United States v. Benner , 57 M.J. 210 ( 2002 )

IN THE CASE OF
UNITED STATES, Appellee
v.
Chad D. BENNER, Sergeant
U.S. Army, Appellant
No. 01-0827
Crim. App. No. 9801777
United States Court of Appeals for the Armed Forces
Argued April 4, 2002
Decided August 29, 2002
COX, S.J., delivered the opinion of the Court, in which GIERKE,
EFFRON, and BAKER, JJ., joined. CRAWFORD, C.J., filed a
dissenting opinion.
Counsel
For Appellant: Frank J. Spinner (argued); Colonel Adele H.
Odegard and Major Imogene M. Jamison (on brief).
For Appellee: Captain Karen J. Borgerding (argued); Colonel
Steven T. Salata and Major Margaret B. Baines (on brief).
Military Judge: Peter E. Brownback III
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Benner, 01-0827/AR
Senior Judge COX delivered the opinion of the Court.
Appellant was convicted, pursuant to his conditional guilty
pleas, of sodomy with a child and indecent acts, in violation of
Articles 125 and 134, Uniform Code of Military Justice (UCMJ),
10 USC §§ 925 and 934, respectively.1 The Court of Criminal
Appeals affirmed. 55 M.J. 621 (2001).
Prior to entering his pleas, appellant moved to suppress a
confession given to special agents of the U.S. Army Criminal
Investigation Command (CID).2 The issue in this appeal is
whether this confession was voluntary.3 We hold that it was not
1
Appellant was sentenced to reduction to Private E-1, forfeiture
of all pay and allowances, six years’ confinement, and a
dishonorable discharge. The convening authority reduced the
sentence to confinement to five years, deferred the adjudged
forfeitures, and waived the automatic forfeitures for the
benefit of appellant’s stepdaughter, in accordance with Article
58b, UCMJ, 10 USC § 858b.
2
Appellant entered his plea conditionally, as provided in RCM
910(a)(2), Manual for Courts-Martial, United States (2000 ed.).
All cited provisions of the Manual are unchanged from those in
effect at the time of trial.
3
We granted review of the following issue:
WHETHER THE MILITARY JUDGE COMMITTED PREJUDICIAL
ERROR WHEN HE DENIED APPELLANT’S MOTION TO
SUPPRESS APPELLANT’S INVOLUNTARY CONFESSION THAT
WAS GIVEN AFTER A CHAPLAIN IN WHOM APPELLANT
CONFIDED UNDER MIL.R.EVID. 503 TOLD APPELLANT
THAT IF HE DID NOT CONFESS TO LAW ENFORCEMENT
AGENTS, THE CHAPLAIN WOULD DISCLOSE APPELLANT’S
PRIVILEGED COMMUNICATIONS TO THOSE SAME AGENTS.
Argument was heard in this case at the Carey Theater, Fort
Lewis, Washington, as part of this Court’s Project Outreach.
See United States v. Allen, 34 M.J. 228, 229 n.1 (CMA 1992).
2
United States v. Benner, 01-0827/AR
voluntary, and we reverse the decision of the Court of Criminal
Appeals.
FACTS
The facts of this case are unique and are set forth in full
in the opinion of the Army Court of Criminal Appeals. 55 M.J. at
622-23. For purposes of this appeal, we can summarize the facts
as follows. In May of 1998, appellant engaged in an episode of
indecent acts and sodomy upon his four-year-old stepdaughter
while his wife was in the hospital in Germany. In June, the
child first reported the acts to her grandmother, and then to
her mother after she returned from the hospital. Appellant’s
wife confronted appellant, and he admitted the acts to her. No
complaint was made to the military police or through command
channels. Rather, in August, the grandmother removed the child
from Germany to her home in the United States. Also,
appellant’s wife left him and returned to the states.
After the passage of some time and with the urging of his
wife and mother-in-law, appellant decided to seek counseling
from Chaplain (Captain) S. On September 20, 1998, at their
first meeting, appellant was very emotional and confessed to the
chaplain that he had engaged in an inappropriate relationship
with his stepdaughter. At the conclusion of the meeting, the
chaplain advised appellant that he might have to report the
child abuse to the proper authority.
3
United States v. Benner, 01-0827/AR
The following morning, the chaplain contacted the Army
Family Advocacy office and was advised that he was required to
report the child abuse. The chaplain related this to appellant.
