Petition for Writ of Certiorari — Goodson v. United States

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Cffice-Suoreme Court, Us. |

S41 OlS FILED

DEC 26 1984

No, -—————

2 EE,

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IN THE

Supreme Court of the United Staten

OCTOBER TERM, 1984

JOHNNIE K. GOODSON,

Specialist Four, United States Army,

‘ Petitioner,

THE UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

WILLIAM G. ECKHARDT

Colonel, Judge Advocate

General’s Corps (JAGC)

United States Army

USALSA—DAD

Nassif Building

Falls Church, Virginia 22041

(202) 756-1807

Counsel of Record

and

WILLIAM P. HEASTON

Lieutenant Colonel, JAGC

U.S. Army

HARRY L. WILLIAMS, JR.

Captain, JAGC

U.S. Army

QUESTIONS PRESENTED

1. WHETHER the prohibition against police-initiated

interrogation established by Edwards v. Arizona is trig-

gered by a request for counsel made in custody and while

awaiting interrogation but before the issuance of rights

warnings?

2. WHETHER the rule established in Edwards v.

Arizona should be applied in a case on direct review

tried after the date of the Edwards opinion although the

interrogation at issue occurred before the opinion?

3. WHETHER a voluntary waiver of the right to

counsel was obtained under pre-Hdwards law after the

accused was detained for nine hours awaiting interroga-

tion and after repeated requests and attempts to obtain

counsel prior to the interrogation were denied?

(i)

TABLE OF CONTENTS

Page

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Constitutional Provisions Involved ............20020002.002002..... 2

es aieunnahocoamnnncongsanavene 2

Reasons for Granting the Writ ........................................ 5

ob aninieicebeoeninetenonadantnesannne la

I aienidcsbbhainpepeiasbansndoeannicnns 24a

REE SITE SR ts Se 30a

TABLE OF AUTHORITIES

Cases:

Desist v. United States, 394 U.S. 244 (1969).......... 11

Edwards v. Arizona, 451 U.S. 477 (1981)........... 5, 6, 7, 9,

11, 12

Escobedo v. Illinois, 378 U.S. 478 (1964) _............. 6, 10

Johnson v. New Jersey, 384 U.S. 719 (1966) ......... 10

Johnson v. Zerbst, 304 U.S. 458 (1938) ...0220222... 6, 12

Michigan v. Moseley, 423 U.S. 96 (1975) _...000.. 9,12

Miranda v. Arizona, 384 U.S. 436 (1966) ........... 5, 6, 8, 10

North Carolina v. Butler, 441 U.S. 369 (1979) ....... 12

Oregon v. Bradshaw, 103 S.Ct. 2880 (1983) -...... 5, 11,12

Smith v. Illinois, No. 84-5332 (Ill. Dec. 10, 1984).. 8

Solem v. Stumes, 104 S.Ct. 1838 (1984) ............. 6, 7,9, 10

Stovall v. Denno, 388 U.S. 293 (1967) ............0....... 10, 11

United States v. Peltier, 422 U.S. 531 (1975) ......... 11

Westover v. United States, 384 U.S. 436 (1966)... 12, 13

United States v. Goodson, 18 M.J. 248 (CMA

Tee scacucpsnnsnnauboonnns 7,8, 13

Shea v. Louisiana, 421 So. 2d 200 (La. 1982) ......... 9

Constitution and Statutes:

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1984

No.

JOHNNIE K. GOODSON,

Specialist Four, United States Army, .

Petitioner,

v.

THE UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

The petitioner Johnnie K. Goodson respectfully prays

that a writ of certiorari issue to review the judgment

and opinion of the United States Court of Military

Appeals entered in this proceeding.

OPINIONS BELOW

The opinion of the Court of Military Appeals is reported

at 18 M.J. 243 (CMA 1984) (Appendix A). The opinion

of the Army Court «7 Military Review appears at 14

M.J. 542 (ACMR 1982) (Appendix B). The order of

the United States Court of Military Appeals denying

petitioner’s request for a rehearing is reported at

M.J. (CMA 1984) (Appendix C).

2

JURISDICTION

The judgment of the Court of Military Appeals was

entered on July 28, 1984, affirming petitioner’s conviction

dated May 21, 1981. The petitioner’s request for a re-

hearing was denied on November 2, 1984. The jurisdic-

tion of this Court is invoked under 28 U.S.C. § 1259.

CONSTITUTIONAL PROVISIONS INVOLVED

The Constitution of the United States provides:

Amendment V: “No person . . . shall be compelled

in any criminal case to be a witness against himself.”

Amendment VI: “In all criminal prosecutions, the

accused shall . . . have the Assistance of Counsel

for his defense.”

STATEMENT OF THE CASE

During the early morning hours of February 28, 1981,

the petitioner and eight others were apprehended by mili-

tary police at Aberdeen Proving Grounds, Maryland, on

suspicion of wrongful possession of a controlled substance.

The nine suspects were transported to the military police

station where processing and interrogation were conducted

by Military Police Investigator (MPI) Allinder. Sergeant

Slye, a military policeman who assisted in the apprehen-

sion, testified that shortly after arrival at the station,

during administrative questioning, the petitioner “said

that he didn’t want to make a statement; that he re-

quested to see a lawyer.” Slye responded, “Fine, I will

relay this information, this message, to the investigator.”

(R. 28). Slye “explained to [the accused] that all [the

military police] were going to be doing was that he was

going to be read his rights and a field interview work-

sheet taken on him.” (R. 24). Later, the petitioner made

a second request to Slye to see a lawyer, and Slye said

he would relay the request to MPI Allinder. Slye further

testified that he did in fact inform Allinder of the peti-

3

tioner’s request. MPI Allinder testified that he did not

recall anyone informing him that the accused wanted to

see an attorney. He was the only investigator on duty

at the time, and he interviewed the suspects singularly.

He did not get to the accused until approximately nine

hours later. When the accused came into his office, Al-

linder advised him of his rights on the Department of

the Army Form 3881 and asked him if he understood;

the accused said he did. (R. 30). The accused initialed

several places on the form, including the acknowledge-

ment that he understood his “right to talk to a lawyer

before or after questioning or have a lawyer present

with [him] during questioning.” The accused signed the

form in the section entitled “Waiver” and signified that

he was “now willing to discuss the offenses under investi-

gation .. . and make a statement without talking to a

lawyer first and without having a lawyer with [him].”

Allinder stated that the accused never requested a lawyer,

never indicated that he wished to remain silent, and never

indicated that he had previously asked to see a lawyer.

The accused offered a different version of the events

of that morning. He said that, upon arrival at the sta-

tion, Sergeant Slye “told me not to sign it [the state

ment form], just say I didn’t want to speak.” (R. 88).

He related the two times he asked Slye for counsel, but

said that Slye said he “couldn’t have one.” He further

testified that he was told that the acting JAG (Judge

Advocate General’s Corps Officer) on duty was just for

their use only and he couldn’t use him. However, he

admitted that when he was “called . . . in for question-

ing,” he did not request a lawyer because “[t]hey already

knew” and he “didn’t think . .. [he would] get one.”

(R. 90). The accused made an incriminating oral state-

ment to Allinder. At trial, the military judge denied the

defense motion to suppress both this statement and a sub-

sequent statement made to petitioner’s commander some

48 hours later. The petitioner refrained from invoking

4

his rights during this second interview because he

thought he “didn’t stand a chance” since “they already

knew” about his previous incriminating statements. (R.

91).

The petitioner was tried by a special court-martial at

Aberdeen Proving Grounds, Maryland on May 21, 1981.

Pursuant to his pleas, he was convicted of possession and

use of marijuana in violation of Article 134, Uniform

Code of Military Justice [hereinafter cited as UCMJ],

10 U.S.C. § 934 (1976); contrary to his pleas, he was

convicted of attempted possession, transfer and use of

amphetamines, in violation of Article 80, UCMJ, 10

U.S.C. § 880 (1976). He was sentenced to a bad-conduct

discharge from the Army, confinement at hard labor for

three months, forfeiture of $334.00 pay per month for

three months, and reduction to the grade of Private E-1.

The federal constitutional question involved was fully

litigated at trial and has been continuously litigated at

all stages of the appellate process. The issue granted by

the Court of Military Appeals, as a prerequisite to this

Court’s jurisdiction, was as follows:

WHETHER THE MILITARY JUDGE ERRED BY

RULING THAT THE APPELLANT VOLUNTAR-

ILY AND VALIDLY WAIVED HIS RIGHT TO

COUNSEL DURING INTERROGATION AFTER

BEING DETAINED FOR NINE OR TEN HOURS

IN THE MILITARY POLICE STATION AWAIT-

ING INTERROGATION, AND AFTER CLEARLY

ARTICULATING ON THREE SEPARATE OC-

CASIONS REQUESTS FOR COUNSEL WHICH

WERE DENIED. \

5

REASONS FOR GRANTING THE WRIT

In rejecting petitioner’s arguments, the Court of Mili-

tary Appeals based its decision on the temporal distinc-

tion that a waiver of Miranda rights cannot occur until

there has been a full advisement of rights. Such a de-

termination is wholly inconsistent with the previous de-

cisions of this Court and fails to focus on the constitu-

tional safeguards initially constructed by Miranda and

later fortified by Edwards v. Arizona.’

