In an en banc opinion issued on Friday, the NMCCA finds ineffective assistance of counsel in the failure of a two-attorney defense team to move for suppression of the appellant’s statements to a Marine who questioned the appellant about his consumption of alcohol during a training event in violation of a battalion order. Judge King writes for the majority and explains that:
To be clear, we do not conclude that [the questioner] necessarily had a duty to warn the appellant of his rights under Article 31(b), nor do we hold as a matter of law that the appellant would have been successful had the motion been litigated. Instead, we find that a motion to suppress this case-dispositive evidence had a reasonable probability of success and therefore [trial defense counsels’] failure to litigate the issue is sufficient to undermine our confidence in the outcome of this court-martial.
United States v. Spurling, No. 201400124, slip op. at 12 (N-M. Ct. Crim. App. July 31, 2015) (link to slip op.) (marks omitted).
The appellant – a junior enlisted Marine – was charged with disobeying an order (to not drink alcohol during the training) and making a false official statement (for claiming that he had permission to drink alcohol when he was questioned). A special court-martial composed of members with enlisted representation acquitted the appellant of the orders violation, convicted him of making a false official statement, and sentenced him to reduction to E-1 and a bad-conduct discharge. The convening authority then suspended the bad-conduct discharge.
This is the NMCCA’s second en banc opinion in the case. In the first opinion (discussed in this post), a majority of the CCA found deficient performance by the defense but no prejudice, concluding that a motion to suppress would not have succeeded because the questioner was not acting in an official law enforcement or disciplinary capacity. However, in an action discussed here, CAAF summarily reversed and remanded for consideration in light of its decision in United States v. Jones, 73 M.J. 357 (C.A.A.F. Jul. 21, 2014) (CAAFlog case page). CAAF also took issue with the standard that the NMCCA applied to determine the merit of any motion to suppress.
On remand, the NMCCA again finds deficient performance in the failure of defense counsel to move for suppression (noting, as it did in the first opinion, that “TDC concede that they failed to recognize the issue”). Slip op. at 6-7. But the court reaches a different result regarding the merit of a motion to suppress, focusing its analysis on the second textual predicate of Article 31(b): that rights warnings are only required when a questioner “interrogates or requests any statement.” United States v. Jones, 73 M.J. 357, 361 (C.A.A.F. Jul. 21, 2014) (CAAFlog case page).
Writing for the majority, Judge King finds that:
it is clear that Cpl Brooks [the questioner] was not acting in an operational, safety, or personal capacity. Instead, he saw a crime [violation of the no alcohol order] being committed and he questioned the one he suspected of committing it. While the dissent classifies this questioning as “informal” and only an attempt to “correct this junior Marine’s deficient behavior,” it is at least as reasonable to conclude that Cpl Brooks’ intended to enforce compliance with the order the appellant was violating and then ensure that such violation was reported to the appellant’s immediate superior for action.
Slip op. at 10-11. Judge King also finds that:
That “a reasonable man in the appellant’s position” would have concluded that Cpl Brooks was acting in a disciplinary capacity is also probable.
Slip op. at 11. Considering the dissenting view of Chief Judge Mitchell – who would find that the questioning was informal in nature and did not require a rights advisory – Judge King highlights the fact that the record is unclear on crucial points because the issue was not litigated:
the dissent’s opinion is founded upon the conclusion that the interaction between Cpl Brooks and the appellant was not “disciplinary” but merely a “teachable moment” or simply “informal counseling.” While we allow such a conclusion may be true, we also recognize that it may not. We reiterate that we do not know the answer to that critical question because the issue was not raised and litigated at trial.
Slip op. at 12.