United States v. Bubonics , 1996 CAAF LEXIS 63 ( 1996 )

Opinion of the Court

EVERETT, Senior Judge:

After a contested trial at Naval Air Station Oceana, Virginia Beach, Virginia, a special court-martial (military judge sitting alone) convicted Bubonies of larceny of personal property from a fellow sailor’s locker, see Art. 121, Uniform Code of Military Justice, 10 USC § 921. His sentence, which the convening authority subsequently approved 139 days after trial, extended to a bad-conduct discharge, confinement and forfeiture of $200.00 pay per month for 3 months, a fine of $310.00 (with provision for further confinement if not paid), and reduction to the lowest enlisted grade.

In the Court of Military Review ¹ Bubonics maintained, as he had at trial, that his confession to the larceny should not have been admitted into evidence because it was the involuntary product of police coercion, unlawful influence, or unlawful inducement. See Mil.R.Evid. 304(a) and (c)(3), Manual for Courts-Martial, United States (1995 ed.). A majority of that court agreed and set aside the conviction and sentence, with one judge dissenting. 40 MJ 734, 741 (1994).

In timely fashion thereafter, the Judge Advocate General sent the case to this Court, see Art. 67(a)(2), UCMJ, 10 USC § 867(a)(2)(1989), and asked us to answer the following two-part question:

DID THE NAVY-MARINE CORPS COURT OF MILITARY REVIEW ERR AS A MATTER OF LAW IN REVERSING THE MILITARY JUDGE’S FINDING THAT [THE ACCUSED’S] CONFESSION WAS INADMISSIBLE WHEN:

1. IT HELD, IMPLICITLY, THAT A CONFESSION IS PER SE INADMISSIBLE WHEN A STATEMENT WHICH COULD BE CONSTRUED TO BE A THREAT TO PROSECUTE OR HOLD AN ACCUSED IN CUSTODY UNLESS HE CONFESSED IS MADE DURING AN INTERROGATION; AND,

2. UNDER THE TOTALITY OF THE CIRCUMSTANCES [THE ACCUSED’S] CONFESSION WAS NOT THE PRODUCT OF COERCION, UNLAWFUL INFLUENCE OR UNLAWFUL INDUCEMENT?

Now, we hold that: 1) the first part of the certified question is premised on a misconstruction of the majority opinion below, which does reflect a proper consideration of the totality of the circumstances when evaluating the voluntariness of Bubonies’ confession, see Schneckloth v. Bustamante, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973);² and 2) upon considering the totality of the circumstances as it found those circumstances to be, the court below reached the permissible conclusion that the confession was involuntarily given as a result of “coercive police activity,” see generally Colorado v. Connelly, 479 U.S. 157,167,107 S.Ct. 515, 522, 93 L.Ed.2d 473 (1986), and United States v. Norfleet, 36 MJ 129, 131 (CMA 1992) (causal connection necessary between coercive police conduct or overreaching and confession).

I

Voluntariness of a confession is a question of law that an appellate court independently reviews, de novo. Arizona v. Fulminante, 499 U.S. 279, 287, 111 S.Ct. 1246, 1252, 113 L.Ed.2d 302 (1991); United States v. Martinez, 38 MJ 82, 86 (CMA 1993); S. Childress & M. Davis, 2 Federal Standards of Review [hereafter Childress & Davis] § 11.13 (2d ed. 1992); see 1 Childress & Davis, supra, § 2.14. The necessary inquiry is whether the confession is the product of an essentially free and unconstrained choice by its maker. If, instead, the maker’s will was overborne and his capacity for self-determination was critically impaired, use of his confession would offend due process. Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 1879, 6 L.Ed.2d 1037 (1961). The burden in this regard is on the Government, as the proponent of admission of the evidence, to prove by a preponderance of the evidence that the confession was voluntary. Mil. R.Evid. 304(e); United States v. D.F., 63 F.3d 671, 679 (7th Cir.1995).

As the first part of the certified question recited above suggests, this inquiry involves an assessment of “the totality of all the surrounding circumstances — both the characteristics of the accused and the details of the interrogation.” Schneckloth v. Bustamonte, supra at 226, 93 S.Ct. at 2047. Here, however, the Government contends that, rather than putting all the surrounding circumstances onto the scale, the Court of Military Review focused almost exclusively on the interrogator’s threat to turn Bubonics over to civilian authorities for confinement, and impliedly prosecution, unless he confessed to the larceny.

We do not agree with this characterization of the majority opinion below. In two separate portions of the opinion — once in the section headed “The Law” and later in the section entitled “Application ” — it clearly articulated its responsibility to assess the “totality of all the surrounding circumstances.” 40 MJ at 739, 741. Additionally, it reaffirmed its awareness of this principle when it discussed the impact on voluntariness of the “ ‘Mutt-and-Jeff [good-guy/bad-guy] routine” used by the two interrogators; the majority referred to that tactic as “a psychological ploy which should be considered, along with all other relevant facts and circumstances, in determining whether an accused’s will was overborne and his confession was obtained through the use of coercion, unlawful influence, or unlawful inducement.” Id. at 740 (emphasis added). Finally, it is clear to us that the majority below did not merely pay lip service to this principle: In a lengthy paragraph concluding its analysis in the “Application ” section of its opinion, the majority below extensively set out with particularity “the relevant facts and circumstances, both pro and con____” Id. at 740-41.