I. THE SIGNIFICANT EVENT IN APPLYING THIS

COURT’S OPINION IN EDWARDS v. ARIZONA IS

NOT THE READING OF THE INDIVIDUAL’S

RIGHTS BUT THE INDIVIDUAL’S ASSERTION OF

THE RIGHT TO COUNSEL.

If an accused “indicates in any manner and at any

stage of the process that he wishes to consult with an

attorney there can be no questioning.” Miranda v. Ari-

zona, 384 U.S. 436, 444-45 (1966). Furthermore, “an

accused .. . having expressed his desire to deal with the

police only through counsel, is not subject to further in-

terrogation by the authorities until counsel has been

made available to him, unless the accused himself in-

itiates further communication, exchanges or conversa-

tions with the police.’ Hdwards v. Arizona, 451 US.

477, 484-85 (1981). See also Oregon v. Bradshaw, 103

S.Ct. 2830 (1983). This rule recognizes that “when an

accused has invoked his right to have counsel present

during custodial interrogation, a valid waiver of that

1The Court of Military Appeals resolved this case in three

separate opinions. Judge Fletcher’s one sentence concurrence was

the deciding vote. Chief Judge Everett’s dissent highlights the

need for this Court to resolve this issue. Although the opinion is

that of a single judge, it effectively nullifies the protections of

Edwards v. Arizona in the military justice system.

6

right cannot be established by showing only that he re

sponded to further police-initiated interrogation even if

he has been advised of his rights.” 451 U.S. at 484. See

also Escobedo v. Illinois, 378 U.S. 478 (1964).

Escobedo v. Illinois, supra, established the inadmissi-

bility of a confession obtained after a suspect’s repeated

requests for an attorney have been ignored. In Miranda

v. Arizona, supra, this Court safeguarded the individual’s

right to remain silent by requiring rights warnings prior

to custodial interrogation. Most importantly, the Court

noted:

An individual need not make a pre-interrogation

request for a lawyer. While such request affirma-

tively secures his right to have one, his failure to

ask for a lawyer does not constitute a waiver. No

effective waiver of the right to counsel during in-

terrogation can be recognized unless specifically made

after the warnings we here delineate have been given.

Id. at 470 (emphasis added).

The clear import of this language is that the focus of

the Miranda safeguards is not on the timing of the exer-

cise of the right to counsel but on the accused’s knowl-

edge that he possesses the right. Notwithstanding this

language, however, the standard which developed follow-

ing Miranda did not include a per se rule of involuntari-

ness when a request for counsel is ignored. Solem v.

Stumes, 104 S.Ct. 1838, 1843-45 (1984). Moreover, even

with the advent of Edwards v. Arizona, some confusion

existed as to its correct interpretation. It was uncertain

whether the Court was merely applying Johnson v. Zerbst,

304 U.S. 458 (1938), which required a knowing, volun-

tary, and intelligent waiver, or establishing a new rule.

That ambiguity was ended by the Court’s decision in

Solem v. Stumes, supra. In Solem v. Stumes, this Court

stated that “Edwards established a bright-line rule to

safeguard pre-existing rights. . .”, although it did not

7

fault law enforcement personnel for failing to anticipate

its “per se approach.” Solem v. Stumes, 104 S.Ct. at

1343. The Court of Military Appeals, by permitting the

police investigators to renew their interrogation despite

appellant’s request for counsel, improperly ventured far

beyond this bright line.

The lead opinion of the United States Court of Mili-

tary Appeals in this case violates both the letter and the

spirit of this Court’s opinion in Edwards. The petitioner

was apprehended and taken to the police station for in-

terrogation. He was held in a hallway for some nine

hours while co-accused were questioned. He knew he was

going to be questioned because he saw the other suspects

enter and exit the interrogation room. When he was

approached for administrative questioning, he immedi-

ately requested counsel. The request was ignored. Fur-

thermore, the petitioner was misinformed that no attor-

ney was available. He was denied access to a telephone

to contact counsel. Finally, he was repeatedly assured that

his request would be communicated to the interrogator.

The facts of this case clearly invoke the Edwards rule.

The petitioner, held incommunicado in a police dominated

atmosphere, requested counsel to advise him prior to the

impending interrogation. This request was ignored. A

valid waiver “cannot be established by showing only that

he responded to further police-initiated interrogation even

if he has been advised of his rights.” 451 U.S. at 484-85.

The Court of Military Appeals decision in this case is

based on a distinction clearly not contemplated by Ed-

wards. Edwards addressed the issue of whether a subse-

quent waiver of counsel may be said to have been voluntary

after a request for counsel has been denied. The court

below in this case observed that the petitioner had re-

quested counsel while awaiting interrogation. The court

held, however, that the issue was whether the accused had

“a right to have an attorney appointed at that time,” 18

M.J. at 247, finding that because the petitioner had not

yet been told of his rights or interrogated at the time he

8

requested counsel, he had no right to counsel under Mi-

randa. Thus, according to the court below, Edwards was

not activated by a request for counsel prior to the “stage”

at which the suspect had a right to counsel. The bulk of

the opinion then reviews the petitioner’s sixth amendment

right to counsel and concludes that, because the case

against the petitioner was‘still in the investigatory stage,

Edwards was not activated. 18 M.J. at 247-49.

The defect in the opinion below is that Edwards is a

fifth amendment ruling. There can be no doubt that the

petitioner had a fifth amendment right to counsel when

he was interrogated. Miranda v. Arizona, supra. The

petitioner waived that right. The issue is whether that

waiver was valid. The opinion of the court below re-

places this critical inquiry with a misplaced analysis of

whether the case had proceeded beyond the investigatory

stage. The real inquiry is whether a waiver of counsel is

valid after requests for counsel, made before the interro-

gation had begun, were denied. The only difference be-

tween this case and Edwards is that in this case the

request for counsel was made prior to rights warnings

and before the actual interrogation had begun. This

factual distinction, however, makes no logical difference

to the analysis of the Edwards issue. Moreover, in this

Honorable Court’s most recent pronouncement on Ed-

wards v. Arizona, the request for counsel was made

during the administration of rights warning. See Smith

v. Illinois, No. 84-5332 (Ill. Dee. 10, 1984). Noting that

the Illinois Court of Appeals had placed significance on

the timing of the request for counsel, this Court stated

that “[sluch reasoning was plainly wrong” explaining

that “a request for counsel at any stage of the process

requires that questioning cease until counsel has been

provided.” Jd. at n.6.

Edwards recognized the inherently coercive nature of a

denial of a request for counsel followed by custodial in-

terrogation. At the very least, after an accused has

“expressed his own view that he is not competent to deal

9

with the authorities without legal advice, a later decision

at the authorities’ insistence to make a statement without

counsel’s presence may properly be viewed with skepti-

cism.” Michigan v. Moseley, 423 U.S. 96, 110, n.2 (1975)

(White, J., concurring). The petitioner requested counsel

to advise him concerning the impending interrogation.

His requests were denied. The coercive effect of the denial

is not logically mitigated by the fact that rights warnings

had not been issued or by the fact that the substantive

portion of the interrogation had not begun. To the con-

trary, this case, in which repeated, express requests for

counsel were denied and in which the suspect was actually

informed that an attorney was not available, affirms the

need for and the appropriateness of the rule in Edwards

v. Arizona.

II. THE RULE ESTABLISHED IN EDWARDS v. ARI-

ZONA SHOULD BE APPLIED IN A CASE ON

DIRECT REVIEW TRIED AFTER THE DATE OF

THE EDWARDS OPINION ALTHOUGH THE IN-

TERROGATION AT ISSUE OCCURRED BEFORE

THE OPINION?

In Solem v. Stumes, supra, this Court held that the

rule established in Edwards v. Arizona, supra, would not

apply retroactively in collateral review of final convic-

tions. The Court did not, however, decide “[j]ust where

the line should be drawn 1s to Edwards” in other types

of review. 104 S.Ct. at 1346. This petition should be

granted to permit further definition of the scope of the

important rule in Edwards. An analysis of the purpose

and intent of Edwards indicates its applicability in this

case.

The criteria guiding resolution of the retroactivity

issue, emphasized in Solem, include “(a) the purpose to

be served by the new standards, (b) the extent of the

2 This Court has granted a petition for certiorari on a similar

issue in Shea v. Louisiana, 421 So. 2d 200 (La. 1982), petition for

cert. filed, 52 U.S.L.W. 3791 (U.S. April 30, 1984) (No. 82-5920).

10

reliance by law enforcement authorities on the old stand-

ards, and (c) the effect on the administration of justice

of a retroactive application of the new standards.”

Stovall v. Denno, 388 U.S. 298, 297 (1967). Although

this Court has drawn the line of retroactive application

in many different places, the purpose of Edwards and the

treatment of prior similar cases indicate the appropriate-

ness of applying the rule to trials which occurred after

the date of the decision. Indeed, the case of Johnson v.

