United States v. Mitchell

Judge SULLIVAN

delivered the opinion of the Court.

In January of 1995, appellant was tried by a general court-martial consisting of officer members at Naval Air Station, Jacksonville, Florida. Contrary to his pleas, he was found guilty of attempted premeditated murder; willful damage to military property; larceny; assault intentionally inflicting grievous bodily *235injury;1 and simple assault, in violation of Articles 80, 108, 121, and 128, Uniform Code of Military Justice, 10 USC §§ 880, 908, 921, and 928, respectively. On January 7, 1995, he was sentenced to a dishonorable discharge, 29 years’ confinement, total forfeitures, and reduction to E-l. On February 20, 1996, the convening authority approved the adjudged sentence, but suspended confinement in excess of 20 years for a period of 20 years from the date sentence was adjudged. The Court of Criminal Appeals affirmed the approved findings and sentence in an unpublished opinion dated April 30, 1997.

This Court granted review in this case on July 30,1998, on the following issue:

I
WHETHER THE MILITARY JUDGE ERRED BECAUSE HE DENIED APPELLANT’S MOTION TO SUPPRESS THE STATEMENT TO CHIEF GRABIEL IN VIOLATION OF APPELLANT’S CONSTITUTIONAL RIGHT TO COUNSEL.

We hold that the military judge prejudicially erred when he denied the defense motion to suppress appellant’s pretrial statements to Aviation Ordnanceman Chief Grabiel and admitted them at this court-martial. United States v. Brabant, 29 MJ 259 (CMA 1989); United States v. Reeves, 20 MJ 234 (CMA 1985); see generally Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).

Appellant was arrested on June 4, 1994, after he allegedly shot his shipmate, Aviation Structural Mechanic (Hydraulics) First Class Darnell Johnson, USN. The parties to this trial stipulated to certain facts pertinent to a defense motion to suppress some incriminating statements made by appellant to Chief Grabiel, his leading petty officer and work supervisor, the next day during a command visit to appellant in the brig. The record of trial states:

TC: [Reading] Both counsel have agreed that at approximately 0507, 4 June 1994, Security Department, Naval Air Station, Key West, Florida, received a call reporting shots fired at Barracks Enlisted Quarters 648. That QM2 Robert Bruehsaler, USN, attached to Security Department received a dispatcher call to proceed to BEQ 648. After securing the crime scene QM2 Bruehsaler was directed to advise the accused, who was sitting in the rear seat of a patrol car, his Article 31(b) and counsel rights.
That QM2 Bruehsaler sat in the front seat of the pa-patrol car with the accused in the rear seat and established that the accused was coherent and proceeded to read the accused his Article 31(b) UCMJ and counsel rights from a rights warning card.
QM2 Bruehsaler stated that the accused understood his rights and requested counsel. That prior to their meeting with the accused on 5 June 1994, Commander Malinak, Lieutenant Gage, and AOC Grabiel were aware of the fact that the accused was advised on 4 June of his Article 31(b) and counsel rights by Petty Officer Bruehsaler and that he had declined to make a statement and requested counsel.
That all questioning by any security personnel ceased after the accused declined to make a statement and requested a lawyer. The Security Department, NAS, Key West, turned the case over to the Naval Criminal Investigative Service, Key West, the same day relaying that the accused request for — relaying the accused request for a lawyer and desire not to make a statement. NCIS did not reread the accused rights nor ask any questions of the accused.
TC: The following day, 5 June 1994, QM2 Bruehsaler was assigned to guard the accused while the accused command made preparations for the accused return to the Waterfront Brig, Naval Air Station, Jacksonville, Florida. On 5 June 1994, around 1400, Lieutenant Jeff Gage, United States Navy, Legal Officer of VFA-87; Commander Gregory E. Malinak, spelled M-A-L-I-N-A-K, United States Navy, Executive Officer of VFA-87; and AOC Lawrence Grabiel, United States Navy, *236Leading Chief Petty Officer of VFA-87, made contact with the accused for the purpose of providing a command health and welfare visit.
That Commander Malinak had been informed that Petty Officer Mitchell was refusing to eat even though base security had been offering food. For the purpose of ensuring that the air transportation of the accused from Key West to the Waterfront Brig, NAS, Jacksonville, was successfully completed and for Lieutenant Gage to provide the accused notification of pretrial confinement rights and review process. That the — which is agreed by both parties to admit the actual notification as a stipulation of fact.
MJ: I’ll make it a part of the stipulation. Has this stipulation of fact been marked as Appellate Exhibit III?
TC: Yes, sir.
MJ: Thank you.
TC: That the executive officer of the accused command requested AOC Grabiel to be present as the accused’s leading chief petty officer and to provide support and a command visit.
Lieutenant Gage read verbatim from the notification of pretrial confinement review process work sheet to the accused in the presence of Commander Malinak and AOC Grabiel. The accused acknowledged his rights in writing by requesting a military lawyer for his magistrate hearing and to personally appear before the magistrate. That neither the executive officer or Lieutenant Gage inquired into any facts surrounding the alleged shooting incident nor had they explicitly directed or even talked about that to AOC Grabiel for him to make any such inquiry. After Lieutenant Gage informed the accused of his pretrial confinement rights, he and Commander Malinak left the room. AOC Grabiel talked with the accused inquiring whether he needed anything like cigarettes or anything to eat.
TC: After returning unth cigarettes and a milk shake, AOC Grabiel asked the accused without informing the accused of Article 81(b) or counsel rights, ,cWas it worth it?” That the accused did not initiate any questions regarding the shooting incident. In response to this question the accused responded, “The way I was raised, it was an eye for an eye. He left me in the alley, ” or words to that effect.
Chief Grabiel was not acting on behalf of the Security Department, NAS, Key West—
* H* ❖
TC: The next one [sentence] is that the accused when with Chief Grabiel did not initiate any questions regarding the shooting incident.
sH H* H*
TC: The last stipulation is that the accused was flown from Naval Air Station, Key West, to the Waterfront Brig, NAS, JAX, and that they departed at 2200 that Sunday, 5 June.

