In a published opinion issued yesterday in United States v. Maza, No. 201300297, 73 M.J. 507 (N-M.Ct.Crim.App. Jan. 22, 2014) (link to slip op.), the NMCCA grants a Government interlocutory appeal of a military judge’s mid-trial ruling that suppressed the accused’s confession in light of CAAF’s decision last term in United States v. Hutchins, 72 M.J. 294 (C.A.A.F. 2013) (CAAFlog case page). The military judge determined that CAAF created a new per se rule in Hutchins. But the CCA concludes otherwise.

In Hutchins, CAAF applied the rule of Edwards v. Arizona, 451 U.S. 477, 484-85 (1981), in which the Supreme Court explained that once an accused has “expressed his desire to deal with the police only through counsel, [he] 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.” A few years later, in Oregon v. Bradshaw, 462 U.S. 1039, 1045 (1983), the Court distinguished between communications that would lead to a “generalized discussion relating directly or indirectly to the investigation,” which constitute a reinitiation of the interrogation and are the focus of the Edwards rule, and mere “inquiries or statements, by either an accused or a police officer, relating to routine incidents of the custodial relationship,” (like a request for a drink of water) which are not a reinitiation.

This rule is codified as Military Rule of Evidence 305(e)(3), though you will find it as M.R.E. 305(g)(2)(B) in your 2012 Manual for Courts-Martial, because the 2012 MCM doesn’t include the 2013 change to the M.R.E. (I posted a PDF of the changes here, and I discussed how the changes were only stylistic in this post).

In Hutchins, CAAF determined that the Government had improperly re-initiated communication leading to a confession that was used at trial, and CAAF reversed the convictions including a conviction for unpremeditated murder (see my opinion analysis for a full discussion).

In Maza (a sexual assault case), the accused was interrogated by military law enforcement agents at their base office. The accused invoked his right to counsel and questioning ceased. He also refused to consent to seizure of his DNA or a search of his residence and cell phone. An agent then told the accused that he would have to remain at the office while the investigator obtained a search authorization from the base magistrate, and that the accused would be “booked” after that and would then have to be picked up by his command. The agent’s “purpose for telling the accused all the things that would be transpiring while the accused remained in the interview room was to give the accused an understanding why he was going to be sitting in the room for an extended period that day.” Slip op at 6 (quoting the military judge’s ruling).

Subsequently, [the agent] departed the interview room, leaving the accused alone. While sitting alone in the room, the accused decided that he would seek out [the agent] and talk to him about the allegations. As established by his testimony on the Defense’s original motion to suppress his statements to [the agent], the accused’s purpose in doing so was to distract [the agent] from his efforts to search his cell phone, as the accused had previously had embarrassing pictures of himself on the phone. The accused was concerned that if his phone was forensically analyzed, these embarrassing photos could be retrieved.

Approximately 15 to 30 minutes after [the agent] departed, the accused stepped out of the interview room and informed [a different] agent whom the accused encountered, that he had changed his mind and now wanted to talk to [the original agent] about the allegations.

Maza, slip op. at 6 (quoting the trial military judge’s ruling). The accused was the re-advised of his rights, waived his rights, and made incriminating statements. In a pretrial motion:

The Defense moved to suppress the confessions, but the military judge denied the motion, concluding that “the appellee was not interrogated within the meaning of Rhode Island v. Innis, 446 U.S. 291, 301 (1980), and that the appellee initiated the communication that ultimately led to his waiver under [M.R.E. 305]. The military judge focused on the facts surrounding who “initiated further communication” as defined in Edwards. He concluded that the appellee initiated the communication with CID and therefore no Edwards violation occurred.

Slip op. at 7 (citations to record omitted). The case then went to trial in June 2013, but during that trial CAAF decided Hutchins. Here’s what happened next:

Believing that Hutchins may affect the appellee’s prior unsuccessful motion to suppress, the military judge sua sponte directed both parties to address the potential impact of the holding in Hutchins. In response, the appellee submitted a renewed motion to suppress his oral and written statements. Additionally, the appellee, for the first time, moved to suppress his DNA sample arguing that following his oral and written statements to CID agents, his consent to the agents taking a buccal swab was involuntary.

On 10 July 2013, the military judge reconsidered his prior ruling and concluded that Hutchins expanded the Edwards per se rule to prohibit law enforcement from engaging with an accused post-invocation of counsel in any “‘communication, exchange, or conversation’ that may . . . lead to further interrogation.” As a result, the military judge suppressed the appellee’s oral and written statements to SA KS. Additionally, the military judge suppressed the appellee’s DNA sample taken from the buccal swab as derivative evidence of his suppressed statements.

Slip op. at 2-3. The Government then appealed.

The CCA “conclude[s] — as did the military judge in his original ruling — that the appellee himself initiated further communication with SA KS and that the appellee knowingly and intelligently waived his previously asserted right to counsel. Accordingly, we hold that the military judge erred in suppressing the appellee’s statements based on his erroneous belief that the holding in Hutchins compelled such a result.” Slip op. at 11.

The CCA considers the creation and evolution of the Edwards rule, and it concludes that the agent’s request for consent to search and his explanations about what would happen next, both made after the accused invoked his right to counsel, did not constitute an interrogation. The court then considers whether the accused next initiated communication with the agents, concluding that he did initiate the communication.