New Jersey, 384 U.S. 719 (1966), is dispositive of this

issue. In Johnson v. New Jersey, this Court held that

the rules established in Miranda v. Arizona, supra, and

in Escobedo v. Illinois, supra, applied to trials held after

the dates of those decisions. This ruling recognized that

Miranda and Escobedo primarily involved trial rights

and were designed “to guarantee full effectuation of the

privilege against self-incrimination, the mainstay of our

adversary system of -criminal justice.” 384 U.S. at 729.

This Court applied Miranda to trials after the date of

that decision because Miranda “created additional guide-

lines” for implementing Escobedo. 384 U.S. at 734.

Similarly, “Edwards established a bright-line rule to safe-

guard pre-existing rights” established in Miranda and

Escobedo. Solem v. Stumes, 104 S.Ct. at 13848. Hdwards,

too, protects the right against self-incrimination and, as

such, should apply to trials taking place after the date

of the decision.

The police may perhaps not be faulted for relying on

pre-Edwards law. Solem v. Stumes, 104 S.Ct. at 1843-

45. However, an actual violation of the fifth amendment,

the actual self-incrimination, occurs at trial when the

judge admits the confession. Because that violation oc-

curred after the Edwards opinion condemned the use of

the evidence, the admission of the evidence at trial was

error.

Finally, the disruptive effect of applying Hdwards to

those few cases in which the interrogation, but not the

trial, took place before the decision will be negligible. In

11

such cases, parties will have litigated the Edwards issue

throughout and the records will be complete without

further investigation. In the case sub judice, the Edwards

issue was litigated at each stage of the proceedings from

the trial forward.

Other types of cases have been limited in application

to situations in which the protected rights were actually

violated after the effective dates of the relevant decisions.

Such a result is, for example, appropriate in fourth

amendment exclusionary rule cases, because the new rules

are designed to deter future police misconduct. See United

States v. Peltier, 422 U.S. 581 (1975); Desist v. United

States, 394 U.S. 244 (1969). This is also the proper

result in the sixth amendment context when a new rule

requiring the providing of counsel prior to pretrial iden-

tification, because such rules are designed more to deter

pretrial misconduct than to ensure fairness at trial.

Stovall v. Denno, supra.

Edwards, however, like its parents Escobedo and Mi-

randa, must apply to trials occurring after the date of

the decision to effect its purpose of preventing an involun-

tary confession from incriminating accused at trial. The

question of retroactive application, unanswered in Solem,

deserves this Court’s attention to ensure uniform applica-

tion and accurate interpretation of the opinions in Ed-

wards and Solem.

Ill. IF EDWARDS DOES NOT COMPEL REVERSAL,

THE COURT BELOW NEVERTHELESS ERRED BY

FAILING TO FIND PETITIONER’S WAIVER OF

THE RIGHT TO COUNSEL INVOLUNTARY UN-

DER PRE-EDWARDS LAW.

If there is a determination that there was no violation

of the Edwards rule, the next inquiry is whether there

was “a valid waiver of the right to counsel and the

right to silence.” Edwards v. Arizona, 451 U.S. at 486,

n.9. See Oregon v. Bradshaw, 103 §.Ct. at 2835. This

determination depends “upon the particular facts and

12

circumstances surrounding the case, including the back-

ground, experience, and conduct of the accused.” North

Carolina v. Butler, 441 U.S. 369, 374-75 (1979) (quoting

Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). See also

Oregon v. Bradshaw, 103 S.Ct. at 2835; Edwards v.

Arizona, 451 U.S. at 482-83.

The Court of Military Appeals has failed to take this

important second step in determining whether the peti-

tioner’s waiver of the right to counsel was voluntary.

The facts clearly reveal that even under pre-Edwards

law the waiver of counsel in this case was neither know-

ing nor voluntary.

The petitioner had at least twice requested and been

denied counsel. A subsequent waiver in such a case “may

properly be viewed with skepticism.” Michigan v. Mose-

ley, 423 U.S. at 110, n.2 (White, J., concurring). The

petitioner had been denied access to a telephone and had

been told that no attorney was available. He was in

custody some nine hours awaiting interrogation. He was

compelled to answer administrative questions. In such a

situation, the rights warnings eventually issued by MPI

Allinder were meaningless. Although the petitioner was

at a later time formally told of his right to counsel, he

had previously tried to communicate his desire for counsel

through Sergeant Slye to MPI Allinder without result.

Although he was asked if he wanted counsel, he had

previously requested counsel and been told that none were

available. The question posed by MPI Allinder concern-

ing the petitioner’s desire for counsel, which the petitioner

had already answered, must have seemed, at best, a mere

formality with no real meaning. The entire custodial set-

ting in which petitioner was detained resulted in a highly

coercive environment which was clearly unconducive to

a knowing and voluntary waiver. This case should have

been reversed on that ground alone.

The petitioner’s situation is analagous to that pre-

sented in Westover v. United States, 384 U.S. 436, 494

PP

13

(1966), a companion case to Miranda. Though Westover

was informed of, and waived, his rights some 14 hours

after he had been placed in custody, this Court could not

find an intelligent waiver of constitutional rights. From

Westover’s point of view, as well as petitioner’s, the

warnings came at the end of the interrogation process.

384 U.S. at 496.

This writ should be granted to remind the Court of

Military Appeals and other courts that the Edwards rule

is not a short-cut allowing them to disregard prior prece-

dent which requires an examination of the total facts to

determine the voluntariness of the waiver.

{V. THE PETITIONER WAS PREJUDICED BY THE

RULING OF THE COURT BELOW.

The incriminating statement taken in this case after

an invalid waiver of the right to counsel was used to

prove the contested charges, 18 M.J. at 244, and clearly

prejudicial. But for the petitioner’s statements that he

believed the drugs to be “speed”, there could have been

no conviction of attempted possession, use, and transfer

of amphetamines. Furthermore, the first statement tainted

a later statement made by the petitioner to his company

commander. Jd. at 254 (Everett, C.J., dissenting).

Beyond precedential value, simple justice mandates re-

versal.

14

CONCLUSION

For the foregoing reasons, including the importance of

the constitutional issue involved, and the jact that the

Court of Military Appeals has decided the instant case

in a manner that conflicts with the applicable decisions

of this Court, the petition for certiorari should be granted.

The questions presented are substantial and are of crucial

public significance. The procedures in issue deny funda-

mental constitutional rights to individuals, soldier and

citizen alike, with far reaching effects.

Respectfully submitted,

WILLIAM G. ECKHARDT

Colonel, Judge Advocate

General’s Corps (JAGC)

United States Army

USALSA—DAD

Nassif Building

Falls Church, Virginia 22041

(202) 756-1807

Counsel of Record

and

WILLIAM P. HEASTON

Lieutenant Colonel, JAGC

U.S. Army

HARRY L. WILLIAMS, JR.

Captain, JAGC

U.S. Army

APPENDICES

la

APPENDIX A

UNITED STATES COURT OF MILITARY APPEALS

No. 44430

SPCM 16459

UNITED STATES,

Appellee

Ve

JOHNNIE K. GOODSON, Specialist Four, U.S. Army,

Appellant

July 23, 1984

COUNSEL

For Appellant: Captain Kenneth G. Gale (argued) ;

Colonel William G. Eckhardt, Colonel R. Rex Brook-

shire, II, Major Paul J. Luedtke (on brief); Lieu-

tenant Colonel William P. Heaston, Captain Thomas

R. Peppler.

For Appellee: Captain Thomas E. Booth (argued) ;

Colonel R. R. Boller, Lieutenant Colonel John T.

Edwards, Captain Patrick M. Flachs, Captain

Michael E. Pfau (on brief).

OPINION

COOK, Senior Judge:

Tried by special court-martial, military judge alone,

the accused was convicted, in accordance with his pleas,

of possession and use of marijuana, and, contrary to his

pleas, of attempting to possess, transfer, and use amphet-

2a

amines, in violation of Articles 134 and 80, Uniform

Code of Military Justice, 10 U.S.C. §§ 934 and 880, re-

spectively. The approved sentence extends to a_ bad-

conduct discharge, confinement at hard labor for 3 months,

forfeiture of $334.00 pay per month for 3 months, and

reduction to E-1. The findings and sentence were affirmed

by the Court of Military Review. 14 M.J. 542 (1982).

We granted review of the following issue:

WHETHER THE MILITARY JUDGE ERRED BY

RULING THAT THE APPELLANT VOLUNTAR-

ILY AND VALIDLY WAIVED HIS RIGHT TO

COUNSEL DURING INTERROGATION AFTER

BEING DETAINED FOR NINE OR TEN HOURS

IN THE MILITARY POLICE STATION AWAIT-

ING INTERROGATION, AND AFTER CLEARLY

ARTICULATING ON THREE SEPARATE .OC-

CASIONS REQUESTS FOR COUNSEL WHICH

WERE DENIED.

