UNITED STATES, Appellee
v.
Ina J. GUYTON-BHATT, Captain
U.S. Army, Appellant
No. 01-0386
Crim. App. No. 9800418
United States Court of Appeals for the Armed Forces
Argued November 28, 2001
Decided June 19, 2002
CRAWFORD, C.J., delivered the opinion of the Court, in
which GIERKE, EFFRON, and BAKER, JJ., joined. SULLIVAN, S.J.,
filed an opinion concurring in the result.
Counsel
For Appellant: Charles W. Gittins (argued); Colonel Adele H.
Odegard (on brief); Lieutenant Colonel David A. Mayfield, Major
Jonathan F. Potter, and Captain David S. Hurt.
For Appellee: Captain Braulio Mercader (argued); Colonel
Steven T. Salata, Lieutenant Colonel Denise R. Lind, and Major
Margaret B. Baines (on brief); Captain Jennifer A. Parker.
Military Judge: Debra L. Boudreau
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Guyton-Bhatt, No. 01-0386/AR
Chief Judge CRAWFORD delivered the opinion of the Court.
Contrary to her pleas, appellant was convicted by officer
members at a general court-martial of conduct unbecoming an
officer by failing to pay a just debt and altering a promissory
note and lying about it, in violation of Article 133, Uniform
Code of Military Justice (UCMJ), 10 USC § 933. Appellant was
sentenced to a dismissal, reprimand, and forfeiture of all pay
and allowances. The convening authority approved the sentence
of a dismissal, reprimand, and forfeiture of $2,472 pay per
month for eighteen months. The Army Court of Criminal Appeals
modified the findings on the grounds of factual insufficiency
and reassessed the sentence. The Court of Criminal Appeals
disapproved the dismissal and further reduced the forfeitures
and modified the reprimand. 54 MJ 796, 806-08 (2001).
We granted review on the following issue:
WHETHER THE MILITARY JUDGE ERRED BY FAILING
TO SUPPRESS APPELLANT’S JULY 1, 1997, ORAL
STATEMENT TO CPT C, IN WHICH CPT C FAILED TO
PROVIDE APPELLANT WITH ARTICLE 31, UCMJ,
WARNINGS.
We hold that Captain (CPT) C violated Article 31, but
independent evidence supporting the conviction renders the error
harmless.
2
United States v. Guyton-Bhatt, No. 01-0386/AR
FACTS
In August 1996, after seeing a 1986 Jaguar advertised for
sale, appellant met with the owner, Sergeant First Class (SFC)
R. They discussed the terms of buying the vehicle. Appellant
told SFC R that she had pay problems and wanted to work out some
financial terms for buying the vehicle. She agreed to buy the
vehicle for $8,000, paying $500 per month for eight months, and
the remainder, $4,000, when she settled on a house she hoped to
buy. SFC R did not think there would be a financial problem
since appellant was a psychologist at Madigan Hospital, Fort
Lewis, Washington, and an officer. The next day, at her
request, he gave appellant immediate possession of the Jaguar.
Later that week, she came to his office and gave SFC R $500 cash
as an initial payment on the Jaguar.
In September 1996, appellant did not make any payment.
SFC R left Fort Lewis on September 5, on emergency leave, and
after temporary deployment to Korea, returned to Fort Lewis in
mid-October. When he returned, he called appellant about
payments, and she said she was having financial problems. Like
September, SFC R did not receive any payments during October or
November.
In November, SFC R again deployed to Korea. He had the
Sergeant Major make an inquiry, and he called appellant himself.
Appellant told both that she was still having pay problems.
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United States v. Guyton-Bhatt, No. 01-0386/AR
When he returned from deployment in November, SFC R thought it
was time to put the contract in writing. Appellant agreed and
signed a promissory note dated November 1, 1996. The promissory
note, when originally executed by appellant, indicated that
appellant would not begin paying on the car until January 15,
1997.
In December, SFC R received no payment from appellant. He
contacted her again, and she said she was still having pay
problems. She told SFC R that she had executed the promissory
note and set payments to begin in January, without consulting
him. SFC R asked at that time if appellant wanted him to take
the vehicle back. She said, “No ... you don’t want to sell me
the vehicle?” SFC R did not press her about the promissory note
because he thought that when appellant’s pay issue was settled,
she would pay the total amount.
