*1 STATES, Appellee, UNITED BRESNAHAN, Specialist,
Richard C. Army, Appellant.
U.S.
No. 04-0559.
Crim.App. No. 20010304. Appeals
U.S. Court of Armed Forces. 4,May
Argued Sept.
Decided
GIERKE, C.J., opinion of delivered the Court, in BAK- which CRAWFORD and J., ER, JJ., ERDMANN, joined. filed a EFFRON, J., dissenting opinion which joined. Appellant: Captain
For L. Pritch- Charles ard, (argued); Mark Jr. Colonel Cremin (on Lieutenant Colonel Mark Tellitocci brief); Major Allyson Cap- Lambert and G. tain Terri Erisman. J. Appellee: Major
For William J. Nelson (argued); T. and Lieu- Colonel Steven Salata (on brief); L. tenant Colonel Mark Johnson Captain Wiggers. E. Edward Judge delivered the Chief GIERKE opinion of the Court.
INTRODUCTION began morning tragedy This on the Austin, baby, three-month-old was shaken so severely that the he sustained led to tragedy during continued his death. The early morning hours after Austin died. His family apart by his father’s was further torn confession, during questioning a civilian detective, police shaken his that he crying.1 granted try stop We the admission review to determine whether at trial was a viola- process rights.2 of his tion due evidence, granted specifically, we to deter- 2. More review 1. Based on this confession and other involuntary Appellant was convicted of man- mine: slaughter, Article Uniform in violation of process Appellant's right Whether to due (UCMJ), § Military Code of (2000). Justice 10 U.S.C. sup- failed to violated when He was sentenced to dishonorable discharge, years, confinement for six forfeiture of allowances, pay pay all and a reduction to grade E-l. trial, Army Court of Criminal requested ex- decision of the At peals. if pert to determine unreliable of the de-
confession was
because
techniques.
interview
tective’s
BACKGROUND
granted
judge denied the
and we
ruling
if
review to determine
was erro-
*3
morning
Thefateful
trial,
Also,
military judge
at
the
neous.3
6, 2000,
morning
Ap-
On the
November
prior injuries Austin
admitted evidence of
wife, Kristen,
pellant and his
were awakened
sustained before his death. The United
baby crying. Kristen
the sound of their
Army
Appeals
con-
States
Court Criminal
brought
got
from his crib and
him
Austin
admitting
judge
cluded the
erred in
him.
back to their bedroom to feed
After
evidence,
uncharged misconduct
but that
him,
feeding
Appellant
Kristen finished
re-
granted
error was harmless.4
review
We
crib,
him
turned Austin to his
laid
on his
analyze
Army
holding.5
Final-
Court’s
stomach,
began patting his back. At this
ly,
military judge
the trial coun-
allowed
point, Appellant noticed that the
sel to cross-examine a defense witness about
breathing.
He told his wife to call 911
two scientific studies that concluded male
paramed-
and he administered CPR until the
caregivers
likely
perpetrators
are more
ics arrived.
Appellant challenges
shaken
cases.
hospital,
the conclusions of those studies as inadmissi-
Austin
was rushed
where
Storm,
doctor,
evidence,
“profile”
emergency
Dr. Mark
room
granted
ble
and we
re-
baby.
tried to resuscitate the
Dr. Storm did
view.6
trauma,
signs
not see
outward
military judge
We hold that the
committed
get any responses
because he could not
no
error when he admitted
con-
baby,
thought
might
Austin
have been
totality
fession. Under the
of the circum-
Computed
in a coma. Dr.
ordered a
Storm
stances, Appellant’s confession was volun-
(CT)
Tomography
baby.
scan on the
The CT
tary.
We also conclude that
baby’s
scan revealed that the
brain had shift-
did not
abuse his discretion
ed,
collapsed,
several ventricles had
and his
assistance be-
bleeding. Dr.
brain was
Storm believed the
cause the defense counsel failed to demon-
injury
having
was caused
someone
shaken
necessity
strate
expert’s
for that
assistance. Austin.
