Petition for Writ of Certiorari — Henderson v. United States

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89 107 1 OCT 27 1999

No. OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1999

MARTEZ L. HENDERSON, Petitioner,

UNITED STATES OF AMERICA, Respondent

Petition for a Writ of Certiorari to the

United States Court of Appeals for the Armed Forces

JONATHAN F. POTTER

Major, Judge Advocate General’s

Corps (J A)

United States Army

Defense Appellate Division

901 N. Stuart Street

Arlington, VA 22203

(703) 588-5286

Counsel of record

BLAIR T. O°CONNOR SEAN S. PARK

Captain, JA Captain, JA

United States Army United States Army

SCOTT R. MORRIS ADELE H.ODEGARD

Major, JA Colonel, JA

United States Army United States Army

QUESTION PRESENTED

WHETHER PETITIONER'S FIFTH AMENDMENT

PRIVILEGE AGAINST SELF INCRIMINATION AT A

CUSTODIAL INTERROGATION WAS VIOLATED

WHEN MILITARY CRIMINAL INVESTIGATORS

REINITIATED INTERROGATION AFTER

PETITIONER UNEQUIVOCALLY REQUESTED A

HALT IN QUESTIONING.

TABLE OF CONTENTS

Page

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CONSTITUTIONAL PROVISIONS

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EPR OME PRET COE PAGE es ken bch ckceseetcascans 4

REASONS FOR GRANTING THE WRIT .......... 6

WHEN A SUSPECT REQUESTS TO

CEASE QUESTIONING THE GOVERNMENT CANNOT

REINITIATE QUESTIONING

Page

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TABLE OF AUTHORITIES

Cases

Page

Edwards v. Arizona, 451 U.S. 477 (1981)....... , 8, 10

6,8

Michigan v. Mosely, 423 U.S. 96 (1975). ...... 6, 7, 8, 10

Miranda v. Arizona, 344 U.S. 436 (1996) ....... 6, 7

United States v. Barone, 968 F.2d 1378 (1st Cir. 1992)..... 10

Constitutional, Statutory and Regulatory Provisions

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Uniform Code of Military Justice,

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Uniform Code of Military Justice,

article 67(a)(3), 10 U.S.C. §867(a)(3) ................. l

Uniform Code of Military Justice,

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1999

MARTEZ L. HENDERSON, PRIVATE FIRST CLASS,

United States Army, Petitioner,

Vv.

THE UNITED STATES OF AMERICA, Respondent

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Armed Forces

PETITION FOR WRIT OF CERTIORARI

The petitioner, Martez L. Henderson, respectfully prays

that a writ of certiorari issue to review the decision of the

United States Court of Appeals for the Armed Forces in this

case.

OPINIONS BELOW

The opinion of the United States Court of Appeals is

reported at 52 M.J. 14 (1999) (Appendix A). The decision of

the United States Army Court of Criminal Appeals on

Reconsideration is reported at 48 M.J. 616. (Appendix B).

The first decision of the United States Army Court of

Criminal Appeals is unpublished. (Appendix C).

JURISDICTION

The judgment for the Court of Appeals for the Armed

Forces was entered on September 27, 1999 (Appendix D).

The jurisdiction of this court is invoked pursuant to 28 U.S.C.

§ 1259 (3); the United States Court of Appeals for the Armed

Forces having reviewed this case pursuant to Uniform Code

of Military Justice Article 67(a)(3), 10 U.S.C. § 867(a)(3).

CONSTITUTIONAL PROVISIONS AND STATUTES

INVOLVED

This case involves:

1. The Fifth Amendment to the United States

Constitution which provides:

No person shall be held to answer for a capital, or

otherwise infamous, crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in the

land or naval forces, or in the Militia, when in actual

service, in time of War, or public danger; nor shall any

person be subject, for the same offense, to be twice put

in jeopardy of life or limb; nor shall be compelled in any

criminal case to be a witness against himself nor be

deprived of life, liberty, or property, without due process

of law; nor shall private property be taken for public

use, without just compensation.

2. The Uniform Code of Military Justice Article 31, 10

U.S.C § 831, which provides in pertinent part:

(a) No person subject to this chapter may compel any

person to incriminate himself or to answer any

question the answer to which may tend to

incriminate him.

(b) No person subject to this chapter may interrogate,

or request any statement from an accused or a

person suspected of an offense without first

informing him of the nature of the accusation and

advising him that he does not have to make any

statement regarding the offense of which he is

accused or suspected and that any statement made

by him may be used as evidence against him in a

court-martial.

STATEMENT OF THE CASE

Procedural History:

On May 31, July 14, and July 18-21, 1995, Private First

Class Martez L. Henderson was tried by a general court-

martial composed of officer and enlisted members at

Mannheim and Bad Kreuznach, Germany. Contrary to his

pleas, Private Henderson was found guilty of premeditated

murder and assault, in violation of the Uniform Code of

Military Justice, articles 118 and 128, 10 U.S.C. §§ 918 and

928 (1988). Private Henderson was sentenced to confinement

for life, reduction to Private El, forfeiture of $300.00 pay per

month for fourteen months, and a dishonorable discharge.

The convening authority disapproved the finding of guilty to

premeditated murder, found Private Henderson guilty of

unpremeditated murder and reduced Private Henderson’s

sentence to confinement to sixty years. The convening

authority otherwise approved the findings and sentence.

On November 18, 1997, the Army Court of Criminal

Appeals set aside the finding of guilty to unpremeditated

murder, affirmed a finding of voluntary manslaughter, set

aside the sentence and ordered a sentence rehearing.

(Appendix C). After the government requested

reconsideration, the Army court withdrew its earlier

decision, and on April 30, 1998 affirmed the conviction for

unpremeditated murder. (Appendix B).

On February 3, 1999, the United States Court of Appeals

for the Armed Forces granted review on four issues,

including:

WHETHER THE MILITARY JUDGE ERRED

TO THE SUBSTANTIAL PREJUDICE OF

APPELLANT’S RIGHTS BY DENYING

APPELLANT’S MOTION TO SUPPRESS AND

RECEIVING APPELLANT'S INVOLUNTARY

STATEMENTS INTO EVIDENCE AND SUCH

ERROR IS NOT HARMLESS BEYOND A

REASONABLE DOUBT.

The Court of Appeals for the Armed Forces rendered its

opinion on September 27, 1999 (Appendix A), affirming the

findings and sentence of the United States Army Court of

Criminal Appeals.

Statement of Facts:

On the night of February 23, 1995, Mr. Thomas Kreiz, a

German citizen, and some friends and family members

approached a taxi stand in Bad Kreuznach, Germany. Kreiz

and his companions had been drinking. (R. at 294, 316-17).!

Kreiz and his companions decided that they did not want to

wait for a taxi, so they “cut” in front of the others waiting in

line. Petitioner and two friends were among those waiting in

line. (R. at 392). Kreiz seized the next taxi, angering

petitioner and his two companions. One of petitioner's

companions, Michael Krakowiki, verbally protested and

grabbed the cab door, preventing Kreiz from closing it. (R. at

276-77, 441-42). Krakowiki kicked Kreiz, and Kreiz exited

the taxi and attempted to hit Krakowiki. (R. at 276-77).

Krakowiki ran, so Kreiz chased Krakowiki into a nearby

alley, and petitioner and his other companion and two of

Kreiz’s companions followed behind. (R. at 296, 442).2

By the time Kreiz’s two companions caught up to the

others, Kreiz was lying on the ground with petitioner

standing near him, (R. at 297-807). Kreiz was injured and

kneeling on the ground. (R. at 297-98). One of Kreitz’s

companions, Massaro, assisted Kreitz to his feet and led him

out of the alley. Petitioner and his friends followed. While

Massaro was assisting Kreitz out of the alley, Massaro felt a

sharp pain in his back. Massaro turned around and saw

'Mr. Kreiz’ autopsy indicated that he was extremely intoxicated and also

smoked hashish that night. A piece of hashish the size of a pigeon egg

was found in Mr. Kreiz’s pocket. Mr. Kreiz also had a criminal record,

having the German equivalent of a conviction for assault and two convic-

tions for violating Germany’s narcotics laws. Prosecution Exhibit 34.

“Petitioner did not take part in the affray at the taxi stand. (R. at 270-78,

292-300, 341-365).

petitioner standing three to six feet away. (R. at 297, 300-02,

345-47). However, Massaro did not see a knife. (R. at 302).

Kreiz was stabbed eight times, one of which was fatal. (R. at

501-02). Four other wounds were potentially fatal. (R. at 502-06).

Petitioner and his companions fled the scene. Petitioner

was finally apprehended by a German police officer and

escorted to the German police building. Petitioner was

interrogated at 12:30 a.m. on February 24th by German

authorities. United States Army Criminal Investigation

Command (CID) Special Agent (SA) Ernesto Panaligan, was

present during the interrogation. After informing petitioner

of his rights pursuant to German law and informing him,

pursuant to the Article 31, Uniform Code of Military Justice,

of his right to silence and his right to counsel, and receiving a

waiver of those rights, the German police and CID SA

Panaligan interrogated petitioner for one and one-half hours.

During this interrogation petitioner denied any involvement

with Kreiz’s death.

At 2:00 a.m., petitioner “requested that the interview be

terminated because he was tired and he wanted to continue

the following morning.” (R. at 40). SA Panaligan, the CID

agent present at the interrogation, asked the German police

if he could talk to petitioner alone. The Germans agreed.”

SA Panaligan reinitiated the interrogation of petitioner. He

did not remind petitioner of his rights, but told petitioner

that “I am a representative of the US Government” and “if

he has nothing to do with this, there’s nothing to worry

* SA Panaligan claimed he reinitiated the interrogation of petitioner:

{bJecause I was thinking that it could be a mistaken identity because

the initial briefing I got from Investigator Hoffinan - - there were

three black males involved and now we have only one black male in

custody, and he kept saying about Mackland. I raised that issue with

Investigator Ebert - that Mackland could be the key to the whole situ-

ation - and I was thinking that PFC Henderson might not be involved

because, if there were three males involved and there was only one in

custody, where are the other two.

(R. at 43.)

about, just tell the truth” (R. at 40), and that SA Panaligan

was “there to help him.” (R. at 41). Petitioner asked SA

Panaligan what he would get if convicted and what was the

possible punishment. SA Panaligan told petitioner that the

punishment was up to the court to decide. (R. at 41).

Petitioner then told SA Panaligan, “well, what I told you

before during the interview, is not really what happened,”

and that he wanted to tell the truth. (R. at 42).

SA Panaligan left the room to retrieve Agent John Kampa,

SA Panaligan’s supervisor. Agent Kampa followed SA

Panaligan into the interrogation room. Agent Kampa asked

petitioner, “I believe you have something to say.” (R. at 45).

Petitioner responded that what happened was not supposed

to happen. Agent Kampa again asked if petitioner had

something to say. Petitioner responded, “I want a lawyer.”

Agent Kampa paused, and petitioner told Agent Kampa he

wanted to talk, but he wanted a lawyer. (R. at 46). Agent

Kampa told petitioner, “we can’t talk to you if you want to

talk to a lawyer first.” (R. at 83). Petitioner then asked if he

could have a lawyer and make a statement. Agent Kampa

replied that he could not have both. (R. at 46). Petitioner,

rebuffed in his request, said, “well I want to talk now and I

want a lawyer tomorrow morning. “ (R. at id). Petitioner

then admitted to stabbing Kreiz in self defense.

