United States v. Harpole

This opinion is subject to revision before publication

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES _______________

UNITED STATES Appellee v. Koda M. HARPOLE, Seaman United States Coast Guard, Appellant No. 20-0142 Crim. App. No. 1420 Argued December 2, 2020—Decided February 16, 2021 Military Judges: Christine Cutter and Matthew J. Fay For Appellant: Lieutenant Commander Jason W. Roberts (argued); Lieutenant Commander Salomee G. Briggs (on brief). For Appellee: Lieutenant Nicholas J. Hathaway (argued); Captain Vasilios Tasikas and Mark K. Jamison, Esq. (on brief). _______________

PER CURIAM. Judge MAGGS filed a separate opinion concurring in the judgment, in which Senior Judge CRAWFORD joined. Contrary to his pleas, Appellant was convicted of making a false official statement, sexual assault, and housebreaking, and sentenced to a dishonorable discharge, confinement for seven years, and reduction to the grade of E-1. United States v. Harpole, 77 M.J. 231, 232 (C.A.A.F. 2018). In our first re- view of this case, we: conclude[d] that a factfinding hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967), [was] necessary because the record fail[ed] to reflect why trial defense counsel did not seek to have Appellant’s statements to the victim ad- vocate suppressed pursuant to the provisions of Ar- ticle 31(b), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 831(b) (2012).

United States v. Harpole, No. 20-0142/CG Opinion of the Court

Id. at 233. Therefore, we set aside the decision by the United States Coast Guard Court of Criminal Appeals (CCA) and re- manded the case for a DuBay hearing. Id. at 238 (citing United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967). The case is now before us for a second time. Appellant claims the statements he made to Yeoman First Class (YN¹) Holly Nipp, the victim advocate, were in fact inadmissible at his court-martial because she did not first advise him of his rights under Article 31(b), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 831(b). He further alleges that his trial defense counsel were ineffective for failing to file a motion to suppress the statements under Article 31(b). The CCA af- firmed the findings and sentence, finding that Article 31(b) warnings were not required under these circumstances, Ap- pellant’s counsel were not deficient for declining to pursue the motion, and Appellant was not prejudiced. United States v. Harpole, 79 M.J. 737, 741–46 (C.G. Ct. Crim. App. 2019). We hold Article 31(b) warnings were not required and that his ineffective assistance of counsel claim is moot. I. Discussion The first issue is whether YN1 Nipp was required to advise Appellant of his rights under Article 31(b) before talking with him. Article 31(b) provides, in relevant part, that “[n]o person subject to this chapter . . . may interrogate, or request any statement from, an accused or a person suspected of an of- fense without first” giving the suspected person the proper warnings. Article 31(b), UCMJ. Both parties agree that the sole Article 31(b) question be- fore us is whether YN1 Nipp “interrogate[d], or request[ed] any statement” from Appellant while “participating in an of- ficial law enforcement or disciplinary investigation or in- quiry.” United States v. Jones, 73 M.J. 357, 361 (C.A.A.F. 2014) (citations omitted) (internal quotation marks omitted); United States v. Swift, 53 M.J. 439, 446 (C.A.A.F. 2000) (cita- tion omitted) (internal quotation marks omitted). The answer is clearly no. Appellant, accompanied by a friend, Seaman Boatswain’s Mate (SNBM) Sean Childers, sought YN1 Nipp out in her role as a victim advocate to report that Appellant had been sex- ually assaulted by another member of the ship’s crew, the