Finding no error, we affirm.

During the early morning hours of February 28, 1981,

the accused and eight others were apprehended at Aber- |

deen Proving Grounds, Maryland, on suspicion of wrong-

ful possession of a controlled substance. The nine sus-

pects were transported to the military police station where

processing and interrogation were conducted by Military

Police Investigator (MPI) Dennis Allinder. Sergeant

Faron Slye, a military policeman who assisted in the

apprehension, testified that shortly after arrival at the

station the accused “said that he didn’t want to make a

statement; that he requested a lawyer.” Slye responded,

“{FJine, I will relay this information, this message, to

the investigator.” Slye “explained to him that all that we

were going to be doing was that he was going to be read

his rights and a field interview worksheet taken on him.”

Later on the accused made a second request to Slye to see

a lawyer, and Slye said he would relay the request to

|

3a

MPI Allinder. Slye testified that he did in fact inform

Allinder of the accused’s requests.

MPI Allinder testified that he did not recall anyone

informing him that the accused wanted to see an attor-

ney. He was the only investigator on duty at the time,

and he interviewed the suspects singularly. He did not

get to the accused until approximately nine hours later.

When the accused came into his office, Allinder “advised

him of his rights on the DA Form 3881, asked him if

he understood, which he said he did.” The accused in-

itialed several places on the form, including the acknowl-

edgment that he understood his “right to talk to a lawyer

before or after questioning or have a lawyer present with

me during questioning.” The accused signed the form in

the section entitled “Waiver”! and signified that he was

“now willing to discuss the offense(s) under investiga-

tion . . . and make a statement without talking to a

lawyer first and without having a lawyer with me.”

Allinder stated that the accused never requested a law-

yer, never indicated that he wished to remain silent, and

never indicated that he had previously asked to see a

lawyer.

The accused offered a different version of the events

of the morning. He said that, upon arrival at the sta-

tion, Sergeant Slye “told me not to sign it [a statement

form], just say I didn’t want to speak.” He related the

two times he asked Slye for counsel, but said that Slye

said he “couldn’t have one.” He further testified that he

“asked to call and Investigator Allinder, he told me that

the acting JAG on duty was just for their use only and I

1 The waiver section reads: “Understanding my rights as stated

above, I am now willing to discuss the offense(s) under investiga-

tion without a lawyer being present.” However, the italicized words

were lined out, and these words written in (presumably by MPI

Allinder): “and make a statement without talking to a lawyer

first and without having a lawyer with me.

appeared after the period.

”

The accused’s initials

4a

couldn’t use him.” However, he admitted that when he

was “called ... in for questioning,” he did not request

a lawyer because “[t]hey already knew” and he “didn’t

think .. . [he would] get one.” The accused made an

incriminating oral statement to Allinder, and it was used

to prove the contested allegations.

On the 2nd of March, the accused’s company com-

mander, Captain Candace Fox, having been informed of

the incident, called the accused into her office. She ad-

vised him of his rights as set out on DA Form 3881.

She was unaware of the events at the police station. The

accused waived his rights again and made a written

statement which he later swore to before the battalion

adjutant. The accused never asked for counsel from her,

and she did not know of his earlier requests. After tak-

ing the statement, she called the defense counsel and

made arrangements for the accused to see him.

The accused confirmed that he did not “ask for a

lawyer” from Captain Fox, since “I thought I was al-

ready hung, sir, I just didn’t stand a chance because they

already knew.”

After argument from counsel the military judge de-

nied the motion to suppress the statements to Allinder

and Fox, and made these findings:

1. That in the early morning hours of 28 Feb-

ruary 1981 the accused was apprehended by military

police and transported to building 2004, Aberdeen

Proving Ground, Maryland for interrogation, arriv-

ing at approximately 0230 hours.

2. That the interrogation of the nine suspects re-

sulting from the apprehension was conducted by one

agent, MPI Allinder, and that the accused was not

interviewed by Allinder until approximately 1200

hours, some nine to ten hours after the initial ap-

prehension. During this wait the accused was held

with the other suspects in a waiting area that was

5a

adjacent to the Military Police Investigator’s offices.

The suspects were not cuffed or placed in cells while

awaiting interviews.

8. During the wait to be interviewed and [to

have] their rights explained by the MPI Agent the

accused requested to see a lawyer and permission to

call a lawyer approximately three times in the first

two hours. He was told that he could not see a law-

yer at that time and that the on-duty JAG officer

could not be called by the accused.

4, At one point during the wait the accused was

informed that he should not make any statements

and sign anything until his rights were read to him

by the MPI Agent.

5. At approximately 1200 hours the accused’s

turn came to be interviewed by MPI Allinder who

proceeded to explain fully what the accused was sus-

pected of and what his rights were. After inform-

ing the accused of his rights as found on Prosecution

Exhibit 1 for Identification and eliciting that the

accused understood his rights, Agent Allinder asked

the accused if he wanted a lawyer present. The ac-

cused stated no, and that he was willing to discuss

the offenses.

6. The wait, although long, was not prejudicial

to the accused in any way because no attempted in-

terrogation was begun until after he waived his

rights. Nothing presented would indicate that the

accused’s waiver was anything other than intelli-

gently, consciously, and voluntarily given. The gov-

ernment actions in interviewing the accused may

have been slow because of the number of suspects,

but was not in any way improper or illegal.

7. We find the questioning conducted by Captain

Fox on the 2nd of March was done pursuant to

rights required by Article 31 and that the interview

6a

was conducted by Captain Fox with the knowledge

that the accused was arrested on drug charges on

the 28th of February. We find the accused con-

sciously, intelligently and voluntarily waived his

rights as found in Prosecution Exhibit 2 for Iden-

tification and that the statement which is marked

Prosecution Exhibit 3 for Identification was prop-

erly taken by Captain Fox as a result of this in-

terview.

We further find that in relation to the 28th of

February, that the accused’s initial request for a

lawyer made soon after he was brought to the sta-

tion to talk to a lawyer was not made at a time when

he had full knowledge of his rights and was not

due to any interrogation whatsoever. It is not un-

common for one arrested to want to see a lawyer,

but the state of the law does allow the govern-

ment to inform the accused of his rights and then

ask if he understands them. Once ascertaining the

suspect understands his rights, the next question is

to whether he wants a lawyer present. The accused

had his opportunity at that point when questioned

by Agent Allinder to state that he did want an at-

torney and that would require the government to

suspend any further questioning. In this case the

accused, after being informed of his rights com-

pletely and for the first time by MPI Agent Allinder

at approximately 1200 hours, he consciously elected

not to demand a lawyer and waived his rights.

Therefore the statement taken by MPI Agent Al-

linder was voluntarily and intelligently given by the

accused with full knowledge of his rights.

Both at trial and on appeal the accused argued that

the then recently-decided case” of Edwards v. Arizona,

2 Edwards v. Arizona, 451 U.S. 477, was decided on May 18, 1981.

The accused was tried on May 21, 1981. His interrogation occurred

as noted on February 28, 1981. In Solem v. Stumes, 104 S.Ct. 1838

]

Ta

451 U.S. 477 (1981), bars his interrogation by the mili-

tary police after he made a request for counsel. We do

not believe that Edwards is determinative in the instant

factual context.*

Edwards was arrested pursuant to a complaint charg-

ing him with robbery, burglary, and murder, and taken

to the police station. There he was advised of his rights

under the fifth amendment as required by Miranda v.

Arizona, 384 U.S. 436 (1966). Edwards stated that he

was willing to submit to questioning and gave a state

ment denying involvement and presenting an alibi de-

fense. However, after being told that another suspect

had implicated him, Edwards “sought to ‘make a deal.’ ”

After attempting to call the county attorney, Edwards

hung up and said: “I want an attorney before making

a deal.” 451 U.S. at 479. Questioning stopped and Ed-

wards was taken to the county jail. The next morning

two detectives came to the jail and asked to see Edwards.

Edwards said he did not want to talk to anyone, but a

detention officer “told him that ‘he had’ to talk and

then took him to meet with the detectives.” Jd. at 479.

After being readvised of his Miranda rights, Edwards

eventually implicated himself in the crimes. Over his

objection, his statement was admitted against him at

trial. On appeal the Arizona Supreme Court held that

Edwards had invoked both his right to remain silent and

to counsel during the interrogation, but that he had vol-

untarily waived both rights at the second interview. The

Supreme Court, however, held that the use of his con-

(1984), the Supreme Court held that since “Edwards established

a bright-line rule to safeguard preexisting rights,” it would not be

applied retroactively at least “in collateral review of final convic-

tions.” 104 S.Ct. at 1848, 1845. Whether it would be applied and

at what stage of the proceedings, in direct review cases, was not

then decided.

3 The military judge was provided with a copy of the slip opinion

in Edwards, and his findings indicate that he did not believe it

applied.

84

fession at trial violated his fifth and fourteenth amend-

ment rights and reversed the conviction.