REASONS FOR GRANTING THE WRIT

The Court of Appeals for the Armed Forces (CAAF)

misapplied this Court’s precedents in Miranda v. Arizona,

Michigan v. Mosely and Edwards v. Arizona, denying

military service members of their constitutional right to

remain silent in custodial interrogations.

Petitioner’s criminal conduct was established solely by the

statement from appellant, obtained only through violating

petitioner’s Fifth Amendment privilege. The government

violated petitioner’s privilege by continuing to question

petitioner when petitioner asked to halt questioning; by

failing to readvise petitioner of his rights; and by continuing

to question petitioner after he had invoked his right to

silence.

WHEN A SUSPECT REQUESTS TO CEASE

INTERROGATION THE GOVERNMENT CANNOT

IMMEDIATELY REINITIATE INTERROGATION.

In Miranda v. Arizona, 384 U.S. 4386 (1966), this Court

recognized the coercive nature of custodial interrogations,

and required that a person in custody be informed in clear

and unequivocal terms that he has the right to remain silent.

[lf the individual is alone and indicates in any

manner that he does not wish to be

interrogated, the police may not question him.

The mere fact that he may have answered

some questions or volunteered some

statements on his own does not deprive him of

the right to refrain from answering any

further inquiries ....

384 U.S. at 444 - 445.

In Michigan v. Mosely, 423 U.S. 96 (1975), this Court

explained how “a reasonable and faithful” interpretation of

Miranda would apply in a situation where the person

requests a cessation in questioning.

The critical safeguard identified in the passage

at issue is a person’s “right to cut off

questioning.” (citing Miranda, 384 U.S. at

474). Through the exercise of his option to

terminate questioning he can control the time

at which questioning occurs, the subjects

discussed, and the duration of the

interrogation. The requirement that law

enforcement authorities must respect a

person’s exercise of that option counteracts

the coercive pressures of the custodial setting.

We therefore conclude that the admissibility of

statements obtained after a person in custody

has decided to remain silent depends under

Miranda on whether his “right to cut off

questioning” was “scrupulously honored.”

423 U.S. at 103 - 04.

In Mosely, this Court reviewed the circumstances leading

to the questioning of Mosely and found that Mosely’s right to

“cut off questioning” was respected. This Court focused on

readvisement, timing and the parties involvement in

questioning. Mosely was fully advised of his rights, waived

them, and was questioned by one officer about robberies.

Mosely said he did not want to discuss the robberies. The

officer ceased questioning. After a two hour interval,

another officer advised Mosely of his rights and questioned

him on an unrelated robbery and murder. This Court found

that the subsequent questioning did not undercut Mosely’s

previous decision to not answer the first detective’s

questions. Jd. at 326-27.

The CAAF did not cite Mosely, but relied on Edwards v.

Arizona, 451-U.S. 477 (1981) in denying petitioner’s claim.

However, Edwards has no applicability to petitioner’s

invocation to silence, because the invocation is clear.

Edwards was charged with robbery, burglary, and murder.

He was informed of his rights pursuant to Miranda, and

denied any criminal conduct. Edwards then told police he

wanted to make a deal, but said he “want[ed] an attorney

before making a deal.” Police ceased questioning

immediately. The next morning, two other police officers

attempted to question Edwards. Edwards told the jail guard

that he did not want to talk, but was told that he “had to.”

Edwards subsequently confessed to the police officers. This

Court ruled the confession inadmissible.

[W]e now hold that when an accused had

invoked his right to have counsel present

during custodial interrogation, a valid waiver

of that right cannot be established by showing

only that he responded to further police-

initiated custodial interrogation even if he has

been advised of his rights.

We further hold that an accused, .. ., having

expressed his desire to deal with the police

only througn counsel, is not subject to further

interrogation by the authorities until counsel

has been made available to him, unless the

accused himself initiates further

communication, exchanges, or conversations

with police.

Id. at 484 - 85.

In this case, petitioner’s right to remain silent was clearly

and unequivocally enunciated: petitioner terminated the

interview until the following morning. SA Panaligan did not

scrupulously honor petitioner’s request to remain silent.

Instead, a moment after he reentered the room, he told

petitioner that he was “a government agent” there to help,

and encouraged petitioner to “just tell the truth.” SA

Panaligan did not readvise petitioner of his rights, and the

reinitiation took place only moments after petitioner invoked

his right to remain silent. SA Panaligan was fully aware that

petitioner had invoked because he took part in the original

interrogation. Furthermore, the questions, unlike those in

Mosely, involved the same crime. The immediate reinitiation

of the interrogation by SA Panaligan undercut petitioner’s

earlier invocation. Petitioner’s attempt to control the time at

which questioning was to occur was overborne by SA

Panaligan’s actions.

The Court of Appeals for the Armed Forces (CAAF)

rejected petitioner’s claim, apparently misinterpreting the

applicable law and rejecting this Court’s analysis in both

Miranda, Mosely, and Edwards. The CAAF stated:

We are not convinced that Edwards applies in

a situation involving interrogation conducted

by a foreign Government. In any event, we

find no violation of Edwards in SA Panaligan’s

continued encouragement of [petitioner] to

speak the truth. The record before us shows

no unequivocal assertion by appellant of his

right to counsel or silence, which is required to

invoke the Miranda -Edwards [footnote

omitted] bright-line rule against further police

interrogation or its functional equivalent.

{citation omitted]. Here, he simply indicated

bat be tae teed aff talic

continue the next day. Accordingly, this legal

claim based on Edwards is without merit.

52 M.J. 14, 18 (1999). (emphasis added).

The CAAF confused the right to counsel, discussed in

Edwards, and the right to silence, discussed in Mosely, and

arrived at the extraordinary conclusion that petitioner's

statement that he “was tired of talking and wanted to

continue the next day” was equivocal. However, it is

anything but equivocal.

The CAAF also determined that petitioner’s statement was

voluntary and therefore admissible. However, this Court in

Mosely rejected such an approach. Instead, the question to

be answered first is whether the government met its burden

in showing that it complied with the proper procedures

before determining whether the statement was made

voluntarily. United States v. Barone, 968 F.2d 1378, 1383-84

(1** Cir. 1992).

Petitioner unequivocally invoked his right to silence. The

original Army investigating officer reinitiated questioning

immediately after the invocation, and questioned petitioner

about the-same acts as was the focus of the earlier

questioning. The government agent violated the safeguards

established by this Court in Miranda v. Arizona and

Michigan v. Mosely.

CONCLUSION

The Court of Appeals for the Armed Forces misapplied this

Court’s holdings on self-incrimination. As a result, soldiers

who defend this country’s constitutional rights are denied

those rights when accused of criminal conduct. In this case,

the petitioner unequivocally invoked his right to silence.

Police officials did not scrupulously honor petitioner’s request

to remain silent. Petitioner’s right to remain silent was

violated, and a statement taken in violation of this right was

admitted into evidence against petitioner. Petitioner’s right

against self-incrimination, as well as that of other service

members, must be protected. For these reasons, the petition

for certiorari should be granted.

Respectfully submitted,

JONATHAN F. POTTER

Major, Judge Advocate

General’s Corps (JA)

United States Army

Defense Appellate Division

901 N. Stuart Street

Arlington, VA 22203

(703) 588-5286

Counsel of Record

and

SEAN S. PARK BLAIR T. O’>CONNOR

Captain, JA Captain, JA

United States Army United States Army

SCOTT R. MORRIS ADELE H. ODEGARD

Major, JA Colonel, JA

United States Army United States Army

December 1999

APPENDIX A

IN THE CASE OF

UNITED STATES, Appellee,

Martez L. HENDERSON, Private First Class

U.S. Army, Appellant

No. 98-0847.

Crim.App. No. 9501435.

United States Court of Appeals for the Armed Forces.

Argued May 12, 1999.

Decided September 27, 1999.

SULLIVAN, J., delivered the opinion of the Court, in which

COX, C.J., and CRAWFORD, GIERKE, AND EFFRON,

J.J., joined.

Counsel

For Appellant: Major Leslie A. Nepper (argued); Lieutenant

Colonel Adele H. Odegard and Major Michael E. Hatch,

USAR (on brief); Colonel John T. Phelps, H, and Major Holly

S. G. Coffey.

For Appellee: Major Virginia G. Beakes, USAR (argued);

Colonel Russell S. Estey, Lieutenant Colonel Eugene R.

Milhizer, and Major Patricia A. Ham (on brief).

Military Judge: Craig S. Schwender

Opinion of the Court

SULLIVAN, Judge:

Appellant was tried by a general court-martial

composed of officer and enlisted members during the summer

of 1995 at Mannheim and Bad Kreuznach, Germany.

Contrary to his pleas, he was found guilty of the

premeditated murder of Thomas Kreiz and the aggravated

assault of Thomas Kreiz and Mario Massaro, in violation of

Articles 118(1) and 128(b)(1) and (2), Uniform Code of Military

Justice, 10 USC §§ 918(1) and 928(b)(1) and (2). On July 21,

1995, the members sentenced appellant to a dishonorable

discharge, confinement for life, forfeiture of $300 pay per

month for 14 months, reduction to pay grade E-l, and a

reprimand.

On November 24, 1995, the convening authority reduced

the finding of guilty of premeditated murder to a finding of

guilty of unpremeditated murder in violation of Article

118(2). He also approved only so much of the adjudged

sentence as provided for a dishonorable discharge,

confinement for 60 years, forfeiture of $300 pay per month for

14 months, and reduction to E-1.

On November 18, 1997, a panel of the Court of Criminal

Appeals further reduced the finding of guilty of

unpremeditated murder to voluntary manslaughter, in

violation of Article 119(a), UCMJ, 10 USC § 919(a), set aside

the sentence, and authorized a rehearing on sentence. On

January 20, 1998, the Government requested reconsideration

by the panel or by the court en banc. On February 19, 1998,

en banc reconsideration was denied. However, the panel

agreed to reconsider its decision. On April 30, 1998, it issued

a second decision which set aside its prior decision, affirmed

findings of guilty to unpremeditated murder and the other

offenses, and affirmed the sentence. 48 M.J. 616 (1998).

On February 3, 1999, this Court granted review on the

following issues of law:

I. WHETHER THE MILITARY JUDGE

ERRED TO THE SUBSTANTIAL PREJUDICE

OF APPELLANT’S RIGHTS BY DENYING

APPELLANT’S MOTION TO SUPPRESS AND

RECEIVING APPELLANT'S INVOLUNTARY

STATEMENTS INTO EVIDENCE AND SUCH

ERROR IS NOT HARMLESS BEYOND A

REASONABLE DOUBT.

Il. WHETHER THE EVIDENCE IS

LEGALLY INSUFFICIENT TO FIND

APPELLANT GUILTY OF UNPREMEDITATED

MURDER.

Ill. WHETHER THE ARMY COURT OF

CRIMINAL APPEALS ERRED WHEN IT

REVERSED ITS PREVIOUS FINDING THAT

APPELLANT UNLAWFULLY KILLED

THOMAS KREIZ IN THE HEAT OF PASSION

CAUSED BY ADEQUATE PROVOCATION, IN

VIOLATION OF ARTICLE 119(a), UCMJ.

IV. WHETHER \THE ARMY COURT

SIGNIFICANTLY ALTERED THE BURDEN

OF PROOF NECESSARY TO PROVE THE

OFFENSE OF UNPREMEDITATED MURDER.

We hold that the finding of guilty to unpremeditated

murder should be affirmed.

The facts in this case as found by the Court of Criminal

Appeals are fully reported in its decision of April 30, 1998. In

pertinent part, it said:

The death of Mr. Kreiz and the wounding of Mr.

