United States v. Girard

OPINION OF THE COURT Quinn, Judge: An interrogation by a Criminal Investigations Detachment agent, almost all of whose testimony regarding the interrogation was called a "lie” by the accused, and a finding implicit in a ruling by the trial judge that the accused was the liar, provide the occasion for this appeal from a conviction for wrongful sale of heroin. No evidence as to the interrogation was introduced as part of the Government’s case in chief. Agent Robinson, who conducted the interrogation, testified only that, on November 11, 1972, operating undercover at Fort Bragg, North Carolina, he bought $20 of heroin from the accused at the parking lot of the accused’s company. On November 16, he arrested the accused for that sale. In defense, the accused testified that he did not sell the heroin. He maintained that, responding to Robinson’s request for drugs, he told Robinson he knew "somebody in the company who might have some.”1 He went into the barracks where he met Abbott, who worked with him in the company and had "repeatedly tried to sell” him drugs.2 He told Abbott about Robinson. Abbott gave him a packet, which he said contained heroin, and told him to give it to Robinson. He did as requested and received $20 from Robinson. Immediately, he returned to the barracks and gave all the money to Abbott. Additionally, the accused testified that he had never "been involved in anything like this,” and he had never received drugs "from anyone else.” Substantial parts of the accused’s testimony were inconsistent with statements he made when questioned by Agent Robinson at the CID office after his arrest. Among other things, the accused had then represented that he had obtained the heroin from a "guy ... he didn’t know” and could not describe or identify, except that he was "down in the 82d.”3 The accused further admitted he had "sold this particular heroin” because he was "low on money and . . . planned on getting married.” At an out-of-court hearing before the judge to consider the admissibility of the pretrial statements as rebuttal evidence for the Government, Robinson testified that before questioning the accused, he informed him of his rights by reading them to him verbatim from a card he carried.4 The card was identified and [265] admitted in evidence as Prosecution Exhibit 3.5 Agent Harrell, Robinson’s supervisor, corroborated this testimony. We set out the remainder of the Government’s evidence on this issue as it may have been found by the trial judge and the court members. After reading the statement of rights from the card, Robinson "explained” to the accused that counsel meant a lawyer; the accused indicated he understood and that he did not want counsel. Referring to the right to remain silent, Robinson advised the accused that anything he said "could be held against him.” Then Robinson spelled out two ways in which the accused could speak. First, the accused could make "a witness statement,” which meant that Robinson would ask questions, the accused would answer, and all the questions and answers would be "typed up,” and the accused "would have to sign” and swear to the statement. The accused refused to make that kind of statement. Robinson thereupon referred to the second way in which the accused could speak; this way was that Robinson would ask questions and the accused could answer, but neither the questions nor answers would be reduced to writing, and the answers would not be sworn to by the accused. Robinson asked the accused then if he "would consent to being questioned and answer questions;” the accused replied: "I’ll answer some of your questions, depending upon what they are.” The accused took the stand three times to testify to the circumstances of the interrogation. In substance, he stated he was not told he had a right to counsel and, although he knew he had a right to remain silent, he was not so informed by Robinson.6 He further maintained he told Robinson he would not "make any kind of statement” and, in fact, he did not say anything at the interrogation. He insisted that "all” of Robinson’s and Harrell’s testimony was "a lie.” Over defense objection, the statements were admitted in evidence for the limited purpose of impeaching accused’s credibility as to his version of the drug transaction. Later, the judge instructed the court members on the subject. Among other things, he indicated that each member had to determine beyond a reasonable doubt whether the accused "made any statement;” if each member did not so find, the testimony of the agents "on this” had to be disregarded in the member’s deliberations on the ac [266] cused’s guilt. Enumerating the standard requirements of advice to an accused at a police interrogation, he further instructed that each member must find beyond a reasonable doubt that the accused freely and intelligently waived the right to counsel and the right to remain silent. In Harris v New York, 401 US 222 (1971), the United States Supreme Court held that the Government could not use as part of its case in chief a statement obtained from an accused who had been given defective advice as to his rights at a custodial interrogation, but it could use such statement to impeach the accused’s credibility. Military law provides, however, that a deficient advice bars use of a statement even for impeachment. Manual for Courts-Martial, United States, 1969 (Rev), paragraphs 140a (2) and 153A; United States v Jordan, 20 USCMA 614, 44 CMR 44 (1971). Consequently, the adequacy of the advice given the accused is still open to review. THE CLAIM THAT ACCUSED’S ATTEMPT TO EXERCISE THE RIGHT TO REMAIN SILENT WAS "FRUSTRATED” Appellate defense counsel raise an issue preliminary to the adequacy of Agent Robinson’s advice. They contend the record demonstrates that