No evidence was presented at trial to suggest that appellant and Chief Grabiel had any personal contact or friendship outside of military duties. Chief Grabiel was called and testified that his motivation to ask the questions was “out of personal curiosity” about a member of his unit. After the command health and welfare visit, Naval Criminal Investigative Service (NCIS) Agent Lederberg contacted Chief Grabiel, as appellant’s supervisor, to question him about appellant’s character. Chief Grabiel voluntarily told NCIS that he spoke with appellant and he signed a statement on June 9 attesting to appellant’s incriminating answers. In this statement, Chief Grabiel wrote in his own handwriting, “P02 Mitchell was read his rights by Lt. Gage prior to my questioning him.”

At trial, defense counsel filed a written motion to suppress those incriminating statements made by appellant in response to Chief Grabiel’s questions alleging a violation of his Fifth Amendment rights to the presence of counsel during custodial interrogation. The military judge denied the motion in part and granted it in part. He said:

At the time of the accused’s statement Chief Grabiel was a chief petty officer on active duty in the United States Navy and *237in the accused’s direct chain of command; and
At the time the chief had no law enforcement duties other than normal duties of every chief petty officer to ensure good order and discipline; and
MJ: Three, that on 6 June 1994 when he spoke to the accused the chief was not acting for or at the direction of any law enforcement agent;
Four, that at the time the chief asked the question “Was it worth it,” he was motivated solely out of personal curiosity;
Five, however, I’m not satisfied with regard to the questions concerning the “gun” that the chief was strictly motivated out of strictly personal curiosity. I think that was professional and very much akin to law enforcement. Therefore, the references to the gun are suppressed as I told you before references — the answer to the question ‘Was it worth it?” is not suppressed.

Chief Grabiel later testified on the merits to appellant’s statements. Appellant also testified to the defense of accident and voluntary intoxication. Specifically, he said that he did not intend to injure Petty Officer Johnson; rather he intended to shoot the gun in the air. When asked to explain his “eye for an eye” statement, appellant testified:

Petty Officer Johnson really scared me in the alley, and it was my intent to scare him just as bad as he had scared me. I wanted to also bring up the fact that what he had done in the alley, because they had also told me that I couldn’t say anything or ask any questions concerning the case.

