WHETHER (1) THE LOWER COURT ERRED IN ADOPTING A TEST TO DETERMINE WHETHER APPELLANT'S ASSERTION OF HIS RIGHT TO REMAIN SILENT WAS SCRUPULOUSLY HONORED THAT DIFFERS FROM THE TESTS SET FORTH BY THE UNITED STATES SUPREME COURT IN MICHIGAN v. MOSLEY, 423 U.S. 96 (1975) AND UNITED STATES v. WATKINS, 34 M.J. 344 (C.M.A. 1992); AND (2) WHETHER THE LOWER COURT ERRED IN HOLDING THAT THE MILITARY JUDGE CORRECTLY DENIED THE DEFENSE MOTION TO SUPPRESS APPELLANT'S CONFESSION MADE TO THE DETECTIVES AT THE NORFOLK, VIRGINIA, POLICE DEPARTMENT.United States v. Delarosa, __ M.J. ___, No. 08-0390/NA (C.A.A.F. Sept. 4, 2008).
The case involves the death of Petty Officer Delaroas's five-month-old son. The members found him guilty of aggravated assault, while acquitting him of murder, maiming, and another aggravated assault specification.
NMCCA's unpublished decision in the case is available here. It begins inauspiciously by noting that "[t]he appellant's motion for oral argument is denied." Id., slip op. at 2 n.1. Both the majority and the concurring opinions characterize the issue the case presents as one of first impression. WHY would NMCCA reject oral argument in this obviously important case? I wonder what position Code 46 took on the oral argument request. Do any of our readers know?
The opinion then proceeds to adopt a bizarre method of referring to the victim in the case. It first identifies him by name as Petty Officer Delarosa's "5-month-old son, Miguel Delarosa (MD)." It then proceeds to refer to him by his initials. Presumably usually when an appellate decision refers to a victim by his or her initials, it's to protect the victim's privacy. That role isn't really accomplished when the opinion expressly identifies the victim by name. Nor, sadly, is there any need to protect Miguel's privacy since he died. Use of the initials thus becomes a strange dehumanizing shorthand for referring to a person. Again, why? (And for comparison purposes, the opinion identifies the two Norfolk detectives involved in the case only by the first initial of their last name.)
The central issue in the case involves Petty Officer Delarosa's actions when he was filling out a written Miranda advice form at a civilian police station before being interviewed. According to the civilian detectives' account, Petty Officer Delarosa had indicated an eagerness to discuss his son's death with the civilian police detectives. They proceeded to Mirandize him. After writing "YES" next to the questions asking about whether he understood his Miranda rights, Petty Officer Delarosa wrote "NO" next to the block asking if he wanted to waive those rights and make a statement. This left the detectives confused, since they understood that he wanted to make a statement. One of the detectives asked him why he wrote "NO" after saying he wanted to make a statement. Petty Officer Delarosa answered that he wanted to talk about his son's death, but wanted a command representative to be present. The detective responded that he didn't have a right to have a command representative present, but reminded him that he was entitled to consult with a lawyer. The detectives say that Petty Officer Delarosa never asked for a lawyer, but reiterated his request for a command representative to attend the interrogation. According to their testimony, the detectives told Petty Officer Delarosa that based on his answers on the form, they could no longer talk with him. They left him in the interrogation room and told him that if he changed his mind and wanted to talk with them, he should knock on the door.
One of the detectives testified that about 35 minutes later, he opened the door to the interrogation room and asked if Petty Officer Delarosa would be willing to take a polygraph. Petty Officer Delarosa said he would. About two hours later, a detective again opened the door and asked if Petty Officer Delarosa needed anything. He asked to use the bathroom. Petty Officer Delarosa never knocked on the interview door -- which the detectives had told him to do if he changed his mind and wanted to resume the interrogation.
In an exchange that followed Petty Officer Delarosa's request to use the head, he indicated that he wanted to talk to the detectives:
As Detective M was taking the appellant to the bathroom, the appellant asked if he could make a telephone call. Detective M replied that he could, but would have to wait until Detective M was finished with something that he was doing. When the appellant asked what Detective M was doing, the detective said that the appellant’s wife was at the police station and preparing to take a polygraph test. The appellant asked to see his wife and was told that he could after her polygraph test was completed. The appellant then told the detective that he now wanted to talk. Detective M indicated that the appellant would first have to be re-advised of his Miranda rights. The appellant stated that he had been confused about the form and wished to waive his rights and take a polygraph test.Petty Officer Delarosa was readvised of his rights and he waived them all. Before taking a polygraph, he was again advised of his rights and again waived them all. After taking a polygraph, he confessed to having shaken his son, but claimed it was in an attempt to wake him. He denied shaking his son earlier in the evening to try to stop him from crying. He was then reinterrogated and made an audiotaped statement, in which he admitted shaking his son to try to stop him from crying and then shaking him again later to try to wake him up.
In the defense's version of the interrogation, Petty Officer Delarosa expressly asked for a lawyer but was told by one of the detectives that he wouldn't give a "fucking lawyer" to a "baby killer." The military judge in the case, now NMCCA Chief Judge O'Toole, rejected the defense's version of the events and ruled that under the detectives' account, Petty Officer Delarosa's statements were admissible.
Despite Petty Officer Delarosa writing "NO" when asked if he wanted to waive his Miranda rights, both the trial judge and NMCCA ruled that this response was ambiguous in light of his previous indication that he wanted to make a statement. NMCCA continued that once the detectives determined that his willingness to make a statement was contingent upon having a command representative present, they properly stopped their interrogation. NMCCA then phrased the decisional issue in the case as "whether the police 'scrupulously honored' the appellant's right to remain silent when, approximately 35 minutes after he invoked his right to remain silent, they reinitiated contact with the appellant to ask if he was willing to take a polygraph regarding his son's death."
NMCCA then applied the Supreme Court's holding in Michigan v. Mosley, 423 U.S. 96 (1975), and held that the police had scrupulously honored Petty Officer Delarosa's invocation of his right to remain silent.
The court adopted this legal test: "We join the federal circuits in holding that the constitutionality of a subsequent police interview depends not so much on its subject matter or on the length of time between interviews, but rather on whether the police, in conducting the interview, sought to undermine the suspect's resolve to remain silent."
Applying it in this case, the court reasoned that the passage of time before the police reinitiated was not "of primary importance" in answering the decisional issue. NMCCA instead adopted what it called a "flexible approach that takes account of all relevant circumstances." Reviewing the evidence, NMCCA concluded that there was "no evidence of ongoing and repeated efforts to wear down the appellant's resistance."
Judge Couch separately concurred in the result. He observed that CMA's opinion in United States v. Watkins, 34 M.J. 344 (C.M.A. 1992), recognized that "police legitimately may inquire whether a suspect has changed his mind about speaking to them" and that nothing "in the Constitution erects obstacles that preclude police from ascertaining whether a suspect has reconsidered his original decision." Judge Couch characterized the detectives' request to polygraph Petty Officer Delarosa as such an inquiry to determine if he would reconsider his previous invocation of his right to remain silent.
The most significant factor for Judge Couch was that "it is clear from the record the appellant ultimately decided to waive his right to remain silent after he learned that his wife was at the police station to take a polygraph test of her own." Finally, he concluded that Petty Officer Delarosa's ultimate admissions "came after a significant period of time since his invocation of silence."
Regardless of the ultimate outcome, at least CAAF's grant suggests that the final decision will be the product of deliberation following oral argument at which the judges and the parties' counsel can explore the important issues that this case presents.