Petition for Writ of Certiorari — Jordan v. United States

89-1262 ‘Ul FTorp

i | FEB 6 1880

. SPANIOL, JR,

"Wy CLERK

Iu the Suyreme Court oi the United States

OCTOBER TERM, 1989

SPENCER I. JORDAN, Airman, United States Navy,

PETITIONER

Uv.

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

ARTHUR R. PHILPOTT

Captain

JAGC, United States Navy

and

JOSEPH B. GILBERT

Major, U.S. Marine Corps

Counsel of Record

MICHAEL K. SCHALLER

Captain, U.S. Marine Corps

NAVY-MARINE CorPS APPELLATE

REVIEW ACTIVITY

Washington Navy Yard,

Building 111

Washington, D.C. 20374

(202) 433-6380

QUESTION PRESENTED

Whether Miranda prohibits military or civilian police

from undertaking pretrial custodial interrogation of a

suspect who is represented by an attorney, unless either

the attorney gives consent or the suspect initiates the

discussion?

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TABLE OF CONTENTS

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CONSTITUTIONAL PROVISIONS INVOLVED ......... 3

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RULES OF EVIDENCE INVOLVED ............0000.00........ 4

STATEMENT OF THE CASE .......000000000000.... CONS ner 5

REASON FOR GRANTING THE WRIT..................... 7

THE COURT SHOULD GRANT THE WRIT BE-

CAUSE THE POLICE VIOLATED BOTH THE

LETTER AND SPIRIT OF THE MIRANDA

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APPENDIX A (Opinion of the U.S. Court of Military

A Se SS NOS EN la

APPENDIX B (Opinion of the U.S. Navy-Marine

Corps Court of Military Review) ......................0........ 3la

TABLE OF AUTHORITIES

Cases:

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

Miranda v. Arizona, 384 U.S. 4386 (1966) .............. 7,9

Moran v. Burbine, 475 U.S. 412 (1986) ....00000000... 7,8

Schacht v. United States, 398 U.S. 58 (1970) .......... 2

Constitution:

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Statutes:

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dca eccanesbinpennnie 3, 4

ke | ete Pa en Ry AERATED 4

Regulations:

Military Rule of Evidence 305 (e) -........2....-..22..--------- 4,8

(iii)

Iu the Supreme Court of the United States

OCTOBER TERM, 1989

No ——

SPENCER I. JORDAN, Airman, United States Navy,

PETITIONER

Vv .

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

The petitioner, Spencer I. Jordan, respectfully prays

that a writ of certiorari issue to review the judgment

and opinion of the United States Court of Military Ap-

peals, rendered in this proceeding on September 25, 1989. |

OPINIONS BELOW

The opinion of the United States Court of Military Ap-

peals, United States v. Jordan, 29 M.J. 177 (C.M.A.

1989), is reprinted as Appendix A.

The opinion of the United States Navy-Marine Corps

Court of Military Review, United States v. Jordan, No.

86-1006, slip. op. (N.M.C.M.R. June 30, 1987), is re-

printed as Appendix B.

(1)

2

JURISDICTION

The United States Court of Military Appeals affirmed

the decision of the United States Navy-Marine Corps

Court of Military Review on September 28, 1989. This

Court has jurisdiction pursuant to 28 U.S.C. § 125913).

The petition is filed out of time under Rule 20.1 of

the Rules of this Court. The delay is due to the neglect

of the Navy Appellate Defense Division to promptly no-

tify petitioner that the Court of Military Appeals had

decided his case. Petitioner is incarcerated in a federal

correctional facility in Alabama. The Military Justice

Reporter available to petitioner is not current and still

does not contain the decision in his case. Before and

after the date of the decision petitioner had telephoned

the Navy Appellate Defense Division numerous times to

inquire if his case had been decided. All of the attorneys

who had previously represented petitioner throughout the

appellate process had been reassigned elsewhere under

military transfer orders. Through no fault of his own,

petitioner was incorrectly informed that his case had not

been decided.

When this error was discovered, the Director of the

Navy Appellate Defense Division detailed counsel to im-

mediately contact petitioner and inform him of the actual

status of his case and to represent him in further pro-

ceedings as necessary. On 16 January 1990 petitioner

was informed of the decision of the Court of Military

Appeals. Before that date petitioner had no knowledge

of that decision and had no reasonable opportunity to ob-

tain that information.

Petitioner respectfully requests that this Petition be

entertained on the merits. Rule 20.1 of the Rules of this

Court is not jurisdictional. Schacht v. United States, 398

U.S. 58, 63-64, 90 S.Ct. 1555, 1559, 26 L.Fid.2d 44, 48-49

(1970) (dealing with the predecessor of Rule 20.1).

3

CONSTITUTIONAL PROVISIONS INVOLVED

Amendment V

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment

or indictment of a Grand Jury, except in cases aris-

ing in the land or naval forces, or in the Militia,

when in actual service in time of war or public

danger; nor shall any person be subject for the same

offense to be twice put in jeopardy of life or limb;

nor shall be compelled in any criminal case to be a

witness against himself, nor be deprived of life,

liberty, or property without due process of law; nor

shall private property be taken for public use, with-

out just compensation.

STATUTES INVOLVED

10 U.S.C. $881, Article 81, Uniform Code of Military

Justice. Conspiracy.

Any person subject to this chapter who conspires

with any other person to commit an offense under

this chapter shall, if one or more of the conspirators

does an act to effect the object of the conspiracy, be

punished as a court-martiai may direct.

10 U.S.C. $918, Article 118, Uniform Code of Military

Justice. Murder.

Any person subject to this chapter who, without

justification or excuse, unlawfully kills a human be-

ing, when he—

(1) has a premeditated design to kill;

(2) intends to kill or inflict great bodily harm;

(3) is engaged in an act which is inherently dan-

gerous to others and evinces a wanton disregard of

human life; or

(4) is engaged in the perpetration or attempted

perpetration of burglary, sodomy, rape, robbery, or

aggravated arson;

4

is guilty of murder, and shall suffer such punishment

as a court-martial may direct, except that if found

guilty under clause (1) or (4), he shall suffer death

or imprisonment for life as a court-martial may di-

rect.

10 U.S.C. § 922, Article 122, Uniform Code of Military

Justice. Robbery.

Mil.

Any person subject to this chapter who with intent

to steal takes anything of value from the person or

in the presence of another, against his will, by means

of force or violence or fear of immediate or future

injury to his person or property or to the person or

property of a relative or member of his family or

of anyone in his company at the time of the robbery,

is guilty of robbery and shall be punished as a court-

martial may direct.

RULES OF EVIDENCE INVOLVED

R. Evid. 305(e)

Warnings About Rights.

Notice to counsel. When a person subject to the

code who is required to give warnings under sub-

division (c) intends to question an accused or per-

son suspected of an offense and knows or reasonably

should know that counsel either has been appointed

for or retained by the accused or suspect with re-

spect to that offense, the counsel must be notified of

the intended interrogation and given a reasonable

time in which to attend before the interrogation may

proceed.

5

STATEMENT OF THE CASE

Petitioner was convicted by a general court-martial,

composed of officer members, of conspiracy to commit rob-

bery, robbery, unpremeditated murder and felony mur-

der.'

Petitioner was charged with conspiring with Seaman

Thomas Hardnett to rob Petty Officer Second Class

Gregory Swafford, with killing Swafford during the com-

mission of a robbery, and with robbing Swafford. Swaf-

ford failed to report for duty on the morning of 3 Feb-

ruary 1985. Record at 258. Swafford’s command re-

quested that the Naval Investigative Service (NIS) ini-

tiate an investigation into his disappearance. Record at

45. Agent Cashman of NIS was assigned to investigate

this matter. Record at 45-47. On 3 April 1985, Swaf-

ford’s body was found in the waters of Chesapeake,

Virginia. Record at 266. The Chesapeake police com-

menced an investigation because the body was discovered

in their jurisdiction. Record at 71. Detective Griggs

headed that investigation. Record at 70-71.

Thereafter, the police and NIS conducted a joint in-

vestigation involving extensive cooperation between

Agent Cashman and Detective Griggs. Record at 50 and

70. This cooperation included pooling information and

flying to Italy together to interview petitioner and other

witnesses. Record at 71-72. Over time petitioner made

several statements which, along with other information,

made him a suspect. Record at 74. On 2€ July 1985,

petitioner was ordered into military pretrial confinement.

On 39 July, a Navy judge advocate, Lieutenant Stall-

ings, was assigned to represent petitioner on the murder

charge. Record at 125. On that same day Lieutenant

Stallings served notice upon the government through the

convening authority’s staff judge advocate that he was

petitioner’s counsel for the pending charges. Record at

110 U.S.C. §§ 881, 918, and 922 (1982).

6

125. On 30 July, civilian authorities decided to prosecute

petitioner. Record at 75. Detective Griggs obtained a

warrant for petitioner’s arrest. Record at 75.

On 31 July, Lieutenant Stallings met petitioner in the

Navy brig. Record at 76 and 126. They discussed the

case for two hours. Record at 126. While petitioner was

meeting with his lawyer, Detective Griggs arrived at the

brig with the warrant for petitioner’s arrest. Detective

Griggs was told that petitioner was consulting with his

lawyer, and that he would have to wait. Record at 76.

Lieutenant Stallings completed his interview with peti-

tioner and left the brig. He was not told that the civil-

ians were going to arrest and interrogate petitioner.

Record at 126. Detective Griggs immediately took cus-

tody of petitioner, escorting him to the civilian jail. De-

tective Griggs asked NIS Agent Cashman to be at the

subsequent interrogation. Record at 77. Agent Cashman

Was aware that petitioner had been appointed military

counsel and had in fact spoken with that attorney. Rec-

ord at 82.

At the interrogation petitioner was read his Miranda

rights, which he waived. Record at 76. Detective Griggs

and Agent Cashman did not telephone or in any way

attempt to contact Lieutenant Stallings to inform him

that they intended to interrogate petitioner. Record at

126. Petitioner made incriminating statements on this

day and on 3 August when the police interrogated him

again. Record at 354-356. Lieutenant Stallings was not

informed of this interrogation either. Record at 126-

127. After these two interrogations the Navy requested

that petitioner be transferred back to military custody for

prosecution. Record at 161.

At the court-martial petitioner moved to suppress the

statements made on 31 July and 3 August because they

were obtained in violation of his right to counsel under

the Sixth Amendment and Military Rule of Evidence

305\e). Appellate Exhibit I. The military judge denied

'

the motion. Record at 169. The Navy-Marine Corps

Court of Military Review affirmed the military judge’s

ruling. By a sharply divided vote, the Court of Milita:

Appeals affirmed.