Massaro resulted from a dispute over a taxicab that

occurred at the bahnhof (train station) in Bad

Kreuznach, Germany, Fasching night, 23 February

1995. Several hours before midnight on that date,

after an afternoon and evening of dining and

drinking, Mr. Kreiz and his party of five, composed

of himself, his mother, two additional female

friends, Ms. Iris Porth and Ms. Annabelle Kurz, and

Mr. Massaro, apparently decided not to wait their

turn in line at the bahnhof taxicab stand and

entered the next taxi that arrived. Appellant, who

is black, and his party of three, composed of

himself, another black soldier named Coleman, and

a Caucasian German national named Krakowiki,

were among several persons who took issue with

Mr. Kreiz’s going to the head of the line.

Krakowiki verbally protested and physically

held the front passenger door of the taxi,

preventing Mr. Kreiz from closing it. When

Krakowiki assaulted Mr. Kreiz by kicking him once

on the thigh, Mr. Kreiz exited the cab and swung

his fist at Krakowiki. Krakowiki was not hit, but

backed away and ultimately ran towards, and into,

Schaefergasse alley. Mr. Kreiz gave chase. His

mother and Mr. Massaro yelled at him to “Stop.

Leave him alone. Let’s go home. It’s late.”

Appellant, Coleman, Mr. Massaro, and Ms. Porth all

followed behind at various intervals and in some

undetermined order.

However, by the time Mr. Massaro and Ms.

Porth arrived at the scene, they saw Mr. Kreiz

down on the ground with only appellant standing in

very close proximity to him. It was obvious that

Mr. Kreiz had been injured. Mr. Massaro got in

between appellant and Mr. Kreiz. Unbeknownst to

both Ms. Porth and Mr. Massaro, appellant had

stabbed/cut Mr. Kreiz eight times, five of which

were penetrating wounds. Mr. Massaro and Ms.

Porth lifted Mr. Kreiz to his feet, and while

supporting him between them, assisted him out of

the alley and back to the bahnhof. As they were

doing so, they were followed by men who were

taunting them. It was at this time that Mr.

Massaro was struck in the lower right portion of his

back. Although he did not realize at the time that

he had been stabbed, this became apparent shortly

thereafter. When he was struck, he turned and saw

appellant standing about three to six feet behind

him, but he never saw a knife. After Mr. Kreiz was

dragged/carried back to the front of the bahnhof by

his two friends, he collapsed on the ground. While

lying on the ground mortally wounded, he was

kicked in the head and side by two individuals

identified by witnesses as various combinations of

appellant, Krakowiki, and Coleman.

Witnesses to the violent altercation notified

the German police at the bahnhof. When the police

responded, appellant and his companions fled the

scene with the police in pursuit. After a lengthy

foot chase, appellant was cornered and

apprehended. He was taken into German police

custody and transported back to the bahnhof where

he was identified by the decedent’s mother and Ms.

Porth as one of Mr. Kreiz’s assailants. He was then

taken to the Bad Kreuznach main police station

where he was detained for questioning.

After being advised of his rights against

self-incrimination under both German law and

Article 31, UCMJ, appellant waived those rights

and, beginning at about 12:30 a.m. on the morning

of 24 February 1995, was interrogated for

approximately one and one-half hours by German

police. “ Appellant steadfastly denied any

involvement in the incident leading up to the death

of Mr. Kreiz. At about 2:00 a.m., appellant

indicated that he was tired and asked to continue

the interview the next morning. The German

police immediately complied with appellant’s

request and ceased all questioning. The

occurrences that are the basis for appellant’s sole

assignment of error commenced at this time.

Special Agent Ernesto Panaligan, who was

present as an observer, asked the head German

investigator if he could talk to appellant in private

and was permitted to do so. Special Agent

Panaligan told appellant that “if he had nothing to

do with the murder, he had nothing to worry about”

and “that he should just tell the truth.” Special

Agent Panaligan also stated that he “was a

representative of the U.S. Government and was

present to help the appellant.” Appellant did not

respond immediately, but as SA Panaligan was

about to leave the room, appellant waved him back

into the room and asked about punishments if he

were convicted. Special Agent Panaligan answered

that punishment was up to the courts. Appellant

then admitted that what he had told the German

investigators was “not really what happened” and

that he “wanted to tell the truth now.”

Special Agent Panaligan left the room and

returned with his supervisor, CID SA John Kampa.

Upon entering the room, SA Kampa said to

appellant, “I understand you have something to

say.” Appellant replied that he did, but that “he

needed a lawyer.” Recognizing that appellant had

invoked his right to counsel, SA Kampa indicated

that he could not talk to appellant if the appellant

wanted to talk to a lawyer first and started to leave

the room. Appellant motioned him back and asked

if he could make a statement at that time and talk

to a lawyer “in the morning. “ Special Agent

Kampa initially responded that that could not be

done, but when appellant stated, “What? I can’t

have both?”, SA Kampa inquired, “Do you want to

talk now and you want a lawyer in the morning?”

Appellant responded affirmatively.

Thereafter, in the presence of German police

and CID agents, the appellant admitted to stabbing

Mr. Kreiz three or four times, purportedly in self-

defense, as Mr. Kreiz was beating the appellant.

Appellant described his fear of great bodily injury

and asserted that he “jabbed” Mr. Kreiz with his

pocketknife in the side and back to get Mr. Kreiz to

stop pummeling him.!°/ This admission by

appellant, that he had stabbed the decedent in the

midst of an affray, was the only direct evidence

linking appellant to the stabbing death of Mr. Kreiz.

There was circumstantial evidence in the form of

the victim’s blood on the front of appellant’s

clothing, however, no witness saw appellant stab

Mr. Kreiz, no knife was ever recovered, and the

victim’s blood was also found on Krakowiki’s

clothing.

48 MJ at 617-19 (footnotes omitted except where noted)

(emphasis added).

10/ Appellant also stated that he defended himself when Mr. Kreiz knocked

him to the ground and struck him repeatedly in the face. According to

appellant, when he was able to pull down Mr. Kreiz and roll over on top of

him, Mr. Massaro joined in the melee, kicking appellant in the stomach and

hitting him in the face. Appellant finally pulled out his pocketknife to

defend himself against both Mr. Kreiz and Mr. Massaro. We have found

that Mr. Massaro’s only role in Schaefergasse alley was to separate appel-

lant from Mr. Kreiz after Mr. Kreiz had been injured by appellant.

Consequently, we find the appellant’s statement to law enforcement

authorities concerning the circumstances surrounding the stabbing to be

incredible.

The first issue granted review asks whether the trial

judge erred in denying appellant’s motion to suppress his

pretrial statement to Agent Kampa that he stabbed Mr.

Kreiz with his pocketknife during the affray in the alley. The

Court of Criminal Appeals points out that this was “the only

direct evidence linking appellant to the stabbing death of Mr.

Kreiz,” although circumstantial evidence on this point existed

in the record. Jd. at 619. Appellant submits

that a consideration of the totality of the

circumstances, as called for by [United States v.]

Bubonics, [40 MJ 734 (NMCMR 1994)], reveals that

all statements obtained and received into evidence

against him at trial were involuntary in that they

were obtained in violation of UCMJ art. 31, in

violation of the self-incrimination privilege, in

violation of the due process clause of the Fifth

Amendment, and through the use of coercion,

unlawful influence, or unlawful inducement.

Final Brief at 12.

The first question we will address is whether Special

Agent (SA) Panaligan’s earlier conversation with appellant

after he terminated his interview with German police

investigators violated Edwards v. Arizona, 451 U.S. 477

(1981). Edwards holds that a suspect in custody, who states

his intention to exercise his right to counsel or silence, may .

not be interrogated by police until his lawyer is present or

until he reinitiates discussions with police about the crime.

See Enoch v. Gramley, 70 F.3d 1490, 1499-1500 (7 Cir. 1995).

Appellant argues that SA Panaligan’s advice to tell the truth

if he was innocent was interrogation which violated the

Edwards bright-line rule and tainted his later statement to

SA Kampa admitting his stabbing of Mr. Kreiz. See Collazo

v. Estelle, 940 F.2d 411, 417-18 (9"" Cir. 1991). We disagree.

We note that the record in this case shows that

appellant was arrested by German police and brought to a

German police building. Both German and American

authorities advised him of his rights, he waived those rights,

and German police conducted his questioning. He then

admitted only to being a witness to the fight. After

approximately 2 hours, appellant said that he was tired and

indicated that he wanted to continue the questioning in the

morning.

We are not convinced that Edwards applies in a

situation involving interrogation conducted by a foreign

Government. In any event, we find no violation of Edwards

in SA Panaligan’s continued encouragement of appellant to

speak the truth. The record before us shows no unequivocal

assertion by appellant of his right to counsel or silence, which

is required to invoke the Miranda!-Edwards bright-line rule

against further police interrogation or its functional

equivalent. See Davis v. United States, 512 U.S. 452 (1992).

Here, he simply indicated that he was tired of talking and

wanted to continue the next day. Accordingly, this legal

claim based on Edwards is without merit.

The next question we will address is whether SA

Kampa’s subsequent questioning of appellant violated

Edwards. Appellant asserts that he “clearly and

unequivocally requested a lawyer” after his conversation

with SA Panaligan but before his admissions to Agent

Kampa. The record shows, however, that appellant stated

that he both wanted to talk to police “and” he wanted a

lawyer. The record also shows that SA Kampa refused this

request but acceded to appellant’s second request to talk to

them at that time and to see a lawyer in the morning. In our

view, this was also a situation where appellant did not

unequivocally exercise his right to counsel, and his actions

were legally insufficient to invoke the protections of Miranda

and Edwards. See Davis v. United States, supra.

The final question we will address regarding Issue I is

whether all the circumstances of this case together show that

‘Miranda v. Arizona, 384 U.S. 436 (1966).

10a

appellant’s will was overbome and his inculpatory admissions

were involuntary. See United States v. Bubonics, 45 MJ 93-

94 (1996). Appellant cites two Court of Criminal Appeals

cases generally identifying factors pertaining to a

voluntariness inquiry. See United States v. Sojfer, 47 MJ 425,

429-30 (1998)(our Court discussing the same factors). He

then notes his purported 3-hour interrogation and the

ambiguous role of Special Agents Panaligan and Kampa as

representatives of the United States Government who were

purportedly there to help him.

We review de novo the question of the voluntariness of a

Fulminante confession. See Bubonics, supra at 94; Arizona

v. Fulminante, 499 U.S. 279, 287 (1991). We agree with the

appellate court below, however, that appellant’s

incriminatory admissions were entirely voluntary. The

record shows that he couched these admissions in his

exculpatory story of self-defense to military authorities in

the hopes of avoiding his problems with the German

Government. In. these circumstances, we see no

involuntariness. See United States v. Washington, 46 MJ 477,

482 (1997) (confession voluntary where record shows

appellant tried to talk himself out of trouble).

Appellant next complains that the evidence of record is

legally insufficient to support his conviction for

unpremeditated murder. He argues that the prosecution

introduced no evidence that he intended to kill or inflict great

bodily harm on the victim, Mr. Kreiz. He further argues that

the prosecution failed to prove that appellant did not act in

the heat of passion due to adequate provocation. We will not

relitigate this case at the appellate level, but instead limit

ourselves to the question whether evidence was admitted in

this case which would permit a reasonable person to find

appellant guilty of unpremeditated murder. See United

States v. Pabon, 42 MJ 404, 405 (1995), citing Jackson v.

lla

Virginia, 443 U.S. 307, 319 (1979).

