State v. Davis

BRYANT, Judge,

concurring in the result.

I fully concur in the result reached by the majority that there was no error in defendant’s trial. However, I write separately as I conclude defendant’s statements to Chief Warrant Officer Brown were not the product of a custodial interrogation and therefore the admission of those statements was not error, rather than harmless error.

A

The majority first states public policy mandates that, in order to uphold military discipline and order, members of the armed forces should never be forced to choose between either disregarding a direct question from a superior officer or subjecting themselves to self-incrimination in a later criminal trial. Under the majority’s analysis, however, a superior officer would be required to give Miranda warnings and/or Article 31(b) warnings before asking any question under any circumstances of someone under his or her command out of concern that the response might possibly be incriminating. In so doing, the majority is creating what amounts to a limited “soldier-commanding officer” privilege, whereby no statement given by a member of the armed forces to a commanding officer would be admissible in a civilian court absent Miranda warnings. This ignores the reality that military officers perform many different roles: they are not always disciplinarians. The better rule is that a superior officer need only give the appropriate warnings to someone under his command that he suspects has committed an offense and when the questioning is for disciplinary purposes, and not merely administrative reasons. In fact, this is the exact rule adopted by military law. See United States v. Good, 32 M.J. 105, 108 (C.M.A. 1991) (a member of armed forces is entitled to warnings only if he is a suspect at the time of the questioning and the questioning itself is part of an official law-enforcement investigation or disciplinary inquiry); see also United States v. Swift, 53 M.J. 439, 446 (C.A.A.F. 2000) (proper warnings *17 must be given to members of the armed forces before questioning about an offense where there is no evidence to overcome the presumption that questioning is law enforcement related and not solely for administrative reasons). 3

B

I also disagree with the majority’s conclusion under civilian law that a reasonable person in defendant’s position would have believed he was under arrest or was restrained in his movement to the degree associated with a formal arrest.

The evidence in this case reveals that defendant, after having received a telephone call, voluntarily requested permission to leave his station. As a result of this request, defendant was ultimately escorted to Chief Warrant Officer Brown. Lieutenant Cavenaugh stated defendant had something that Brown might want to hear. Before this meeting, Chief Warrant Officer Brown had no prior knowledge of the crime and only learned of it when defendant told him that there had been a murder in North Carolina, which led to Chief Warrant Officer Brown asking defendant if he was involved. Defendant eventually responded he was “involved,” and at that point the questioning ceased. As he had requested, defendant was then given permission to leave his work station to telephone a lawyer. No arrest order was given and Chief Warrant Officer Brown was neither acting as a member of military law enforcement, nor did he assert his rank to force or threaten defendant to answer any questions. 4

Every indication from this record is that defendant was not being questioned for disciplinary purposes. Instead, defendant was questioned because it was Chief Warrant Officer Brown’s administrative duty as a platoon commander to be aware of potential legal troubles of the men under his command and, in this particular instance, *18 to determine whether defendant should be permitted to leave his station. There is no evidence to support a contention that defendant’s statement was anything other than the product of his voluntarily seeking permission to leave his station in order to telephone a lawyer.

The majority also asserts that defendant was subjected to custodial interrogation because Chief Warrant Officer Brown was defendant’s commanding officer and had the authority to order an arrest. Here again, this would have the effect of requiring a superior officer to give Miranda and Article 31(b) warnings before asking any question of a service member under his command. Even if the questioning could be said to have occurred in a coercive environment, it does not automatically convert this non-custodial situation into one in which Miranda applies. See State v. Buchanan, 353 N.C. 332, 337 , 483 S.E.2d 823, 826-27 (2001); see also Oregon v. Mathiason, 429 U.S. 492, 495 , 50 L. Ed. 2d 714, 719 (1977) (voluntary appearance at police station). Instead, the correct test to be uniformly applied is “whether a reasonable person in defendant’s position, under the totality of the circumstances, would have believed that he was under arrest or was restrained in his movement to the degree associated with a formal arrest.” Buchanan, 353 N.C. at 339-40 , 543 S.E.2d at 828 .

The trial court in this case found that defendant “received a telephone call... at his work location . . . and told [his sergeant] that he needed to go home.” The trial court also found “defendant voluntarily went with the officer . . . to . . . Brown’s office” and “[Chief Warrant] Officer Brown was not a military policeman . . . did not have the authority to arrest and was not functioning as a police officer in any respect.” As to Chief Warrant Officer Brown’s questioning of defendant, the trial court found, “at all times while . . . defendant was in . . . Brown’s presence he could refuse to answer any questions . . . and he could walk out of the office at any time.” The trial court further found, “at one point at the end of the conversation .. . defendant said he didn’t want to talk anymore and at that point [Chief Warrant Officer] Brown asked no further questions” and “defendant was never told that he had to answer any questions, was not threatened in any way, coerced in any way and from his conduct. . . appeared to be in the possession of his mental and physical faculties.” These findings are supported by the evidence presented by the parties during voir dire and are thus conclusive on appeal. See Buchanan, 353 N.C. at 336 , 483 S.E.2d at 826 .

*19 On these fact's, a person voluntarily requesting to leave his station would not reasonably have believed that he was under arrest or that his freedom of movement was being restrained to the same degree as that of a formal arrest. 5 Defendant’s statement was, therefore, not the product of a custodial interrogation, and thus, defendant was not entitled to Miranda warnings prior to questioning for administrative purposes by his superior officer. Accordingly, I conclude it was not error to admit defendant’s statement to Chief Warrant Officer Brown.

. The majority also cautions against altering the balance between the needs of the armed forces and the rights of their members. Yet, in ignoring the rule already set by military courts, by forcing an officer to hesitate and debate whether to even ask a simple question of those under his command, the majority does precisely that. Nevertheless, this case actually presents the reverse question: to what extent should military practices alter the balance between the needs of the prosecution and the rights of a criminal defendant in a civilian court.

. The arrest warrant for defendant was not issued until 26 March 1999, two days after defendant’s statements to Chief Warrant Officer Brown, and defendant was not arrested until 8 April 1999. Thus, the fact defendant was in Marine “custody” at the time of his arrest by Wayne County sheriff’s deputies is not relevant to any analysis of whether he was in custody at the time he gave the statements.

. As the majority acknowledges, military law provides explicit definitions as to what it means to be under arrest or ordered into confinement, neither of which occurred in this case.