UNITED STATES, Appellee
v.
Bobby D. SEAY II, Sergeant
No. 03-0246/AR
Crim. App.
No. 9900779
Argued
Decided
CRAWFORD,
C.J., delivered the opinion of the Court, in which GIERKE and EFFRON,
JJ,
joined. ERDMANN, J. filed a separate
opinion, dissenting in part, concurring in part, and concurring in the
result
in which BAKER, J., joined.
Counsel
For
Appellant: Captain Fansu Ku
(argued); Colonel
Robert D. Teetsel and Lieutenant
Colonel Mark Tellitocci (on brief); Lieutenant
Colonel E. Allen
Chandler, Jr.
For Appellee:
Captain Michael D. Wallace (argued); Colonel
Lauren B. Leeker, Lieutenant
Colonel Margaret
B. Baines, and Lieutenant Colonel Virginia G. Beakes
(on brief).
Military
Judges: R. J. Hough and P. J. Parrish.
THIS OPINION IS SUBJECT TO
EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
Chief Judge
CRAWFORD delivered the opinion of
the Court.
Contrary to his pleas,
Appellant was convicted of conspiracy, premeditated murder, larceny,
and
kidnapping, in violation of Articles 81, 118, 121, and 1341. The convening authority
approved the sentence of confinement for life, a dishonorable
discharge, total
forfeitures, and reduction to the lowest enlisted grade.
The Army Court of Criminal Appeals affirmed
the findings and sentence in an unpublished opinion.
This Court subsequently granted review of the
following issues:
I.
WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN NOT SUPPRESSING
APPELLANT’S
PRETRIAL STATEMENTS TO ARMY INVESTIGATORS.
II.
IF APPELLANT’S PRETRIAL STATEMENTS SHOULD HAVE BEEN SUPPRESSED (ISSUE
I),
WHETHER THE REMAINING EVIDENCE IS LEGALLY SUFFICIENT TO SUPPORT
FINDINGS OF
GUILTY TO ALL CHARGES AND SPECIFICATIONS.
III.
WHETHER PORTIONS OF APPELLANT’S STATEMENTS TO ARMY INVESTIGATORS WERE
UNCORROBORATED, AND, IF SO, WHETHER THE MILITARY JUDGE ERRONEOUSLY
PERMITTED
THE PANEL MEMBERS TO CONSIDER THE PERTINENT PORTIONS OF APPELLANT’S
STATEMENTS
REGARDING THE CHARGE OF LARCENY.
IV.
WHETHER THE EVIDENCE IS LEGALLY SUFFICIENT TO SUPPORT A FINDING OF
GUILTY TO
THE CHARGE THAT APPELLANT STOLE PFC CHAFIN’S WALLET.
V.
WHETHER THE EVIDENCE IN THIS CASE IS LEGALLY SUFFICIENT TO SUPPORT A
FINDING TO
THE CHARGE THAT APPELLANT KIDNAPPED PFC CHAFIN.
For the
reasons set forth below, we affirm the findings and
sentence.
FACTS
On
the evening of
While
driving,
Appellant
and
Upon watching the local media
coverage of Chafin’s murder, Appellant’s
wife, Wendy,
realized that on the night of the murder, Chafin
was
in her apartment in the company of her husband and
Wendy
told Graham that during the 1997
Labor Day weekend, there was a young man in her apartment whom she had
not seen
before and whom she subsequently realized was Chafin. She stated that Chafin
was very drunk, and that Appellant and
Over the next several months,
she became suspicious because of various events. She
overheard Appellant say to
Wendy
also described a telephone call
between Appellant and his parents, during which she overheard Appellant
stating
that “he had done something very bad that was possibly going to get him
the
death penalty.” Wendy further noted to
Graham that while she and Appellant watched a movie in which two
detectives
treated a suspect rudely, Appellant said to her, “You know if someone
ever
treated me like that, I would kill them.”
