United States v. Ellis , 57 M.J. 375 ( 2002 )

UNITED STATES, Appellee
v.
Timothy J. ELLIS, Aviation Electronics Technician Second Class
U.S. Navy, Appellant
No. 01-0590
Crim. App. No. 98-00729
United States Court of Appeals for the Armed Forces
Argued March 19, 2002
Decided September 30, 2002
CRAWFORD, C.J., delivered the judgment of the Court, in
which GIERKE, J., joined. SULLIVAN, S.J., filed an opinion
concurring in part and in the result. BAKER, J., filed an
opinion concurring in the result. EFFRON, J., filed a
dissenting opinion.
Counsel
For Appellant: Lieutenant Rebecca S. Snyder, JAGC, USN
(argued).
For Appellee: Lieutenant Jason A. Lien, JAGC, USNR (argued);
Colonel R. M. Favors, USMC (on brief); Major Robert M. Fuhrer,
USMC, and Lieutenant Kevin S. Rosenberg, JAGC, USNR.
Amicus Curiae: Donald L. Vieira (law student)(argued); Steven
H. Goldblatt and Abigail V. Carter (supervising attorneys), and
Erin M. Schiller (on brief) - For the Appellate Litigation
Program at the Georgetown University Law Center.
Military Judge: Daniel J. D’Alesio, Jr.
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Ellis, No. 01-0590/NA
Chief Judge CRAWFORD delivered the judgment of the Court.
Appellant was charged with assaulting his two-and-a-half-
year-old son, Timothy Ellis, Jr. (Timmy), on June 2, 1994, and
on June 3, 1994. He was also charged with murdering Timmy on
June 4, 1994. Contrary to his pleas, appellant was convicted by
officer and enlisted members of involuntary manslaughter and
assault upon a child, in violation of Articles 119 and 128,
Uniform Code of Military Justice (UCMJ), 10 USC §§ 919 and 928.
The convening authority approved the sentence of a bad-conduct
discharge, six years’ confinement, total forfeitures, and
reduction to the lowest enlisted grade. The Court of Criminal
Appeals affirmed the findings and sentence in an opinion that
chronicles the facts and evidence. 54 M.J. 958 (2001). We
granted review of the following issues:
I. WHETHER THE MILITARY JUDGE ERRED IN FAILING TO
SUPPRESS APPELLANT’S INVOLUNTARY CONFESSION.
II. WHETHER THE MILITARY JUDGE ERRED IN FAILING TO
DISMISS THE CHARGES OR TO ORDER OTHER APPROPRIATE
RELIEF BASED ON THE GOVERNMENT’S DESTRUCTION OF KEY
EVIDENCE.
We hold that the military judge did not err in failing to
suppress the confession, and that any error in failing to take
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appropriate action because of the destruction of evidence was
harmless beyond a reasonable doubt.1
BACKGROUND
Two-and-a-half-year-old Timmy was one of seven children in
the home of appellant and his wife. At the time of his death,
Timmy weighed 38 pounds and was 35 inches in length. In April,
1994, one month after appellant gained custody over Timmy and
his four-year-old sister Teresa from appellant’s ex-wife (and
mother of the children), he called Ms. Carmen L. Colon, a case
manager for the Family Advocacy Program at the Naval Air
Station, Jacksonville, Florida. Appellant told Ms. Colon that
he was having problems coping with Timmy’s and Teresa’s impact
on the family and indicated he wanted to return them to the
custody of the state rather than to his ex-wife. As appellant
was undergoing family counseling, no decision was made on his
request to return Timmy to the state for care.
On June 4, 1994, appellant’s wife brought Timmy, who was
unconscious, to the Naval Hospital in Jacksonville. He was then
transferred to the University of Florida Medical Center (Medical
Center), where he died four days later.
1
We heard oral argument in this case at the Georgetown University Law Center,
Washington, DC, as part of the Court’s “Project Outreach.” See United States
v. Pritchard, 45 M.J. 126, 127 n.1 (1996).
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On June 8, Mr. Louis N. Eliopulos, the Chief Investigator
and Operations Manager for District Four, Medical Examiner’s
Office, Jacksonville, was informed of Timmy’s death by someone
associated with organ retrieval at the Medical Center.
Mr. Eliopulos called Detective Anthony Hickson of the
Jacksonville Sheriff’s Office, Homicide Division, that same day
to inform him of Timmy’s death. Prior to Mr. Eliopulos’s
telephone call, Detective Hickson knew nothing about Timmy’s
death. At the time of this initial telephone call, there was no
suspicion of homicide -- Mr. Eliopulos called Detective Hickson
because it was a case for donor organs. After Mr. Eliopulos’s
telephone call was received, Detective Hickson read a report
from Mr. Ishmael Woods, a Human Resources Services (HRS)
caseworker. Mr. Woods was the official child abuse investigator
for HRS on this case. Detective Hickson remembered Mr. Woods’s
report reflecting the opinion of a doctor that this was not a
child abuse case.
On June 9, Dr. Margarita Arruza, an Associate Medical
Examiner for Jacksonville, conducted an autopsy on Timmy.
Dr. Arruza determined that the cause of death was blunt trauma
to the head. Detective Hickson talked to either Mr. Eliopulos
or Dr. Arruza on June 9 after the autopsy. After that
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conversation, Detective Hickson suspected that Timmy’s death was
due to “child abuse homicide.”
On June 10, when appellant and his wife voluntarily arrived
at the Jacksonville Sheriff’s Office, Detective Hickson
certainly suspected a case of child abuse homicide, but he had
conflicting reports concerning the possible causes of Timmy’s
death. Appellant and his wife were met by Mr. Eliopulos and
Detective Hickson. Mr. Eliopulos was present pursuant to normal
operating procedures when one of the caregivers discovers an
injured child. He had no substantial role in the interrogation
and was present to gather medical, social, and family history
information from appellant and his wife.
After gathering information and listening to the initial
questioning of appellant and Mrs. Ellis, Mr. Eliopulos called
his office to determine whether the victim’s injuries could have
been caused by the victim accidentally striking his head on a
desk as Mrs. Ellis intimated. After determining that such a
striking lacked sufficient force to cause the injuries observed
at the autoposy, Mr. Eliopulos informed Sergeant Frank Japour
and Detective Hickson that he believed a formal interrogation of
both family members was appropriate and left the office.
Based upon the initial interviews, Detective Hickson
concluded that the victim had been in the sole care of appellant
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and his wife before he was brought to the hospital. He also
concluded that neither appellant nor his wife had provided a
satisfactory explanation for the son’s injury. However, neither
was arrested. At that point, Detective Hickson decided to
proceed with separate accusatory interviews. Appellant and his
wife, who separately were provided with Miranda warnings, each
waived the privilege against self-incrimination, as well as the
right to consult with counsel. 54 M.J. at 960.
As described by the Court of Criminal Appeals, Detective
Hickson, in the separate interrogations of appellant and his
wife, first “informed each of them that he believed there was
probable cause to arrest both of them for child abuse.” Id.
Next, he “indicated that, if both of them were arrested, their
other six children would probably be removed from their home by
officials from the Department of Human and Rehabilitative
Services [HRS] and temporarily placed in foster care.” Id.
Both appellant and his wife denied any pertinent knowledge.
Appellant’s wife, who was interviewed first, also asked to speak
to appellant. That request, which was denied initially, was
granted after his interrogation in the hopes that it would lead
to further information. After meeting with his wife for about
15 minutes, appellant indicated that he wanted to talk.
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After appellant had waived his rights in writing, Detective
Michael Robinson and Sergeant Japour made an audio tape of
appellant’s statement under oath. He confirmed being advised of
his rights and his willingness to speak with them without a
lawyer. Appellant indicated Timmy was the hardest child to deal
with, and Teresa, the four-year-old who looked like a two-year-
old, was just a little bit better. Both Teresa and Timmy were
his children by his first wife. After she stopped taking birth
control pills, she became pregnant so appellant would not ask
for a divorce. He admitted Timmy “wasn’t brought into this
world under the best of conditions, [but] I still loved him.”
