Filed: Sep. 30, 2005
Latest Update: Mar. 26, 2017
Summary: , United States v. Bresnahan, 61 M.J.that Appellant previously injured Austin.assistance on the subject of false confession. 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.
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