United States v. Harpole, No. 20-0142/CG Opinion of the Court

same member who filed the sexual assault complaint for which Appellant was convicted. As the DuBay judge and CCA found, YN1 Nipp did not do anything that suggested that she was acting for law enforcement or disciplinary purposes: she did not take notes, order Appellant or SNBM Childers to an- swer questions or write statements, or reach out to the Coast Guard Investigative Service with a report. Harpole, 79 M.J. at 744–45. In fact, she was so removed from that kind of role that she had no familiarity with Article 31(b) warnings at all. Instead, she acted as a supportive victim advocate: she simply listened to Appellant’s allegation of sexual assault and then briefed the chain of command about the report, in accordance with her victim advocate training. Harpole, 79 M.J. at 745. The few questions that she asked and to which Appellant re- sponded were not made in an interrogating manner and did not elicit incriminating statements from Appellant. Id. There- fore, Appellant’s Article 31(b) claim fails. The second issue is whether the trial defense counsel pro- vided ineffective assistance of counsel by failing to move to suppress Appellant’s statements under Article 31(b). As we have determined that Appellant was not entitled to Article 31(b) warnings during his interview with YN1 Nipp, Appel- lant’s ineffective assistance of counsel claim is moot. II. Judgment The judgment of the United States Coast Guard Court of Criminal Appeals is affirmed.

United States v. Harpole, No. 20-0142/CG

Judge MAGGS, with whom Senior Judge CRAWFORD joins, concurring in the judgment. Appellant contends that his trial defense counsel was in- effective because he did not seek to suppress Appellant’s in- criminating statements to a victim advocate, Yeoman First Class Holly Nipp, under Article 31, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 831 (2012). Appellant argues that his statements were suppressible because he made them in response to questions by the victim advocate when the vic- tim advocate was acting in a law enforcement or disciplinary capacity and when he had not been warned about his right to remain silent. The Government disagrees for two reasons. First, the Government asserts that Appellant did not make the statements in response to any questions by the victim ad- vocate. Second, the Government asserts that the victim advo- cate was not interrogating Appellant for a law enforcement or disciplinary purpose. The Court agrees with the Government’s second argu- ment, concluding that the victim advocate “did not do any- thing that suggested that she was acting for law enforcement or disciplinary purposes.” The Court therefore affirms the judgment of the United States Coast Guard Court of Criminal Appeals (CGCCA). I also would affirm the CGCCA, but I would do so on the basis of the Government’s first argument. At a DuBay 1 hearing, a military judge found as a fact that Appellant did not make any incriminating statements in re- sponse to the victim advocate’s questions. That should be the end of the matter. I would not use this case to set a precedent on the much more complicated question of whether victim ad- vocates act for law enforcement or disciplinary purposes. 2

United States v. Harpole, No. 20-0142/CG Judge MAGGS, concurring in the judgment

I. Standard of Review “It is well-established that a determination regarding the effectiveness of counsel is a mixed question of law and fact.” United States v. Wean, 45 M.J. 461, 463 (C.A.A.F. 1997). “Therefore, the factual findings of the [DuBay] judge are reviewed under a clearly-erroneous standard, and the ultimate determinations whether the representation was ineffective and, if so, whether it was prejudicial are reviewed de novo.” Id. “A finding of fact is clearly erroneous when there is no evidence to support the finding, or when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. Criswell, 78 M.J. 136, 141 (C.A.A.F. 2018) (citations omitted) (internal quotation marks omitted). II. Discussion Article 31(b), UCMJ, requires rights warnings if certain requirements are met. It provides: No person subject to this chapter may interrogate, or request any statement from, an accused or a per- son 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 regard- ing 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. This provision, read literally, would require warnings in this case if the victim advocate (1) was a person “subject to this chapter” (2) who “request[ed] any statement from” (3) “a per- son suspected of an offense.” Article 31(b), UCMJ. But in ad- dition to these three requirements, we have held that “rights warnings are required [only] if the person conducting the questioning is participating in an official law enforcement or disciplinary investigation or inquiry.” United States v. Jones, 73 M.J. 357, 361 (C.A.A.F. 2014) (citation omitted) (internal quotation marks omitted); see also United States v. Moses, 45 M.J. 132, 134 (C.A.A.F. 1996) (“This Court has held that Ar- ticle 31(b) applies only to the questioning of a suspect or an