Initially, we note that appellant, in a pretrial statement,

admitted stabbing Mr. Kreiz numerous times. Other

evidence was admitted that Mr. Kreiz was stabbed eight

times, one time in the heart and four other times in life-

threatening locations, and Mr. Massaro was stabbed in the

back as he was attempting to withdraw a badly wounded Mr.

Kreiz from the alley. Evidence was also admitted that

appellant kicked Mr. Kreiz in the head while he was lying

wounded in his mother’s arms outside the alley.

Proof that a person used a knife and that a death

resulted therefrom has long been considered proof of an

intent to kill or cause great bodily harm. See United States v.

Jackson, 6 USCMA 193, 203, 19 CMR 319, 329 (1955); United

States v. Holsey, 2 USCMA 554, 556-57, 10 CMR 52, 54-55

(1953). Moreover, proof of numerous wounds in lethal loca-

tions also reasonably suggests an intent to kill. See United

States v. Rodwell, 20 MJ 264 (CMA 1985). Finally, we note

that proof that appellant continued his assault on the victim,

even while he lay helpless in the arms of others, surely would

suggest to a reasonable person an intent to kill or inflict great

bodily harm. See United States v. Varraso, 21 MJ 129, 134

(CMA 1985).

Admittedly, appellant’s version of the events that

evening, as reflected in his pretrial statement admitted as

evidence in this case, is different. He basically asserts that

he was being beaten by two Germans and struck out wildly

with his pocketknife in fear and desperation in an effort to

protect himself (heat of passion due to adequate provocation).

The prosecution, however, was not required to introduce

direct evidence contradicting the defense’s evidence. It could

and did introduce evidence relevant to appellant’s credibility,

i.e., his flight from the scene of the crime and his smashing of

his own face on his arrest. See United States v. Williams, 21

MJ 360, 362 (CMA 1986). Moreover, it could and did

introduce evidence, which circumstantially contradicted

12a

appellant’s version of the events that night, i.e., testimony

that appellant followed the victim and Krakowiki into the

alley. See generally United States v. Maxwell, 38 MJ 148,

150-51 (CMA 1993) (the Government may meet its burden of

proof with direct or circumstantial evidence). Viewing the

record as a whole, we find that it contains legally sufficient

evidence to support appellant’s conviction for

unpremeditated murder. Cf. United States v. Cauley, 45 MJ

353, 356 (1996) (we are not limited to appellant’s narrow view

of record on issue of lack of consent in rape case).

Ill

The third issue before us is whether the panel of the

Court of Criminal Appeals which decided appellant’s case

erred when it reversed itself and affirmed a finding of guilty

to unpremeditated murder. In an earlier panel decision, it had

set aside appellant’s approved finding of guilty of

unpremeditated murder and affirmed a finding of guilty to

voluntary manslaughter. Before that, as noted above,

appellant had been found guilty of premeditated murder, but

the convening authority subsequently reduced this finding of

guilty to unpremeditated murder.

Appellant argues that the panel of judges which set

aside the decision of November 18, 1997, did so in violation of

Article 66(a), UCMJ, 10 USC § 866(a), which states in

pertinent part:

Each Judge Advocate General shall establish a

Court of Criminal Appeals which shall be composed

of one or more panels, and each such panel shall be

composed of not less than three appellate military

judges. For the purpose of reviewing court-martial

cases, the court may sit in panels or as a whole in

accordance with rules prescribed under subsection

(f). Any decision of a panel may be reconsidered by

the court sitting as a whole in accordance with such

rules.

13a

(Emphasis added.) Appellant contends that the panel’s

earlier decision must stand unless it is set aside by the Court

of Criminal Appeals sitting en banc. We disagree. See

generally United States v. Boudreaux, 35 MJ 291, 296-97

(CMA 1992) (Sullivan, C.J., concurring in the result).

The plain language of the statute provides that “[alny

decision of a panel may be reconsidered by the court sitting

as a whole......” (Emphasis added.) It does not state that any

decision of a panel must be reconsidered by the court sitting

as a whole. We presume that Congress is capable of saying

what it means, and additional interpretation on our part, at

least in this matter, is unnecessary. See generally

Richardson v. United States, 119 S.Ct. 1707, 1710 (1999);

United States v. Wells, 519 U.S. 482, 490-91 (1997).

In addition, subsections (a) and (f) of Article 66

expressly authorize the uniform rules of procedure

prescribed by the Judge Advocates General. 44 MJ LXIII

(effective May 1, 1996). Reconsideration of a decision by a

Court of Criminal Appeals is provided for without regard to

whether it is sitting as a panel or as a whole. See Rules 19

and 4; cf. Rule 17 (en banc proceedings). Finally, nothing in

the legislative history of this codal provision has been called

to our attention which expressly states that Congress

intended to bar reconsideration by a panel. See generally

United States v. Solis, 46 MJ 31, 33 (1997).

Finally, when Article 66 was first enacted, it directed

each Judge Advocate General to “constitute in his office one

or more boards of review.” Each board of review was a

separate entity. There was no provision for en banc

proceedings. On several occasions, our Court recognized the

inherent authority of a board of review to reconsider its own

decisions. See, e.g., United States v. Sparks, 5 USCMA 453,

18 CMR 77 (1955); United States v. Corbin, 3 USCMA 99, 11

CMR 99 (1953); United States v. Reeves, 1 USCMA 388, 3

CMR 122 (1952). In Reeves, our Court stated that “boards of

review must clothe themselves with some of the powers

l4a

inherent in courts,” including “the right to correct clerical

errors, inadvertently entered decisions, and those decisions

which are clearly wrong as a matter of law.” Jd. at 390-91, 3

CMR at 124-25.

When the Military Justice Act of 1968 replaced the

boards of review with Courts of Military Review, Article 66

was amended to direct each Judge Advocate General to

“establish a court of Military Review which shall be

composed of one or more panels.” Article 66 further provided

that “the court may sit in panels or as a whole.” 82 Stat. 1335.

In United States v. Chilcote, 20 USCMA 283, 286, 48 CMR

123, 126 (1971), our Court reviewed the legislative history of

Article 66 and concluded that Congress intended to replace

the boards of review with “a single appellate body for the

review of court-martial cases within each service.” Chilcote

held that Article 66 did not permit en banc reconsideration of

a panel decision; it did not address the previously recognized

authority of panels to reconsider their own decisions.

In the Military Justice Act of 1983, Article 66 was

amended again to specifically overrule the Chilcote decision

by adding the following sentence: “Any decision of a panel

may be reconsidered by the court sitting as a whole in

accordance with such rules.” 97 Stat. 1402. See United States

v. Flowers, 26 MJ 463, 464-65 (CMA 1988) (setting out

legislative history).

The 1983 amendment relied on by appellant addressed

only the question whether a majority of the court sitting en

banc could reconsider a panel decision. It did not overrule

our Court’s earlier decisions recognizing a panel’s inherent

authority to reconsider its own decisions.

Appellant finally argues that the Court of Criminal

Appeals erred in its second decision in this case by

erroneously failing to require the prosecution to disprove

15a

that he acted in the heat of passion caused by adequate

provocation. See Art. 119(a); para. 44c(1), Part IV, Manual for

Courts-Martial, United States (1995 ed.).2 See generally

Mullaney v. Wilbur, 421 U.S. 684 (1975). He implies that the

appellate court erred in this regard because it accepted the

Govemment’s reconsideration argument that insufficient

evidence of adequate provocation was admitted in this case.

See United States v. Maxie, 9 USCMA 156, 25 CMR 418

(1958); United States v. Roston, 986 F.2d 1287, 1290 (9*" Cir.

1993). We reject appellant’s “failure to alter the burden of

proof’ argument.

The Government, indeed, did argue that the burden to

disprove heat of passion based on adequate provocation

never shifted to the prosecution. It particularly argued that,

“liln the instant case, the Army Court’s factual

determinations and the evidence in the record clearly

establish that there is absolutely no evidence of adequate

provocation.” Moreover, it has continued to argue that its

only burden was to “prove[] beyond a reasonable doubt that

appellant intended to kill Mr. Kreiz.” Answer to Final Brief

at 54.

Turning to the appellate court’s second opinion in this

case, however, we are not persuaded that it accepted the

Government’s argument on this point. Its opinion certainly

does not state that the prosecution had no burden to disprove

heat of passion and adequate provocation. Instead, it said:

. In resolving legal sufficiency, this court is bound to

“draw every reasonable inference from the

evidence of record in favor of the prosecution,” that

the evidence establishes beyond a reasonable doubt

that: (1) Thomas Kreiz is dead, (2) his death

resulted from appellant’s act of stabbing him with a

knife, (3) the killing was unlawful, and (4) appellant,

at the time of the killing, had the intent to kill or

2This provision is unchanged in the 1998 Manual.

l6a

inflict great bodily harm. Jackson v. Virginia, 448

U.S. 307, 319 (1979); Manual for Courts-Martial,

United States (1995 ed.), Part IV, para. 43b(2)

{hereinafter MCM]. The evidence meets this

standard. For factual sufficiency, the test is

whether, after weighing the evidence of trial and

making allowances for not having personally

observed the witnesses, we are convinced of the

appellant’s guilt beyond a reasonable doubt.

UCM, art. 66(c); United States v. Turner, 25 MJ

324, 325 (CMA 1987). We rave no difficulty

concluding that the evidence establishes each of the

elements of proof beyond a reasonable doubt. We

find that the evidence of record supports the

conclusion of the members that the appellant is not

entitled to the defense of self-defense. See RCM

916(e)(1). Nor was the appellant provoked to such

an extent that, in the heat of sudden passion caused

by adequate provocation, a fatal blow was struck

before self-control could return. See MCM, Part IV,

para. 44c(1)(a). We also find that any provocation

offered by Mr. Kreiz himself was insufficient to

excite uncontrollable passion in a reasonable

person,

48 MJ at 620 (footnote omitted) (emphasis added).

In construing this language, we note that the members

of appellant’s court-martial were properly instructed that

adequate provocation and heat of passion were factual issues

in this case, upon which the prosecution carried the burden of

proof. These circumstances distinguish appellant’s case from

Maxie and Roston, where it was held that evidence in the

record was not sufficient to warrant the trial judge giving an

instruction on manslaughter. Moreover, the service court’s

opinion does not purport to establish a rule of law that

fisticuffs are never adequate provocation for the use of a

knife. Cf. Maxie, supra at 161, 25 CMR at 423 (“Insulting or

17a

abusive words or gestures, taunts, a slight blow with the

hand or fist are not, standing alone, considered adequate

provocation.”). Instead, expressly relying on its Article 66(c)

factfinding powers, the service appellate court found that the

provocation itself was insufficient. See Mullaney, 421 U.S. at

702. While use of the word “insufficient” might suggest an

evidentiary insufficiency holding, the lower court’s opinion,

viewed in its entirety, clearly indicated a factual finding of

inadequate provocation. Cf. United States v. Saulsberry, 47

MJ 493, 495 (1998); see generally para. 44c(1)(b), Part IV,

Manual, supra (“The provocation must be adequate to excite

uncontrollable passion in a reasonable person[.]’”).

The decision of the United States Army Court of

Criminal Appeals is affirmed.

Rake

nar

Kot

19a

APPENDIX B

UNITED STATES ARMY COURT

OF CRIMINAL APPEALS

Before

EDWARDS, KAPLAN, and GONZALES

Appellate Military Judges

UNITED STATES, Appellee

Vv,

Private First Class MARTEZ L. HENDERSON

United States Army, Appellant

ARMY 9501435

Ist Armored Division

C.S. Schwender, Military Judge

Counsel

For Appellant: Major Michael E. Hatch, JA (argued) (on

brief); Captain Norman R. Zamboni, JA; Major Holly S. G.

