Petition for Writ of Certiorari — Traum v. United States
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Supreme Court, U.S.
(1) FILED
O4~-7 00 NOV 19 2004
No.
OFFICE OF THE CLERK
IN THE
Supreme Court of the United States
SENIOR AIRMAN STEPHANIE R. TRAUM,
Petitioner
v.
UNITED STATES OF AMERICA,
Respondent
On Petition for Writ of Certiorari to the
United States Court of Appeals for the Armed Forces
PETITION FOR WRIT OF CERTIORARI
L. MARTIN POWELL CARLOS L. MCDADE
CAPTAIN, U.S. AIR FORCE COLONEL, U.S. AIR FORCE
Counsel of Record Counsel for Petitioner
TERRY L. MCELYEA
Major, U.S. AIR FORCE
Counsel for Petitioner
APPELLATE DEFENSE DIVISION
AIR FORCE LEGAL SERVICES AGENCY
112 LUKE AVENUE, SUITE 343
BOLLING AFB, DC 20032-8000
(202) 767-1562
November 2004
QUESTIONS PRESENTED
IL. Does the standard set forth by this Court in United States
v. Davis, requiring that a criminal suspect assert her Fifth
Amendment right to counsel in an unequivocal manner,
apply to a suspect’s invocation of her right to remain silent.
II. Must a police interrogator scrupulously honor a criminal
suspect’s selective assertion of her right to remain silent
when the suspect invokes that right with respect to specific
details surrounding an alleged offense but otherwise agrees
to answer questions during an interrogation?
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .........-:sscsscssersesnssersesesrsnsensensnsnns Vv
OPINIONS BELOW...........:s:esesssesssssssesssnsnnesennsnssnsnsnnsnsnsnenens l
JURISDICTION .........scessssscseesesssessscssnnenssennsenensnssnsnsnnensnanenens l
CONSTITUTIONAL PROVISION INVOLVED............---++. 1
STATEMENT OF THE CASE .....-.-s::esssesessessseserssnsnnnenenenes 1
REASONS FOR GRANTING THE WRIT .........:-+-0s:0ss00000 6
CONCLUSION ........:::ssscsssssseesessnsssscesnsenenenesenenenrensnnsnenenentes 24
APPENDIX A
(Opinion of the United States Court of Appeals for
the Armed Forces. 60 M.J. 226 (C.A.A-F. 2004)) .......+-- la
APPENDIX B
(Opinion of the United States Air Force Court of
Criminal Appeals. ACM 34225 (A-F. Ct. Crim. App.
QB Jue 2002)) ........ssscssessessereeesssssnenesensenssssrsnsensnnersansnes 28a
v
TABLE OF AUTHORITIES
; Page
Constitutional Provisions
US. Const., amend. V ........ccesscseeccssreessreseeseresesensenneees passim
Decisions of the Supreme Court of the United States
Counselman v. Hitchcock, 142 U.S. 547 (1892).........ccceeeeeee 11
Dickerson v. United States, 530 U.S. 428 (2000).........-.+++++ 13
Edwards v. Arizona, 451 U.S. 477 (1981)...-.ssssseseereseees 9,17
Emspak v. United States, 349 U.S. 190 (19S) ncicxscsinsecossconss 22
Hoffman v. United States, 341 U.S. 479 (1951) ......ccceeeeeeeees 11
Kastigar v. United States, 406 U.S. 441 (1972) ncrrsonnscracoansats 7
Michigan v. Mosley, 423 U.S. 96 (1975) ...---sss+ssssssesesseees 20,23
Miranda v. Arizona, 384 U.S. 436 (1966) .........:-::+:see00: passim
Quinn v. United States, 349 U.S. 155 (1955) ..........cccceseseoees 11
United States v. Davis, 512 U.S. 452 (1994).......sse+00 passim
Circuit Courts of Appeals
Barnes v. Johnson, 160 F.3d 218 6" ie. BI) cctaniacctccnine 10
Burkett v. Angelone, 208 F.3d 172 (4" Cir. 2000).........+++ 10
Campaneria v. Reid, 891 F.2d 1014 (2d Cir. 1989)...........0.. 9
vi
Coppola v. Powell, 878 F.2d 1562 (1* Cir. 1989)..........00000. 11
Evans v. Demosthenes, 98 F.3d 1174 (9" Cir. 1996) ........... 11
James v. Marshall, 322 F.3d 218 (5™ Cir. 1998) ......cccccecee0e: 10
McGraw v. Holland, 257 F.3d 513 (6" Cir. 2001).......... 21,22
Medina v. Singletary, 59 F.3d 1095 (11™ Cir. 1995)... 10
United States v. Banks, 78 F.3d 1190 (7 Cir. 1996) ........... 10
United States v. Johnson, 56 F.3d 947 (8™ Cir. 1995)........... 10
United States v. Lopez-Diaz, 630 F.2d 661
(PF? Clie 20GB iid ccsincistithtssbeasdisilecsceinilliieiceiniaie ated 20,21
United States v. Ramirez, 79 F.3d 298 (2d Cir. 1996).......... 1]
United States v. Soliz, 129 F.3d 499 (9" Cir. 1997)........ 20,21
Military Cases
United States v. Ravenel, 26 M.J. 344 (C.M.A. 2004) ........... 8
United States v. Sager, 36 M.J. 137 (C.M.A. 1992)..........0000. 8
United States v. Sckake, 30 M.J. 314 (C.M.A. 1990)............. 8
United States v. Traum, 60 M.J. 226 (C.A.A.F. 2004) ..passim
United States v. Traum, ACM 34225
(A.F. Ct. Crim. App. 28 June 2002) ............ccccceeeeeees 1,5,20
Federal Statutes
CLLL Ta |. MRE seme RK y o> passim
vii
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SON, I ace cnsaseenciniihicetonienesianstesabiioa bait 5
WB UBC. © 1290S) acnncessncnnnnnnnnnsnnsannncsasscasossoseneesnensenssnesonennan
]
The petitioner, Senior Airman Stephanie R. Traum,
respectfully prays that a Writ of Certiorari issue to review the
order and judgment of the United States Court of Appeals for
the Armed Forces entered in this case.
OPINIONS BELOW
The judgment of the United States Court of Appeals for
the Armed Forces, United States v. Traum, 60 M.J. 226
(C.A.A-F. 2004), is located at Appendix A, pp. la-27a. The
opinion of the United States Air Force Court of Criminal
Appeals, United States v. Traum, ACM 34225 (AF. Ct.
Crim. App. 28 June 2002), is located at Appendix B, pp.
28a-48a.
JURISDICTION
The judgment of the United States Court of Appeals for
the Armed Forces was entered on 24 August 2004.' The
jurisdiction of this Court is invoked under 28 U.S.C. §
1259(3) and 10 U.S.C. § 867(a)(3).
CONSTITUTIONAL PROVISION INVOLVED
The Fifth Amendment to the United States Constitution
provides in relevant part:
No person . . . shall be compelled in any
criminal case to be a witness against
himself... .
STATEMENT OF THE CASE
Sometime between the night of 20 December 1998 and
the morning of 21 December 1998, at Maxwell Air Force
Base, Alabama, Senior Airman (SrA) Stephanie Traum’s
' Appendix A, p. la.
2
eighteen-month-old daughter, Caitlyn, died. On the morning
of 21 December 1998, SrA Traum made a frantic phone call,
*equesting emergency assistance for Caitlyn because Caitlyn
was not breathing. Medical personnel arrived at SrA
Traum’s residence a short time later and began efforts to
resuscitate Caitlyn. Eventually, Caitlyn was transported by
ambulance to the emergency room where she was
pronounced dead by emergency room personnel soon after
her arrival.
After Caitlyn’s death, an autopsy was performed to
determine the cause of death. The results of the autopsy
were inconclusive as to the medical cause of death and
remained so as of 13 January 1999.
In the weeks following Caitlyn’s death, investigators
from the Air Force Office of Special Investigations (AFOSI)
focused their investigation on SrA Traum as a suspect in
Caitlyn’s death. Prior to 13 January 1999, the AFOSI
detachment handling the investigation arranged for Special
Agent (SA) Kraus, an AFOSI agent trained to conduct
polygraph examinations, to travel to Alabama from his duty -
station in Florida to conduct a polygraph examination on SrA
Traum. SA Krause arrived at Maxwell AFB on 12 January
1999 to conduct a polygraph examination on SrA Traum.
On 11 or 12 January 1999, SrA Traum contacted SA
Gage of the AFOSI about the status of the investigation into
Caitlyn’s death. Prior to that date, she had contacted the
AFOSI on other occasions seeking updates on the
investigation. After Caitlyn’s death, SrA Traum had applied
for a humanitarian reassignment to an Air Force Base in
Ohio. In order to process that assignment request, SrA
Traum needed copies of the autopsy report and the death
certificate for Caitlyn. She was attempting to obtain those
documents through the AFOSI.
3
During the phone call on 11 or 12 January 1999, SA
Gage told SrA Traum that he would call her back. SA Gage
subsequently did call SrA Traum back and asked her to come
in to the AFOSI office on 13 January 1999 to be updated on
the status of the investigation. SrA Traum agreed to do so.
SA Gage did not mention that he would be asking SrA
Traum to submit to a polygraph examination when she came —
in.
On 13 January 1998, SrA Traum reported to the AFOSI
office, as agreed, at approximately 0815 hours. When she
arrived, she met with Special Agent (SA) Engelman and SA
Gage and requested an update on the investigation. At that
time she also requested copies of Caitlyn’s autopsy report
and death certificate to support her request for the
humanitarian reassignment to Ohio. The agents and SrA
Traum also discussed other topics, such as the condition of
SrA Traum’s other daughter, computers, AFOSI’s
relationship with the Alabama State Medical Examiner’s
Office, and other idle “chit chat.” At no time during their
conversation with SrA Traum did either agent advise SrA
Traum of her right to remain silent pursuant to Article 31,
Uniform Code of Military Justice (UCM), 10 U.S.C. § 831,”
or the Fifth Amendment to the Constitution. Their
conversation lasted about 25 minutes.
After the initial “chit chat,” SA Engelman asked SrA
Traum to submit to a polygraph. SA Engelman told her that
taking the polygraph could expedite the publishing of the
medical examiner’s autopsy report, the investigation,
2 Article 31(b), Uniform Code of Military Justice, 10 U.S.C. §831(b),
states that “{n]o 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.”
i
4
publication of the death certificate, and, consequently, her
humanitarian reassignment. In response to the request for a
polygraph, SrA Traum stated that she “did not want to talk
about the details of the night of 20/21 December 1998.” In
response, SA Engelman advised her that it might not be
necessary to discuss all of the details of the night in question
but that it might be necessary to discuss some of the “key
details.”
Agents Gage and Engelman then introduced SrA Traum
- to SA Kraus, who had not been in the room during the
conversation between SrA Traum and the agents. SA Kraus
escorted SrA Traum into a separate room to be interviewed
and polygraphed. SA Kraus’s interview of SrA Traum
began at approximately 0850 hours. Before the interrogation
began, SA Kraus advised SrA Traum of her rights in
accordance with Article 31, UCM3J, and advised her that she
was not required to submit to a polygraph. SrA Traum
waived her rights at that time.
Over approximately the next eight hours, SA Kraus
conducted a pre-interview, two different polygraph
examinations, and a post-polygraph interview of SrA Traum.
For the first several hours, SrA Traum repeatedly insisted
that she did not kill Caitlyn. SrA Traum also suggested that
her husband, John, may have killed Caitlyn on the night of
20 December 1998. After the second polygraph examination
was completed, SA Kraus informed SrA Traum that she
failed the polygraph with 99% certainty. He also falsely
informed SrA Traum that investigation had revealed SrA
Traum's fingerprints on the back of Caitlyn’s neck in a
position that suggested that SrA Traum killed her.
In his attempt to obtain a confession from SrA Traum,
SA Kraus also suggested potential motives for killing
Caitlyn. He suggested that SrA Traum killed Caitlyn either
for the insurance money or because she was trying to protect
SES Oe ae eee ree Tse rome
5
Caitlyn from abuse by Caitlyn’s father. At approximately
1445 hours, SrA Traum confessed to killing Caitlyn by
pushing her face into a couch cushion in the manner
suggested by SA Kraus during the interview. SrA Traum
also adopted one of SA Kraus’s suggested motives, that she
killed Caitlyn to protect her from abuse by Caitlyn’s father.
SrA Traum subsequently gave a written statement to that
effect. .
SrA Traum was tried by a general court-martial from 30
August 1999 to 17 September 1999 on a charge of
premeditated murder in violation of Article 118, UCMJ, 10
U.S.C. § 918. At trial, SrA Traum’s defense counsel moved
to suppress her verbal and written statements made to SA
Kraus on 13 January 1999. The defense argued that SrA
Traum’s constitutional right to cut off questioning was not
scrupulously honored by the AFOSI investigators and that
her statements were not voluntarily given. The military
judge denied the defense motion. SrA Traum was convicted
as charged and sentenced to a dishonorable discharge,
confinement for life with the possibility of parole, forfeiture
of all pay and allowances, reduction to the grade of E-1, and
a reprimand. On 25 July 2000, the convening authority
approved the adjudged sentence, except the reprimand.
On appeal, the Air Force Court of Criminal Appeals
concluded that the AFOSI agents did not violate SrA
Traum’s rights under Article 31, UCM4J, because agents
Gage and Engelman’s request that SrA. Traum take a
polygraph did not constitute interrogation and therefore did
not require Article 31 warnings. The Court also held that
SrA Traum’s statement that she did not want to talk about
the details of the night of 20/21 December 1998 was not an
unequivocal invocation of her right to remain silent. The
Court therefore upheld the denial of the defense motion by
the military judge. Appendix B, pp. 33a-34a. The Court of
6
Appeals for the Armed Forces (CAAF) affirmed the decision
of the Air Force Court of Criminal Appeals. .
REASCNS FOR GRANTING THE WRIT
I. Does the standard set forth by this Court in United
States v. Davis, requiring that a criminal suspect assert
her Fifth Amendment right to counsel in an unequivocal
manner, apply to a suspect’s invocation of her right to
remain silent?
When the AFOSI agents asked SrA Traum to submit to a
polygraph examination, she specifically stated that she did
not want to discuss the details surrounding the night her
daughter died. Despite her assertion, the agents continued
their concerted effort to convince SrA Traum to submit to
interrogation by, among other things, telling her that it might
be “necessary” to discuss some key details of the night in
question. Ultimately, the agents convinced SrA Traum to
submit to the polygraph and after approximately six hours of
intensive interrogation, SA Kraus obtained a confession from
SrA Traum.
The crucial question before this Honorable Court is
whether the agents were required to cease any attempt to
interrogate SrA Traum regarding the details of the night of
20/21 December 1998 after she made a statement that any
reasonable police officer would have understood was an
assertion of her Fifth Amendment right to remain silent with
respect to the details surrounding Caitlyn’s death.