the accused had elected to remain silent, but "continued questioning” by Agent Robinson "frustrated” his efforts. See United States v Bollons, 17 USCMA 253, 38 CMR 51 (1967). Considering the accused’s repeated representation that he not only asserted the right to remain silent, but, in fact, did remain silent, it is difficult to follow counsel’s argument. The trial judge noted, both at the out-of-court hearing and in his instructions to the court members, that the major conflict between the accused and the agents was whether the accused said anything at all. If the accused said nothing, as he testified, he certainly was not frustrated in his assertion of the right to remain silent. The accused’s contention of total silence was unmistakable and unavoidable. Since the judge ruled against the accused, he implicitly found that the agents had testified truthfully on this point, and the accused did not. Ample testimony, if believed, supports the finding. We perceive nothing in the record to justify disregard of that testimony, and we conclude that this aspect of the accused’s present claim of error lacks merit. THE CONTENTION THAT ACCUSED WAS "NOT ADEQUATELY” ADVISED ABOUT HIS RIGHT TO REMAIN SILENT Earlier, we noted that Robinson, corroborated in material part by Harrell, testified he read the accused’s rights to him from a card. The card mentioned the right to remain silent, and contained a warning that any statement made by the accused "may be used as evidence against . . . [him] in a criminal trial.” The accused disputed much of this testimony. We need not itemize all the differences. So far as the accused’s testimony bears on the specific ground of the present challenge to the trial judge’s ruling on admissibility, suffice it to note the accused conceded that Robinson read his rights to him from a card. However, the accused maintained that he did "not really” understand them because Robinson read "them real fast” and did not explain them.7 Alternatively, he maintained he was not, in fact, advised of his right to counsel, and, while he knew he had a right to remain silent, he was not so informed at the interrogation. What emerges from the record is a direct conflict of credibility. Appellate defense counsel contend Robinson’s testimony is confusing and, in one substantial particular, contradictory, at least in its "import.” Robinson’s testimony, however, was corroborated in substantial part by Harrell. The testimony of both is not so inherently improbable or uncertain as to be entitled to little or no [267] consideration as a matter of law. On the other hand, the accused’s testimony contains substantial inconsistencies that are conducive to disbelief of his assertions. The conflict in testimony on this point is like the conflict as to whether the accused spoke at all. If believed, a sufficient quantum of the evidence supports the trial judge’s determination that the accused had been adequately informed of his right to remain silent and of the consequence of his choosing to speak. Consequently, this aspect of the accused’s attack on the judge’s ruling also lacks merit. ACCUSED’S CONTENTION THAT HE WAS MISLED INTO BELIEVING THAT ONLY WRITTEN STATEMENTS COULD BE USED AGAINST HIM The formula of advice to an accused at a stationhouse interrogation is not restricted to particular words in a particular sequence. In a given case, especially if the accused appears to have limited experience and education, an explanation of the rights that will aid accused’s understanding is appropriate. For example, to a young and unwordly person, the word "counsel” may not be as well-known and understood as the word "lawyer.” Yet, emendations present a risk. An otherwise correct advice may be negated by supplemental information provided by the police officer which "impair[s] the accused’s freedom of choice between speech and silence.” United States v Howard, 18 USCMA 252, 257, 39 CMR 252, 257 (1969). Piecing together various parts of the evidence, appellate defense counsel present a picture which they contend portrays Robinson as having "disastrously misled appellant into believing that only a 'written statement’ could be used against him.” Detailing the evidence earlier, we set out a version of the interrogation that the trial judge and the court members could have found. Some of Robinson’s testimony is not clear. The trial judge commented on that in his instructions by observing that the testimony as to "written or oral statements” was not "a model of clarity.”8 Robinson left no doubt he was convinced his supplemental advice could not have led the accused to believe that if he elected to answer questions, only the witness-type statement could be used against him. Robinson’s certitude, of course, does not demonstrate the accused’s understanding of the matter. See United States v Dicario, 8 USCMA 353, 24 CMR 163 (1957). Alluding to the accused’s youth, his limited education, and general inexperience, appellate defense counsel contend that the accused could not have followed the subleties of Robinson’s advice.9 From either of two points of view, the contention is not persuasive. First, the accused had three opportunities to testify to his understanding of the advice. At no time did he testify categorically that as a result of what Robinson told him he believed if he made only an oral statement, the statement could not be used against him. Nor can we imply such belief from what he did say. First and foremost, he maintained he did not make any statement at all, written or oral; secondly, he admitted that Robinson read his rights but, while he did not "really” hear them, the reading did not include advice as to the right to remain silent; thirdly, that everything Robinson had testified to was "a lie.” None of this imports a belief or