United States v. Hutchins

• Decision Date: 26 June 2013
• Docket Number: 12-0408
• Court: United States Court of Appeals, Armed Forces Court of Appeals
• Parties: UNITED STATES, Appellee, v. LAWRENCE G. HUTCHINS III, Sergeant U.S. Marine Corps, Appellant Crim. App. No. 200800393

UNITED STATES, Appellee, v. LAWRENCE G. HUTCHINS III, Sergeant U.S. Marine Corps, Appellant

Crim. App. No. 200800393

No. 12-0408

United States Court of Appeals, Armed Forces

June 26, 2013

Jeffrey G. Meeks, Military Judge.

Argued November 13, 2012.

For Appellant: Major S. Babu Kaza, USMC (argued).

For Appellee: Major Paul M. Ervasti, USMC (argued); Colonel Stephen C. Newman, USMC, and Brian K. Keller, Esq. (on brief); Major William C. Kirby, USMC.

ERDMANN, J., delivered the opinion of the court, in which STUCKY, J., and EFFRON, S.J., joined. RYAN, J., filed a separate opinion concurring in the result. BAKER, C.J., filed a separate dissenting opinion.

OPINION

ERDMANN, Judge.

Contrary to his pleas, Sergeant Lawrence G. Hutchins III was convicted by members at a general court-martial of making a false official statement, unpremeditated murder, larceny, and conspiracy to commit larceny, false official statements murder, and obstruction of justice in violation of Articles 107, 118, 121, and 81, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 907, 918, 921, 881 (2006).^[1] The members sentenced Hutchins to reduction to E-1, confinement for fifteen years, dishonorable discharge, and a reprimand. The convening authority approved a sentence of reduction to E-1, confinement for eleven years and a dishonorable discharge.

The United States Navy-Marine Corps Court of Criminal Appeals (CCA) concluded that the military judge had improperly severed the attorney-client relationship with one of Hutchins's defense counsel, set aside the findings and sentence, and authorized a rehearing. United States v. Hutchins, 68 M.J. 623, 624, 631 (N-M. Ct. Crim. App. 2010). The Judge Advocate General of the Navy certified the issue involving the termination of the attorney-client relationship to this court pursuant to Article 67(a)(2), UCMJ, 10 U.S.C. § 867(a)(2) (2006). We reversed the CCA decision holding that while the attorney-client relationship had been improperly severed, Hutchins was not prejudiced. United States v. Hutchins, 69 M.J. 282, 293 (C.A.A.F. 2011). We returned the record of trial to the Judge Advocate General of the Navy for remand to the CCA for further review pursuant to Article 66(c), UCMJ. Id. Upon further review, the CCA affirmed the findings and the sentence as approved by the convening authority. United States v. Hutchins, No. NMCCA 200800393, 2012 CCA LEXIS 93, at *32, 2012 WL 933067, at *12 (N-M. Ct. Crim. App. Mar. 20, 2012) (unpublished).

We granted review to determine whether Hutchins's post-trial rights were influenced by unlawful command influence and whether the military judge erred when he denied the defense motion to suppress Hutchins's statement made to the Naval Criminal Investigative Service (NCIS) after having invoked his right to counsel.^[2] We hold that the NCIS request to Hutchins for his consent to search his belongings reinitiated communication with Hutchins in violation of his Fifth Amendment rights as interpreted by the Supreme Court in Edwards v. Arizona, 451 U.S. 477 (1981), and Oregon v. Bradshaw, 462 U.S. 1039 (1983). We therefore reverse the decision of the CCA, set aside the findings and the sentence, and return the case to the Judge Advocate General of the Navy.^[3]

Factual Background

The charges against Hutchins arose from an incident that occurred in April 2006 while Hutchins was a squad leader in Iraq and his unit was conducting counterinsurgency operations. The CCA summarized the facts of the offenses as follows:

The appellant was assigned as squad leader for 1st Squad, 2nd Platoon, Kilo Company, 3rd Battalion, 5th Marines, assigned to Task Force Chromite, conducting counter-insurgency operations in the Hamdaniyah area of Iraq in April 2006. In the evening hours of 25 April 2006, the appellant led a combat patrol to conduct a deliberate ambush aimed at interdicting insurgent emplacement of improvised explosive devices (IEDs). The court-martial received testimony from several members of the squad that indicated the intended ambush mission morphed into a conspiracy to deliberately capture and kill a high value individual (HVI), believed to be a leader of the insurgency. The witnesses gave varying testimony as to the depth of their understanding of alternative targets, such as family members of the HVI or another random military-aged Iraqi male.