In Miranda v. Arizona, 384 U.S. 436 (1966), this Court
‘held that, when a criminal suspect is in the custody of the
police or has had his freedom limited in any significant way,
the Fifth Amendment requires that, prior to interrogating that
suspect, police officers must advise her, among other things,
eT Tee |
7
that she has the right to remain silent and the right to consult
~ with an attorney. Id. at 479.
For purposes of this appeal, petitioner assumes, without
conceding, that SrA Traum was not subjected to custodial
interrogation. Further, the Court of Appeals for the Armed
Forces (CAAF) held that SA Engelman’s request that SrA
Traum submit to a polygraph did not constitute interrogation
under Article 31, UCMJ, because “an incriminating response
was neither sought nor was it a reasonable consequence of
SA Engelman’s inquiry.” Appendix A, p. 8a.
The CAAF correctly recognized that SrA Traum could
invoke her Fifth Amendment right to remain silent in
response to SA Engelman’s request to submit to a polygraph
even in the absence of a custodial situation. The CAAF
noted, “[t]he right to remain silent ‘protects against any
disclosures that the witness reasonably believes could be
used in a criminal prosecution or could lead to other
evidence that might be so used.” Jd. (citing Kastigar v.
United States, 406 U.S. 441, 444-45 (1972)). This Court has
plainly held that the privilege against self-incrimination “can
be asserted in any proceeding, civil or criminal,
administrative or judicial, investigatory or adjudicatory.”
Kastigar, 406 U.S. at 444. Therefore, as the CAAF noted,
“application of the privilege against self-incrimination is not
limited to persons in custody or charged with a crime; it may
also be asserted by a suspect who is questioned during the
investigation of a crime. Appendix A, p. 8a (citations
omitted).
The CAAF went on to recognize that the standard set
forth by this Court in Miranda applies to this case despite the
non-custodial nature of the encounter. The CAAF, citing
3 As the (then) Court of Military Appeals has recognized, Congress
enacted Article 31, UCMJ, prior to this Court’s decision in Miranda in
recognition of the inherent pressures that exist in the military service.
this Court’s precedent, has established that “[I]f the
individual indicates in any manner, at any time prior to or
during questioning, that he wishes to remain silent, the
interrogation must cease[.]” Appendix A, p. 8a (citing
United States v. Sager, 36 M.J. 137, 145 (C.M.A. 1992)
(quoting Miranda, 384 U.S. at 473)).
Ultimately, because SrA Traum had the power to assert
her Fifth Amendment right to remain silent in response to the
request that she submit to a polygraph, the CAAF observed
that the crucial questions in the present case are whether SrA
Traum’s response to SA Engelman’s question was an
invocation of her right to silence, and if so, whether that right
was “scrupulously honored.” Appendix A, p. 8a (citing
Miranda, 384 U.S. at 479).
In addressing the all important question of whether SrA
Traum invoked her right to remain silent when she told SA
Engelman that she did not want to discuss the details of the
night Caitlyn died, the CAAF stated, “although no particular
words or actions are required to exercise one’s Fifth
Amendment right to silence, we have held that its invocation
must be unequivocal before all questioning must stop.” /d.
at 9a (citing United States v. Sager, 36 M.J. 137, 145
(C.M.A. 1992); United States v. Schake, 30 M.J. 314, 319
United States v. Ravenel, 26 M.J. 344 (C.M.A. 1988). In enacting Article
31, Congress sought to protect a military accused from “the subtleties of
the superior-subordinate relationship and the conditioned response,
consciously created from the first day of basic training, to respond almost
unthinkingly to the wishes of a military superior...” /d. at 349. Asa
result of the inherent pressure associated with the military, the Court of
Military Appeals has held that Article 31, UCMJ, is actually broader in
its protections than the Fifth Amendment and the mandate of this Court
in Miranda. Id. So although SrA Traum may not have been in custody
when she was asked to submit to a polygraph, she was still subjected to
the inherent military pressures to respond to questioning that Congress
recognized as a significant danger to a military member’s constitutional
right to remain silent.
ee oe
9
(C.M.A. 1990); Campaneria v. Reid, 891 F.2d 1014, 1021
(2d Cir. 1989), cert. denied, 499 U.S. 949 (1991)).
Applying an unequivocal invocation standard to the
assertion of the right to remain silent, the CAAF concluded
that SrA Traum’s words “did not unequivocally invoke her
right to remain silent because, by stating that she did not
want to discuss the details of the night Caitlyn died, she “did
not foreclose the possibility that she was willing to take the
polygraph and discuss other aspects of the investigation,
such as the child’s medical history or the manner in which
Appellant cared for her child.” Jd. According to the CAAF,
because SrA Traum was apparently willing to discuss some
aspects of the AFOSI investigation, the AFOSI agents were
not required to scrupulously honor her attempt to preclude
any questioning regarding the details of the night of
Caitlyn’s death.
By holding that a suspect must unequivocally invoke the
right to remain silent before police are required to cease
questioning that suspect, the CAAF has essentially adopted
the unequivocal standard set forth by this Court in United
States v. Davis, 512 U.S. 452 (1994). In Davis, a case
involving a suspect’s request for counsel pursuant to this
Court’s decision in Miranda, this Court held that where a
criminal suspect has been advised of his rights in accordance
with Miranda and has knowingly and voluntarily waived
those rights, law enforcement officers may continue
questioning that suspect unless the suspect clearly and
unambiguously invokes his right to consult with counsel.
Under Davis, if the suspect does invoke the right to
counsel in an unequivocal manner during questioning, the
police must immediately cease the interrogation until a
lawyer has been made available or the suspect himself
reinitiates a conversation with the police. Jd. at 458 (citing
Edwards v. Arizona, 451 U.S. 477 (1981)). On the other
10
hand, if a suspect makes an equivocal or ambiguous
reference to counsel, this Court held that the police are not
required to cease questioning the suspect or even to clarify
the ambiguous reference. Jd. at 461-62.
Since Davis involved only the invocation of the right to
counsel, this Court did not specifically address whether a
valid invocation of the right to remain silent must also be
unequivocal in order to be effective. To date, this Court has
not specifically held that the unequivocal standard set forth
in Davis applies beyond the context of a request for counsel
to a suspect’s assertion of the right to remain silent.
Since this Court’s decision in Davis, most federal courts
that have considered the issue have held that the Davis
unequivocal assertion standard also applies to cases
involving a suspect’s assertion of the right to remain silent.
Those courts have generally held that police investigators are
not required to acknowledge or clarify an ambiguous or
equivocal indication by a suspect that the suspect wishes to
remain silent. Those courts, citing Davis, have held that an
invocation of the right to remain silent must be unequivocal
in nature before police questioning must cease. See e.g.,
United States v. Banks, 78 F.3d 1190 (7th Cir. 1996);
Medina v. Singletary, 59 F.3d 1095 (11th Cir. 1995); United
States v. Johnson, 56 F.3d 947 (8th Cir. 1995); Burkett v.
Angelone, 208 F.3d 172 (4th Cir. 2000); Barnes v. Johnson,
160 F.3d 218 (Sth Cir. 1998). Although the CAAF did not
specifically cite this Court’s decision in Davis in applying
the unequivocal invocation standard, the effect is the same.
Not every court, however, has applied the Davis
unequivocal invocation standard to the right to remain silent.
Several other Circuit Courts of Appeals have noted that this
Court has not specifically applied the Davis standard in right
to remain silent cases and they have therefore left the
question open. See e.g., James v. Marshall, 322 F.3d 103
11
(1st Cir. 2003); Evans v. Demosthenes, 98 F.3d 1174 (9th
Cir. 1996); United States v. Ramirez, 79 F.3d 298 (2nd Cir.
1996). a
A. Applying an unequivocal invocation standard to
the right to remain silent is inconsistent with this Court’s
interpretation of the Fifth Amendment.
This Court held long ago that the invocation of the right
to remain silent does not require any “special combination of
words.” Quinn v. United States, 349 U.S. 155, 162 (1955).
Instead, this provision “must be accorded liberal construction
in favor of the right it was intended to secure.” Hoffman v.
United States, 341 U.S. 479 (1951) (citing Counselman v.
Hitchcock, 142 U.S. 547, 562 (1892)). Consequently, “even
the most feeble attempt to claim a Fifth Amendment
privilege must be recognized...” Coppola v. Powell, 878
F.2d 1562, 1565 (1st Cir. 1989), cert. denied, 493 U.S. 969
(1989) (citing United States v. Goodwin, 470 F.2d 893, 902
(5th Cir. 1972)).
In Miranda, this Court held that if after being informed
of his right to remain silent, a suspect “indicates in_any
manner, at any time prior to or during questioning, that he
wishes to remain silent, the interrogation must cease.”
Miranda, 384 U.S. at 473-74 (emphasis added). This
Court’s use of the words “in any manner” is telling because
it seems to clearly establish that there is no requirement that
a suspect use any specific combination of words in order to
successfully assert the suspect’s constitutional right to
remain silent.
By contrast, in Miranda, in setting forth the right to
consult counsel, this Court simply stated, “If the individual
states that he wants an attorney, the interrogation must cease
until an attorney is present.” Miranda, 384 U.S. at 474. The
lack of the same “in any manner” language in reference to a
12
request for counsel seems to indicate that this Court
recognized some distinction in the manner in which a
criminal suspect can effectively assert the two different
rights in question.
A plain reading of the language in Miranda supports an
argument that this Court did not intend to apply a strict and
inflexible standard with respect to the actual language a
suspect must use in order to invoke her right to remain silent.
Combined with this Court’s previous precedent interpreting
the protections of the Fifth Amendment, it appears that
application of a narrow, inflexible rule such as the
unequivocal invocation standard set forth in Davis is
inconsistent with this Court’s interpretation of the Fifth
Amendment.
In applying the Davis unequivocal standard to a suspect’s
attempted invocation of the right to remain silent, the CAAF
and Circuit Courts of Appeals have undermined this Court’s
holdings in Miranda and Quinn and elevated form over
substance in the crucial determination of whether a criminal
suspect has asserted her right to remain silent.
If the Davis standard is held to apply to invocations of
the right to silence, a suspect who says during custodial
interrogation, “I think I want to remain silent,” can be treated
in a drastically different manner than a suspect who omits
the first two words of the same sentence. Because the words
“I think” can render the sentence somewhat ambiguous, it is
likely that the suspect who uses the two additional words
would be subject to continued interrogation by the police
with no need to clarify whether the suspect actually wants to
remain silent. The suspect could then cut off questioning
only by mustering the courage to simply stop speaking to the
police, despite the continued interrogation, or by somehow
deducing that he must assert himself in a much more
aggressive manner in order to effectively assert his rights.
in
13
Meanwhile, in accordance with Miranda, the more street-
wise or savvy suspect who asserts his rights in a more direct
fashion would have his right to remain silent fully honored.
An analysis of this Court’s reasoning in Davis is helpful
in addressing whether the unequivocal invocation standard
shouldbe applied outside of the narrow scope of a request
for counsel. In reaching the holding in Davis, this Court
reasoned that the rights established by Miranda, were simply
“procedural safeguards . . . that were not themselves rights
protected by the Constitution,” but were instead, “measures
to insure that the right against compulsory self-incrimination
was protected.” Davis, 512 U.S. at 457.
Since Davis, however, this Court has gone on to hold that
the protections afforded by Miranda are in fact
constitutionally required, and not mere procedural rules.
Dickerson v. United States, 530 U.S. 428 (2000). Therefore,
to the extent that this Court based its decision in Davis on the
notion that the right to counsel set forth in Miranda is not
constitutionally required, but only a procedural safeguard,
that decision has necessarily been called into question by this
Court’s ruling in Dickerson. The acknowledgment that the
rights set forth in Miranda are constitutionally required must
necessarily lead to appropriate care in protecting and
preserving those rights.
In Davis, this Court also reasoned that requiring police to
cease interrogating a suspect who has made an equivocal or
ambiguous request for counsel “would transform the
Miranda safeguards into wholly irrational obstacles to
legitimate police investigative activity.” Davis, 512 US. at
460. Of course the same criticism could be leveled at this
Court’s Miranda decision. In Miranda, this Court decided
that it is more important under the Constitution to ensure that
a criminal suspect is aware of his right to remain silent than
it is to maximize the number of confessions obtained by law
14
enforcement in the course of investigating crimes. The same
logic applies in no smaller degree to ensuring that a suspect
understands what is required in order to assert the rights
guaranteed by the Fifth Amendment. After all, it is of little
benefit to a criminal suspect in custody to know their rights
if they are left in the dark as to the exact means by which
they are required to assert those rights.
This Court recognized in Davis that requiring a clear
assertion of the right to counsel “might disadvantage some
suspects who — because of fear, intimidation, lack of
linguistic skills, or a variety of other reasons — will not
clearly articulate their right to counsel... .” Davis, 512 U.S.
at 460. Certainly, as this Court recognized in Miranda, “the
very fact of custodial interrogation exacts a heavy toll on
individual liberty and trades on the weakness of individuals.”
Miranda, 384 U.S. at 455.
Custodial interrogation necessarily “contains inherently
compelling pressures which work to undermine the
individual’s will to resist and to compel him to speak where
he would not otherwise do so freely.” Jd. at 467. It was to
combat these inherent pressures that this Court held that an
accused must be “adequately and effectively apprised of his
rights and the exercise of those rights must be fully
honored.” Jd. In light of this Court’s reasoning in Miranda,
it is counterintuitive to allow an investigator to play hide-the-
ball with a suspect who makes an effort to assert the rights
she has been promised she enjoys by completely ignoring an
arguably ambiguous attempt to assert those rights.
Another important consideration for this Court in
Miranda was the necessity of advising suspects of their
rights in language that ordinary citizens would understand:
“the warning of a right to counsel would be hollow if not
couched in terms that would convey to the indigent — the
person most often subjected to interrogation — the knowledge
oO
15
that he too has a right to have counsel present. Miranda, 384
US. at 473.
As Justice Souter recognized in Davis, “criminal suspects
who may (in Miranda’s words) be ‘thrust into an unfamiliar
atmosphere and run through menacing police interrogation
procedures’ . . . would seem an odd group to single out for
the Court’s demand of heightened linguistic care. A
substantial percentage of them lack anything like a confident
command of the English language . . . and many more will
be sufficiently intimidated by the interrogation process or
overwhelmed by the uncertainty of their predicament that the
ability to speak assertively will abandon them.” Davis, 512
U.S. at 469-70 (Souter, J., concurring).
Applying the Davis “unequivocal standard” to the right
to remain silent has the ironic effect of requiring precision
and clarity of verbal expression from those who either by
nature or by circumstance are the least likely to assert
themselves in a direct and unequivocal fashion.