Wendy responded to the effect, “Well you know you can’t do
that,” to
which he replied, “Well, I already have gotten away with it.”
Finally,
Wendy told Graham that Appellant
on several occasions asked her to lie to authorities if ever she were
questioned, by saying that Chafin was not
in their
home on the night of the murder. He told
her: “Do you remember that night that [
A.
First
Questioning of Appellant
After
speaking with Wendy Seay, Detective Graham
went to
Appellant’s residence. He told Appellant
he was investigating the murder of Jason Chafin
and
asked if Appellant would “be willing to come to the police operation
center for
an interview.” Appellant agreed, and
because Appellant’s car was out of commission, the police gave him a
ride to
the police station. Upon Appellant’s
arrival at the station, the police informed him of his rights, which
Appellant
waived. When Graham indicated to
Appellant that
B.
Second
Questioning of Appellant
After
Detective Graham returned to his
office, he decided to have Wendy make recorded “pretext phone calls” to
Appellant, in the hopes of obtaining a confession.
As a courtesy, Graham called Special Agent
Chris Barone of the Army Criminal
Investigations
Command (CID) to inform him of Wendy’s implication of Appellant and the
planned
pretextual calls.
Graham invited both Barone and CID
Special
Agent Martinez to observe the calls.
Although Graham set the ground rules for the pretextual
phone calls, Barone and
Pursuant
to this plan, Wendy used a phone
at the Colorado Springs Police Department office to call Appellant
three times
at his apartment, over the course of three hours. Despite
Wendy’s persistent inquiries, Appellant
did not confess to the murder. Instead,
Appellant stated that he wanted to talk to Wendy face to face and
during the
telephone conversations, he made the following statements to her about
obtaining a lawyer:
Appellant
asked Wendy to call him back after the first call ended.
After the last call, Wendy was videotaped to
recount what occurred during the conversations.
Both local and military authorities agreed at that point that
the CID
should take over the investigation entirely, which it did.
C.
Third
Questioning of Appellant
Concerned
for Wendy’s safety, the CID
suggested she meet with Appellant in the CID office rather than at her
home. Wendy called Appellant from the
CID office, and he agreed to meet her there.
Appellant arrived approximately 20 minutes later, at around
After
the conversation ended,
DISCUSSION
Issue
I. Admissibility
of Appellant’s Confession
The
Supreme Court has held that a
subsequent administration of rights warnings may remove the taint when
a
suspect has already given an unwarned but uncoerced
statement. Appellant invoked his right
to remain silent before returning to his home following a warned
non-custodial
interrogation by civilian police. During
several pretextual and unwarned telephone
calls from
his spouse (acting at the request of civilian and military law
enforcement
officers engaged in a joint investigation), Appellant then made several
references as to whether he should get a lawyer. Appellant
subsequently presented himself to
military authorities, waived his rights after receiving a cleansing
warning,
and confessed to Chafin’s murder. The question before us is whether Appellant’s
confession is admissible. We conclude
that under the facts of this case, Appellant’s confession was properly
admitted
into evidence.
“A
military judge’s
decision
to admit or exclude evidence is reviewed for an abuse of
discretion.”3 “A military judge abuses
his discretion
when his findings of fact are clearly erroneous, when he is incorrect
about the
applicable law, or when he improperly applies the law.”4
The
Fifth Amendment in pertinent part
guarantees that no suspect “shall be compelled in any criminal case to
be a
witness against himself.” The Supreme
Court has interpreted the Fifth Amendment privilege against
self-incrimination
to encompass two distinct rights: the right to silence and the right to
counsel
specifically during pretrial questioning.5 The privilege
against self-incrimination is
further protected by Articles 27 and 316
and Military Rules of Evidence [hereinafter M.R.E.] 305(e) and 305(f).
