United States v. Bresnahan , 2005 CAAF LEXIS 1105 ( 2005 )


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  •                          UNITED STATES, Appellee
    v.
    Richard C. BRESNAHAN, Specialist
    U.S. Army, Appellant
    No. 04-0559
    Crim. App. No. 20010304
    United States Court of Appeals for the Armed Forces
    Argued May 4, 2005
    Decided September 30, 2005
    GIERKE, C.J., delivered the opinion of the Court, in which
    CRAWFORD and BAKER, JJ., joined. ERDMANN, J., filed a
    dissenting opinion in which EFFRON, J., joined.
    Counsel
    For Appellant: Captain Charles L. Pritchard Jr. (argued);
    Colonel Mark Cremin and Lieutenant Colonel Mark Tellitocci (on
    brief); Major Allyson G. Lambert and Captain Terri J. Erisman.
    For Appellee: Major William J. Nelson (argued); Colonel Steven
    T. Salata and Lieutenant Colonel Mark L. Johnson (on brief);
    Captain Edward E. Wiggers.
    Military Judge:     Gary V. Casida
    This opinion is subject to revision before final publication.
    United States v. Bresnahan, No. 04-0559/AR
    Chief Judge GIERKE delivered the opinion of the Court.
    INTRODUCTION
    This tragedy began on the morning that a three-month-old
    baby, Austin, was shaken so severely that the injuries he
    sustained led to his death.   The tragedy continued during the
    early morning hours after Austin died.    His family was further
    torn apart by his father’s confession, during questioning by a
    civilian police detective, that he may have shaken his baby to
    try to stop his crying.1   We granted review to determine whether
    the admission of Appellant’s confession at trial was a violation
    of his due process rights.2
    At trial, the defense counsel requested expert assistance
    to determine if Appellant’s confession was unreliable because of
    the detective’s interview techniques.     The military judge denied
    the request and we granted review to determine if that ruling
    1
    Based on this confession and other evidence, Appellant was
    convicted of involuntary manslaughter, in violation of Article
    119, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 919
    (2000). He was sentenced to a dishonorable discharge,
    confinement for six years, forfeiture of all pay and allowances,
    and a reduction to pay grade E-1.
    2
    More specifically, we granted review to determine:
    Whether Appellant’s right to due process was violated when
    the military judge failed to suppress Appellant’s
    statements to Detective M-M where such statements may have
    been in violation of Article 31(d) and the Fifth Amendment
    prohibition against compulsory self-incrimination.
    United States v. Bresnahan, 
    61 M.J. 12
     (C.A.A.F. 2005)(order
    granting review).
    2
    United States v. Bresnahan, No. 04-0559/AR
    was erroneous.3    Also, at trial, the military judge admitted
    evidence of prior injuries Austin sustained before his death.
    The United States Army Court of Criminal Appeals concluded the
    military judge erred in admitting the uncharged misconduct
    evidence, but that the error was harmless.4       We granted review to
    analyze the Army Court’s holding.5       Finally, the military judge
    allowed the trial counsel to cross-examine a defense witness
    about two scientific studies that concluded male caregivers are
    more likely the perpetrators in shaken baby cases.       Appellant
    challenges the conclusions of those studies as inadmissible
    “profile” evidence, and we granted review.6
    We hold that the military judge committed no error when he
    admitted Appellant’s confession.       Under the totality of the
    circumstances, Appellant’s confession was voluntary.       We also
    3
    The specific issue we granted was:
    Whether the military judge erred to the substantial
    prejudice of Appellant by denying the defense request for
    expert assistance.
    Id. at 12.
    4
    See United States v. Bresnahan, No. ARMY 20010304, slip op. at
    2 (A. Ct. Crim. App. June 4, 2004) (unpublished).
    5
    More specifically, we granted review to determine:
    Whether the Army Court of Criminal Appeals erred in finding
    that the military judge’s erroneous admission of alleged
    prior uncharged misconduct did not substantially influence
    the findings of the court-martial.
    Bresnahan, 61 M.J. at 12.
    6
    The final issue was personally asserted by Appellant:
    Whether the military judge committed plain error by
    allowing the Government to introduce inadmissible profile
    evidence.
    3
    United States v. Bresnahan, No. 04-0559/AR
    conclude that the military judge did not abuse his discretion in
    denying the defense request for expert assistance because the
    defense counsel failed to demonstrate necessity for that
    expert’s assistance.   Furthermore, we agree with the lower court
    that the military judge's error in admitting the uncharged
    misconduct evidence was harmless.      Finally, the military judge
    did not err in admitting the “profile” evidence because the
    defense counsel opened the door to this type of rebuttal.      Thus,
    we affirm the decision of the Army Court of Criminal Appeals.
    BACKGROUND
    The fateful morning
    On the morning of November 6, 2000, Appellant and his wife,
    Kristen, were awakened by the sound of their baby crying.
    Kristen got Austin from his crib and brought him back to their
    bedroom to feed him.   After Kristen finished feeding him,
    Appellant returned Austin to his crib, laid him on his stomach,
    and began patting his back.    At this point, Appellant noticed
    that the baby was not breathing.       He told his wife to call 911
    and he administered CPR until the paramedics arrived.
    Austin was rushed to the hospital, where Dr. Mark Storm, an
    emergency room doctor, tried to resuscitate the baby.      Dr. Storm
    did not see any outward signs of trauma, but because he could
    not get any responses from the baby, he thought Austin might
    Id.
    4
    United States v. Bresnahan, No. 04-0559/AR
    have been in a coma.    Dr. Storm ordered a Computed Tomography
    (CT) scan on the baby.    The CT scan revealed that the baby’s
    brain had shifted, several ventricles had collapsed, and his
    brain was bleeding.    Dr. Storm believed the injury was caused by
    someone having shaken Austin.