Appellant’s complaint at trial and on this appeal is that his pretrial statement to Chief Grabiel was “obtained in violation of the bright line rule annunciated by the Supreme Court in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).” Final Brief at 3. He further avers that the prosecution failed to show this violation of his right to have counsel at his interrogation was harmless beyond a reasonable doubt. The Government disagrees, and, relying on the decisions of this Court in United States v. Pittman, 36 MJ 404 (1993) and United States v. Jones, 24 MJ 367 (1987), argues that Chief Grabiel’s personal inquiries were not interrogation and, therefore, not violative of Edwards. Answer to Final Brief at 6. During oral argument, the Government additionally contended that any error under Edwards was harmless beyond a reasonable doubt in view of the overwhelming evidence of appellant’s guilt.

Our starting point in resolving the granted issue is the ease law of this Court applying Edwards v. Arizona, supra, in the military justice system.2 United States v. Brabant, 29 MJ 259; United States v. Goodson, 22 MJ 22 (CMA 1986); United States v. Reeves, 20 MJ 234; see also United States v. Faisca, 46 MJ 276 (1997); United States v. Vaughters, 44 MJ 377 (1996) (applies Edwards in break-in-custody context). These decisions are entirely consistent with the President’s adoption of this Supreme Court precedent as reflected in Mil.R.Evid. 305(d)(1), (e)(1), and (f). Faisca, supra at 278 n. 3. In this light, the particular question before us is whether Chief Grabiel’s questioning of appellant in custody, after invocation of his rights to counsel, violated Edwards v. Arizona, supra.

*238The Supreme Court in Edwards, 451 U.S. at 484-85, 101 S.Ct. 1880, established a rule concerning custodial interrogations. It said:

We further hold that an accused, such as Edwards, 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 himself initiates further communications, exchanges, or conversation with the police.

In Arizona v. Roberson, 486 U.S. 675, 687, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988), it further recognized that, in applying Edwards, “we attach no significance to the fact that the officer who conducted the second interrogation did not know that respondent had made a request for counsel.” Still later, in Minnick v. Mississippi 498 U.S. 146, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990), that Court applied Edwards where a county police officer unknowingly interrogated a suspect after he had previously invoked his rights to federal investigators. See also Illinois v. Perkins, 496 U.S. 292, 300, 110 S.Ct. 2394, 110 L.Ed.2d 243 (1990) (Brennan, J., concurring in the judgment).

The question before us today concerns the scope of Edwards as applied in a particularly military context. In the past, we have often been asked to decide whether questioning by command authorities constitutes interrogation for the purpose of Miranda, Edwards, or Article 31, UCMJ, 10 USC § 831. See Mil.R.Evid. 305(d)(1)(A), Manual for Courts-Martial, United States (1994 edition)3 (right to counsel applies when “the interrogation is conducted by a person subject to the code who is required to give warnings under Article 31____”). Common to these decisions is recognition of the fact that “care must be exercised to prevent the creation of situations where the subordinate’s sense of loyalty, trust, and confidence in his leader obscures his legal rights under the Constitution and the Uniform Code of Military Justice.” Brabant, 29 MJ at 263; see United States v. Beck, 15 USCMA 333, 339, 35 CMR 305, 311 (1965). Analogous issues arise in the civilian context with respect to questioning of suspects in custody by various governmental non-police actors. See United States v. D.F., 63 F.3d 671, 680-84 (7th Cir.1995) (and cases cited therein), reaffirmed, 115 F.3d 413, 420 (7th Cir.1997).

The Government’s basic argument in this case is that Chief Grabiel’s questioning of appellant was not police interrogation as prohibited in Miranda and Edwards. See generally 1 W. LaFave and J. Israel, Criminal Procedure § 6.10(c) at 542 (1984) (“Miranda does not inevitably apply whenever questions are asked in a custodial setting by a government employee”); United States v. Eide, 875 F.2d 1429, 1434 (9th Cir.1989); see also United States v. Borchardt, 809 F.2d 1115, 1117 n. 4 (5th Cir.1987). There is no per se rule for delineating when non-police government questioning comes within Miranda; rather the courts have tended to view each ease in light of the totality of its circumstances to determine whether unpermissive coercion has occurred or continued. See United States v. Morales, 834 F.2d 35, 38 (2d Cir. 1987) (questioning by prison physician’s assistant motivated by personal “curiosity” is not interrogation by police); cf. United States v. Webb, 755 F.2d 382, 389 (5th Cir.1985) (questioning by prison classification officer not normally attendant to classification procedure is interrogation). We have taken a similar approach where the government questioner is a representative of command. See United States v. Brabant and United States v. Reeves, both supra; see also Commonwealth v. McGrath, 508 Pa. 250, 495 A.2d 517, 525-26 (1985).