Edwards v. Arizona, supra, is concerned with the vol-

untariness of a waiver of Miranda rights after advise-

ment and after assertion of those rights:

It is reasonably clear under our cases that waivers

of counsel must not only be voluntary, but must also

constitute a knowing and intelligent relinquishment

or abandonment of a known right or privilege, a

matter which depends in each case “upon the par-

ticular facts and circumstances surrounding that

case, including the background, experience, and con-

duct of the accused.”

Id. at 482, quoting Johnson v. Zerbst, 304 U.S. 458, 464

(1938). The Court further held

that an accused, such as Edwards, having expressed

his desire to deal with the police only through coun-

sel, is not subject to further interrogation by authori-

ties until counsel has been made available to him,

unless the accused himself initiates further com-

munication, exchanges, or conversations with the

police.

Id. at 484-85. Thus Edwards is merely an extension and

interpretation of the Miranda decision. The Supreme

Court “emphasize[d] that it is inconsistent with Miranda

and its progeny for the authorities, at their instance,

to reinterrogate an accused in custody if he has clearly

asserted his right to counsel,” id. at 485, unless the two-

part test has been met to establish a “knowing and in-

telligent” waiver of that right.‘

*There seems to be some doubt as to whether the “two-part”

test is now only one part. The majority in Solem v. Stumes, supra,

defined Edwards in this fashion: “Edwards established a new

test for when that waiver would be acceptable once the suspect had

invoked his right to counsel: the suspect had to initiate subsequent

communication.” 104 S.Ct. at 1343. Justice Powell, concurring

in the judgment, believed that the majority had “established a new

9a

The factual situation before us here is quite different.

Goodson made all of his requests for counsel before he

was advised of his rights and while the case against him

was still in the investigatory stage. He had previously

been advised not to make a statement and to say that he

did not want to speak when he was brought to the mili-

tary police office where he “was going to be read his

rights and a field interview worksheet taken on him.”

Although a period of some 9 hours® lapsed before his

rights were read to him, no attempt was made to interro-

gate him before he was formally advised of his rights by

the military police investigator who was conducting the

investigation.

The question is: Does an accused have a right to have

an attorney appointed at that time? Miranda v. Arizona,

supra, applies only to “custodial interrogation,” which

was there defined as “questioning initiated by law enforce-

ment officers after a person has been taken into custody

or otherwise deprived of his freedom of action in any

significant way.” 384 U.S. at 444 (footnote omitted). A

per se rule and to that extent overruled Johnson v. Zerbst,” 304

U.S. 458 (1938). Jd. at 1846. Earlier in Oregon v. Bradshaw, 103

S.Ct. 2830 (1983), Justice Powell, concurring separately, stated:

But the question of whether a suspect has waived this im-

portant right to counsel is uniquely one of fact, and usually

must and should be left to the judgment of the trial court

that has had the benefit of hearing the evidence and assessing

the weight and credibility of testimony.

Id. at 2838.

5 The evidence here does not reveal the sort of police conduct

condemned by United States v. Hill, 5 M.J. 114 (C.M.A. 1978)

(after advisement of rights and a request for counsel, accused

was placed in a detention cell for 9 hours and then confronted with

an assertion that he had been implicated by one of the participants

in the robbery—no effort was made to provide him with counsel) ;

or United States v. Muldoon, 10 M.J. 254 (C.M.A. 1981) (after

being advised of his rights and requesting counsel, accused was

“placed ...in a ‘very bare’ detention cell” for 2 hours, id. at 255,

and then confronted with an implicating statement from a con-

federate—no attempt was made to provide him with counsel).

10a

person in such custody must be advised of his “right to

remain silent, that any statement he does make may be

used . . . against him, and that he has a right to the

presence of an attorney, either retained or appointed.”

Id. However:

This does not mean, as some have suggested, that

each police station must have a “station house

lawyer” present at all times to advise prisoners. It

does mean, however, that if police propose to interro-

gate a person they must make known to him that he

is entitled to a lawyer and that if he cannot afford

one, a lawyer will be provided for him prior to any

interrogation. If authorities conclude that they will

not provide counsel during a reasonable period of

time in which investigation in the field is carried out,

they may refrain from doing so without violating the

person’s Fifth Amendment privilege so long as they

do not question him during that time.

Id. at 474. Furthermore:

When an individual is in custody on probable cause,

the police may, of course, seek out evidence in the

field to be used at trial against him. Such investiga-

tion may include inquiry of persons not under re-

straint. General on-the-scene questioning as to facts

surrounding a crime or other general questioning of

citizens in the fact-finding process is not affected by

our holding. It is an act of responsible citizenship

for individuals to give whatever information they

may have to aid in law enforcement.

Id. at 477-78.

Our consideration of Miranda leads to the conclusion

that the right to appointed counsel does not arise until

in-custody interrogation has begun. The corollary is that

a waiver of the Miranda rights cannot occur unless there

has been a full advisement of rights. The cases following

Miranda, including Edwards; Oregon v. Bradshaw, 103

S.Ct. 2830 (1983), and Solem v. Stumes, 104 S.Ct. 1338

lla

(1984), have examined alleged waivers made after ad-

visement of rights had been given and requests for attor-

ney assistance had been made. Hence, they are not

helpful in resolving the specific question now before us.

Our own cases of United States v. Hill, 5 MJ. 114

(C.M.A. 1978), and United States v. Muldoon, 10 MJ.

254 (C.M.A. 1981), are likewise concerned with interro-

gation of an accused after advisement and assertion of

rights guaranteed by Miranda and United States v.

Tempia, 16 U.S.C.M.A. 629, 37 C.M.R. 249 (1967).°

They also do not address the question we are considering

here.

While we recognize a significant difference between

deprivation of counsel in violation of the sixth amend-

ment and violation of the right against self-incrimination

prohibited by the fifth amendment, we have examined

sixth-ameadment cases to see if they recognize a right to

counsel prior to the in-custody interrogation phase of a

prosecution. Although we note that Edwards specifically

declined to decide whether there was a sixth amendment

deprivation of counsel in that situation, in view of Mas-

siah v. United States, 377 U.S. 201 (1964), 451 U.S. at

480-02 n. 7, our examination of sixth amendment cases

fails to reveal any case creating the right to counsel

earlier than the initiation of in-custody interrogation.

In Coleman v. Alabama, 399 U.S. 1 (1970), the peti-

tioners claimed that they had been subjected to a station-

house line-up under circumstances so unduly prejudicial

6In United States v. Tempia, 16 U.S.C.M.A. 629, 37 C.M.R. 249

(1967), which brought the doctrine of Miranda v. Arizona, 384 U.S.

436 (1966), into the field of military justice, the accused had been

advised of his right to counsel prior to custodial interrogation and

had asked for counsel. Instead, under then current regulations

of the Air Force, he was referred to the Staff Judge Advocate

who merely explained his legal rights but specifically refused to

enter into an attorney-client relationship with him. We held that

this procedure was inadequate to comply with the Miranda

guarantees.

12a

as to taint a later in-court identification and to deprive

them of a fair trial; that a preliminary hearing in Ala-

bama had been a “critical stage” of the prosecution and

failure there to provide them with counsel was a violation

of their sixth and fourteenth amendment rights. Follow-

ing the dictates of Powell v. Alabama, 287 U.S. 45, 69

(19382), United States v. Wade, 388 U.S. 218, 226 (1967)

(footnotes omitted), held “that jn addition to counsel’s

presence at trial, the accused is guaranteed that he need

not stand alone against the State at any stage of the

prosecution, formal or informal, in court or out, where

counsel’s absence might derogate ‘rom the accused’s right

to a fair trial.” Therefore, the Coleman Court concluded

that “critical stages” included pretrial arraignment, pre-

trial line-ups, and the preliminary hearing held in that

particular case. It added that Miranda held “that the

privilege against compulsory self-incrimination includes a

right to counsel at a pretrial-custodial interrogation.” Jd.

at 7. Later cases have focused on the right to counsel at

pretrial line-ups and out-of-court identifications. See

Moore v. Illinois, 484 U.S. 220 (1977), and cases cited

therein.

I conclude that the reference in Coleman v. Alabama

to Miranda as “Cf.”’ would indicate that it represented

the farthest point from trial that the right to counsel

has been recognized, but then only in the fifth-amend-

ment context.

There is nothing in either the Uniform Code of Mili-

tary Justice or the Manual for Courts-Martial, United

States, 1969 (Revised edition), that would establish a

right to appointed counsel prior to a pretrial investiga-

tion under Article 32. Our case law and service regula-

tions give greater access to counsel at other earlier stages

of prosecution and investigation.’

7™See United States v. Tempia, supra; cf. United States v.

Wimberley, 16 U.S.C.M.A. 3, 36 C.M.R. 159 (1966); United States

v. Gunnels, 8 U.S.C.M.A. 180, 23 C.M.R. 354 (1957).

ee

13a

The Military Rules of Evidence offer little guidance.

