offenses. The accused truthfully answered, "no." Agent W. had the accused's
two previous DA Form 3881's including the one whereon he requested counsel in
the file.
After Agent W. completed the rights advisement, the accused
knowingly and voluntarily waived his rights and admitted that he failed to
state that he did set the civilian's bed on fire.
However, he denied he
intended to kill him. He was merely trying to pay him back for his homosexual
acts by destroying his property.
The Army Court of Military Review (ACMR)
found that the accused's statement of 30 August should have been suppressed as
a violation of Edwards and Minnick, even though the accused was not in
continual custody.
He was released from the custodial interrogation setting
after his statement on 29 July, placed back in a custodial environment on 8
August, released from custody that same day, and returned to custody on 30
August. Should the Grooters situation arise, investigators should consult the
prosecutor before initiating interrogation on different offenses after the
suspect had requested a lawyer.
4. When has a suspect requested counsel? The Minnick and Edwards rule is not
triggered until the suspect has requested counsel.
Remember the case of
Connecticut v. Barrett, 479 US 523, 93LEd2d 920, 107 SCt 828 (1987). There,
the suspect said that he understood his rights and had no trouble talking about
the incident, but said he "would not give a written statement unless his
attorney was present."
The Supreme Court ruled that the suspect's "limited"
request for counsel was "accompanied by affirmative announcements of his
willingness to speak with the authorities." His intentions were clear. They
were also honored by the police. The suspect had not broadly invoked his right
to counsel for all purposes, but simply said he would not make a written
statement without an attorney being present.
Under such facts, the police
could not have sought a written statement from the suspect; indeed, any attempt
to have done so would have been improper. A written statement obtained under
such circumstances would not have been admissible. The police, instead, merely
talked to the individual and obtained an oral statement from the suspect. This
is what he said that he was perfectly willing to do.
a. Compare the Barrett decision with the facts in Smith v. Illinois, 469
US 91, 83 L.Ed.2d 488, 10SSCt 490 (1984).
The issue there was whether the
suspect's initial request for counsel was clear and unambiguous.
The court
explained that the suspect's responses to further interrogation (after he had
requested an attorney) "may not be used to cast doubt on the clarity of his
initial request for counsel." The questioning in that case went as follows:
QUESTION: "Steve, I want to talk with you in reference to the armed robbery
that took place at McDonald's restaurant on the morning of the 19th. Are you
familiar with this?"
ANSWER: "Yeah, my cousin Greg was."
QUESTION: "Okay.
But before I do that, I must advise you of your rights.
Okay? You have a right to remain silent. You do not have to talk to me unless
you want to do so. Do you understand that?"
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