Of course, we recognize that the majority below was greatly influenced by the effective combination of two particular factors: the threat to turn appellant over to civilian authorities, made in the context of a good-guy/bad-guy interrogation style. Indeed, in holding that the Government had not carried its affirmative burden to show voluntariness, Senior Judge Mollison for the majority wrote: “The conclusion that the appellant retained sufficient free will to disregard the threat, delivered by means of the stratagem of the ‘Mutt-and-Jeff route, was a matter of pure speculation.” Id. at 741.

The court’s responsibility to consider the totality of the surrounding circumstances, however, does not translate into a prescription to weigh all such factors evenly. The majority below forthrightly wrote that, while assessing all relevant factors, “[t]he import of the factors vary according to the circumstances and the state of mind of the accused.” Id. at 739. We cannot quarrel with such common sense. In fact, it seems logically self-evident — from the mandate, itself, to consider the totality of all the circumstances — that the risk of havoc posed by a bull in a china shop is distinctly different from such a risk posed by the same bull in a pasture. See generally United States v. Martinez, 38 MJ at 87 (“‘Totality of the circumstances’ does not connote a cold and sterile list of isolated facts; rather, it anticipates a holistic assessment of human interaction.”).

II

Having said the foregoing, we now acknowledge that our own analysis, on de novo review of the voluntariness of Bubonics’ confession, essentially parallels that of the majority opinion in the Court of Military Review. 40 MJ at 739-41. Accordingly, with regard to the circumstances surrounding the confession and in answer to the second part of the certified issue, we adopt the opinion below rather than reiterate it. •

To that analysis, however, we add the observation that there was no evidence that Bubonics ever had been involved with military justice before the night of his apprehension and interrogation. Suddenly, this sailor of some 2 1/2 years’ experience, 40 MJ at 741, who had been conditioned throughout that time to respond with discipline to figures of authority, was apprehended, placed in irons, and transported to a small interrogation room. When he did not react in a manner to please his interrogator, a supervisory agent stormed into the room; vented his wrath; “yell[ed] at the accused that he didn’t have time for the accused, and that he could sign a warrant to have him arrested by the Virginia Beach Police”; and “slammed the door when he left the door way____”

We recognize, of course, that appellant was advised of his pertinent rights under Article 31, UCMJ, 10 USC § 831. Under usual circumstances, such an advisement fairly could be seen to overcome any psychological pressure to respond to authority, to which this Court long has been sensitive. See, e.g., United States v. Harvey, 37 MJ 140, 143 (CMA 1993); United States v. Lewis, 12 MJ 205, 206 (CMA 1982); United States v. Duga, 10 MJ 206,210 (CMA 1981); United States v. Armstrong, 9 MJ. 374, 378 (CMA 1980); United States v. Gibson, 3 USCMA 746, 752, 14 CMR 164,170 (1954). Consistent with the view of the majority below, however, we do not believe that this combination of factors— a threat to turn Bubonics over to civilian authorities, made in the context of a disfavored (though not per se coercive) good-guy/ bad-guy interrogation tactic, by a person in a position of authority over a sailor who has been conditioned to respond to authority — is a usual circumstance.

Accordingly, after a de novo assessment of the totality of the circumstances, both pro and eon, we agree with the majority of the Court of Military Review³ in light of the foregoing, that the Government did not carry its affirmative burden to demonstrate by a preponderance of the evidence that Bubonics’ confession was voluntarily given as a product of his own free will and intellect. Although the Government has made no claim in this Court that admission of the confession into evidence, if error, was harmless, we add that we agree with the majority below (40 MJ at 741) as well, that it was not.

Ill

The decision of the United States Navy-Marine Corps Court of Military Review setting aside the findings and sentence is affirmed.

Chief Judge COX and Judge GIERKE concur.

1 . See 41 MJ 213, 229 n. * (1994).

2 . Although Schneckloth involved voluntariness of consent to a search — rather than voluntariness of a confession — the Supreme Court explained that the same analysis would apply to either issue. 412 U.S. 218, 273-74, 93 S.Ct. 2041, 2071-72, 36 L.Ed.2d 854 (1973).

3 . The Government points out that, when considering voluntariness of a confession in United States v. Martinez, 38 MJ 82, 86 (CMA 1993), we commented that “the military judge was in a unique position to decide the appropriate weight to give appellant’s assertion of an overborne will," which “vantage point is one that simply cannot be reproduced, either by the Court of Military Review or by this Court.” That case was a government appeal under Article 62, Uniform Code of Military Justice, 10 USC § 862, from an interlocutory ruling by the military judge. This case, however, came to the Court of Military Review in the usual course of appellate review under Article 66, UCMJ, 10 USC § 866. In this instance, that court is free to apply its “awesome, plenary, de novo power of review” and to " 'substitute its judgment' for that of the militaiy judge.” See United States v. Cole, 31 MJ 270, 272 (CMA 1990).

Moreover, the above-quoted language from Martinez was stated in the context of a military judge having expressed that he had been "particularly impressed with appellant’s own testimony.” We commented as follows about that unusual occurrence: “Where, as here, the military judge expresses special influence of that unique viewpoint on his judgment, that expression must weigh heavily in our reaching our own determination.” 38 MJ at 86. Thus, properly viewed, both as to legal posture and as to the special circumstances of that case, we see no inconsistency between Martinez and our opinion today.