REASON FOR GRANTING THE WRIT

THE COURT SHOULD GRANT THE WRIT BECAUSE

THE POLICE VIOLATED BOTH THE LETTER AND

SPIRIT OF THE MIRANDA DOCTRINE.

“If the individual indicates in any manner that... he

wants an attorney, [police] interrogation must cease.”

See Moran v. Burbine, 475 U.S. 412, 420, 106 S.Ct. 1135,

1140, 89 L.Ed.2d 410, 420 (1986) (citing Miranda v.

Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694

(1966) ).

Upon confinement by military authorities, petitioner

requested counsel pursuant to Rule for Courts-Martial

(R.C.M.) 305(f).° Chief Judge Everett considered this

request sufficient to invoke the Edwards v. Arizona pro-

hibition against further questioning. United States v.

Jordan, 29 M.J. 177, 191 (Everett, C.J., dissenting) .*

Petitioner consulted with his detailed military counsel

for two hours about the very charge under investigation.

The detective who initiated further interrogation waited

at the military brig until petitioner finished consulting

with his retained attorney, before seizing and transfer-

ring petitioner to a civilian jail.

* R.C.M. 305 provides the right to counsel before the initial review

hearing required to continue military pretrial confinement.

3’ Chief Judge Everett further opined that the Supreme Court has

not yet squarely decided this issue, but he remains convinced

that “investigators—whether military or civilian—are precluded by

Miranda from undertaking pretrial custodial interrogation of a

suspect who is represented by an attorney, unless either the attorney

gives consent or the suspect ‘initiates’ the discussion.” United

States v. Jordan, supra at 191.

8

The record demonstrates that the local police worked

closely with Naval Investigative Service agents through-

out the investigation, and knew detailed military counsel

had been appointed.‘

In this case, unlike Moran v. Burbine, supra, peti-

tioner had sought and been assigned an attorney, with

whom he completed consultations about the subject

charges, the same day further interrogation began. Pe-

titioner had already tacitly announced his desire to speak

through counsel, thus implicating the rule enunciated in

Edwards, supra.

Certainly, petitioner should be entitled to his retained

counsel’s guiding hand before making such a critical de-

cision; i.e., to subject himself to the inherent pressures

of custodial interrogation alone.

No police authorities, military or civilian should have

interrogated petitioner further, unless he initiated the

conversations. The record clearly establishes the fact that

all interrogations began at the government’s initiative,

not petitioner’s.

4Mil. R. Evid. 305(e) requires that N.1.S. agents notify any

assigned counsel before they interrogate a military suspect.

9

CONCLUSION

Petitioner’s statement to Detective Griggs on July 31

was inadmissible in a criminal trial—whether by court-

martial or in a state court. The Fifth Amendment and

its implementation by Miranda’s prophylactic rule pro-

hibit its use. After consulting with retained counsel,

petitioner never initiated a discussion of the subject hom-

icide with anyone. This Court should grant this petition

for certiorari because the United States Court of Mili-

tary Appeals erroneously interpreted Miranda and Ed-

wards to the prejudice of petitioner. The bright line rule

established by Miranda and Edwards should apply to

both military and civilian custodial interrogations.

Respectfully submitted,

ARTHUR R. PHILPOTT

Captain

JAGC, United States Navy

and

JOSEPH B. GILBERT

Major, U.S. Marine Corps

Counsel of Record

MICHAEL K. SCHALLER

Captain, U.S. Marine Corps

NAVY-MARINE CoRPS APPELLATE

REVIEW ACTIVITY

Washington Navy Yard,

Building 111

Washington, D.C. 20374

(202) 433-6389

APPENDIX A

U.S. COURT OF MILITARY APPEALS

No. 58,976

NMCM 86 1006

UNITED STATES, APPELLEE

Vv.

SPENCER |. JORDAN, Airman, U.S. Navy, APPELLANT

Sept. 28, 1989

For Appellant: Lieutenant John L. Staley, JAGC,

USNR (argued); Lieutenant Commander Robert J.

Smith, JAGC, USN and Lieutenant Deborah D. Sorkin,

JAGC, USNR.

For Appellee: Lieutenant Commander L. Friedman,

JAGC, USN (argued: ; Captain Wendell A. Kjos, JAGC,

USN (on brief).

Opinion

COX, Judge:

Contrary to his pleas, appellant stands convicted of

conspiracy to commit robbery, robbery, and murder while

engaged in the perpetration of robbery, in violation of

Articles 81, 122, and 118, Uniform Code of Military Jus-

tice, 10 USC $s 881, 922, and 918, respectively... His

1 He was also convicted of unpremeditated murder, but the Court

of Military Review dismissed that specification and otherwise

affirmed the findings and sentence in an unpublished opinion dated

June 30, 1987.

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Za

approved sentence is a dishonorable discharge, confine-

ment for life, total forfeitures, and reduction to E-1.

We granted review of this issue:

WHETHER THE MILITARY JUDGE ERRED BY

ADMITTING APPELLANT’S STATEMENTS,

MADE WITHOUT COUNSEL PRESENT, TO A

CIVILIAN DETECTIVE AND A NAVAL INVES-

TIGATIVE SERVICE AGENT WHO KNEW AP-

PELLANT HAD BEEN DETAILED A MILITARY

COUNSEL WITH WHOM HE ALREADY CON-

FERRED.

I

The deceased, Aviation Electrician’s Mate Second Class

Gregory V. Swafford, was one of appellant’s roommates

at the Naval Air Station, Norfolk, Virginia. According

to appellant’s multiple admissions, he and his friend,

Operations Specialist Seaman Thomas E. Hardnett, Jr.,

prevailed upon Swafford to drive them into Norfolk on

the evening of February 2, 1985. Before leaving the air

station, Hardnett informed appellant of his intent to rob

Swafford.

When Swafford dropped the pair off in Norfolk, Hard-

nett provoked an argument. Appellant restrained Swaf-

ford while Hardnett killed him; appellant removed his

wallet. Together they loaded the deceased into the trunk

of his car, drove to a nearby body of water (a tidal

creek branching off the Elizabeth River) in Chesapeake,

Virginia, and dumped the corpse in the creek. Ulti-

mately, they returned to the air station, leaving the car

in a parking lot there. When Swafford turned up miss-

ing the next day, their story was that they last saw him

when he dropped them off in town the evening before.

Due to the coldness of the water at that time of year,

the body did not surface for several months.

The unfolding of the story of appellant’s involvement

spanned many months. Because Swafford was a “4.0

3a

sailor” and because his car was located on base, the naval

authorities did not believe he was an unauthorized ab-

sentee. Rather, ‘‘a worst-case scenario’ was assumed

from the outset. Along with dozens of other sailors, ap-

pellant was interviewed in an effort to find out anything

possible about Swafford’s disappearance. On February 8,

1985, appellant provided his initial statement to a Naval

Investigative Service (NIS) special agent. Appellant

clearly was not a suspect at this time; he was not ad-

vised of his rights; and he related the cover story agreed

upon with Hardnett.

The intensity of the investigation increased dramat-

ically after April 3, 1985, when Swafford’s body was dis-

covered having surfaced within the jurisdiction of Ches-

apeake, Virginia. A camera strap, later identified as

Hardnett’s, was still tightly tied around Swafford’s neck.

The pathologist who examined the body opined that the

cause of death was strangulation. Up until the finding

of the body, foul play had not been conclusively estab-

lished. The discovery touched off another round of inter-

views, involving this time both naval investigators and

those of the City of Chesapeake.

Because appellant and Hardnett had provided the last

confirmed sighting of Swafford, they were reinterviewed

with great particularity. By this time, appellant and

others of his unit were deployed in the Mediterranean;

Hardnett remained in Norfolk and was interviewed be-

fore appellant.

Appellant was interviewed onboard the USS PUGET

SOUND (AD-38) at Gaeta, Italy, on May 3, 1985. Two

law-enforcement officers traveled from Virginia to Italy

as part of the continuing investigation: Special Agent

2 The complete content of Hardnett’s interviews are not of record,

but parts of them were presumably revealed by investigators while

questioning appellant and confronting him with inconsistencies

between his and Hardnett’s accounts.

4a

Brian A. Cashman, NIS, and Detective Colin S. Griggs,

Chesapeake Police Department. Their trips were financed

by their respective agencies. Due to the location of the

deceased’s body and the lack of an established military

connection, it was assumed that Chesapeake had juris-

diction in the case. In addition to appellant, 26 or 27

other servicemembers were interviewed in and about

Gaeta. Appellant’s interview, however, was one of only

three in Italy that was tape-recorded and transcribed.

The law-enforcement officers still did not regard ap-

pellant as a suspect, and they did not advise him of his

rights. Nevertheless, since he was one of the last people

to see the deceased alive, they pressed him hard for de-

tails. Under close questioning about collateral events on

the night Swafford disappeared, appellant’s account var-

ied in several respects from the account most recently

given by Hardnett.* The investigators told appellant

flatly that his account “differ[ed] significantly” from

Hardnett’s in several respects. After one such discrep-

ancy, Special Agent Cashman went so far as to inquire

of appellant: “O.k., do you know what making a false

official statement means?”

Despite the officers’ stated belief that appellant was not

yet a suspect, the military judge concluded that

one need only to read the transcript of the 3 May

statement by the accused to know that if the NIS

Agent did not subjectively suspect the accused of

being involved in Swafford’s death, he should have

been by any objective standard [.]

3 Appellant maintained that the chronology detailed by Hardnett,

concerning which particular bars they patronized after Swafford

dropped them off and which particular women they encountered, had

actually occurred on a different night from the night Swafford dis-

appeared. According to appellant, he and Hardnett had visited that

same vicinity on several occasions during the general time period.

Appellant’s recollection, therefore, as to their itinerary after they

had last seen Swafford alive was somewhat different from Hardnett’s.

5a

Therefore, the judge suppressed appellant’s May 3

statement. However, he observed that appellant’s state-

ment was not apparently incriminating, but merely dif-

fered in collateral detail from Hardnett’s. Indeed, appel-

lant clung tenaciously to the basic story that he and

Hardnett had concocted, i.e., the last time they saw Swaf-

ford was when he dropped them off in town. Therefore,

since “the cat was not let out of the bag,” the judge

ruled that the officers’ failure to advise appellant of his

rights and to secure appropriate waivers on May 3 did

not affect any of the appellant’s subsequent admissions.