Furthermore,
agree
we
with the lower court
Detective Malek-Madani
arrives
military judge’s
that the
in admitting
error
uncharged
misconduct evidence was
Finally,
military judge
harmless.
did not
Detective Leslie
and anoth-
Malek-Madani
admitting
“profile”
err in
evidence be-
Springs
Department
er Colorado
Police
offi-
opened
cause the defense counsel
the door to
Appellant
quiet
cer met with
and his wife in a
Thus,
type
of rebuttal.
affirm
we
room outside the intensive care unit.
press Appellant’s
specifically,
granted
statements to Detective M-M 5. More
we
review to deter-
where such statements
have been in viola-
mine:
31(d)
tion of Article
and the Fifth Amendment
Army
Appeals
Whether the
Court of Criminal
prohibition against compulsory self-incrimina-
finding
military judge's
erred in
that the
erro-
tion.
alleged prior uncharged
admission of
neous
Bresnahan,
substantially
misconduct did not
influence the
(C.A.A.F.2005)(order
review).
granting
findings
court-martial.
specific
granted
The
issue
was:
Bresnahan,
compelled in
criminal
UCMJ,
twenty-two year-old Specialist with
31(d),
awas
Article
against
ness
himself.”
Army.
years
five
of service
over
831(d),
§
prohibits the admission
10 U.S.C.
in the record that
no evidence
There is
an accused
obtained
statements
any type of mental defi-
pellant suffers from
coercion,
influ-
unlawful
“through the use of
ciency
intelligence.
low
or is of
Thus,
ence,
or unlawful inducement.”8
voluntary to be
confession must be
accused’s
began
Malek-Madani
When Detective
admitted into evidence.9
cooperative
questioning Appellant, he was
and,
voluntarily accompa-
upon
request,
her
voluntary
a confession is
Whether
police
Appellant was
nied her to the
station.
question
is a
of law we will review de novo.10
arrest,
never under
he was not constrained
requires
totality
This review
us to look to the
time,
police
at the
questioned
and he was
of the circumstances to determine “whether
forty-five
than
minutes
station for no more
essentially
product
the confession is the
of an
Malek-Madani
returned
before Detective
make
unconstrained choice
its
free and
Although
explicitly
hospital.
him to the
totality
assessing
of the cir
r.”11
leave, Appellant was
that he could
informed
cumstances, we will look to factors such as:
any of the interviews at
free to terminate
accused;
age,
the mental condition of the
agree
time. We
with
education,
intelligence;
the character of
Appellant be-
is “scant evidence” that
there
detention, including the conditions of the
custody
or that he made
lieved he was
*5
rights warning;
questioning and
incriminating
or admissions.
false
statements
interrogation,
including
manner of the
Malek-
Appellant asserts that Detective
length
interrogation
of the
and the use of
message” to him
Madani’s “clear
“was
force, threats, promises,
deceptions.12
or
shaking
his son to
he had
confess
In
permit the doctors to save Austin’s life.”
Undoubtedly, Appellant found himself
words, he had to confess or Austin
other
morning
in a
situation on
of his
stressful
above,
assessing
would die. As noted
son’s death. Austin was in critical condition
circumstances,
totality
we will consider
of the
and Detective Malek-Madani
threats, promises, or
the detective’s use of
pressuring Appellant
to confess to shak
circumstances,
deceptions.13 Under certain
pressure
Appellant
This
on
his son.
deceptions may
an indi-
threats or
overcome
hours,
hospi
a
continued for
few
both at the
making
vidual’s “free will”
confession.14
police
tal and at the
on the
station. Based
circumstances, however,
Ellis,
totality
appellant’s
confession
we held
voluntary
though
investigating
conclude that
confession was vol
even
untary.
they
probable
detectives told him
had
cause
831(d) (2000).
possession marijuana
§
8.
and advised her that
10 U.S.C.
cooperate,
aid
if she did not
state financial
for
the children would be terminated and her chil
Ellis,
375,
9. United States v.
57 M.J.
her),
dren would be taken from
with United
(C.A.A.F.2002).
Heart,
1035,
States v. Brave
397 F.3d
1036-38
(8th Cir.2005) (concluding confession was volun
tary
voluntarily
defendant
drove himself to
when
station,
police
questioning for over
consented to
93,
Bubonics,
11. United States
hours,
arrest,
placed
two
was never
under
(C.A.A.F.1996).
killing
nephew after the officers
confessed to
his
they
directly responsible
stated
believed he was
Ellis,
379;
12. See
57 M.J. at
United States v.
suggested
nephew’s
for his
that his
425,
(C.A.A.F.1998).
Sojfer, 47 M.J.
429-30
may
responsibility)
sister-in-law
share
Moreno,
(C.M.A.