But the CCA also conducts an almost line-by-line analysis of Hutchins, because it “must evaluate the military judge’s determination that Hutchins created a new per se rule that mandated suppression of the appellee’s oral and written statements.” Slip op. at 20. The CCA explains that:

the military judge focused on the following sentence from Hutchins:

The Edwards rule does not merely prohibit further interrogation without the benefit of counsel, it prohibits further “communication, exchanges, or conversations” that may . . . lead to further interrogation.

Slip op. at 20. The CCA concludes that the trial judge believes that Hutchins prohibited both any communication initiated by law enforcement after a request for counsel, and any request for consent to conduct a search, and the CCA rejects both interpretations. I think this the right result, and I agree with the CCA that CAAF’s decision in Hutchins was merely a fact-specific application of existing law and not an expansion. But the opinion in Maza involves a rather tortured five-page analysis of Hutchins that I don’t believe is remotely necessary to resolve this case. See slip op. at 20-25. Rather, there’s an important factual difference between this case and Hutchins that the CCA eventually acknowledges:

Unlike the facts in Hutchins, in which the request for consent to search and Sgt Hutchins’s statement (“is it too late to give my side of the story”) blended into one continuum, here there was a significant break of 15 to 20 minutes between the appellee effectively ending SA KS’s interrogative attempt and the appellee’s subsequent change-of-heart. Cf. Bobby v. Dixon, 132 S.Ct. 26, 31-32 (2011) (per curiam) (holding that based on passage of four hours between Mr. Dixon’s un-coerced yet unwarned statement and his subsequent Mirandized statement, his subsequent statement was admissible and distinguishable from Missouri v. Siebert, 542 U.S. 600, 661 (2004) because in Siebert the “unwarned and warned interrogations blended into one continuum”).

It was during these 15 to 20 minutes — while sitting alone in the interview room — that the appellee unilaterally decided to provide a statement regarding the accusations against him because he had “nothing to hide.” Specifically, the appellee, on his own initiative, left the interview room, found SA G and asked him to locate SA KS and inform him that the appellee now wanted to provide a statement. SA KS again re-advised the appellee of his Article 31(b) rights and the appellee waived his right to counsel and to remain silent. Unlike the unique facts in Hutchins, the record is clear in this case that the appellee — while sitting alone in the interview room devoid of external pressure by law enforcement — decided to initiate further communication with SA KS after his invocation of counsel. That communication “evinced a willingness and a desire for a generalized discussion about the investigation.” Bradshaw, 462 U.S. at 1045-46.20

Maza, slip op. at 26-27 (citations to record omitted).

The CCA also finds four flaws with the military judge’s second ruling that found Hutchins to create a new per se rule barring law enforcement from re-initiating:

First, such an expansion, per se barring SA KS’s request for consent to search — a non-interrogative event — conflicts with subsequent Supreme Court cases interpreting the Edwards rule. . . .

Second, taken to its logical conclusion, virtually any non-interrogative “communication, exchange[], or conversation[],” on the part of law enforcement post-invocation of counsel could create a permanent bar to further interrogation regardless of an accused’s desire to initiate a conversation with law enforcement. . . .

Third, the military judge’s interpretation would significantly dim the clarity of the Edwards rule, which has repeatedly been praised for providing “‘clear and unequivocal’ guidelines to the law enforcement profession.” . . .

Finally, the military judge’s broad application of the Edwards rule would put it at odds with its intended purpose. The purpose of the Edwards rule is to “‘prevent police from badgering a defendant into waiving his previously asserted’” request for counsel. . . .

Slip op. at 27-28. These all strike me as obvious problems with the military judge’s ruling and pretty obvious interpretations of Hutchins, none of which require the tortured analysis.

CAAF might chime in on this case, but I doubt it. CAAF didn’t create new law in Hutchins because it didn’t have to; rather CAAF merely determined that the Government’s communications in that case went too far.

The military judge’s curious decision that CAAF created a broad per se prohibition on continued communication between law enforcement agents and a suspect who requests counsel if that communication “may lead to further interrogation” is rightly rejected. The law enforcement communications at issue in Maza – merely advising the accused of what was going to happen next in his processing – were the sort of communication “relating to routine incidents of the custodial relationship” that the Supreme Court distinguished in Bradshaw as permissible.

2 Responses to “The NMCCA reverses a military judge’s curious application of Hutchins”

  1. J says:

    After CAAF denied reconsideration in Hutchins, why then did the SG request an enlargement in time if this is such a clear cut issue? Asking for more time from the Supreme Court is not something the SG does very often, unless it is an issue under serious consideration. CAAF’s drafting in Hutchins hopefully was sloppy and it is a case specific ruling, which is the language NMCCA appears to have hung its ruling on. Many thought Fosler was case specific but CAAF meant what it said in that ruling. It doesn’t seem likely that CAAF will grant at this stage since the trial can now proceed.

  2. Zachary D Spilman says:

    If CAAF had expanded the Edwards rule in Hutchins, rather than merely applying it to the facts, I think the court would have expressly identified why prior applications of the rule were too narrow (i.e., either SCOTUS got it wrong, or prior military decisions got it wrong), or it would have expressly identified the need for a military-specific expansion. It didn’t do either.