    Detective Malek-Madani arrives at the hospital
    Detective Leslie Malek-Madani and another Colorado Springs
    Police Department officer met with Appellant and his wife in a
    quiet room outside the intensive care unit.      Appellant and
    Kristen were questioned separately and both cooperated with the
    inquiry.    The police officers did not give them Miranda7 rights
    warnings at that time.
    During Detective Malek-Madani’s interview with Appellant,
    she told Appellant that Austin’s brain injuries were so severe
    that he might not survive.    She then asked Appellant if anything
    else happened that morning that might explain Austin’s injuries.
    Appellant responded two or three times that nothing happened to
    Austin except what he already told the detective –- that he laid
    Austin down and the baby began choking on his formula.
    Detective Malek-Madani responded that Appellant’s
    recollection of the events of the morning were “impossible” and
    pressed for further information.       Detective Malek-Madani then
    asked Appellant explicitly if Austin had ever been shaken.
    7
    Miranda v. Arizona, 
    384 U.S. 436
     (1966).
    5
    United States v. Bresnahan, No. 04-0559/AR
    Appellant initially stated that he had not.   But Appellant then
    said that in attempting to soothe the baby to make him stop
    crying, he started to “bounce him up and down” and that it was
    “possible that Austin’s head had bobbed a few times while he was
    trying to calm him down.”
    After this admission, Detective Malek-Madani pressed
    Appellant further.   She told him that to help Austin, the
    doctors needed to know what had happened.    Appellant eventually
    stated that he “may have shaken Austin a couple of times.”
    The interview continues at the police station
    Detective Malek-Madani asked Appellant to accompany her to
    the police station for further questioning.   Appellant agreed.
    Shortly after arriving at the police station, another police
    officer contacted Detective Malek-Madani and told her that
    Sergeant (Sgt) Hogan, her supervisor, wanted Appellant returned
    to the hospital immediately.   Dr. Kenneth Gheen, the medical
    director of the pediatric intensive care unit at the hospital,
    was concerned that he had not had the chance to talk to Austin’s
    parents and explain to them the seriousness of Austin’s
    condition.   Rather than returning Appellant to the hospital at
    that time, Detective Malek-Madani contacted Sgt Hogan and told
    him that Appellant “had admitted to having shaken the baby and
    that [she] was hoping to capture that admission on videotape.”
    Sgt Hogan responded that Dr. Gheen wanted Appellant back at the
    6
    United States v. Bresnahan, No. 04-0559/AR
    hospital.   But within five minutes, Sgt Hogan contacted
    Detective Malek-Madani again and advised her to continue the
    interview and that he would talk to the doctor again.
    The interview continued at the police station.     Detective
    Malek-Madani prodded Appellant for further admissions and a
    virtual tug-of-war ensued.   The detective attempted to get
    Appellant to admit to shaking the baby, while Appellant tried to
    maintain his basic concession that he was only bouncing the baby
    and that he did not think that he had done anything to cause
    serious injury to Austin.    For example, at one point, Appellant
    advised Detective Malek-Madani that he may have killed his son.
    But, within a few minutes, Appellant changed his story by saying
    that he thought Austin was choking on formula and he was not
    aware that Austin stopped breathing because Appellant was
    shaking him too hard.   About fifteen minutes later, Appellant
    again admitted that he may have shaken Austin but that he
    thought he was only bouncing him.     After approximately forty-
    five minutes of questioning, Detective Malek-Madani returned
    Appellant to the hospital.
    The return to the hospital
    According to the testimony of Dr. Gheen, when Appellant
    returned to the hospital, he told Dr. Gheen that he shook the
    child and laid him down, and that Austin vomited shortly
    thereafter.   Dr. Nieca Caltrider, the pediatric ophthalmologist,
    7
    United States v. Bresnahan, No. 04-0559/AR
    testified that Appellant told him he may have shaken Austin
    “some, a little harder than he should.”     Appellant said he laid
    Austin down, heard some gurgling sounds, and saw Austin vomit
    and then become gray.
    DISCUSSION
    I.   Appellant’s confession to Detective Malek-Madani
    The Fifth Amendment to the Constitution prohibits any
    person from “be[ing] compelled in any criminal case to be a
    witness against himself.”   Article 31(d), UCMJ, prohibits the
    admission of statements obtained from an accused “through the
    use of coercion, unlawful influence, or unlawful inducement.”8
    Thus, an accused’s confession must be voluntary to be admitted
    into evidence.9
    Whether a confession is voluntary is a question of law we
    will review de novo.10   This review requires us to look to the
    totality of the circumstances to determine “whether the
    confession is the product of an essentially free and
    unconstrained choice by its maker.”11     In assessing the totality
    of the circumstances, we will look to factors such as:     the
    mental condition of the accused; his age, education, and
    intelligence; the character of the detention, including the
    8
    10 U.S.C. § 831(d) (2000).
    9
    United States v. Ellis, 
    57 M.J. 375
    , 378 (C.A.A.F. 2002).
    10
    Id.
    11
    United States v. Bubonics, 
    45 M.J. 93
    , 95 (C.A.A.F. 1996).
    8
    United States v. Bresnahan, No. 04-0559/AR
    conditions of the questioning and rights warning; and the manner
    of the interrogation, including the length of the interrogation
    and the use of force, threats, promises, or deceptions.12
    Undoubtedly, Appellant found himself in a stressful
    situation on the morning of his son’s death.   Austin was in
    critical condition in the hospital and Detective Malek-Madani
    was pressuring Appellant to confess to shaking his son.     This
    pressure on Appellant continued for a few hours, both at the
    hospital and at the police station.   Based on the totality of
    the circumstances, however, we conclude that Appellant’s
    confession was voluntary.