When Timmy and Teresa moved in during March 1994, they turned
the household upside down. Appellant admitted that he would
have liked to place them in a foster home because he could not
take care of them.
On Friday, June 2, appellant was watching the children
while his wife was with Teresa at a family counseling session.
When he went into the bedroom, he noticed that Timmy had “pooped
in his pants.” Appellant took him into the bathroom, and the
feces fell out of his underwear and onto the floor. Appellant
asked Timmy to pick it up. He did not. He just “pushed it
around the floor a little bit.” Appellant became angry and
again told him to pick it up. Timmy did, but dropped the feces.
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Finally, Timmy put it in the toilet, at which time appellant,
who stood 6 feet 2 inches tall and weighed 230 pounds, hit Timmy
on the left side of the face, knocking him into a wall. He
pulled him up and dragged him by his feet towards him and
started beating him by pounding the back of his head three or
four times against the floor. Timmy did not lose consciousness.
Later in the day, he was thought to have had a couple of
seizures.
On Sunday, June 4, they were having a hard time getting
Timmy, who was in the garage, to eat. Mrs. Ellis told appellant
she could not handle Timmy any longer. Appellant went into the
garage and closed the door. Angry, he picked Timmy up, placed
him on the picnic table, and then hit him so hard he knocked him
off the table. He fell off the table and hit his head on the
concrete floor. Appellant again grabbed Timmy and, three or
four times, hit his head on the concrete floor. Shortly
thereafter, Timmy became unconscious and he was taken to the
emergency room.
Five days earlier, while Timmy was showering, he hit his
head, resulting in a trip to the hospital for stitches.
Appellant admitted Timmy was self-abusive. As a result, they
had to tape his feet and hands to control him. To do the
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taping, the doctor showed him a trick with a pillowcase and a
sheet so they could restrain him to place the tape on him.
DISCUSSION
Confession
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....” Congress has implemented this
constitutional mandate in Article 31(d), UCMJ, 10 USC § 831(d),
which prohibits the admission of any statement into evidence
that is “obtained ... through the use of coercion, unlawful
influence, or unlawful inducement....” Consequently, an
accused’s confession must be voluntary to be admissible into
evidence. Dickerson v. United States, 530 U.S. 428, 433 (2000).
The voluntariness of a confession is a question of law
which we review de novo. See Arizona v. Fulminante, 499 U.S.
279, 287 (1991). Whether the confession is voluntary requires
examining the “totality of all the surrounding circumstances --
both the characteristics of the accused and the details of the
interrogation.” Schneckloth v. Bustamonte, 412 U.S. 218, 226
(1973); United States v. Ford, 51 M.J. 445, 451 (1999). “[I]n [a]
family context, we can imagine circumstances involving threats,
promises, or other inducements that would raise questions of the
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voluntariness of an accused’s statements....” United States v.
Moreno, 36 M.J. 107, 112 (CMA 1992).
Moreno was questioned by the Texas Department of Human
Services regarding allegations of child sexual abuse and was
faced with a choice of cooperating and possibly keeping custody
of his children, or not cooperating and increasing the risks
that his children would be taken away. Id. at 109, 112. The
Court noted that this dilemma was of his own making. Id.
Additionally, there was no improper threat; rather appellant was
“merely apprised ... where he stood in the great flow of
things.” Id.
In examining the totality of circumstances, we do not look
at “cold and sterile list[s] of isolated facts; rather, [we]
anticipate[ ] a holistic assessment of human interaction.”
United States v. Martinez, 38 M.J. 82, 87 (CMA 1993). The
totality of the circumstances include the condition of the
accused, his health, age, education, and intelligence; the
character of the detention, including the 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.
Appellant was a 27-year-old Petty Officer Second Class (E-
5) with nine years of active duty service, a high-school
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diploma, and an AFQT score that placed him in the “upper mental
group” of Navy classifications. There was no evidence appellant
suffered from any psychological handicaps that affected his
decision-making ability. We examine the soundness of
appellant’s physical and psychological character at the time of
interrogation to determine whether the statements were
voluntary.
While the detectives’ advice to appellant concerning
removing the remaining children from the home may have
contributed to his confession, the mere existence of a causal
connection does not transform appellant’s otherwise voluntary
confession into an involuntary one. See Colorado v. Connelly,
479 U.S. 157, 164 n.2 (1986). While this consequence of
appellant’s criminal conduct was unpleasant, the law enforcement
officers’ advice was an accurate picture of what would happen in
similar cases.
Not only must we examine the circumstances surrounding the
taking of the statement regarding what was done or said, but we
must also examine what was not done or not said. There were no
threats or physical abuse. See, e.g., Payne v. Arkansas, 356
U.S. 560, 566 (1958). The questioning did not continue for
days; there was no incommunicado detention, and no isolation for
a prolonged period of time.
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Additionally, the detectives did not use appellant’s wife
as a government tool to induce him to confess. See, e.g.,
United States v. Borodzik, 21 USCMA 95, 97, 44 CMR 149, 151
(1971). Initially, the detectives had no idea which spouse may
have caused Timmy’s injury. Accordingly, they spoke to both
privately. Mrs. Ellis then talked to appellant. After this
conversation, appellant confessed.
Viewing all the facts taken together, we agree with the
Court of Criminal Appeals that they were not “so inherently
coercive as to overcome the appellant’s will to resist.” 54 M.J.
at 968.
Due Process and Destruction of Evidence
On June 9, Dr. Arruza performed an autopsy and concluded
that death was caused by non-accidental blunt trauma to the head
on June 4. In addition to the 9.5 centimeter fracture in the
skull, there were injuries around both eyes, the right check,
the left jaw, and the upper neck. There was a cut on the lip.
There was bodily injury on the left side of the chest, the lower
left hip, on the back, the right forearm, the right and left
knees, and right and left lower legs.
Following the autopsy, Dr. Arruza arranged for storage of
the brain and its meninges pursuant to a laboratory regulation
providing for specimens to be maintained for at least one year.
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Several months later, however, the specimen container was
inadvertently discarded when the laboratory was moved to a new
location. See 54 M.J. at 969.
At trial, appellant moved to dismiss the charges, citing
RCM 703(f)(2), Manual for Courts-Martial, United States (2000
ed.),2 which provides in pertinent part with respect to evidence
that has been destroyed or lost:
[A] party is not entitled to the production of evidence
which is destroyed, lost, or otherwise not subject to
compulsory process. However, if such evidence is of such
central importance to an issue that it is essential to a
fair trial, and if there is no adequate substitute for such
evidence, the military judge shall grant a continuance or
other relief....
(Emphasis added.) Appellant also relied upon the right to
present a defense under the Fifth Amendment, the right to cross-
examine witnesses under the Sixth Amendment, and the right to
obtain witnesses under Article 46, UCMJ, 10 USC § 846. Id.
Appellant contended that the missing evidence was central
to both parties, noting that the prosecution would rely on
testimony about the brain tissue to establish the time of death,
and the defense would rely on scientific examination of the
brain to both impeach the Government’s witness and to establish
a defense theory as to the time and cause of death. Id. at 969-
70. The defense theory of the case was that the fatal injuries
2
All Manual provisions cited are identical to those in effect at the time of
appellant’s court-martial.
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had been inflicted by a baseball bat wielded by appellant’s
daughter several weeks earlier, or by the son’s self-abusive
head-banging behavior. See id.
Defense counsel asked the military judge to address the
harm caused by the missing evidence by giving an adverse
inference instruction, permitting the members to infer a fact
against the Government’s interest if the Government lost or
destroyed evidence whose content or quality was at issue. Such
an instruction would have permitted, but not required, the
members to draw an inference against the Government’s theory
that Timmy’s death resulted from the beating appellant
administered on June 4. The military judge declined to give the
requested instruction.
