United States v. Simpson

UNITED STATES, Appellee
v.
Craig L. SIMPSON, Senior Airman
U.S. Air Force, Appellant
No. 00-0126
Crim. App. No. 32749
United States Court of Appeals for the Armed Forces
Argued October 4, 2000
Decided December 8, 2000
CRAWFORD, C.J., delivered the opinion of the Court, in
which SULLIVAN, GIERKE, EFFRON, and BAKER, JJ., joined.
Counsel
For Appellant: Mr. Stephen A. Bamberger (argued); Colonel
Jeanne M. Rueth and Major Thomas R. Uiselt (on brief);
Lieutenant Colonel James R. Wise, Lieutenant Colonel Timothy
W. Murphy, and Major Maria A. Fried.
For Appellee: Captain Suzanne Sumner (argued); Colonel
Anthony P. Dattilo and Lieutenant Colonel Ronald A. Rodgers
(on brief); Captain Tony R. Roberts.
Military Judge: James J. Blommers
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION
United States v. Simpson, 00-0126/AF
Chief Judge CRAWFORD delivered the opinion of the
Court.
Contrary to his pleas, appellant was convicted by a
military judge at a general court-martial of committing
sodomy with a child, committing indecent acts with a child,
and dereliction of duty, in violation of Articles 125, 134,
and 92, Uniform Code of Military Justice, 10 USC §§ 925,
934, and 892, respectively. Appellant was sentenced to a
dishonorable discharge, 4 years’ confinement, and reduction
to the lowest enlisted grade. The convening authority
approved the sentence but suspended confinement in excess of
2 years for 4 years. The Court of Criminal Appeals affirmed
the findings and sentence in an unpublished opinion.
This Court granted review of the following issue:
WHETHER THE TRIAL JUDGE ERRED BY NOT GRANTING
DEFENSE COUNSEL’S MOTION TO SUPPRESS APPELLANT’S
CONFESSION.
The Court also specified the following issue:
WHETHER THE MILITARY JUDGE AND THE AIR FORCE COURT
OF CRIMINAL APPEALS ERRED TO THE SUBSTANTIAL
PREJUDICE OF APPELLANT BY VIEWING SPECIAL AGENT
CARROLL’S "POSITIVE CONFRONTATION” AS A
CIRCUMSTANCE WHICH REMEDIED SPECIAL AGENT CARROLL’S
OTHERWISE DEFECTIVE ARTICLE 31(b) ADVICE AS TO THE
NATURE OF THE OFFENSES, RATHER THAN VIEWING THE
“POSITIVE CONFRONTATION” AS CONDUCT DESIGNED OR
LIKELY TO PRODUCE AN INCRIMINATING RESPONSE AFTER A
DEFECTIVE ARTICLE 31(b) ADVICE AND APPELLANT’S
RESULTING WAIVER OF HIS RIGHTS.
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For the reasons that follow, we hold that the admission
of appellant’s statement was proper. United States v.
Rogers, 47 M.J. 135 (1997).
FACTS
Appellant was the neighbor of AP, the 9-year-old
daughter of another Air Force member. On December 6, 1996,
Special Agent Ovie Lee Carroll of the local Office of
Special Investigations (OSI) detachment learned of AP’s
allegation that appellant sexually abused her. Later that
day, Agent Carroll observed an interview conducted between
the victim and Child Protection/Family Services. After it
was determined that appellant should be interviewed the
following day, Agent Carroll obtained two search warrants to
search appellant and his residence. On the search warrants,
Agent Carroll described the offenses as “Violation of UCMJ
Articles: 92 Failure to Obey Order or Regulation, 128
Assault, 134 Indecent Acts or Liberties with a Child, 125
Sodomy, and 120 Rape.”
On December 7, 1999, Agent Carroll interviewed
appellant. Prior to the interview, Agent Carroll orally
advised appellant of his rights under Article 31(b), UCMJ,
10 USC § 831(b), advised him of his right to counsel, and
told him that the matter he was investigating was “indecent
acts or liberties with a child.” Appellant waived his
rights and indicated he “would be willing to answer
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questions and make a statement about the offense – or the
allegations.”
During the interview, Agent Carroll informed appellant
that AP said she was at his house between Halloween and
Thanksgiving when appellant led her into his room by the
wrists, forced her to masturbate him and perform oral sex on
him, pointed a weapon at her, and showed her bullets in the
weapon during the incident. In response to this “positive
confrontation,” appellant stated that AP voluntarily agreed
to participate in the indecent acts and sodomy.
After the interview, Agent Carroll took a written
statement from appellant that memorialized his confession.
Appellant reviewed the statement for accuracy and was re-
advised of his rights. Agent Carroll testified that the
second rights’ advisement was given because the agents
wanted to make sure that appellant understood his rights and
the nature of the offense. Appellant then signed the
written statement. At no time during the interview did
appellant indicate he did not understand his rights.*
At trial, appellant filed a motion to suppress his
confession. Denying the motion, the military judge
found Agent Carroll’s warning
that they were investigating indecent acts or
liberties with a child ... sufficient ...