    At the time of Austin’s death, Appellant was a twenty-two
    year-old Specialist with over five years of service in the Army.
    There is no evidence in the record that Appellant suffers from
    any type of mental deficiency or is of low intelligence.
    When Detective Malek-Madani began questioning Appellant, he
    was cooperative and, upon her request, voluntarily accompanied
    her to the police station.   Appellant was never under arrest, he
    was not constrained at any time, and he was questioned at the
    police station for no more than forty-five minutes before
    Detective Malek-Madani returned him to the hospital.   Although
    not explicitly informed that he could leave, Appellant was free
    12
    See Ellis, 57 M.J. at 379; United States v. Sojfer, 
    47 M.J. 425
    , 429-30 (C.A.A.F. 1998).
    9
    United States v. Bresnahan, No. 04-0559/AR
    to terminate any of the interviews at any time.   We agree with
    the military judge that there is “scant evidence” that Appellant
    believed he was in custody or that he made false incriminating
    statements or admissions.
    Appellant asserts that Detective Malek-Madani’s “clear
    message” to him “was that he had to confess to shaking his son
    to permit the doctors to save Austin’s life.”   In other words,
    he had to confess or Austin would die.   As noted above, in
    assessing the totality of the circumstances, we will consider
    the detective’s use of threats, promises, or deceptions.13    Under
    certain circumstances, threats or deceptions may overcome an
    individual’s “free will” in making a confession.14
    In Ellis, we held the appellant’s confession was voluntary
    even though the investigating detectives told him they had
    13
    Ellis, 57 M.J. at 379.
    14
    Compare Lynumn v. Illinois, 
    372 U.S. 528
    , 534 (1963)(holding
    confession involuntary when police showed up at defendant’s
    apartment to arrest her for the sale and possession of marijuana
    and advised her that if she did not cooperate, state financial
    aid for the children would be terminated and her children would
    be taken from her), with United States v. Brave Heart, 
    397 F.3d 1035
    , 1036-38 (8th Cir. 2005) (concluding confession was
    voluntary when defendant voluntarily drove himself to police
    station, consented to questioning for over two hours, was never
    placed under arrest, and confessed to killing his nephew after
    the officers stated they believed he was directly responsible
    for his nephew’s injuries and suggested that his sister-in-law
    may share the responsibility) and United States v. Moreno, 
    36 M.J. 107
    , 112 (C.M.A. 1992) (holding confession voluntary when
    made to a social worker, who was not part of a law enforcement
    investigation, when appellant faced choice between cooperating
    with a social worker, or not cooperating and risk losing his
    children).
    10
    United States v. Bresnahan, No. 04-0559/AR
    probable cause to arrest him for child abuse and that his
    children “would probably be removed” from his home if he was
    arrested.15   In this case, the essence of Detective Malek-
    Madani’s statements to Appellant was that the doctors needed to
    know exactly what happened to Austin so they could save his
    life.   Detective Malek-Madani admits that she did not return
    Appellant to the hospital immediately after receiving the
    request from Sgt Hogan because she was more concerned with
    securing Appellant’s confession than allowing Appellant to
    return to the hospital.    Thus, similar to the detectives’
    statements in Ellis, Detective Malek-Madani’s statements to
    Appellant were said with the intent to secure a confession from
    Appellant by “exploit[ing] any emotional ties [A]ppellant might
    have” to Austin.16    But the statements were “an accurate picture”
    of what was happening to Austin.17     And “[w]hile the detectives’
    advice to [A]ppellant . . . may have contributed to his
    confession, the mere existence of a causal connection does not
    transform [A]ppellant’s otherwise voluntary confession into an
    involuntary one.”18
    15
    57 M.J. at 377.
    16
    Id. at 384 (Baker, J., concurring in the result).
    17
    Id. at 379.
    18
    Id.; see also Brave Heart, 397 F.3d at 1041 (noting that a
    police officer’s intention to arrest the defendant “‘does not
    render a confession involuntary per se,’” but is “simply one
    factor to be considered in the totality of the circumstances”)
    (internal citations omitted).
    11
    United States v. Bresnahan, No. 04-0559/AR
    Furthermore, we will look not only to what was said to
    Appellant, but “we must also examine what was not done or not
    said.”19    Detective Malek-Madani did not threaten Appellant in
    any way or physically injure him.20    She was not confrontational
    or intimidating.    Appellant was not detained, questioned for a
    prolonged amount of time, or held in isolation for any amount of
    time.21    Based on the totality of the circumstances in this case,
    we hold Appellant’s confession was voluntary.
    Additionally, we are persuaded by the Government’s argument
    that, regardless of whether Appellant actually believed the
    doctors would not help Austin unless he confessed, Detective
    Malek-Madani’s statements would not provide a motive for
    Appellant to lie.    If Appellant did not shake Austin, then
    telling the detective that he did shake him would not help the
    doctors determine how to treat the baby appropriately.    For
    Appellant to lie about what he did would not save Austin’s life.
    19
    Ellis, 57 M.J. at 379; see also Brave Heart, 397 F.3d at 1041
    (stating that officers “elicit confessions through a variety of
    tactics, including claiming not to believe a suspect’s
    explanations, making false promises, playing on a suspect’s
    emotions, using his respect for his family against him,
    deceiving the suspect, convening sympathy, and even using raised
    voices,” but “[n]one of these tactics render the confession
    involuntary . . . unless ‘the overall impact of the
    interrogation caused the defendant’s will to be overborne’”)
    (internal citation omitted).
    20
    Ellis, 57 M.J. at 379.