Turning initially to the federal civilian cases noted above, we consider appellant’s case quite similar to United States v. Webb, supra, where a violation of Edwards was determined to have occurred. There a soldier suspected of the murder of his son was advised by FBI agents of his rights under Miranda and asserted his right to counsel. Those agents ceased questioning the suspect and brought him to the El Paso County Jail for purposes of custody. “[T]he classification officer on duty [Simmons] allowed Webb to make a telephone call and then gave him *239The Court something to eat and drink.’ then noted:

According to Simmons, in order to determine where in the jail population to place Webb, Simmons asked Webb, “[W]hat kind of shit did you get yourself into?” According to Simmons, Webb’s surprising reply was: “I murdered my son and buried him in the desert.”

Id. at 386, 86 S.Ct. 1602.

In Webb, the Government maintained that Officer Simmons’ inquiry was simple administrative questioning “attendant to custody” which was exempt from the Supreme “Court’s definition of interrogation” in Edwards. The Fifth Circuit rejected this claim and said:

The record, however, does not support this position. First, it is undisputed that Simmons knew that Webb had been charged with murder on a federal reservation. Second, the FBI agent that took Webb to the jail testified that he did not inform the classification officer of Webb’s prior suicide threat. Third, another classification officer testified that it is not normal procedure to ask a defendant the charge against him since that information was on the booking card. Finally, Simmons testified that he saw his own role as one of helping the FBI’s investigation in whatever way he could. Given the facts of this ease, we are inescapably led to the conclusion that Simmons’ question of Webb was not a question normally attendant to custody such that it was not “interrogation.” To the contrary, Simmons expressly questioned Webb, and that questioning falls within the Supreme Court’s definition of interrogation. Moreover, even if no express questioning was involved, the entire episode, including the reference to a Christian burial, was reasonably likely to elicit an incriminating response, and Simmons should have known that such a response was reasonably likely. This Court holds that Simmons’ questioning constituted a police-initiated interrogation. Consequently, Webb’s jailhouse statements were obtained in violation of Edwards, and should not have been admitted at Webb’s trial.

755 F.2d at 389 (footnote omitted).

Likewise, Chief Grabiel was appellant’s work supervisor and military superior who was visiting him in a military jail as part of an official command visitation team which included two commissioned officers. In addition, he was present when those officers advised appellant of his pretrial confinement rights, including his right to counsel, and he exercised that right. Third, he was also aware of the offenses that appellant was suspected of committing and that he had previously exercised his right to counsel to military police. Fourth, Chief Grabiel admitted that he was not a friend of appellant but provided him a milkshake and cigarettes as a part of his command visitation duties. Finally, he admitted that he had command disciplinary responsibility for both appellant and the alleged victim and that his inquiries were partially motivated by his prior disciplinary pronouncements on gun possession within his command. Under the rationale of Webb, Edwards was violated.

Our own case law even more clearly supports our conclusion that Edwards was violated in appellant’s case. First, like Brabant and Reeves, this was a case where a command representative questioned a member of his command while in confinement in a military jail. This circumstance was not present in the two Article 31 warning cases primarily relied on by the Government on this appeal. See Pittman, 36 MJ at 406 (released by Criminal Investigation Command into custody of company commander); Jones, 24 MJ at 368 (under company escort in unit orderly room). Second, unlike Pittman and Jones, the command representative deliberately questioned his subordinate knowing he was suspected of a particular offense and that he had exercised his rights to counsel on two occasions with respect to it. Finally, the record shows the absence of any personal relationship between appellant and Chief Grabiel, and that “military formality was maintained” at all times during this command visit in accordance with its purpose. See Brabant, 29 MJ at 263. In these circumstances we conclude that, despite Chief Gra*240biel’s “personal curiosity,” the “ ‘inherently compelling pressures’ of the initial interrogation continued to exist for this command meeting.” Id. at 263.

