivation in conversing with Dandaneau
in the squadron office was purely personal, the Court focused on Dandaneaus
perception of the conversation. The Court drew an inference from "the informality
of the conversation and the place it occurred" that Dandaneau "regarded
the encounter as a casual meeting." Id. at 464-65, 18 CMR at 88-89.
In United States v. Jones, 24 MJ 367,
369 (1987), this Court found that "neither the fact that the sergeant previously
had served as [Jones] platoon sergeant nor that he and [Jones] were serving
in the same company at the time of trial caused the sergeants questions
to be so "clearly official or so demanding of an answer by virtue of his
superior rank" as to transform his personal curiosity into an official
inquiry." Similarly, in the case at bar, Chief Grabiels supervisory position
should not be enough to transform his personal curiosity into officiality.
Furthermore, Jones was in handcuffs and in the presence of his escort when
he conversed with the sergeant. 24 MJ at 368. Here, Mitchell was in arguably
less custodial circumstances as he does not appear to have been in restraints.
Finally, in United States v. Pittman,
36 MJ 404 (CMA 1993), where Pittman had been questioned by his section
leader who had been "detailed" as his escort, id. at 406, we held
that the application of Article 31(b) depends upon the "nature and circumstances
of the conversation. Not all communications by persons subject to the
Code constitute an interrogation or amount to requesting a statement from
an accused or suspect." Id. at 407. We determined that the military
judges admission of the statement was correct based on an inquiry into
whether, given the questioners "superior rank" and "official position,"
the "mere" act of questioning was "equivalent to a command." Id.,
citing Duga, supra at 209.
With this case law as guidance, I would look
at the following factors to support a determination that there was no custodial
interrogation in violation of Edwards v. Arizona, supra,
here:
1. Chief Grabiel was Mitchells supervisor,
but so was Petty Officer Hill, whose rating is Aviation Ordnanceman First
Class. Mitchell (Aviation Ordnanceman Second Class) made similarly incriminating
statements to both of them, which were similarly used by the Government
in their case. Both supervisors otherwise spoke highly of Mitchell. There
is not a significant disparity between their ranks and appellants, such
that appellant would feel compelled to respond to either of them against
his better judgment merely because of loyalty or trust. In fact, appellant
testified that he had been told not to say anything and that this was an
opportunity to tell his side of the story.
2. Chief Grabiel had no extraordinary investigative
or disciplinary role here. The military judge  in what I consider an excessive
abundance of caution  excluded another statement made to Chief Grabiel
about appellants possession of the gun on base because Chief Grabiel had
previously warned his crew against bringing weapons on base. Thus, the
military judge ruled that on that point the questioning served something
of a professional purpose. Otherwise, Chief Grabiels limited disciplinary
functions were not implicated.
3. Along those same lines, the military judge,
who had the opportunity to consider his demeanor on the witness stand,
found that Chief Grabiels question, "Was it worth it?" was "motivated
solely out of personal curiosity." In fact, it may even be said that the
question was in many respects rhetorical. He was speaking to appellant
as a man for whom, given his testimony at trial, he clearly had great respect,
and asking him what could have caused this unexpected variance in his exemplary
conduct was a matter of personal interest.
4. Chief Grabiel was there fulfilling his command
responsibilities. He had gotten appellant his cigarettes from his personal
belongings; he bought appellant a McDonalds milkshake because his bruised
jaw made eating difficult; he ensured that appellant had been read his
pretrial confinement rights; and he checked on appellants transportation
back to Jacksonville. Under these circumstances, I find it hard to believe
that appellant perceived this to be a custodial interrogation.
5. Chief Grabiel spoke to appellant on June
5; but he did not sign the statement regarding his conversation until June
9. The fact that Chief Grabiel testified on the motion to suppress that
he did not approach the agent with this information makes it crystal clear
that Chief Grabiel did not intend to gather evidence against appellant.
This is also relevant in the analysis of whether he could have reasonably
expected an incriminating response to his question.
6. That Chief Grabiel knew what charges might
be brought against appellant is not relevant here. The majority cites this
as one similar factor in its analogy to United States v. Webb, 755
F.2d 382, 389 (5th Cir. 1985). However, there the court cited
it as evidence that the prison classification officers question was not
part of his administrative duties. Here, Chief Grabiels question could
not have elicited any information not already in his possession.
Thus, I part company with the majority and
would hold that the military judge did not err in admitting appellants
statement to Chief Grabiel; and that even reluctantly assuming error, I
am confident it was harmless beyond a reasonable doubt.
FOOTNOTES:
1 This charge was subsequently
dismissed as being multiplicious for findings. R. 431.
2 The
panel substituted this as a lesser-included offense for the charge of assault
with a means likely to inflict grievous bodily harm.
3 As
then-Judge Cox observed, "It is interesting to note that appellee has never
testified that he felt compelled to incriminate himself." 29 MJ at 265
n.2 (Cox, J., concurring in part and dissenting in part).

Home
Page  |  Opinions
& Digest  |  Daily
Journal  |  Public
Notice of Hearings
