United States v. Private E2 EVAN M. MUSGROVE

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
COOK, HAIGHT, and PENLAND
Appellate Military Judges
UNITED STATES, Appellee
v.
Private E2 EVAN M. MUSGROVE
United States Army, Appellant
ARMY 20140777
Headquarters, Fort Bliss
Timothy P. Hayes, Jr., Military Judge
Lieutenant Colonel Runo C. Richardson, Acting Staff Judge Advocate
For Appellant: Colonel Kevin Boyle, JA; Captain Payum Doroodian, JA.
For Appellee: Major A.G. Courie, III, JA.
10 August 2015
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SUMMARY DISPOSITION
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COOK, Senior Judge:
A military judge sitting as a special court-martial convicted appellant,
consistent with his pleas, of making a false statement, soliciting another to commit
an offense, and wrongfully receiving and concealing military property of a value of
more than $500.00, in violation of Articles 107 and 134, Uniform Code of Military
Justice [hereinafter UCMJ], 10 U.S.C. §§ 907 and 934 (2012). 1 The military judge
sentenced appellant to a bad-conduct discharge and confinement for ninety (90)
days. The convening authority approved the adjudged sentence.
Appellant’s case is now pending review before this court pursuant to Article
66, UCMJ. Appellant does not raise any assignments of error, but personally raises
an issue pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), that
merits discussion but no relief.
1
Specifications and charges alleging appellant engaged in larceny and conspiracy to
commit larceny were dismissed at trial.
MUSGROVE—ARMY 20140777
BACKGROUND
Appellant and Private First Class (PFC) HH were assigned as arms room
guards when military property from that area went missing. Suspecting appellant
and PFC HH had a role in the property’s disappearance, First Sergeant (1SG) RC,
appellant’s and PFC HH’s 1SG, ordered the two soldiers into his office. Once the
two soldiers arrived, 1SG RC, without informing appellant of his rights, 2 questioned
both about the whereabouts of the missing property. Both soldiers denied knowing
where the property was. These denials ultimately led to both soldiers being charged
with making a false statement because both had indeed played a role in the
property’s disappearance and subsequent concealment and were, therefore, well
aware of its current location. Although 1SG RC did not read appellant his Article
31(b), UCMJ, rights prior to questioning him, he did offer both soldiers “amnesty” if
the missing property was returned.
During the providence inquiry, the military judge recognized that 1SG RC
may have violated appellant’s Article 31(b) rights and that appellant could have
potentially moved to suppress this statement. Although appellant’s trial defense
counsel admitted to not reviewing this obvious issue with appellant prior to trial, the
military judge had the defense counsel discuss a potential suppression motion with
appellant during the providence inquiry. In addition, the military judge himself
went into detail concerning the potential impact this issue could have on appellant’s
statement to 1SG RC, to include its potential suppression.
The military judge then covered the concept of waiver with appellant. This
discussion included an explanation that even if appellant had a viable suppression
motion, he could waive this motion, ostensibly in exchange for the sentence
limitation contained in his pretrial agreement. After completing this colloquy with
appellant and ensuring that appellant had no remaining questions concerning this
issue, the military judge afforded appellant additional time to discuss this issue with
his defense counsel. After appellant stated he did not need more time to discuss
waiver with counsel, the military judge asked appellant whether he was “waiving
any right that [he] may have had to suppress [his] statement [to the 1SG] in order to
get the benefit of his pretrial agreement.” Appellant responded “Yes, sir.”
LAW AND DISCUSSION
1. Article 31(b),UCMJ Rights Warning
Article 31(a), UCMJ prohibits persons subject to the UCMJ from compelling
any person to incriminate themselves. To guard against this scenario, Article 31(b),
2
There is also no evidence in the record that 1SG RC informed PFC HH of his rights
under Article 31(b), UCMJ.
2
MUSGROVE—ARMY 20140777
UCMJ, implements a privilege against self-incrimination by requiring soldiers to be
informed of certain rights before they are questioned. Specifically, no person
subject to the UCMJ 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 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.
UCMJ art. 31(b).
In the case before us, it is clear: (1) 1SG RC was a person subject to the code;
(2) at the time he questioned appellant he suspected appellant of an offense; and
(3) 1SG RC failed to inform appellant of his rights under Article 31(b) before
questioning him. In addition, our superior court in United States v. Swift, 53 M.J.
439, 446 (C.A.A.F. 2000) (internal citation omitted), further held that the person
conducting the questioning must be participating in an official law enforcement or
disciplinary investigation or inquiry. It is equally clear 1SG RC was conducting a
disciplinary investigation or inquiry. This is not only supported by the presumption
identified in Swift that questioning by a military superior in the “chain of command”
is part of a “disciplinary” investigation, but further buttressed by the 1SG’s offer of
“amnesty” in exchange for the property’s return Id. As such, we find 1SG RC
violated appellant’s rights afforded him under Article 31, UCMJ, through the
aforementioned interrogation. 3
Article 31(d), UCMJ generally proscribes the use of a statement obtained in
violation of Article 31:
No statement obtained from any person in violation of
this article . . . may be received in evidence against
him in a trial by court-martial.
2. Waiver
Our analysis, however, does not end with finding a violation of appellant’s
rights. To the contrary, we must now examine whether waiver applies. “[W]aiver is
the ‘intentional relinquishment or abandonment of a known right.’” United States v.
3
We need not address whether the offered “amnesty” would have been binding on
the government if appellant and his cohort had come clean when provided the
opportunity.
3
MUSGROVE—ARMY 20140777
Gladue, 67 M.J. 311, 313 (C.A.A.F 2009) (quoting United States v. Olano, 507 U.S.
725, 733 (1993) (citation omitted)). “When . . . an appellant intentionally waives a
known right at trial, it is extinguished and may not be raised on appeal.” Id. (internal
citation omitted). The concept of “forfeiture,” on the other hand, refers to scenarios
where an appellant fails to timely assert a right. Id. In those situations, we review
for plain error. Id.
Based on the record before us, the military judge provided appellant guidance
concerning the possibility that 1SG RC had violated his Article 31(b) rights and
appellant’s ability to move to suppress his unwarned statements based on this rights
violation. In response, appellant explicitly acknowledged he understood the issue
and by his plea was also explicitly waiving his opportunity to make such a motion.
This being the case, we find appellant knowingly and voluntary waived his
opportunity to challenge the admissibility of his statement.
CONCLUSION
On consideration of the entire record, we hold the findings of guilty and the
sentence as approved by the convening authority correct in law and fact.
Accordingly, the findings of guilty and the sentence are affirmed.
Judge HAIGHT and Judge PENLAND concur.
FOR THE COURT:
MALCOLM H.
MALCOLM H. SQUIRES,
SQUIRES, JR.
JR.
Clerk of Court
Clerk of Court
4