The second question raised in this case is whether this constitutional error was harmless beyond a reasonable doubt such that we need not set aside appellant’s convictions on this basis. See generally Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991); Chapman v. California, 386 U.S. 18, 22-24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The Supreme Court has placed the burden on the Government “to prove beyond a reasonable doubt that” inadmissible evidence obtained from a violation of the Constitution “did not contribute to the verdict obtained.” Id. at 24, 87 S.Ct. 824; see Reeves, supra at 237. It has not done so here.

In this regard, we note that appellant was charged with attempted premeditated murder and assault intentionally inflicting grievous bodily injury. He was also charged with several other offenses with specific-intent type elements. Thus, intent was a key issue in this case, and the members had to specifically find that appellant had a specific intent to injure Petty Officer Johnson. Appellant raised the defense of accident when he testified that he never intended to actually shoot Johnson, but rather, he merely planned to scare Johnson by shooting at the ceiling as Johnson opened the door. He further testified that he did not know that he had actually shot Johnson; instead he shot at the door handle to keep Johnson from coming out to attack him further. Thus, the inadmissible evidence on appellant’s intent to shoot Johnson was clearly pertinent to the critical issue in this case.

Furthermore, the Government offered Chief Grabiel’s testimony as a substantial part of their case-in-ehief. During its closing argument, the Government repeatedly referred to appellant’s statement to his chief as evidence of appellant’s specific intent to kill. In fact, it characterized that statement as the best evidence of appellant’s intent to kill. Specifically:

Now, probably the biggest statement that the accused made that really shows his intent was, was when he was talking with Chief Grabiel.' Now, what’s important there, this wasn’t the same time all this happened. This was after he had thought about what he had just done, after he had been told that Petty Officer Johnson had been shot by him. After he knew all the facts of this, Chief Grabiel asked him “Was it worth it?” The accused responded “Where I come from it’s an eye for an eye. He left me in the alley.” It shows absolutely no remorse and it shows what he planned to do, he did what he planned to so, and it shows what his motive was. He wouldn’t say that if he just had an accident. That’s not the kind of statement you say if you just have an accident, “it was an eye for an eye. ” He did a deliberate act of shooting Petty Officer Johnson. That’s the only reason why he made that statement.

(Emphasis added.)

Finally, the Government’s argument on harmless error is not persuasive. It contends that the overwhelming evidence of appellant’s intent to injure, otherwise admitted in this case, negated any prejudice he might have suffered from erroneous admission of his pretrial statements. It particularly notes evidence in the record that appellant drove over 50 miles to retrieve the gun; that he loaded the gun with a round in the chamber; that he did not tell anyone about his merely threatening intentions; and, according to one witness, that an unidentified voice said, “You know you’re a dead man” in the hall just prior to the shooting.

For error to be found harmless beyond a reasonable doubt, an appellate court must be convinced that there was no reasonable likelihood that the erroneously admitted evidence contributed to the verdict. United States v. Bins, 43 MJ 79, 86-87 (1995). Here, there was other evidence in the record, including appellant’s testimonial assertion of accident, which challenged the prosecution’s circumstantial proof of intent and rendered it less than overwhelming. In light of the highly incriminating nature of appellant’s pretrial statements, their clear undermining of his *241trial testimony, and their exploitation by the prosecution, we find a reasonable likelihood of prejudice existed in this case.

The decision of the United States Navy-Marine Corps Court of Criminal Appeals is reversed. The findings of guilty and the sentence are set aside. The record of trial is returned to the Judge Advocate General of the Navy. A rehearing may be ordered.

. This offense was dismissed shortly after findings were announced. (R. 431).

. The granted issue in this case asks whether appellant was denied his "constitutional right to counsel.” The Supreme Court has held that a servicemember has no Sixth Amendment right to counsel at a summary court-martial, which it characterized as a disciplinary proceeding outside the scope of that Amendment. See Middendorf v. Henry, 425 U.S. 25, 96 S.Ct. 1281, 47 L.Ed.2d 556 (1976). Moreover, more recently in Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994), the Supreme Court assumed, but did not decide, whether Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and the Fifth Amendment right-to-counsel cases are applicable in trials by general courts-martial. Id. at 457, 86 S.Ct. 1602. The parties to this appeal do not dispute applicability of these Fifth Amendment Supreme Court decisions to appellant’s case and neither do we. See United States v. Goodson, 22 MJ 22 (CMA 1986); United States v. Tempia, 16 USCMA 629, 37 CMR249 (1967).

. This version was in effect at the time of trial. The current version is unchanged.