Moreover, the judge concluded that even if the May 3

statement contained incriminating admissions, the rights

advisements given prior to the subsequent statements

and the voluntary waivers of these rights by appellant

were sufficient to purge any possible taint. See n.5,

infra. Appellant was not arrested or in any way re-

stricted following the May 3 interview.

In the opinion of the law-enforcement community, ap-

pellant and Hardnett became suspects as of June 12,

1985, when Hardnett, still in the States, failed three

successive polygraph examinations.‘ From this point on-

ward, all statements provided by appellant to law-en-

forcement agents, military and civilian, were preceded

by appropriate rights warnings and waivers.°

After appellant was classified as a suspect by the law-

enforcement community, the next official to contact him

was NIS Special Agent Ronald J. Possanza, who was

4This information was revealed during an Article 39(a), Uni-

form Code of Military Justice, 10 USC § 839(a), session in conjunc-

tion with several pretrial motions made by appellant. It was not

received in evidence on the merits or otherwise communicated to the

court members.

5 Though there is no issue before us concerning the correctness of

the military judge’s conclusions, they are well-founded in both fact

and law. See Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84

L.Ed.2d 222 (1985).

6a

based in Sicily. Possanza caught up with appellant on

July 22, 1985, aboard the USS KIDD (DDG-993), in the

port of Haifa, Israel. Appellant consented to a search of

his lockers.° There Possanza found two handwritten let-

ters from Hardnett, sent to appellant through an inter-

mediary.

In one of the seized letters, Hardnett advised appellant

that he (Hardnett) had “fucked up” in his last conver-

sation with the investigators by embellishing some of the

collateral details about the evening in question. This

letter appears to explain the inconsistencies between ap-

pellant’s May 3 statement and Hardnett’s last statement.

It went on to instruct appellant how to tailor his story

to dovetail with Hardnett’s. It also cautioned appellant

“to swear that you didn’t talk to me or get a letter from

me telling you anything that went on with Greg [Swaf-

ford] since you’ve been on this cruise!’ And it ended

with this fateful admonition, “‘|B]urn this letter as soon

as you read it.’”’ Unfortunately for appellant, he failed

to heed this last piece of advice.

The seizure of this letter apparently broke the case

wide open. Armed with this glaring item of refutation,

Possanza confronted appellant the next day, July 23, af-

ter first advising him of his rights and securing waivers

thereof. Only the day before, appellant had still denied

all knowledge of Swafford’s disappearance. On the 23d,

however, he began to back-pedal.

He now claimed that, several hours after Swafford

dropped Hardnett and him off in town, Swafford reap-

peared and agreed to drive them back to base. On the

way back, according to this account, Swafford made

homosexual advances toward Hardnett and a “fuss” en-

sued. Swafford pulled the car off the road near a river,

and they all got out. A fight developed between Hardnett

and Swafford, which resulted in Swafford’s death. Though

® The validity of this consent is not before us.

7a

appellant was “very drunk,” he tried unsuccessfully to

break up the fight, according to this version. Hardnett

alone dragged the body into the water. Appellant never

touched Swafford, did not take his wallet, and did not see

Hardnett take it.

After the July 23 statement, arrangements were im-

mediately made to transport appellant back to the States.

He arrived in Norfolk late in the evening of July 26,

1985, accompanied by Svecial Agent Possanza. He was

met in Norfolk by Special Agent Cashman and Detective

Griggs, among others. He was again advised of his

rights, which he waived. Agreeing to show the officers

where the events had transpired, appellant rode in Detec-

tive Griggs’ vehicle and directed the officers through his

route on the night of February 2-3. Ultimately, he led

them to a spot next to the same tidal creek where the

body was recovered. He identified the location as the site

where Hardnett killed Swafford. That night appellant

was billeted in officers’ quarters.

The next day, July 27, the group returned to the site,

and appellant confirmed his identification in the daylight.

That afternoon, at the NIS office, appellant made another

sworn statement after again being advised of and waiv-

ing his rights. He once more recounted Hartnett’s kill-

ing of Swafford and his own futile attempt to break up

the fight. This time, however, he admitted having put his

hand on Swafford’s chest after the fight, detecting no

heart beat, and pronouncing him dead. Then, under com-

pulsion from Hardnett, he helped drag the body into the

water.

On July 28, appellant revised his story once again in

a sworn statement transcribed by NIS agents. This time

he indicated that, as he was trying to break up the fight,

Hardnett “jumped’ him from behind and drove him onto

Swafford in such a way that appellant’s

forearm landed across Greg’s throat and neck area,

specifically across Greg’s Adams apple, because I

8a

could feel his Adams apple on my forearm. There

was a lot of pressure on Greg’s throat and Adams

apple from Thomas [Hardnett] being on top of me,

because the next day, my right forearm was sore

and [there was| a little swelling on the forearm

where it laid across Greg’s Adams apple. Thomas

was pushing on top of me so hard that my face and

mouth were pushed into Greg’s right bicep. Thomas

was on top of me and my forearm was across Greg's

throat for about 15 or 30 seconds. Thomas at this

time was yelling, “Kill the son of a bitch!”

After appellant managed to extricate himself from the

fracas, according to the statement, Hardnett proceeded

“to strangle’ Swafford “with his bare hands.” Appellant

temporarily succeeded in pushing Hardnett off Swafford,

but Hardnett returned with his camera strap and tied it

tightly around Swafford’s neck. In the statement, appel-

lant reiterated that the fight was between Hardnett and

Swafford over the alleged homosexual overtures and that

appellant’s involvement was entirely inadvertent and in-

nocent. Though appellant “felt... [his] arm on Greg’s

neck may have been the crucial or critical injury causing

Greg’s death,” it was only so because he ‘was unable to

get... [his] arm free from Greg’s neck.” Appellant also

explained in the statement that he had previously with-

held this infcrmation due to its obvious potential for mis-

interpretation with respect to his culpability.

On July 28, appellant was ordered into pretrial con-

finement by military authorities. In the afternoon of

July 30, Lieutenant Stephen A. Stallings, JAGC, USN,

received notification that he had been appointed appel-

lant’s defense counsel. He met with appellant in the brig

the next morning, July 31, for approximately 2 hours.

He had already been informed that the civilian authori-

ties might be taking jurisdiction in the case.

While Lieutenant Stallings was talking with appellant,

Detective Griggs arrived at the brig with a Chesapeake

9a

warrant for appellant’s arrest. After Stallings departed

-——he was unaware of Griggs’ presence at the brig—the

military authorities released appellant into Griggs’ cus-

tody. Griggs knew appellant had a military attorney,

but believed “that his military attorney had no authority

off the military base once . .. |Griggs] served those

papers on” appellant. Military charges were not, at that

time, preferred against appellant.

The same day, July 31, Griggs took appellant to Chesa-

peake police headquarters, where he advised him of his

rights to remain silent and to counsel under Miranda v.

Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694

(1966), and the Fifth Amendment to the United States

Constitution. Appellant waived his rights and agreed to

talk to Griggs without counsel present. Neither Griggs

nor appellant mentioned Lieutenant Stallings.

Thereafter, Griggs interrogated appellant in a_ tape-

recorded interview; the content of the interview was

transcribed, and appellant swore under oath that it was

a true statement. In this statement, appellant made the

following admissions: The incident occurred at the time

appellant and Hardnett were first dropped off in Nor-

folk (rather than much later in Chesapeake after a bout

of drinking). The motive for the killing was plain rob-

bery (the homosexual-advance claim was never hereafter

repeated). Hardnett began to hassle Swafford in the

ear about money, and the argument ensued. When ap-

pellant and Hardnett got out of the car, Hardnett called

Swafford out to discuss “financial problem!s].” The

fight developed when Swafford declined to donate. As

Hardnett was attempting to apply the fatal tourniquet to

Swafford’s neck, he instructed appellant to “grab his

hands, grab his hands. . . . because Gregg was fighting

back and hard and stuff.’ Appellant dutifully complied,

while Hardnett

pulled hard or yanked as far as you can feel some-

thing popping there, and Gregg just went down like,

10a

like a, like his life just went out his body and he was

holding Gregg up like this by this thing.

Again upon command, according to the statement, ap-

pellant removed Swafford’s wallet and gave it to Hard-

nett. Appellant then assisted in putting the body in the

trunk and rode along, with Hardnett driving, to the

Chesapeake site near the water. There, appellant helped

carry the body into the water. Then the two returned

to the bars of Norfolk, where they encountered a prosti-

tute, whose services they shared. According to appellant,

he refused to accept any of Swafford’s money and paid

his share with his own money. Afterward, they returned

to the air station in Swafford’s car.

After making the July 31 statement, appellant led the

cHicers to the alleyway in Norfolk where the killing had

taken place. Presumably, appellant was arraigned the

next day, August 1, in Chesapeake.’

Appellant’s mention that the killing took place in Nor-

folk changed the complexion of the case. The Virginia

prosecutorial authorities agreed that, under Virginia

law, the situs of a murder takes precedence over the

place where the body is found, for purposes of jurisdic-

tion. Therefore, on August 2, after being apprised of the

facts then known, officials from the City of Norfolk de-

cided that Norfolk was the appropriate entity to take

jurisdiction in the case.

On August 3, law-enforcement officers from Norfolk

assumed custody of appellant and immediately set about

7 The only indication that appellant may have been arraigned in

Chesapeake was Detective Griggs’ surmise to thai effect. Though

Griggs was not present at any arraignment of appellant and did not

know whether one had actually occurred, he assumed that, in the

ordinary course of events, appellant would have been arraigned

before a City of Chesapeake General District Court Judge on or

about August 1 and asked whether he needed a court-appointed

attorney. To the best of Griggs’ knowledge, no attorney was ap-

pointed for appellant by the Chesapeake court.

lla

to question him. After again being advised of his rights

and waiving them, appellant described the events sub-

stantially as before. For the first time, however, he ad-

mitted that, at the barracks before Swafford drove them

into town, Hardnett had revealed his intent to “shake”

Swafford, which appellant understood as meaning “to rob

him.” After making this additional concession, appellant

led the Norfolk officers to the scene of the crime and re-

enacted what had taken place.