    21
    Id.
    12
    United States v. Bresnahan, No. 04-0559/AR
    II.   Denial of defense request for expert assistance
    After the convening authority denied the defense counsel’s
    request for expert assistance in the area of false confessions,
    the defense counsel raised the issue with the military judge
    before trial.   The defense counsel requested an expert
    consultant “not only” to address the vulnerability of
    Appellant’s confession, but also to examine the “coercive
    interrogation techniques and how the use of those techniques in
    this case may shed light on the confession’s reliability, not
    necessarily its voluntariness.”    Defense counsel postulated that
    the expert would be in the best position to help the defense
    determine whether Appellant’s emotional state at the time he
    made the confession was such that the unreliability of the
    confession would be a possible defense.    The military judge
    stated, “defense counsel is searching for evidence that would
    assist in her defense of the accused, but with little evidence
    to indicate such evidence exists.”     The military judge then
    denied the request, concluding that the defense made an
    inadequate showing of the necessity for Dr. Richard Leo’s
    assistance.
    An accused is entitled to an expert’s assistance before
    trial to aid in the preparation of his defense upon a
    13
    United States v. Bresnahan, No. 04-0559/AR
    demonstration of necessity.22     But necessity requires more than
    the “‘mere possibility of assistance from a requested expert’. .
    . .”23   The accused must show that a reasonable probability
    exists “‘both that an expert would be of assistance to the
    defense and that denial of expert assistance would result in a
    fundamentally unfair trial.’”24
    We apply a three-part test to determine whether expert
    assistance is necessary.25   The defense must show:   (1) why
    the expert assistance is needed; (2) what the expert
    assistance would accomplish for the accused; and (3) why
    the defense counsel were unable to gather and present the
    evidence that the expert assistance would be able to
    develop.26   A military judge’s ruling on a request for
    expert assistance will not be overturned absent an abuse of
    discretion.27
    In determining whether the military judge abused his
    discretion in denying the defense’s request for an expert
    consultant, each case turns on its own facts.     Neither the
    22
    United States v. Gunkle, 
    55 M.J. 26
    , 31 (C.A.A.F. 2001)
    (citing United States v. Garries, 
    22 M.J. 288
    , 291 (C.M.A.
    1986)).
    23
    Id. (citing United States v. Robinson, 
    39 M.J. 88
    , 89 (C.M.A.
    1994)).
    24
    Id. (quoting Robinson, 39 M.J. at 89).
    25
    United States v. Gonzalez, 
    39 M.J. 459
    , 461 (C.M.A. 1994);
    United States v. Ndanyi, 
    45 M.J. 315
    , 319 (C.A.A.F. 1996).
    26
    Gonzalez, 39 M.J. at 461; Ndanyi, 45 M.J. at 319.
    27
    Gunkle, 55 M.J. at 32.
    14
    United States v. Bresnahan, No. 04-0559/AR
    denial nor the grant of a request for an expert consultant
    to explore the reliability of a confession is necessarily
    grounds for reversal.   But, as this Court has previously
    noted, “[t]o reverse for ‘an abuse of discretion involves
    far more than a difference in . . . opinion . . . .’”28
    Under the facts of this case, we hold that the military
    judge did not abuse his discretion by concluding that the
    defense failed to meet its burden of necessity under
    Gonzalez.29
    The defense counsel requested Dr. Leo’s expert
    assistance to help explore the possibility that Detective
    Malek-Madani’s techniques at the hospital and at the police
    station were so coercive that Appellant’s confession may
    have been unreliable.   Appellant’s confession to Detective
    Malek-Madani was important evidence for the prosecution.
    And we accept arguendo that Dr. Leo possessed knowledge and
    expertise in the area of police coercion beyond that of the
    defense counsel and that the defense counsel could benefit
    from his assistance.
    28
    United States v. Travers, 
    25 M.J. 61
    , 62-63 (C.M.A.
    1987)(internal citations omitted).
    29
    39 M.J. at 461 (holding that the military judge did not abuse
    his discretion in denying the defense’s request for expert
    assistance where the defense was given the “tools potentially to
    gather evidence to lay a foundation for the necessity of an
    independent investigator” but did not use them).
    15
    United States v. Bresnahan, No. 04-0559/AR
    But defense counsel never presented any evidence to
    suggest that Appellant’s confession was actually false.
    Furthermore, the military judge clearly articulated in his
    findings of fact that the defense presented no evidence
    suggesting that Appellant suffers from any abnormal mental
    or emotional problems.30   He also found no evidence
    suggesting that Appellant has a “submissive personality so
    weak or disoriented as to make false incriminatory
    statements in response to accusations of serious criminal
    conduct.”
    This was a close call.    Just as we hold that the
    military judge did not abuse his discretion by denying the
    request, we would also conclude that the military judge
    would not have abused his discretion had he granted the
    request.    Because the military judge was not clearly
    erroneous in his findings of fact and he did not base his
    decision on an incorrect view of the law,31 we conclude that
    30
    The military judge cited United States v. Hall, 
    93 F.3d 1337
    (7th Cir. 1996).
    31
    See United States v. Gore, 
    60 M.J. 178
    , 187 (C.A.A.F. 2004)
    (noting that a military judge will be reversed for an abuse of
    discretion only “‘if the military judge’s findings of fact are
    clearly erroneous or if his decision is influenced by an
    erroneous view of the law.’” “Further, the abuse of discretion
    standard of review recognizes that a judge has a range of
    choices and will not be reversed so long as the decision remains
    within that range.”)(internal citations omitted).
    16
    United States v. Bresnahan, No. 04-0559/AR
    he did not abuse his discretion in denying the defense’s
    request for expert assistance.