Ellis,
ed from nonaccidental trauma. At the con- testimony, military judge clusion of his Uncharged III. misconduct evidence again instructed the members that the same trial, attempted At the Government in- gave regarding instruction he earlier the evi- injuries Austin, prior troduce evidence of apply dence the rib fractures would to Dr. specifical- as indicative of child abuse. More testimony. Bowerman’s ly, the Government wanted to introduce X- Finally, at the conclusion of all the evi- rays autopsy photographs that revealed presented by dence Government that Austin had rib fractures that in- defense, military judge cautioned the eight flicted four to weeks before he died.32 regarding purpose members the limited for The defense moved in limine to exclude the they which could consider the evidence that evidence. The denied the mo- injuries tion. past. Austin suffered in the He stated: trial, Gunther, At Phillip Dr. an may Evidence Austin Bresnahan
radiology and identification of nonaccidental injuries past may suffered in the children, be consid- trauma in inju- testified about the by you purpose ered for the X-rays. ries evident from the limited of its After his tes- timony, sponte tendency, any, sua in- if prove alleged that the any structed the members that injuries evidence that under consideration here were not may injuries Austin past have suffered caused an accident or inadvertent act. only could be considered “for the limited gave you This is the same instruction I purpose tendency, any, prove of its if Similarly, may earlier. it also be as used injuries alleged under consideration here proof may that the accused have intended were not caused accident or inadver- injuries to inflict these because evidence of stated, may tent act.” The “it prior injuries may indicate an intent proof may also be used as that the accused Note, however, injure. that there was no have intended to inflict those be- direct evidence that the accused inflicted prior injuries cause may evidence of indicate injuries. Therefore, prior you may injure.” an intent to And cautioned the prior injuries consider the evidence of members that because there was “no direct purposes deciding only you if intent evidence that prior the accused inflicted” the conclude the accused inflicted them. injuries, they may consider the evidence for You not consider this evidence for purpose deciding only they intent if purpose, you may other not conclude “conclude that the accused inflicted those from this evidence that the accused is a injuries____” Finally, he stated that person bad or has criminal tendencies and members should “not consider this evidence that he therefore committed the offense purpose, [they] may other charged. conclude from this the accused *8 person is a bad or criminal has tendencies Appellant Because no evidence that exists and that he therefore committed the offense ribs, Army caused Austin’s fractured the charged.” Appeals Court of Criminal determined that the abused his discretion Later, Bowerman, Dr. David the coroner admitting uncharged the misconduct evi- performed autopsy, who the also testified concluded, Army dence.33 The Court howev- about the rib fractures. He stated that con- er, scenario,” that sidering including the admission was harmless based on the “whole the brain, case, hemorrhage in strength the the retinal hemor- the the Government’s Bresnahan, range slip op. that has of choices and will not 32. No. ARMY 2. long be reversed so as the decision remains with- omitted). range.”)(intemal in that citations 33. Id. at 5.
145 injury to be case, the time of he could narrow and the limit- of weakness the days. Dr. Bow- judge.34 last to seven within the five ing given the instructions erman, coroner, of determined the cause the uncharged If a court concludes and con- “acute head trauma” death to be erroneously admitt was healing misconduct evidence hemorrhage, that the retinal cluded ed,35 judge’s not be fracture, decision will the sub- rib and subdural bilateral materially prej the error overturned “unless with hemorrhage consistent arachnoid rights of the ac the udices substantial baby syndrome. shaken child abuse and will The harmlessness of the error cused.” testimony clearly established This medical “ (1) strength by “weighing: be evaluated death, and defense did not of the cause (2) case, strength of of the Government’s was nature of Austin’s death contest that the (3) case, materiality of the at trial. nonaccidental (4) question, quality in testi- the doctors’ If members believed ”37 question.’ question in As a the evidence of either mony, died at the hands then Austin law, Army will review the Court’s Appellant and his wife or his wife. application of factors de the harmlessness only Austin on two who were with were the novo.38 Moreover, testi- morning both he died. fied one who carried Army with agree We Court’s Austin from the bedroom back his bed and that the error was harmless. As conclusion last Austin was therefore the one see above, the ease described Government’s injuries. before he suffered fatal Appellant’s strong. It consisted confes sion Malek-Madani that he to Detective hand, On other the defense case was baby, to Dr. shaken his his statements weak. A testified that nurse-midwife Dr. at the Gheen and Caltrider her accompanied prenatal lant his wife to Austin, testimony he shook and the of five in appointments interested and seemed different doctors who each concluded that pregnancy. Major Craig development her being Austin from died shaken. Webb, M.D., pediatrics, in child abuse, syndrome, abuse and child testified Sceats, Dr. and Dr. Donald a neuro- Gheen kept their home wife logical surgeon, diagnosed Austin both as way signaled neglect, increasing the risk having a subdural hematoma subarach- testimony regard- Except of abuse. for this opin- hemorrhage noid and were both of the home, neglectful state of ion that these with were consistent put on no evidence that baby syndrome. shaken Dr. Caltrider de- wife, Appellant, Austin’s rather than caused hemorrhaging baby’s tected retinal left however, Major opined, death. also Webb eye. explained Dr. Caltrider most ultimately baby from shaken that Austin died eases, hemorrhaging occurs in shaken doctor, Stephen syndrome. Another Dr. eyes. hemorrhaging both Unilateral retinal Smith, disagreed he with testified that type presenta- “not the most common tion, Austin from shaken conclusion that died certainly probably percent cases, syndrome and concluded that instead baby] reported it has been [shaken Gunther, flat to the head. radiologist, he died “a blunt blow” be unilateral.” Dr. Bowerman, coroner, directly con- But Dr. swelling determined that Austin had acute testimony by testifying that bleeding in his brain. He testified that tradicted this McDonald, Id. at 8-9. United States v. Kerr, (C.A.A.F.2004) (citing Reynolds, States v. See United (C.A.A.F.1999)). (C.M.A.1989) (stating the test for ad- three-part *9 uncharged noting misconduct and missibility Rodriguez, 38. United States v. 239, 60 M.J. 246 each that the evidence must of the three pass (C.A.A.F.2004). admissible). to be parts 859(a) 59(a), § UCMJ, U.S.C. Article 10 (2000). 146 any not study,
did find evidence of a blunt to if blow Webb he was aware a second Finally, Appellant’s later, published years Austin’s head. one of four which revealed supervisors good duty testified his per- seventy percent that of shaken cases formance. perpetrated by caregivers. Major were male agreed similarly Webb that he was aware of instructions, During study. object The did pointed out to the members three different questions responses. Appellant these times that no direct evidence existed that now asserts that the commit- injured Appellant previously Austin. He by plain allowing ted error the Government cautioned they the members that could use profile to introduce inadmissible evidence purpose evidence the limited of “its against Appellant. tendency, any, if prove alleged that injuries under consideration here were not standard, plain Ap Under the error by caused an accident or inadvertent act.” pellant any plain must show that error was Furthermore, healing the evidence of the that in an obvious and it resulted “unfair prej- rib fractures created risk unfair little prejudicial impact on [members’] deliber Appellant. only udice toward The viable sus- ations.” Profile evidence is defined as “ev case, above, pects in this as noted presents profile’ idence that a ‘characteristic pellant his wife. Either could have offender, of an such pedophile as a or child previous injury. caused the Accordingly, the abuser, places person and then the accused’s little, if anything, suggest evidence did profile al within proof characteristics that as it was rather than his wife guilt.”40 Generally, any “pro the use of who caused the fatal to Austin. The guilt file” characteristic as evidence of or import evidence’s true was it that made it improper innocence is a criminal trial.41 likely more injury Austin’s fatal “only Profile evidence admissible narrow by caused abuse rather than accident —an example, and limited circumstances.”42 For dispute. not in issue it party is admissible rebuttal when a Weighing strength of the Government opens by presenting potentially the door mis against Appellant, including case the materi- leading testimony.43 ality quality of the Government’s evi- dence, against the weakness of the defense case, agree In this with the Gov case and the lack of real risk unfair that the trial within ernment counsel was prejudice Appellant, we conclude that proper bounds rebuttal when he cross- error admission uncharged miscon- Major study. examined Webb about the duct evidence was harmless. opened ques defense had door to such tioning by having Major testify Webb about TV. Profile pointed Appellant’s various “factors” Major wife as the one who killed Austin. Webb, During Major cross-examination of Webb testified about the various stresses attempted the defense witness who estab- wife was under in perpetrator, lish wife as the creased the risk of child abuse. Such factors Major trial counsel asked ifWebb he was move, problems, financial included recent study seventy- aware of a that revealed that long percent kept hours worked that of all nine shaken cases are away home, being him perpetrated caregivers. Major the caretak male children, acknowledged very young having er of two Webb awareness of the study. chronically-ill Major Major The trial counsel then asked child. Webb testified Powell, 39. United v. States id. 49 M.J. (C.A.A.F.1998). Banks, 42. Traum, (C.M.A.1992). 40. United States (C.A.A.F.2004) Rynning, United (citing States (C.A.A.F.1998)). *10 re- would judge discretion for the abused responsible was Appellant’s wife