Additionally, there is no requirement under Miranda that the
police actually inform suspects that they suspect must speak
in unequivocal terms if they wish to invoke their right to
counsel or to remain silent. Therefore, only those who are
most educated or most street-wise are likely to assert their
rights unequivocally. Such an approach is inconsistent with
this Court’s attempt in Miranda to ensure that those
subjected to custodial interrogation are aware of their
constitutional rights and actually serves to undermine that
longstanding precedent.
The further danger in requiring an unequivocal assertion
of the right to remain silent before police are required to
cease an interrogation is the effect that police action in
response to such an ambiguous assertion will have on the
psyche of a criminal suspect. If a suspect who has been
informed of her Miranda rights or her rights under Article
16
31, UCMJ, makes an arguably ambiguous effort to assert her
right to remain silent, under the Davis standard the police
could simply ignore the attempted assertion of rights and
continue the interrogation unabated.
For someone already subjected to the inherently coercive
pressures associated with custodial interrogation or
submission to authority in the military, the appearance that
the police have ignored an attempted assertion of the right to
remain silent and have continued with an interrogation may
lead the suspect to believe that those rights are not available
or are illusory at best and provide no real protection. Such a
result would seem to do no more than to increase the
coercive pressures already visited upon the accused.
In this case, SrA Traum demonstrated a _ basic
understanding that she had a right not to talk about the
details of Caitlyn’s death. Although she had not been
advised of her rights, she made an effort to assert her right to
remain silent. When SA Engelman refused to recognize her
assertion and instead advised her that it might be “necessary”
to discuss the key details of that night, SrA Traum was in the
unenviable position of failing to successfully assert her rights
despite her best efforts. It is therefore understandable that
she may have been under the impression that she had no
rights to invoke.
The apparent rejection of her right to remain silent,
accompanied by the agents’ feigned concern over her
humanitarian reassignment and apparent willingness to help
her very likely left SrA Traum in a more vulnerable state, an
emotional state in which she was less likely to again attempt
to assert herself in any meaningful way in the presence of her
interrogator. Because the agents did not respect her initial
assertion that she did not want to discuss the details of
Caitlyn’s death, SrA Traum certainly had no reason to
17
believe that they would do so if she made any further attempt
to invoke her rights.
By essentially ignoring SrA Traum’s assertion of her
right to remain silent with regard to the details of the night of
Caitlyn’s death, the AFOSI failed to scrupulously honor her
invocation of her right to remain silent. The CAAF’s
application on appeal of the unequivocal invocation standard
further impinges upon SrA Traum’s rights w. ter the Fifth
Amendment.
B. The Davis unequivocal invocation standard is
more difficult for police officers to apply than a rule
requiring clarification of ambiguous assertions of the
right to remain silent.
One of the concerns expressed by this Court in adopting
an “unequivocal” standard was that requiring police to
terminate interrogation upon an ambiguous request for
counsel would force police officers to make “difficult
judgment calls about whether the suspect in fact wants a
lawyer even though he has not said so, with the threat of
suppression if they guess wrong.” Davis, 512 USS. at 461.
This Court noted that it’s decision in Edwards v. Arizona,
451 U.S. 477 (1981), established a bright line rule that is
easy for police officers to follow: if a suspect requests
counsel at any time during an interrogation, the interrogation
must cease until a lawyer is provided.
Miranda also set forth a simple bright line rule: whea a
suspect indicates he wishes to remain silent, interrogation
must cease. The difficulty in applying these seemingly clear
rules is apparent when a suspect makes an arguably
ambiguous reference to counsel or to remaining silent.
Under the Davis rule, it is up to the police to make a
determination about whether the reference is legally
unequivocal. If the officer guesses that it is equivocal and
18
therefore proceeds with the interrogation, a court may later
consider the same statement to be an unequivocal assertion
of rights. In such a case, any evidence obtained as a result of
the continued interrogation would likely be lost. But, if the
police officer simply clarified the reference to remaining
silent, any ambiguity could immediately be cleared up and
the police officer would immediately know whether to cease
questioning or to continue.
This Court has not alleviated the burden on police
officers by leaving upon them the responsibility of
determining what constitutes a sufficiently clear invocation
of rights. The clearer bright line rule would be to require
police officers to clarify any ambiguous attempt to invoke
the right to remain silent. Such clarification is often the only
way a police officer will be absolutely sure of the proper
steps to take. A rule requiring such clarification would
therefore go further both to protecting the constitutionally ‘
required rights set forth in Miranda and to ensuring that
police officers are able to conduct an interrogation with a
minimum of guesswork as to whether a suspect has actually
asserted those rights.
Examining the facts of this case, it is easy to see how
difficult the unequivocal invocation standard may be to
apply in any given situation. SrA Traum’s statement, “I
don’t want to discuss the details of the night of 20/21
December,” is perfectly clear and contains absolutely no
inherent ambiguity. She could not have been more direct in
stating that she did not want to talk about her daughter’s
death. But the CAAF somehow found ambiguity in her
assertion merely because she did not rule out the possibility
of taking the polygraph or discussing subjects other than the
details of the day Caitlyn died. Despite its ruling, the CAAF
did not even suggest what alternate meaning SrA Traum’s
actual words may have had. Leaving open the possibility of
talking about details other than those surrounding the events
a ee ee ea ee MS eNO Ne rn nay
19
of the night of 20 December simply cannot reasonably be
deemed to render her statement capable of more than one
interpretation.
The fact that the military appellate courts were able to
find ambiguity in such a seemingly straightforward assertion
highlights the difficulty inherent in applying the Davis
standard to invocations of the right to remain silent. It is
difficult to see how a police officer can effectively apply
such a subjective standard when an unequivocal statement
such as that made by SrA Traum can be deemed equivocal.
The benefit of any bright line rule is lost if the police are left
to decide what does or does not constitute an unequivocal
assertion of rights.
This Court should grant this petition and resolve the
question of whether application of the unequivocal
invocation standard in the context of a suspect’s assertion of
the right to remain silent conflicts with the constitutionally
protected rights recognized by this Court in Miranda.
Because a rule requiring police officers to clarify an arguably
ambiguous invocation of the right to remain silent serves the
interests of both the Fifth Amendment and providing a clear
bright-line rule for police, this Court should hold that the
police must clarify any statement that would lead a
reasonable police officer to believe that a suspect wishes to
invoke the right to remain silent.
II. Must a police interrogator scrupulously honor a
criminal suspect’s selective assertion of her right to
remain silent when the suspect invokes that right with
respect to specific details surrounding an alleged offense
but otherwise agrees to answer questions during an
interrogation?
The Court of Appeals for the Armed Forces has, by its
ruling, essentially adopted a test for ambiguity that conflicts
20
with an accused’s Fifth Amendment right to selectively
choose the topics an accused will or will not discuss during
an interrogation. In doing so, the CAAF’s decision
undermined this Court’s essential holding in Michigan v.
Mosley, 423 U.S. 96 (1975).
In Mosley, this Court held that through the exercise of a
suspect’s option to terminate questioning a suspect has the
right to control the subjects discussed during an
interrogation. Further, this Court held that when a suspect
selectively asserts the right to remain silent by limiting the
subjects the suspect will discuss with the police, the police
are required to “scrupulously honor” that assertion of rights.
Id. at 103-04.
A suspect may selectively waive his right to remain silent
in two ways. He may either tell the police that he will not
discuss certain subjects or he may inform the police that he is
only willing to discuss certain subjects. United States v.
Soliz, 129 F.3d 499, 504 (9th Cir. 1997) (citing Mosley, 423
U.S. at 103-05; United States v. Lopez-Diaz, 630 F.2d 661,
664 (9th Cir. 1980)). “Once a person has indicated that he
does not wish to talk about a particular subject, all
questioning must cease.” Soliz, 129 F.3d at 504.
In this case, SrA Traum specifically told SA Engelman
that she did not want to discuss the details of the night that
Caitlyn died. Even the Air Force Court of Criminal Appeals
recognized that SrA Traum “just wanted to limit what she
would talk about.” Appendix B, p. 33a. Her statement was
very clear. However, rather than recognizing her assertion of
her right to limit questioning and scrupulously honoring that
right, SA Engelman ignore¢c her concern and indicated that it
might be “necessary” to discuss key details.
In Soliz, the accused was under investigation for
smuggling illegal aliens. When asked by police if he would
21
make a statement, he replied, “Yes, regarding my... .
citizenship.” The police went on to exceed that limitation by
asking him about the smuggling of illegal aliens. The Ninth
Circuit Court of Appeals held that Soliz’s statement
constituted an unequivocal invocation of his right to remain
silent and that the police did not scrupulously honor that
invocation. Soliz, 129 F.3d at 504.
In United States v. Lopez-Diaz, the accused, after being
advised of his Miranda rights, stated that he not want to talk
about the drugs in his van but would provide other
information. The police ultimately asked him about the
drugs in the van and he made incriminating statements. The
Ninth Circuit Court of Appeals held that by questioning him
on a subject he specifically wished foreclosed from
interrogation, the police did not scrupulously honor his right
to remain silent. Lopez-Diaz, 630 F.2d at 667.
The facts in the present case are quite similar to the facts
in Soliz and Lopez-Diaz. In both of those cases, the suspect
did not rule out making a statement or discussing other
aspects of the investigation. Instead, the suspects opted to
selectively assert their rights by telling the police what they
were or were not willing to discuss. In both cases, the police
failed to scrupulously honor the limitations imposed by the
suspects. Therefore, the Ninth Circuit Court of Appeals
concluded that the police failed to scrupulously honor the
suspects’ assertion of their right to remain silent. Unlike the
decision of the CAAF in this case, the Court in those cases
did not conclude that the suspects’ invocation of rights was
equivocal simply because it was selective.
In McGraw v. Holland, 257 F.3d 513 (6th Cir. 2001),.the
accused was investigated for her role in a rape. While being
interrogated, she repeatedly stated that she did not want to
talk about the rape. /d. at 515. The police officer ignored
her protests and continued to question her about the rape
22
until she confessed. On appeal to the Michigan Court of
Appeals, the Court concluded that the confession had been
given voluntarily, noting that the accused had signed a form
waiving her rights and indicating that she “wished to talk.”
Id. at 516.
On review of the accused’s writ of habeas corpus, the
district court judge found that the accused’s statements that
she did not want to talk about the rape were “unclear and
ambiguous” because a reasonable police officer could have
believed that the accused was merely indicating a hesitancy
due to fear of retaliation. Jd. The Sixth Circuit Court of
Appeals noted that during her state trial, the trial court held
her statements to be admissible “because she never said that
she did not want to talk about subjects other than the rape.”
The Sixth Circuit Court of Appeals held that the trial court’s
decision was an unreasonable application of Miranda and its
progeny.
The Court reasoned that although McGraw didn’t ever
say “I want to exercise my option to terminate this interview
altogether if I will otherwise have to talk about the rape,” her
statement that she did not want to talk about the rape was not
ambiguous. The Court reiterated that “no ritualistic formula
or talismanic phrase is essential in order to invoke the
privilege against self-incrimination.” Jd. at 518 (citing
Emspak v. United States, 349 U.S. 190 (1955)).
Petitioner’s case is also similar to the facts in McGraw.
Just as McGraw stated that she didn’t want to discuss the
rape, SrA Traum clearly indicated that she didn’t want to talk
about what occurred on the night of Caitlyn’s death.
Nevertheless, the AFOSI agents, like the police officer in
McGraw, ignored her and conducted an interrogation where
they specifically asked repeatedly about the very details SrA
Traum did not want to discuss. Again, just as in McGraw,
the CAAF held that SrA Traum’s statement was ambiguous
23
because she did not rule out the possibility of discussing
other aspects of the case. By doing so, the CAAF committed
the same error recognized by the Sixth Circuit Court of
Appeals in McGraw.
The reasoning of the Court of Appeals for the Armed
Forces in this case is terribly flawed and the application of
such reasoning in other cases will only serve to completely
undermine the rights of suspects to selectively assert their
right to remain silent. By holding that an assertion of the
right to remain silent is ambiguous or equivocal simply
because a suspect agrees to discuss other details of an
investigation, the CAAF essentially negates the right to
selectively waive or assert the right to remain silent as
recognized by this Court in Mosley.
Under this line of reasoning, a suspect is essentially left
with only two choices with regard to their right to remain
silent when being interrogated: (1) refusing to answer any
questions about anything at all; or (2) being subjected to
unlimited questioning on any topic the investigator-choeses.
By equating a selective assertion of the right to remain silent
with an equivocal assertion of rights, the CAAF has placed
severe limitations on the power a suspect holds to selectively
invoke their right to silence. -
Under the CAAF reasoning, a police officer would rarely
be required to honor a suspect’s selective assertion of the
right to remain silent so long as that suspect has agreed to
discuss at least some aspect of the case with the interrogator.
The police could conclude that the assertion was equivocal in
nature and completely ignore the limitation. Certainly such a
result is inconsistent with this Court’s holding in Mosley.
In this case, by ignoring SrA Traum’s wishes regarding
the topic she did not want to discuss, the AFOSI agents
violated her Fifth Amendment right te remain silent. If
24
police and courts can now ignore selective waivers or
assertions of the right to remain silent simply because they
are selective, and therefore deemed equivocal, this Court’s
precedents will be greatly undermined.
For the reasons set forth above, this Court should grant
review of this issue and resolve the question of whether a
criminal suspect has the right under Mosiey to selectively
assert the right to remain silent by limiting questioning on
specific topics. The CAAF’s decision, if it is permitted to
stand, implies that any selective assertion of the right to
remain silent is necessarily an ambiguous assertion of that
right and therefore, the police have no obligation to
scrupulously honor that assertion of the Fifth Amendment
right to remain silent.
Conclusion
For the foregoing reasons, the petitioner respectfully
requests that this Court grant her petition for a Writ of
Certiorari.
November 2004
25
Respectfully submitted, —
L. MARTIN POWELL
Captain, U.S. Air Force
Counsel of Record
CARLOS L. McDADE
Colonel, U.S. Air Force
Counsel for Petitioner
TERRY L. McELYEA
Major, U.S. Air Force
Counsel for Petitioner
Appellate Defense Division
Air Force Legal Services Agency
112 Luke Avenue, Suite 343
Bolling AFB, DC 20032-8000
(202) 767-1562
—— ere -
la
Appendix A
UNITED STATES, Appellee
v.
Stephanie R. TRAUM, Senior Airman
U.S. Air Force, Appellant
No. 02-0885
Crim. App. No. 34225
United States Court of Appeals for the Armed Forces
Argued October 21, 2003
Decided August 24, 2004
BAKER, J., delivered the opinion of the Court in which
CRAWFORD, C.J., joined. GIERKE, J., filed an opinion
concurring in part and in the result which EFFRON, J.,
joined. ERDMANN, J., filed a separate opinion concurring
in part and in the result
Counsel
For Appellant: Lieutenant Colonel Craig S. Cook (argued);
Colonel Beverly B. Knott, Major Terry L. McElyea, and
Captain Kyle R. Jacobson (on brief); Captain Antony B.