Appellant then confessed even more details about his conduct to
the chaplain.
The chaplain told appellant it would be better for him to
confess to the authorities on his own accord, and offered to go
with him to the military police station. They discussed “the
issue of forgiveness, of forgiving himself, [and] that
[confessing] may be a step in helping him deal with that.”
Initially appellant was reluctant to go to the military police
station. Chaplain S testified that, if he had not volunteered
to go with appellant, he doubted that appellant would have made
the report himself.
The chaplain escorted appellant to the Military Police (MP)
station and told Sergeant First Class (SFC) K, the commander of
the MP station, that appellant was at the MP station to make a
statement regarding his “improper relationship with his
stepdaughter.” SFC K called CID, and about an hour later, two
agents arrived. The CID agents warned appellant of his rights
under the 5th Amendment, Article 31(b), UCMJ, 10 USC § 831(b),
and Mil.R.Evid. 305(d), Manual for Courts-Martial, United States
(2000 ed.). The agents did not give a “cleansing” warning
regarding appellant’s earlier confession to the chaplain.
4
United States v. Benner, 01-0827/AR
Appellant agreed to waive his rights and eventually gave a
detailed, six-page, handwritten confession to CID.
THE LAW
When reviewing a decision of the Court of Criminal Appeals
on a military judge’s ruling, “we typically have pierced through
that intermediate level,” examined the military judge’s ruling,
and then decided whether the Court of Criminal Appeals was right
or wrong in its examination of the military judge’s ruling.
United States v. Siroky, 44 M.J. 394, 399 (1996). At trial, the
prosecution has the burden of establishing by a preponderance of
the evidence that a confession was voluntary. Mil.R.Evid.
304(e)(1), Manual, supra; United States v. Bubonics, 45 M.J. 93,
95, recon. denied, 46 M.J. 186 (1996). We review de novo a
military judge’s determination that a confession is voluntary.
United States v. Ford, 51 M.J. 445, 451 (1999), citing Arizona v.
Fulminante, 499 U.S. 279 (1991).
One of the most sacred privileges at common law was the
confidentiality between a priest and penitent. “[It] recognizes
the human need to disclose to a spiritual counselor, in total
and absolute confidence, what are believed to be flawed acts or
thoughts and to receive priestly consolation and guidance in
return.” Trammel v. United States, 445 U.S. 40, 51 (1980).
This privilege was recognized in paragraph 151(b)(2) of the 1951
Manual for Courts-Martial, United States, which provided:
5
United States v. Benner, 01-0827/AR
Also privileged are communications between a person
subject to military law and a chaplain, priest, or
clergyman of any denomination made in the relationship of
penitent and chaplain, priest, or clergyman, either as a
formal act of religion or concerning a matter of
conscience.
When the Military Rules of Evidence were promulgated, Rule
503 expressly recognized a “[c]ommunications to clergy”
privilege. It provides:
A person has a privilege to refuse to disclose
and to prevent another from disclosing a
confidential communication by the person to a
clergyman or to a clergyman’s assistant, if such
communication is made either as a formal act of
religion or as a matter of conscience.
Manual, supra. Furthermore, this privilege is recognized in
paragraph 4-4 of Army Regulation 165-1, Chaplain Activities in
the United States Army (26 May 2000) (superseding 27 Feb. 1998),
and paragraph 3-8 of Army Regulation 608-18, The Family Advocacy
Program (1 September 1995).
Article 31(b), supra, provides:
No person subject to this chapter may
interrogate, or request any statement from an
accused or a person suspected of an offense
without first informing him of the nature of the
accusation and advising him that he does not have
to make any statement regarding the offense of
which he is accused or suspected and that any
statement made by him may be used as evidence
against him in a trial by court-martial.
Additionally, a warning that the servicemember has a right to
counsel is required. Mil.R.Evid. 305(d); United States v.
6
United States v. Benner, 01-0827/AR
Tempia, 16 USCMA 629, 37 CMR 249 (1967). Article 31(d)
provides:
No statement obtained from any person in
violation of this article, or through the use
of coercion, unlawful influence, or unlawful
inducement may be received in evidence
against him in a trial by court-martial.
When a chaplain questions a penitent in a confidential and
clerical capacity, the results may not be used in a court-
martial because they are privileged. Therefore, the Article
31(b) and Tempia warnings are not required. Conversely, if a
military officer who is also a chaplain acts on the premise that
the penitent’s disclosures are not privileged, then warnings are
required.