    III. Uncharged misconduct evidence
    At trial, the Government attempted to introduce evidence of
    prior injuries to Austin, as indicative of child abuse.     More
    specifically, the Government wanted to introduce X-rays and
    autopsy photographs that revealed that Austin had rib fractures
    that were inflicted four to eight weeks before he died.32    The
    defense moved in limine to exclude the evidence.    The military
    judge denied the motion.
    At trial, Dr. Phillip Gunther, an expert in radiology and
    identification of nonaccidental trauma in children, testified
    about the injuries evident from the X-rays.    After his
    testimony, the military judge sua sponte instructed the members
    that any evidence that Austin may have suffered injuries in the
    past could be considered only “for the limited purpose of its
    tendency, if any, to prove that the alleged injuries under
    consideration here were not caused by an accident or inadvertent
    act.”    The military judge stated, “it may also be used as proof
    that the accused may have intended to inflict those injuries
    because evidence of prior injuries may indicate an intent to
    injure.”    And he cautioned the members that because there was
    “no direct evidence that the accused inflicted” the prior
    32
    Bresnahan, No. ARMY 20010304, slip op. at 2.
    17
    United States v. Bresnahan, No. 04-0559/AR
    injuries, they may consider the evidence for the purpose of
    deciding intent only if they “conclude that the accused
    inflicted those injuries. . . .”     Finally, he stated that the
    members should “not consider this evidence for any other
    purpose, and [they] may not conclude from this evidence that the
    accused is a bad person or has criminal tendencies and that he
    therefore committed the offense charged.”
    Later, Dr. David Bowerman, the coroner who performed the
    autopsy, also testified about the rib fractures.    He stated that
    considering the “whole scenario,” including the hemorrhage in
    the brain, the retinal hemorrhages, the swelling of the brain,
    and the healing rib fractures, Austin’s injuries resulted from
    nonaccidental trauma.   At the conclusion of his testimony, the
    military judge again instructed the members that the same
    instruction he gave earlier regarding the evidence of the rib
    fractures would apply to Dr. Bowerman’s testimony.
    Finally, at the conclusion of all the evidence presented by
    the Government and the defense, the military judge cautioned the
    members regarding the limited purpose for which they could
    consider the evidence that Austin suffered injuries in the past.
    He stated:
    Evidence that Austin Bresnahan may have suffered injuries
    in the past may be considered by you for the limited
    purpose of its tendency, if any, to prove that the alleged
    injuries under consideration here were not caused by an
    accident or inadvertent act. This is the same instruction
    I gave you earlier. Similarly, it may also be used as
    18
    United States v. Bresnahan, No. 04-0559/AR
    proof that the accused may have intended to inflict these
    injuries because evidence of prior injuries may indicate an
    intent to injure. Note, however, that there was no direct
    evidence that the accused inflicted the prior injuries.
    Therefore, you may consider the evidence of prior injuries
    for purposes of deciding intent only if you conclude that
    the accused inflicted them. You may not consider this
    evidence for any other purpose, and you may not conclude
    from this evidence that the accused is a bad person or has
    criminal tendencies and that he therefore committed the
    offense charged.
    Because no evidence exists that Appellant caused Austin’s
    fractured ribs, the Army Court of Criminal Appeals determined
    that the military judge abused his discretion by admitting the
    uncharged misconduct evidence.33    The Army Court concluded,
    however, that the admission was harmless based on the strength
    of the Government’s case, the weakness of the defense case, and
    the limiting instructions given by the military judge.34
    If a court concludes that uncharged misconduct evidence was
    erroneously admitted,35 the military judge’s decision will not be
    overturned “unless the error materially prejudices the
    substantial rights of the accused.”36    The harmlessness of the
    error will be evaluated by “‘weighing:    (1) the strength of the
    Government’s case, (2) the strength of the defense case, (3) the
    materiality of the evidence in question, and (4) the quality of
    33
    Id. at 5.
    34
    Id. at 8-9.
    35
    See United States v. Reynolds, 
    29 M.J. 105
    , 109 (C.M.A. 1989)
    (stating the three-part test for admissibility of uncharged
    misconduct and noting that the evidence must pass each of the
    three parts to be admissible).
    36
    Article 59(a), UCMJ, 10 U.S.C. § 859(a) (2000).
    19
    United States v. Bresnahan, No. 04-0559/AR
    the evidence in question.’”37   As a question of law, we will
    review the Army Court’s application of the harmlessness factors
    de novo.38
    We agree with the Army Court’s conclusion that the error
    was harmless.   As described above, the Government’s case was
    strong.   It consisted of Appellant’s confession to Detective
    Malek-Madani that he may have shaken his baby, his statements to
    Dr. Gheen and Dr. Caltrider at the hospital that he shook
    Austin, and the testimony of five different doctors who each
    concluded that Austin died from being shaken.
    Dr. Gheen and Dr. Donald Sceats, a neurological surgeon,
    both diagnosed Austin as having a subdural hematoma and
    subarachnoid hemorrhage and were both of the opinion that these
    injuries were consistent with shaken baby syndrome.     Dr.
    Caltrider detected retinal hemorrhaging in the baby’s left eye.
    Dr. Caltrider explained that in most shaken baby cases,
    hemorrhaging occurs in both eyes.     Unilateral retinal
    hemorrhaging is “not the most common type of presentation, but
    certainly in probably 20 percent of [shaken baby] cases, it has
    been reported to be unilateral.”      Dr. Gunther, the radiologist,
    determined that Austin had acute swelling and bleeding in his
    37
    United States v. McDonald, 
    59 M.J. 426
    , 430 (C.A.A.F. 2004)
    (citing United States v. Kerr, 
    51 M.J. 401
    , 405 (C.A.A.F.