Mil.R.Evid. 305 defines “[i]nterrogation” as “any formal

or informal questioning in which an incriminating re-

sponse either is sought or is a reasonable consequence of

such questioning.” A noted text states:

It is clear that not every encounter between an

investigator and another individual must be preceded

by rights warnings; they are only required before

interrogation of a suspect or accused by individuals

required to give the warning. The terms “suspect”

and “accused” are not defined in the Rule but mili-

tary cases have applied a two-pronged subjective-

objective test in determining whether an individual

was a suspect when questioned.

S. Saltzburg, L. Schinasi, and D. Schlueter, Military

Rules of Evidence Manual 92 (1981). The Drafters’

Analysis of Rule 305 includes these remarks:

Rule 305(d) (1) (B) codifies the Supreme Court’s

decisions in Brewer v. Williams, 480 U.S. 387 (1977)

and Massiah’v. United States, 377 U.S. 201 (1964).

As modified by Brewer, Massiah requires that an

accused or suspect be advised of his or her right to

counsel prior to interrogation, whether open or sur-

reptitious, if that interrogation takes place after

either arraignment or indictment. As the Armed

Forees lack any equivalent to these civilian pro-

cedural points, the initiation of the formal military

criminal process has been utilized as the functional

equivalent. Accordingly, the right to counsel attaches

if an individual is interrogated after preferral of

charges or imposition of pretrial arrest, restriction

or confinement. The right is not triggered by appre-

hension or temporary detention. Undercover investi-

gation prior to the formal beginning of the criminal

process will not be affected by this, but jailhouse

interrogations will generally be prohibited.

Appendix 18, Manual, supra.

l4a

I conclude that there is nothing in the Constitution,

the Uniform Code of Military Justice, Federal case law,

or our own cases that would recognize a right to have

counsel provided upon request to a person who is merely

waiting to be interviewed about a suspected crime. I

hold that, in accordance with well-settled law, the right

to appointed counsel arises first upon advisement of rights

prior to in-custody interrogation.

The law requires balancing the accused’s rights against

self-incrimination and the rights of the Government to

investigate and prosecute violations of criminal law. The

amendments to the Constitution and judicial interpreta-

tions thereof, and the Uniform Code and judicial interpre-

tations thereof, represent attempts to insure that the

power of the state does not overwhelm a person accused

or suspected of a crime. On the other hand, the suspected

person must assert his rights, particularly at those criti-

cal points where the rights arise. If the investigator here

had been informed of the earlier requests for counsel—

and there is a conflict in the evidence that he had—then

he should have discussed the matter more fully with the

accused. However, the accused also had an obligation to

renew his request at the proper time. The accused him-

self admitted that the investigator already knew every-

thing because one of his confederates had already made

“a three-hour statement” and “told everything.” At that

point, he reasonably may have concluded that counsel

would be of little value to him. It is unrealistic to re-

quire that police investigators be alert and respond to

every request made by a suspect under investigation. To

exclude evidence taken after the proper advisement of

rights and the waiver of those rights solely because a

person, at some earlier point to another person, had

requested counsel would unduly penalize the Government

and the society it represents in a criminal prosecution.

The decision of the United States Army Court of

Military Review is affirmed.

15a

FLETCHER, Judge (concurring in the result) :

See my opinion in United States v. Hill, 5 M.J. 114,

117 (C.M.A. 1978).

EVERETT, Chief Judge (dissenting) :

I

Before receiving pleas, the military judge held a hear-

ing on a defense motion to suppress “all statements given

by the accused subsequent to his initial request for coun-

sel.” Sergeant Faron R. Slye, the first government wit-

ness on this motion, testified that, in performing his

duties as a military policeman, he had been involved in

the apprehension of appellant in the early morning hours

of February 28, 1981. He

was a back-up unit, rendering assistance to a unit

who had a vehicle stopped in the Swan Creek area

of Aberdeen Proving Grounds, Maryland. They had,

I think, nine suspects who were suspected of pos-

sessing marijuana and/or drugs.

Slye had “searched ... [appellant] for weapons” and

had “found a suspected marijuana cigarette and I think

two types of suspected dangerous drugs.”” From the Swan

Creek area, the accused and the other suspects had been

transported to the MPI office, where he remained “[u]ntil

approximately eleven o’clock the next day.” After reach-

ing the MPI office, Goodson had been “released from his

handcuffs” and stayed “both standing and sitting” with

some of the other suspects.

Slye had some conversation with Military Police In-

vestigator Dennis Allinder, who until 8:30 a.m. was the

only investigator present and was handling the investi-

gation all by himself. Slye testified: “I had talked to

the accused and he told me that he requested a lawyer

several times and each time I informed Investigator Al-

linder that the guy requested a lawyer.” This sequence

of events occurred “[a]pproximately three times.”

ee |

164

Appellant had been brought to the office about 2:00

a.m. and had first asked for a lawyer about 15 minutes

later. Slye testified: “He said that he didn’t want to

make a statement; that he requested a lawyer. I said,

fine, I will relay this information, this message, to the

investigator.” Sergeant Slye did not ask Goodson for a

statement, but he did seek to obtain information to

complete a “field interview worksheet,” which “consists

of questions in regards to full name, your rank, your

Social Security Number, your date of birth and place of

birth.” At that time appellant asked for a lawyer again,

and Slye brought this to Allinder’s attention.

Once again—“early in the morning” when “[i]t was

starting to get daylight out’”—Goodson “asked me [Slye]

was he going to get a lawyer, and I said I had relayed

the information on to Investigator Allinder and I told

Investigator Allinder that Specialist Goodson wanted a

lawyer and at this time he said he knew he needed a

lawyer and was trying to catch up on the paperwork.”

However, up to this point appellant had not been ques-

tioned or read his rights, and with the other suspects

he was “kept down the hallway just sitting in chairs”

while “[wlJaiting to be interviewed by Investigator Al-

linder.” Slye had never seen Goodson before that night;

but on this occasion he had more contact with him than

with any of the other suspects.

Investigator Allinder had spoken with Goodson and the

other suspects at about 2:30 a.m. at the Swan Creek

area. This conversation consisted of Allinder’s identify-

ing himself as an investigator and explaining to the nine

suspects “that they were all under apprehension for the

charges” and that “they would be transported to Build-

ing 2004 for processing.” According to Allinder, they

reached that building—where the military police office

was located—at about 2:45 a.m.; but he did not inter-

view Goodson until about 9 hours later. In the interval,

he interviewed six of the other suspects.

——————

17a

Allinder did not recall anyone stating to him that

Goodson had requested counsel, and he commenced his

interview of appellant by advising him of his rights on

a DA Form 3881—a “Rights Warning Procedure/Waiver

Certificate.” After being so advised, Goodson never indi-

cated that he wanted to see a lawyer or wished to remain

silent; and he did not reveal that previously he had

requested counsel. Goodson, after being warned, made a

verbal statement to Allinder. Special Agent Robert

Tilghman of the Criminal Investigation Division, and

Specialist Four John Tivalt, another military police in-

vestigator, offered testimony corroborating Allinder’s ac-

count that he had not been notified of Goodson’s request

for counsel.

Appellant testified on the motion to suppress that, after

being apprehended and “strip-searched,” he had asked

Sergeant Slye for a lawyer and Slye “said he didn’t know

any and he talked to” Allinder. Then Slye told Goodson

“to go hack and sit down in the hallway,” and “he told

me I couldn’t have one.” After about 10 or 15 minutes,

appellant “went and asked to call and Investigator Al-

linder, he told me that the acting JAG on duty was just

for their use only and I couldn’t use him.”

Goodson remained seated in the hall and was able to

overhear the discussions taking place between the investi-

gators and other suspects, since “[t]he majority of the

time the hallway door was left open so we could hear.”

When Allinder finally called him in, “[h]e already knew

everything”; and Goodson gave an oral statement. He

did not renew his request for a lawyer, because “I didn’t

think I would get one’; counsel “was already denied to

me, two or three times.” On the following Monday after-

noon, appellant was called to the office of his company

commander, Captain Fox, then he did not ask for a

lawyer or remain silent, because “I thought I was already

hung, sir, I just didn’t stand a chance because they

already knew.” The statement he gave Captain Fox was

ee tid

18a

more or less like the verbal statement he already had

given Allinder.

After hearing the evidence and argument on the mo-

tion to suppress, the judge made various findings. Among

them was a finding that, while waiting to be interviewed,

Goodson had “requested to see a lawyer and permission

to call a lawyer approximately three times in the first

two hours,” but “[h]e was told that he could not see a

lawyer . . . and that the on-duty JAG officer could not

be called by” him. The judge made no finding as to

whether Sergeant Slye had informed Allinder of appel-

lant’s request or whether Allinder otherwise knew of the

request. However, he made this further finding that is

especially significant:

[I]n relation to the 28th of February, ... the

accused’s initial request for a lawyer made soon

after he was brought to the station to talk to a

lawyer was not made at a time when he had full

knowledge of his rights and was not due to any in-

terrogation whatsoever. It is not uncommon for one

arrested to want to see a lawyer, but the state of

the law does allow the government to inform the

accused of his rights and then ask him if he under-

stands them. Once ascertaining the suspect under-

stands his rights, the next question is to whether he

wants a lawyer present. The accused had his oppor-

tunity at that point when questioned by Agent Al-

linder to state that he did want an attorney and that

would require the government to suspend any further

questioning. In this case the accused, after being

informed of his rights completely and for the first

time by MPI Agent Allinder at approximately 1200

hours, he consciously elected not to demand a lawyer

and waived his rights. Therefore the statement taken

by MPI Agent Allinder was voluntarily and intelli-

gently given by the accused with full knowledge of

his rights.