Coffey, JA (argued); Colonel John T. Phelps II, JA (on

Reconsideration).

For Appellee: Captain Thomas N. Auble, JA (argued);

Colonel John M. Smith, JA; Lieutenant Colonel Eva M.

Novak, JA; Major Virginia G. Beakes, JA (on original brief);

Lieutenant Colonel Eva M. Novak, JA; Major Virginia G.

Beakes, JA (on supplemental brief); Captain Chris A.

Wendelbo, JA (argued); Colonel Joseph E. Ross, JA;

Lieutenant Colonel Frederic L. Borch III, JA (on

Reconsideration).

20a

30 April 1998

~——— ee ew ee ee ee OO Re Oe er OH OO mm OR Re Se me em em rem rm er rere

Per Curiam:

A general court-martial panel composed of officer and

enlisted members found appellant guilty, contrary to his

pleas, of the premeditated murder of Thomas Kreiz, a

German national; the aggravated assault of the same Mr.

Kreiz prior to his death by kicking him in the head with a

shod foot, a means likely to produce grievous bodily harm;

and the aggravated assault of Mario Massaro, also a German

national, by stabbing Mr. Massaro with a knife and thereby

intentionally inflicting grievous bodily harm.' These offenses

constituted violations of Articles 118(1) and 128, UCMJ, 10

U.S.C. §§ 91x{1) and 928 (1988). The members sentenced the

appellant to be reprimanded, to be reduced to the grade of

Private El, to forfeit $300.00 pay per month for fourteen

months, to be confined for the length of his natural life, and to

be dishonorably discharged from the service. Acting on the

advice of his staff judge advocate, the convening authority

changed the finding of guilty as to the murder charge

(Charge I and its Specification) from premeditated to

unpremeditated murder (Article 118(2), UCMJ), approved

the remaining findings of guilty, and approved only so much

of the adjudged sentence as provided for a dishonorable

discharge, confinement for sixty years, forfeiture of $300.00

pay per month for fourteen months, and reduction to Private

El.

' The appellant was originally charged with the attempted murder of Mr.

Massaro, in violation of Article 80, Uniform Code of Military Justice [here-

inafter UCMJ]. The members returned a finding of not guilty of attempted

murder, but guilty of the lesser included offense of aggravated assault in

violation of Article 128, UCMJ.

Z2la

We initially reviewed this case pursuant to Article 66,

UCM, and issued an opinion on 18 November 1997. There, a

majority of this court reduced the appellant’s homicide

conviction from unpremeditated murder to voluntary

manslaughter and authorized a rehearing on the sentence.

Upon the government’s filing of a Petition for

Reconsideration and Suggestion for Consideration En Banc

on 20 January 1998, we vacated our original opinion. United

States v. Henderson, ARMY 9501435 (Army Ct. Crim. App.

19 February 1998) (order)(unpub.). We also granted the

government’s request for reconsideration. The Suggestion

for Consideration En Banc was not adopted by the Court as

a whole. Having reconsidered our opinion, we now clarify the

facts below in Part 1, and a majority of this court now affirms

the findings of guilty and the sentence as approved by the

convening authority.

We have, again, considered the record of trial, the single

assignment of error, the government’s reply thereto, the

three issues personally raised by appellant pursuant to

United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), all

supplemental briefs and citations of authority filed by

counsel,” and the two oral arguments presented by counsel.

2 On 15 April 1997, this court on its own motion, ordered oral argument on

the following issues:

WHETHER THE APPELLANT EVER INVOKED

HIS RIGHT TO COUNSEL AND, IF SO, WHEN?

IF THE ANSWER TO ISSUE I IS IN THE

AFFIRMATIVE, WHETHER THE APPELLANT

THEREAFTER WAIVED HIS’ RIGHT TO

COUNSEL?

Ill

WHETHER THE ADMISSIONS OF THE

APPELLANT WERE VOLUNTARY AND,

THEREFORE, ADMISSIBLE IN HIS

COURTMARTIAL?

This court heard oral argument on 4 June 1997 and, on reconsideration, on

11 March 1998.

22a

We have determined that appellant’s three Grostefon

assertions are totally lacking in merit and, therefore, we

reject them. Although we reject it also, we feel that it is

appropriate to comment on appellant’s assignment of error

challenging the admissibility of pretrial statements he made

to U.S. Army Criminal Investigation Command (CID) agents

in which he admitted stabbing the decedent, Mr. Kreiz, but

claimed that he did so in self-defense.

I. FACTS

The death of Mr. Kreiz and the wounding of Mr. Massaro

resulted from a dispute over a taxicab that occurred at the

bahnhof (train station) in Bad Kreuznach, Germany,

Fasching* night, 23 February 1995. Several hours before

midnight on that date, after an afternoon and evening of

dining and drinking, Mr. Kreiz and his party of five, composed

of himself, his mother, two additional female friends, Ms. Iris

Porth and Ms. Annabelle Kurz, and Mr. Massaro, apparently

decided not to wait their turn in line at the bahnhof taxicab

stand and entered the next taxi that arrived. Appellant, who

is black®, and his party of three, composed of himself, another

black soldier named Coleman, and a Caucasian German

national named Krakowiki, were among several persons who

took issue with Mr. Kreiz’s going to the head of the line.

3 The testimony introduced at trial, particularly that of the government’s

seventeen witnesses, is not uniform on several determinative facts. Thus,

we have been required to exercise our Article 66(c), UCMJ, factfinding

powers extensively in resolving this appeal.

4We note that Fasching is the German equivalent of Mardi Gras, a

celebration of personal indulgence before the commencement of the

observance of the Christian period of self-denial known as Lent.

> The race of appellant and the members of his party is relevant only

because a number of the eyewitnesses to the melee identified the

participants as the “taller black” or “shorter black” or by reference to Mr.

Krakowiki's unique braided hair style and the fact that he was wearing a

red bandanna. A stipulation of fact established that appellant was three

inches shorter than his black associate, Coleman.

23a

Krakowiki verbally protested and physically held the

front passenger door of the taxi, preventing Mr. Kreiz from

closing it. When Krakowiki assaulted Mr. Kreiz by kicking

him once on the thigh, Mr. Kreiz exited the cab and swung his

fist at Krakowiki. Krakowiki was not hit, but backed away

and ultimately ran towards, and into, Schaefergasse alley.®

Mr. Kreiz gave chase. His mother and Mr. Massaro yelled at

him to “Stop. Leave him alone. Let’s go home. It’s late.”

Appeliant, Coleman, Mr. Massaro, and Ms. Porth all followed

behind at various intervals and in some undetermined order.

However, by the time Mr. Massaro and Ms. Porth

arrived at the scene, they saw Mr. Kreiz down on the ground

with only appellant standing in very close proximit, to him.

It was obvious that Mr. Kreiz had been injured. Mr. Massaro

got in between appellant and Mr. Kreiz. Unbeknownst to

both Ms. Porth and Mr. Massaro, appellant had stabbed/cut

Mr. Kreiz eight times, five of which were penetrating

wounds.’ Mr. Massaro and Ms. Porth lifted Mr. Kreiz to his

feet, and while supporting him between them, assisted him

out of the alley and back to the bahnhof. As they were doing

so, they were followed by men who were taunting them. It

was at this time that Mr. Massaro was struck in the lower

right portion of his back. Although he did not realize at the

time that he had been stabbed, this became apparent shortly

thereafter. When he was struck, he turned and saw appellant

standing about three to six feet behind him, but he never saw

a knife. After Mr. Kreiz was dragged/carried back to the

front of the bahnhof by his two friends, he collapsed on the

ground. While lying on the ground mortally wounded, he was

kicked in the head and side by two individuals identified by

witnesses as various combinations of appellant, Krakowiki,

and Coleman,

The dispute at the taxi stand between Mr. Kreiz and Krakowiki was sub-

stantial enough to cause an unidentified German man to immediately

report it to the police located at the bahnhof. However, when the police

arrived at the taxi stand, all was calm there because the action by then had

moved several hundred meters away into the Schaefergasse alley.

70f these five, one stab to the chest was fatal.

24a

Witnesses to the violent altercation notified the German

police at the bahnhof. When the police responded, appellant

and his companions fled the scene with the police in pursuit.

After a lengthy foot chase, appellant was cornered and

apprehended. He was taken into German police custody and

transported back to the bahnhof where he was identified by

the decedent’s mother and Ms. Porth as one of Mr. Kreiz’s

assailants. He was then taken to the Bad Kreuznach main

police station where he was detained for questioning.

After being advised of his rights against self-incrimination

under both German law and Article 31, UCMJ,° appellant

waived those rights and, beginning at about 12:30 a.m. on the

morning of 24 February 1995, was interrogated for

approximately one and one-half hours by German police.

Appellant steadfastly denied any involvement in the incident

leading up to the death of Mr. Kreiz. At about 2:00 a.m.,

appellant indicated that he was tired and asked to continue the

interview the next morning. The German police immediately

complied with appellant’s request and ceased all questioning.

The occurrences that are the basis for appellant’s sole

assignment of error commenced at this time.

Special Agent Ernesto Panaligan, who was present as

an observer, asked the head German investigator if he could

talk to appellant in private and was permitted to do so.

Special Agent Panaligan told appellant that “if he had

nothing to do with the murder, he had nothing to worry

about” and “that he should just tell the truth.” Special Agent

Panaligan also stated that he “was a representative of the

U.S. Government and was present to help the appellant.”

Appellant did not respond immediately, but as SA Panaligan

was about to leave the room, appellant waved him back into

the room and asked about punishments if he were convicted.

S Appellant was advised of his Article 31, UCMJ, rights by Mr. Ernesto

Panaligan, the U.S. Army CID special agent (SA) who was on duty that

night. Special Agent Panaligan remained as an observer to the German

authorities’ interrogation.

25a

Special Agent Panaligan answered that punishment was up

to the courts. Appellant then admitted that what he had told

the German investigators was “not really what happened”

and that he “wanted to tell the truth now.”

Special Agent Panaligan left the room and returned

with his supervisor, CID SA John Kampa. Upon entering the

room, SA Kampa said to appellant, “I understand you have

something to say.” Appellant replied that he did, but that “he

needed a lawyer.”

Recognizing that appellant had invoked his right to

counsel, SA Kampa indicated that he could not talk to

appellant if the appellant wanted to talk to a lawyer first and

started to leave the room. Appellant motioned him back and

asked if he could make a statement at that time and talk to a

lawyer “in the morning.” Special Agent Kampa initially

responded that that could not be done, but when appellant

stated, “What? I can’t have both?”, SA Kampa inquired, “Do

you want to talk now and you want a lawyer in the morning?”

Appellant responded affirmatively.

Thereafter, in the presence of German police and CID

agents, the appellant admitted to stabbing Mr. Kreiz three or

four times, purportedly in self-defense, as Mr. Kreiz was

beating the appellant.” Appellant described his fear of great

bodily injury and asserted that he “jabbed” Mr. Kreiz with his

pocketknife in the side and back to get Mr. Kreiz to stop

pummeling him.'® This admission by appellant, that he had

® Appellant’s admission that he stabbed Mr. Kreiz was substantially the

only essential aspect of his statement that was not contradicted by other

evidence introduced at trial. For example, see footnote 10.

'” Appellant also stated that he defended himself when Mr. Kreiz knocked him to

the ground and struck him repeatedly in the face. According to appellant, when he

was able to pull down Mr. Kreiz and roll over on top of him, Mr. Massaro joined in

the melee, kicking appellant in the stomach and hitting him in the face. Appellant

finally pulled out his pocketknife to defend himself against both Mr. Kreiz and Mr.

