United States v. Schwade

DECISION ORSER, Judge: Tried by a special court-martial, with members, the accused was convicted, despite his not guilty pleas, of the larceny of a television set and failure to go at the time prescribed to his appointed place of duty, in violation of Articles 121 and 86, 10 U.S.C. §§ 921 and 886, Uniform Code of Military Justice. The approved sentence provides for a bad conduct discharge and forfeiture of $150.00 per month for two months. On appeal, appellate defense counsel have assigned three errors for our consideration. We find merit in but one, a contention that the military judge erred in admitting, over defense objection, evidence derived from an interrogation of the accused. [888] The assigned error pertains to the larceny conviction. According to the evidence, on 21 March 1975, an employee of the Recreation Center, Langley Air Force Base, Virginia, discovered that the building had not been secured during the preceding night and that a 25 inch color television set was missing from the center. In late May, 1975, the property was found in the Hampton, Virginia home of a Mr. and Mrs. Benjamin O. Lotman, Junior. According to Mrs. Lot-man, she purchased the television set from the accused during the month of March 1975, for $75.00 in cash and a cassette tape recorder and speakers. Sergeant Torley, the security policeman who investigated the theft, testified that on 24 or 25 July 1975, he entered a room in the security police office where the accused was being interviewed by another security policeman. The interview concerned a matter unrelated to the television theft. The accused was attended by counsel, a Captain Jaenicke, assigned to the Langley Air Force Base Area Defense Office. At the time, though suspicion of the television set theft had focused on the accused, he had not yet been identified by Mrs. Lotman as the person who had sold her the stolen property. Sergeant Torley informed Captain Jaenicke he desired to talk to the accused concerning the larceny of the television. Torley testified that though he could not recall the exact words, Captain Jaenicke replied to the effect that he did not know if he was representing the accused in connection with the television theft, and invited Torley to discuss the matter directly with him. Sergeant Torley did not, however, immediately seek to interview the accused. He postponed doing so until 26 August 1975. By that time, the investigation of the matter had further implicated the accused. Among other things, Mrs. Lotman and her husband had identified photographs of the accused as the person who had brought the stolen television set to their house and subsequently sold it to them. On 26 August 1975, Sergeant Torley brought the accused to his office to be interrogated. At the outset of the session, the sergeant thoroughly advised him of his Article 81, Miranda/Tempia rights.1 Though Torley provided the standard advice respecting counsel, he did not ask the accused whether he was represented by Captain Jaenicke. The accused acknowledged understanding of his rights and waived them all. He specifically declined the services of a lawyer. He then agreed to submit to questioning, qualified however, to the extent that he declined to execute a written statement. In the ensuing interview, the accused denied the theft of the television set but did admit being at the recreation center on the night it was removed. In response to further questions, according to Torley, the accused admitted that he had an eight track tape deck in his dormitory room. His description of the unit matched that of the tape deck Mrs. Lotman had earlier told Torley she had traded for the stolen television set. The accused, said Torley, agreed to permit him access to his room if he promised he would not confiscate the tape machine. Armed with the information provided by the accused, Sergeant Torley sought and obtained search authority from the commander and seized the tape deck from the accused’s room. The Lotmans subsequently viewed it and verified it was the same one they had traded for the stolen television set. In support of their objection to admission of the evidence, the defense called Captain Jaenicke as a witness. Captain Jaenicke testified that on 24 July 1975, while at the security police office with the accused in connection with an unrelated matter, Sergeant Torley asked him if he represented the accused in the television theft investigation. Jaenicke said he replied he had not discussed the subject with the accused but would do so and let Torley know. He later conferred with the accused about the matter and, to the best of his recollection, the following day informed Torley that the ac [889] cused would make no statement until Torley furnished him the details of the evidence implicating the accused. Torley purportedly