Upon returning to the police station, still on August 3,

appellant repeated his last statement. This time the

statement was tape-recorded and transcribed. While it

was being typed up, appellant made the comment to the

officers that he “wonder|ed] if the lawyer is going to

handle my case.” Asked which lawyer, appellant identi-

fied a civilian lawyer, Peter Decker, whereupon the offi-

cers promptly assisted appellant in looking up and dial-

ing Decker’s telephone number. However, appellant “got

a recording.” Asked what he wanted to do then, appel-

lant replied, “I guess I’ll have to wait until Monday and

try him at the office.” Appellant never requested to have

a lawyer present at the interview and never mentioned

Lieutenant Stallings’ name. When the transcription was

comp!eted, appellant signed it.

With respect to this series of admissions, the military

judge ruled:

With regard to the 3 August statement to the

Nortolk Police:

The accused was properly advised of his Fifth

Amendment and Miranda rights;

He waived those rights and made a statement, Ap-

pellate Exhibit 15;

His statement, “i wonder if an attorney is going

to handle my case,’’ was merely an expression of in-

terest in future proceedings, and not a request for

an attorney within the scope of Miranda;

4

12a

Assuming, however, it did constitute a request for

counsel, it would not affect the statement he had

already provided, but would impact only on the sig-

nature which he affixed to that statement.

In conclusion, . . . |t|he motion to suppress the

statement! | of ... 3 August is denied.

Rather than redacting the signatures from the tran-

scribed document and introducing the document itself

into evidence on the merits, however, trial counsel elected

to have the Norfolk police officer who had obtained the

statement, Sergeant Hazelette, testify as to appellant’s

oral admissions prior to his inquiry about the attorney.

Appellant was arraigned before a Norfolk General Dis-

trict Court Judge on August 7, 1985, and a civilian law-

yer, Mr. Carlson, was appointed to represent him on

August 9.*

Appellant’s mention that the conversation regarding

the robbery had occurred on the air station and had pre-

ceded the trip to town again changed the complexion of

the case. Until that point, naval authorities were un-

sure whether the events had enough of a military connec-

tion to sustain military jurisdiction over the offenses.

The new evidence of the on-station conversation con-

vinced the naval authorities that their jurisdiction would

be sustained. Therefore, on August 9, 1985, they form-

ally requested the City of Norfolk to release appellant to

their custody for purposes of court-martial.

Although there was no doubt that the Commonwealth

of Virginia had jurisdiction to try appellant, the Com-

monwealth’s Attorney for Norfolk agreed that the Navy

had the “greater prosecutorial interest ... and more of

a factual connection with the case than” did the Com-

monwealth especially given that appellant. the victim,

8 The Norfolk arraignment and the appointment of Mr. Carlson

are of no consequence to this appeal, since the last of appellant’s

statements received in evidence was that of August 3.

EE

13a

and the majority of the witnesses were military. There-

fore, the Commonwealth moved, on August 12, 1985, “to

nol pros the charges against” appellant in the Norfolk

General District Court; the motion was granted.

Appellant was restored to military custody the same

day, August 12, and was seen again by his military at-

torney on that day or the next. At the court-martial,

Lieutenant Stallings served as detailed defense counsel,

Lieutenant Timothy P. Sceviour served as assistant de-

fense counsel, and a civilian attorney, Mr. Michael F.

Fasanaro, Jr., served as lead defense counsel.

II

Appellant’s contention, in essence, is that he was un-

fairly prejudiced by the erroneous receipt in evidence of

his admissions on July 31 to Detective Griggs and on

August 3 to Sgt. Hazelette. The basis for this claim is

the formation of the attorney-client relationship between

Lieutenant Stallings and appellant, which preceded these

two statements. In appellant’s view, these statements

constituted violations of his Sixth Amendment right to

counsel and the notice requirements of Mil.R.Evid. 305

(e', Manual for Courts-Martial, United States, 1984.’

9 Mil.R.Evid. 305(c), Manual for Courts-Martial, United States,

1984, provides:

A person subject to the code who is required to give warnings

under Article 31 may not interrogate or request any statement

from an accused or a person suspected of an offense without

first:

(1) informing the accused or suspect of the nature of the

accusation ;

(2) advising the accused or suspect that the accused or

suspect has the right to remain silent; and

(3) advising the accused or suspect that any statement made

may be used as evidence against the accused or suspect in a

trial by court-martial.

The August 3 statement is claimed to be “fruit of the poisonous

three,” i.e., the tainted July 31 statement. As a variation on this

14a

Before addressing these issues, it is necessary to re-

view the status of subject-matter jurisdiction as it ap-

peared to be in July-August, 1985. In O'Callahan v.

Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291

(1969), the Supreme Court, departing frem_ long-

established precedent, announced that only “service-

connected” offenses could thereafter be tried by courts-

martial.'” This opinion was followed by Relford v. Com-

mandant, 401 U.S. 355, 91 S.Ct. 649, 28 L.Ed.2d 102

(1971), which enumerated multiple factors having to be

balanced on a case-by-case basis to determine whether an

offense was service-connected. These opinions and those

of the military appellate courts applying them cast into

considerable doubt the jurisdictional status of many of-

fenses committed off military installations. F’.g., United

States v. Klink, 5 M.J. 404 (C.M.A.1978) (drug transac-

tion between servicemembers occurring 30-feet off-post

lacked service-connection) ; United States v. Sims, 2 M.J.

109 (C.M.A.1977) (no service-connection in off-post for-

gery of money orders, where accused purchased money

orders from fellow soldier, knowing they were stolen on-

base from another soldier, and where accused forged the

money orders and cashed them off-post, using his military

identification card).

Admittedly, many of these earlier military opinions

were substantially eroded by subsequent opinions. F.y.,

United States v. Lockwood, 15 M.J. 1 (C.M.A.1983) ;

United States v. Trottier, 9 M.J. 337 (C.M.A.1980).

Nonetheless, genuine doubt as to jurisdiction could still

theme, appellant also contends that use of these statements was

“fundamentally unfair’ and that we should exercise our “super-

visory powers” to find error in their receipt in evidence. Because

we find these statements to have been properly admitted, we decline

to exercise “supervisory powers” to exclude them.

10 See Droddy, King Richard to Solorio: The Historical and Con-

stitutional Bases for Court-Martial Jurisdiction in Criminal Cases,

30 A.F.L. Rev. 91 (1989).

15a

exist in a given set of facts. United States v. Abell, 23

M.J. 99, 103 (C.M.A.) (“aeeused’s status as a service-

member is not sufficient in and of itself to confer juris-

diction over all his offenses no matter where and when

committed”), cert. denied, 483 U.S. 1020, 107 S.Ct. 3263,

97 L.Ed.2d 762 (1987). One factor which often per-

suaded courts that service-connection existed was com-

mencement of the offense on-post, even though it was

consummated off-post. E.g.. United States v. Strang-

stalien, 7 M.J. 225 (C.M.A.1979) (on-post agreement to

transfer drugs off-post).

On June 25, 1987, the Supreme Court published its de-

cision in Solorio v. United States, 483 U.S. 435, 107 S.Ct.

2924, 97 L.Ed.2d 364. That opinion overruled O’Callahan

and its progeny, and it abolished the jurisdictional doc-

trine of service-connection.'! Instead, the Supreme Court

held that court-martial subject-matter jurisdiction de-

pended solely on whether the accused “was a member of

the armed services at the time of the offense charged.”

483 U.S. at 451, 107 S.Ct. at 2933 (footnote omitted).

After Solorio was announced, we applied it to cases aris-

ing prior to that decision, either on the grounds of retro-

activity, see Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct.

708, 93 L.Ed.2d 649 (1987), or because Solorio was sim-

ply a correct interpretation of always-existing jurisdic-

tion. United States v. Avila, 27 M.J. 62, 65-66 (C.M.A.

1988).

Appellant’s case evolved during the pre-Solorio era.

This accounts for what might otherwise appear to be a

game of legal hot potato being played by the military and

civilian authorities."

11 Though court-martial jurisdiction over the offense is not an

issue on this appeal, there appears to be no doubt of such jurisdic-

tion under either O’Callahan/Relford or Solorio.

12 Any implication that the military authorities were merely play-

ing games with appellant to circumvent his military right to coun-

sel must be dealt with succinctly. Much of the background informa-

l6a

Turning to appellant’s counsel rights, Article 27(a)

(1), UCMJ, 10 USC § 827(a)(1), establishes the re-

quirement that “|[t|rial counsel and defense counsel shall

be detailed for each general and special court-martial.”

Mil.R.Evid. 305(e) adds:

When a person subject to the code who is required

to give warnings under subdivision (c)|'*] intends

to question an accused or person suspected of an of-

fense and knows or reasonably should know that

counsel either has been appointed for or retained by

the accused or suspect with respect to that offense,

the counsel must be notified of the intended interro-

gation and given a reasonable time in which to at-

tend before the interrogation may proceed.

(Emphasis added.) A ‘person subject to the code” is

further defined as “includ{ing] a person acting as a

knowing agent of a military unit or of a person subject

to the code.”” Mil.R.Evid. 305(b) (1).

The logie of appellant’s argument proceeds as follows:

The military and civilian investigations had become so

enmeshed that each side was “acting as a knowing agent

of” the other. Mil.R.Evid. 305(b) (1). Hence, the civil-

ian police officers were “person|s| subject to the code.”

Mil.R.Evid. 305(e). As Lieutenant Stallings had already

been “appointed for ... the accused ... with respect to

that offense,’ he should have been “notified of the in-

tended [civilian] interrogation and given a reasonable

time in which to attend.” Id.

tion available in the record of trial is attributable to appellant’s own

motion to dismiss the military charges on the ground that the

offenses lacked service-connection and that the civilian interest was

paramount. Indeed, the Commonwealth Attorney for the City of

Norfolk (a distinguished judge advocate now retired) was called as

a witness by the defense in an apparent attempt to establish this

very point.

13 See n.9, supra.

17a

This analysis breaks down for two reasons. First, it is

quite obvious that, in enacting Article 27, Congress was

interested in providing servicemembers with competent

and free legal representation in courts-martial. There is

not the slightest trace of a suggestion in the extensive

legislative history of this article that Congress intended

thereby to inject military counsel into state criminal mat-

ters. Attachment of a right to military counsel for mili-

tary proceedings neither enlarges nor decreases a service-

member’s right to counsel in civilian proceedings. Unless

military counsel are authorized to practice in state courts

by state authorities and are given leave from their mili-

tary duties, they simply have no role in state criminal

matters. Neither of these conditions applied here; once

the civilians asserted jurisdiction, military counsel’s role

ended.