An adverse inference instruction is an appropriate curative
measure for improper destruction of evidence. We need not
decide, however, whether the military judge erred by refusing to
give an adverse inference instruction, because we hold that any
error in this regard was harmless beyond a reasonable doubt in
light of appellant’s confession, which we discuss infra.
Extensive evidence was introduced by Timmy’s grandmother,
the babysitter, and others, that Timmy was hit on the head with
an aluminum baseball bat three weeks earlier by Teresa.
Additionally, the defense experts were able to examine the x-
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rays, the CAT scans, and the medical records to form an opinion
as to the timing and cause of death. The defense witnesses
indicated, based on this evidence, that there was a pre-existing
injury and it was the re-bleeding of that injury that caused
Timmy’s death.
Dr. Charles Odom, a defense witness, testified that if
there was a pre-existing injury, hitting that area could cause a
new injury and the fracture could open. He stated that it would
not take the same degree of force to cause a re-injury,
swelling, and death in this case. He opined that the baseball
bat injury three weeks prior to Timmy’s death was the traumatic,
blunt force injury that caused his sub-acute, subdural hematoma,
and death. However, he also testified that there was a real
possibility of a different cause of the re-bleeding and,
ultimately, death.
The defense, in its closing argument, recognized that
appellant would be responsible for any re-aggravation of the bat
injury caused by Teresa. As a result, the defense theory was
that appellant, contrary to his oral confession under oath, did
not hit or strike Timmy on either Friday or Sunday prior to
Timmy’s admission to the hospital.
The military judge admonished the Government not to use the
missing evidence to impeach the defense expert, and he provided
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a limiting instruction at the close of the arguments. The judge
instructed the members that they were prohibited from giving
less weight to the defense expert’s testimony solely because he
had not had the opportunity to view or test the lost evidence.
Further, the members were instructed that they could consider
Dr. Odom’s opinion as to “what he expected the microscopic
examination to show even though the brain and its meninges were
not available for [his] examination.” 54 M.J. at 970-71.
Notwithstanding the military judge’s remedial efforts,
trial counsel attacked the credibility of Dr. Odom by
emphasizing that he had not examined the lost brain and
meninges. There was no objection. Additionally, trial
counsel’s closing argument attempted to enhance the credibility
of Dr. Arruza by emphasizing that she had access to the lost
evidence and, in fact, had done a comprehensive exam. Again,
there was no objection. We need not decide, however, whether
the military judge’s failure to promptly correct or temper trial
counsel’s remarks was plain error because any error was harmless
beyond a reasonable doubt in light of appellant’s confession.
“[A] voluntary confession of guilt is among the most
effectual proofs in the law, and constitutes the strongest
evidence against the party making it that can be given of the
facts stated in such confession.” Hopt v. Utah, 110 U.S. 574,
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United States v. Ellis, No. 01-0590/NA
584 (1884). “A deliberate, voluntary confession of guilt is
among the most effective proofs in the law.” United States v.
Monge, 1 USCMA 95, 97, 2 CMR 1, 3 (1952). As the Supreme Court
recently reiterated:
A confession is like no other evidence. Indeed, “the
defendant’s own confession is probably the most probative
and damaging evidence that can be admitted against him
. . . . Certainly, confessions have profound impact on the
jury, so much so that we may justifiably doubt its ability
to put them out of mind even if told to do so.
Arizona v. Fulminante, 499 U.S. 279, 296 (1991)(citations
omitted). Thus, appellant’s confession goes far in rendering
harmless any error in the military judge’s failure to give an
adverse inference instruction or stop trial counsel from
commenting on the defense’s inability to examine Timmy’s brain
and meninges.
Of course, this assumes appellant’s confession is reliable.
False voluntary confessions do exist, and when their reliability
is called into question, so too is their otherwise overwhelming
power to prove the declarant’s guilt. Moreover, the factual
question whether a confession is reliable is for the members of
a court-martial to decide. See Mil.R.Evid. 304(e)(2), Manual,
supra (once military judge finds confession voluntary as a
matter of law and admits it, members determine its voluntariness
and reliability as a matter of fact); Jackson v. Denno, 378 U.S.
368, 387 n.13 (1964).
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The question in this case, then, is whether there is a
reasonable likelihood the members would have found appellant’s
confession was involuntary or unreliable had the military judge
given an adverse inference instruction relating to the lost
brain and meninges, and stopped trial counsel from commenting on
the defense’s inability to examine them. This question arises
for the following reasons.
Prior to trial, appellant confessed to brutally beating
Timmy on June 2 and 4. At trial, however, the defense denied
the beatings on these dates, maintained the confession was
fabricated, and argued the cause of Timmy’s death was his sister
hitting him on the head with a baseball bat three weeks earlier,
or possibly Timmy’s self-abusive, head-banging behavior. In
support of this theory, a defense expert testified that the
three-week old baseball bat injury was the cause of Timmy’s
death, not injuries sustained on June 4, as the Government’s
expert concluded.
The defense expert, however, was unable to examine Timmy’s
brain. Such an examination may have strengthened his conclusion
that the baseball bat injury, not June 4 injuries, was the cause
of death. This, in turn, may have been viewed by the members as
consistent with appellant’s trial position of a fabricated
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confession, thereby decreasing the voluntariness or reliability
of his confession in their minds.
Similarly, had the military judge given the adverse
inference instruction and stopped trial counsel from commenting
on the defense’s inability to examine the brain, the
voluntariness or reliability of appellant’s confession might
also have been questioned by the members. The presence of the
requested instruction and absence of prohibited comments could
have put the defense in a position similar to the one it would
have occupied had the brain not been lost, a position which, as
stated above, might have produced a question in the members’
minds about the voluntariness or reliability of appellant’s
confession.
Nonetheless, for the reasons that follow, we conclude there
is no reasonable likelihood the members would have found
appellant’s confession was involuntary or unreliable, even if
the military judge had given the adverse inference instruction
and stopped trial counsel from making prohibited comments
At the time of Timmy’s autopsy, he had multiple injuries
around his eyes, his cheek, his jaw, his neck, his lips, the
left side of his chest, his lower left hip, his right forearm,
the right and left sides of his knees, and the right and left
sides of his lower legs. Given the magnitude and variety of
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these injuries –- injuries separate and apart from Timmy’s brain
injury -- there is simply no way the members could conclude they
were caused by a single hit to the head with a baseball bat
three weeks earlier, or by less traumatic, self-inflicted head-
banging.
On this record, the only thing the members could conclude,
even with the requested adverse inference instruction and
without trial counsel’s questionable comments, was that the
multiple injuries Timmy sustained over his face and entire body,
independent of his brain injury, had to be caused by the June 2
and 4 beatings described by appellant in his detailed
confession, assaults that included numerous hits to the face,
grabbing and dragging by the extremities, a full-body knock into
a wall, and a full-body fall to the floor from several feet up.
Furthermore, the members were properly instructed on their
role in determining the voluntariness and reliability of the
confession and that they could not give less weight to the
defense expert’s testimony simply because he did not examine the
brain, and we assume they did not. See Richardson v. Marsh, 481
U.S. 200, 206 (1987)(“invariable assumption of the law that
jurors follow their instructions”). In this context, we hold
that appellant’s voluntary, reliable, detailed confession,
admitting far more than needed to shield his wife from
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prosecution, rendered harmless beyond a reasonable doubt any
error in the military judge’s failure to give an adverse
inference instruction or stop trial counsel from making
prohibited comments related to the missing brain. See United
States v. Moolick, 53 M.J. 174, 177 (2000).
