Martin v. Com.

• Decision Date: 20 November 1979
• Citation: 592 S.W.2d 134
• Parties: Robert E. MARTIN, III, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 134

592 S.W.2d 134

Robert E. MARTIN, III, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Supreme Court of Kentucky.

Nov. 20, 1979.

Jack Emory Farley, Public Advocate, Erwin W. Lewis, Asst. Public Advocate, Frankfort, for appellant.

Robert F. Stephens, Atty. Gen., John F. Zink, Asst. Atty. Gen., Frankfort, for appellee.

LUKOWSKY, Justice.

Martin was convicted of murder and first degree burglary. He was sentenced to consecutive terms of imprisonment of thirty and twenty years. He appeals. We reverse and remand for a new trial.

On December 26, 1977, a 93 year-old-woman was found dead in her home by police summoned by worried friends. She was found on her bed. Her hands and feet were tied. Bed clothing, a throw rug, and newspapers were tied around her head by a bedsheet. The home had been ransacked. Her death was caused by asphyxiation. The autopsy also established the time of death at approximately midnight on Christmas Eve. The woman was last seen alive "before it got too dark" on Christmas Eve. Members of the Madisonville Police Department immediately began their investigation.

On the morning of the 27th one of the investigators received a call from an anonymous informant who told the officer to check out Martin because "he was in town and he was AWOL, and that he had been trying to borrow money from people" and because he knew the deceased, her habits, and her house. The police had not previously obtained information from this informant, nor did they endeavor to verify through U.S. Army channels that Martin was indeed absent without leave from his duty station or that he was listed as a deserter from the army. Nevertheless, the officers began the hunt for Martin immediately.

The chase led them to the apartment of a friend of Martin, but he was not there at the time. The officers returned the morning of the 28th with the express intention of taking Martin into custody:

Q. But you stated earlier in the conversation in the testimony with me, with my questioning, that you fully intended to arrest Robert Martin at that time, didn't you?

A. I fully intended to take him into custody and find out if he was AWOL.

Q. You intended to find out if he was AWOL by taking him into custody?

A. Yes sir. I intended to find out if he was AWOL.

The officers were admitted to the home and proceeded upstairs where Martin was found hiding under a bed. They directed him to come out. According to the officers, Martin asked, " 'Is all you want me for is AWOL?' " while he was getting up, to which the officer replied "Yes" and then read to Martin his "Miranda" rights. Martin was handcuffed and taken to the police station. At the station and at the request of the police, Martin called back to his friend's house and had his leave papers brought to him. The police examined the leave authorization which reflected that Martin's leave expired on November 10.

The police began to question Martin concerning his whereabouts on the 24th and 25th, and he agreed to take a polygraph test the following morning. This period of interrogation lasted approximately 35 minutes. The evidence indicates that the military authorities were not notified promptly that Martin was being held for being AWOL. One of the officers testified the military was notified on the 28th. However, the jailer testified that while it was routine to notify the military when a person was held for them, one of the policemen said, "He may be a suspect in a murder case." When the jailer asked if he should call the military, the officer tacitly declined the offer. Consequently, the jailer made no call. Also, a military representative with the responsibility for apprehending AWOL service members in the Madisonville area stated his normal procedure was to begin his investigation of an AWOL immediately upon receipt of notice of apprehension. His records disclosed that his investigation of Martin's case did not begin until the 29th.

On the morning of the 29th, nearly 24 hours after Martin was arrested, he took a polygraph test. At some time before this examination, a witness had come forward and told the police Martin had said that he had been involved in a caper in which a killing had taken place. After the polygraph the interrogation resumed. Martin was confronted with the name of the witness, and he then made an extensive statement acknowledging he was involved in the burglary and murder. Martin was then "arrested" for the murder and taken before a magistrate, some 28 hours after he was taken into custody.

The cavalier attitude of local law enforcement personnel to limitations on their power is exemplified by the following exchange at the hearing on the suppression of the confession:

Q: Larry, did you make any effort to contact the military authorities?

A: Yes.

Q: When did you do that?

A: When he was in custody.

Q: I noticed several times that you talked about detention and custody and arrest. Have you and other officers, to your knowledge, detained people prior to making an arrest?

A: Sure.

Q: Have you done that in the past, taken people into custody before an actual arrest?

A: Sure.