Kolenc.
For Appellee: Captain C. Taylor Smith (argued); Colonel
LeEllen Coacher and Major John D. Douglas (on brief);
Lieutenant Colonel Robert V. Combs, Lieutenant Colonel
Lance B. Sigmon, Major Shannon J. Kennedy, and Major
Jennifer R. Rider.
2a
Judge BAKER delivered the opinion of the Court.
On September 17, 1999, contrary to her plea, Appellant
was convicted by general court-martial of the premeditated
murder of her infant daughter in violation of Article 118,
Uniform Code of Military Justice [hereinafter UCMJ], 10
U.S.C. § 918 (2000). The sentence, adjudged by a panel of
officer and enlisted members, provided for a dishonorable
discharge, confinement for life, forfeiture of all pay and
allowances, a reprimand, and reduction to the lowest enlisted
grade. Except for the reprimand, the convening authority
approved the sentence as adjudged: The Air Force Court of
Criminal Appeals affirmed the approved findings and
sentence in an unpublished opinion. United States v. Traum,
2002 CCA LEXIS 153, No. ACM 34225, slip op. (A.F. Ct.
Crim. App. June 28, 2002). We granted review to determine
whether Appellant's confession to Air Force Office of
Special Investigations (AFOSI) investigators should have
been suppressed, and whether the military judge allowed the
Government's expert witness to present inadmissible profile
evidence against Appellant.' For the reasons that follow, we
affirm.
' The granted issues are:
I. WHETHER APPELLANT'S STATEMENTS TO
SPECIAL AGENT KRAUS SHOULD HAVE BEEN
SUPPRESSED BECAUSE:
A. THE REQUEST BY AGENTS OF THE AFOSI
THAT APPELLANT SUBMIT TO A
POLYGRAPH EXAMINATION CONVERTED
THEIR DISCUSSION INTO OFFICIAL
QUESTIONING DURING WHICH
APPELLANT COULD INVOKE HER RIGHT
TO REMAIN SILENT; AND
3a
I.
The Confession of January 13
On the morning of December 21, 1998, base emergency
medical personnel received a phone call from Appellant
indicating that her eighteen-month old daughter Caitlyn was
not breathing. During the call, Appellant suggested that the
child might be having a seizure. Minutes later, medical
personnel arrived at Appellant's quarters and began to treat
the unresponsive child. The child was transported by
ambulance to the hospital where efforts to revive her
B. APPELLANT'S STATEMENT THAT SHE DID
NOT WISH TO DISCUSS THE EVENTS OF
THE NIGHT HER DAUGHTER DIED WAS
AN INVOCATION OF HER RIGHT TO
REMAIN SILENT, THUS REQUIRING THAT
THE AFOSI AGENTS SCRUPULOUSLY
HONOR HER REQUEST TO REMAIN
SILENT. ‘
Il. WHETHER THE MILITARY JUDGE COMMITTED
PREJUDICIAL ERROR BY ALLOWING’ THE
PROSECUTION EXPERT WITNESS, DR. COOPER, TO
TESTIFY AS TO INADMISSIBLE STATISTICAL
PROFILE EVIDENCE AND TO VOICE A MEDICAL
OPINION OF HOMICIDE LARGELY BASED UPON
APPELLANT'S CONDUCT.
Ill. WHETHER THIS COURT SHOULD ORDER NEW
POST-TRIAL PROCESSING WHERE THE STAFF
JUDGE ADVOCATE'S RECOMMENDATION
INCORRECTLY ADVISED THE CONVENING
AUTHORITY ON THE MAXIMUM AUTHORIZED
PUNISHMENT.
This third issue is resolved against Appellant in summary
fashion at the end of this opinion.
4a
continued. Despite the efforts of hospital personnel, Caitlyn
was pronounced dead shortly after arriving at the emergency
room. Appellant was home alone with the child at the time
the emergency call was made.
In the weeks following the child's death, AFOSI
investigators focused on Appellant as a homicide suspect.
On January 12, 1999, Appellant called AFOSI to inquire
about the status of the investigation of her daughter's death.
The agents expressed a desire to discuss the investigation
with Appellant at their office and she agreed to meet with
them the following morning.
When Appellant arrived at the AFOSI office on the
morning of January 13, she met with Special Agents (SA)
Engelman and Gage and requested an update on the
investigation. Appellant also informed them that she needed
a copy of her daughter's autopsy report and death certificate
in order to process her humanitarian reassignment. After
further “idle chit chat," SA Engelman asked Appellant if she
would be willing to take a polygraph. At first, Appellant
neither declined nor accepted the invitation to take the
polygraph. SA Engelman explained to Appellant that a
possible benefit of taking the examination might be to rule
her out as a suspect.
When asked again whether she was willing to take the
examination, Appellant replied that "she did not want to talk
about the details of the night of 20/21 December 1998." SA
Engelman subsequently explained to Appellant that it might
not be necessary to go into all of the details of that night, but
it might be necessary to go into some of the details. The
agent further explained that if Appellant still had concerns
with talking about the details of that night, she could raise
them with the polygrapher, SA Kraus. Appellant
acknowledged that she understood this information.
Following this discussion, Appellant accompanied SA
Kraus into a room to be interviewed and polygraphed. Prior
to asking any questions, SA Kraus administered Appellant's
5a
Article 31 rights and advisement. He also informed
Appellant that she-was not required to take the examination.
Appellant waived these rights and agreed to be polygraphed
and interviewed. There is no indication that at any time after
the rights advisement, Appellant expressed her earlier
concerns about discussing the details of the night of
December 20 or the morning of December 21 to SA Kraus or
anyone else.
After the polygraph examination, SA Kraus interviewed
Appellant. During this interview, Appellant disclosed that
she had killed Caitlyn by pushing the child's head into the
couch and suffocating her. Appellant reduced this
confession to writing and signed it. This written statement
recounts that Appellant "gently pressed Cait's head into the
couch" ostensibly to save Caitlyn from her father's abusive
ways. Appellant included in her statement that she decided
to take the child's life "around midnight on the 20 or 21st
Dec. 98." When asked why she smothered the child as
opposed to killing her in some other way, Appellant's written
response was, "I didn't want her to hurt." At the time of the
AFOSI interview, Appellant was a married, 25 year old E-4
with 6 1/2 years of service.
Prior to the trial on the merits, Appellant moved to
suppress her confession to SA Kraus. In her motion,
Appellant initially contended that because she was a suspect
on the morning of January 13, her Article 3] rights should
have been read prior to the agents engaging in any
conversation with her. For the purposes of this appeal,
Appellant has narrowed her claim to an assertion that SA
Engelman's question regarding taking a polygraph was
designed to elicit an incriminating response. Therefore,
according to Appellant, SA Engelman was required to warn
her of her Article 31 rights before asking this question.
Appellant also contends, as she did at trial, that her response
to SA Engelman's question that "she did not want to talk
about the details of the night of 20/21 December 1998" was
6a
an invocation of her Fifth Amendment right to remain silent.
Further, Appellant asserts that her invocation was
unequivocal and not honored, therefore, any statement taken
after Appellant's response to SA Engelman's question
regarding the examination was tainted and should have been
suppressed.
A. The Requirement to Warn under Article 31
Appellant asserts that the agent's request for her to take a
polygraph was either interrogation or a request for a
statement within the meaning of Article 31.
No person subject to the UCMJ may "interrogate, or
request any statement" from a person suspected of an offense
without first warning that person in accordance with Article
31(b). Article 31(b), UCMJ, 10 US.C. § 831 (2000).
Interrogation’ includes any formal or informal questioning
in which an incriminating response either is sought or is a
reasonable consequence of such questioning." Military Rule
of Evidence 305(b)(2)[hereinafter M.R.E.]; Rhode Island v.
Innis, 446 U.S. 291, 301, 64 L. Ed. 2d 297, 100 S. Ct. 1682
(1980). M.R.E. 305(b)(2) was broadly fashioned "to thwart
‘attempts to circumvent warnings requirements through
subtle conversations." United States v. Ruiz, 54 M.J. 138,
141 (C.A.A.F. 2000)(quoting S. Saltzberg et al., Military
Rules of Evidence Manual 225 (4th ed. 1997)). However,
interrogation involves more than merely putting questions to
an individual. Id.
We recognize that a request to take a polygraph may
arise in a variety of circumstances related to interrogation.
See Wyrick v. Fields, 459 U.S. 42, 74 L. Ed. 2d 214, 103 S.
Ct. 394 (1982); United States v. Applewhite, 23 M.J. 196
(C.M.A. 1987).2 In each instance, the question will be
? Each of these cases can be distinguished from the present
case. . Both involved the custodial interrogation of
individuals who had previously invoked their right to
counsel. In Wyrick, the Supreme Court reasoned that by
— —
7a
whether an incriminating response is sought or is the
reasonable consequence of the comment or remark. Of
course, a rights advisement prior to such a question would
remove the necessity for such analysis. Based on the context
in which SA Engelman asked Appellant whether she would
take a polygraph, we conclude that an incriminating response.
was not a reasonable consequence of SA Engelman's inquiry.
In our view, the "reasonable consequence" of SA Engelman's
question in the context presented was either yes or no.
Similarly, we agree with the conclusion reached by the Court
of Criminal Appeals that "no incriminating response from
the appellant was sought ...." Traum, 2002 CCA LEXIS
153 at *9, No. ACM 34225. The polygraph and its operator
were located in an adjacent room. SA Engelman's objective
requesting to take a polygraph the defendant had "initiated
dialogue with the authorities" such that interrogation could
resume. Wyrick v. Fields, 459 U.S. 42, 48, 74 L. Ed. 2d 214,
103 S. Ct. 394 (1982). In Applewhite, the focus was on
whether a previous invocation of the right to counsel had
been honored or whether it had been undermined. There, the
accused requested counsel, but investigators asked the
accused to take a polygraph. Several days later he appeared
prepared to do so. Prior to the examination he was
confronted with new as well as previous allegations of
wrongdoing. Whatever dicta may have been used in
resolving the issue in that case, there was no holding that the
mere request to take the polygraph was intended to elicit an
incriminating response. Rather, in the words of Judge Cox,
"After appellant invoked his right to counsel, the investigator
sought to circumvent the exercise of that right by requesting
appellant to take a polygraph examination." United States v.
Applewhite, 23 M.J. 196, 199 (C.M.A. 1987). Interrogation
of Applewhite occurred when he returned several days later
to actually take the examination. /d. Significantly,
Appellant in this case was neither in custody nor had she
invoked her right to counsel.
8a
was to encourage Appellant to take the polygraph not to ask
questions that might serve as an investigative substitute for
what the agents hoped to garner from the administration of
the polygraph exam. Thus, we conclude that an
incriminating response was neither sought nor was it a
reasonable consequence of SA Engelman's inquiry.
B. Right to remain silent
We next determine whether Appellant's response to SA
Engelman's question was an invocation of her right to
silence, and if so, whether that right was "scrupulously
honored." See Miranda v. Arizona, 384 U.S. 436, 479, 16 L.
Ed. 2d 694, 86 S. Ct. 1602 (1966). While SA Engelman's
question was not interrogation as measured under Article 31,
Appellant could nonetheless invoke her Fifth Amendment
right to silence in response to the question. The right to
remain silent "protects against any disclosures that the
witness reasonably believes could be used in a criminal
prosecution or could lead to other evidence that might be so
used." Kastigar v. United States, 406 U.S. 441, 444-45, 32
L. Ed. 2d 212, 92 S. Ct. 1653 (1972). "Application of the
privilege is not limited to persons in custody or charged with
a crime; it may also be asserted by a suspect who is
questioned during the investigation of a crime." United
States v. Alameda, 57 M.J. 190, 199 (C.A.A.F. 2002). See
also Combs v. Coyle, 205 F.3d 269, 283 (6th Cir. 2000);
United States v. Brunson, 952 F.2d 1196, 1201 (10th Cir.
1991), cert. denied, 503 U.S. 997, 118 L. Ed. 2d 411, 112 S.
Ct. 1702 (1992); Coppola v. Powell, 878 F.2d 1562, 1568
(Ist Cir. 1989), cert. denied, 493 U.S. 969, 107 L. Ed. 2d
383, 110 S. Ct. 418 (1989); United States ex rel. Savory v.
Lane, 832 F.2d 1011, 1017 (7th Cir. 1987).
This Court has established that "if the individual
indicates in any manner, at any time prior to or during
questioning, that he wishes to remain silent, the interrogation
must cease[.]" United States v. Sager, 36 M.J. 137, 145
(C.M.A. 1992)(quoting Miranda, 384 U.S. at 473). This
9a
important principle is incorporated in the Manual for Courts-
Martial as well. "If a person chooses to exercise the
privilege against self-incrimination . . . questioning must
cease immediately." M.R.E. 305(f)(1). Although no
particular words or actions are required to exercise one's
Fifth Amendment right to silence, we have held that its
invocation must be unequivocal before all questioning must
stop. Sager, 36 M.J. at 145; see United States v. Schake, 30
M.J. 314, 319 (C.M.A. 1990); see also Campaneria v. Reid,
891 F.2d 1014, 1021 (2d Cir. 1989), cert denied, 499 U.S.
949, 113 L. Ed. 2d 471, 111 S. Ct. 1419 (1991).
Appellant's response that "she did not want to talk about
the details of the night of 20/21 December 1998" did not
foreclose the possibility that she was willing to take the
polygraph and discuss other aspects of the investigation,
such as the child's medical history or the manner in which
Appellant cared for her child. Thus, Appellant's words did
not unequivocally invoke her right to remain silent.
SA Engelman; who was not assigned to administer the
polygraph, informed Appellant that she might not have to
talk about all the details of that night, but that she was free to
raise her concerns with the individual administering the
examination. The military judge found Appellant
understood this advice. Later at the interview with SA
Kraus, Appellant had the opportunity to do as SA Engelman
had advised. Instead, Appellant voluntarily decided to take
the examination. This decision was made after being
informed of, and waiving, her right to counsel and her right
to remain silent, as well as after being informed of her right
to refuse the polygraph examination. Based on these facts,
the military judge concluded that Appellant made an
informed decision to waive her rights before making any
admissions to SA Kraus and that her statement was
voluntary. We agree. Therefore, the military judge did not
abuse his discretion in admitting Appellant's confession.
10a
II
Expert Testimony at Trial
A. Background
The Government's case on the merits was comprised of
Appellant's confession, testimony from the emergency first
responders, the medical examiner, a forensic pediatrician,
and several witnesses who described Appellant's
inappropriate grief response.
Unsuccessful in its efforts to suppress the confession, the
defense proceeded at trial on the theory that Appellant's
statement of January 13 was the false product of the agents’
efforts to induce Appellant into making a statement. The
defense also suggested during its opening statement that the
child may have died as a result of a seizure; a possibility the
defense maintained could not be eliminated beyond a
reasonable doubt by the Government. Finally, the defense
attacked the credibility and competence of the Government's
medical examiner.