19a

II

The principal opinion now concludes—as did the mili-

tary judge at trial and the Court of Military Review—

that a request for counsel may be ignored unless it is

made after in-custody interrogation has begun and the

warning required by Miranda v. Arizona, 384 U.S. 436

(1966), has been given. I, however, am unable to sub-

scribe to this restrictive interpretation of the applicable

Supreme Court precedents.

In Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880,

68 L.Ed.2d 378 (1981), the Supreme Court reversed the

Arizona Supreme Court, which had “misunderstood the

requirement for finding a valid waiver of the right to

counsel, once invoked.” While reaffirming that, “after

initially being advised of his Miranda rights, the accused

may himself validly waive his rights and respond to

interrogation,” the 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 am

accused, such as Edwards, having expressed his

desire to deal with the police only through counsel,

is not subject to further interrogation by the authori-

ties until counsel has been made available to him,

unless the accused himself initiates further com-

munication, exchanges, or conversations with the

police.

451 U.S. at 484-85 (emphasis supplied; footnote omitted).

In Oregon v. Bradshaw, U.S. ——, 103 S.Ct. 2830,

(1983), Justice Rehnquist reaffirmed the Edwards prin-

ciple that once an accused has “expressed his desire to

deal with the police only through counsel,” he “is not

20a

subject to further interrogation by the authorities until

counsel has been made available to him, unless the ac-

cused himself initiates further communication, exchanges,

or conversation with the police.” 103 S.Ct. at 2834, quot-

ing 451 U.S. at 484-85. He concluded, however, that an

inquiry by the accused—‘“Well, what is going to happen

to me now?” (id.)—had “initiated” further conversation.

Justice Marshall’s dissent, in which three other Jus-

tices joined, accepted fully the premise that, after an

accused has requested counsel, he may not be interro-

gated in the absence of counsel or invited to waive his

right to counsel, unless he has “initiated” a further

discussion with the police. However, the dissenters con-

cluded that the defendant’s question had not constituted

the “initiation” of a generalized discussion of the subject

matter of the criminal investigation. Of course, the con-

curring opinion of Justice Powell—to which the principal

opinion in this Court adverts—represented the position

of only one Justice; and apparently it differed from the

two-step analysis subscribed to by the other eight

Justices.

In explaining the significance of a request for coun-

sel, the Justices made no distinction in Bradshaw or in

Edwards between requests that preceded interrogation

and those made after interrogation had commenced.

However, the principal opinion creates such a distinction

out of whole cloth. Under its view, it would make no

difference how often Goodson requested counsel before the

custodial interrogation began. Furthermore, whether Al-

linder “had been informed of the earlier requests for

counsel” would seem immaterial—although my Brother

Cook says that, in this event, the investigator “should

have discussed the matter more fully with the accused.” *

—— M.J. }

* According to the principal opinion: “If the investigator here

had been informed of the earlier requests for counsel—and there

is a conflict in the evidence that he had—then he should have dis-

21a

I simply cannot interpret the controlling precedents

so narrowly. Perhaps, as the judge intimated in his fur-

ther finding, a request for counsel immediately after ap-

prehension should not be viewed as precluding interroga-

tion later after a Miranda warning has been given. In

that situation, the request for counsel might be con-

strued only as an effort to obtain legal advice about the

consequences of the apprehension -and not to seek advice

about an interrogation that may not be imminent or even

in prospect.

However, when, as here, a group of suspects are being

held for many hours for the express purpose of inter-

rogation, I believe that to give no effect to a request for

counsel conflicts with Bradshaw and Edwards. Further-

more, one of Goodson’s three requests for counsel was a

reaction to Sergeant Slye’s seeking information for the

“field interview worksheet.” The questions on this “work-

sheet” concerned neutral subjects, like rank, Social Se-

curity numbr, and age; and so they may have fallen out-

side the purview of Article 31, Uniform Code of Mili-

tary Justice, 10 U.S.C. § 831, and the fifth amendment.

Cf. California v. Byers, 402 U.S. 424, 432, 91 S.Ct. 1535,

cussed the matter more fully with the accused. However, the

accused also had an obligation to renew his request at the proper

time.” —— M.J. ——, ——. I am uncertain about the logical

basis for imposing on Allinder any obligation to discuss with

Goodson his request for counsel, since elsewhere the principal

opinion seems to treat this request as immaterial because it was

premature. If, however, the investigator had any obligation to

discuss the matter with appellant, then the principal opinion

should order a hearing to determine whether Allinder had, in fact,

been informed of the three requests by appellant for counsel. See

United States v. DuBay, 17 U.S.C.M.A. 147, 87 C.M.R. 411 (1967).

Furthermore, why Goodson “had an obligation to renew his request

at the proper time” puzzles me. After being informed that he was

being detained along with others for the purpose of interrogation

and having made three requests for counsel, Goodson already had

made “his request at the proper time”; and the investigator should

have paid some attention thereto. —— M.J. at ——.

22a

1540, 29 L.Ed.2d 9 (1971) (plurality opinion) ; United

States v. Davenport, 9 M.J. 364, 369 (C.M.A. 1980).

Nonetheless, when a suspect is in custody and is asked

questions by his captors—no matter how neutral—a re-

quest for counsel generally should be viewed as directed

also to any later questioning while he is still in custody.

Indeed, if a suspect asks for legal advice to answer ques-

tions about innocuous matters like his age, his request

would seem also to encompass legal advice about more

incriminating matters.

To accept the narrow interpretation of Edwards em-

ployed by the Court of Military Review invites abuse.

After a suspect who awaits interrogation has repeatedly

been denied the counsel he has requested, he may well

conclude—just as Goodson claims he did—that any later

mention by an investigator of his right to counsel is

only a sham. Indeed, an investigator seeking to obtain a

statement from a suspect would have incentive to ignore

repeated requests for counsel before giving a Miranda

warning and commencing interrogation. In this way, the

investigator induces a belief on the suspect’s part that

it will be futile to request a lawyer; and so, when the

Miranda warning finally is given, the suspect will fail

to request a lawyer.

The principal opinion comments that, since “the right

to appointed counsel does not arise until in-custody in-

terrogation has begun[,] [t]he corollary is that a waiver

of the Miranda rights cannot occur unless there has

been a full advisement of rights.” —— M.J. . This

may be true; but even if a waiver of Miranda rights

cannot proceed without full advisement of those rights,

this does not mean that a request for counsel which pre-

cedes this advice can be ignored, as was done here.

Finally, the distinction made by the principal opinion

is an invitation to hairsplitting: If a suspect already

knows he is entitled to a lawyer during custodial interro-

gation and requests counsel a moment before his Miranda

23a

rights are explained, he may thereafter be interrogated

by the police without counsel, so long as the request is

not repeated; but if the Miranda warning is given and

then the suspect asks for a lawyer, interrogation must

halt indefinitely. I cannot believe that important con-

stitutional rights of an accused—like his right to remain

silent or to have legal counsel—hinge on such fine tem-

poral distinctions.

III

In refusing to suppress Goodson’s written statement

to his company commander, Captain Fox, the trial judge

proceeded on the premise that the earlier verbal state-

ment to Allinder had been lawfully obtained. Thus he had

no occasion to make findings as to whether any illegality

in taking the first statement would taint the second state-

ment. Absent such findings, I certainly have no grounds

at this time to conclude that the written statement to

Captain Fox was admissible. Indeed, Goodson’s testi-

mony tends to show that the statement to his company

commander was tainted.

Because receipt in evidence of the two pretrial state-

ments made by appellant clearly affected the findings of

guilty as to the Additional Charge and all of its speci-

fications, I would reverse the decision of the Court of

Military Review thereon.

24a

APPENDIX B

UNITED STATES ARMY COURT OF

MILITARY REVIEW

Before

MILLER, KUCERA and LEWIS

Appellate Military Judges

SPCM 16459

HQ, US Army Test and

Evaluation Command

D.L. Hansen, Military Judge

UNITED STATES,

Appellee

v.

Specialist Four (E-4)

JOHNNIE K. GOODSON,

SSN 551-25-8552,

United States Army,

Appellant

Captain Kenneth G. Gale, JAGC, argued the cause for

the appellant. With him on the brief were Colonel Ed-

ward S. Adamkewicz, Jr.. JAGC, Major Raymond C.

Ruppert, JAGC, Major Joyce E. Peters, JAGC, Major

James F. Nagle, JAGC, and Captain Edwin S. Castle,

JAGC.

Captain Michael E. Pfau, JAGC, argued the cause for

the appellee. With him on the brief were Colonel R.R.