It is important “to distinguish between the discrete issues
of voluntariness and credibility....” Jackson, 378 U.S. at 387
n.13. There is no question but that appellant’s confession was
voluntary as a matter of law, for the reasons set forth in the
first part of this opinion. Here, we conclude that by focusing
on Timmy’s other injuries, in addition to his brain injury, the
members could not help but find appellant’s confession was also
voluntary and reliable as a matter of fact.
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is affirmed.
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SULLIVAN, Senior Judge, (concurring in part and in result):
Nearly fifty years ago, Justice Sherman Minton observed
that "[a] defendant is entitled to a fair trial but not a
perfect one." Lutwak v. United States, 344 U.S. 604, 619
(1953). In this case it would have been better had the medical
examiner’s staff not discarded the victim’s brain and its
coverings; however, this evidence was not “apparently
exculpatory” at the time it was discarded. See United States v.
Garries, 22 M.J. 288, 292-93 (CMA 1986); United States v. Kern, 22
M.J. 49 (CMA 1986). Also, there was no bad faith in the loss of
this potential evidence. See United States v. Gomez, 191 F.3d
1214, 1218-19 (10th Cir. 1999); Holdren v. Legursky, 16 F.3d 57,
60 (4th Cir. 1994); State v. Graham, 454 S.E.2d 878, 880-81
(N.C. App. 1995). Moreover, loss of the tissue samples did not
deny appellant the ability to present a defense based on his
theory of the case. See Appellate Exhibit LXI (Military Judge’s
Ruling on Motion). In these circumstances, I am satisfied that
appellant received a fair trial as provided in our Constitution.
See Arizona v. Youngblood, 488 U.S. 51, 60 (1988)(Stevens, J.,
concurring).
I also agree with the lead opinion that appellant's
confession to injuring the victim was voluntary. The detectives
investigating this case did comment to appellant that if he and
his wife were apprehended for inflicting the injuries leading to
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the victim's death, their children would be placed by Department
of Human and Rehabilitation Services in foster care. This was a
correct statement of fact as to the procedure in Florida; nor
was the threat to arrest appellant's wife a bad-faith attempt or
pretext to extract a false confession from appellant. As such
this statement should not be the basis for excluding appellant's
confession. See Henson v. Commonwealth, 20 S.W.3d 466 468-69
(Ky. 1999); see also Johnson v. Trigg, 28 F.3d 639, 644-45 (7th
Cir 1994).
Appellant did not make any admissions at the time this
statement was made. It was not until several hours later, and
after he had spent about 20 minutes in conversation alone with
his wife, that he implicated himself in these offenses.
Moreover, there was no evidence that the police had placed
improper pressure on appellant's wife to force him to confess.
Cf. United States v. Borodizik, 21 USCMA 95, 44 CMR 149 (1971).
Thus, the detective’s statement, neither standing alone nor in
connection with other events occurring during the interview,
sufficed to overbear appellant's will. Cf. Columbe v.
Connecticut, 367 U.S. 568 (1961).
A final issue in this case is whether the military judge
erred by failing to take remedial steps to protect appellant
from unfair prejudice at trial resulting from the inadvertent
loss of these items of potential evidence. See R.C.M.
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703(f)(2), Manual for the Courts-Martial, United States (1994
ed.). Although the military judge concluded that the lost
evidence was not essential to a fair trial, he did take steps to
protect against the government “unfairly bolstering” its case on
this basis. See R.C.M. 801(a)(3), Manual, supra (Power of trial
judge to ensure rules are complied with). Cf. United States v.
Manuel, 43 M.J. 282 (1995). Appellant complains that these
measures were inadequate.
Initially, I note that the trial judge in this case denied
the defense's request to give an adverse inference instruction
against the Government as a result of the loss of the brain
materials. An adverse inference instruction, where the lost
evidence was not discarded in bad faith, is not warranted. See
United States v. Artero, 121 F.3d 1256, 1259-60 (9th Cir 1997);
United States v. Jennell, 749 F.2d 1303, 1308-09 (9th Cir 1984);
See generally 2A Charles Allen Wright, Federal Practice and
Procedure § 489 at 412-19 (3d ed. 2000). Accordingly, the
military judge did not err in failing to give the defense
requested instruction.
Nevertheless, the military judge did allow the admission of
the defense expert’s testimony in this case and instructed trial
counsel to refrain from impeaching the defense expert on the
basis of his inability to examine the brain coverings.
Appellant has not persuaded me that these measures were legally
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inadequate. See generally United States v. McElhaney, 54 M.J.
120, 129 (2000). Admittedly, trial counsel may have violated
the military judge's protective order in attempting to impeach
the defense expert with his pre-trial investigation testimony
which was predicated on this expert’s failure to examine the
lost evidence. However, the trial judge’s final instructions to
the members cured any error resulting from his failure to
immediately enforce his protective order. See United States v.
Meeks, 35 M.J. 64, 69 (CMA 1992)(Military Judge’s instructions
preclude any possibility of prejudice).
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BAKER, Judge (concurring in the result):
I agree with Judge Effron's factual recitation and legal
framework for addressing the relationship between Issue I and
Issue II; however, I join the conclusion in the lead opinion
that appellant’s statement was voluntary and any error by the
military judge in failing to provide an appropriate remedy in
view of the lost evidence was harmless.
Although I agree with the result reached in the lead
opinion, I write separately to address concerns I have about the
way the result is reached. On Issue I, the majority opinion
fails to capture or acknowledge the potentially coercive effect
a threat to deprive parents of their access and rights to their
children may have on their custodial confessions. I believe
that such threats carry with them an increased risk that parents
may confess involuntarily; and as such, courts must review the
confessions rendered under such threats with heightened
sensitivity. With respect to Issue II, I do not join the
apparent conclusions in the lead opinion regarding the mental
processes of the members. While I agree that any error was
harmless, I am not prepared to step into the shoes of the
members and state with certainty what members were, or were not,
prepared to consider and just how reliable and voluntary they
might have found appellant’s confession to be. Moreover, the
lead opinion relies on a factual theory involving review of
United States v. Ellis 01-0590/NA
medical evidence that was not presented to the members.
Nonetheless, I am confident there was no reasonable likelihood
that any error by the military judge affected the findings.
Therefore, for the reasons stated below, I agree to affirm.
I.
The Supreme Court has recognized that “[v]ery few people
give incriminating statements in the absence of official action
of some kind.” Schneckloth v. Bustamonte, 412 U.S. 218, 224
(1973). It has also recognized that “custodial police
interrogation, by its very nature, isolates and pressures the
individual,” Dickerson v. United States, 530 U.S. 428, 435
(2000), and that it “trades on [his or her] weakness[es].”
Miranda v. Arizona, 384 U.S. 436, 455 (1966). Nevertheless, the
Court has also held that “certain interrogation techniques,
either in isolation or as applied to the unique characteristics
of a particular suspect, are so offensive to a civilized system
of justice that they must be condemned under the Due Process
Clause of the Fourteenth Amendment.” Miller v. Fenton, 474 U.S.
104, 109 (1985). Whether interrogation tactics are coercive and
exceed constitutionally permissible limits is determined by
looking at the totality of the circumstances in each case.
Haynes v. Washington, 373 U.S. 503, 513 (1963).
In this case, the civilian police officers sought to trade
upon and exploit any emotional ties appellant might have to his
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six surviving children. The critical question for purposes of
this appeal therefore is: Did the police exceed permissible
conduct in doing so?
For love of children parents will do many things that
escape the bounds of common sense or elude concepts of natural
law. But as this case illustrates, some parents are also
capable of abhorrent criminal conduct toward their children.
The law has not heretofore provided a per se prohibition on
police officers discussing the fate of a suspect’s children
during interrogation. Nor should it. The fate of such children
may be relevant to the offense, a necessary by-product of the
criminal process, or, indeed, may serve as a source of lawful
police leverage and a truth-finding vehicle. However, given the
complex emotional ties between parent and child, such
interrogation methods will present inherently close and
contextual questions as to whether any subsequent statement is
indeed voluntary. This is why a “totality of the circumstances”
test is used. Law enforcement officers, and the courts that
review their actions, must proceed with heightened sensitivity
to test the validity of any confession given subsequent to a
discussion relating to an accused’s family members, to ensure
that police conduct does not offend justice. Such care was
taken in this case.