A confession that follows an earlier confession obtained
due to actual coercion, duress, or unlawful inducement is
presumptively tainted. Ford, 51 M.J. at 450-51, citing United
States v. Phillips, 32 M.J. 76, 79 (1991), and applying the
analysis in Oregon v. Elstad, 470 U.S. 298 (1985). However, a
confession taken in compliance with Article 31(b) and
Mil.R.Evid. 305 that follows an earlier unwarned confession
obtained in violation of Article 31(b) and Mil.R.Evid. 305 is
not presumptively tainted. It is admissible if the subsequent
confession is determined to be voluntary “by the totality of the
circumstances.” Id.; see also Schneckloth v. Bustamonte, 412
U.S. 218, 226 (1973). “The earlier, unwarned statement is a
7
United States v. Benner, 01-0827/AR
factor in this total picture, but it does not presumptively
taint the subsequent confession.” Phillips, supra. The fact
that the subsequent confession was preceded by adequate warnings
is one of the circumstances to be considered. Elstad, supra.
Finally, while a cleansing warning is not a prerequisite to
admissibility, an earlier unwarned statement and the lack of a
cleansing warning before the subsequent statement are also part
of the “totality of the circumstances.” United States v.
Lichtenhan, 40 M.J. 466, 470 (CMA 1994), citing Phillips, supra.
In this situation, where actual coercion, duress, or unlawful
inducement was not involved in appellant’s disclosures to the
chaplain, our task is to review the totality of the
circumstances de novo, and to determine as a matter of law
whether appellant’s subsequent confession to CID meets the
following test:
Is the confession the product of an essentially
free and unconstrained choice by its maker? If
it is, if he has willed to confess, it may be
used against him. If it is not, if his will has
been overborne and his capacity for self-
determination critically impaired, the use of his
confession offends due process.
Ford, supra at 451, quoting Culombe v. Connecticut, 367 U.S.
568, 602 (1961).
ANALYSIS
We need not decide whether appellant’s confession to CID
was presumptively tainted, because we hold that it was
8
United States v. Benner, 01-0827/AR
involuntary. Appellant went to the chaplain for help. Instead,
he was advised that Army Regulations and the Family Advocacy
Center rules mandated that the chaplain “turn him in” and reveal
his confession. Chaplain S revealed appellant’s confidences, in
violation of the privilege protected by Mil.R.Evid. 503 and Army
Regulations, when he told SFC K that appellant was at the MP
station to make a statement regarding his “improper relationship
with his stepdaughter.” When appellant was questioned by the
CID agents, he was informed that he was suspected of indecent
assault. 55 M.J. at 623. Appellant was aware that only the
chaplain could have been the source of this information, and
that his confidences had been betrayed. Faced with this
Hobson’s choice of confessing to CID or having the chaplain
reveal his confession to CID, he had little or no choice but to
confess.
There was no cleansing warning given, but we cannot fault
the CID agents for not providing appellant with a cleansing
warning and an opportunity to consider whether the “cat was out
of the bag.” There is no indication in the record that they
were aware of Chaplain S’s threats to reveal appellant’s
confession, but they were aware of the nature of the offenses
because of Chaplain S’s disclosure to SFC K.
These facts provide too flimsy a foundation for us to
conclude that appellant’s confession was made voluntarily, of
9
United States v. Benner, 01-0827/AR
his own free will and based upon a desire to confess his crimes
to the police officials. Stated succinctly, under these
circumstances, we conclude that appellant’s “will [was]
overborne and his capacity for self-determination [was]
critically impaired.” Thus, “the use of his confession offends
due process.” Columbe, supra at 602.
Appellant was seeking clerical help. Instead of providing
confidential counseling, the chaplain informed appellant that he
was obliged to report appellant’s action and thus, unknown to
the chaplain, breach the “communications to clergy” privilege.
At this point, the chaplain was acting outside his
responsibilities as a chaplain, and he was acting solely as an
Army officer. As such, he was required to provide an Article 31
warning before further questioning. Although CID advised
appellant of his rights, the chaplain had made it clear that if
he invoked his rights, the chaplain would reveal his confession.