Given
the inherently compelling pressures
of custodial police interrogation, the Court enunciated the
requirement, in
pertinent part, that “if a person in custody is to be subjected to
interrogation,
he must first be informed in clear and unequivocal terms that he has
the right
to remain silent,”7
and “has the right to consult with a lawyer and to have the lawyer with
him
during interrogation.”8 Even after Miranda
warnings are given
and waived, a suspect may change his mind during questioning and assert
these
rights. The Supreme Court in Miranda
twice emphasized that if the suspect invokes the right to remain silent
or the
right to speak to a lawyer, “the police may not question him.”9
Addressing
the concern that the warning
requirements would interfere with lawful police investigations, the
Supreme
Court cited the rights warnings required under Article 31(b) since the
adoption
of the Uniform Code of Military Justice in 1951.10 Under Article
31(b):
No person subject to this chapter may
interrogate, or request any statement from an accused or 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.
In
United States v. Tempia,11 the military
explicitly adopted the Miranda
warning requirements.
Amplifying
Miranda as to a suspect’s
right to silence, the Supreme Court in Michigan v. Mosley,12 stated:
We
therefore conclude that the admissibility of statements obtained after
the
person in custody has decided to remain silent depends under Miranda
on
whether his “right to cut off questioning” was “scrupulously honored.”13
As
to a suspect’s right to counsel in a Miranda context, the
Court in Edwards
opined:
[W]hen an
accused has invoked his right to have counsel present during custodial
interrogation, a valid waiver of that right cannot be established by
showing
only that he responded to further police-initiated custodial
interrogation even
if he has been advised of his rights. We
further hold that an accused . . . having expressed his desire to deal
with the
police only through counsel, is not subject to further interrogation by
the
authorities until counsel has been made available to him, unless the
accused
himself initiates further communication, exchanges, or conversations
with the
police.14
While
Mosley protects the right to remain silent, Edwards
protects the
right to counsel. The “scrupulously
honored” test in Mosley differs from Edwards because
under Edwards
the accused must initiate further communications or exchanges with
police. Both Mosley and Edwards
were
adopted in M.R.E. 305(e) and (f).
Appellant’s
numerous references to counsel
did not affect Appellant’s confession because Appellant did not make an
unambiguous request for counsel.15 Appellant’s
references to counsel did not
occur during the custodial interrogation.16
We
hold that even assuming Appellant’s
Fifth Amendment rights, Article 31(b), and the Military Rules of
Evidence were
violated by the authorities’ continued interrogation of Appellant
despite his
invocation of the right to silence during the first questioning, the
failure to
provide Appellant appropriate rights warnings during the pretextual
phone calls, and the failure to terminate the pretextual
phone calls,
Appellant’s eventual confession was untainted. The Supreme Court has recognized that
[a]
subsequent administration of [rights] warnings to a suspect who has
given a
voluntary but unwarned statement ordinarily should suffice to remove
the
conditions that precluded admission of the earlier statement. In such circumstances, the finder of fact may
reasonably conclude that the suspect made a rational and intelligent
choice
whether to waive or invoke his rights.17
Accordingly,
in United States v. Marquardt18
this Court held that subsequent rights warnings may effect a “purging
of the
taint” from prior unwarned statements.19
Appellant’s
confession did not derive from
either the initial interview by Detective Graham, or the pretextual
phone calls which followed. In fact, no
statements from Appellant’s first or second questioning were admitted
into
evidence at trial. Rather, Appellant
confessed to Chafin’s murder on a third
occasion,
after having voluntarily driven to the CID office and met with his wife. Immediately prior to Appellant’s confession
on this occasion, Mrs. Seay was removed
from the room
and a CID agent administered new rights warnings, as well as a
“cleansing
warning” advising Appellant that the CID would not use against
Appellant
anything Appellant had previously said.
After receiving these warnings, Appellant waived his rights, and
only
then gave his voluntary confession.
In
short, immediately prior to Appellant’s
confession, “[h]e was thus reminded again that he could remain silent
and could
consult with a lawyer, and was carefully given a full and fair
opportunity to
exercise these options.”20 Appellant
waived those rights anew, and in so
doing created a clean slate for his confession.