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Both the military judge and the Court of Criminal Appeals
concluded that appellant’s recorded statement occurred after he
received and voluntarily and intelligently, waived his Miranda
rights. 54 M.J. 958, 967 (2001). These rights, and appellant’s
waiver of them, were reaffirmed prior to appellant’s confession.
The officers surely hoped to pressure appellant or his wife into
confessing, but they did not badger him, scream at him,
otherwise bully him down this path, or discourage or impede the
exercise of his rights. While appellant no doubt felt pressure
to confess, the length and content of the interrogation was not
overbearing. The statements concerning the fate of appellant’s
children were certainly within the realm of possibility.
Appellant’s confession followed a meeting with his wife rather
than just after his time with the police. Furthermore, as
pointed out in the lead opinion, the confession itself admitted
far more, in terms of the number of incidents, the provocation
for the incidents, and the level of brutality, than would have
been required for appellant to protect his wife from prosecution
by falsely confessing. According to the court below:
The appellant admitted to the detective that, on 2
June 1994, he struck Timmy in the face and then grabbed the
child’s head and pounded it on the shower floor several
times after Timmy defecated in his pants and started
playing with the feces. Detective Robinson left the room
and returned with Sergeant Japour. The appellant was
advised that his admission was inconsistent with the
medical evidence pointing to a more recent injury. The
appellant then admitted that he had also assaulted Timmy on
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United States v. Ellis 01-0590/NA
4 June 1994. He stated that he became very angry because
the child would not eat his breakfast and was picking again
at a sore inside his lip. So, he stood the child on a
small picnic table in the family garage and struck him with
sufficient force to knock him to the ground. The appellant
then grabbed the child by the head and pounded it several
times against the cement floor.
Id. at 960.
Finally, given the totality of all these circumstances the
military judge put the context and veracity of appellant’s
confession squarely before the members.1 In short, the military
1
In his instructions regarding appellant’s audiotaped confession, the military
judge admonished the members, inter alia, as follows:
It is for you to decide the weight or significance, if any, the
accused’s pretrial statement deserves under all the
circumstances. In deciding what weight or significance, if any,
to give the accused’s statements, you may consider that evidence
has been introduced that certain police interrogation techniques
were employed during the initial interview and accusatory
interview of the accused and that Detective Hickson made comments
to the accused and Lauri Ellis concerning the probable
involvement of HRS in the removal of the children from the Ellis’
home if both the accused and Lauri Ellis were arrested.
You should consider the testimony of the witnesses concerning the
taking of the statement, including their demeanor in the courtroom and
how their testimony is either consistent or inconsistent with the prior
statements they may have given. You should consider the environment in
which the interviews and the statements were taken, including the
physical layout of the spaces and whether rights advisements were given
to the accused. Additionally, you should consider any evidence that
you believe either corroborates or contradicts the matters asserted by
the accused in his pretrial statement. You may also consider the
accused’s tone of voice and demeanor evidenced in Prosecution Exhibit
3.
I want to be very clear. These examples of the type of evidence you
may consider in determining what weight you wish to give to the
accused’s pretrial statement, in determining the truth or falsity of
the statement, are illustrative only. You are at liberty to consider
all of the evidence in the case that relates to the credibility of the
accused’s pretrial statement in determining the weight and
significance, if any, you want to give it. In determining this matter,
you are permitted to use your own common sense and knowledge of human
nature.
5
United States v. Ellis 01-0590/NA
judge and the CCA addressed this confession with the caution and
care required. Their findings of fact are not clearly
erroneous. Reviewing the lower courts’ application of law to
facts de novo, I reach the same legal conclusion as that in the
lead opinion, and the court below -- appellant’s confession was
voluntary.
II.
The military judge sought to address the missing evidence
in three ways. First, after hearing evidence on the defense
motion for relief, the military judge ruled that the Government
could not argue to the trier of fact that its expert’s opinion
merited more weight because only she had the opportunity to
personally observe the brain and surrounding tissue during the
autopsy. Second, he ruled that the prosecution could neither
direct questions, nor cross-examine witnesses, where the
intended or probable response would imply that the Government
witness’ opinion was of greater weight simply because of her
unique opportunity to make certain observations during the
autopsy. Finally, at the close of the case on the merits, the
military judge instructed the members (1) that they were
prohibited from drawing an inference adverse to the weight of
the defense expert’s testimony solely because he had not had the
opportunity to personally view or test the lost evidence, and
6
United States v. Ellis 01-0590/NA
(2) that they could consider the defense expert’s opinion as to
what he expected a microscopic examination to show even though
the brain and mininges were not available for his examination.
Appellant contends that in at least three instances the
trial counsel undermined the reliability of the defense expert’s
opinion by emphasizing during cross-examination that Dr. Charles
Odom had not examined the brain and dura. During the cross-
examination of Dr. Odom, the trial counsel attempted to attack
Dr. Odom’s conclusion that he was confident to a reasonable
medical certainty that the child’s fatal injury occurred some
two to three weeks before June 4. He attempted to impeach the
doctor with his testimony from an earlier court session pursuant
to Article 39(a), UCMJ, 10 USC § 839(a), during which the doctor
had indicated that without the ability to microscopically
examine some tissue visible in one of the autopsy photographs,
he was not willing to stake his reputation on his conclusion
regarding the date of the injury. As a result, appellant argues
that the trial counsel violated the military judge’s rulings and
that the judge’s subsequent instruction regarding the defense
expert’s testimony was an inadequate remedy. In appellant’s
view, an adverse inference instruction was required.
In my opinion, the military judge provided an adequate
remedy for the missing evidence by admonishing the Government
7
United States v. Ellis 01-0590/NA
not to use the missing evidence to impeach the defense expert
and by giving the members a limiting instruction at the close of
arguments. Arguably, error occurred when trial counsel
nonetheless sought to impeach the defense expert on the ground
that he had not examined the missing brain tissue depicted in
one of the photographs, and the military judge did not take
immediate corrective action. However, even if one concludes
that the instruction did not cure the error, it factors into the
harmless error analysis.
Both the government and defense experts agreed that
microscopic examination of the skull could narrow the timeframe
of the injury. 54 M.J. at 970. Dr. Margarita Arruza, the
government expert, testified that her examination of the brain
tissues placed the date of injury on June 4, not three weeks
earlier as asserted by the defense. She concluded, based on a
microscopic examination of the skull two and a half years after
performing the autopsy, that the skull had been fractured twice,
with the newest injury being four days old at the time of death.
The defense expert, Dr. Odom, disagreed, testifying that his
microscopic examination of the skull showed that the fatal
injury was inflicted approximately three weeks prior to death.
If the adverse inference instruction had been given, the
members would have been permitted, but not required, to infer
that the lost brain tissues would have supported the defense
8
United States v. Ellis 01-0590/NA
theory that the injuries were inflicted three weeks before
death. The adverse inference instruction would have applied
only to the lost brain tissues, not to the examination of the
skull. The panel would still have been presented with competing
expert views regarding examination of the skull. This in turn
would diminish the importance of expert testimony and increase
the importance of appellant’s confession.
As the lead opinion rightly states, appellant bore a heavy
burden in attempting to persuade members that his confession was
a false product of unlawful police pressure. As the Court
stated in Arizona v. Fulminante, a voluntary and corroborated
confession “is like no other evidence. Indeed, ‘the defendant’s
own confession is probably the most probative and damaging
evidence that can be admitted against him. . . .” 499 U.S. 279,
296 (1991). As noted above, appellant’s confession was
particularly damaging. It was specific, graphic, and consistent
with the Government’s theory of the case. It also went well
beyond what was necessary to absolve appellant’s wife, or end a
police interview of insignificant duration and lacking of
duress. As a result, I am confident that if there was error
regarding the military judge’s instruction to members, there was
no reasonable likelihood it affected the findings.