Second, the civilian police were not acting as agents of

military authorities. Clearly, they were not directly sub-

ject to the Uniform Code of Military Justice, and appel-

lant does not so contend. With respect to his argument

that, by virtue of the close working relationship between

the various law-enforcement agencies, the civilian and

military investigations had become so enmeshed that they

“merged into an indivisible entity,” both the military

judge and the Court of Military Review found the con-

trary to be true as a matter of fact. These courts con-

cluded that the investigators, while closely coordinating

their activities and often working together, were at all

times exclusively representing their respective sovereigns,

and neither side became the agent of the other.

I also have reviewed this record carefully, and I fully

agree with these conclusions. Cf. United States v. Mor-

rison, 12 M.J. 272 (C.M.A. 1982); United States v. Ra-

vine, 11 M.J. 325 (C.M.A. 1981). Accordingly, in my

view, neither Article 27(a)(1) nor Mil.R.Evid. 305(e)

obligated the civilian investigators to notify appellant’s

military counsel, and neither provision acts as a bar to

18a

receipt in evidence of appellant’s statements to the

civilians.

Next, I consider appellant’s contention that his Sixth

Amendment right to counsel was violated by the custo-

dial interrogations conducted by Chesapeake and Norfolk

authorities on July 31 and August 3, 1985. The Sixth

Amendment provides that, “|i]n all criminal prosecu-

tions, the accused shall enjoy the right . . . to have the

Assistance of Counsel for his defense.” The Supreme

Court has interpreted this to mean “that the right to

counsel does not attach until the initiation of adversary

judicial proceedings.” United States v. Gouveia, 467

U.S. 180, 188, 104 S.Ct. 2292, 2297, 81 L.Ed.2d 146

(1984), see also Brewer v. Williams, 430 U.S. 387,

398-99, 97 S.Ct. 1232, 1239-40, 51 L.Ed.2d 424 (1977);

Kirby v. Illinois, 406 U.S. 682, 688-89, 92 S.Ct. 1877,

1881-82, 32 L.Ed.2d 411 (1972) (plurality opinion).

Adversary judicial proceedings commence for an

accused

at or after the time that judicial proceedings have

been initiated against him—‘“whether by way of

formal charge, preliminary hearing, indictment, in-

formation, or arraignment.”

Brewer v. Williams, supra 430 U.S. at 398, 97 S.Ct. at

1259, quoting Kirby v. Illinois, supra, 406 U.S. at 689,

92 S.Ct. at 1882. Attachment of the Sixth Amendment

right

guarantees the accused, at least after the initiation

of formal charges, the right to rely on counsel as a

“medium” between him and the State.

Maine v. Moulton, 474 U.S. 159, 176, 106 S.Ct. 477, 487,

88 L.Ed.2d 481 (1985). See also Brewer v. Williams,

supra, 430 U.S. at 399, 97 S.Ct. at 1240; Massiah v.

United States, 377 U.S. 201, 205-07, 84 S.Ct. 1199,

1202-04, 12 L.Ed.2d 246 (1964).

19a

Appellant’s contention is that adversary judicial pro-

ceedings had already commenced in the military, prior

to July 31, 1985, when the civilian authorities assumed

control of him; and hence his Sixth Amendment rights

had attached. The result, in appellant’s view, is that the

civilian authorities were obligated to deal with him

through the “medium” of counsel. As Lieutenant Stal-

lings was the only counsel appellant arguably had at the

time, any admissions made by him in the absence of

Lieutenant Stallings were barred by the Sixth Amend-

ment."*

In my view, this analysis fails for several reasons.

First, as already indicated, appellant’s relationship with

Lieutenant Stallings was limited to military proceedings.

Vis-a-vis the civilian charges, Lieutenant Stallings had

no official role. Second, the mere formation of an at-

torney-client relationship does not trigger a Sixth Amend-

ment right to the presence of counsel. Moran v. Burbine,

475 U.S. 412, 428-32, 106 S.Ct. 1135, 1145-47, 89 L.Ed.2d

410 (1986). Third, pretrial confinement '* does not ini-

14 Appellant does not contend, and he did not do so at trial, that

his statement on August 3 to Sgt. Hazelette of the Norfolk police

was barred by virtue of an arraignment on or about August 2 in

Chesapeake. See Michigan v. Jackson, 475 U.S. 625, 629, 106 S.Ct.

1404, 1407, 89 L.Ed.2d 631 (1986), citing United v. Gouveia, 467

U.S. 180, 104 S.Ct. 2292, 81 L.Ed.2d 146 (1984); see also Brewer v.

Williams, 430 U.S. 387, 398, 97 S.Ct. 1232, 1239, 51 L.Ed.2d 424

(1977); Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 1882, 32

L.Ed.2d 411 (1972) (plurality opinion). His failure to object at

trial, in any event, constitutes waiver of such a claim. Mil.R.Evid.

103(a). Indeed, it is not even clear (see n.6, supra) that such an

arraignment occurred, much less that appointment of counsel was

requested.

15[t is unclear whether appellant's brief military confinement

from July 28-31, pending release to civil authorities, was properly

classified as “pretrial restraint,’ under the provisions of RCM

304(a), Manual, supra, or “pretrial confinement,” under RCM 305.

However, for purposes of this appeal, it makes no difference what

his status was.

20a

tiate adversary judicial proceedings or otherwise trigger

the Sixth Amendment right to counsel. United States v.

Gouveia, supra, 467 U.S. at 189-91, 104 S.Ct. at 2298-99.

We have previously held that, in the military, prefer-

ral of charges initiates adversary judicial proceedings

and causes the Sixth Amendment right to counsel to at-

tach. United States v. Wattenbarger, 21 M.J. 41 (C.M.A.

1985), cert. denied, 477 U.S. 904, 106 S.Ct. 3272, 91

L.Ed.2d 563 (1986). However, charges were not pre-

ferred in this case until August 21, 1985, some 9 days

after appellant was returned to military control by Nor-

folk authorities and long after the events in question.

In the military, however, an accused placed in pretrial

confinement has the right to “‘[a] review of the adequacy

of probable cause to believe the prisoner has committed

an offense and of the necessity for continued pretrial

confinement . .. within 7 days of the imposition of con-

finement.”” RCM 305(i) (1), Manual, supra. If the pris-

oner requests it, “military counsel shall be provided to

the prisoner before the initial review under subsection

[305] (i).” Such counsel is “assigned for the limited pur-

pose of representing the accused only during the pretrial

confinement proceedings before charges are referred”

RCM 305(f).

We have never held that a review of the propriet, of

pretrial confinement constitutes commencement of ad-

versary judicial proceedings for Sixth Amendment pur-

poses. It is unlikely that we will ever confront such a

question since counsel is automatically provided an ac-

cused upon request. However, even if—for the sake of

argument—such a proceeding did trigger a Sixth Amend-

ment right to counsel, it would be of no moment to this

case since no such proceeding or hearing occurred in this

case prior to appellant’s release to Chesapeake authori-

ties. Thus, notwithstanding appellant’s condition as a

pretrial restrainee or confinee, and notwithstanding the

appointment of military counsel, adversary judicial pro-

|

2la

ceedings had not commenced in the military against ap-

pellant prior to his release to civilian authorities. There-

fore, in my view, the civilian law enforcement officers

had no Sixth Amendment duty to notify counsel and did

not violate appellant’s rights under that provision by

questioning him in the abserce of counsel.

Lastly, I consider the contention, first raised by the

dissenting opinion herein and not advanced by appellant,

that all admissions made by appellant after Lieutenant

Stallings contacted him in the brig were barred by the

Fifth Amendment."*

[t is now well-settled that, under the Fifth Amend-

ment, ‘an accused . . . having expressed his desire to

deal with the police only through counsel, is not subject

to further interrogation by the authorities until counsel

has been made available to him, unless the accused him-

self initiates further communication, exchanges, or con-

versations with the police.” Edwards v. Arizona, 451

U.S. 477, 484-85, 101 S.Ct. 1880, 1884-85, 68 L.Ed.2d

378 (1981) (emphasis added); see also Oregon v. Brad-

shaw, 462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405

(1983); Miranda v. Arizona, 384 U.S. 436, 86 S.Ct.

1602, 16 L.Ed.2d 694 (1966).

As the Supreme Court later explained:

The rule of the Edwards case came as a corollary

to Miranda’s admonition that “[i]f the individual

16 The Fifth Amendment to the Constitution provides that “‘[n]o

person ... shall be compelled in any criminal case to be a witness

against himself... .”” Of course the Fifth Amendment contains no

express right to counsel or to consult with counsel. That require-

ment was established in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct.

1602, 16 L.Ed.2d 694 (1966), “‘to insure that the right against com-

pulsory self-incrimination was protected.” Michigan v. Tucker, 417

U.S. 433, 444, 94 S.Ct. 2357, 2364, 41 L.Ed.2d 182 (1974). Appellant

does not claim ever to have asserted a right to counsel under the

Fifth Amendment or United States v. Tempia, 16 USCMA 629, 37

CMR 249 (1967), while being questioned.

22a

states that he wants av attorney, the interrogation

must cease until an attorney is present.” 384 U.S.,

at 474, 86 S.Ct. at 1627-1628.

Arizona v. Roberson, 486 U.S. ——, 108 S.Ct. 2093,

2097, 100 L.Ed.2d 704 (1988) (emphasis added). See

also Fare v. Michael C., 442 U.S. 707, 718, 99 S.Ct.

2560, 2568, 61 L.Ed.2d 197 (1979) (“interrogation must

cease upon the accused’s request for an attorney’’).

Roberson extends or clarifies Edwards in two re-

spects: First, the opinion makes clear that police may

not reinitiate contact with a “suspect, having requested

counsel,” even concerning an unrelated offense.'' 108

S.Ct. at 2101. As appellant was never contacted by any

investigators #bout any offense other than Swafford’s

murder, this aspect of Roberson adds nothing to Edwards

with respect to this case. Second, it is clear after Rober-

son that it does not matter “that the officer who con-

ducted the second interrogation did not know that...

{the accused] had made a request for counsel.” Rather,

law enforcement officials must establish procedures which

will “enable an officer who proposes to initiate an inter-

rogation to determine whether the suspect has previously

requested counsel.” /d. 108 8.Ct. at 2101. This was the

law in the military prior to Roberson. United States v.

Goodson, 22 M.J. 22 (C.M.A. 1986). In any event, there

is no issue in this case about the failure of an investiga-

tor to determine whether appellant had requested coun-

sel. Thus, Roberson adds nothing to Edwards as applied

to the facts of this case.