United States v. Harpole, No. 20-0142/CG Judge MAGGS, concurring in the judgment

accused pursuant to ‘an official law-enforcement investiga- tion or disciplinary inquiry.’ ” (quoting United States v. Shep- ard, 38 M.J. 408, 411 (C.M.A. 1993))). In this case, however, we need not decide whether all the requirements of Article 31(b), UCMJ, and the additional re- quirement that the victim advocate was acting in a law en- forcement or disciplinary capacity, were met. Even if rights warnings were required and were not provided, Appellant’s statements were not subject to suppression. Article 31(d), UCMJ, provides: “No statement obtained from any person in violation of this article . . . may be received in evidence against him in a trial by court-martial.” (Emphasis added.) Here, Ap- pellant’s statements were not obtained by the victim advo- cate’s questioning. The victim advocate asked Appellant, “ ‘What were you do- ing in the female berthing area?’ ” This was a request for “[a] verbal assertion” about what Appellant was doing in the fe- male berthing area when he visited the victim and so is a re- quest for a “statement” within the ordinary meaning of that word. Black’s Law Dictionary 1699 (11th ed. 2019) (entry for “statement”). If Appellant had made his incriminating state- ments in response to this question, and if rights warnings were required, the statement would be suppressible. But Ap- pellant did not make his statements, incriminating or other- wise, in response to the victim advocate’s questions. The DuBay military judge found as facts: (1) that after asking why Appellant was in the female berthing area, the victim advo- cate “then immediately gestured to [Appellant] to convey ‘never mind’ ”; (2) that Appellant “made no response to this question”; and (3) that Appellant “disregarded this . . . ques- tion and . . . continued unimpeded with his recitation on what happened on the evening in question.” Indeed, the DuBay judge found that Appellant’s “statement to [the victim advo- cate] was not affected at all by this question from [the victim advocate]” and that Appellant “made no answer to this ques- tion as the question was withdrawn by [the victim advocate] before [Appellant] had an opportunity to answer the ques- tion.” (Emphasis added.)

United States v. Harpole, No. 20-0142/CG Judge MAGGS, concurring in the judgment

These findings of fact are not clearly erroneous because they are adequately supported by facts in the record. For ex- ample, defense counsel’s notes from an interview with Sea- man Boatswain’s Mate Sean Childers record that the victim advocate “interrupted him and said, ‘so what was your busi- ness in female berthing anyway?’ then ‘never mind, besides the point.’ ” Seaman Boatswain’s Mate Childers corroborated these notes by testifying, as the DuBay military judge found, that the victim advocate gestured to Appellant “never mind, continue” and withdrew the question, “telling him he doesn’t have to answer” it. Appellant argues that the DuBay military judge’s findings are clearly erroneous because the military judge “disre- garded” Appellant’s testimony. But the DuBay judge specifi- cally found that Appellant’s “recollection of the meeting in the lounge to not be credible.” On appeal, we “necessarily defer to the DuBay judge’s determinations of credibility in this re- gard.” Wean, 45 M.J. at 463. Because the facts in the record are insufficient to support a “definite and firm conviction” that the DuBay judge’s find- ings were mistaken, I conclude that they are not clearly erro- neous. Criswell, 78 M.J. at 141. Accordingly, we must defer to the DuBay judge’s finding that the victim advocate’s request for a statement was withdrawn and had no effect whatever on Appellant’s subsequent statements about the night in ques- tion. It follows that these statements were not “obtained from [Appellant] in violation of this article.” Article 31(d), UCMJ. III. Conclusion “Our task here is greatly facilitated by the high quality of the DuBay record.” Wean, 45 M.J. at 463. In my view, the judgment of the lower court must be affirmed by simple ap- plication of the appropriate standard of review, which re- quires that we defer to the DuBay judge’s factual findings. Those findings establish that Appellant’s statements were not obtained from victim advocate’s withdrawn question. I would affirm on that ground.

Footnotes

[1] See United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967).

[2] In previous cases, we have conducted intricate analyses of reg- ulatory requirements and other factors to determine whether ser- vicemembers were engaged in a law enforcement or disciplinary function for the purpose of applying Article 31, UCMJ. See United States v. Cohen, 63 M.J. 45, 50–52 (C.A.A.F. 2006) (concluding that an Air Force wing inspector general was engaged in a disciplinary function); United States v. Raymond, 38 M.J. 136, 138–39 (C.M.A. 1993) (concluding that a psychiatric social worker at an Army hos- pital was not engaged in a law enforcement function).