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United States v. Ellis, No. 01-0590/NA
EFFRON, Judge (dissenting):
The lead opinion concludes that appellant’s confession was
voluntary as a matter of law. The lead further concludes that
the confession may be relied upon to render harmless any error
resulting from the failure of the military judge to provide an
appropriate instruction regarding the destruction of important
evidence. I respectfully disagree. The focus in the lead
opinion on the admissibility ruling of the military judge fails
to take into account the difference between: (1) the role of the
military judge in determining admissibility of a confession as a
matter of law, and (2) the role of the court-martial panel in
assessing the voluntariness and corroboration of a confession as
a matter of fact.
The military judge in the present case erred in failing to
appropriately instruct the members regarding the adverse
inference that may be drawn from the destruction of the brain
and meninges. That instruction was directly related to the
evidence relied upon by the prosecution to buttress and
corroborate appellant’s confession.
In the state court proceedings that preceded appellant’s
court-martial, the trial judge and the appellate court concluded
that the confession was inadmissible. See 54 M.J. 958, 969
United States v. Ellis, No. 01-0590/NA
(2001). Even if the military judge ruled correctly that the
confession was voluntary as a matter of law, the evidence in
this case raised substantial doubts about the reliability of the
confession – a matter in which the ultimate decision rests with
the court-martial panel, not the military judge. See
Mil.R.Evid. 304(e)(2), Manual for Courts-Martial, United States
(2000 ed.). Moreover, the prejudicial impact of the failure to
instruct was compounded when the military judge failed to
sustain defense objections to the Government’s use of the
destroyed evidence, both to bolster the credibility of its
expert witness and undermine the credibility of the defense
expert. In light of the concerns raised by these errors, I
cannot be confident that a properly instructed panel would have
concluded that the confession was sufficiently reliable and
corroborated to support a finding of guilty beyond a reasonable
doubt.
I. Background
A. The Confession
Appellant’s family consisted of his wife and seven
children, including Timothy (Timmy) Ellis, Jr., appellant’s two-
and-a-half-year-old son from a prior marriage. On June 4, 1994,
appellant’s wife brought Timmy, who was unconscious, to the
Naval Hospital in Jacksonville, Florida. He was transferred to
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United States v. Ellis, No. 01-0590/NA
the University of Florida Medical Center in Jacksonville, where
he died four days later.
After considering information from the initial autopsy,
Detective Anthony Hickson, of the Jacksonville Sheriff's Office,
Homicide Division, suspected that the death was a homicide
resulting from child abuse. At his request, appellant and
appellant’s wife came to the Jacksonville Sheriff’s Office on
June 10. After they arrived at 11:00 a.m., they were
interviewed in separate locations. Although they were not
allowed to move about the office area unless accompanied by an
escort, they were not placed in locked rooms or in handcuffs,
nor were they told explicitly that they could not leave.
Based upon the initial interviews, Detective Hickson
concluded that Timmy had been in the sole care of appellant and
his wife before he was brought to the hospital. He also
concluded that neither appellant nor his wife had provided a
satisfactory explanation for Timmy’s injuries. At that point,
Detective Hickson decided to proceed with separate accusatory
interviews. Appellant and his wife, who were separately
provided with Miranda warnings, each waived the privilege
against self-incrimination as well as the right to consult with
counsel.
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United States v. Ellis, No. 01-0590/NA
As described by the Court of Criminal Appeals, Detective
Hickson, in the separate interrogations of appellant and his
wife, first “informed each of them that he believed there was
probable cause to arrest both of them for child abuse.” 54 M.J.
959, 960. Next, he “indicated that, if both of them were
arrested, their other six children would probably be removed
from their home by officials from the Department of Human and
Rehabilitative Services . . . and temporarily placed in foster
care.” Id.
Both appellant and his wife denied any pertinent knowledge.
Appellant’s wife, who was interviewed first, also asked to speak
to appellant. That request, which was denied initially, was
granted after his interrogation in the hopes that it would lead
to further information. After meeting with his wife for about
15 minutes, appellant indicated that he wanted to talk. He made
a confession that was taped and transcribed, and which included
an admission to a series of severe attacks on Timmy on June 2
and June 4.1
Appellant was prosecuted for his son's death in state court
in June 1995. The trial judge granted appellant’s motion to
1
Appellant confessed to attacking his son twice by slamming the child’s head
against the ground, first on June 2, against the tile floor in the bathroom,
and a second time on June 4, against the concrete garage floor. In the
present case, the Government took the position each confession was true, and
charged appellant with committing both acts.
4
United States v. Ellis, No. 01-0590/NA
suppress his confession, the ruling was sustained on appeal, and
the state terminated the prosecution. See id. at 969. In April
1996, military charges were preferred against appellant for the
same offense, and were referred to trial in July 1996. See
Bartkus v. Illinois, 359 U.S. 121 (1959)(permitting state trial
after federal court acquittal for same conduct); R.C.M.
907(b)(2)(C), Manual, supra (motion to dismiss based on former
jeopardy limited to prior court-martial or federal civilian
court proceedings).
At the court-martial, appellant sought to suppress his
statement on the grounds that it was involuntary. With respect
to the present appeal, the pertinent aspect of appellant’s
motion involved the question of whether his will was overborne
by Detective Hickson’s statement that the police had probable
cause to arrest him and his wife, and that if they both were
arrested, their other children would be placed in foster homes
by the Department of Human and Rehabilitative Services. After
receiving evidence from both the prosecution and defense, the
military judge concluded that the prosecution had met its burden
of proving that the confession was voluntary by a preponderance
of the evidence, and ruled that the confession was admissible.
With respect to Detective Hickson’s statements to appellant and
his wife about removing the children to foster homes, the
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United States v. Ellis, No. 01-0590/NA
military judge ruled that these remarks did not constitute
either a threat or an improper promise, but served merely as an
appeal to speak the truth. See id. at 963. The Court of
Criminal Appeals found that although Detective Hickson’s
reference to Department of Human and Rehabilitative Services
could be “reasonably construed as an implied threat directed at
the couple’s other children,” it did not cause appellant to
confess against his will. 54 M.J. at 968.
The defense vigorously challenged the voluntariness of the
confession and asked the members to disregard it as unreliable
and uncorroborated by the medical evidence. In support of the
corroboration requirement, the prosecution relied on the
disputed expert testimony. See Mil.R.Evid. 304(g), Manual,
supra. The military judge instructed the members that it was
their responsibility to determine whether the confession was
voluntary and whether it was sufficiently corroborated.
B. Destruction of Critical Evidence
On June 9, the day after the victim died, an autopsy was
performed by Dr. Margarita Arruza, an Associate Medical Examiner
in the Jacksonville Medical Examiner’s Office. She concluded
that the death was the result of an injury on June 4, that was
not accidental. During the course of the examination, she
6
United States v. Ellis, No. 01-0590/NA
removed the brain and its meninges from the cranium. She sliced
the brain and made a visual inspection of the material at
various depths to check for infarcts -- areas of dead tissue
resulting from prolonged deprivation of blood. She concluded
that there were none based on her unaided visual inspection, but
did not conduct a confirmatory microscopic examination of the
tissue. See 54 M.J. at 969.
Following the autopsy, Dr. Arruza arranged for storage of
the brain and its meninges pursuant to a laboratory regulation
providing that specimens be maintained for at least one year.
Several months later, however, the specimen container was
inadvertently discarded when the laboratory was moved to a new
location. See id.