replied he could not immediately accommodate him, but promised to do so when time permitted. Captain Jaenicke further testified that sometime between 25 July and 25 August 1975 (he could not recall the specific date), he telephoned the security police office in connection with an unrelated matter and Sergeant Torley answered the phone. Captain Jaenicke said he asked the sergeant when he intended to contact him to discuss the evidence he had against the accused respecting the television theft. Sergeant Torley allegedly replied he was extremely busy at that time, and besides, he did not have his notes available. He again promised he would contact Jaenicke when possible. Captain Jaenicke testified the investigator at no time contacted him as promised, nor did he provide him notice of his 26 August 1975 interrogation of the accused. Jaenicke asserted he made it clear to Torley that he was the accused’s counsel in the television theft matter and no decision would be made on whether the accused would make a statement until Torley furnished him the facts known to the Government. As previously noted, Sergeant Torley’s recollection of his 24 or 25 July conversation with Captain Jaenicke significantly conflicted with Jaenicke’s version. Furthermore, Sergeant Torley testified he could not recall any other discussions with Jaenicke concerning the matter between their 24 or 25 July conversation and 26 August 1975, the date he initially interrogated the accused. Citing the very recent case of United States v. McOmber 1 M.J. 380, 1976, appellate defense counsel contend that Sergeant Torley’s interrogation of the accused violated his right to his own counsel and consequently rendered his admission respecting presence at the scene of the theft and the derivative evidence secured during the search that followed the interrogation inadmissible. In McOmber, the United States Court of Military Appeals enunciated the rule that once an investigator is on notice that an attorney has undertaken to represent an individual in a military criminal investigation, further questioning of the accused without affording counsel reasonable opportunity to be present renders any statement obtained involuntary under Article 31(d) of the Uniform Code. Though prior decisions of the Court made it abundantly clear it is error for Government investigators to deal directly with suspects once on notice they are represented by counsel, in each such case the error was deemed nullified and relief denied on the basis that the accused knowingly waived his right to an attorney and consented to be interrogated following a thorough Article 31, Miranda/Tempia warning. United States v. Johnson, 20 U.S.C.M.A. 320, 43 C.M.R. 160 (1971); United States v. Flack, 20 U.S.C.M.A. 201, 43 C.M.R. 41 (1970); United States v. Estep, 19 U.S.C.M.A. 201, 41 C.M.R. 201 (1970). By its McOmber decision the Court has now seen fit to eliminate the test for prejudice previously employed and grant relief solely on the basis of failure to provide an accused’s known attorney an opportunity to be present during interrogation. In their reply, appellate Government counsel understandably chose not to defend the interrogation of the accused in the absence of and without notification to Captain Jaenicke. Instead they take the position that the McOmber rule adopted by the Court of Military Appeals is not controlling. In their analysis, the rule is to be applied only prospectively to interrogations conducted after the date of the opinion, or alternatively, only to trials held thereafter. We disagree. In our opinion, the Court of Military Appeals made it quite clear in McOmber that the rule adopted will dictate disposition in all cases containing this error thereafter decided. In McOmber, the Court not only announced the rule, but applied it and granted relief on finding that the Government had already had adequate notice of the required standard of investigatorial [890] conduct. Speaking for the Court, Chief Judge Fletcher observed that in prior decisions for at least the last five years, the Court had been steadily moving toward adoption of the rule. In granting relief in the McOmber circumstances, the Chief Judge declared that the Court of Military Appeals did not choose to be the first to condone “surreptitious interrogation technique which plainly seeks to deprive an individual of the effective assistance of counsel.” The Court detected a continuing reluctance to heed its past guidance in this troublesome area and thus felt compelled to adopt the stern remedy of judicial sanction announced. As we read McOmber, we believe the Court intends the rule to be applied in each and every instance where the error heretofore condemned is detected. Turning to the evidence, it is clear from the totality of circumstances that the accused’s interrogator, Sergeant