Massaro. We have found that Mr. Massaro’s only role in Schaefergasse alley was

to separate appellant from Mr. Kreiz after Mr. Kreiz had been injured by appellant.

Consequently, we find the appellant's statement to law enforcement authorities

concerning the circumstances surrounding the stabbing to be incredible.

26a

stabbed the decedent in the midst of an affray, was the only

direct evidence linking appellant to the stabbing death of Mr.

Kreiz. There was circumstantial evidence in the form of the

victim’s blood on the front of appellant’s clothing, however, no

witness saw appellant stab Mr. Kreiz, no knife was ever

recovered, and the victim's blood was also found on Krakowiki’s

clothing. “si

Il. VOLUNTARINESS OF THE ADMISSION

The law is clear as to the admissibility of appellant’s

statement that he stabbed the decedent, assertedly in self-

defense. Involuntary pretrial confessions are inadmissible in

trials by court-martial. United States v. Lonetree, 35 M.J. 396

(C.M.A. 1992), cert. denied, 113 S.Ct. 1813 (1993); Article

31(d), UCMJ; MANUAL FOR COURTS-MARTIAL,

UNITED STATES, Mil. R. Evid. 304 (1995). Appellant, who

clearly was in police custody, was properly advised of his

constitutional and statutory rights against self-incrimination

and, at least initially, waived those rights. Miranda v.

Arizona, 384 U.S. 436 (1966); Article 31(b), UCMJ. When

appellant subsequently invoked his right to counsel,

questioning ceased until he reinitiated communication, first

with SA Panaligan, and subsequently with SA Kampa.

jdwards v. Arizona, 451 U.S. 477 (1981). Appellant declared

his desire to give a statement to the CID agents “now” and to

consult with counsel “in the morning,” This constituted at the

very most an ambiguous reinvocation of his right against self-

incrimination. Davis v. United States, 512 U.S. 452 (1994).

See also, Connecticut v. Barrett, 479 U.S. 523 (1987)(police

did not violate defendant’s rights in continuing to interrogate

him when he agreed to extended oral discussion but

expressed an unwillingness to give a written statement until

his attorney was present). Nothing in the facts of this case

supports the conclusion that appellant’s will was overborne; his

ultimate decision to make a statement claiming self-defense

was “an essentially free and unconstrained choice. . . .”

27a

United States v. Bubonics, 45 M.J. 93, 95 (1996). Accordingly,

concluding as a matter of law, as we do, that the military

judge correctly determined that appellant’s statement was

voluntary and admissible, we reject appellant’s sole

assignment of error.

II]. SUFFICIENCY OF THE EVIDENCE

Article 66(c), UCMJ, imposes upon this court the duty to

determine both the legal and factual sufficiency of each

finding of guilty. The test for legal sufficiency is “whether.

considering the evidence in the light most favorable to the

prosecution, a reasonable factfinder could have found all the

essential elements beyond a reasonable doubt.” United States

v. Turner, 25 M.J. 324, 324 (C.M.A. 1987) (quoting Jackson v.

Virginia, 443 U.S. 307, 319 (1979)). In fulfilling this duty, we

find it appropriate to discuss the finding as to the homicide of

Thomas Kreiz (Charge 1). Appellant was charged with, and

convicted by the court-martial panel of, premeditated murder

(Article 118(1), UCMJ). The convening authority disapproved

the guilty finding of premeditated murder and substituted a

guilty finding of unpremeditated murder (Article 118(2),

UCMJ). He did so upon the advice of his staff judge advocate

who opined in the addendum to his Rule for Courts-Martial

1106 [hereinafter R.C.M.] recommendation that such action

should be accomplished as a matter of clemency.!! In

resolving legal sufficiency, this court is bound to “draw every

reasonable inference from the evidence of record in favor of

the prosecution,” ! that the evidence establishes beyond a

reasonable doubt that: (1) Thomas Kreiz is dead, (2) his death

resulted from appellant’s act of stabbing him with a knife, (3)

the killing was unlawful, and (4) appellant, at the time of the

killing, had the intent to kill or inflict great bodily harm.

'' It appears that the staff judge advocate’s recommendation for clemency

was in response to appellant's testimony as a government witness in the

trial of his co-aecused, Private Coleman.

' United States v. McGinty, 38 MJ. 131, 182 (C.M.A. 1993).

28a

Jackson v. Virginia, 443 U.S. 307, 319 (1979); MANUAL

FOR COURTS-MARTIAL, UNITED STATES (1995 ed.),

Part IV, para. 43b(2) [hereinafter MCM]. The evidence meets

this standard. For factual sufficiency, the test is whether,

after weighing the evidence of trial and making allowances

for not having personally observed the witnesses, we are

convinced of the appellant’s guilt beyond a reasonable doubt.

UCMJ, art 66(c); United States v. Turner, 25 M.J. 324, 325

(C.M.A. 1987). We have no difficulty concluding that the

evidence establishes each of the elements of proof beyond a

reasonable doubt. We find that the evidence of record

supports the conclusion of the members that the appellant is

not entitled to the defense of self-defense. See R.C.M.

916(e)(1). Nor was the appellant provoked to such an extent

that, in the heat of sudden passion caused by adequate

provocation, a fatal blow was struck before self-control could

return. See MCM, Part IV, para. 44¢e(1)(a). We also find that

any provocation offered by Mr. Kreiz himself was insufficient

to excite uncontrollable passion in a reasonable person.

IV. DECISION

Accordingly, the findings of guilty and the sentence are

affirmed.

KAPLAN, Judge, concurring in part and dissenting in part:

I am in partial agreement with my fellow judges’

recitation of the facts in Part I of the lead opinion, and I

concur in their resolution of the issue in Part II concerning

the admissibility of appellant’s confession that he stabbed the

decedent, albeit in claimed self-defense. I must, however,

respectfully dissent from their legal conclusion in Part III

that the evidence of record is legally and factually sufficient

to warrant affirming the guilty finding of unpremeditated

murder. I am convinced that a mitigating factor, action in the

heat of sudden passion caused by adequate provocation,

29a

existed in this case and that its legal effect is to require us to

affirm a guilty finding of voluntary manslaughter rather than

unpremeditated murder.

The only direct evidence of appellant’s involvement in

the death of Mr. Kreiz is that contained in his admission to

law enforcement authorities that he stabbed the decedent

while both were involved in a violent confrontation, with the

decedent beating him about the head and face, and that his

sole purpose was to deter the decedent from assaulting him

further. The forensic evidence in the case, that is, the

location of the wounds on the decedent’s left side and back

and the presence of significant amounts of the decedent’s

blood on the right front portion of appellant’s clothing, is

entirely consistent with appellant’s version of the encounter

asserting that the decedent was beating appellant at the time

that appellant stabbed him.

This court had occasion to address the legal distinction

between the offenses of murder and manslaughter in United

States v. Calley, 46 C.M.R. 1131 (A.C.M.R. 1973), aff’d, 48

C.M.R. 19 (C.M.A. 1973). In that case, this court held that,

“Malice is still the proper term for describing that state of

mind which distinguishes murder from manslaughter.” Id. at

1175. The court went on to explain that,

[MJurder is the starting point for evaluating the

degree of criminality of an intended killing done

without justification or excuse. The degree may be

reduced to manslaughter given certain

circumstances .... Fundamentally, unmitigated

intent to kill is the malice. This is why...

reduction of intended killing from murder to

voluntary manslaughter must be based on

objectively adequate provocation. . . . Only after

some evidence of adequate provocation is

presented is the Government faced with bearing

the burden of proof that the more serious offense of

murder was committed.

30a

To be legally adequate, the provocation must be of

a quality which would ‘excite uncontrollable passion

in the mind of a reasonable man.’

Id. at 1176(citing para. 198, MANUAL FOR COURTS-

MARTIAL, UNITED STATES, 1969). (Emphasis in text).

These declarations of the black-letter law of homicide,

although more than two decades old, remain the controlling

precedent on this issue. See also MCM, Part IV, para. 44c(\).

Whether an unlawful killing constitutes murder or a lesser

offense depends upon the circumstances. /d. para. 43¢(1).

As stated above, the only specific evidence of record

concerning the fatal stabbing of Mr. Kreiz is that contained in

appellant’s admissions to German and American law

enforcement authorities. In his statement, appeilant maintained

that he stabbed the decedent while he and appellant were

engaged in a violent physical altercation in which Mr. Kreiz had

the upper hand. He further described his fear of great bodily

harm. “Heat of passion may be produced by fear as well as

rage.” United States v. Bellamy, 36 C.M.R. 115, 118 (C.M.A.

1966\(citing United States v. Desroe, 21 C.M.R. 3 (C.M.A. 1956));

MCM, Part IV, para. 44c())(a). Whether appellant’s arguably

self-serving statement is accepted as true or not, it did

constitute “some evidence of adequate provocation” on the part

of Mr. Kreiz. Some evidence having thus been presented, the

burden then fell upon the Government to disprove the existence

of the mitigating factor (action in the heat of sudden passion).

Calley, 46 C.M.R. at 1175. Government counsel offered no

evidence in rebuttal to the appellant’s claims. For example,

there was no evidence introduced (1) that appellant suffered

little or no injury to his facial or head area, or (2) that appellant

threatened to kill or injure Mr. Kreiz before striking him, or (8)

if Mr. Kreiz did provoke the physical confrontation with

appellant, that the provocation was insufficient to excite

uncontrollable sudden passion in a reasonable person. Under

the set of facts presented in this case, | would find that although

the appellant is not entitled to complete exoneration based on

his claim of self-defense because he utilized excessive force (a

sla

knife) in resisting the force being applied to his body (with fists),

see United States v. Martinez, 40 M.J. 426 (C.M.A. 1994), he was

acting in the heat of sudden passion caused by adequate

provocation.

I reach the conclusion that the mitigating factor existed

based on the following facts established by the evidence of

record: (1) Mr. Kreiz, the decedent, was aggressive at the taxi

stand and continued to be aggressive as evidenced by his

chasing Krakowiki and appellant when they attempted to

retreat. (2) Mr. Kreiz’s actions were substantially provoking,

amounting to more than mere insulting language or a push with

the flat of the hand; rather, he ran several hundred yards in

pursuit of his perceived adversaries, and he did so over the

protestations of his mother and his friends. (3) The rapid

sequence of events provided no cooling off period between Mr.

Kreiz’s provocation and appellant’s reaction thereto. (4) As

stipulated by the government, Mr. Kreiz was physically much

larger than appellant - appellant was five feet five inches tall

and weighed 117 pounds whereas the decedent was five feet

ten inches tall and weighed 154 pounds. (5) As evidenced by the

autopsy chemical tests, Mr. Kreiz was significantly intoxicated

by alcohol and, perhaps, hashish. (6) Mr. Kreiz had previously

been arrested for the crime of assault. (7) The testimony of

several witnesses that appellant possessed the character trait

of peacefulness. (8) The fact that appellant stabbed Mr. Massaro

while Massaro was assisting Mr. Kreiz out of the alley and

kicked the decedent later while Mr. Kreiz was lying mortally

wounded on the ground in front of the bahnhof, at both of which

times appellant was no longer in any danger of physical harm,

further indicates appellant’s lack of ability to think rationally

and to coolly reflect on his actions. Facts (1), (2), (4), (5), (6), and

(7) go directly to the issue of adequate provocation. Facts (2),

(4), (7) and (8) serve to establish aetions based on uncontrollable

sudden passion.