Chief Judge Everett makes an eloquent argument,

equating ‘“‘a request for counsel” under RCM 305(f) with

an exercise of rights under Edwards v. Arizona, supra,

17 Law-enforcement officials are permitted, however, “to inform

the suspect of the facts of the second investigation as long as such

communication does not constitute interrogation. .. .” 108 S.Ct.

at 2101.

28a

M.J. at ———(6)—-with the result that civilian in-

vestigators would be barred from questioning appellant

unless he initiated the conversation. The problem is the

Chief Judge is the only one who has ever made this as-

sertion. Appellant never claimed to have invoked a right

to counsel: Trial defense counsel did not claim he did;

and even appellate defense counsel have not so contended.

Until now, no one has suggested that appellant ever

sought to convey to anyone a desire to communicate with

the police only through the medium of counsel. This case

was litigated on a constitutional level as a Sixth Amend-

ment matter all along, not as a Fifth Amendment one.

Never was it alleged that the authorities failed to serupu-

lously honor appellant’s wishes with respect to counsel.

As I read the Supreme Court’s decisions, the Fifth

Amendment exclusionary rule is triggered when an ac-

cused who has been advised of his rights communicates

to law-enforcement personne! that he is unwilling to talk

to them except through the medium of counsel. Ordi-

narily—but not necessarily—this occurs during an at-

tempted interrogation. See United States v. Goodson,

supra. The mere fact, however, that appointed military

counsel went to the brig and discussed some aspects of

the case with appellant is not, in my opinion, an invoca-

tion of the Fifth Amendment right to counsel. Cf. Moran

v. Burbine, supra. My view does not turn on whether

the accused asked to see a lawyer or the lawyer was

merely assigned as a matter of course.

There may be many reasons why an accused wishes

to consult with counsel, either about the case itself or

about collateral matters, without necessarily manifesting

a desire not to discuss the case with law-enforcement

officials.‘ Again, there is simply no indication in this

18 Tn our opinion today we do not imply any retreat from the rul-

ing in United States v. McOmber, 1 MJ 380, 383 (CMA 1976). That

opinion, based on Article 27, Uniform Code of Military Justice, 10

USC § 827, held that “once an investigator is on notice that an

24a

record that appellant, despite his obvious awareness of

his rights, ever declined to discuss the case without coun-

sel. Indeed, as far as this record discloses, the only ref-

erence appellant ever made about counsel was his off-

hand remark, after his final interview in Norfolk, con-

cerning whether Mr. Decker would “handle” the case.

Had appellant timely communicated to any official, mili-

tary or civilian, his preference not to talk in the absence

of counsel, military or civilian, I would have no hesitancy

in concluding that he had exercised his Fifth Amend-

ment right to counsel—with the consequential exclusion

of later statements obtained as a result of police-initiated

interrogation. That is to say—had appeliant expressed

even to civilian officials his desire to consult with mili-

tary counsel prior to answering questions, I would find a

Fifth Amendment invocation. However, these were not

the circumstances of this case.

I obviously agree with Judge Sullivan, concurring in

the result, that statements taken on July 31 and August

3, 1985, were voluntary and preceded by appropriate

waivers of counsel. Therefore, a majority of the Court

holds that the statements made by appellant on July 31

and August 3, 1985, were admissible in evidence.

The decision of the United States Navy-Marine Corps

Court of Military Review is affirmed.

SULLIVAN, Judge (concurring in the result) :

I agree with my Brother Cox’s result because the cir-

cumstances of this case clearly show that the statements

of appellant on July 31 and August 3 were voluntary

and were preceded by appropriate waivers of counsel.

attorney has undertaken to represent an individual in a military

criminal investigation, further questioning of the accused without

affording counsel reasonable opportunity to be present renders any

statement obtained involuntary under Article 31(d) of the Uniform

Code.” Neither by their terms nor their legislative histories do

Articles 27 or 31 apply to civilian investigations.

25a

EVERETT, Chief Judge (dissenting) :

At trial appellant moved to suppress the incriminating

statements he had given to civilian detectives on July 31

and August 3. He contended that his right to counsel

had been violated. The military judge denied the motion,

but I conclude that he erred in doing so.

To place the issue in perspective, it should be recog-

nized that the statement made on July 31 to Detective

Griggs of the Chesapeake Police Department was the

product of a lengthy joint investigation in which Griggs

had been engaged with Special Agent Cashman of the

Naval Investigative Service (NIS). In fact, the two in-

vestigators had travelled together to Italy in May 1985

and had jointly interrogated appellant and many others.

In late July, appellant had given an incriminating

statement to another NIS agent and had been returned to

Norfolk, where on July 28 the Navy had placed him in

pretrial confinement. I agree with the lead opinion that

this confinement did not initiate formal adversarial pro-

ceedings that would trigger Jordan’s Sixth Amendment

right to counsel, and it did not bring Article 27 of the

Uniform Code of Military Justice, 10 USC § 827, into

play. However, under Miranda v. Arizona, 384 U.S. 436,

86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the confinement

created for appellant a Fifth Amendment right to coun-

sel with respect to any interrogation that followed while

he remained in custody.’

On the morning of July 31, Jordan conferred for about

2 hours with Lieutenant Stallings, a military lawyer who

had been assigned to represent him. The lead opinion

observes that, pursuant to RCM 305(f), Manual for

Courts-Martial, United States, 1984, Lieutenant Stallings

was “assigned for the limited purpose of representing the

1On July 31 military authorities released Jordan to the custody

of Detective Griggs: the important thing is that, thereafter, he was

still in police custody while being interrogated.

26a

accused only during the pretrial confinement proceedings

before charges are referred.” 29 M.J. at 184. However,

this observation does not conform fully with the rule

which, in its entirety, states:

If requested by the prisoner, military counsel shall

be provided to the prisoner before the initial review

under subsection (i) of this rule. Counsel may be

assigned for the limited purpose of representing

the accused only during the pretrial confinement

proceedings before charges are referred. Jf assign-

ment is made for this limited purpose, the prisoner

shall be so informed. Uniess otherwise provided by

regulations of the Secretary concerned, a prisoner

does not have a right under this rule to have military

counsel of the prisoner’s own selection.

(Emphasis added. )

Under this language, military counsel shall be provided

“li]f requested by the prisoner.” Therefore, assuming

regularity and compliance with regulations, I infer that

Lieutenant Stallings was assigned as counsel for Jordan

because he was “requested” by appellant, who was then

a “prisoner.” Secondly, even though counsel “may be

assigned for the limited purpose of representing the ac-

cused only during the pretrial confinement proceedings,”

this language is permissive and indicates that counsel also

may be assigned without any limitation as to his repre-

sentation of the accused. Nothing in the present record

of trial indicates that Lieutenant Stallings was assigned

“only” to represent Jordan during the pretria! confine-

ment proceedings.

Indeed, all the facts point in the opposite direction.

There is no testimony that Jordan was informed that

Lieutenant Stallings was assigned only for a limited pur-

pose; and on the morning of July 31, Jordan and Lieu-

tenant Stallings conferred for 2 hours—which would be

an unusually long period of time if the assignment of

——————

27a

counsel had been “for the limited purpose of represent-

ing the accused only during the pretrial confinement pro-

ceedings before charges are referred.”

According to the undisputed testimony of Lieutenant

Stallings, his supervisor—Commander West—had advised

him that he was going to represent Jordan with respect

to a murder charge; and, in turn, Lieutenant Stallings

had communicated to Commander Grant, the staff judge

advocate for the convening authority, that he “had been

assigned as the detailed military counsel te represent

Spencer Jordan.” Commander Grant testified that Lieu-

tenant Stallings had called at about 9:00 a.m. on July 31

and had informed Grant “that he represented Jordan

and that he was going over to the brig to speak with

Jordan.”

This testimony makes clear and the judge found that

—even though “Lieutenant Stallings was assigned be-

cause the accused was in a Navy brig”—the assignment

was for the general representation of Jordan in connec-

tion with the murder charge.

The lead opinion states that Congress never intended

by enacting Article 27 “to inject military counsel into

state criminal matters.” 29 M.J. at 185. This conclusion

is probably correct, but it has little relevance here. In

the first place, the right to counsel involved in this case

derives from the Fifth Amendment—as interpreted by

Miranda v. Arizona, supra, and applied to military law

by United States v. Tempia, 16 USCMA 629, 37 CMR

249 (1967)—and not from Article 27 of the Code. Sec-

ondly, here the “state criminal matter” was the killing

of one servicemember by another—misconduct which also

was a serious military crime. Thirdly, because both Vir-

ginia statutes and the Uniform Code had been violated,

state and military officials had been conducting a joint

investigation from the outset. Finally, the challenged evi-

dence ultimately was offered and received in a trial by

court-martial—rather than in a state court trial.

28a

The lead opinion also comments that, “[u]nless mili-

tary counsel are authorized to practice in state courts by

state authorities and are given leave from their military

duties, they simply have no role in state criminal mat-

ters.”” 29 M.J. at 185. In the abstract, this observation

may be correct; but again it does not pertain to the facts

of this case. The misconduct which the state authorities

were investigating was also a major crime under the

Uniform Code of Military Justice; and instead of being

“given leave,’ Lieutenant Stallings had been duly assigned

by a military superior the duty of representing Jordan

in connection with the military investigation of that

crime. Furthermore, in view of the joint investigation

by civilian and military investigators and the concurrent

jurisdiction of state and military authorities over the

crime, Lieutenant Stallings could not perform effectively

his military duty of representing appellant without tak-

ing into account the investigation by civil authorities and

the possibility that Jordan might be prosecuted in a state

court.

Under the Miranda rules, a suspect who is in custody

and has requested counsel cannot be interrogated unless

and until he has “initiated” a discussion. Edwards v.

Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378

(1981); see Oregon v. Bradshaw, 462 U.S. 1039, 103

S.Ct. 2830, 77 L.Ed.2d 405 (1983). It makes no differ-

ence that the request for counsel concerns one offense

and the interrogation concerns another that is totally

unrelated. Arizona v. Roberson, 486 U.S. 675, 108 S.Ct.

2093, 100 L.Ed.2d 704 (1988). Therefore, even if we

treat appellant’s violation of Virginia law as completely

separate from the military offense, Roberson teaches that

a request for counsel in connection with the military of-

fense would prevent civilian investigators from interro-

gating Jordan about the state crime, unless he “initiated”

a discussion.

Under the language of RCM 305(f), it appears that

Lieutenant Stallings was assigned to represent Jordan

aes acta aceite

29a

because appellant “requested” military counsel. Even if

the request for counsel had been made only with respect

to review of pretrial confinement, I believe that it would

constitute a request for counsel within the meaning of

Edwards and Roberson. By his request—whatever its

form—Jordan made clear his state of mind that, in con-

nection with the murder investigation and any related

proceedings, he wished to have the assistance of a lawyer.