Torley, was on ample notice that the accused was represented by Captain Jaenicke in the criminal investigation being conducted. Though his recollection of his dealings with Captain Jaenicke and the captain’s testimony concerning the matter differ in significant respects, even by Torley’s own account he was undisputably aware that Jaenicke might be the accused’s attorney. Thus, solely within the terms of the sergeant’s understanding, he was obligated to ask the accused whether Captain Jaenicke represented him. As seen, however, though he provided an otherwise adequate warning to the accused at the outset of his interrogation, he did not specifically inquire about Jaenicke’s possible representation. Conversely, standing alone, Captain Jaenicke’s testimony leaves absolutely no room for doubt that he had an attorney-client relationship with the accused in the criminal investigation, that Sergeant Torley was well aware of it, and that the accused would not submit to interrogation, at least not until the sergeant provided Captain Jaenicke with the investigative facts in the matter so he could further advise his client. In our assessment of the testimony, Captain Jaenicke’s more emphatic recitation of his communications with Sergeant Torley is considerably more plausible than the somewhat less certain recollection of the sergeant. As the military judge neither made special findings of fact nor discussed the basis for his ruling which placed the accused’s admission and the fruit of the search before the court, we cannot determine whether in so doing he chose to believe Sergeant Torley and discount the testimony of Captain Jaenicke. That seems unlikely however. It appears far more likely, especially in light of the fact that this case was tried prior to the Court of Military Appeals’ decision in United States v. McOmber, supra, that the judge’s ruling was bottomed on the undisputed factor that in the final analysis Sergeant Torley fully warned the accused and the latter waived his right to counsel and to remain silent. We find that since Sergeant Torley failed to notify Captain Jaenicke of the questioning of the accused, the McOmber sanction renders his admission involuntary and the evidence obtained on the basis of the information he supplied the Government inadmissible. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); United States v. Collier, 1 M.J. 358 (1976); United States v. Armstrong, 22 U.S.C.M.A. 438, 47 C.M.R. 479 (1973). Even without reference to the McOmber rule, the recited circumstances raise, in our judgment, a fair risk that the accused, notwithstanding his personal waiver, was deprived of the effective assistance of his counsel. See Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964); Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964); United States v. Best, 6 U.S.C.M.A. 39, 19 C.M.R. 165 (1955). Not only was Sergeant Torley on notice that Captain Jaenicke represented the accused, he was moreover advised, if the captain is to be believed, that as a condition precedent to a decision on whether the accused would submit to questioning, he was required to furnish counsel with the investigative facts. Without debate, the investigator had not complied with that request,'though according to Jaenicke he had [891] promised to do so, at the time he chose to interrogate the accused in the absence of and without notification to his attorney. These circumstances are akin to those in Williams v. Brewer, D.C., 375 F.Supp. 170 (1974), where the Court ruled the accused’s statement inadmissible when made in the absence of his attorney after the interrogator made and then broke an agreement that the accused would not be questioned until after the attorney arrived in the city where he was charged. Whether Sergeant Torley’s failure to provide the information and his professed unawareness that the accused was even represented by Captain Jaenicke “resulted from negligence rather than guile” the effect is the same. Barbee v. Warden, Maryland Penitentiary, 331 F.2d 842, 846 (4th Cir. 1964). The conduct of the Government in obtaining the accused’s statement in the absence of his attorney and without even providing the attorney the promised information, creates at least the impression of the kind of “dirty pool” criticized by the Court in United States v. DeLoy, 421 F.2d 900, 902 (5th Cir. 1970). For the reasons stated, the affected finding of guilty (the specification of the Charge and the Charge) is hereby set aside. See United States v. Anglin, 18 U.S.C.M.A. 520, 40 C.M.R. 232 (1969); United States v. Reynolds, 16 U.S.C.M.A. 403, 37 C.M.R. 23 (1966). A rehearing may be directed. ROBERTS, Senior Judge, and SANDERS, Judge, concur. Footnotes [1] Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); United States v. Tempia, 16 U.S.C.M.A. 629, 37 C.M.R. 249 (1967).