United States v. Slamski

Opinion of the Court Robeet E. Quinn, Chief Judge: An Air Force general court-martial in Japan convicted the accused of steal-irxg $161 from another airman and im [76] posed a sentence which includes a dishonorable discharge. The conviction was affirmed on review and the accused appealed to this Court contending he was prejudiced by admission in evidence of a pretrial statement he made to the staff judge advocate. Briefly, the factual background of the accused’s claim of error is as follows. Through the efforts of an alert Air Policeman and a bank teller the accused was apprehended for the theft of a wallet containing $161 which belonged to Airman Alongé. The accused was informed of his rights under Article 31 of the Uniform Code of Military Justice, 10 USC § 831, and brought to the Base Air Police office. At the office he was searched and among his effects was found a $50 United States currency bill which was of the same kind and denomination as one of the bills in Alonge’s wallet. The accused was ■“thoroughly familiarized” with his rights under Article 31 and was informed of the nature of the investigation. The accused said he received United States currency in the mail that morning as a birthday gift from his wife but there was nothing in the letters that referred to the money. Parenthetically, we note that other evidence was introduced to show the accused attempted to convert the $50 bill into military payment certificates at the Base banking facilities between 10:00 and 10:30 in the morning. The letters in the accused’s possession were not picked up by the mail clerk until after 11:00 a.m. and were left on the clerk’s desk. Between noon and 1:00 p.m. the accused came into the office and took the letters from the mail clerk’s desk. Sometime in the course of his interrogation the accused asked to see a legal ■officer and a Catholic Chaplain. The investigator called Major Eades, the .staff judge advocate, at his quarters .and informed him of the accused’s request. Major Eades went directly to the Air Police office and was introduced to the accused. He was dressed in civilian clothes. The accused asked to see the Major’s identification card and it was shown to him. However, as testified to by the accused, he was still suspicious. As a result, while he asked the Major a number of questions he “didn’t volunteer any information that evening.” According to Major Eades he explained fully to the accused his position as staff judge advocate and that he could not represent the accused as an attorney. The accused “seemed merely interested in how long the air police could hold him.” The Major advised him of several circumstances that bore upon the matter. He asked the accused if he had any further questions and “explained . . . that . . . [he] could give him a full explanation of all of his legal rights, but . . . could not advise him as his attorney.” The accused said he had no more questions, but as Major Eades was leaving the building he was recalled. He then discussed with the accused whether the accused should make a statement. He impressed upon the accused that it was “his decision” to make. The accused then indicated he wanted to talk to the Chaplain before he made a statement. Major Eades offered to call the Chaplain but the accused said he would talk to him the next morning. “[0]n that note,” Major Eades left. About 9:00 the next morning the accused appeared with Air Policeman Spina at Major Eades’ office. He looked at the nameplate on the Major’s desk. The Major said: “Now, do you believe who I said I was last night?” The accused said “Yes, sir. Sir, I took $70, but I didn’t take all of the money.” At trial, defense counsel objected to the admission in evidence of' the accused’s statement on the ground that “an attorney-client privilege was entered into” between the accused and Major Eades, and the statement was protected from disclosure. The accused took the stand for the “limited purpose” of establishing the attorney-client relationship, and testified substantially as indicated above. Two questions and answers merit quotation as indicative of the essence of his testimony: “Q [Defense Counsel]. You felt that from the time Major Eades walked into that room and to this day that anything you said was confidential ? [77] “A. Yes, sir; that was my understanding. “Q [Trial Counsel]. You comprehended that if you made any statements to Major Eades or to any other investigator, you would possibly have that evidence used against you; is that correct ? “A. No, sir; not to Major Eades. I was under the impression that Major Eades was going to be my defense counsel.” Besides hearing testimony on the issue, the law officer heard extensive argument from counsel. He overruled the objection and allowed the statement into evidence. In his post-trial review, the staff judge advocate to the convening authority, Lieutenant Colonel E. Lewis reviewed the issue at length. His discussion is described as “excellent” by the board of review and is, indeed, deserving of commendation. He concluded there was “sufficient foundation . . . [for the determination that accused’s statement] was not [made] under the ■cloak of a privileged communication.” The board of review adopted his “rationale and conclusions” and we can profitably do so ourselves. However, some aspects of the accused’s claim of •error require additional comment. On this appeal, the principal complaint is not aimed at the attorney-client privilege. As to that, there is ample evi-denee in the record of trial, to support the law officer’s ruling. One of the fundamental requirements for creation of the privilege is that the lawyer be accepted as such by the client. United States v Brady, 8 USCMA 456, 24 CMR 266; United States v Miller, 7 USCMA 23, 21 CMR 149. The accused admitted he did not believe Major Eades was a legal officer when he saw him at the Air Police office, and consequently, he “didn’t volunteer any information. Manifestly there was no acceptance of Major Eades as a lawyer by the accused at that time. 'So far as the incident in the Major’s office the next morning is concerned, we may assume, although the accused never so maintained at the trial, that as soon as he read Major Eades’ nameplate he accepted him as his attorney. However, Major Eades testified he had expressly told the accused he could not act as his lawyer. The accused did not deny the statement in his own testimony; that circumstance provides the basis for a reasonable inference that the Major’s statement was true. United States v Humble, 11 USCMA 38, 28 CMR 262. Thus, the law officer was free to choose between the accused’s broad and admittedly contradictory testimony that he regarded Major Eades as his lawyer “from the moment” he met him in the air police office, and the evidence to the effect that the accused was expressly told, and therefore knew, that Major Eades could not act as his attorney. Here, the allegation of error veers away from the attorney-client privilege to a contention that Major Eades failed to advise the accused in their conversation at the Air Police office as to the accused’s right to counsel. The new argument is basically inconsistent with the old, in that it presupposes no attorney-client relationship was created at that time. In other words, if there was an attorney-client relationship, obviously the accused was, in fact, accorded the right to counsel and there was no need to talk about the right in the abstract. Be that as it may, there is no error here. The Government argues that the record shows complete awareness by the accused of his right to counsel during interrogation by the Air Police. Indeed, it may be asked, “Why else did the accused request a legal officer and, after consultation with him, make no further statements?” Perhaps Major Eades should have, but did not expressly tell the accused he could retain civilian counsel at his own expense or obtain, if possible, the voluntary services of a military lawyer; and that, in either case, his counsel might be entitled to be present with him during interrogation by law enforcement agents. See United States v Gunnels, 8 USCMA 130, 23 CMR 354; United States v Rose, 8 USCMA 441, 24 CMR 251. However, [78] the accused made no incriminating statements to the agents as a result of the omission. Consequently, it cannot be said he was harmed by the purported oversight. United States v Melville, 8 USCMA 597, 25 CMR 101; see also United States v Mickel, 9 USCMA 324, 26 CMR 104. As for the statement to Major Eades, the accused based that wholly on the claim that he believed the Major was his lawyer. That claim was decided against him, with ample evidence to support the determination. The decision of the board of review is affirmed. Judge Latimer concurs.