In January 1997, SFC R had not received a copy of the
promissory note or any payment beyond the initial $500 one.
However, appellant said she was going to start paying on the
promissory note. She did not. SFC R made another inquiry in
January, and appellant said she was still trying to rectify her
pay. He then asked for and received a copy of the promissory
note.
Prior to giving SFC R a copy of the promissory note,
appellant changed the first payment due date from “1/15/97” to
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United States v. Guyton-Bhatt, No. 01-0386/AR
“4/15/97” and added the following sentence: “Due to unexpected
expenses incurred on 1/5/97, to the tune of $550.00, to replace
starter and battery the monthly payments will have to be delayed
until 6/16/97.” When SFC R noticed the changes to the document,
he was upset and called appellant. She responded that there was
“nothing wrong with it [the promissory note]” and reiterated
that she would pay SFC R, but now not until June. At trial, the
defense conceded that appellant had changed the document.
While deployed in Canada for two months, SFC R did not
receive any payments. He called appellant upon his return, and
she said that she still had financial problems. SFC R did not
receive any payments in April, May, or June. In June, SFC R
learned that the vehicle had been left on the side of the road.
He then asked appellant for all the legal documents, licensing,
and registration, so he could register the car.
On July 1, 1997, SFC R took the promissory note to First
Lieutenant (1LT) C, a new legal assistance officer, for advice.
The document was dated November 1, 1996. SFC R showed 1LT C the
promissory note and pointed out that appellant had changed the
starting date of the payments from January 15, 1997, to April
15, 1997. SFC R told 1LT C that he did not agree to the change.
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After examining the changes on the promissory note,1 1LT C
“reviewed the elements of the offense of forgery in the Manual
for Courts-Martial and determined that the accused may have
committed such an offense.” He called appellant, but she was
unable to talk to him because she was with a client. Later,
while talking to her, he thought the best way to help SFC R was
to pursue criminal action rather than civil action because she
had “committed a crime.” He then contacted the trial counsel
for appellant’s unit. Based on SFC R’s conversation with 1LT C,
SFC R followed up on the progress of the “criminal law” action.
1LT C, now CPT C, testified that appellant admitted to
buying the car and owing the money to SFC R for nearly a year,
but was not going to pay. According to CPT C, she told him,
“You couldn’t get blood from a stone.” He also testified that
he reviewed the altered promissory note prior to calling
appellant.
DISCUSSION
Article 31(b), UCMJ, 10 USC § 831(b), states:
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
1
Appellant was charged under Article 133 for, among other things, unlawfully
altering the promissory note. However, the Court of Criminal Appeals
excepted this language out of the specification for lack of factual
sufficiency, holding that appellant was not legally obligated to execute the
promissory note and was not prohibited by law from changing the terms prior
to providing SFC R with a copy. 54 MJ at 807.
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United States v. Guyton-Bhatt, No. 01-0386/AR
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 court below relied on United States v. Duga, 10 MJ 206
(CMA 1981), in which we applied a two-prong test to determine
whether a warning is required :
[I]n each case it is necessary to determine
whether (1) a questioner subject to the Code was
acting in an official capacity in his inquiry or
only had a personal motivation; and (2) whether
the person questioned perceived that the inquiry
involved more than a casual conversation.
Id. at 206. The court noted that in applying this test,
Article 31, UCMJ, warnings are not required to be
given by: (1) a military doctor, psychiatric
social worker, or nurse prior to asking questions
of a patient for medical diagnosis or treatment;
(2) an in-flight aircraft crew chief prior to
questioning, for operational reasons, an
irrational crewman about possible drug use; (3)
military pay officials questioning a servicemember
about a pay or allowance entitlement; or (4) a
negotiator trying to end an armed standoff,
provided the discussion was truly designed to end
the standoff, rather than to obtain incriminating
statements to be used against the suspect at
trial. However, military appellate courts have
also held that military defense counsel may not
deliberately seek incriminating answers from a
suspect unrepresented by counsel without first
giving Article 31, UCMJ, rights warnings.