Under Roberson, it makes no difference that an inter-

rogator is unaware of a suspect’s earlier request for

counsel. 108 S.Ct. at 2101. The focus is on the state of

mind of the person questioned, rather than on that of the

interrogator. Therefore, inferring as I do that Jordan

made a “request for counsel” within the purview of

Miranda, Detective Griggs was precluded from question-

ing him about the murder, unless appellant “initiated”

the discussion.

In fact, Detective Griggs had every reason to believe

that Jordan had “requested” a lawyer. On July 31, when

he went to pick up appellant at the Navy brig, Detective

Griggs had to wait for Jordan to finish his 2-hour con-

ference with his lawyer, Lieutenant Stallings.

The lead opinion interprets Miranda, Edwards, and

Roberson in a very narrow way; and apparently it con-

cludes that, because there was no evidence of a specific

“request” by Jordan for an attorney in connection with

the military investigation of the homicide, he could there-

after be interrogated at will by Detective Griggs without

providing him counsel. Presumably, the same result would

follow if the subsequent interrogation had been by a mili-

tary investigator.

I disagree with this interpretation. In my opinion, the

Navy’s assignment of Lieutenant Stallings to Jordan and

acceptance of his services by Jordan constituted the

“functional equivalent” of the request for counsel re-

quired by Edwards and Roberson. Roberson decided that

30a

the focus of attention is on the state of mind of the ac-

cused; and establishment of the attorney-client relation-

ship in connection with the pending criminal charges re-

vealed the same state of mind on Jordan’s part that

would have been demonstrated by a “request” for coun-

sel. Although I do not believe that the Supreme Court

has directly decided this issue, I am convinced that in-

vestigators—whether military or civilian—are precluded

by Miranda from undertaking pretrial custodial interro-

gation of a suspect who is represented by an attorney,

unless either the attorney gives consent or the suspect

“initiates” the discussion.

Accordingly I come to the conclusion that Jordan’s

statement to Detective Griggs on July 31 was inadmis-

sible in a criminal trial—whether by court-martial or in

a state court. This inadmissibility derives from the

Fifth Amendment and its implementation by Miranda’s

“prophylactic” rules. By the same token, Jordan’s state-

ment to Detective Hazlette on August 3 was inadmissible

because, after being assigned Lieutenant Stallings as his

counsel, Jordan never ‘“‘initiated’’ a discussion of the

homicide with anybody. The erroneous reception of these

statements in evidence requires reversing the decision

of the Court of Military Review. Therefore, I need not

discuss other aspects of the lead opinion.”

2 Of course, I am at odds with the gratuitous conclusion in foot-

note 4 of the lead opinion that Oregon v. Elstad, 470 U.S. 298, 105

S.Ct. 1285, 84 L.Ed.2d 222 (1985), applies. See United States v.

Ravenel, 26 M.J. 344, 349 (C.M.A. 1988) (Everett, C.J.).

3la

APPENDIX B

U.S. NAVY-MARINE CORPS COURT OF MILITARY

REVIEW

UNITED STATES

Vv.

SPENCER I. JORDAN, 223 88 6944

Airman (E-3), U. S. Navy

Decided 30 June 1987

Sentence adjudged 22 October 1985. Review pursuant to

Article 66(¢c), UCMJ, of General Court-Martial con-

vened by Commander Naval Air Force, United States

Atlantie Fleet, Norfolk, VA 23511-5188.

LCDR ROBERT J. SMITH, JAGC, USN, Appellate

Defense Counsel

LtCol RICHARD E. QUELLETTE, USMC, Appellate

Defense Counsel

LT J. CUNYON GORDON, JAGC, USN, Appellate

Defense Counsel

Capt H. C. LASSITER, USMCR, Appellate Govern-

ment Counsel

CASSEL, Judge:

Contrary to his pleas, appellant was convicted by a

General-Court Martial of conspiracy to commit, robbery,

32a

in violation of Article 81, Uniform Code of Military

Justice (UCMJ), two specifications involving the same

murder alleged as violations of Article 118, UCMJ, the

first alleging premeditation, with the words of premedi-

tation excepted by the members, the second alleging

“felony murder” by strangling the victim with a camera

strap in the course of perpetrating a robbery of the

victim, and one specification of robbery of the same

victim as a violation of Article 122. The sentence ad-

judged and approved by the convening authority was

confinement for life, a dishonorable discharge, total for-

feitures and reduction in pay grade to E-1.

Appellant has assigned the following as error:

I

A. THE CONVENING AUTHORITY ABUSED

HIS DISCRETION IN REFERRING APPEL-

LANT’S CASE AS CAPITAL WHEN THERE

WAS NO RECOMMENDATION BY THE ARTI-

CLE 32 INVESTIGATION OFFICER.

B. THE CONVENING AUTHORITY’S ABUSE

OF DISCRETION IN REFERRING THE CASE

AS CAPITAL DEPRIVED APPELLANT OF THE

SUBSTANTIAL RIGHT TO SELECT A FORUM

CONSISTING OF MILITARY JUDGE ALONE.

II

APPELLANT’S CONVICTION OF FELONY MUR-

DER CANNOT STAND WHERE HE WAS CON-

VICTED BY LESS THAN THE *, MAJORITY

REQUIRED TO SENTENCE HIM TO LIFE IM-

PRISONMENT IN VIOLATION OF ARTICLE 52

(b) (2), UCMJ, WHERE THAT SENTENCE IS

THE AUTOMATIC MINIMUM UPON SUCH A

CONVICTION.

a

38a

III

THE TRIAL JUDGE ERRED IN DENYING

APPELLANT’S MOTION TO SUPPRESS AP-

PELLANT’S STATEMENTS OF 381 JULY 1985

AND 3 AUGUST 1985 MADE TO CIVILIAN

POLICE DETECTIVES AFTER MILITARY

COUNSEL WAS APPOINTED, AND APPEL-

LANT REQUESTED COUNSEL

A. The 31 July interrvgation was conducted by a

civilian law official of the Commonwealth of Vir-

ginia and participated in by an agent of the mili-

tary, requiring notice to appointed counsel.

B. The result of the 3 August interrogation was

tainted by the failure to notify counsel on 31 July

when the Navy agent participated.

C. The 3 August statement is inadmissible because

of violation of Military Rule of Evidence 305(e).

D. The trial judge erred when he prohibited appel-

lant from testifying on the limited issue of his con-

versations with detective Griggs about his military

lawyer.

IV

THE TRIAL JUDGE ERRED BY ADMITTING

UNDATED LETTERS TO APPELLANT FROM

THOMAS HARDNETT UNDER MILITARY

RULE OF EVIDENCE 803(3) TO SHOW THE

EXISTENCE OF A PAST CONSPIRACY.

V

WHERE THE FORCE JUDGE ADVOCATE CON-

DUCTED A CONVERSATION WITH THE PRES-

IDENT OF THE COURT DURING THE TRIAL,

-APPELLANT’S TRIAL WAS INFECTED BY

THE APPEARANCE OF COMMAND INFLU-

ENCE WARRANTING THE GRANTING OF A

MISTRIAL UPON APPELLANT’S MOTION.

34a

VI

THE GOVERNMENT FAILED TO PROVE BE-

YOND A REASONABLE DOUBT THAT APPEL-

LANT ENTERED INTO AN AGREEMENT

WITH THOMAS HARDNETT TO ROB GREGORY

SWAFFORD.

VII

APPELLANT’S CONVICTION OF FELONY-

MURDER CANNOT STAND WHERE THE GOV-

ERNMENT FAILED TO PROVE THAT THE

MURDER OCCURRED DURING THE COURSE

OF A ROBBERY IN WHICH APPELLANT AC-

TUALLY PARTICIPATED.

VIII

THE MILITARY JUDGE ERRED BY FAILING

TO INSTRUCT THE MEMBERS OF THEIR

DUTY TO DETERMINE THE WEIGHT TO BE

ACCORDED APPELLANT’S CONFESSIONS AND

ADMISSIONS, BASED ON THE CIRCUM-

STANCES SURROUNDING THEM.

As was appellant’s counsel at the oral argument, our

attention is immediately drawn to assignment of error

III, especially as it involves the interplay of Military

Rule of Evidence 305(e) and 305th) (1).

III

The following factual summary is necessary to under-

stand our concern.

Appellant, Seaman Thomas Hardnett, his co-conspira-

tor, and the victim, a Second Class Petty Officer, were

assigned to Helicopter Antisubmarine Squadron 32 in

Norfolk, Virginia. Appellant and the victim were in the

same detachment and scheduled to deploy on the USS

KIDD and all three resided in Barracks U-20 at Naval

oe? atin i MS sis al

NET as. tx oe

35a

Station, Norfolk. The murder occurred on the weekend

of 2-3 February 1985. The ship was to deploy with ap-

pellant and other members of the detachment about one

week later. Just before the ship’s departure, appellant

and others were interviewed on 8 February by repre-

sentatives of the Naval Investigation Service (NIS) for

information concerning the apparent disappearance of

the victim. Appellant was definitely not suspected of any

offense at that time. The body of the petty officer was

found in the waters of Chesapeake, Virginia on 3 April

and an investigation commenced by Detective Griggs of

the Chesapeake Police Force. At this time the NIS in-

vestigation also became a murder investigation. Both of

these investigations were proceeding separately but with

a certain amount of coordination.’ By the end of April

it was apparent that some of the witnesses who had

provided information in the original investigation would

need to be re-interviewed. Since most of these were in

the Navy and deployed there was need for coordination

between the two investigations. Accordingly, representa-

tives of each agency traveled to Gaeta, Italy to interview

and re-interview witnesses. This included appellant, who

produced a tape recording which was transcribed into

a 48-page statement containing no admissions but enough

glaring inconsistencies for the military judge to find thac

the investigator should have suspected appellant and

given him an Article 31 warning. Since this was pri-

marily an NIS Investigation with the civilian present the

statement was suppressed. It should be noted that there

were investigations by two sovereigns’ investigators;

1 Since there was a homicide and the body was located in Chesa-

peake, VA it is obvious that the commonwealth had jurisdiction.

Since the victim was an active duty Navy man there is clearly

authority for NIS to investigate; at least to determine enough

facts for the lawyers to attempt to use their Crystal Ball to see if

the military would also have jurisdiction; if so, then to attempt to

decide which of the two sovereigns would prosecute. See Rule for

Courts-Martial (R.C.M.), 201(d)(3).