Because
Appellant’s confession was
untainted by prior events, the military judge did not abuse his
discretion in
admitting the confession into evidence at trial. As
a result of this conclusion, Issue II
becomes moot.
Issues III and IV. Appellant’s
Conviction of Larceny of PFC Chafin’s
Wallet
Issues III and IV
concern Appellant’s conviction of larceny of PFC Chafin’s
wallet, alleged in Charge IV.
Appellant’s written confession contained the following exchange
as to
the wallet:
Q: What happened to CHAFIN’s
wallet?
A: At the time CHAFIN was stabbed, it was in his
pocket.
Q: What did
A: I saw him go through the wallet and take out
some money. I don’t remember how much
but there was a lot. He gave me some of
the money but I don’t remember how much it was.
Q: Where did
A:
I don’t remember. It was somewhere
before we got back to town.
CID
Special Agent Barone testified
that a wallet was not found among Chafin’s
effects
during a postmortem inventory.
Appellant first avers
that the military judge improperly admitted into evidence Appellant’s
uncorroborated confession as to the larceny charge.
Appellant further contends that even if his
confession were admissible, the evidence of larceny of Chafin’s
wallet is insufficient, as the only evidence to support Appellant’s
statement
that his accomplice,
“An admission or a
confession of the accused may be considered as evidence against the
accused on
the question of guilt or innocence only if independent evidence, either
direct
or circumstantial, had been introduced that corroborates the essential
facts
admitted to justify sufficiently an inference or their truth.”21
The
corroboration requirement for admission of a confession at
court-martial does
not necessitate independent evidence of all the elements of an offense
or even
of the corpus delicti of the offense. Rather, the corroborating evidence must raise
only an inference of truth as to the essential facts admitted. Moreover, while the reliability of the
essential facts must be established, it need not be done beyond a
reasonable
doubt or by a preponderance of the evidence.22
Both M.R.E. 304(g)
and Cottrill set forth a very low
standard. It is not necessary for the
members to conclude that Chafin carried a
wallet. The issue is whether the facts
justify the inference as to the truth of the confession:
Appellant and the other person named in the
confession were seen with the victim shortly before he disappeared; the
victim
died as a result of foul play; the victim’s body was found in a
concealed
place; the post-mortem revealed no wallet; and no wallet was ever found. For the purposes of corroborating a
confession, there is no requirement that the members conclude beyond a
reasonable doubt, or even by a preponderance of the evidence, that the
corroborating facts alone (i.e., without the confession) establish that
this
victim, in fact, carried a wallet at the time of death; rather, the
rule simply
requires a presence of facts that enable the members to infer the truth
of the
essential facts in the confession. When
a person confesses to participation in the larceny of a wallet, it is
reasonable to infer the truth of the confession from the fact that the
victim
named in the confession knew the Appellant, died as a result of foul
play, was
found in a concealed place, and did not have a wallet at the time or
thereafter. We therefore hold that these
reasonable inferences adequately corroborated Appellant’s confession,
and we
therefore find no merit in Issue III.
Regarding Issue IV, we also hold that the properly corroborated
confession adequately established the essential elements of larceny
beyond a
reasonable doubt to support Appellant’s larceny conviction.
Issue V.
Appellant’s Conviction of Kidnapping PFC Chafin
Finally, Issue V
questions the legal sufficiency of the evidence supporting Appellant’s
kidnapping conviction. For the following
reasons, we hold that the evidence was legally sufficient to support
Appellant’s kidnapping conviction.