    1999)).
    38
    United States v. Rodriguez, 
    60 M.J. 239
    , 246 (C.A.A.F. 2004).
    20
    United States v. Bresnahan, No. 04-0559/AR
    brain.   He testified that he could narrow the time of injury to
    be within the last five to seven days.   Dr. Bowerman, the
    coroner, determined the cause of death to be “acute head trauma”
    and concluded that the retinal hemorrhage, healing bilateral rib
    fracture, and subdural and subarachnoid hemorrhage were
    consistent with child abuse and shaken baby syndrome.   This
    medical testimony clearly established the cause of death, and
    the defense did not contest that the nature of Austin’s death
    was nonaccidental at trial.
    If the members believed the doctors’ testimony, then Austin
    died at the hands of either Appellant or his wife.   Appellant
    and his wife were the only two who were with Austin on the
    morning he died.    Moreover, both testified that Appellant was
    the one who carried Austin from the bedroom back to his bed and
    was therefore the last one to see Austin before he suffered his
    fatal injuries.
    On the other hand, the defense case was weak.    A nurse-
    midwife testified that Appellant accompanied his wife to her
    prenatal appointments and seemed interested in the development
    of her pregnancy.   Major Craig Webb, M.D., an expert in
    pediatrics, child abuse syndrome, and child abuse, testified
    that Appellant’s wife kept their home in a way that signaled
    neglect, increasing the risk of abuse.   Except for this
    testimony regarding the neglectful state of the home, the
    21
    United States v. Bresnahan, No. 04-0559/AR
    defense put on no evidence that Appellant’s wife, rather than
    Appellant, caused Austin’s death.    Major Webb also opined,
    however, that Austin ultimately died from shaken baby syndrome.
    Another doctor, Dr. Stephen Smith, testified that he disagreed
    with the conclusion that Austin died from shaken baby syndrome
    and concluded that instead he died from “a blunt flat blow”     to
    the head.   But Dr. Bowerman, the coroner, directly contradicted
    this testimony by testifying that he did not find any evidence
    of a blunt blow to Austin’s head.    Finally, one of Appellant’s
    supervisors testified to his good duty performance.
    During instructions, the military judge pointed out to the
    members three different times that no direct evidence existed
    that Appellant previously injured Austin.    He cautioned the
    members that they could use the evidence for the limited purpose
    of “its tendency, if any, to prove that the alleged injuries
    under consideration here were not caused by an accident or
    inadvertent act.”
    Furthermore, the evidence of the healing rib fractures
    created little risk of unfair prejudice toward Appellant.      The
    only viable suspects in this case, as noted above, were
    Appellant and his wife.   Either could have caused the previous
    injury.   Accordingly, the evidence did little, if anything, to
    suggest that it was Appellant rather than his wife who caused
    the fatal injuries to Austin.   The evidence’s true import was
    22
    United States v. Bresnahan, No. 04-0559/AR
    that it made it more likely that Austin’s fatal injury was
    caused by abuse rather than by accident -– an issue that was not
    in dispute.
    Weighing the strength of the Government case against
    Appellant, including the materiality and quality of the
    Government’s evidence, against the weakness of the defense case
    and the lack of any real risk of unfair prejudice to Appellant,
    we conclude that any error in admission of the uncharged
    misconduct evidence was harmless.
    IV.   Profile evidence
    During cross-examination of Major Webb, the defense witness
    who attempted to establish Appellant’s wife as the perpetrator,
    the trial counsel asked Major Webb if he was aware of a study
    that revealed that seventy-nine percent of all shaken baby cases
    are perpetrated by male caregivers.    Major Webb acknowledged his
    awareness of the study.   The trial counsel then asked Major Webb
    if he was aware of a second study, published four years later,
    which revealed that seventy percent of shaken baby cases were
    perpetrated by male caregivers.    Major Webb similarly agreed
    that he was aware of the study.    The defense did not object to
    these questions and responses.    Appellant now asserts that the
    military judge committed plain error by allowing the Government
    to introduce inadmissible profile evidence against Appellant.
    23
    United States v. Bresnahan, No. 04-0559/AR
    Under the plain error standard, Appellant must show that
    any error was plain and obvious and that it resulted in an
    “unfair prejudicial impact on the [members’] deliberations.”39
    Profile evidence is defined as “evidence that presents a
    ‘characteristic profile’ of an offender, such as a pedophile or
    child abuser, and then places the accused’s personal
    characteristics within that profile as proof of guilt.”40
    Generally, the use of any “profile” characteristic as evidence
    of guilt or innocence is improper at a criminal trial.41    Profile
    evidence is admissible “only in narrow and limited
    circumstances.”42    For example, it is admissible in rebuttal when
    a party opens the door by presenting potentially misleading
    testimony.43
    In this case, we agree with the Government that the trial
    counsel was within the proper bounds of rebuttal when he cross-
    examined Major Webb about the study.    The defense had opened the
    door to such questioning by having Major Webb testify about
    various “factors” that pointed to Appellant’s wife as the one
    who killed Austin.    Major Webb testified about the various
    39
    United States v. Powell, 
    49 M.J. 460
    , 463 (C.A.A.F. 1998).
    40
    United States v. Traum, 
    60 M.J. 226
    , 234 (C.A.A.F. 2004)
    (citing United States v. Rynning, 
    47 M.J. 420
    , 422 (C.A.A.F.
    1998)).
    41
    Id.
    42
    United States v. Banks, 
    36 M.J. 150
    , 162 (C.M.A. 1992).
    43
    Id.