This issue focuses upon the testimony of the
Government's forensic pediatrician Dr. Cooper. Dr. Cooper
was called by the Government to discuss child abuse in
general and in the words of trial counsel, to help the
members understand how "parents can kill their children. "
The defense moved in limine to preclude the witness from
offering what it felt was inadmissible profile evidence and
evidence of parental behavior that should otherwise be the
subject of eyewitness rather than expert witness testimony.
1. The Article 39(a; session
At a session pursuant to Article 39(a), UCMJ, 10 U.S.C.
§ 839(a) (2000), Dr. Cooper presented her qualifications and
experience to the military judge.’ She then testified about
> Dr. Cooper previously served as the assistant chief of
pediatric service at Schofield Barracks, the chief of
lla
child abuse and maltreatment as it pertained to inflicted
injuries on children. During this session, trial counsel asked
Dr. Cooper how one arrives at a diagnosis of fatal child
abuse. The doctor responded in part:
The most important aspects are the history as
given by the family or whoever was in sole
custody of the child. This is just critically
important and there is no form of medicine,
typically, that proceeds without a history. . . .
And what is really critical in that history is
consistency of the history. If a physically
custodial person who presents with a child to an
emergency room environment gives a history
that, over that night or over the subsequent days
to weeks, changes, you have to be very
concerned regarding the fact that this may be an
inflicted injury.
The second thing we look at is the behavior
of the parents or whoever are the custodial
people. The behavior of the person taking care
of the child is very telling with respect to
whether or not they are exhibiting concern for
the well-being of the child. . . . The behavior and
demeanor of the parent or the custodial care
provider at the time the child presents to the -
hospital is an important fact and one which is to
be documented in the medical record.
pediatrics at Womack Army Medical Center, Deputy
Commander for clinical services, pediatric representative on
the Family Advocacy Case Management Team, instructor at
the Army Medical Education Department, and member of
the Department of Defense Child Fatality Review
Committee. At the time of trial, she was the primary
forensic pediatrician for Cumberland County.
12a
Finally, the physical examination, which
may reflect exactly what happened at the time
when you are in the emergency room
environment, but may actually, ultimately,
require the evaluation and determination of a
medical examiner. In certain types of child
maltreatment deaths, the physical examination
or the findings on the autopsy may not be one
hundred percent clear as to what has happened
to the child. This is particularly the case in
suffocation or asphyxiation type deaths... .
Dr. Cooper went on to explain that this — tripartite
methodology - history, parental/custodial behavior, and
examination - was relied on by "numerous specialists in the
field." She then named some of these "specialists," including
several forensic pediatricians whom Dr. Cooper described as
"well-known" authorities in their field as well as certain law
enforcement professionals.
Trial counsel then shifted the focus of Dr. Cooper's
testimony to the area of single episodes of child abuse versus
multiple episodes. Relying on a work by a Dr. James A.
Monteleone entitled Child Maltreatment (2d ed. 1998),
which Dr. Cooper considered an authoritative reference, she
testified that "in eighty percent of fatal child abuse cases, that
fatal event is the first time that that child has ever been
abused." Next, relying on a report by the Advisory Board on
Child Abuse and Neglect,” Dr. Cooper testified that
according to the report "the people most likely to kill
children are their biological parents - overwhelmingly so."
* The U.S. Advisory Board on Child Abuse and Neglect was
established under Pub. L. No.-100-294, section 103, of the
Child Abuse Prevention and Treatment Act, amendments of
1988. The report referenced by Dr. Cooper is entitled, A
Nation's Shame: Fatal Child Abuse and Neglect in the United
States (1995).
13a
Citing to professional literature in her field, Dr. Cooper
further testified that there are two different categories of
predisposing factors to child abuse and neglect - one
category pertaining to the child and one pertaining to the
adult. Regarding the category relevant to the child, Dr.
Cooper stated that "the leading cause of trauma death, now,
in the United States, for children under the age of four, is
child maltreatment." She then discussed the adult category
that included such factors as the presence of substance abuse,
the presence of biological parents as opposed to step-parents
and babysitters, and whether the child was in a military
family setting.
Finally, following Dr. Cooper's testimony pertaining to
the methodology that considers history, behavior, and
physical examination, trial counsel sought Dr. Cooper's
ultimate opinion as to Caitlyn Traum's cause of death.
Before doing so, however, trial counsel asked Dr. Cooper
what evidence and documents she reviewed in forming her
opinion. She stated that she reviewed Caitlyn's medical
records, Caitlyn's sister's medical records, and the
investigation reports that included Appellant's confession,
the emergency medical responses, Family Advocacy records,
and the autopsy reports. She then opined, "I feel that her
cause of death is homicide or an inflicted fatal child abuse."
Dr. Cooper added that she believed the child died as a result
of inadequate oxygen consistent with asphyxiation and that
Caitlyn "was asphyxiated through a suffocation method."
Her reasoning was as follows:
The reason that I believe that is, first of all, the
child died in a manner that cannot be explained
by Sudden Infant Death Syndrome or any other
obvious medical cause. . . . The second reason
that I believe this is the case is because the
history given by the custodial person-in this
case, her mother-varied from the time she talked
to the EMS personnel to the time that she talked
l4a
to the individuals at the hospital, a very key
element.
... She gave a different history as to what had
happened to the child. Whenever you see a
charige in history as to what has happened, that
is a very critically important element when
you're trying to decide if this is an accidental
versus inflicted injury. And then the third
reason that I believe this is because this child
had trauma to her upper lip. Now, I understand
that this patient underwent _ significant
resuscitation efforts, but I have most certainly
seen and evaluated suffocation victims-death
cases-where children were suffocated to death,
who had similar injuries to the inner aspect of
their upper lip.
Following the testimony presented at the Article 39(a)
session, defense counsel challenged Dr. Cooper's tripartite
methodology. The defense focused on Dr. Cooper's use of
the victim's history as well as her use of the behavior of the
custodial parent. Defense counsel also argued that Dr.
Cooper's consideration of Appellant's inconsistent history
regarding Caitlyn's condition amounted to an expert's
assessment of Appellant's credibility and was therefore
impermissible. Finally, the defense asserted that Dr.
Cooper's reliance on Appellant's alleged inappropriate grief
response was inadmissible character evidence because it
portrayed Appellant as a bad parent. While defense counsel
suggested that the doctor's opinion was based on only one
aspect of Appellant's conduct, her grieving reaction, Dr.
Cooper steadfastly insisted that this factor was merely one of
a number of factors considered in the "whole assessment
when you look at the history, behavior, physical examination
and autopsy finding.”
TT SE ee
15a
After taking Dr. Cooper's testimony at the Article 39(a)
session, the military judge heard argument from both sides as
to their view of the permissible parameters of Dr. Cooper's
testimony before the members. The military judge then
ruled that he would allow Dr. Cooper's testimony regarding
child abuse in general, her testimony regarding single
episode versus multiple episodes of child abuse, her
statement that biological parents are the most likely to fatally
abuse their children, and the factors relevant to history,
behavior, and physical examinations relied upon by experts
in diagnosing fatal child abuse. The military judge reasoned
that this testimony would be allowed because "it is
counterintuitive for a parent to kill their eighteen month old
child, based on the facts that have come out so far.”
The military judge also ruled that the expert would not be
allowed to testify regarding the so-called adult category of
predisposing factors of child abuse. The judge prohibited
such testimony because he felt it got into profile evidence
and ran “awfully close to the types of things that the courts
have found to be error." He also ruled that the witness would
not be allowed to testify about a typical grieving parent's
reaction as contrasted against that of a non-grieving parent.
The judge reached this decision because "the [M.R.E.] 403
[prejudice] aspect here outweighs the probative value for the
members."
Finally, the judge determined that Dr. Cooper would not
be permitted to render her opinion that the cause of death
was inflicted fatal child abuse. However, he did rule that the
witness could give her opinion that the cause of death was
non-accidental asphyxiation. After further discussion,
-defense counsel indicated that he understood the military
judge's ruling, but indicated his objection to the testimony
still stood. Thereafter, the military judge concluded the
Article 39(a) session.
2. Dr. Cooper's testimony before the members
l6a
During the trial before the members, trial counsel elicited
testimony from Dr. Cooper consistent with the rulings by the
military judge. In particular, she testified, "Overwhelmingly,
the most likely person to kill a child is going to be his or her
own biological parent." Dr. Cooper also testified that "if a
child is less than four years of age, the most common cause
of trauma death is going to be child maltreatment." The third
statement given before the members was, "Eighty percent of
children who die, die from a one-time event." After further
testimony relevant to various seizure disorders, sudden infant
death syndrome, means by which children accidentally
suffocate, and other aspects of fatal child abuse, Dr. Cooper
concluded her testimony with the following statement: "It is
my medical opinion that the cause of death for Caitlyn
Traum was asphyxiation of a non-accidental nature." There
was no cross-examination from the defense.
B. Discussion
Appellant challenges Dr. Cooper's testimony on two
grounds. First, Appellant asserts that three of Dr. Cooper's
opinions that were presented to the members constituted
profile evidence. In particular, the defense focused on these
statements:
"if a child is less than four years of age, the most
common cause of trauma death is going to be
child maltreatment";
_ "Eighty percent of children who die, die from a
one-time event"; and
"Overwhelmingly, the most likely person to kill
a child is going to be his or her own biological
parent."
Second, Appellant maintains that the military judge erred
in admitting Dr. Cooper's testimony because it was based on
Dr. Cooper's review of Appellant's behavicr in _ the
aia
17a
emergency room. We review Appellant's arguments in turn
to determine whether the military judge abused his discretion
in allowing all or part of Dr. Cooper's testimony. See United
States v. Houser, 36 M.J. 392, 397 (C.M.A. 1993).
1. Profile Evidence
Before expert testimony may be admitted, the following
factors must be established by the proponent of such
testimony:
(A) the qualifications of the expert, Mil.R.Evid.
702;[°] (B) the subject matter of the expert
testimony, Mil.R.Evid. 702; (C) the basis for the
expert testimony, Mil R.Evid. 703; (D) the legal
relevance of the evidence, Mil.R.Evid. 401 and
402; (E) the reliability of the evidence, United
States v. Gipson, 24 M.J. 246 (CMA 1987), and
Mil.R.Evid. 401; and (F) whether the ‘probative
value' of the testimony outweighs other
considerations, Mil.R.Evid. 403.
Houser, 36 M.J. at 397.
Expert testimony is admissible when "scientific,
technical, or other specialized knowledge will assist the trier
of fact to understand the evidence or to determine a fact in
issue[.]" M.R.E. 702. "The test is not whether the jury could
reach some conclusion in the absence of the expert evidence,
but whether the jury is qualified without such testimony ‘to
determine intelligently and to the best possible degree the
particular issue without enlightenment from those having a
specialized understanding of the subject[.]' Houser, 36 M.J.
at 398.
* At trial, the military judge accepted Dr. Cooper as an expert
in the field of forensic pediatrics without objection from
defense counsel. Thus, Dr. Cooper's qualifications are not in
issue on appeal.
NN eS
18a
In contrast, "generally, use of any characteristic 'profile'
as evidence of guilt or innocence in criminal trials. is
improper." United States v. Banks, 36 M.J. 150, 161 (C.M.A.
1992). See Brunson v. State, 349 Ark. 300, 79 S.W.3d 304,
313 (Ark. 2002)(rejecting testimony that the defendant met
eight of ten risk factors for batterers likely to kill);
Commonwealth v. Day, 409 Mass. 719, 569 N.E.2d 397, 400
(Mass. 1991)(child battering profile inadmissible); State v.
Clements, 244 Kan. 411, 770 P.2d 447, 454 (Kan.
1989)(finding evidence of psychology and treatability of a
child sexual offender inadmissible); United States v. Garcia,
25 M.J. 159 (C.M.A. 1987)(summary disposition)(rejecting
testimony that appellant's psychological profile was
consistent with a person who sexually abused children);
United States v. August, 21 M.J. 363 (C.M.A. 1986)
(rejecting a profile of the "usual" sexual child abuser);
Sanders v. State, 251 Ga. 70, 303 S.E.2d 13 (Ga. 1983)(state
cannot introduce evidence of battering parent syndrome);
State v. Loebach, 310 N.W.2d 58, 64 (Minn. 1981)(evidence
placing the defendant within the profile of a battering parent
inadmissible). Profile evidence is evidence that presents a
"characteristic profile" of an offender, such as a pedophile or
child abuser, and then places the accused's personal
characteristics within that profile as proof of guilt. United
States v. Rynning, 47 M.J. 420, 422 (C.A.A.F. 1998).
The question in this case is whether Dr. Cooper's
opinions constituted impermissible profile evidence or
whether they were admissible opinions of specialized
knowledge under M.R.E. 702.° Child abuse is an area where
* Appellant did not raise a challenge under Daubert regarding
the reliability of Dr. Cooper's methodology or her conclusion
of "non-accidental asphyxiation." See Daubert v. Merrell
Dow Pharms., Inc., 509 U.S. 579, 125 L. Ed. 2d 469, 113 S.
Ct. 2786 (1993). Therefore, we do not address what impact,
if any, a Daubert challenge would have had cn the scope and
content of Dr. Cooper's testimony.
19a
specialized knowledge regarding pediatric forensics and
child abuse may indeed be helpful to members. Children
incur all sorts of injuries as they move through infancy to the
toddler years and beyond. Thus, a panel might well benefit
from an understanding of the methodology doctors use to
determine the cause of an infant's injury. In the case of fatal
child abuse, the value of such specialized knowledge is
equally apparent. Such information helps members discern
the critical elements of testimony and place that testimony
within an analytic framework. This information may also
help disabuse members of preconceptions that might cloud
their ability to focus on the evidence presented as opposed to
preconceptions about the nature of the offense at issue. In
light of this predicate, we believe Dr. Cooper's first two
statements fall within the rubric of specialized knowledge
that is useful to the members in understanding the evidence
and determining a fact in question. This testimony was
given in the context of her general description of fatal child
abuse. Further, these particular statements relate to the
characteristics of the child victim in this case rather than
Appellant. Comparable evidence has been admitted in cases
involving rape trauma syndrome. See United States v.
Reynolds, 29 M.J. 105, 111 (C.M.A. 1989). Similarly,
evidence of battered child syndrome is often admitted to
show that a particular injury "is not accidental or is not
consistent with the explanation offered therefore but is
instead the result of physical abuse by a person of mature
strength." United States v. White, 23 M.J. 84, 87 (C.M.A.
1986).
As we explained in Banks, the ban on profile evidence
exists because this process treads too closely to offering
character evidence of an accused in order to prove that the
accused acted in conformity with that evidence on a certain
occasion and committed the criminal activity in question.