Considerable effort and preparation went into the execution of this conspiracy. Tasks were accomplished by various Marines and their corpsman, including the theft of a shovel and AK-47 from an Iraqi dwelling to be used as props to manufacture a scene where it appeared that an armed insurgent was digging to emplace an IED. Some squad members advanced to the ambush site while others captured an unknown Iraqi man, bound and gagged him, and brought him to the would-be IED emplacement.

The stage set, the squad informed higher headquarters by radio that they had come upon an insurgent planting an IED and received approval to engage. The squad opened fire, mortally wounding the man. The appellant approached the victim and fired multiple rifle rounds into the man's face at point blank range.

The scene was then manipulated to appear consistent with the insurgent/IED story. The squad removed the bindings from the victim's hands and feet and positioned the victim's body with the shovel and AK-47 rifle they had stolen from local Iraqis. To simulate that the victim fired on the squad, the Marines fired the AK-47 rifle into the air and collected the discharged casings. When questioned about the action, the appellant, like other members of the squad, made false official statements, describing the situation as a legitimate ambush and a "good shoot." The death was brought to the appellant's battalion commander's attention by a local sheikh and the ensuing investigation led to the case before us.

2012 CCA LEXIS 93, at *4-*6, 2012 WL 933067 at *2 (paragraph formatting added).

On May 11, 2006, NCIS initiated an interrogation of Hutchins after advising him of his rights in accordance with Miranda v. Arizona, 384 U.S. 436 (1966), and Article 31(b), UCMJ, 10 U.S.C. § 831(b) (2006). Following Hutchins's invocation of his right to an attorney, NCIS properly terminated the interrogation. At that point Hutchins was confined to a trailer under guard where he was held essentially in solitary confinement and was not allowed to use a phone or to otherwise contact an attorney. The Government conceded that these conditions were restriction tantamount to confinement. However, despite the requirements of Military Rule of Evidence (M.R.E.) 305(d)(2) and Rule for Courts-Martial (R.C.M.) 305(f), the Government made no effort to secure an attorney for Hutchins during this period.

After a week of confinement under these conditions, on May 18, 2006, the same NCIS investigator who had interrogated Hutchins on May 11 entered his trailer in the late evening and asked for permission to search his personal belongings. The investigator provided Hutchins with a Permissive Authorization for Search and Seizure form which reminded him that he was still under investigation for conspiracy, murder, assault, and kidnapping. While reading this form, Hutchins asked if the door was still open to give his side of the story. Hutchins consented to the search and signed the form.

The investigator informed Hutchins that he could talk to them but not that night.^[4] The next morning Hutchins was taken to NCIS where he was readvised of his Article 31 rights. Hutchins waived his rights, was interrogated, and subsequently provided a detailed written confession.

Discussion

Introduction:

The Government argues that this case is governed by the holding in United States v. Frazier, 34 M.J. 135, 137 (C.M.A. 1992), that "[a] request for consent to search does not infringe upon Article 31 or Fifth Amendment safeguards against self-incrimination because such requests are not interrogations and the consent given is ordinarily not a statement." We do not take issue with that basic principle and agree that the NCIS request to search Hutchins's personal belongings on May 18 was not an interrogation. The principle set forth in Frazier however, does not end our inquiry. Once Hutchins requested an attorney, under Edwards he could not be further interrogated unless: (1) counsel had been made available; or, (2) Hutchins reinitiated further "communication, exchanges, or conversations." Edwards, 451 U.S. at 484-85. As no attorney was made available to Hutchins, the Edwards inquiry in this case centers on whether, under the circumstances of this case, it was the Government or Hutchins that reinitiated further communication under Edwards and Bradshaw.

Edwards and Bradshaw -- Reinitiation of the Communication:

Since the Supreme Court's decision in Edwards in 1981, it has been clear that:

[A]n 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.

Edwards, 451 U.S. at 484-85 (emphasis added).

There is no disagreement between the parties that Edwards applies to the circumstances of this case. However, the parties differ as to whether NCIS or Hutchins initiated further "communication, exchanges, or conversations." Hutchins argues that the request for consent to search was an initiation of further communication by NCIS in violation of Edwards because it was directly related to the criminal investigation and was not merely incidental to the custodial relationship, citing Bradshaw, 462 U.S. at 1044. The Government responds that, under Frazier, the request for consent to search...