IN THE CASE OF
UNITED
STATES, Appellee
v.
No.
03-0691
Crim. App.
No.
9800849
Argued
Decided
EFFRON,
J., delivered the opinion of the Court, in which CRAWFORD, C.J.,
GIERKE, BAKER,
and ERDMANN, JJ., joined.
Counsel
For Appellant:
Captain
Rolando R. Sanchez, USMC (argued); Lieutenant Commander Robert
D. Evans
Jr., JAGC, USNR, and Lieutenant Commander Eric J. McDonald,
JAGC,
USN.
For Appellee: Lieutenant Timothy E. Curley, JAGC,
USNR (argued); Lieutenant Frank L. Gatto,
JAGC, USNR (on brief); Colonel M. E. Finnie, USMC.
Military Judge:
W. P. Hollerich
this
opinion is subject to editorial correction before final publication.
Judge
EFFRON delivered the opinion of the Court.
At
a general court-martial composed of officer and enlisted members,
Appellant was
convicted, contrary to his pleas, of maiming and assault with intent to
commit
grievous bodily harm, in violation of Articles 124 and 128, Uniform
Code of
Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 924 and 928 (2000). He was sentenced to a bad-conduct discharge,
confinement for 12 months, forfeiture of all pay and allowances, and
reduction
to pay grade E-1. The convening
authority approved the sentence as adjudged, but deferred and suspended
both
the adjudged and automatic forfeitures under specified conditions. The Navy-Marine Corps Court of Criminal
Appeals determined that the findings were multiplicious,
dismissed the assault conviction, approved the conviction for maiming,
and
approved the sentence.
On
Appellant’s petition, we granted review of the following issues:
I. WHETHER THE COURT OF CRIMINAL APPEALS
ERRED IN AFFIRMING THE COURT-MARTIAL’S DECISION ADMITTING A STATEMENT
DERIVED
FROM OTHER STATEMENTS COVERED BY A GRANT OF IMMUNITY.
II.
WHETHER THE DECISION TO PROSECUTE WAS
BASED ON STATEMENTS APPELLANT MADE UNDER A GRANT OF IMMUNITY.
For
the reasons discussed below, we affirm.
At
the time of the events at issue in this
appeal, Appellant was a staff sergeant (SSgt) in the Marine Corps,
stationed in
A. THE INITIAL INJURY AND STATE COURT
PROCEEDINGS
In
late February and early March, 1996,
Appellant’s wife and CJ traveled to
The
Naval Criminal Investigative Service
(NCIS) opened an investigation into the incident. Based
upon the initial medical examination,
NCIS viewed Appellant’s wife as the source of the injury, and did not
maintain
an active investigation of Appellant.
As
a result of this incident, the Hawaii
Department of Human Services placed CJ in foster care and initiated
civil
proceedings in Family Court under
The
April 8 order also stated that “[t]he
protections of [Haw. Rev. Stat.] § 587-42(a) are invoked on behalf of
Mr. and
Mrs. Allen.” Under § 587-42(a),
[a]ny testimony
by or other evidence produced by a party in a child protective
proceeding under
this chapter, which would otherwise be unavailable, may be ordered by
the court
to be inadmissible as evidence in any other state civil or criminal
action or
proceeding, if the court deems such an order to be in the best
interests of the
child.
Appellant
subsequently regained custody of
CJ. Following a hearing on May 7, the
Family Court issued a further order, attaching a service plan prepared
by the
Department of Human Services and agreed to by Appellant and his wife. The service plan provided that Appellant’s
wife would participate in “individual/family therapy with Gerry Wong,”
that
Appellant would provide for the daily care of CJ, and that Appellant
would
“attend therapy with Gerry Wong, M.A. when requested by Ms. Wong.” The order stated that “all prior consistent
orders shall remain in full force and effect until further order,” and
directed
the parties to return to court for a review hearing on
B. THE SECOND
INJURY
On
August 8, CJ was hospitalized with
serious injuries, including a fractured skull and swelling of the brain. Appellant explained to medical personnel that
on the morning of August 8, he had been carrying CJ in his arms when CJ
arched
his back and fell onto the concrete floor.
At that time, CJ was eight months old, and Appellant was the
sole
custodian. The most recent visit of
Appellant’s wife to the family had been on August 7.
While
both Appellant and his wife were at
the hospital, they were approached by an NCIS agent.
