United States v. Sager

CRAWFORD, Judge

(concurring in the result):1

I agree with the result reached in the majority opinion but write separately to clarify several matters concerning the Miranda doctrine; Art. 31(b), Uniform Code of Military Justice, 10 USC § 831(b); and the Sixth Amendment right to counsel. Although those clarifications do not change the result in this case, they could have a significant impact on the application of corresponding law and ensuing requirements to the facts of future cases. Thus I shall discuss the Miranda doctrine, Art. 31(b), and the Sixth Amendment right to counsel in turn.

In Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966), Chief Justice Warren declared that

the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant, unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination____ Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed____ If, however, he [the defendant] indicates in any manner *148and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him.

(Emphasis added.)

Contrary to the implication by the majority, 36 MJ at 143, Miranda and the Military Rules of Evidence do not draw a distinction between exculpatory and inculpatory statements.

Concerning invoking the right to silence, Miranda overlaps with Article 31(b). Article 31(b) provides:

No person subject to this chapter may interrogate, or request any statement from, an accused or a person suspected of an offense without first informing him of the nature of the accusation and advising him that he does not have to make any statement regarding the offense of which he is accused or suspected and that any statement made by him may be used as evidence against him in a trial by court-martial.

The right-to-silence component of Article 31(b) is different from the right-to-silence element of Miranda because Miranda is only triggered when there is a custodial interrogation. The right to silence under Article 31(b), however, is triggered when the individual is a suspect. Thus, it is incomplete to discuss the right to silence in the military only in terms of custodial interrogations.

When a suspect unequivocally invokes “in any manner” his or her right to silence or his or her right to counsel, all questioning must cease. Miranda v. Arizona, 384 U.S. at 444-45, 86 S.Ct. at 1612. The converse of this rule set forth by the majority is not true, however. The majority states that “we have generally held that its [the right to remain silent] invocation must be unequivocal before all questioning must stop.” 36 MJ at 145. Also, the majority indicates that, “assuming SA Dutko’s conduct as a whole constituted custody within the meaning of Miranda, appellant did not unequivocally assert his right to silence.” Id. at 145.

When the assertion of a right is equivocal, the agent must either cease the interrogation or clarify the assertion. See, e.g., United States v. DeChamplain, 22 USC-MA 150, 46 CMR 150 (1973) (ambiguous assertion of right to silence); United States v. Attebury, 18 USCMA 531, 40 CMR 243 (1969); Towne v. Dugger, 899 F.2d 1104 (11th Cir.), cert. denied, 498 U.S. 991, 111 S.Ct. 536, 112 L.Ed.2d 546 (1990); United States v. Gotay, 844 F.2d 971 (2d Cir.1988).

Lastly, the majority appears to confuse the Fifth Amendment right to counsel as set forth in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), and its progeny, and the Sixth Amendment right to counsel as set forth in McNeil, infra. As some commentators have indicated:

The Court distinguished Roberson in McNeil v. Wisconsin, [— U.S.-] 111 S. Ct. 2204 [115 L.Ed.2d 158] (1991) when it held that an invocation of Sixth Amendment rights was “offense-specific” and that the police could therefore initiate questioning on crimes other than the crime with which the defendant was charged.

S. Saltzburg & D. Capra, American Criminal Procedure, Cases and Commentary 548 (4th ed. 1992).2

*149Different results may be obtained depending on whether Edwards or McNeil controls,

. This opinion was filed after release of the majority opinion in order to permit further consideration of the issues that was not possible during the closing days of the term of Court. It was circulated to the other judges on October 6, 1992.

. As Professors LaFave and Israel state:

And in any event, because the Sixth Amendment right is "offense-specific" and "cannot be invoked once for all future prosecutions,” it follows that "its Michigan v. Jackson [475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986)] effect of invalidating subsequent waivers in police-initiated interviews is offense-specific.” This means, for example, that if a defendant exercises his Sixth Amendment right when brought into court on an armed robbery charge, that is no bar to subsequent police-initiated questioning about an unrelated murder.
[T]he Court later [so] held in McNeil v. Wisconsin, reasoning that invocation of the Sixth Amendment interest does not also constitute
*149invocation of Miranda as to other, uncharged offenses, for a defendant "might be quite willing to speak to the police without counsel present concerning many matters, but not the matter under prosecution.” W. LaFave & J. Israel, Criminal Procedure 310 (footnotes omitted), 342 (footnote omitted) (2d ed. 1992).