As noted above, “[t]he
test
for legal sufficiency of the evidence is whether, ‘after
viewing
the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found
the essential elements of
the crime beyond a reasonable doubt.’”23
This Court reviews questions of legal sufficiency de novo.24
The Uniform Code of
Military Justice punishes kidnapping as an offense to the prejudice of
good
order and discipline or of a nature to bring discredit to the armed
forces,
under Article 134. The Manual for
Courts-Martial [MCM] lists the elements of kidnapping as follows:
(1) That the accused seized, confined,
inveigled, decoyed, or carried away a certain person;
(2) That the accused then
held such person
against that person’s will;
(3) That the accused did so
willfully and
wrongfully; and
(4) That, under the
circumstances, the
conduct of the accused was to the prejudice of good order and
discipline in the
armed forces or was of a nature to bring discredit upon the armed
forces.25
To
determine whether the asportation –
or the “carrying away”26 – of an individual is more than an
incidental or momentary detention, this Court considers the following
factors:
a.
The occurrence of an unlawful seizure, confinement, inveigling,
decoying,
kidnapping, abduction or carrying away and a holding for a period. Both elements must be present.
b. The duration thereof. Is it
appreciable or de minimis? This determination is relative and turns on
the established facts.
c. Whether these actions occurred during the commission of a separate
offense.
d. The character of the separate offense in terms of whether the
detention/asportation is inherent in the
commission of that kind of
offense, at the place where the victim is first encountered, without
regard to
the particular plan devised by the criminal to commit it. . . .
e. Whether the asportation/detention
exceeded that
inherent in the separate offense and, in the circumstances, evinced a
voluntary
and distinct intention to move/detain the victim beyond that necessary
to
commit the separate offense at the place where the victim was first
encountered. . . .
f. The existence of any significant additional risk to the victim
beyond that
inherent in the commission of the separate offense at the place where
the
victim is first encountered. It is
immaterial that the additional harm is not planned by the criminal or
that it does not involve the commission of another offense.27
In the case at bar,
Appellant’s confession, which the military judge found to be voluntary
and
credible, and the forensic evidence of the murder, including Chafin’s body and the crime scene itself, establish the following.
While Chafin was seated as a
passenger in
Appellant’s truck, en route to a remote location several miles from
Appellant’s
apartment, Appellant strangled Chafin from
behind
with a cord, thereby confining Chafin and
holding him
against his will in the truck. When Chafin attempted to flee from the truck,
We therefore hold that
a reasonable trier of fact could find
beyond a
reasonable doubt that the elements of kidnapping were satisfied: that
Appellant
confined Chafin and held him against his
will in the
truck, that Appellant did so willfully and wrongfully, and that this
conduct was
prejudicial to good order and discipline in the military, as well as
service-discrediting.
DECISION
The decision of the
United States Army Court of Criminal Appeals is affirmed.
1 Uniform
Code of
Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 881, 918, 921, and
934
(1994).
2 UCMJ,
10 U.S.C. §
831(b) (1994).
3
4
5 Davis
v.
6 UCMJ,
10 U.S.C.
§§ 827 and 831 (1994).
11 16
C.M.A. 629, 37
C.M.R. 249 (1967).
14
16 United States v.
Schroeder,
39 M.J. 471, 474 (C.M.A. 1994)(“[A]ppellant’s
request was too little and too early to qualify as an invocation of Miranda
under applicable Supreme Court precedent.”).
See generally People v. Villalobos, 737 N.E.2d
639, 642-46
(
17
19
20 Mosley, 423
22 United
States
v. Cottrill, 45 M.J. 485, 489
(C.A.A.F. 1997)
(internal citations omitted).
23 United
States
v. Riley, 58 M.J. 305, 311 (C.A.A.F. 2003) (quoting Jackson, 443
26 Black’s Law Dictionary
109 (7th ed.
1999) (defining “asportation”).
27 United States v. Santistevan, 22 M.J. 538, 543 (N.M.C.M.R.
1986)
(internal citations omitted); see also United States v. Newbold, 45 M.J. 109, 112 (C.A.A.F. 1996)
(endorsing Santistevan factors).
ERDMANN,
Judge (dissenting in part, concurring in part and
concurring in the result):
I concur
with the majority on Issues I, II and V.
