holding that admission of statement presumptively taken in violation of Article 31(b) was harmless beyond a reasonable doubt, but citing Article 59(a), UCMJ
How later courts described this case
- holding that admission of statement presumptively taken in violation of Article 31(b) was harmless beyond a reasonable doubt, but citing Article 59(a), UCMJ
- harmless error in admission of evidence of admissions to social worker because of other evidence of same admissions to friend and confidant
- released by Criminal Investigation Command into custody of company commander
- Article 31(b) held not applicable to noncommissioned officer who was escorting the accused and asked questions based on personal curiosity
Written by the judges who cited it.
The opinion
SULLIVAN, Chief Judge
(concurring in the result):
I concur in the result reached by the majority opinion; however, I must write separately to resolve these issues.
First, I find nothing in the record of trial which established a factual or legal basis for appellant’s claim that he was denied his Fifth Amendment right to counsel. In this regard, appellant suggests to this Court that he exercised his Fifth Amendment right to counsel during the initial questioning at the military police station. Final Brief at 2. He refers this Court to allied papers which consist of a military police blotter submitted by trial counsel to defense counsel in response to a defense motion for discovery. However, there is no indication that the military police blotter or any evidence pertaining to appellant’s purported request for counsel was before the military judge for a factual or legal determination. See United States v. Bethea, 22 USCMA 223 , 46 CMR 223 (1973). Moreover, neither the defense motion to suppress, the Government’s motion to deny, nor any argument at trial raised this legal issue. Therefore, the defense failed to make a motion to suppress evidence based on a violation of appellant’s assertion of his Fifth Amendment right to counsel; consequently, such a failure constitutes a waiver of that right. See United States v. Baker, 30 MJ 262, 270 (CMA 1990); Mil.R.Evid. 103(a)(1), Manual for Courts-Martial, United States, 1984; RCM 905(e), Manual, supra (Change 4).
Second, turning to the question relating to Article 31, Uniform Code of Military Justice, 10 USC § 831 , I agree that the military judge did not legally err in denying appellant’s motion to suppress his state *409 ments made to Sergeant Davis. United States v. Loukas, 29 MJ 385 (CMA 1990); United States v. Beck, 15 USCMA 333 , 35 CMR 305 (1965).
Finally, consistent with my dissent in United States v. Moreno, 36 MJ 107, 122 (CMA 1992), I conclude that Mr. Corlin “was not acting as a private citizen or as a disinterested state official but as a” federal civilian social worker “cooperating with military law enforcement agents in accordance with” Army regulations. Para. 3-24, Army Regulation 608-18, Army Family Advocacy Program (October 19,1987). Therefore, I would hold that the military judge’s ruling to deny the motion to suppress appellant’s statements to Mr. Corlin was incorrect as a matter of law. Nevertheless, I too would affirm on the basis of harmless error. United States v. Loukas, supra at 390.