Here’s a link to CAAF’s opinion in United States v. Delarosa, __ M.J. __, No. 08-0390/NA (C.A.A.F. May 6, 2009). Chief Judge Effron wrote for the majority affirming the Navy-Marine Corps Court. Judge Erdmann dissented. The majority held that Petty Officer Delarosa’s confession to civilian law enforcement authorities was properly admitted.
Petty Officer Delarosa was suspected of killing his infant son. Interestingly, he was initially tried in a Virginia court where the judge suppressed his confession. See id., slip op. at 7. He was later tried by the military, where the military judge, the Navy-Marine Corps Court, and now CAAF all ruled that his confession was admissible.
The day after Delarosa’s son died, he went to a Norfolk police station, where he was questioned by detectives. He indicated that he wanted to speak with the detectives. The detectives told him he must first identify his son’s body and be advised of his rights. During the rights advice process, Delarosa repeatedly interrupted to say he wanted to talk to the detectives. But after indicating on the rights advisement form that he understood his rights, Delarosa wrote “NO” next to this block: “I further state that I waive these rights and desire to make a statement.” He then wrote “N/A” next to this block: “This statement is completely free and voluntary on my part without any threat or promise from anyone.” When the detectives expressed their confusion as to why Delarosa had written “NO” on the waiver block when he had expressed a desire to speak about his son’s death, Delarosa indicated that he wanted to talk to the detectives but wanted a command representative present. A detective told him that a command representative wouldn’t be allowed to be present, but reiterated that Delarosa had a right to counsel. Delarosa didn’t request a lawyer, but reiterated his request for a command representative. The detectives then left the room and told Delarosa to review the rights advisement form and knock on the door when he had made a decision.
About 35 minutes later, one of the detectives returned to the interrogation room to ask Delarosa if he would take a polygraph. About two hours later, when one of the detectives was accompanying Delarosa on a head call, Delarosa learned that his wife was at the station and about to be polygraphed. Delarosa then said he wanted to talk to the detectives about his son’s death. The detective said they couldn’t speak with him because of his “No” answer on the rights advisement form. Delarosa responded that he had been confused and he now wanted to waive his rights and take a polygraph. The detectives later readvised Delarosa of his rights. This time, he answered that he wanted to waive his rights. During a post-polygraph interrogation, he made self-incriminating statements that were then used against him at his court-martial, over his objection.
The issue central to CAAF’s decision was whether Delarosa had ever unequivocally invoked his Miranda rights. CAAF concluded that he had not. CAAF reasoned, “In light of Appellant’s repeated statements reflecting an intent to cooperate, Appellant’s ‘NO’ response on the rights advisement form was ambiguous.” Id., slip op. at 19. Because Delarosa didn’t unequivocally invoke his Miranda rights, there was no constitutional requirement for the detectives to stop questioning him. Id., slip op. at 20. CAAF also held that Delarosa’s decision to make incriminatory admissions was voluntary, knowing, and intelligent. Id., slip op. at 21.
Judge Erdmann concluded that Delarosa unambiguously invoked his right to remain silent: “Upon determining that Delarosa would not waive his right to remain silent unless a command representative was present, and since police policy would not allow that presence, the detectives had the necessary clarification and Delarosa’s invocation was unambiguous.” Following that unambiguous invocation, Judge Erdmann concluded, the detectives failed to scrupulously honor it.