that court.1 of the lower that verse the decision the of the household cleanliness that she of house indicated conditions the request for assis- denying In the defense housekeeping duties. neglectful in her was military expert an consultant the tance from neglect that her Major Webb also testified judge concluded: signaled abuse. re- nothing in the evidence a. is There to the responding was The trial counsel that support suspicion to ceived to establish attempt defense’s incriminating false Accused made had bad perpetrator the because she wife as or admissions. statements by highlighting the of uncleanliness habits candidly that it was admitted b. Defense males to studies found fact that two different to Dr. Leo’s assistance requesting primary perpetrators in shaken be the of preliminary determination relying make a not on The trial counsel was cases. made false state- accused to establish that whether expert himself the differently, male, fact, In Stated lant, perpetrator. the ments. as a was that searching is for evidence not use this evidence trial counsel did accused, of during all case-in-chief. assist in her defense Government’s would Rather, questioning was little to indicate such the trial counsel but with evidence knowledge performed witness’s studies exists. evidence pointing to a characteristic of other doctors majority military judge, the Similar statistically linked to was finding counsel nev relies on a that “defense Major cases to rebut Webb’s shaken suggest presented er ‘testimony pointed Ap- certain factors actually false.” Appellant’s confession was likely perpetrator. pellant’s wife most as Bresnahan, 137, 143 v. M.J. United States opened had the door this The defense (C.AA.F.2005). majority also *11 148 conclusively
show
that evidence favorable to
could raise doubt
the members’ minds as
his case exists.
of
reliability
that confession. This was
viable, distinct,
perhaps
a
and
crucial avenue
“Consulting
expert
with an
will often be a
explore.
for the defense to
necessary precondition
establishing
to
the ex-
pert’s necessity
n Confessions, even those that have been
aas witness.” United States
Warner,
(C.A.A.F.2005).
114,
62 M.J.
146
voluntary,
found to be
are not conclusive of
Trial
made
the mili-
defense counsel
clear to
guilt____ [Sjtripped
power
of the
to de-
tary judge
asking
that “the defense is
for an
jury
scribe to the
the circumstances that
time,
expert
expert
consultant at this
not
prompted
confession,
his
is
the defendant
”
witness....
Bresnahan
Dr.
needed
Leo’s
effectively
answering
disabled from
to
determine whether there was
question every
juror
one
rational
needs
present
support
evidence to
his
of
conten-
innocent,
answered:
If the defendant
is
tion that his confession was unreliable and
why
previously
did
guilt?
admit his
of it
elements
were false.
If Bresnahan
to develop
able
evidence that his con-
683,
Kentucky,
689,
Crane v.
476 U.S.
106
prior
receiving expert
fession was
to
false
(1986).
2142,
S.Ct.
Defense
assistance,
the decision
reverse
recognize
identify
factors
could
Army
of Criminal
United States
Court
interrogation process and in Bresnahan’s
sentence,
findings and
might
Appeals,
set aside the
support
emotional state that
con-
rehearing.
authorize a
explained
tention.
also
that her own and
She
The
notes
impermissible question.
otherwise
findings of fact
made
Moreover,
if the
erred
even
not
support
that Bresnahan did
a conclusion
sponte excluding
testimony,
in
sua
such
not
upholding
make
false confession.
And,
plain
the error
not
and obvious.
military judge, I am con
ruling
many
in
for
same reasons articulated
majority
sets the bar unrea
cerned that
analysis
uncharged
harmlessness
seeking
sonably
who
high for defendants
are
above, any
in admit-
misconduct issue
error
in or
expert
consultant
assistance
ting this evidence was harmless.
fairly present
a defense.
prepare
der
to show reasonable
Bresnahan needed
CONCLUSION
“
expert
be
probability ‘both that an
would
Army
The decision of the United States
and that
to the defense
denial
assistance
Appeals
of Criminal
affirmed.
Court
funda-
expert
would result in a
assistance
mentally unfair
trial.’” United States
ERDMANN, Judge, with whom
Gunkle,
(C.A.A.F.2001) (quot-
M.J.
EFFRON,
joins (dissenting):
Judge,
Robinson,
States
United
(C.M.A.1994)).
The conclusion reached
military
majority
holds that the
majority
military judge and the
both the
his discretion in
did not abuse
suggests
defense”
that the “assistance
on
expert
assistance
must be
form
referenced
this test
I
subject
Because
find
of false confession.
testimony or favorable evidence.
favorable
judge applied
an incorrect
However,
Bresnahan,
when