36a

both proceeding at the same time and obviously coordi-

nated in some ways. The 8 May statement of appellant

was obtained in Gaeta, Italy aboard the USS PUGET

SOUND while other members of the squadron were in-

terviewed at the Air Station in Naples, Italy.°

The Commonwealth’s representative was Mr. Griggs,

while the Navy representatives were the local NIS in-

vestigators and Brian Cashman, the agent who had orig-

inally opened the special investigation into the disap-

pearance of the victim. A statement had been obtained

from Hardnett, the other individual involved, but accord-

ing to Mr. Griggs, at least, no one was a suspect at that

time. In any event we agree with the explicit findings

of the military judge (R. 168 et seq.), in suppressing

the 8 May statement when he found it did not have an

adverse effect upon the actions taken on 22 and 23 July

in Haifa, Israel. These interviews were done by NIS

agents in the Mediterranean area at the request of Mr.

Cashman after he had returned to the U.S. and evaluated

his investigation including the information received from

Hardnett.

On 22 July appellant consented to a search of his be-

longings and two letters from Hardnett were seized.

He also consented to a polygraph and denied any knowl-

edge of the murder on the 22nd. On the 23rd in a hotel

in Haifa, after another advice of his rights, appellant

admitted being present when Hardnett killed the victim.

The next day the command (the Commanding Officer,

USS KIDD) was briefed on the status of the investiga-

tion and made arrangements for appellant to return to

the United States. He arrived in Norfolk on 26 July and

was met there by representatives of NIS and Mr. Griggs

of the Chesapeake Police Department. There were other

interviews by NIS, and after spending at least one night

2 There were 26 or 27 people interviewed in Gaeta alone. (R.49).

There were other lengthy transcribed statements.

ee

bt RAI

ee ee

37a

in the Bachelor Officer’s Quarters, appellant was con-

fined at the Norfolk brig. Since he was confined, coun-

sel was detailed, and on 31 July appellant met with his

detailed defense counsel at the brig. Shortly thereafter,

he was released to the custody of Mr. Griggs with a

warrant for his arrest, who took him to Chesapeake and

interrogated him. Subsequently, he was transferred to

the Norfolk Jail; interviewed there on 3 August and

charged there. On 12 August the charges in Norfolk

were nolle prossed and he was returned to the brig. Sub-

sequently military Charges were preferred and the Ar-

ticle 32 investigation commenced. Although unfortu-

nately never clearly presented in the record, it is clear

that once appellant was identified as a participant in

the murder that both the Commonwealth of Virginia and

the U.S. Navy had jurisdiction. Venue in the Common-

wealth courts would depend upon the situs of the mur-

der, if known, otherwise the location of the body. The

only real issue regarding jurisdiction was which civilian

jurisdiction the military would coordinate its desires

with: Chesapeake or Norfolk. It is obvious that Norfolk

had no particular desire to prosecute if the Navy desired

to do so.*

Appellant provided at least 11 different written state-

ments to the varying investigators during the course of

his way to court. In the first one he was not a suspect.

The judge suppressed the second and allowed the next

one. This assignment of error concerns the statement

made to Mr. Griggs in Chesapeake and its admissibility.

At the time appellant had military counsel appointed,

the Command SJA knew of the appointment; so there was

a duty upon anyone acting as an agent of the military to

notify counsel of any intended interrogation under Mili-

tary Rule of Evidence '305(e). There is also no doubt

3 See the testimony of the Commonwealth attorney for the city of

Norfolk at pages 8 through 16. This was a defense witness on th:

issue of jurisdiction.

38a

that Mr. Griggs was not an agent of the United States

Navy so that in the absence of any “bad faith” on the

part of Navy officials, the statement made to Mr. Griggs

and also the statement made in more detail a few days

later to Norfolk police would be admissible under the

standard of Military Rule of Fvidence 305(h)(1). By

“bad faith” in this context I refer to the standards as

enunciated in Military Rule of Evidence 305th) (2) in-

volving foreign interrogations which are used by analogy

in the instance.

On 30 July 1985 the detailed counsel notified the SJA

of the General Court-Martial convening authority of his

appointment and on the 3lst met with appellant at the

Navy Brig in Norfolk which is under the control of the

Commander Naval Base, another GCM authority. Upon

completion of this conversation appellant was released to

Detective Griggs, who while waiting for appellant to be

released, stated to the NIS agent that the military coun-

sel had ‘“‘no authority off the military base” and then,

accompanied by the NIS agent, took appellant to the

Chesapeake Jail where he was interviewed in detail after

being properly informed of his Miranda rights and waiv-

ing them.

During the hearing on the Motion to suppress the

statement to the Chesapeake authority (Mr. Griggs) on

31 July, the civilian counsel attempted to have appellant

testify for the limited purpose of the conversation he had

with Mr. Griggs regarding the detailed military counsel

(R. 133). The military judge did not allow him to so

limit his testimony. Appellant, citing Military Rule of

Evidence 304(f}, says this was error: we agree. While

it can be argued that there was waiver of the error be-

cause of a failure to provide an adequate offer of proof,

United States v. Means, 24 M.J. 160 (C.M.A. 1987),

it seems apparent that appellant’s testimony would have

been similar to that already exrlicit in the record re-

garding Mr. Griggs’s view of the power or authority of

——

Pe

39a

detailed Military Counsel. We need not address, in this

case, the legal correctness of Mr. Griggs’s views because

viewing all of the circumstances, including the series of

warnings and statements, the actual contents of the

statements, and the stipulated facts, we still find that the

statement was voluntary and would still be found to be

voluntary in the U.S. District Courts and so, absent any

“bad faith’, also admissible in Courts-Martial Proceed-

ings. We note in passing the 3 August statement which

was not suppressed by the military judge was never

expressly admitted at trial on the merits.

There is no doubt that since there is not a procedura!

rule in the civilian federal system to Military Rule of

Evidence 305(f)}, requiring notice to counsel, the state-

ment to Mr. Griggs on 31 July, and to the Norfolk Police

on 3 August would be admissible in a U.S. district court.

Moran v. Burbine, USS. , 106 S.Ct. 1135, 89

L.Ed.2d 410 (1986). There is no claim of, nor any evi-

dence, to suggest a request by appellant for counsel until

after the 3 August interview in Norfolk when he asked

the reporter if he could call Peter Decker to see if he

|Decker] was going to handle his case. ‘p. 3 of App.

E.5 and R. 93) We find no issue of a noncompliance of

a request for counsel so as to involve the holding of

Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68

L.Ed. 378 (1981). The only remaining issue concerns

whether or not there is any indication that the transter

to Commonwealth authorities, represented by Griggs on

31 July, was an attempt by Military Authorities to cir-

cumvent the requirement for Notice to Counsel. Our

careful study of the record convinces us that there was

no such attempt.' While agent Cashman was present at

4 At first blush it might appear that Griggs because of his con-

stant involvement would be an agent of the Navy. Far from it how-

ever, a closer study shows his pusition to be more opposed to that

of Naval Authorities. It is this factor that makes the testimony of

the SJA more understandable to me. I find it unbelievable that any

40a

the 31 July interview, factually this was not participa-

tion, but more akin to being present at a foreign govern-

ment investigator’s interrogation in the context which

applies in Military Rule of Evidence 305(h) (2).

As far as the other assignments of error are con-

cerned, assignments of error I and II are rejected. There

is no support for appellant’s claim that the convening

authority abused his discretion in referring this case

without restriction, and so as capital. The additional re-

quirements which appellant would put on the referral

process should not be imposed by an intermediate court

since they have no basis in the statute or the Rules.

Additionally, appellant has not made any claim of prej-

udice, since there was no attempt to plead to a lesser

included offense or to request trial, by way of pretrial

agreement, by military judge alone. The law is well

settled in this area. United States v. Turner, No.

85-4044 (NMCMR 8 August 1986) (pet. granted on

another issue, 23 M.J. 406 (C.M.A. 1987). There has

been nothing to change the propriety of United States v.

Walker, 7 U.S.C.M.A. 669, 23 C.M.R. 183 (1957).

IV

As for assignment number IV, while we did not give

the undated letters very much weight to show the exist-

senior judge advocate would doubt that there was personal military

jurisdiction in this case from the facts know on 30 July, but there

was clearly also jurisdiction in the Commonwealth Court of Vir-

ginia. The difficulty was which Commonwealth court would have

venue and so which prosecutor’s office would the SJA negotiate with.

See Virginia Code Section 19.2.-244 and 19.2-247. Chesapeake

through Griggs, at least, had expressed a desire to prosecute, Nor-

folk apparently would prefer that the Navy do it. Thus the SJA

faced the situation whereby both the Navy and the Commonwealth

had jurisdiction and it was natural that only one would exercise it;

and he had to know which prosecutor he needed to coordinate with.

Viewed in that light, I can understand actions taken in the turnover

on 31 July.

4ia

ence of the conspiracy nevertheless, we find that they are

relevant; thus the military judge did not err in admit-

ting them.

V

We expressly disapprove the action of the Staff Judge

Advocate in conversing with the president of the court.

We agree with the military judge that a mistrial was

not warranted. We expressly agree with his conclusion

that there was no attempt to, or actual influence upon,

the members. Accordingly, this assignment is rejected.

We specifically are convinced beyond a_ reasonable

doubt of appellant’s guilt of both conspiracy and felony

murder and find that there was no requirement for an

instruction on voluntariness of appellant’s confession;

nor was an instruction requested by the defense at trial.

Thus we also reject assignments of error VI, VII, and

VIII.

Although not specially raised by appellant we have

considered the clemency recommendation of the members

as well as the apparent multiplicity of the two murder

specifications. We find that Specification 1 is now in-

cluded within Specification 2. There is no effect on sen-

tence. Accordingly, Specification 1 of Charge II is dis-

missed. The remaining findings of guilty are correct

in law and fact and are approved; as is the sentence.

C. J. CASSEL

Senior Judge MITCHELL and Judge GLADIS (concur-

ring in the result):

We concur in the result reached by Judge Cassel and

his rationale, except for his treatment of issue III D.

The accused cannet complain on appeal of the military

judge’s refusal to permit him to limit his testimony in

42a

the absence of an adequate offer of proof as to the sub-

stance of his testimony, barring which a determination

of reversible error is precluded.

C. H. MITCHELL

J. T. GLADIS

++ d U. S. GOVERNMENT PRINTING OFFICE; 1990 256159 62092

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