Under these facts, we hold that the Government did not carry its
burden of establishing that appellant’s confession was
voluntary. See United States v. Bubonics, 45 M.J. at 96; United
States v. Martinez, 38 M.J. 82, 86-87 (CMA 1993). Accordingly, we
must reverse.
CONCLUSION
The decision of the United States Army Court of Criminal
Appeals is reversed. The findings of guilty and sentence are
10
United States v. Benner, 01-0827/AR
set aside. The record of trial is returned to the Judge
Advocate General of the Army. A rehearing may be ordered.
11
United States v. Benner, No. 01-0827/AR
CRAWFORD, Chief Judge (dissenting):
Because the majority misreads the facts of this case,
rejects the military judge’s special findings of fact without
declaring them clearly erroneous, and misapplies the law
relating to the voluntariness of confessions, as well as to the
application of the exclusionary rule to evidentiary privileges,1
I respectfully dissent.
First, the facts ineluctably lead me to but one conclusion
-- the impetus for appellant’s confessions was his wife, not
misstatements by Chaplain S. Both appellant at trial and the
Army Court of Criminal Appeals agree with me. United States v.
Benner, 55 M.J. 621, 623-24 (Army Ct. Crim. App. 2001).
Second, the Fifth Amendment provides that “[n]o person ...
shall be compelled in any criminal case to be a witness against
himself nor be deprived of life, liberty, or property, without
due process of law....” U.S. Const. amend. V. Additionally,
Article 31(d), Uniform Code of Military Justice, 10 USC §
831(d), prohibits the admission of any statement into evidence
that is “obtained ... through the use of coercion, unlawful
influence, or unlawful inducement....” Both require the
accused’s confession to be voluntary in order to be admissible
into evidence. Dickerson v. United States, 530 U.S. 428, 433
1
The exclusionary rule does not apply to a violation of a general regulation.
See, e.g., United States v. Caceres, 440 U.S. 741 (1979); United States v.
Allen, 53 M.J. 402 (2000).
United States v. Benner, No. 01-0827/AR
(2000); see also United States v. Raymond, 38 M.J. 136 (CMA
1993)(discussing the history of Article 31).
The issue in this case is whether appellant’s confession
was voluntary. The waiver of one’s right against self-
incrimination set forth in Miranda v. Arizona, 384 U.S. 436
(1966), and Article 31 must be the “product of a free and
deliberate choice rather than intimidation, coercion, or
deception.” Moran v. Burbine, 475 U.S. 412, 421 (1986); see
United States v. Harvey, 37 M.J. 140 (CMA 1993); Mil.R.Evid.
304(c)(3), Manual for Courts-Martial, United States (2000 ed.).
Voluntariness is measured in a number of ways. In the final
analysis, it is the “totality of all the surrounding
circumstances -- both the characteristics of the accused and the
details of the interrogation” -- that answers the question of
voluntariness. Schneckloth v. Bustamonte, 412 U.S. 218, 226
(1973).
Finally, neither state nor federal courts have applied the
exclusionary rule to evidentiary privileges, let alone to
evidence derived from evidentiary privileges.2 “Whatever [the]
origins [of the evidentiary privileges], these exceptions to the
demand for every man’s evidence are not lightly created nor
2
United States v. Seiber, 12 USCMA 520, 523, 31 CMR 106, 109 (1961)(the
violation of a privilege has no applicability to extra-judicial occurrences);
United States v. Squillacote, 221 F.3d 542, 559-61 (4th Cir. 2000); State v.
Sandini, 395 So. 2d 1178 (Fla. App. 1981); People v. Burnidge, 687 N.E.2d 813
(Ill. 1997); Chase v. State, 706 A.2d 613 (Md. App. 1998); see also United
States v. Boffa, 513 F. Supp. 517 (D.Del. 1981).
2
United States v. Benner, No. 01-0827/AR
expansively construed, for they are in derogation of the search
for the truth.” United States v. Nixon, 418 U.S. 683, 710
(1974). Disclosure of evidence, rather than the suppression of
evidence, promotes truthfinding, and the evidentiary privileges
should be strictly confined and not expansively interpreted.
FACTS
Several facts were not contested at trial:
(1) Appellant’s date of birth is June 20, 1973, and he has
a GT score of 105.
(2) Ms. Benner, her daughter (the victim) from a previous
relationship, and son from her marriage to appellant arrived in
Babenhausen, Germany, in March 1998.