This, of course, is prohibited under M.R.E. 404(a)(1). See
Banks, 36 M.J. at 161. These two statements by Dr. Cooper
do not implicate that concern because they relate to the
20a
characteristics of the child victim in this case rather than
Appellant.
What we condemned in Banks was the Government's
construction of a syllogism "(major premise, minor premise,
and conclusion)" used in persuading the members that the
appellant was a child abuser. 36 MJ. at 162 n.11. In that
case, the Government, through its expert witness, presented
the major. premise that families with a profile of three
particular identified risk factors presented an increased risk
of child sexual abuse. The Government then established
through further testimony the minor premise that Banks and
his family fit this profile. Finally, the prosecution argued for
the conclusion that since the minor premise established the
major premise, the members could not help but decide that
Banks was a child abuser. We discern no such tactic in the
record of this case.
Testimony setting up a child battering profile must be
distinguished from testimony focusing on the characteristics
of a battered child. See Day, 569 N.E.2d at 400. See also
Myra S. Raeder, The Better Way: The Role of Batterers'
Profiles and Expert "Social Framework" Background in
Cases Implicating Domestic Violence, 68 U. Colo. L. Rev.
147, 160 (1997)(discussing the distinction between battered
wife syndrome and evidence of a batterer profile). The
former is irrelevant because it is not necessarily true that an
accused is a batterer just because the individual fits a certain
profile. However, the latter is often helpful in determining a
fact in issue. This is especially true when deciding, as in the
instant case, whether the child died from a seizure as posited
by the defense or whether she was suffocated as alleged by
the Government. We conclude Dr. Cooper's testimony was
the latter.
Dr. Cooper's third statement, "Overwhelmingly, the most
likely person to kill a child is going to be his or her own
biological parent," is more troubling. Following Dr.
Cooper's testimony and counsel's respective arguments at the
ONE ee a NE RE Tee
2la
Article 39(a) session, the military judge contextually culled
out the testimony he considered profile in nature.
Consequently, the military judge attempted to limit Dr.
Cooper's testimony to child characteristics of abuse like the
history of diagnosing child abuse, fatal versus nonfatal child
abuse, and single episode versus multiple episodes of abuse.
The judge barred Dr. Cooper from testifying regarding adult
characteristics of child abusers, like substance abuse, living
in a military environment, and the parent of an unplanned
pregnancy.
Nevertheless, Dr. Cooper's statement regarding
biological parents clearly reached both the characteristics of
the victim as well as the characteristics of the typical
offender. It is not enough to say that the Government did not
expressly place the accused within the statistic presented, for
the accused manifestly fit the statistical pattern presented
without the Government connecting the dots. Moreover,
while Dr. Cooper's testimony did not come in the form of
numeric probability, members might have been left with the
impression that if the testimony indicated Appellant's
daughter died as a result of child abuse, the probability
Appellant committed the offense was "overwhelming,"
regardless of what specific evidence was presented. In
essence, the statement placed a statistical probability on the
likelihood that Appellant committed the offense. Thus, we
conclude that it was impermissible profile evidence.
However, any error in admitting this statement was
harmless. First, the evidence was introduced after
Appellant's confession had been admitted and presented to
the members. Second, the critical question in this case was
whether the victim died by accidental or intentional
asphyxiation, not the identity of the perpetrator. Appellant
did not contest being alone with the victim at the time of the
child's injury.
2. Basis for the Expert's Opinion
22a
Appellant also argues that Dr. Cooper should not have
been allowed to give her ultimate opinion on the cause of
Caitlyn's death because it was not based solely upon medical
evidence, but also rested upon her subjective evaluation of
Appellant's grieving conduct. In particular, during the
Article 39(a) session, Dr. Cooper testified that when forming :
her opinions she considered the fact that Appellant gave
differing accounts regarding Caitlyn's condition to the 911
operator, the paramedics when they arrived at her quarters,
and to the hospital personnel when the child arrived at the
emergency room.
Dr. Cooper also considered certain statements Appellant
allegedly made to witnesses at the hospital as suggestive of
an uncharacteristic and inappropriate grief response. For
example, Appellant was alleged to have stated to one witness
who was trying to console her at the hospital, "I'm just glad I
saved the toy receipts." Traum, 2002 CCA LEXIS 153 at *4,
No. ACM 34225. When this witness commented that the
dead child had been a beautiful girl, Appellant stated, "She
really was mean. She was mean to her sister and really
active." 2002 CCA LEXIS 153 at *4. At root, Appellant
argues these remarks were observations lay persons could
observe and testify to without medical knowledge.
Therefore, Dr. Cooper's testimony was not based on
specialized medical knowledge, but ordinary lay
observations already offered to the members by nor-expert
witnesses.
An expert's opinion may be based upon other sources
such as "personal knowledge, assumed facts, documents
supplied by other experts," or the testimony of witnesses at
trial. Houser, 36 M.J. at 399; M.R.E. 703. Dr. Cooper's
testimony indicates that her opinions were not based solely
on Appellant's grieving reaction, but on a tripartite
methodology generally accepted as authoritative in the
forensic pediatric field. This methodology focuses on the
history of events leading to a child's condition, the behavior
;
23a
of the custodial caretaker, and the physical examination
reports including those from the autopsy. Further, the record
supports a conclusion that this methodology is relied or. by
experts in the field of forensic pediatrics. M.R.E. 703 2ilows
experts to rest their opinions on precisely this basis.
Therefore, it is clear Dr. Cooper's testimony was rooted in
more than lay observations regarding Appellant's conduct.
Moreover, it was the eyewitnesses and not Dr. Cooper who
testified to the members about Appellant's reactions in the
emergency room.
3. Probative Value
However relevant and reliable an expert's testimony
might be, such evidence "may be excluded if its probative
value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the
members[.]". M.R.E. 403. The record indicates that the
military judge was acutely aware of the dangers of profile
evidence. It is worth noting the military judge's comment at
the time he made his ruling with regard to admission of Dr.
Cooper's testimony. The judge clearly considered the
expert's testimony balanced against "the facts that have come
out so far." When Dr. Cooper testified during the trial, the
members had already received Appellant's confession, the
testimony of the medical examiner, and the testimony of
various witnesses concerning statements Appellant made
indicating either a lack of grief or at best, an inappropriate
grief response. Further, the military judge culled out what he
thought was impermissible profiling of Appellant and
allowed opinions that were based on the professional
literature of the field of expertise and on a methodology
accepted by experts in that field. Finally, it is clear the
military judge understood the constraint of M.R.E. 403 when
he was determining what would or would not be allowed.
Based on this record, we cannot say the military judge
abused his discretion in weighing the probative value of the
24a
expert testimony against any prejudicial effect it might have
presented.
Ill
Life Without Possibility of Parole
Finally, Appellant takes issue with the advice given to
the convening authority by the staff judge advocate. The
advice given stated that the "maximum imposable sentence
for the offense of [premeditated murder] of which SrA
Traum was convicted is life imprisonment, without
eligibility for parole." SJAR, para. 6 (emphasis added).
Article 56a, UCMJ, 10 U.S.C. § 856a (2000), was enacted on
November 18, 1997. Appellant was sentenced on September
17, 1999. In light of our recent decision in United States v.
Ronghi, 60 M.J. 83 (C.A.A.F. 2004), life without eligibility
for parole was an authorized punishment at the time of
Appellant's trial.
Decision
The military judge did not abuse his discretion in
admitting the expert testimony or Appellant's confession,
nor, was there error in the post-trial processing of Appellant's
case. The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
GIERKE, Judge, with whom EFFRON, Judge, joins
(concurring in part and in the result):
I agree with the majority on all issues except I(A),
concerning the necessity to provide rights warnings before a
law enforcement agent may ask a suspect to take a polygraph
examination.
Regardless of whether, as a general matter, such a
request is reasonably likely to elicit an incriminating
response, in this case it did not do so. Rather, all of
Appellant's incriminating statements were made only after
25a
Special Agent Kraus had informed Appellant of her rights
pursuant to Article 31, Uniform Code of Military Justice, 0
U.S.C. § 831 (2000), Miranda y. Arizona, 384 U.S. 436, 16
L. Ed. 2d 694, 86 S. Ct. 1602 (1966), and United States v.
Tempia, 16 C.M.A. 629, 37 C.M.R. 249 (1967), and after
Appellant waived those rights.
Voluntariness is the touchstone for determining a
subsequent statement's admissibility even where the suspect
has let the cat out of the bag in a previous unwarned but
voluntary statement. See United States v. Lichtenhan, 40
M.J. 466 (C.M.A. 1994). In this case, Appellant made no
incriminating statements before Special Agent Kraus gave
her a complete rights warning and obtained a waiver of those
rights. Because Special Agent Engelman's request resulted
in no taint, it did not affect the Appellant's admissions to
Special Agent Kraus. There is, therefore, no need to resolve
issue I(A). I reserve judgment on that legal issue.
ERDMANN, J. (concurring in part and in the result):
I agree with the majority on all issues other than the
nature of the three statements made by Dr. Cooper. In the
context of this case, these statements are improper profiling
evidence in that they characterized Senior Airman Traum as
a person who would both abuse and kill her natural child.
I recognize the distinction made by the majority between
testimony relating to the characteristics of a child victim and
the characteristics of an accused. However, testimony that in
isolation would not constitute "profiling" evidence may well
become "profiling" when heard in the context of a particular
case. This is such a case.
Before the members, Dr. Cooper first stated that "eighty
percent of children who die, die from a one[-]time event."
Because there was no evidence of prior abuse and unrefuted
evidence that Traum had been alone with her baby prior to
the death, this statement had the effect of rendering it 80%
26a
likely that Traum was the cause of the "one[-jtime event"
that resulted in her baby's death.
Dr. Cooper's next statement was that "if a child is less
than four years of age, the most common cause of trauma
death is going to be child maltreatment." The prosecution
had already established that the baby was under four, showed
evidence of physical trauma and was alone with Traum
during the time any trauma could have been inflicted. In
conjunction with the earlier evidence, this statement
identified the death as resulting from trauma and identified
Traum as the only person who could have inflicted the
trauma. These two conclusions were virtually inseparable
and the second is clearly beyond the realm of permissible
expert testimony.
As noted by the majority, Dr. Cooper's final statement is
certainly the most troublesome: "Overwhelmingly, the most
likely person to kill a child is going to be his or her own
biological parent." Contextualized, Dr. Cooper's statement
meant that Traum, as the biological parent, was
overwhelmingly the most likely person to have killed her
child. An expert may not testify that the accused committed
the crime being tried, and Dr. Cooper should not have been
permitted to do through presentation of "information or data"
that which she could not have done through direct testimony.
See United States v. Diaz, 59 M.J. 79, 92 (C.A.A.F.
2003)(noting "fundamental rule of law that experts may not
testify as to guilt or innocence"). |
— In United States v. Banks, 36 M.J. 150, 161 (C.M.A.
1992), this Court condemned "use of any characteristic
‘profile’ as evidence of guilt or innocence in criminal trials."
We defined the nature of such improper profile evidence to
go beyond character evidence per se:
Inadmissible profile evidence does no* merely
address a profile where the factors relate only to
a "character trait" of the accused. The factors in
27a
the profile may be any information or data so as
to place appellant in an alleged "group" of
persons who have committed offenses in the
past.
Id. at 163. While all three of Dr. Cooper's statements
constitute "profiling" evidence, taken together they certainly
could cause the members to classify Traum as a child abuser
and killer. Consistent with our holding in Banks, these
statements carry the danger of prejudice "greatly"
outweighing any probative value the information may have.
Id. at 161. Evidence such as this turns the trial of criminal
charges away from one of facts to "a litmus-paper test for
conformity with any set of characteristics, factors, or
circumstances." Id.
Finally, in this case the military judge admitted the three
statements because it was "counterintuitive" that a parent
would be involved in the death of his or her child. This
ruling reveals that the military judge admitted the evidence
not to show that the child's death was a crime, but to show
specifically that the parent was the perpetrator. The very
purpose for which the statements were admitted was to
identify Traum as one of a very limited group who would kill
her child based on probabilities and inferences rather than
upon the facts of the case.
Nevertheless, for the same reasons that the majority
found the error with respect to the admission of Dr. Cooper's
third statement to be harmless, I find that the error relating to
the admission of all three statements to be harmless.
Therefore, I join in affirming the decision of the court below.
28a
Appendix B
UNITED STATES AIR FORCE COURT OF CRIMINAL
APPEALS
UNITED STATES
Vv.
Senior Airman STEPHANIE R. TRAUM,
United States Air Force
ACM 34225
June 28, 2002, Decided
COUNSEL: For Appellant: Captain Shelly W. Schools
(argued), Colonel James R. Wise, Colonel Beverly B. Knott,
and Lieutenant Colonel Timothy W. Murphy.
For the United States: Major Jennifer R. Rider (argued),
Colonel Anthony P. Dattilo, Lieutenant Colonel Lance B.
Sigmon, and Lieutenant Colonel Bryan T. Wheeler.
JUDGES: Before YOUNG, BRESLIN, and HEAD,
Appellate Military Judges. Judge HATTRUP sat for oral
argument, but left the court without voting on this opinion.
Judge HEAD was substituted for Judge HATTRUP.
OPINION OF THE COURT
YOUNG, Chief Judge:
Officer and enlisted court members convicted the
appellant of the premeditated murder of her daughter, in
violation of Article 118, UCMJ, /0 U.S.C. § 918. he court
members sentenced the appellant to a dishonorable
29a
discharge, confinement for life, forfeiture of all pay and
allowances, reduction to E-1, and a reprimand. The
convening authority approved the adjudged sentence, except
ior the reprimand. The appellant assigns four errors: (1)
The appellant's oral and written admissions were obtained in
violation of Article 31, UCMJ, 1/0 U.S.C. § 831; (2) An
expert impermissibly opined that Caitlyn's death was "non-
accidental"; (3) The appellant deserved additional credit for
illegal pretrial punishment; and (4) This Court should order
new post-trial processing of the case. We heard oral
argument on the first two issues. We correct the military
judge's arithmetic in determining pretrial confinement credit.
Otherwise, we affirm.
I. The Facts
The appellant and her husband John married while both
were members of the Air Force. John separated from the
service so that duty assignments would not separate the
couple. At the time of the marriage, the appellant already
had a daughter, Dallas, from a previous relationship. The
couple had one child of their own, Caitlyn, who was 18
months old. The family moved into military quarters at the
Gunter Annex to Maxwell Air Force Base (AFB), Alabama,
but due to marital discord, the appellant later threw John out.
He moved in with a co-worker.
On 20 December 1998, John, the appellant, and the two
children went shopping for Christmas gifts and then went out
to dinner. When they returned home, John played with
Caitlyn while the appellant wrapped the Christmas gifts in
the bedroom. Dallas, who was 5 years old at the time, was
asleep on the sofa. John put Caitlyn on the sofa next to her
sister, turned the television on, and then returned to the
bedroom where he had sex with the appellant. When John
left the house at 2245, Caitlyn was sleeping peacefully on the
sofa.