At trial, appellant moved to dismiss the charges, citing
R.C.M. 703(f)(2), Manual, supra, which provides, in pertinent
part, with respect to evidence that has been destroyed or lost:
[I]f such evidence is of such central
importance to an issue that is essential to
a fair trial, and if there is no adequate
substitute for such evidence, the military
judge shall grant a continuance or other
relief in order to produce the evidence or
shall abate the proceedings . . . .
Appellant also relied upon the right to present a defense under
the Fifth Amendment, the right to cross-examine witnesses under
7
United States v. Ellis, No. 01-0590/NA
the Sixth Amendment, and the right to obtain witnesses under
Article 46, UCMJ, 10 USC § 846. See 54 M.J. at 969.
Appellant contended that the missing evidence was central
to both parties, noting that the prosecution would rely on
testimony about the brain tissue to establish the time of death,
and the defense would rely on scientific examination of the
brain to impeach the Government’s expert witnesses and to
establish a defense theory as to the time and cause of death.
The defense theory of the case was that the injuries had been
inflicted by a baseball bat wielded by appellant’s daughter
several weeks earlier, or by Timmy’s self-abusive head-banging
behavior. See id. at 969-70.
Before ruling on the motion, the military judge received
testimony from the prosecution’s expert, Dr. Arruza, and the
defense expert, Dr. Charles Odom, a medical examiner with the
Dallas County (Texas) Medical Examiner’s Office. As summarized
by the Court of Criminal Appeals:
Both experts agreed that a microscopic
examination of the missing evidence,
particularly the meninges, could have
pinpointed the approximate timeframe of when
the injury occurred. But they agreed, too,
that a microscopic examination of the skull
fracture, which was preserved, and available
for defense examination could also help to
narrow down the timeframe of the injury.
8
United States v. Ellis, No. 01-0590/NA
54 M.J. at 970. The military judge denied the defense motion,
ruling that the defense had failed to meet its burden in terms
of showing that the missing evidence was apparently exculpatory
and that comparable evidence was not reasonably available. See
id. (applying the constitutional test set forth under California
v. Trombetta, 467 U.S. 479, 489 (1984)). To address the problem
caused by the loss of the evidence, the military judge also
ruled that the prosecution could not state or infer that because
Dr. Arruza had the opportunity to examine the missing tissue,
her testimony should be given more weight than testimony of the
defense experts. See id.
During the prosecution’s case-in-chief, Dr. Arruza
testified that her gross examination of the child’s skull and
the missing tissues placed the date of injury at June 4, and
stated that she had believed a microscopic analysis would lead
to the same result. Dr. Arruza further testified that she
conducted a microscopic examination of the fracture two and a
half years after performing the autopsy, and determined that she
had misdated the fracture, and that it was actually three to six
weeks old. However, Dr. Arruza concluded the skull had been
9
United States v. Ellis, No. 01-0590/NA
refractured and the new injury was consistent with being four
days old.2
The defense expert, Dr. Odom, testified that his unaided
visual observation of the skull indicated that it had been
fractured approximately three weeks prior to death, and that his
opinion was confirmed when he microscopically examined the
skull. Based on his examination of the skull fracture, medical
records, and autopsy photographs taken of the destroyed brain
evidence, Dr. Odom concluded that Timmy’s death was caused by a
subacute subdural hematoma -- a blood clot in the space between
the brain and dura -- which had began to liquify and re-bleed,
causing irritation to, and swelling of, the brain. Dr. Odom
further stated that the subacute subdural hematoma was two to
three weeks old at the time of death. He added that he would
have expected a microscopic examination of the missing brain
tissue to confirm his gross observations had he been able to
conduct such an examination.
During cross-examination, trial counsel repeatedly
challenged the reliability of Dr. Odom’s testimony by obtaining
an acknowledgment from Dr. Odom that he would not stake his
2
Dr. Arruza conducted the microscopic examination of the skull, at the
request of the defense, after learning the defense expert, Dr. Odom, had
determined the fracture was three weeks old by gross examination of autopsy
pictures of the skull specimen.
10
United States v. Ellis, No. 01-0590/NA
professional reputation on his analysis of the timeframe in the
absence of a microscopic examination of the missing tissue.
During closing argument, trial counsel returned to this theme,
suggesting to the members that they could not rely on Dr. Odom’s
testimony because “he is evidently not one to stake his
reputation on it[.]” Trial counsel urged the members to reject
the defense theory based on Dr. Arruza’s testimony that ”she did
not see any evidence of a subacute or chronic subdural
hematoma[,]. . . that such evidence would be visible on
inspection, and she didn’t see it.” The military judge did not
sustain defense counsel’s objection to the prosecution’s
exploitation of the missing evidence.
With respect to the missing evidence, the military judge
instructed the members that they could not give less weight to
the testimony of Dr. Odom solely because he did not have the
same opportunity as Dr. Arruza to examine the missing specimen.
He also stated that they could consider Dr. Odom’s opinion as to
what he would have expected the microscopic examination to show,
even though the specimen was unavailable.
Defense counsel asked the military judge to address the
harm caused by the missing evidence by giving an adverse
inference instruction, permitting the members to infer a fact
against the Government’s interest if the Government lost or
11
United States v. Ellis, No. 01-0590/NA
destroyed evidence whose content or quality was at issue. Such
an instruction would have permitted, but not required, the
members to draw an inference against the Government’s theory of
the time of death. The military judge declined to give the
requested instruction.
II. Discussion
A. The Confession
As the lead opinion notes, a confession may not be
introduced against the accused unless it was provided
voluntarily, U.S. Const. amend. V; Article 31(d), UCMJ, 10 USC
§ 831(d), a determination which is based upon the totality of
the surrounding circumstances. Schneckloth v. Bustamante, 412
U.S. 218, 226 (1973). Statements by law enforcement officials
about consequences for family members may render a statement
involuntary, depending on the totality of the circumstances.
Compare Lynumn v. Illinois, 372 U.S. 528, 534 (1963)(confession
deemed involuntary when police advised defendant that if she did
not cooperate, state financial aid for the children would be
terminated and the children would be taken from her), with
United States v. Moreno, 36 M.J. 107, 112 (CMA 1992)(confession
not involuntary 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
12
United States v. Ellis, No. 01-0590/NA
facing a greater risk of losing his children). We specifically
recognized in Moreno that other “circumstances involving
threats, promises, or other inducements” could “raise questions
of the voluntariness of an accused’s statements to a social
worker or other similarly situated person.” Id. In general,
the courts have approached such cases with a focus on the facts
of each individual case. In a number of cases, the courts have
determined that the facts rendered a confession involuntary.
See, e.g., United States v. Tingle, 658 F.2d 1332 (9th Cir.
1981); Hall v. State, 266 N.E.2d 16 (Ind. 1971); People v. Rand,
21 Cal. Rptr. 89 (Cal.Ct.App. 1962). In other cases, the courts
have determined that the facts did not amount to unlawful
coercion. See, e.g., United States v. Murray, 45 M.J. 554 (N-M.
Ct. Crim. App. 1996); United States v. Vandewoestyne, 41 M.J. 587
(A.F. Ct. Crim. App. 1994).
In the present case, the law enforcement officials
discussed placing the couple’s children in foster homes for a
specific purpose -- “to pressure them into providing additional
information as to the cause of Timmy’s” death. See 54 M.J. at
968. They did not raise the specter of removing the children
for a beneficial or neutral purpose.
Under these circumstances, the case presents a very close
question as to whether appellant’s confession was involuntary –
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whether he confessed not because he was guilty, but rather, to
assume the sole blame, thereby exonerating his wife so that the
children could remain with her. In the state court proceedings
against appellant, the trial judge ruled that the confession was
inadmissible, and that ruling was sustained on appeal; however,
the military judge and the Court of Criminal Appeals came to a
different conclusion. Assuming, without deciding, that the
judicial rulings in the present case were correct as a matter of
law, such rulings do not resolve the issue of whether the
confession was reliable -- an issue committed by law to the
members of the court-martial panel under Mil.R.Evid. 304(e)(2),
Manual, supra. See also Crane v. Kentucky, 476 U.S. 683 (1986).