I respectfully dissent from their resolution of Issues III and
IV. I find no corroboration of the
confession to
larceny and would reverse the Army Court of Criminal Appeals on Issue
III,
rendering Issue IV moot.
The corroboration requirement for
admission of a confession at court-martial requires independent
evidence which
establishes the trustworthiness of the confession.1 The purpose of the
corroboration rule “is to prevent ‘errors in convictions based upon
untrue
confessions alone’ or suspect convictions based upon words which might
‘reflect
the strain and confusion’ caused by ‘the pressure of a police
investigation.’”2
Although we have described the
quantum of independent evidence required for corroboration as “slight,”3 Military Rule of Evidence 304(g)(1)
still requires that it be sufficient to raise an inference of the truth
of the essential
facts admitted. “Slight”
in this context does not mean the barest wisp of possibility. An inference of truth is raised only when "there is substantial independent
evidence that the offense has been committed."4 Here, there is simply no
independent
evidence, substantial or otherwise, that a larceny has been committed.
The
majority opinion
concludes that Seay’s
confession to larceny of Chafin’s
wallet was sufficiently corroborated, but base that conclusion
on a
skein of inferences that arise from facts unessential to the offense of
larceny:
When a person confesses to participation in the larceny of a
wallet, it is reasonable to infer the truth of the confession from the
fact
that the victim named in the confession knew the Appellant, died as a
result of
foul play, was found in a concealed place, and did not have a wallet at
the
time or thereafter. We therefore hold
that these reasonable inferences adequately corroborated Appellant’s confession[.]
Relying on these inferences as independent evidence, the majority opinion stretches the corroboration requirement beyond the breaking point. The corroboration rule requires independent evidence upon which inferences can be drawn, not inferences which substitute for evidence. Apart from the confession itself, no evidence suggests that Chafin ever possessed a wallet at all, much less that he was carrying one at the time of his murder.
The
majority opinion notes that “[i]t is not
necessary
for the members to conclude that Chafin
carried a
wallet.” However, without evidence that Chafin possessed a wallet, we can give no weight
to the
fact that no wallet was found. There is
no fact from which the essential truth of the confession may be
inferred: i.e., that a wallet was
stolen.
We have previously held that there was insufficient corroboration to illegal drug use where independent evidence showed only that the appellant had the opportunity to ingest illegal drugs and was with friends who had previously used illegal drugs.5 Similarly, we have found insufficient corroboration to child abuse where independent evidence showed only that the accused parent had access and opportunity.6 In this latter case, United States v. Faciane, we noted that “[a]lthough the Government argues that appellant's exclusive custody of the child establishes that he had access and the opportunity to abuse her, we are unwilling to attach a criminal connotation to the mere fact of a parental visit.”7
The fact
that the victim’s body was found in a concealed place, that he died as
the result
of foul play, that he knew Seay, and that
a wallet
was not found with the body is simply not enough to “corroborate[]
the essential facts [of the larceny] to justify sufficiently an
inference of
their truth.”8
Lacking substantial independent evidence
that a larceny was committed, the military judge erred by admitting Seay’s confession to the larceny as evidence
against him.
I would
therefore reverse the decision of the Court of Criminal Appeals as to
Issue III
and set aside Seay’s conviction for
larceny, thus
mooting Issue IV. Nonetheless, because Seay’s sentence would be unaffected by this
change as a
result of his mandatory minimum life sentence for premeditated murder,9 I concur in the result.
1
2 United
States v. Yeoman,
25 M.J. 1, 4 (C.M.A. 1987)(quoting Smith
v.
4 United
States v. Melvin, 26 M.J. 145, 146 (C.M.A. 1988) (quoting Smith
v.
United States, 348
5
6
8 Military
Rule of
Evidence 304(g).
9 Article 118, Uniform Code
of Military Justice, 10 U.S.C. § 918
(2000).