Although action in the heat of sudden passion caused by

adequate provocation does not excuse a homicide, it does

preclude conviction of murder. MCM, Part IV, para. 44¢(1)(a).

32a

As a matter of law, a homicide committed in the heat of sudden

passion is manslaughter, not murder. See United States v.

Saulsberry, 43 M.J. 649 (Army Ct. Crim. App. 1995). It is

important to keep in mind that the elements of voluntary

manslaughter under Article 119(a), UCMJ, are identical to the

elements of unpremeditated murder under Article 118(2),

UCM, the only distinction being the existence, vel non, of the

mitigating factor of action in the heat of sudden passion.

Compare MCM, paras. 43b(2) and 44b(1). “Sudden passion

means a degree of rage, pain, or fear which prevents cool

reflection.” Dep’t of Army, Pam. 27-9, MILITARY JUDGES’

BENCHBOOK, para. 3-43-ld (30 Sep. 1996).

A claim of self-defense is not always an all-or-nothing

proposition. Clearly, under a factual scenario such as exists in

this case, manslaughter represents a middle ground between

intentional malicious killing (murder) and iegally excusable

homicide (killing in self-defense). See Stevenson v. United

States, 162 U.S. 318, 322 (1896). On this point, I must part

company with my fellow judges. Applying the law that I

believe is controlling in this case, | would affirm only so much of

the finding of guilty of the Specification of Charge I as finds

that appellant unlawfully killed Thomas Kreiz in the heat of

sudden passion caused by adequate provocation in violation of

Article 119(a), UCMJ. 1 would affirm the remaining findings of

guilty and order a rehearing on sentence.

FOR THE COURT:

fs/ John T. Rucker

JOHN T. RUCKER

Lieutenant Colonel, JA

Clerk of Court

33a

APPENDIX C

UNITED STATES ARMY COURT

OF CRIMINAL APPEALS

Before

EDWARDS, KAPLAN, and GONZALES

Appellate Military Judges

UNITED STATES, Appellee

Private First Class MARTEZ L. HENDERSON

United States Army, Appellant

ARMY 9501435

Ist Armored Division

C.S. Schwender, Military Judge

For Appellant: Major Michael E. Hatch, JA (argued) (on brief);

Captain Norman R. Zamboni, JA.

For Appellee: Captain Thomas N. Auble, JA (argued); Colonel

John M. Smith, JA; Lieutenant Colonel Eva M. Novak, JA;

Major Virginia G. Beakes, JA (on original brief); Lieutenant

Colonel Eva M. Novak, JA; Major Virginia G. Beakes, JA (on

supplemental brief).

18 November 1997

“=< s§ @ ee He KR OH KO KH HH Re eee ee

oe eee wr wr OO OO OO rr HO rr ee Oe

KAPLAN, Judge:

A general court-martial panel composed of officer and

enlisted members found the appellant guilty, contrary to his

pleas, of the premeditated murder of Thomas Kreiz, a

German national; the aggravated assault of the same Mr.

Kreiz by kicking him in the head with a shod foot, a means

likely to produce grievous bodily harm; and the aggravated

assault of Mario Massaro, also a German national, by

stabbing Mr. Massaro with a knife and thereby intentionally

inflicting grievous bodily harm.' These offenses constituted

violations of Articles 118(1) and 128, UCMJ, 10 U.S.C. §§

918(1) and 928 (1988). The members sentenced the appellant

to be reprimanded, to be reduced to the grade of Private El,

to forfeit $300.00 pay per month for fourteen months, to be

confined for the length of his natural life, and to be

dishonorably discharged from the service. Acting on the

advice of his staff judge advocate, the convening authority

changed the finding of guilty as to the murder charge

(Charge I and its Specification) from premeditated to

unpremeditated murder (Article 118(2), UCMJ), approved

the remaining findings of guilty, and approved only so much

of the adjudged sentence as provided for a dishonorable

discharge, confinement for sixty years, forfeiture of $300.00

pay per month for fourteen months, and reduction to Private

El.

' The appellant was originally charged with the attempted murder of Mr.

Massaro, in violation of Article 80, Uniform Code of Military Justice [here-

inafter UCMJ]}. The members returned a finding of not guilty of attempted

murder, but guilty of the lesser included offense of aggravated assault in

violation of Article 128, UCMJ.

23 35a

This case is before the court for automatic review

pursuant to Article 66, UCMJ. We have considered the

record of trial, the single assignment of error, the

government’s reply thereto, the three issues personally

raised by appellant pursuant to United States v. Grostefon, 12

M.J. 431 (C.M.A. 1982), the supplemental briefs and citations

of authority filed by counsel, and the oral arguments

presented by counsel.* We have determined that appellant’s

three Grostefon assertions are totally lacking in merit and,

therefore, we reject them, Although we reject it also, we feel

that it is appropriate to comment on appellant’s assignment

of error challenging the admissibility of pretrial statements

he made to U.S. Army Criminal Investigation Command

(CID) agents in which he admitted stabbing the decedent,

Mr. Kreiz, but claimed that he did so in self-defense. Finally,

in the exercise of our Article 66, UCMJ, responsibilities, we

have reviewed and found insufficient the evidence supporting

the finding of guilty of unpremeditated murder. We will

order appropriate relief to correct this error.

“On 15 April 1997, this court on its own motion ordered ora] argument on

the following issues: -

WHETHER THE APPELLANT EVER INVOKED HIS RIGHT TO

COUNSEL AND, IF SO, WHEN?

IF THE ANSWER TO ISSUE LIS IN THE AFFIRMATIVE, WHETHER THE

APPELLANT THEREAFTER WAIVED HIS RIGHT TO COUNSEL?

WHETHER THE ADMISSIONS OF THE APPELLANT WERE VOLUNTARY

AND, THEREFORE, ADMISSIBLE IN HIS COURT-MARTIAL?

36a

I, FACTS

The death of Mr. Kreiz and the wounding of Mr. Massaro

resulted from a dispute over a taxicab that occurred at the

bahnhof (train station) in Bad Kreuznach, Germany,

Fasching® night, 283 February 1995. Near midnight on that

date, after an evening of dining and drinking, Mr. Kreiz and

his party, composed of his mother, his girlfriend, Ms. Lris

Porth, and Mr. Massaro, apparently decided not to wait their

turn in line at the bahnhof taxicab stand and attempted to get

into the next taxi that arrived at the stand. A verbal dispute

ensued, which soon turned physically violent. The appellant,

who is black*, and his party, composed of another black

soldier named Coleman and a black German national named

Krakowiki, were among several persons who took issue with

Mr. Kreiz’s attempt to push to the head of the line.

After scuffling with a German businessman briefly, Mr.

Kreiz focused his attention on the appellant. When the

appellant backed away and ultimately ran away, Mr. Kreiz

gave chase with Krakowiki, Coleman, Massaro, and Ms.

Porth following behind at various intervals and in some

undetermined order. They ran several hundred yards away

from the taxi stand and into an alley. When Ms. Porth

ertered the alley, she saw the decedent on the ground with

several black males around him. He was obviously injured,

so she and Mr. Massaro pulled him to his feet, supported him

between them, and assisted him out of the alley and back to

the bahnhof. As they were doing so, they were fellowed by

the group of young black men who were taunting them; it

was at this time that Mr. Massaro was struck in the lower

right portion of his back. Although he did not realize at the

time that he had been stabbed, this became apparent shortly

* We note that Fasching is the German equivalent of Mardi Gras, a celebra-

tion of personal indulgence before the commencement of the cbservance of

the Christian period of self-denial known as Lent.

‘The race of the appellant and the members of his party is relevant only

because a number of the eyewitnesses to the melee identified the partici-

pants by the color of their skin or their hair.

37a

thereafter. When he was struck, he turned and saw the

appellant standing about three to six feet behind him, but he

never saw a knife. After he was dragged/carried back to the

front of the bahnhof by his friends, Mr. Kreiz collapsed on the

ground. While lying on the ground mortally wounded®, he

was kicked in the head and side by two black males variously

identified by witnesses as the appellant, Krakowiki, or

Coleman. wae

Witnesses to the violent altercation notified the German

police who had an office in the bahnhof. When the police

responded, the appellant and his companions fled the scene

with the police in pursuit. After a lengthy foot chase, the

appellant was cornered and apprehended. He was taken into

German police custody and transported back to the bahnhof

where he was identified by the decedent’s mother and Ms.

Porth as one of Mr. Kreiz’s assailants. He was then taken to

the Bad Kreuznach main police station where he was

detained for questioning.

After being advised of his rights against self-

incrimination under both German law and Article 31, UCMJ,®

the appellant waived those rights and, beginning at about

12:30 a.m. on the morning of 24 February 1995, was

interrogated for approximately one and one-half hours by

German police. Appellant steadfastly denied any

involvement in the incident leading up to the death of Mr.

Kreiz. At about 2:00 a.m., the appellant indicated that he was

tired and asked to continue the interview the next morning.

The German police immediately complied with the appellant’s

request and ceased all questioning. The occurrences that are

the basis for the appellant’s sole assignment of error

commenced at this time.

*An autopsy revealed that Mr. Kreiz had been stabbed nine times. Two of

his wounds were categorized as potentially fatal.

"The appellant was advised of his Article 31, UCMJ, rights by Mr. Ernesto

Panaligan, the U.S. Army CID special agent (SA) who was on duty that

night. Special Agent Panaligan remained as an observer to the German

interrogation.

38a

Special Agent Ernesto Panaligan, who was present as

an observer, asked the head German investigator if he could

talk to the appellant in private and was permitted to do so,

Special Agent Panaligan told the appellant that “if he had

nothing to do with the murder, he had nothing to worry

about” and “that he should just tell the truth.” Special Agent

Panaligan also stated that he “was a representative of the

U.S. Government and was present to help the appellant.”

Appellant did not respond immediately, but as SA Panaligan

was about to leave the room, the appellant waved him back

into the room and asked about punishments if he were

convicted. Special Agent Panaligan answered that

punishment was up to the courts, The appellant then

admitted that what he had told the German investigators was

“not really what happened” and that he “wanted to tell the

truth now.”

Special Agent Panaligan left the room and returned

with his supervisor, CID SA John Kampa. Upon entering the

room, SA Kampa said to the appellant, “Il understand you

have something to say.” Appellant replied that he did, but

that “he needed a lawyer.” Recognizing that appellant had

invoked his right to counsel, SA Kampa indicated that he

could not talk to the appellant if the appellant wanted to talk

to a lawyer first and started to leave the room. The appellant

motioned him back and asked if he could make a statement at

that time and talk to a lawyer “in the morning.” Special

Agent Kampa initially responded that that could not be done,

but when the appellant stated, “What? I can’t have both?”,

SA Kampa inquired, “Do you want to talk now and you want

a lawyer in the morning?” The appellant responded

affirmatively.

Thereafter, in the presence of German police and CID

agents, the appellant admitted to stabbing Mr. Kreiz three

or four times, purportedly in self-defense, as Mr, Kreiz

was beating the appellant. The appellant contended that

he was in fear of injury and “jabbed” Mr. Kreiz with his

39a

pocketknife in the side and back to get Mr. Kreiz to stop

pummeling him.’ This admission by the appellant, that he

had stabbed the decedent in the midst of an affray, was the

only direct evidence linking the appellant to the death of Mr.

Kreiz. There was some circumstantial evidence in the form

of the victim’s blood on the front of the appellant’s clothing,

however, no knife was ever recovered, and the victim’s blood

was also found on Krakowiki’s clothing.