    24
    United States v. Bresnahan, No. 04-0559/AR
    stresses that Appellant’s wife was under that increased the risk
    of child abuse.   Such factors included a recent move, financial
    problems, the long hours Appellant worked that kept him away
    from the home, being the caretaker of two very young children,
    and having a chronically-ill child.   Major Webb testified that
    Appellant’s wife was responsible for the cleanliness of the
    household and that the conditions of the house indicated that
    she was neglectful in her housekeeping duties.   Major Webb also
    testified that her neglect signaled abuse.
    The trial counsel was responding to the defense’s attempt
    to establish Appellant’s wife as the perpetrator because she had
    bad habits of uncleanliness by highlighting the fact that two
    different studies found males to be the primary perpetrators in
    shaken baby cases.   The trial counsel was not relying on the
    expert himself to establish that Appellant, as a male, was the
    perpetrator.   In fact, the trial counsel did not use this
    evidence at all during the Government’s case-in-chief.   Rather,
    the trial counsel was questioning the witness’s knowledge of
    studies performed by other doctors pointing to a characteristic
    of Appellant that was statistically linked to shaken baby cases
    to rebut Major Webb’s testimony that certain factors pointed to
    Appellant’s wife as most likely the perpetrator.   The defense
    had opened the door to this otherwise impermissible question.
    25
    United States v. Bresnahan, No. 04-0559/AR
    Moreover, even if the military judge erred in not sua
    sponte excluding such testimony, the error was not plain and
    obvious.   And, for many of the same reasons articulated in the
    harmlessness analysis in the uncharged misconduct issue above,
    any error in admitting this evidence was harmless.
    CONCLUSION
    The decision of the United States Army Court of Criminal
    Appeals is affirmed.
    26
    United States v. Bresnahan, No. 04-0559/AR
    ERDMANN, Judge, with whom EFFRON, Judge, joins
    (dissenting):
    The majority holds that the military judge did not abuse
    his discretion in denying the defense request for expert
    assistance on the subject of false confession.    Because I find
    that the military judge applied an incorrect standard to the
    defense request for expert assistance and that the defense made
    an adequate showing that expert assistance was necessary, I
    would hold that the military judge abused his discretion and
    would reverse the decision of the lower court.1
    In denying the defense request for assistance from an
    expert consultant the military judge concluded:
    a.    There is nothing in the evidence
    received to support any suspicion that
    Accused made false incriminating
    statements or admissions.
    b.    Defense candidly admitted that it was
    requesting Dr. Leo’s assistance to make
    a preliminary determination of whether
    accused made false statements. Stated
    differently, defense counsel is
    searching for evidence that would
    assist in her defense of accused, but
    with little evidence to indicate such
    evidence exists.
    Similar to the military judge, the majority relies on a finding
    that “defense counsel never presented any evidence to suggest
    that Appellant’s confession was actually false.”   United States
    1
    Because I would reverse on Issue II, I would not reach the
    remaining issues.
    United States v. Bresnahan, No. 04-0559/AR
    v. Bresnahan, __ M.J. __, __ (16) (C.A.A.F. 2005).     The majority
    also notes that the military judge made findings of fact that
    support a conclusion that Bresnahan did not make a false
    confession.   Id.    In upholding this ruling of the military
    judge, I am concerned that the majority sets the bar
    unreasonably high for defendants who are seeking the assistance
    of an expert consultant in order to prepare and fairly present a
    defense.
    Bresnahan needed to show a reasonable probability “‘both
    that an expert would be of assistance to the defense and that
    denial of the expert assistance would result in a fundamentally
    unfair trial.’”     United States v. Gunkle, 
    55 M.J. 26
    , 31
    (C.A.A.F. 2001) (quoting United States v. Robinson, 
    39 M.J. 88
    ,
    89 (C.M.A. 1994)).    The conclusion reached by both the military
    judge and the majority suggests that the “assistance to the
    defense” referenced in this test must be in the form of
    favorable testimony or favorable evidence.    Bresnahan, __ M.J.
    at __ (16).   However, when a defendant requests assistance from
    an expert consultant, rather than an expert witness, he should
    not initially be required to show conclusively that evidence
    favorable to his case exists.
    “Consulting with an expert will often be a necessary
    precondition to establishing the expert’s necessity as a
    witness.”   United States v. Warner, __ M.J. __, __ (22)
    2
    United States v. Bresnahan, No. 04-0559/AR
    (C.A.A.F. 2005).   Trial defense counsel made clear to the
    military judge that “the defense is asking for an expert
    consultant at this time, not an expert witness . . . .”
    Bresnahan needed Dr. Leo’s assistance to determine whether there
    was evidence to present in support of his contention that his
    confession was unreliable and that elements of it were false.
    If Bresnahan were able to develop evidence that his confession
    was false prior to receiving expert assistance, then he would
    not need the assistance at all.   Requiring “evidence that such
    evidence exists” as the military judge did here is circuitous
    reasoning.
    To address this “classic military defense counsel
    dilemma[,]”2 where defense counsel requests an expert consultant
    I would require defense counsel to make a colorable showing that
    a given defense may be reasonably available to the defendant.
    Using the three-prong test from United States v. Gonzalez, 
    39 M.J. 459
    , 461 (C.M.A. 1994), the defendant would then be
    required to show that the expert consultant is necessary to
    evaluate and potentially present that defense.3   In this
    instance, Bresnahan made just such a showing.
    2
    United States v. Warner, __ M.J. __, __ (21) (C.A.A.F. 2005)
    (quoting United States v. Kreutzer, 
    59 M.J. 773
    , 777 n.4 (A. Ct.
    Crim. App. 2004), aff’d, 
    61 M.J. 293
     (C.A.A.F. 2005)).