Boller, JAGC, Major John T. Edwards, JAGC, Captain

25a

Paul K. Cascio, JAGC, and Captain Patrick M. Flachs,

JAGC.

30 July 1982

OPINION OF THE COURT

LEWIS, Judge:

On appeal’ the principal issue is whether the trial

judge committed error in refusing to suppress appel-

lant’s oral and written pretrial statements allegedly ob-

tained in violation of his right to counsel. We affirm.

In the early morning hours of 28 February 1981, the

appellant and eight others were apprehended at Aber-

deen Proving Grounds, Maryland, for use and possession

of marihuana. At about 0230 hours, they were trans-

ported to the military police station where they were

placed in custody. Within fifteen minutes after they ar-

rived at the station, the appellant stated that he did not

want to make a statement and that he wanted a lawyer.

Within the next two hours, the appellant twice repeated

his request to see a lawyer and on each occasion the

appellant was told that he could not see a lawyer at

that time.

At about 1200 hours, some nine to ten hours after the

initial apprehension, Military Police Investigator (MPI)

Dennis Allinder called the appellant into his office. Their

1 The appellant was convicted of possession and use of marihuana

in violation of Article 1384, Uniform Code of Military Justice. He

was also convicted of attempting to possess, transfer, and use

amphetamines in violation of Article 80, UCMJ. His sentence

provided for a bad-conduct discharge, confinement at hard labor

for three months, forfeiture of $334.00 pay per month for three

months and reduction to Private E-1.

264

meeting was the first attempt by the Government to in-

terrogate appellant since his apprehension.* Allinder

read and explained the appellant’s Miranda and Article

31 rights to him.* The appellant indicated both his un-

derstanding of those rights as expressed by Allinder and

his desire to make a statement explaining his involve-

ment. While he discussed the offenses with Allinder, ap-

pellant never requested a lawyer or indicated that he had

previously requested counsel. Appellant’s inculpating

oral statement was offered into evidence.

On 2 March the appellant was called into the office of

his company commander, Captain Candace Fox, and

questioned concerning his involvement. Following proper

warnings the appellant rendered a written inculpating

statement. This too was offered into evidence. _

At trial, the appellant moved to suppress both his oral

and written post-arrest statements on a number of

grounds including the contention that any interrogation

after he had requested counsel after apprehension was

impermissible. The trial judge ruled against him and

admitted both statements.

“{Ajn accused . . . [once] having expressed his de-

sire 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 ac-

cused himself initiates further communication, exchanges,

or conversations with the police.” Edwards v. Arizona,

451 U.S. 477, 484-485 (1981). The prohibition in Ed-

wards is aimed at attempts by authorities “to reinterro-

gate an accused in custody if he has clearly asserted his

* The appellant had previously been told not be make any state-

ments until his rights were read to him by Agent Allinder.

3’ Miranda v. Arizona, 384 U.S. 436 (1966) and Article 31, Uni-

form Code of Military Justice, 10 U.S.C. § 831 (1976).

* There was testimony at trial that Agent Allinder was aware

of appellant’s requests for counsel.

27a

right to counsel.” Jd. at 485. (Emphasis added.) The

Fifth Amendment right to counsel identified in Miranda

does not grant an accused a right to confer with or

have counsel immediately upon apprehension and before

questions eliciting an incriminating response are put to

him. Nor does it prevent initial interrogation where the

accused’s prior requests are not made in such a way as

to preclude any subsequent interrogation. Blasingame v.

Estelle, 604 F.2d 898, 896 (5th Cir. 1979) ; United States

v. Ogden, 572 F.2d 501 (5th Cir.), cert. denied 489 US.

979 (1978); United States v. Rodriguez-Gastelum, 569

F.2d 482 (9th Cir.) (en banc), cert. denied 436 USS.

919 (1978); see United States v. Hart, 619 F.2d 325

(4th Cir. 1980).

In the instant case appellant’s request to confer with

counsel after his apprehension was not directly related

to his Miranda right to confer with counsel before an-

swering any questions. Prior to the interrogation by

Agent Allinder, the appellant was not subjected to any

questioning. Thus, there was no right to confer with

counsel or have counsel present. When appellant’s Mi-

randa right to confer with counsel finally ripened at the

time Allinder began to question him, the appellant ac-

knowledged that he understood his rights and did not de-

sire counsel. Accordingly, the Edwards “bright line” was

not transgressed by the police. The statement is not sub-

ject to automatic exclusion, nor is the Government put

to any heavy burden to show a suspect’s subsequent

waiver after initial assertion of a right. Rather, the

initial request for an attorney where no right to one then

exists is merely another relevant factor to determine

whether, at the time of questioning, the suspect’s waiver

was knowing and intelligent.

This is not a case where the police failed to honor an

aceused’s request during custodial interrogation to dis-

continue questioning or provide counsel. United States

y. Muldoon, 10 M.J. 254 (CMA 1981); United States v.

28a

Hill, 5 M.J. 114 (CMA 1978); United States v. Dillon,

11 M.J. 922 (AFCMR 1981). Nor is this a case where the

police subjected an accused to “repeated efforts to wear

down his resistance and make him change his mind.”

Michigan v. Mosely, 423 U.S. 96, 105-106 (1975). In

contrast to such practice, the appellant here was advised

at the time of his apprehension to remain silent and not

make any statements until his rights had been read and

fully explained to him.

Our holding that there was no infringement of the ap-

pellant’s Miranda or Article 31 rights applies even

though a prior request for counsel was made and as-

sumes that appellant’s earlier request was communicated

to Agent Allinder. While an accused has an absolute

right to avoid interrogation, he also has the prerogative

to answer questions if that is his choice. The police

should similarly be permitted the opportunity to ascer-

tain whether an accused wishes to exercise that preroga-

tive. Thus, a questioning official may legitimately make

further inquiry to clarify an unclear expression of rights

provided the inquiry is not an attempt to impinge on

the exercise of an accused’s right to remain silent or seek

counsel. Thompson v. Wainwright, 601 F.2d 768 (5th

Cir. 1979). To hold that a request for counsel no matter

when given or how it is asserted bars an investigating

officer from later finding out if the accused wishes to

exercise his prerogative to answer questions would trans-

form the Miranda and Article 31 safeguards “into wholly

irrational obstacles to legitimate police investigative ac-

tivity, and deprive suspects of an opportunity to make

informed and intelligent assessments of their interests.”

Michigan v. Mosely, supra, 423 U.S. at 102; Blasingame

v. Estelle, supra 604 F.2d at 896.

What convinced the appellant to waive his rights and

inculpate himself is not open to valid speculation. The

appellant not unexpectedly testified that he did not re-

new his request for an attorney at the outset of Agent

eT

29a

Allinder’s interview because it had already been “de-

nied to me, two or three times.” We believe appellant’s

other testimony, however, that he chose to waive his

rights and answer Allinder’s questions because “[Al-

linder] already knew everything because I heard Waters’

[a co-accused] statement because he gave a three-hour

statement to that civilian attorney and I heard that and

he told everything.” We conclude that the appellant was

attempting to make the best out of a bad situation rather

than acting on the belief that counsel would be denied

him upon his timely request. There is no dispute that

Agent Allinder advised appellant of his right to confer

with or have counsel present during the interview.

We conclude that appellant’s statement to Agent Al-

linder was not taken in contravention of his Miranda

and Article 31 rights. Moreover, the record otherwise

supports a conclusion that the statement was voluntarily

given without the use of force or coercion. As appellant’s

statement to Captain Fox followed proper warnings and

was not adversely affected by the prior properly warned

statement to Agent Allinder, we similarly conclude that

it too was properly admitted. Finally, contrary to his

cluim of insufficiency of the evidence, we are convinced

beyond a reasonable doubt of appellant’s guilt.

The findings of guilty and the sentence are AFFIRMED.

Senior Judge MILLER and Judge KUCERA concur.

FOR THE COURT:

/s/ James D. Kemper, Jr.

JAMES D. KEMPER, JR.

Clerk of Court

30a

APPENDIX C

UNITED STATES COURT OF

MILITARY APPEALS

USCMA Dkt. No. 44430/AR

CMR Dkt. No. 16459

UNITED STATES, |

Appellee

V.

JOHNNIE K. GOODSON (551-25-8552),

Appellant

ORDER DENYING PETITION

FOR RECONSIDERATION

By an equally divided vote of the judges participating,* |

it is, by the Court, this 2nd day of November 1984, |

ORDERED:

That appellant’s petition for reconsideration of the de-

cision of this Court (18 M.J. 243) in the above-entitled

case be not granted; and that the mandate required by

Rule 438 of this Court’s Rules of Practice and Procedure

issue forthwith.

; SS es

For the Court,

/s/ John A. Cutts, III

Deputy Clerk of the Court

ec: The Judge Advocate General of the Army

Appellate Defense Counsel (WILLIAMS)

Appellate Government Counsel (BOOTH)

* Judge Cox did not participate.

W ov. &. GOVERNMENT PRINTING OFFice; 1964 464543 11017

TF