(3) Ms. Benner was hospitalized in May 1998. It was during
this hospitalization that appellant committed sodomy and
committed indecent acts on the child.
(4) Appellant admitted coming forward after discussing with
his wife what he did to his stepdaughter and realizing that he
needed help. His wife was thinking about leaving him and
returning to the United States. Ms. Benner and her children
subsequently left Germany.
(5) Appellant’s wife did not report him “because she
wanted to see whether [appellant] would take responsibility for
his actions and report [the incident] himself.”
3
United States v. Benner, No. 01-0827/AR
The judge made various findings of fact, which we are
bound to accept unless clearly erroneous. See, e.g., United
States v. Hollis, 57 M.J. 74, 79 (2002). They are:
(1) Appellant met with Chaplain S in June 1998 concerning
assistance in getting a compassionate reassignment to the Fort
Sill area (the location to which Ms. Benner had returned).
Military Judge’s Findings, App. Ex. X, ¶ e.
(2) The next time appellant met with Chaplain S was
Sunday, September 20, 1998. At this session, he was sobbing and
“told Chaplain [S] that he had had an improper relationship with
his stepdaughter.” No details of this improper relationship
were revealed. Chaplain S informed appellant that he would
probably have to report this possible child sexual abuse to
military authorities, but would need to confirm his reporting
responsibilities the following day. Id. at ¶ h.
(3) On Monday, September 21, Chaplain S called Family
Advocacy personnel, who advised him that he was required to
report child sexual abuse. Chaplain S then informed appellant
that he would have to report him, but that he “hoped [appellant]
would take the responsibility for his actions and report
himself.” Thereafter, appellant and Chaplain S engaged in a
detailed discussion concerning the acts appellant committed with
his stepdaughter. Id. at ¶ i.
(4) During this session, lasting approximately 20-30
minutes, [appellant] told Chaplain [S] some, but not
4
United States v. Benner, No. 01-0827/AR
all, of the details concerning the acts.... [Appellant]
made the decision to tell Chaplain [S] about the details
of the acts, despite the fact that Chaplain [S] had told
[appellant] that Chaplain [S] had an obligation to
report to authorities.
Id. at ¶ j.
(5) Chaplain S informed appellant “that it would be best
for him as a person” to confess and that Chaplain S would
accompany him to the military police station for moral support.
Appellant
was hesitant to go to the Military Police Station and
confess, but after further discussion, he agreed that
it would be better if he confessed right away. He and
Chaplain [S] agreed that making a confession would be
the best way for [appellant] to get the forgiveness of
others and to help [appellant] forgive himself.
Chaplain [S’s] prompting of [appellant] to confess was
based upon his observation of [appellant] as a soul in
torment.... Chaplain [S’s] actions and recommenda-
tions were based upon his desire as a chaplain to help
[appellant] through his emotional and spiritual
crisis.
Id. at ¶ k.
(6) Appellant
made the independent decision to go to the Military
Police Station and make a formal confession to the
Military Police because he thought it would be the best
thing for him to do. One of the factors in his decision
was that Chaplain [S] had told [him] that Chaplain [S]
had a duty to report the improper relationship....
[T]he primary reason for [appellant’s] decision to
confess to the Military Police was that [appellant]
believed it would help [him] with the torment that he
was going through. His decision to confess to the
Military Police was not the result of [him] submitting
to Chaplain [S] or Chaplain [S’s] position as a captain
in the United States Army. [Appellant] knew at the time
that Chaplain [S] was not ordering him to confess. ...
[T]he primary motivation for his decision to confess to
5
United States v. Benner, No. 01-0827/AR
the Military Police was not some fear that Chaplain [S]
would report the matter.
Id. at ¶ l.
(7) [B]y his course of conduct -- deciding that he
should confess to the Military Police, deciding to go
to the MP station, deciding that he wanted Chaplain
[S] to accompany him for moral support, and
acquiescing to Chaplain [S] telling the MP Station
Commander why they were there -- [appellant] consented
to Chaplain [S] divulging to the MP Station Commander
matters which Chaplain [S] had learned of during a
priest-penitent conversation.
Id. at ¶ n.
(8) Chaplain [S] went out front and sat with [appellant]
for approximately 10 minutes.... [Appellant] was left in
the MP station alone. [There was] no evidence that there
was any physical or moral restraint placed upon [appellant]
to remain at the MP station.... [Appellant] was free to
leave the MP Station at any time during this wait....
