Gardinier was suspected of inappropriately touching his five-year-old daughter. A detective from the El Paso County, Colorado sheriff's office asked Gardinier to come in for questioning, which he did. The detective also invited a CID agent to watch. The detective read Gardinier his Miranda rights at two points and questioned him while the CID agent observed from another room. At both points when he was advised of his Miranda rights, Garndinier readily waived them. The CID agent then questioned Gardinier, but without first providing Article 31 warnings. During the interview, Gardinier made a written statement. The interview was also videotaped. Four days later, the CID agent called Gardinier to the CID office and told him he would like to question him again because the first questioning might have not have been preceded by a proper rights advisement. Gardinier was not informed that his first statement to the CID agent would be inadmissible in court. But this time the agent did provide Article 31 warnings.
At trial, the defense moved to exclude both statements. The military judge admitted both. While he found that the CID agent should have given Article 31 warnings to Gardinier, the military judge concluded that the failure was "harmless error or not prejudicial to the substantial rights of the accused" because the Miranda rights provided by the detective "in substance, advised [him] of all of his rights." Gardinier, slip op. at 6. On appeal, ACCA agreed. United States v. Gardinier, 63 M.J. 531 (A. Ct. Crim. App. 2006).
CAAF concluded that the military judge erred by admitting the first statement to the CID agent. Gardinier, slip op. at 9. CAAF then concluded that the results of the second, properly warned and kinda-cleansed interrogation were properly admitted. Gardinier, slip op. at 11.
CAAF also concluded that the five-year-old daughter's statements to a nurse were testimonial hearsay that were admitted in violation of Crawford v. Washington, 541 U.S. 36 (2004). The daughter was sent to a sexual assault nurse examiner after being interviewed by the sheriff's department and human services department. During the interview, the nurse completed a form that included a recitation of the daughter's account of the molestation. This form was admitted at trial. The nurse also testified at trial, over the defense's objection, about the daughter's statements. CAAF concluded that "on balance the evidence tips towards a conclusion that the [daughter's] statements were elicited in response to law enforcement inquiry with the primary purpose of producing evidence with an eye toward trial." Gardinier, slip op. at 14.
ACCA had found that a videotaped interview of the daughter was improperly admitted, but found that error was harmless. CAAF noted that the harmlessness determination may now be different in light of not only the erroneous admission of the videotape, but also the erroneous admission of evidence concerning Gardinier's first statement to the CID agent and the testimony of the sexual assault nurse examiner about the daughter's statements. CAAF therefore remanded the case to ACCA for a new factual sufficiency review and an assessment of whether all of the errors were harmless.
Chief Judge Effron dissented in part, arguing that the second statement given to the CID agent was inadmissible because of Gardinier's statements about his motives for making the statement and the absence of a cleansing warning.
I find the opinion somewhat dissatisfying in its discussion of why the two Miranda warnings and waivers were insufficient to meet Article 31's requirements. Here is ACCA's reasoning on this issue:
Initially, appellant was not specifically informed of his Article 31(b) rights. However, prior to taking the 3 January 2002 written statement, Detective Larsen informed appellant he was being questioned because his daughter had made allegations of sexual misconduct, and further notified appellant of his Miranda rights. See, Miranda, 384 U.S. at 436. The rights warnings and notice regarding the nature of the accusations Detective Larsen gave appellant satisfy the requirements of Article 31(b), UCMJ, and Miranda. See, United States v. Seay, 60 M.J. 73, 77 (C.A.A.F. 2004) (reaffirming the applicability of Miranda to military law as stated in United States v. Tempia, 16 U.S.C.M.A. 629, 640, 37 C.M.R. 249, 260 (1967)).United States v. Gardinier, 63 M.J. 531, 534 n.3 (A. Ct. Crim. App. 2006).
CAAF's discussion of this issue includes a citation to United States v. Rogers, 47 M.J. 135, 137 (C.A.A.F. 1997), where Judge Crawford's opinion for the court sets out a chart comparing Article 31 and Miranda. Gardinier, slip op. at 7 n.2. The only relevant difference in the Gardinier context would be the requirement to advise the suspect of the nature of the offense, which ACCA says was satisfied by the information the detective provided to Gardinier.
CAAF's reversal of the military judge and ACCA on this point appears to be supported by a single sentence in its analysis: "The military judge found that the sheriff’s office was not conducting a joint investigation with the military at the time the civilian detective gave the rights advisement under Miranda." Gardinier, slip op. at 8. But it isn't apparent to me why this one fact should be case dispositive. Could someone flesh out the argument to explain why, if Garndinier was warned in a manner that would satisfy both Miranda and Article 31, he should have to be warned a second time merely because a CID agent continues the questioning that a sheriff's detective began? If CID and the sheriff's office HAD been conducting a joint investigation, then any initial warnings would have had to have satisfied Article 31 for any subsequent statement to have been admissible. See, e.g., United States v. Brisbane, 63 M.J. 106, 111 (C.A.A.F. 2006) ("We have identified . . . at least two instances when civilian investigators working in conjunction with military officials must comply with Article 31: (1) When the scope and character of the cooperative efforts demonstrate that the two investigations merged into an indivisible entity, and (2) when the civilian investigator acts in furtherance of any military investigation, or in any sense as an instrument of the military." (internal quotation marks omitted)). I don't understand why the ABSENCE of a joint investigation suggests that the CID agent had to give a second set of warnings (or, in this context, a third set of warnings). The majority opinion in Gardinier seems to treat that point as if it is intuitively obvious, but I am missing it. Can anyone clarify the point?