The crucial issue in this case is whether the use of the confession given by Martin must be denied the Commonwealth as the fruit of a poisonous tree. Federal law requires us to hold that Martin's arrest was illegal, that the confession was a product of that arrest and that the confession should have been suppressed.

Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979) and Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975) clearly establish that the admissibility of a confession does not turn solely upon the Fifth Amendment concept of voluntariness. Proper "Miranda " warnings and voluntariness are merely the " 'threshold requirement' for Fourth Amendment analysis, . . ." Dunaway v. New York, 442 U.S. at 217, 99 S.Ct. at 2259, 60 L.Ed.2d at 839. Therefore, we must first determine if there was indeed an illegal arrest.

The police officers candidly admitted that they set out to take Martin into custody "to see if he was AWOL," and that this was within their authority. On this point, however, they were mistaken. Aside from the fact that the anonymous tip did not give the officers probable cause to believe that Martin was AWOL, they did not have authority to arrest him for that military offense.

At common law civil officers could not arrest upon probable cause for offenses punishable only by court-martial. Kurtz v. Moffitt, 115 U.S. 487, 6 S.Ct. 148, 29 L.Ed. 458 (1885); 5 Am.Jur.2d Arrest sec. 25. Congress first granted civil officers authority to arrest deserters from the armed forces in 1890. That grant is now found at 10 U.S.C. sec. 808:

"Apprehension of Deserters Any civil officer having authority to apprehend offenders under the laws of the United States or of a State, Territory, Commonwealth, or Possession, or the District of Columbia may summarily apprehend a Deserter from the armed forces and deliver him into the custody of those forces." (emphasis added)

The military offense of unauthorized absence or absence without leave, 10 U.S.C. sec. 886, is an offense distinct from but included in the offense of desertion. 10 U.S.C. sec. 885. AWOL is a general intent crime, requiring only a showing that the military member was absent from his duty station and that his absence was without authority. See E. Byrne, Military Law 122 (2d ed. 1976). Desertion on the other hand requires that an additional element be proved, i. e., that the member had formed the specific intent not to return. Michael v. United States, 10th Cir., 393 F.2d 22, 36-37 (1968); Annot. 4 A.L.R. Fed. 746 sec. 2. In civil terms AWOL is the misdemeanor included in the felony of desertion. See United States v. Barber, D.Del., 300 F.Supp. 771 (1969). The clear distinction between these two offenses is not of recent definition. Winthrop, in his treatise on military law, acknowledged the difference 95 years ago. See W. Winthrop, Military Law and Precedents 637-45 (2d ed., 1920 reprint). The debate in the Congress surrounding this grant of authority to civil officers did not include a discussion of unauthorized absence, but rather only the offense of desertion. 21 Cong.Rec. 3083 and 5771.

The opinion in Myers v. United States, 10th Cir., 415 F.2d 318 (1969), on which the trial court relied in holding that 10 U.S.C. sec. 808 grants civil officers the power to arrest AWOL military members, overlooks the distinction between desertion and AWOL. There the court merely states without foundation that section 808 bestows that power. Myers blindly followed a prior case from the same court which interpreted section 808 to permit civil officers "to apprehend Straying members of the Armed Forces and to detain them for delivery into the custody" of the military. Sablowski v. United States, 10th Cir., 403 F.2d 347 (1968) (emphasis added). These opinions paint with too broad a brush. Congress simply did not mention AWOL personnel in section 808 and nothing establishes any congressional intent to include them by implication. Unlike the court in State v. Somfleth, Or.App., 492 P.2d 808 (1972) we decline the opportunity to follow the Tenth Circuit in hearing unuttered words from the mouth of Congress. We hold that civil officers have no authority to arrest members of the armed forces who are merely unauthorized absentees. ¹

Having concluded that the Madisonville Police had no authority to arrest Martin for being AWOL, it is now necessary to determine if the officers had probable cause to "summarily apprehend" him for desertion. "Apprehension is the taking of a person into custody." 10 U.S.C. sec. 807(a). The terms "apprehension" and "custodial arrest" or "arrest" are synonymous in military practice. United States v. Kinane, C.M.A., 1 M.J. 309 (1976). "No person may be ordered into arrest or confinement except for probable cause." 10 U.S.C. sec. 809(d). Therefore, probable cause is a...