[Appellant] waited at the MP Station for over an hour
before the CID agents arrived.... [Appellant] voluntarily
waited for the CID agents to arrive....
Id. at ¶ p.
(9) [The CID agent] was not aware of any of the specifics
of the case.... He was only told by SFC King that there
was a soldier who wanted to discuss a sexual assault of
some kind.... [The CID agent] did not know at the time
that [appellant] had made prior incriminating admissions to
anyone. [Appellant] did not tell [the CID agent] that he
had made prior incriminating admissions to anyone.
Id. at ¶ q.
(10) In filling out the rights advisement ..., [appellant]
hesitated when he came to the right to counsel. He was
obviously considering whether or not he wanted to have
counsel.... However, [appellant] took his time, considered
his right to counsel, and he then waived his right to
counsel. [Appellant] was fully aware of his rights to
counsel and against self-incrimination.... [T]he decision
by [appellant] to waive his rights and submit to an
6
United States v. Benner, No. 01-0827/AR
interview with the CID was an informed and voluntary
decision made of his own free will.
Id. at ¶ r.
(11) Appellant’s confession was “in his own handwriting”
and was made “while he was left alone in the office.” Appellant
“was aware of what he was doing,... was not sleep-deprived” to
any extent that would have affected adversely his mental
processes, and the CID agents “in no way, shape, or form coerced
or induced the confession.” Id. at ¶ s.
At trial, appellant’s wife testified during sentencing that
she confronted her husband with the victim’s allegations shortly
after returning from the hospital and appellant did not deny the
child’s accusation. Appellant’s unsworn statement at sentencing
revealed that he was 25 years old and had spent 7 years in the
United States Army. In reading from a prepared statement,
appellant said:
I failed as a father...[Sobbing]...and didn’t deny
anything when confronted about what happened. I know I
needed to get help in order to live my life correctly.
My wife and I briefly talked about it and agreed that I
would get help.
* * *
The day after the incident occurred, I sat down
with Maria and started crying. I explained to her that
what I did was wrong and not to let anyone do that to
her again.
Since that day I’ve done all that I can do to make
things right. I looked for help on my own. And when
that failed, I went to the chaplain for help. He
convinced me that the best thing to do was to turn
myself in, and the next day I did so.
7
United States v. Benner, No. 01-0827/AR
I pled guilty here because...excuse me...I pled
guilty here today because I was wrong. And it [sic]
there was anything else I could do to show you how
terrible I feel, I would do so.
DISCUSSION
Voluntariness of a confession is a question of law subject
to our de novo review. Arizona v. Fulminante, 499 U.S. 279, 287
(1991). Any special findings of fact are the basis for
reviewing the question of voluntariness and are binding on this
Court unless those findings are clearly erroneous. United
States v. Ford, 51 M.J. 445, 451 (1999).
In reviewing the totality of the circumstances, we do not
presume that appellant’s confession to the chaplain tainted his
later voluntary statement to the CID agents. See United States
v. Norfleet, 36 M.J. 129, 131 (CMA 1992). The presumption of
taint arises after a confession is obtained due to “actual
coercion, duress, or inducement.” Ford, 51 M.J. at 450, quoting
United States v. Phillips, 32 M.J. 76, 79 (CMA 1991). Here, there
was no actual coercion of appellant by Chaplain S. “There is a
vast difference between the direct consequences flowing from
coercion of a confession by physical violence or other
deliberate means calculated to break the suspect’s will and the
uncertain consequences of disclosure of a ‘guilty secret’ freely
given in response to an unwarned but non-coercive question....”
8
United States v. Benner, No. 01-0827/AR
Oregon v. Elstad, 470 U.S. 298, 312 (1985); see United States v.
Murphy, 39 M.J. 486, 488 (CMA 1994).
In Elstad, the Supreme Court addressed an issue similar to
that at hand. There, the police officers who arrested Elstad in
his home asked incriminating questions, and received
incriminating responses thereto, without advising the suspect of
his rights pursuant to Miranda. However, at the police station,
Elstad was given a proper rights advisement, waived those
rights, and gave a full admission of his criminal activity. The
Supreme Court held:
We must conclude that, absent deliberately coercive or
improper tactics in obtaining the initial statement,
the mere fact that a suspect has made an unwarned
admission does not warrant a presumption of
compulsion. A subsequent administration of Miranda
warnings to a suspect who has given a voluntary but
unwarned statement ordinarily should suffice to remove
the conditions that precluded admission of the earlier
statement. In such circumstances, the finder of fact
may reasonably conclude that the suspect made a
rational and intelligent choice whether to waive or
invoke his rights.