understanding that a written statement could be used against him, but an oral statement could not. The only references to written or oral statements appear in four questions asked him in his last appearance on the stand and his negative answers thereto; these also do not, in our opinion, import any claim that the accused was misled as to the kind of statement that could be used against him if he elected to speak.10 [268] Secondly, assuming we read the accused’s testimony too narrowly, the version of the supplemental advice testified to by Robinson and Harrell would not have misled a person of ordinary intelligence. The accused’s testimony and the testimony about him indicate he is at least such a person. Consequently, this aspect of the accused’s assignment of error presents the same conflict in credibility apparent in the other aspects of the assignment. In ruling against the accused, the trial judge obviously resolved the conflict against him. Substantial evidence supports his finding. Further, the judge’s instructions to the court members focus directly on the issue.11 We cannot say as a matter of law that the factual dispute should have been decided in accused’s favor. The decision of the Court of Military Review is affirmed. Judge Cook concurs. Footnotes [1] The accused gave two reasons for his action. The "only reason” was that Robinson appeared to be "high” or "sick,” and he "felt sorry for the guy,” although he was a "total stranger.” Secondly, he had seen persons in "withdrawals” and as Robinson possessed a stick about 2 Vi to 3 feet in length and 1 to 1 Vi inches in thickness, he was "kind of scared,” not knowing what Robinson was "going to do.” [2] Purportedly, Abbott was discharged "right after” the accused was confined. [3] The reference appears to be to the 82d Airborne Division, a unit stationed at Fort Bragg. That fact and the inference that the accused’s company was not part of the 82d Airborne Division would have been known to all the participants in the trial, which was held at Fort Bragg. United States v Jones, 2 USCMA 80, 6 CMR 80 (1952). [4] The testimony at this hearing is different from later testimony before the court members. However, the parties have intermingled all the testimony in their briefs and argument, and we will [265] treat it the same way for the purposes of this appeal. United States v England, 21 USCMA 88, 44 CMR 142 (1971). [5] The information read to the accused, which appeared on both sides of the card, was as follows: FRONT OF THE CARD FOLLOWS: THE WARNING "Before I ask you any questions, you must understand your rights. 1. You have the right to remain silent. 2. Any statement you may make may be used as evidence against you in a criminal trial. 3. You have the right to consult with counsel and to have counsel present with you during questioning. You may retain counsel at your own expense or counsel will be appointed for you at no expense to you. If you are subject to the Uniform Code of Military Justice, appointed counsel may be military counsel of your own selection if he is reasonably available. 4. Even if you consent to being questioned now without having counsel present, you may stop answering questions at any time. Also, you may request counsel at any time during questioning.” BACK OF THE CARD FOLLOWS: THE WAIVER After this warning is given, ascertain whether the accused or suspect understands his rights and will be able to freely, knowingly, and intelligently waive them. If he does so understand his rights, then specifically ask him these two questions: "1. Do you want counsel? 2. Do you consent to being questioned?” If the accused or suspect indicates that he wishes to consult with counsel, do not question him until counsel is obtained. Likewise, if the accused or suspect indicates he does not wish to be questioned and he has no counsel present, do not question him. ARMY-FT RILEY, KANS S-9679 [6] During the defense case in chief, the accused had testified that at the time of his apprehension "they advised me of my rights.” [7] Robinson disputed the accused’s version of the reading. He testified he "completely read” the card at a speed and in a tone of voice that he demonstrated. Neither the tone nor the speed was described in the record, but it may be fairly inferred that the reading was clearly audible and the rate of speed was such as to allow a listener to comprehend the content. [8] The difficulty was attributed to Robinson’s "inarticulatness (sic) or his confusion.” [9] Government counsel posit a different picture of the accused’s education and experience. [10] DC: Did he [Robinson] ever differentiate for you the difference between an oral statement and a written statement? A: No, sir, he did not. MJ: Did you know if you did say anything to them, by written statement or by answering their questions, and any [268] thing you said to them could be used against you? A: I didn’t know that, sir. MJ: Did you know that there was no difference between a written statement and an oral statement? A: No, I did not. MJ: And were you told anything about that? A: No, sir. [11] In pertinent part, the instructions are as follows: Now with regard to the right to remain silent, the burden is upon the prosecution to prove beyond a reasonable doubt that the accused knew that an oral as well as a written statement could be used against him. In this connection, if Agent Robinson was himself confused or unable to clearly explain this right to the accused and as a result confused or misled the accused about this right and that is that the, the difference between a written and an oral statement, then the accused would not have waived his right to remain silent, and you must disregard any statements made by the accused on 16 November, and you may not consider it for any purpose whatsoever.