The appellant and the children were scheduled to leave
the next day for a Christmas visit with her parents. At 0730
30a
on 21 December, the appellant called the childcare facility to
notify them that she was going on vacation and would not be
dropping the kids off. At approximately 0835, the appellant
telephoned emergency services to report that Caitlyn was not
breathing. When the paramedics arrived, Caitlyn's body was
cool to cold.
Despite the efforts of paramedics and physicians, they
could not revive Caitlyn. She was pronounced dead at 0944
at the hospital. Major Stamnas, one of Caitlyn's treating
physicians, advised the appellant and John that their baby
was dead, and asked if there was anything he could do for
them. The appellant did not cry at the news of her daughter's
death. She told Major Stamnas that she wanted orders "out
of here.” A hospital social worker talked to the Traums to
see if she could help them in their grief. She put her arm
around the appellant and told her she was "so sorry that this
has happened." The appellant looked at the social worker
and said, "I'm just glad I saved the toy receipts." The
appellant repeated this statement and then talked about
insurance and a burial place. The social worker invited the
Traums to spend a few moments with Caitlyn before the
body was sent to the morgue. John went, but the appellant
declined to go. "I've already seen her. I don't want to see
her." The social worker told them that she had seen Caitlyn
and that she was a beautiful girl. The appellant replied, "She
really was mean. She was mean to her sister and really
active."
While at the emergency room (ER), the appellant again
telephoned the child care center and told them that Caitlyn
was dead. She also notified her insurance company.
At trial, the prosecution introduced evidence that, while
attending leadership school, the appellant referred to John as
her ex-husband, even though they were still married.
Approximately one month before Caitlyn died, the appellant
told members of her leadership school class that she loved
3la
one of her kids less than the other "because it looked like her
ex-husband."
II. The Admissions
On 12 January 1999, the appellant telephoned agents of
the Air Force Office of Special Investigations (AFOSI) to
inquire about the status of the investigation into Caitlyn's
death. The agents asked if they could discuss it at their
office. She agreed to visit the AFOSI on 13 January.
The appellant arrived at the AFOSI office at
approximately 0830, where she met Special Agents Gage
and Engleman. She asked them about the status of the
investigation. They told her the results of the autopsy were
pending and they had interviewed a number of witnesses.
She claimed she was interested in getting the autopsy report
and death certificate so her unit could process a humanitarian
reassignment. The agents also discussed with the appellant
their relationship with the Alabama State Medical
Examiner's Office, the condition of her other daughter,
Dallas, and the appellant's interest in computers. The
agent's then asked her if she would be willing to take a
polygraph. Special Agent (SA) Engleman explained that the
polygraph could eliminate her as being involved in Caitlyn's
death and could speed up the processing of the death
certificate. The appellant said that she did not want to
discuss the details of the night her daughter died. SA
Engleman told her that the polygrapher, SA Kraus, would
only be interested in some key details and that she could
raise her concerns with him. SA Kraus entered the room and
was introduced to the appellant. After a couple of minutes of
small talk, the appellant agreed to talk to SA Kraus.
SA Kraus and the appellant moved into another room.
SA Kraus advised the appellant that she was suspected of
causing the death of Caitlyn and of her rights to counsel and
to remain silent. The appellant waived her rights and agreed
to be interviewed and polygraphed. She did not indicate any
hesitancy in talking to SA Kraus, or in taking the polygraph,
32a
then or any other time during the interview. She never
invoked her right to remain silent or her right to have an
attorney.
The appellant ultimately admitted to SA Kraus that she
killed Caitlyn. At trial, the military judge denied the defense
motion to suppress the confession, and evidence of the
appellant's admission was presented to the court members.
The appellant alleges that her statement to SAs Gage and
Engleman, that she did not want to discuss the details of 20-
21 December, "constituted a clear and unequivocal exercise
of her right to remain silent." She asserts that SA Engleman
lied "by advising her that she would not ‘necessarily’ need to
discuss the details of that evening." The appellant avers that
this lie was an unlawful inducement and the military judge
erred by failing to suppress the resulting admissions.
Generally, an involuntary statement "may not be received
in evidence against an accused who made the statement if the
accused makes a timely motion to suppress." Mil. R. Evid.
304(a). A statement is involuntary if, inter alia, it was
obtained in violation of the accused's rights under Article 31,
UCMJ, 10 U.S.C. § 831, or is the product of unlawful
inducement. Mil. R. Evid. 304(c)(3).
A person . . . who is required to yive warnings
under Article 31 may not interrogate or request
any statement from . . . a person suspected of an
offense without first: (1) informing [her] of the
nature of the accusation; (2) advising [her of]
the right to remain silent; and (3) advising [her]
that any statement made may be used as
evidence against [her] in a trial by court-martial.
Mil. R. Evid. 305(c). An interrogation "includes any formal
or informal questioning in which an incriminating response
either is sought or is a reasonable consequence of such
questioning.” Mil. R. Evid. 305(b)(2). See Rhode Island v.
33a
Innis, 446 U.S. 291, 300-01, 64 L. Ed. 2d 297, 100 S. Ct.
1682 (1980).
If an accused alleges her confession was involuntary
because she was denied her right to counsel, we review the
military judge's decision to admit the confession for an abuse
of discretion. United States v. McLaren, 38 M.J. 112, 116
(C.M.A. 1993) (applying an abuse of discretion standard).
If, however, an accused asserts that her confession was
involuntary because of coercive police activity, we review
the issue de novo. United States v. Bubonics, 45 M.J. 93, 94
(1996) (citing Arizona v. Fulminante, 499 U.S. 279, 287, 113
L. Ed. 2d 302, 111 S. Ct. 1246 (1991)).
When SA Gage and SA Engleman met with the
appellant, they did not interrogate her within the meaning of
Mil. R. Evid. 305(b)(2). The agents met with the appellant at
her request--she wanted an update on the status of the case
and assistance in moving the autopsy to completion so that a
death certificate could be issued. No incriminating response
from the appellant was sought, obtained, or was reasonably a
consequence of the discussions. Under the circumstances,
asking the appellant if she would be willing to take a
polygraph was not an interrogation and did not require
Article 31 warnings. Cf McNeil v. Wisconsin, 501 U.S. 171,
182, 115 L. Ed. 2d 158, 111 S. Ct. 2204 n.3 (1991) (noting
Supreme Court has "never held that a person can invoke his
Miranda rights anticipatorily, in a context other than
‘custodial interrogation’). As the appellant was a suspect
and SA Kraus was seeking an incriminating response, he was
required to warn her of her rights prior to administering the
polygraph. That is what he did. Furthermore, the appellant's
statement that she did not want to discuss all the details of
what happened on 20-21 December was not an "unequivocal
invocation of her right to remain silent." She agreed to talk
to the polygrapher; she just wanted to be able to limit what
she would talk about. SA Gage and SA Engleman did not
unlawfully induce the appellant to make any statements.
34a
They told her the truth; she could limit the discussion, if she
so wished. She merely had to explain to the polygrapher the
conditions on her willingness to be interviewed. The
military judge did not err in refusing to suppress the
appellant's admissions.
III. The Expert's Opinion
Prior to trial, the appellant moved the court to exclude
the testimony of Dr. Sharon Cooper, a forensic pediatrician.
After an extensive and hotly litigated hearing, the military
judge denied the motion, but severely limited the scope of
Dr. Cooper's testimony. The appellant asserts the military
judge abused his discretion by permitting Dr. Cooper to
testify that Caitlyn's death was the result of non-accidental
asphyxiation because "the conclusion was based, in part, on
the expert's credibility assessment of appellant, and the use
of impermissible profile evidence, rather than objective
medical findings."
In the evidentiary hearing, Dr. Cooper testified that there
are three factors to consider in diagnosing fatal child abuse:
(1) the history of the complaint and any medical treatment
provided--including whether the childcare providers change
their stories and whether there was any delay in seeking
medical treatment; (2) whether the behavior of the caregiver
shows the appropriate concern for the child--including
appropriate grieving in cases of death; and (3) the physical
examination on presentation at the hospital and the autopsy.
She opined that Caitlyn died as a result of asphyxiation by
suffocation. Her opinion was based on the following facts:
(a) The death could not be explained by other medical
causes; (b) The history the appellant provided to EMT
personnel was inconsistent with what she provided to the
hospital staff; and (c) The trauma to Caitlyn's upper lip,
discovered during the autopsy, was similar to that found in
other child suffocation cases she had examined. Although
she did not specify it as a factor on which she based her
conclusion that Caitlyn's death was non-accidental, Dr.
35a
Cooper noted that the appellant's grieving response was
inappropriate. Dr. Cooper specifically rejected the efforts of
the defense counsel to suggest that a diagnosis of child abuse
should be made on any of the factors individually.
Dr. Cooper limited her testimony to the scope permitted
by the military judge. Dr. Cooper never testified before the
members that she based her conclusion that Caitlyn's death
was non-accidental on the appellant's credibility or on profile
evidence. Thus, it appears that the appellant is now trying to
attack Dr. Cooper's testimony as being based on
impermissible factors.
A witness with scientific, technical, or other specialized
knowledge is allowed to testify if her testimony will "assist
the trier of fact to understand the evidence or to determine a
fact in issue." Mil. R. Evid. 702. In providing an opinion,
an expert may rely on information made known to her. If the
facts or data made known to her are of the "type reasonably
relied upon by experts in the particular field in forming
opinions . . ., the facts or data need not be admissible in
evidence." Mil. R. Evid. 703. Otherwise admissible expert
testimony is "not objectionable because it embraces an
ultimate issue to be decided by the trier of fact." Mil. R.
Evid. 704.
The proponent of expert testimony must establish, inter
alia, the qualifications of the expert, the basis of the expert
testimony, the legal relevance of the evidence, and the
reliability of the evidence. United States v. Houser, 36 M.J.
392, 397 (C.M.A. 1993). Even then, the evidence is not
admissible unless the military judge determines that the
probative value of this evidence is not substantially
outweighed by the danger of unfair prejudice. Jd. at 399-400
(citing Mil. R. Evid. 403).
We will not overturn the military judge's decision on the
admission of expert testimony unless we are convinced he
abused his discretion. United States v. Raya, 45 M.J. 251,
252 (1996). Because of our statutory authority to "determine
36a
controverted questions of fact" under Article 66(c), UCMJ,
10 U.S.C. § 866(c), we are not required to defer to the
military judge's findings of fact. However, we normally do
so unless they are clearly erroneous. See United States v.
Vaughters, 42 M.J. 564, 566 (A.F. Ct. Crim. App. 1995).
We review his conclusions of law de novo. United States v.
Ayala, 43 M.J. 296, 298 (1995).
Generally, it is error to admit evidence that tends to show
that the typical perpetrator of a criminal offense has certain
characteristics and that this particular accused fits a "profile"
that is consistent with that of the typical perpetrator. United
States v. Banks, 36 M.J. 150, 161 (C.M.A. 1992) (citing
United States v. Garcia, 25 M.J. 159 (C.M.A. 1987)
(summary disposition); United States v. August, 21 M.J. 363,
364 (C.M.A. 1986)). An expert witness is not permitted to
act as a human lie detector for the court-martial. United
States v. Birdsall, 47 M.J. 404, 410 (1998). But, Dr. Cooper
neither acted as a human lie detector nor tried to establish
that the appellant fit the typical profile of a child abuser.
In her testimony before the members, Dr. Cooper started
by explaining the different types of child maltreatment--
neglect, physical abuse, sexual abuse, and emotional abuse.
She noted that studies showed that in 80 percent of fatal
child abuse incidents there was no previous history of such
abuse and that children are statistically more likely to be
killed by their biological parents than by a stranger. Dr.
Cooper then testified that, in performing a fatality review in
an infant death, there were basically three considerations in
determining the cause of death: (1) the autopsy; (2) social
service information, such as information about the family
and school history, if any; and (3) the crime scene report
done by law enforcement, if any. On the other hand, if a
child is presented to an ER dead, physicians would look at
matters a little differently: (1) the history provided by the
child care provider; (2) the behavior of the persons who
brought the child to the ER; and (3) the physical examination
37a
and subsequent autopsy of the child. Dr. Cooper never
explained these factors in detail or correlated the facts of the
appellant's case to those factors, nor did she provide any
opinion as to whether the appellant was the likely source of
injuries that caused Caitlyn's death.
Dr. Cooper explained that the most common causes of
child deaths were SIDS (sudden infant death syndrome),
child abuse, and accident. She stated that SIDS normally
occurs in children under the age of 6 months. She ruled out
several different conditions "known to shorten the life-span,"
such as seizure disorders and infections, as causing Caitlyn's
death. She next explained the four different types of
asphyxiation--suffocation, strangulation, overlying, and
chemical. After going over the evidence of the case, she
eliminated each type with the exception of suffocation. She
then turned her attention to whether the suffocation was
accidental or non-accidental. Dr. Cooper briefly explained
the process of suffocation, noting the length of time
necessary to die of suffocation and the fact that a person,
even a child, would struggle mightily to avoid suffocation.
Based on her review of the evidence, Dr. Cooper opined that
Caitlyn's death was as a result of non-accidental suffocation.
The appellant contends that Dr. Cooper's conclusion was
based on impermissible evidence. She asserts that
"inconsistent histories and improper grieving response--are
nothing more than profile evidence." We disagree.
Evidence that an accused fits an incriminating profile is
inadmissible under Mil. R. Evid. 404(a),
not because it is irrelevant, but because it is so
weighty that it might prevent the finders of fact
from considering the other more important
historical evidence in the case. Bad general
character evidence has the tendency of
encouraging finders of fact to convict because of
38a
the accused's extrinsic conduct as opposed to his
charged conduct.
Stephen A. Saltzburg [*17] et al., Military Rules of Evidence
Manual 524 (4th ed. 1997) (citing Michelson v. United
States, 335 U.S. 469, 93 L. Ed. 168, 69 S. Ct. 213 (1948)).
The rule should not bar profile evidence that is not itself
likely to arouse sympathy or hostility. 1 John W. Strong ei
al., McCormick on Evidence § 206 (Sth ed. 1999). Dr.
Cooper's testimony, that there was no previous history of
abuse in 80 percent of the fatal child abuse incidents and that
children are statistically more likely to be killed by their
biological parents than by strangers, are such facts. This
testimony was relevant to explain to court members
counterintuitive facts--parents actually kill their own
children, and there isn't necessarily a history of abuse prior to
the killing. Neither of these facts was likely to arouse
hostility toward the appellant.
We also reject the appellant's argument that Dr. Cooper's
testimony, which was based on "inconsistent histories and
improper grieving response," was improper because it was
"nothing more than profile evidence." Dr. Cooper did not
rely on the appellant's character to determine the cause of
death. Instead, she relied on the medical evidence and
appellant's conduct after the death. This conduct--providing
inconsistent histories of the period surrounding the death and
a grieving response that was outside that normally seen in
parents whose child dies--was relevant evidence, both to Dr.