Il. VOLUNTARINESS OF THE ADMISSION

The law is clear as to the admissibility of the

appellant’s statement that he stabbed the decedent,

assertedly in self-defense. Involuntary pretrial confessions

are inadmissible in trials by court-martial. United States v.

Lonetree, 35 M.J. 396 (C.M.A. 1992), cert. denied, 113 S.Ct.

1813 (1993); Article 31(d), UCMJ; Military Rule of Evidence

304. The appellant, who clearly was in police custody, was

properly advised of his constitutional and statutory rights

against self-incrimination and, at least initially, waived those

rights. Miranda v. Arizona, 384 U.S. 436 (1966); Article 31(b),

UCMJ. When the appellant subsequently invoked his right

to counsel, questioning ceased until he reinitiated

communication, first with SA Panaligan, and subsequently

with SA Kampa. Edwards v. Arizona, 451 U.S. 477 (1981).

The appellant declared his desire to give a statement to the

CID agents “now” and to consult with counsel “in the

morning.” This constituted at the very mest an ambiguous

reinvocation of his right against self-incrimination. Davis v.

United States, 512 U.S. 452 (1994). See also, Connecticut v.

Barrett, 479 U.S. 523 (1987) (police did not violate defendant’s

rights in continuing to interrogate him when he agreed to

‘The appellant also stated that Mr. Kreiz had knocked him to the ground

and struck him repeatedly in the face, that he had been able to roll over on

top of Mr. Kreiz, that Mr. Massaro had then joined in the melee kicking

appellant in the stomach and hitting him in the face, and that he finally

pulled out his pocket knife to defend himself against multiple assailants.

40a

extended oral discussion but expressed an unwillingness to

give a written statement until his attorney was present).

Nothing in the facts of this case supports the conclusion that

the appellant’s will was overborne; his ultimate decision to

make a statement claiming self-defense was “an essentially

free and unconstrained choice. .... " United States v.

Bubonics, 45 M.J. 93, 95 (1996). Accordingly, concluding as a

matter of law, as we do, that the military judge correctly

determined that the appellant’s statement was voluntary and

admissible, we reject the appellant’s sole assignment of error.

Ill. SUFFICIENCY OF THE EVIDENCE

Article 66(c), UCMJ, 10 U.S.C. § 866(c), imposes upon

this court the duty to determine both the legal and factual

sufficiency of each finding of guilty. The test for legal

sufficiency is “whether, considering the evidence in the light

most favorable to the prosecution, a reasonable factfinder

could have found all the essential elements beyond a

reasonable doubt.” United States v. Turner, 25 M.J. 324, 324

(C.M.A. 1987) (quoting Jackson v. Virginia, 443 U.S. 307, 319

(1979)). In fulfilling this duty, we have found it necessary to

scrutinize the finding as to the homicide of Thomas Kreiz

(Charge 1). The appellant was charged with, and convicted

by the court-martial panel of, premeditated murder (Article

118(1), UCMJ). The convening authority disapproved the

guilty finding of premeditated murder and substituted a

guilty finding of unpremeditated murder (Article 118(2),

UCMJ). He did so upon the advice of his staff judge advocate

who opined in the addendum to his Rule for Courts-Martial

1106 recommendation that such action should be

accomplished as a matter of clemency.® In order to affirm a

finding of guilty of unpremeditated murder, we must be

* It appears that the staff judge advocate’s recommendation for clemency

was in response to the appellant's testimony as a government witness in

the trial of his co-accused, Private Coleman.

4la

convinced, “drawing every reasonable inference from the

evidence of record in favor of the prosecution,”” that the

evidence establishes that: (1) Thomas Kreiz is dead, (2) his

death resulted from the appellant’s act of stabbing him with a

knife, (3) the killing was unlawful, and (4) the appellant, at

the time of the killing, had the intent to kill or inflict great

bodily harm. Manual for Courts-Martial, United States (1995

edition), Part IV, para. 43b(2) [hereinafter MCM, 1995]. We

have no difficuity concluding that the evidence establishes

each of these elements,!° but additional evidence of a possible

mitigating circumstance calls for further analysis.

The only direct evidence of the appellant’s involvement

in the death of Mr. Kreiz is that contained in his admission to

law enforcement authorities that he stabbed the decedent

while both were involved in a violent confrontation, with the

decedent beating him about the head and face, and that his

sole purpose was to deter the decedent from assaulting him.

The forensic evidence in the case, that is, the location of the

wounds on the decedent’s left side and back and the presence

of significant amounts of the decedent’s blood on the right

front portion of the appellant’s clothing, is entirely consistent

with the appellant’s version of the encounter asserting that

the decedent was sitting on top of the appellant at the time

that appellant stabbed him.

This court had occasion to address the legal distinction

between the offenses of murder and manslaughter in the

notorious My Lai massacre case, United States v. Calley, 46

C.M.R. 1131 (A.C.M.R. 1973), aff’d, 48 C.M.R. 19 (C.M.A.

1973). In that case, we held that, “Malice is still the proper

term for describing that state of mind which distinguishes

murder from manslaughter.” Jd. at 1175. We went on to

explain that,

® United States v. McGinty, 38 M.J. 131, 132 (C.M.A. 1993).

“The evidence of record supports the conclusion of the members that the

appellant is not entitled to the defense of self-defense. See Rule for Courts-

Martial 916(e)(1); MCM, 1995.

42a

{MJurder is the starting point for evaluating the

degree of criminality of an intended killing done

without justification or excuse. The degree may be

reduced to manslaughter given’ certain

circumstances. ... Fundamentally, unmitigated

intent to kill is the malice. This is why...

reduction of intended killing from murder to

voluntary manslaughter must be based on

objectively adequate provocation. ... Only after

some. evidence of adequate provocation is

presented is the Government faced with bearing

the burden of proof that the more serious offense of

murder was committed.

To be legally adequate, the provocation must be of

a quality which would ‘excite uncontrollable passion

in the mind of a reasonable man.’

Id. at 1176, citing para. 198, Manual for Courts-Martial,

United States, 1969. [Emphasis in text]. These declarations

of the black-letter law of homicide, although more than two

decades old, remain the controlling precedent on this issue.

See also MCM, 1995, Part IV, para. 44¢e(1).

As stated above, the only specific evidence of record

concerning the fatal stabbing of Mr. Kreiz is that contained in

the appellant's admissions to German and American law

enforcement authorities. In his statement, appellant

maintained that he stabbed the decedent while he and the

appellant were engaged in a violent physical altercation in

which Mr. Kreiz had the upper hand. He further asserted

that he did so because he was in fear of great harm. Some

evidence of adequate provocation having thus been

presented, the burden then fell upon the Government to

disprove the existence of the mitigating factor (action in the

heat of sudden passion). Calley, 46 C.M.R. at 1175.

Government counsel offered no evidence in rebuttal to the

appellant’s claims. Under the set of facts presented in this

48a

case, we find that although the appellant is not entitled to

exoneration based on his claim of self-defense because he

utilized excessive force (a knife) in resisting the force being

applied to his body (with fists), he was acting in the heat of

sudden passion caused by adequate provocation.'! Although

action in the heat of sudden passion caused by adequate

provocation does not excuse a homicide, it does preclude

conviction of murder. MCM, 1995, Part IV, para. 44¢(1)(a). As

a matter of law, a homicide committed in the heat of sudden

passion is manslaughter, not murder.'* See United States v.

Saulsberry, 43 M.J. 649 (Army Ct. Crim. App. 1995). A

claim of self-defense is not always an all-or-nothing

proposition. Clearly, under a factual scenario such as exists

here, manslaughter represents a middle ground between

intentional malicious killing (murder) and legally excusable

homicide (killing in self-defense). See Stevenson v. United

States, 162 U.S. 313, 322 (1896). We will correct the findings

accordingly.

IV. SENTENCE REDETERMINATION

As noted above, the findings of guilty as approved by

the convening authority included unpremeditated murder

and two specifications of aggravated assault (one with

intentional infliction of grievous bodily harm and one with a

Our conclusion is based, in part, on the following facts: (1) Mr. Kreiz was

aggressive at the taxi stand where he assaulted a German businessman

and continued to be aggressive as evidenced by his chasing the appellant

when the appellant retreated, (2) Mr. Kreiz was physically larger than the

appellant, (3) Mr. Kreiz was significantly intoxicated, and (4) Mr. Kreiz sus-

tained a total of nine wounds, seven of which were shallow and non-life

threatening.

The elements of voluntary manslaughter, Article 119(a), UCMJ, are iden-

tical to the elements of unpremeditated murder, the only distinction being

the presence of the mitigating factor of action in the heat of sudden pas-

sion. Compare MCM, 1995, paras. 48b(2) and 44b(1). For a discussion of

“sudden passion” and “adequate provocation” see MCM, 1995, para.

44c(1)(b).

dda

means or force likely to inflict grievous bodily harm). The

maximum imposable sentence to confinement for these

offenses is life imprisonment. The sentence, as approved by

the convening authority, includes confinement for sixty years.

Our determination that the evidence of record supports a

guilty finding of the lesser included offense of voluntary

manslaughter rather than the greater offense of

unpremeditated murder has the effect of reducing the

maximum confinement sentence to twenty-three years.

Considering this reduction in the maximum permissible

confinement by nearly two-thirds, we have determined that

we cannot reasonably ascertain the sentence that would have

resulted in the absence of this error. Rather, we must order a

sentence rehearing at the trial level. United States v. Sales,

22 M.J. 305, 307 n.3 (C.M.A. 1986).

V. DECISION

Accordingly, the court affirms only so much of the

finding of guilty of the Specification of Charge I as finds that

the appellant unlawfully killed Thomas Kreiz in the heat of

sudden passion caused by adequate provocation, in violation

of Article 11%a), UCMJ. The remaining findings of guilty are

affirmed. The sentence is set aside. A rehearing on the

sentence may be ordered by the same or a different

convening authority.

Judge GONZALES concurs.

EDWARDS, Senior Judge, concurring in part and dissenting

in part:

| agree with the majority's resolution of the appellant's

assignment of error. I disagree with their findings that the

appellant killed “in the heat of sudden passion.”

In my opinion, the appellant's claim of self-defense fell

short of its intended mark, and the approved finding of guilty

of unpremeditated murder is correct in both law and fact.

45a

Jackson v. Virginia, 443 U.S. 307 (1979); United States v.

Turner, 25 M.J. 824 (C.M.A. 1987); Art. 66(¢), UCMJ. I find

no legal or factual basis that gives rise to “the mitigation” of

acting in the heat of sudden passion. Simply put, in applying

the tests for legal and factual sufficiency, we all agree that

legally and factually all of the elements of unpremeditated

murder were met. We all agree that the appellant was not

acting in self-defense. We part company in finding

“mitigation” concerning the killing. I would affirm all the

findings of guilty and the sentence as approved by the

convening authority.

FOR THE COURT:

a /s/ John T. Rucker.

JOHN T. RUCKER

Lieutenant Colonel, JA

Clerk of Court

47a

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

UNITED STATES, Appellee

Martez L. HENDERSON, (876-80-4369), Appellant

USCA Dkt. No. 98-0847

Crim. App. Dkt. No. 9501435

JUDGMENT

This cause came before the Court on appeal from the

United States Army Court of Criminal Appeals and was

argued by counsel on May 12, 1999. On consideration thereof,

it is by the Court, this 27" day of September, 1999,

ORDERED and ADJUDGED:

That the decision of the United States Army Court of

Criminal Appeals is affirmed in accordance with the opinion

filed herein this date.

For the Court,

/s/ Thomas F. Granahan

Clerk of the Court

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.