
    UNITED STATES, Appellee, v. Specialist Darren R. SMITH, [ XXX-XX-XXXX ], United States Army, Appellant.
    ACMR 8801755.
    U.S. Army Court of Military Review.
    30 March 1990.
    
      For Appellant: Lieutenant Colonel Russell S. Estey, JAGC, Captain Harry C. Wallace, Jr., JAGC (on brief).
    For Appellee: Lieutenant Colonel Daniel J. Dell’Orto, JAGC, Major Gary L. Hausken, JAGC, Captain Jonathan F. Potter, JAGC (on brief).
    Before KUCERA, GILLEY and GIUNTINI, Appellate Military Judges.
   OPINION OF THE COURT

GILLEY, Judge:

Contrary to appellant’s pleas, a general court-martial that included enlisted members convicted the appellant of rape, in violation of Article 120, Uniform Code of Military Justice, 10 U.S.C. § 920 (1982). The convening authority approved the sentence of a bad-conduct discharge, confinement for five years, and reduction to the grade of Private El.

The appellant contends that the military judge erred by admitting into evidence an oral statement made after invoking his right to counsel. We find that the statement was erroneously admitted into evidence, but that the effect was harmless beyond a reasonable doubt.

German police arrested the appellant for suspected drunk driving, and delivered him to Army military policemen. A military policeman, who warned the appellant of his rights, provided this pertinent testimony.

Q: And what did the accused do or say at the conclusion of your reading the rights to him?
A: He claimed that he did not want to waive his rights, and that he did not want to say anything, so I instructed him to check the block that says, “I do not want to say anything”, and sign the non-waiver portion.
Q: Did at any time he indicate to you that he wanted to speak with a lawyer? [sic]
A: No, he didn’t.

The executed form used appears at the Appendix. Interrogation ceased, but minutes later the purported rape victim arrived at the same military police station. A new interrogation began about the alleged rape. The appellant initially waived his rights and denied being with the putative victim that night. That statement was used by the government in its case-in-chief and on cross-examination of the appellant to impeach him.

From that evidence and the entire record, we cannot conclude that the appellant invoked only his right to silence during the first interrogation. The military policeman “instructed” the appellant on which block to check when the appellant said “that-he did not want to waive his rights.” When a request for counsel remains ambiguous, the right to counsel will be considered invoked. See Connecticut v. Barrett, 479 U.S. 523, 107 S.Ct. 828, 93 L.Ed.2d 920 (1987). Thereafter, further interrogation, which produces one like the appellant’s, does not permit an acceptable waiver of the right to counsel, even if the suspected offenses differ. See Arizona v. Roberson, 486 U.S. 675, 108 S.Ct.2093, 100 L.Ed.2d 704 (1988); United States v. Applewhite, 23 M.J. 196 (C.M.A.1987).

Nevertheless, we find the error harmless beyond a reasonable doubt. The appellant testified that he had consensual sexual intercourse with the victim. Evidence that earlier he had denied that, to keep information about his even consensual dalliance from his wife, did not cause the conviction, in our judgment. To the contrary, the unequivocal testimony of the victim and credible corroborating evidence do establish the appellant’s guilt beyond a reasonable doubt. Accordingly, affirmance of the conviction is appropriate. See United States v. Remai, 19 M.J. 229 (C.M.A.1985).

We note that we need not reach the questions of whether the statement of the appellant was admissible merely for impeachment, or whether that possible exception would not apply where the government first introduced the infirm statement in its case-in-chief. See Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971) and Manual for Courts-Martial, United States, 1984, Mil.R. of Evid. 304(b) and (f).

We have considered the issue raised personally by the appellant on 22 March 1990 and it is without merit.

The findings of guilty and sentence are affirmed.

Senior Judge KUCERA and Judge GIUNTINI concur. 
      
      . We publish this opinion because it can be instructive to commanders and investigators. Care must be taken to permit the suspect to record accurately whether invocation of "his rights” includes counsel and silence or merely one of the rights.
     