Cooper's evaluation of the cause of death and the court
members’ determination of the charge against the appellant.
The evidence had the tendency to establish that the appellant
killed her infant daughter.
The military judge did not err in permitting Dr. Cooper to
testify. He appropriately limited her testimony before the
members. But, that did not mean she could not rely on the
information not admitted into evidence as a basis for her
39a
opinions. See Mil. R. Evid. 703. Dr. Cooper provided
sufficient foundation to establish that the consistency of the
history and the behavior of the childcare provider are factors
forensic pediatricians consider in reaching a conclusion on
the cause of a child's death.
We reject the defense contention that Dr. Cooper acted as
a human lie detector. She was not concerned with which of
the histories of the incident recited by the appellant was
accurate. Her conclusion that foul play may have been
involved was based on the fact that there were
inconsistencies.
IV. Pretrial Punishment Credit
At trial, the appellant moved the court to order her
release from pretrial confinement and to award additional
confinement credit because of illegal pretrial punishment.
The military judge refused to release the appellant from
pretrial confinement, but awarded her additional confinement
credit because of her maximum custody status and the
conditions of her pretrial confinement. The appellant claims
the military judge failed to award her sufficient credit for the
illegal punishment. As the appellant was sentenced to
confinement for life, any credit for illegal pretrial
punishment will only affect the date she becomes eligible for
parole. Of course, we could still consider any illegal pretrial
punishment in determining whether the appellant's sentence
is appropriate.
A. Facts
The appellant was ordered into pretrial confinement on
13 January 1999, immediately after she confessed to
suffocating Caitlyn. She was placed in maximum custody at
the Maxwell AFB confinement facility. On 15 January, the
pretrial confinement reviewing officer determined continued
pretrial confinement was appropriate. On 19 January, the
appellant's defense counsel complained to the staff judge
advocates (SJA) of both the special and general court-martial
40a
convening authorities about the appellant's maximum-
security status. The appellant's custody status was not
changed.
On 21 January, the defense counsel asked the convening
authority to order a sanity board to evaluate the appellant's
mental health. The sanity board was conducted at Lackland
AFB, Texas, from 8-13 February. The appellant was held in
maximum custody in the Lackland AFB confinement facility
during this period.
On 12 March, the defense asked that the appellant's
custody status be downgraded from maximum to medium-in.
By letter dated 15 March, the Security Forces commander,
Lieutenant Colonel (Lt Col) Simmons, denied the request.
Lt Col Simmons admitted that the appellant did not,
"technically," meet the criteria for maximum custody status —
outlined in Air Force Instruction (AFI) 31-205, The Air
Force Corrections System P 27.1 (16 April 1997). He
asserted that he needed to consider many factors in
determining an inmate's custody status, including
"indications of emotional instability or disturbance,
irresponsibility, prior escapes, AWOLs, maturity, degree and
severity of offense, and charges still pending. On the other
hand, you should also consider an inmate's history of
emotional stability and demonstrated sense of productive
work." App. Ex. XXIX, Atch 5 (quoting Air Force Pamphlet
(AF Pam) 31-221, Air Force Corrections Program § B2.3.1
(31 Mar 1995) (emphasis in Lt Col Simmons ' letter)). Lt Col
Simmons did not explain how these factors applied to the
appellant, other than that, "Regardless of how it was done,
the alleged offense was not an accident, and therefore is an
act of violence." /d. (emphasis in original).
On 17 March, at the request of the Chief, Military
Justice, at the base legal office, the defense submitted a letter
from the Chief, Life Skills Clinic, stating that the appellant
was not then a serious danger to herself. On 26 March, the
defense counsel renewed his request, to the base staff judge
4la
advocate (SJA) and Lt Col Simmons, that the appellant's
custody status be downgraded. He attaehed the 17 March
letter from the Chief, Life Skills Clinic. On 22 April, the
defense counsel wrote to the base SJA, Lt Col Simmons, and
the Air University (GCM) SJA complaining that he had not
received a response to his earlier requests that the appellant's
custody status be downgraded. It appears from the record
that these requests also went unanswered.
At a pretrial hearing on 4-5 June 1999, conducted
pursuant to Article 39(a), UCMJ, 10 U.S.C. § 839(a), Lt Col
Simmons testified that he considered three issues in
determining the custody classification of a prisoner: (1)
whether—the individual is a flight risk; (2) whether the
individual is a risk to herself or others; and (3) whether the
individual is at risk of injury from others. He decided
maximum security status was appropriate for this appellant
for the following reasons: (1) The appellant and her husband
had a history of domestic disputes, he remained in the area
and, since the child was dead, he could be a possible source
of danger for the appellant; and (7) Based on her situation-
and the nature of the pending charg: 2, the appellant could be
a risk to herself as well as a flight risk.
The military judge determined that maximum custody
status was not appropriate after 26 March 1999:
I note that, by that time, she had been in pretrial
confinement for over 2 months; she had traveled
to and from Lackland without a problem; she
had been exercising outside her cell on a daily
basis since the end of January; she had attended
the Article 32 hearing in this case; she had met
with her counsel as needed, made phone calls,
received visitors. In short, by that time she had
demonstrated that maximum-custody was no
longer needed.
42a
Although he ruled that the government did not intend to
punish the appellant by the conditions of her confinement,
the judge found four specific actions of which the appellant
complained amounted to a violation of Article 13, UCMJ, 10
U.S.C. § 813, for which she was entitled to credit against her
confinement:
(1) One days’ credit for each of three weekly phone calls
for which the government could provide no legitimate reason
the appellant was not permitted to make--a total of 3 days’
credit.
(2) One days’ credit for each of three days the appellant
spent wearing the same colored jumpsuit as a post-trial
confinee--a total of 3 days’ credit.
(3) Eight days’ credit for the failure of the government to
permit the appellant to get her hair cut to conform to Air
Force regulations between | April and 2 June 1999.
(4) Two and one-half days' credit for each day the
appellant was in maximum custody, from 26 March through
4 June 1999--a total of 177.5 days' credit (the military judge
incorrectly estimated the total credit for this particular
violation of Article 13, UCMJ, as being 190 days).
B. The Law
Article 13, UCMJ, 10 U.S.C. § 813 prohibits punishment
before trial.
No person, while being held for trial, may be
subjected to punishment or penalty other than
arrest or confinement upon the charges pending
against him, nor shall the arrest or confinement
imposed upon him be any more rigorous than
the circumstances required to insure his
presence, but he may be subjected to minor
punishment during that period for infractions of
discipline.
43a
"By its terms and clear implications, Article 13 prohibits
two types of activities involving the treatment of an accused
prior to trial." United States v. McCarthy, 47 M.J. 162, 165
(1997). First, it prohibits the imposition of punishment or
penalty prior to trial. Second, it proscribes infliction of
unduly rigorous circumstances during pretrial detention. /d.
See United States v. Fricke, 53 M.J. 149, 154 (2000), cert.
[*25] denied, 531 U.S. 993, 148 L. Ed. 2d 457, 121 S. Ct.
484 (2000); United States v. Allen, 33 M.J. 209, 214 (C.M.A.
1991).
"Whether particular conditions amount to punishment
before trial is a matter of intent, which is determined by
examining the purposes served by the restriction or
condition, and whether such purposes are ‘reasonably related
to a legitimate governmental objective." United States v.
Palmiter, 20 M.J. 90, 95 (C.M.A. 1985) (quoting Bell v.
Wolfish, 441 U.S. 520, 539, 60 L. Ed. 2d 447, 99 S. Ct. 1861
(1979)). "In the absence of a showing of intent to punish, a
court must look to see if a particular restriction or condition,
which may on its face appear to be punishment, is instead
but an incident of a legitimate nonpunitive governmental
objective." Jd. (quoting Wolfish, 441 U.S. at 539 n.20)
(alteration in original). -
If a particular condition or restriction of pretrial
detention is reasonably related to a legitimate
governmental objective, it does not, without
more, amount to "punishment." Conversely, if a
restriction or condition is not reasonably related
to a legitimate goal--if it is arbitrary or
purposeless--a court permissibly may infer that
the purpose of the governmental action is
punishment that may not constitutionally be
inflicted upon detainees qua detainees.
Wolfish, 441 U.S. at 539 (footnote omitted).
44a
At trial, an accused bears the burden of proving, by a
preponderance of the evidence, that the conditions of her
confinement constituted illegal pretrial punishment. See Rule
for Courts-Martial (R.C.M.) 905(c)({1) and (2); United States
v. Mosby, 56 M.J. 309, 310 (2002). On appeal, claims of
illegal punishment qualify for independent review.
McCarthy, 47 M.J. at 165. But, the appellant still bears the
burden of establishing by a preponderance of the evidence
that she was entitled to additional confinement credit.
Mosby, 56 M.J. at 310. On questions of "basic, primary, or
historical facts," such as the conditions of the confinement
and whether there was intent to punish, appellate courts
normally defer to the trial judge. McCarthy, 47 M.J. at 165.
We will not overturn his findings unless they are clearly
erroneous. Mosby, 56 M.J. at 310 (citing United States v.
Smith, 53 M.J. 168, 170 (2000)). But, whether a person was
subjected to illegal punishment is a matter we review de
novo. /d.
C. Discussion
The appellant's main complaint concerned consequences
of being in maximum custody status. She was not singled
out for special treatment. She was treated in accordance with
the rules applicable to any maximum custody grade inmate.
The appellant's other complaints, concerning the missed
telephone calls, having to wear the same uniform as a
sentenced prisoner for 3 days, and not being able to get her
hair cut, were de minimis and did not warrant pretrial
punishment credit. See United States v. Corteguera, 56 M.J.
330 at 334; Fricke, 53 M.J. at 155 (citing Wolfish, 441 U.S.
at 539 n.21).
We accept the military judge's findings concerning the
conditions of the appellant's confinement and the lack of
intent by government officials to punish her prior to trial.
They are not clearly erroneous. See Mosby, 56 M.J. at 310.
There is no evidence that the conditions imposed on
confinees in maximum custody status were intended as
45a
punishment or were not "reasonably related to a legitimate
governmental objective.". United States v. James, 28 M.J.
214, 216 (C.M.A. 1989) (quoting Wolfish, 441 U.S. at 539).
See McCarthy, 47 M.J. at 165. Therefore, our review is
limited to whether the assignment of the appellant to
maximum custody status is reasonably related to. a
"legitimate governmental objective." If it is not, we may
infer that her assignment to maximum custody status was
intended as punishment. Wolfish, 441 U.S. at 539.
The appellant concedes that maximum custody status
was appropriate from the inception of her pretrial
confinement (13 January) until 29 January. But, on 21
January, the defense requested a sanity board. It is difficult
to imagine how a decision to retain in maximum custody
status an accused charged with murder, whose sanity and
competence has been called into question by her own
attorneys, can be labeled "arbitrary or purposeless." Jd.
Furthermore, the fact that the appellant later was found to be
competent and sane does not revise the facts known to the
confinement authorities at the time of classification. See
McCarthy, 47 M.J. at 168.
The appellant failed to establish that, by assigning her to
maximum custody status, the confining authorities intended
to punish her or that the decision was so arbitrary or
purposeless as to permit an inference that her custody
classification was meant as punishment.
D. The Credit
Although not raised by the appellant, we note that the |
military judge made a mathematical error in determining the
appellant's confinement credit. He determined she was
entitled to 307 days' credit towards any sentence to
confinement. The SJA recommended the convening
authority give the appellant "administrative credit for having
served 307 days as directed by the military judge." In his
action, the convening authority "credited" the appellant with
"307 days for pretrial confinement against the sentence to
Speen
46a
confinement." But see Air Force Instruction 51-201,
Administration of Military Justice P 9.8.3 (2 Nov 1999)
(requiring convening authority to note in his action only
illegal pretrial confinement).
Based on the military judge's rulings, we find the
following is the appropriate pretrial confinement credit:
(1) Days for the miscellaneous minor infractions 14
(2) Credit for days illegally in maximum custody 108
(72 days x 1 1/2)
(3) Credit for days in pretrial confinement - 246
(See United States v. Allen, 17 M.J. 126
(C.M.A. 1984)
Total 368
As the Allen credit is applied automatically by the
confinement facility, the convening authority's action need
only account for the 122 days of illegal pretrial punishment.
AFI 51-201 P 9.8.3. |
V. Post-Trial Processing
The appellant asks this Court to order new post-trial
processing for the following reasons: (1) The staff judge
advocate's recommendation (SJAR) incorrectly advised the
convening authority that the maximum punishment was life
without parole; (2) There was no addendum to the SJAR; (3)
There is no evidence that the convening authority either
received or considered the appellant's clemency submissions;
and (4) The record of trial is missing four pages from the
clemency submissions.
A. Confinement for Life without Parole
A court-martial may adjudge a sentence of confinement
for life without eligibility for parole in any case in which
confinement for life may be adjudged. Article 56a, UCMJ,
I0 U.S.C. § 856a. However, a court-martial may not
47a
adjudge a sentence that exceeds "such limits as the President
may prescribe for the offense." Article 56, UCMJ, 10 U.S.C.
§ 856. The appellant contends that life without the eligibility
for parole is not an authorized punishment until the President
specifically adopts it.
A military member convicted of premeditated murder
"shail suffer death or imprisonment for life as a court-martial
may direct." Article 118(4), UCMJ, 10 U.S.C. § 918(4).
Life without eligibility for parole is a lesser sentence than
death. Although the case was referred to a court that was not
authorized to adjudge death, neither the President nor the
convening authority limited the sentence to life
imprisonment with the possibility of parole. Therefore, the
SJA was correct in advising the convening authority that life
without parole was an authorized punishment for
premeditated murder. Regardless, the appellant failed to
demonstrate prejudice. The appellant did not receive a
sentence of life without parole and she failed to establish that
the convening authority would have acted differently if life
without parole was not an authorized punishment in her case.
Article 59(a), UCMJ, 10 U.S.C. § 859%a).
B. The Remaining Issues
The appellant was correct in asserting that the record of
trial as submitted to this Court did not contain an addendum
to the SJAR, that there was no evidence the convening
authority either received or considered the appellant's
clemency submissions, and four pages were missing from the
clemency submissions. After the appellant submitted her
brief to this Court, the appellee established that an addendum
had been prepared and provided to the convening authority,
and the convening authority had received and considered the
appellant's clemency submissions before taking action on the
case. The appellee also provided this Court the missing
pages of the clemency submission.
48a
VI. Conclusion
The approved findings and sentence are correct in law
and fact, and no error prejudicial to the appellant's
substantial rights occurred. Article 66(c), UCMJ; United
States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987). The
appellant will be credited with a total of 368 days’
confinement (122 days of which are for illegal pretrial
punishment). The approved findings and sentence are
AFFIRMED.
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