The closeness of the question as to the reliability of the
confession is highly relevant to the issue considered next --
whether any error by the military judge in fashioning a remedy
for the missing evidence was harmless beyond a reasonable doubt.
B. Destruction of Critical Evidence
The primary rule at issue in this case is R.C.M. 703(f)(2),
Manual, supra, which governs the relief a party may seek when
evidence that is of “central importance to an issue” is
“destroyed, lost, or otherwise not subject to compulsory
process.” The applicable precedent interpreting R.C.M.
703(f)(2) is United States v. Manuel, 43 M.J. 282, 288 (1995), in
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which we concluded that in R.C.M. 703(f)(2), the President
granted safeguards to a military accused beyond the minimal
requirements required by Article 46, UCMJ, or by the
Constitution under Trombetta. The rule does not include a
requirement to show that the evidence was lost or destroyed as a
result of the Government’s bad-faith. We emphasized that the
“rule gives the court discretion to fashion an appropriate
remedy if lost evidence is of such central importance to an
issue that is essential to a fair trial.” Manuel, 43 M.J. at 288
(emphasis and internal quotations omitted). The question before
us is whether the military judge in this case fashioned an
appropriate remedy.
In the present case, there was substantial prejudice to the
rights of the accused as a result of the destruction of the
evidence. The central issue at trial was the time of the injury
that caused Timmy’s death. The prosecution endeavored to show
that the injury occurred four days before death. The defense
expert testified that the injury likely occurred three weeks
before death. The military judge permitted the prosecution to
attack the credibility of the defense expert by emphasizing the
fact that the expert had not examined the missing specimen. As
a result, the military judge significantly diminished the effect
of his prior remedial ruling which, in order to cure any
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prejudice to the defense resulting from the destruction of the
brain evidence, had prohibited such questioning.
The military judge also permitted trial counsel in closing
argument to bolster the credibility of the government’s expert
by emphasizing her access to, and examination of, the missing
specimen. In addition, the military judge denied repeated
defense requests for an adverse inference instruction. Even if
the initial ruling of the military judge denying the motion to
dismiss was correct, the subsequent proceedings reflected a
failure to take appropriate corrective action to remedy the
problems posed by the destruction of this critical evidence.
C. Harmless Error Analysis
The military judge had a number of remedial actions
available to address the problem of the missing evidence, to
include an adverse inference instruction. The record, however,
contains defense requests for both an adverse inference
instruction and other relief, and the military judge’s denials.
If the military judge did not wish to phrase the instruction
precisely as proposed by the defense, he was obligated under
R.C.M. 703(f)(2) and Manuel to give an appropriate instruction,
which he did not do. Moreover, the military judge further erred
by failing to sustain defense objections to trial counsel’s
improper argument.
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The lead opinion concludes that any errors in this case
were rendered harmless by the admission of appellant’s
confession. I respectfully disagree.
A military judge’s ruling on the voluntariness of a
confession as a matter of law does not answer the question as to
its truthfulness as a matter of fact. “A [trial judge’s]
finding that the confession is voluntary prior to admission no
more affects . . . the jury’s view of the reliability of the
confession than a finding in a preliminary hearing that evidence
was not obtained by an illegal search affects . . . the jury’s
view of the probativeness of this evidence.” Jackson v. Denno,
378 U.S. 368, 386 n.13 (1964); see also Mil.R.Evid. 304(e),
Manual, supra; United States v. Meade, 20 USCMA 510, 513, 43 CMR
350, 353 (1971).
If a reviewing court finds that there is an error at trial,
that error cannot be deemed harmless by reliance on a confession
that has been challenged on voluntariness grounds before the
members without first considering the impact, if any, of the
error on the members’ determination of the confession’s actual
truth. Mere admission of a confession does not establish its
reliability. See, e.g., Mil.R.Evid. 304(e)(2); Crane, 476 U.S.
at 689. In the present case, there are three theories, based
upon the prosecution’s evidence and arguments at trial, under
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which the members could have convicted appellant: (1) the
members concluded that appellant’s confession and the
prosecution’s expert testimony were both credible and permitted
a finding of guilty beyond a reasonable doubt; (2) the members
concluded that although the confession was unreliable, the
prosecution’s expert testimony permitted a finding of guilty
beyond a reasonable doubt; or (3) the members concluded that the
confession was credible, and the prosecution’s expert testimony
was not sufficiently credible on its own to permit a finding of
guilty beyond a reasonable doubt but was sufficient to
corroborate appellant’s confession.
We have no way of knowing which theory was employed by the
members to convict appellant. What is significant on appeal is
that each theory relies on the testimony of the prosecution’s
expert, Dr. Arruza. The prosecution did not present other
independent evidence of appellant’s guilt. See 54 M.J. at 970
(“The Government maintained that the medical evidence would
corroborate . . . appellant’s admission that he had fatally
injured his son on 4 June 1994”). Accordingly, any harmlessness
analysis must consider the impact on the members’ ultimate
credibility determinations flowing from trial counsel’s improper
use of the missing evidence to bolster Dr. Arruza’s testimony,
and undermine the credibility of the defense expert, Dr. Odom.
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United States v. Ellis, No. 01-0590/NA
Similarly, we must consider the impact of the military judge’s
failure to give an adverse inference instruction.
The lead opinion assumes that there is a fourth theory
under which the members could have convicted appellant. The
opinion is based on the assumption that the members disregarded
the expert testimony concerning the time of death derived by the
Government's expert from the missing evidence, and that they
focused solely on the expert testimony regarding other injuries
as the basis for determining that the confession was reliable.
This theory is not viable. Nothing occurred at trial to signal
to the members that they should disregard Dr. Arruza's
conclusions drawn from her examination of the brain and focus
solely on the other injuries for purposes of evaluating the
confession. On the contrary, the evidence regarding the brain
was the central focus of the Government’s case and the
Government’s arguments on findings.
In the present case, the issue of voluntariness was so
close that state judges at both the trial and appellate level
determined that appellant’s confession was inadmissible. In
making our determination as to whether the errors in the present
case were harmless beyond a reasonable doubt, it is
inappropriate to rely on a theory which requires us to assume
that the members, in reaching a decision on reliability, were
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not substantially influenced by evidence central to the
prosecution’s case.
The Government bears the burden of demonstrating that the
errors in this case did not substantially influence the members’
verdict. United States v. Moolick, 53 M.J. 174, 177 (2000). The
possibility that the members ignored the central evidence in the
case and convicted appellant based on a theory that was not
presented to them is too speculative to uphold a conviction on
grounds of harmlessness beyond a reasonable doubt. In that
regard, it is noteworthy that the members rejected the
Government’s argument that appellant murdered his son,
convicting him of a lesser included offense -- involuntary
manslaughter -- notwithstanding the brutality described in the
confession.3 There is a significant possibility that the members
placed considerable reliance on Dr. Arruza’s testimony to
resolve any doubts they had as to the timing of Timmy's fatal
head injury. The Government bears the burden of negating this
possibility if the conviction in this case is to be sustained on
grounds of harmless error. Id. The Government has failed to do
so. In the context of the very close question presented to the
3
Appellant was charged with the unpremeditated murder of his son under one of
two theories: (1) murder with intent to kill, or (2) murder by “inflicting
great bodily harm,” the latter requiring the members to find that appellant
engaged in acts which were “inherently dangerous . . . and evinced a wanton
disregard for human life, and that [appellant] knew that death or great
bodily harm [to his son] was a probable consequence of the act.”
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members as to voluntariness of the confession, and in light of
the interlocking nature of the prosecution’s evidence and
argument on the confession and the expert testimony, the
military judge’s failure to take appropriate corrective action
was not harmless beyond a reasonable doubt.
21