*
In light of our holding, we need not decide whether Agent Carroll’s
“positive confrontation” cured any defective Article 31(b) rights
warning.
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to orient him [appellant] to the matter under
investigation and the general nature of what
that matter was ....
The Court of Criminal Appeals affirmed the trial judge’s
decision denying appellant’s motion to suppress.
Appellant claims his statements were obtained in
violation of Article 31(b) because he was not informed of
the nature of the accusations against him. Appellant
further asserts he was deceived into waiving his rights
because of the deficient Article 31(b) advice. Appellant
argues that the agents’ failure to advise him of the known
offenses in addition to indecent acts with a child rendered
the waiver invalid. Conversely, the Government argues that
the agents’ advice was proper under Article 31(b) since
appellant was made aware of the nature of the allegations
involved so as to orient him to the general nature of the
matter under investigation.
DISCUSSION
Article 31(b) provides:
No person subject to this chapter 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.
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Generally, Article 31(d) prohibits the use of a
statement obtained from a person in violation of Article 31
as evidence against that person at a trial by court-martial.
See also Mil.R.Evid. 304(c)(3) and 305(c), Manual for Courts-
Martial, United States (1995 ed.).
The Government has the burden of establishing compliance
with rights warning requirements by a preponderance of the
evidence. Mil.R.Evid. 304(e). An appellate court reviews the
denial of a motion to suppress a confession under an abuse of
discretion standard, United States v. Young, 49 M.J. 265, 266-67
(1998), and accepts the judge’s findings of fact unless they
are clearly erroneous. United States v. Ford, 51 M.J. 445, 451
(1999).
In this case, no dispute exists as to the relevant
facts. At issue is whether the military judge erred as a
matter of law in denying appellant’s motion to suppress. In
other words, the Court must decide if the omission of the
offenses of sodomy and assault in the rights’ advisement was
inconsistent with the applicable rights warning
requirements. See United States v. Rogers, supra. The
court applies a de novo standard of review in deciding this
issue. Arizona v. Fulminante, 499 U.S. 279, 287 (1991);
United States v. Ayala, 43 M.J. 296, 298 (1995).
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The requirement in Article 31(b) that an accused or
suspect be informed of the nature of the accusation has been
the subject of many appellate cases. In United States v.
Rice, 11 USCMA 524, 526, 29 CMR 340, 342 (1960), this Court
said:
The purpose of informing a suspect or accused
of the nature of the accusation is to orient him
to the transaction or incident in which he is
allegedly involved. It is not necessary to spell
out the details of his connection with the matter
under inquiry with technical nicety.
In United States v. Davis, 8 USCMA 196, 198, 24 CMR 6,
8 (1957), this Court stated:
Advice as to the nature of the charge need not be
spelled out with the particularity of a legally
sufficient specification; it is enough if, from what
is said and done, the accused knows the general nature
of the charge.... A partial advice, considered in
light of the surrounding circumstances and the manifest
knowledge of the accused, can be sufficient to satisfy
this requirement of Article 31, supra.
The precision and expertise of an attorney in informing
an accused of the nature of the accusation under Article 31
is not required. See, e.g., United States v. Johnson, 20
USCMA 320, 324, 43 CMR 160, 164 (1971). It is not necessary
that an accused or suspect be advised of each and every
possible charge under investigation, nor that the advice
include the most serious or any lesser-included charges
being investigated. Nevertheless, the accused or suspect
must be informed of the general nature of the allegation, to
include the area of suspicion that focuses the person toward
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the circumstances surrounding the event. United States v.
Huelsman, 27 M.J. 511, 513 (ACMR 1988)(citing United States v.
Schultz, 19 USCMA 311, 41 CMR 311 (1970); United States v.
Reynolds, 16 USCMA 403, 37 CMR 23 (1966)).
Among the possible factors to be considered in
determining whether the nature-of-the-accusation requirement
has been satisfied are whether the conduct is part of a
continuous sequence of events, United States v. Willeford,
5 M.J. 634 (AFCMR 1978), whether the conduct was within the
frame of reference supplied by the warnings, United States
v. Quintana, 5 M.J. 484 (CMA 1978), or whether the
interrogator had previous knowledge of the unwarned
offenses, United States v. Davis, supra.
In this case, Agent Carroll verbally warned appellant
that he was being questioned about indecent acts or
liberties with AP. The offenses of indecent acts and
sodomy are sufficiently related so that the warning oriented
appellant toward the nature of the accusations against him.
It would have been preferable for Agent Carroll to have
warned appellant of all the offenses that were listed on the
search warrants issued the day before the interview.
However, under the circumstances, we hold that the purpose
of providing appellant with Article 31(b) warnings was met,
and those warnings sufficiently oriented appellant to the
nature of the accusations against him.
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The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
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