54 MJ at 802 (footnotes omitted).
But this case is distinguishable. CPT C, upon being shown
the promissory note, suspected forgery and felt appellant had
committed a criminal offense. He did not even recommend SFC R
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United States v. Guyton-Bhatt, No. 01-0386/AR
pursue civil action because he felt criminal action through
appellant’s prosecutor was the best way to help SFC R. CPT C,
using the authority of his position, called appellant to solicit
information on the matter. Based on CPT C’s testimony, we
conclude he was acting as an investigator in pursuing this
criminal action. As such, he was required to give an Article 31
warning.
However, in the context of the court-martial, the error was
harmless beyond a reasonable doubt, as nearly all of the
information secured by CPT C in his conversation with appellant
was introduced at trial through independent sources. See
generally Murray v. United States, 487 U.S. 533, 537 (1988).
The victim’s testimony, documentary evidence, and
admissions by appellant establish that SFC R and appellant
agreed that she would buy his Jaguar for $8,000. Because she
was having financial problems, she agreed to pay $500 a month
for eight months and then the remainder of $4,000 in a lump sum.
This agreement took place in August 1996, at which time
appellant took possession of the vehicle. From August 1996
through June 1997, SFC R tried to collect from appellant, but
each time, she indicated that she was having pay problems.
Eventually, pursuant to SFC R’s request, appellant had a
promissory note notarized in November 1996. The defense
conceded that after its notarization, appellant changed the
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terms of the promissory note.2 Appellant testified that she
eventually left the vehicle damaged on the side of the road.
She also never registered the vehicle in her name. While she
was claiming to have pay problems, her financial records for
those many months were introduced and showed that she was
receiving bi-monthly pay, as well as various allowances and
loans.
In closing, trial counsel referred to CPT C’s testimony
that appellant had stated, “You can’t get blood from a stone.”
This argument, however, was de minimis in the context of the
case.
DECISION
This decision of the United States Army Court of Criminal
Appeals is affirmed.
2
However, the Court of Criminal Appeals was not persuaded beyond “a
reasonable doubt that SFC R did not acquiesce to the 16 June 1997 date for
resumption of payments, as reflected in the altered promissory note,” and
modified the specification accordingly. 54 MJ at 806-07.
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SULLIVAN, Senior Judge (concurring in the result):
I agree with the Court of Criminal Appeals, which applied all
this Court’s precedent to the granted issue in this case. See
United States v. Swift, 53 MJ 439, 445-46 (2000); United States
v. Loukas, 29 MJ 385 (CMA 1990). It said:
The issue is not whether the questioner is
participating in any official questioning,
but rather whether the primary focus of
the questioning relates to an official law
enforcement or disciplinary investigation
or inquiry.
United States v. Guyton-Bhatt, 54 MJ 796, 803 (Army Ct. Crim.
App. 2001). I would affirm under United States v. Loukas, supra.
I do not believe that United States v. Duga, 10 MJ 206 (CMA
1981), requires that every official conversation start with
Article 31 warnings. United States v. Loukas provides a more
relevant approach to the instant case. In Loukas, we held a crew
chief’s questioning of an accused about drug use during a plane
flight, even though he may have suspected drug use, was not a law
enforcement or disciplinary investigation and, thus, the crew
chief was not obligated to warn the soldier of his rights under
Article 31, UCMJ. In the instant case, 1LT C was performing a
legal assistance duty to try to get appellant to pay his client
money for his car. This conversation was official, but it was
not a law enforcement or disciplinary function. Therefore, no
United States v. Guyton-Bhatt, No. 01-0386/AR
Article 31 rights warning was required. See United States v.
Moses, 45 MJ 132 (1996); United States v. Raymond, 38 MJ 136 (CMA
1993); United States v. Loukas, supra; United States v. Fisher,
21 USCMA 223, 44 CMR 277 (1972).
Finally, I would further note that the service appellate
court indicated that, at some point in the conversation with
appellant, 1LT C questioned him about forgeries. United States
v. Guyton-Bhatt, supra. It further stated that at this point,
the conversation may have become disciplinary, but no portions of
that conversation were admitted at trial. Accordingly, I agree
with the Court of Criminal Appeals that this particular situation
need not be addressed.
2