470 U.S. at 314; see United States v. Marquardt, 39 M.J. 239
(CMA 1994).
The record shows that appellant was neither inexperienced
nor immature. He was of reasonable intelligence. He
voluntarily sought out Chaplain S on September 20 and without
being questioned, confessed, in the hopes of reuniting his
family (a process that started three months earlier when he
asked Chaplain S for compassionate reassignment help).
9
United States v. Benner, No. 01-0827/AR
Appellant’s movement was not in any way restricted throughout
this entire process. Specifically, if he had wanted to talk to
an attorney after being advised on September 20 that the
chaplain would have to report his sexual abuse to proper
authorities, appellant could have done so. Instead, he returned
to see the chaplain. His choice to bare his soul to the CID
investigators after being warned of his rights was both rational
and a voluntary exercise of appellant’s free will. It certainly
was not coerced.
We know that neither the Fifth Amendment nor Article 31 are
concerned with moral or psychological pressures to confess
unless, of course, such pressure is applied through actual
physical or official coercion. See Elstad, supra; Rhode Island
v. Innis, 446 U.S. 291, 303 (1980); Oregon v. Mathiason, 429
U.S. 492, 495-96 (1977); Raymond, 38 M.J. at 140; United States v.
Fisher, 21 USCMA 223, 44 CMR 277 (1972). As the Supreme Court
said in Elstad: “This Court has never held that the
psychological impact of voluntary disclosure of a guilty secret
qualifies as state compulsion or compromises the voluntariness
of a subsequent informed waiver.” 470 U.S. at 312. Likewise,
the Supreme Court “has never embraced the theory that a
defendant’s ignorance of the full consequences of his decisions
vitiates their voluntariness.” Id. at 316; see California v.
Beheler, 463 U.S. 1121, 1125-26 n.3 (1983); McMann v.
10
United States v. Benner, No. 01-0827/AR
Richardson, 397 U.S. 759, 769 (1970). The Supreme Court has
refused to find that a defendant who confesses after being
falsely told that his co-defendant had turned against him does
so involuntarily. See Frazier v. Cupp, 394 U.S. 731 (1969).
While appellant may have been under some stress because of
his family’s return to Oklahoma as a result of his criminal
misconduct, there is no support in the record for the
proposition that he was so distraught or otherwise emotionally
traumatized so as not to be able to exercise his free will. The
facts, as they exist in the record of trial and as found by the
military judge, do not support the majority’s conclusion that
appellant’s will was overborne so as to produce an unreliable,
involuntary confession. The Government has clearly established
that appellant exercised his free will when he chose to speak
with the CID agents.
After accompanying appellant to the military police
station, Chaplain S related to SFC K that appellant was present
to make a statement about “an improper relationship with his
stepdaughter that occurred while appellant’s wife was in the
hospital and appellant had been drinking alcohol. Chaplain S
did not provide any other details of appellant’s misconduct to
SFC K.” 55 M.J. at 623. How the interrogating officials from CID
decided to warn appellant of his Article 31 rights for “indecent
assault” is unclear, but there is no evidence that the
11
United States v. Benner, No. 01-0827/AR
interrogating officials used appellant’s confession to Chaplain
S, who departed the military police station ten minutes after
escorting appellant there and fifty minutes prior to the arrival
of the CID representatives. Accordingly, it makes no difference
whether Chaplain S was acting in his clerical capacity or as an
Army officer -- no cleansing warning was required.
If there is an individual who was betrayed in this case, it
is the innocent four-year-old child victim of sexual abuse,
appellant’s stepdaughter. Appellant, ostensibly the nurturing
stepfather, betrayed that role by sexually abusing his step-
daughter while his wife was hospitalized. Now, because of the
majority’s misapplication of the facts and law, an eight-year
old will again have to relive the nightmare, as she, along with
the others to whom appellant may have confessed, will be called
back into court to testify during the rehearing which will
surely be ordered.
For all of the above reasons, I respectfully dissent.
12