    3
    I note also that this court has found defense counsel to have
    provided ineffective assistance where they have failed to
    explore potential defenses available to a defendant. See, e.g.,
    3
    United States v. Bresnahan, No. 04-0559/AR
    Although Bresnahan’s confession was voluntary and therefore
    admissible at trial, the defense counsel made a colorable
    showing that there was a reasonable possibility she could raise
    doubt in the members’ minds as to the reliability of that
    confession.   This was a viable, distinct, and perhaps crucial
    avenue for the defense to explore.
    Confessions, even those that have been found
    to be voluntary, are not conclusive of
    guilt. . . . [S]tripped of the power to
    describe to the jury the circumstances that
    prompted his confession, the defendant is
    effectively disabled from answering the one
    question every rational juror needs
    answered: If the defendant is innocent, why
    did he previously admit his guilt?
    Crane v. Kentucky, 
    476 U.S. 683
    , 689 (1986).
    United States v. Wean, 
    45 M.J. 461
    , 463 (C.A.A.F. 1997) (finding
    that one of the bases for a finding of ineffective assistance by
    trial defense counsel was that “defense counsel’s approach to
    the use of expert witnesses by the Government, coupled with his
    omission in not using expert testimony, demonstrated a lack of
    understanding of the law and a failure to properly research and
    investigate appellant’s case.”); United States v. Scott, 
    24 M.J. 186
    , 192 (C.M.A. 1987) (“A defense counsel has ‘the duty . . .
    to conduct a prompt investigation of the circumstances of the
    case and to explore all avenues leading to facts relevant to the
    merits of the case and the penalty in the event of
    conviction.’”) (quoting ABA Standards, The Defense Function,
    Standard 4-4.1 (2d ed. 1979)). Trial defense counsel was
    attempting to diligently explore the circumstances surrounding
    Bresnahan’s confession and the meaning of those circumstances.
    The confession was critical evidence in the Government’s case.
    Had she not attempted to explore the reliability of this
    confession Bresnahan may well have had a case for ineffective
    assistance of counsel, and yet she was thwarted in her attempt
    by the military judge’s denial of an expert consultant to assist
    her.
    4
    United States v. Bresnahan, No. 04-0559/AR
    Trial defense counsel told the military judge that the
    defense was focusing on Bresnahan’s emotional state at the time
    of the confession because “as noted by some of the literature,
    in situations where there are child abuse, medical questions
    asked, those are situations that can typically have the
    counterintuitive notion of false confessions come about.”   She
    also identified for the military judge several factors based on
    her own research that might suggest that Bresnahan gave a false
    confession including:   (a) the sophistication of the
    interrogators; (b) the fact that Bresnahan was not able to speak
    to doctors about the condition of his son; and (c) the fact that
    the interrogator told Bresnahan that he needed to tell her what
    he did to his son so that the doctors could save his son’s life.
    Finally, she noted that this research was the defense’s:
    feeble attempt to do what the defense
    expects Dr. Leo will do with precision and
    expertise -- review the evidence, interview
    the witnesses, apply known factors in his
    field of expertise to the facts of this case
    and determine the likelihood of a false or
    coerced confession based on the employment
    of coercive interrogation techniques.
    . . . The defense can go no further in
    developing this line of defense and needs
    expert assistance. Perhaps the defense can
    go no further even with this assistance, but
    the defense needs an expert to so advise or
    to help further develop this defense.
    Not only did defense counsel show that an attack on the
    reliability of the confession was reasonably available, the
    5
    United States v. Bresnahan, No. 04-0559/AR
    three-prong Gonzalez test was also satisfied.     Trial defense
    counsel made clear that she needed the expert to explore and
    help develop the case and the possibility that parts of
    Bresnahan’s confession were false.   The need for an expert
    consultant was supported by a detailed summary of the scientific
    validity and difficulty of this issue as well as a list of
    several factors indicating coercive techniques that might have
    lead Bresnahan to give a false confession.
    Defense counsel explained that the expert could recognize
    and identify factors in the interrogation process and in
    Bresnahan’s emotional state that might support this contention.
    She also explained that her own research was not enough to allow
    her to fully explore the subject because there was too much
    material and evaluating it required greater expertise than she
    possessed.   In particular, defense counsel noted that because of
    the depth and complexity of this area, the defense could not
    properly educate itself in this area for trial.
    Under these circumstances it is clear that the expert
    assistance Dr. Leo could provide was necessary to the defense.
    The majority does not contest the fact “that Dr. Leo possessed
    knowledge and expertise in the area of police coercion beyond
    that of defense counsel and that the defense counsel could
    benefit from his assistance.”   Bresnahan, __ M.J. at __ (15).
    Furthermore, it is clear that without the assistance of Dr. Leo,
    6
    United States v. Bresnahan, No. 04-0559/AR
    trial defense counsel was denied the opportunity to explore a
    reasonable issue that went to the center of the Government’s
    case.    If the members had found Bresnahan’s confession
    unreliable then they might not have found beyond a reasonable
    doubt that he had caused the injuries to Austin.    Denying
    Bresnahan the opportunity to present this defense therefore
    resulted in a “fundamentally unfair trial.”    Gunkle, 55 M.J. at
    31.
    I would find that the military judge abused his discretion
    in denying the defense request for expert assistance, reverse
    the decision of the United States Army Court of Criminal
    Appeals, set aside the findings and sentence, and authorize a
    rehearing.
    7
    

Document Info

Docket Number: 04-0559-AR

Citation Numbers: 62 M.J. 137, 2005 CAAF LEXIS 1105, 2005 WL 2452550

Judges: Gierke, Erdmann

Filed Date: 9/30/2005

Precedential Status: Precedential

Modified Date: 10/19/2024

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