After consulting with an attorney, they told
the agent that they would not answer her questions, but they would
permit the
agent to monitor their conversations with the doctors and social
workers at the
hospital.
The
hospital convened a Suspected Child
Abuse and Neglect meeting on August 14.
Appellant’s supervisor, Colonel Charles Jackson, and NCIS
Special Agent
(SA) Bruce Warshawsky, attended the
meeting. The medical personnel who treated
CJ stated
that the injuries were likely the result of non-accidental trauma, and
were not
consistent with Appellant’s explanation that CJ had fallen from his
arms by
accident. Appellant and his wife then
joined
the meeting, and they were advised that CJ’s injuries were consistent
with
Shaken Baby Syndrome.
Following
the meeting, Colonel Jackson had
a further conversation with Appellant, and told him that the medical
personnel
suspected that he had injured CJ by shaking him in an abusive manner. As the discussion came to an end, Colonel
Jackson said to Appellant, “If your son dies, I believe they are going
to
prosecute you for murder.” According to
Colonel Jackson, Appellant was visibly upset as a result of this
conversation.
C. THE
INCRIMINATING STATEMENTS
On
the evening of August 15, Appellant and
his wife attended a family counseling session with Ms. Wong pursuant to
the
service plan attached to the Family Court’s May 7 order.
Appellant told Ms. Wong of the following
sequence of events concerning CJ. First,
he placed CJ in bed with him, and fell asleep.
While sleeping, he dreamed that CJ had been taken from him. When he awoke, he forgot that CJ was in the
same bed. Appellant went to check CJ’s
crib, discovered that the crib was empty, and panicked.
Then he heard CJ cry. Appellant
returned to the bed, grabbed CJ,
and shook him.
Appellant’s
wife became upset upon hearing
Appellant’s narrative. Ms. Wong phoned a
friend of Appellant’s wife, Carol Ward, who came to Ms. Wong’s office
and
eventually drove Appellant’s wife to the Ward residence.
Before leaving, Appellant’s wife advised Ms.
Wong to call Appellant’s friend, SSgt Samuel Walker, to assist
Appellant.
At
Ms. Wong’s request, SSgt Walker came to
the office. Appellant, who spoke
privately to SSgt Walker, told SSgt Walker that he had caused CJ’s
injuries,
and demonstrated how he had shaken CJ.
Appellant told SSgt Walker that he wanted to turn himself in to
NCIS. SSgt Walker asked Appellant if he
would
prefer to wait until the following morning before turning himself in to
NCIS. Appellant indicated that he wanted
to surrender himself that night.
Appellant and SSgt Walker then returned to Ms. Wong’s office.
At
that point, Ms. Wong contacted an
official of the Hawaii Child Protective Services, Ms. Kathleen Reeber, and told her that Appellant had
confessed. Ms. Reeber,
who
spoke with Appellant by telephone, advised him that anything he said to
her
would not be treated as confidential.
She also suggested that he might wish to consult with an
attorney before
speaking with NCIS. While Appellant was
on the phone with Ms. Reeber, SSgt Walker
pressed the
mute button and told him that he should not speak to a Child Protective
Services official until he obtained “some more advice.”
Appellant rejected SSgt Walker’s suggestion,
stating that “everything [was] all right.”
In the course of his subsequent conversation with Ms. Reeber, Appellant made a number of incriminating
statements.
While
Appellant was speaking to Ms. Reeber, SSgt
Walker attempted to contact his chain of
command. SSgt Walker reached his
commander’s wife, who called Appellant’s commander, Colonel Jackson. Colonel Jackson, who was concerned that
Appellant might harm himself, proceeded to
Ms. Wong’s
office. SSgt Walker intercepted Colonel
Jackson before he met with Appellant, and informed him that Appellant
wanted to
surrender to NCIS. Colonel Jackson then
overheard a portion of Appellant’s conversation with Ms. Wong. After walking into Ms. Wong’s office, Colonel
Jackson observed that Appellant appeared to be “shell-shocked” and
“emotional.” Appellant told Colonel
Jackson that it was all part of a bad dream.
When Colonel Jackson commented to Appellant that he “was going
to go
freely and turn himself in or I was going to call the [Military
Police],”
Appellant responded, “[Y]ou don’t have to
do that, I
know I did this, and that I am not trying to deny it.”
Appellant
told Colonel Jackson that he
wanted to speak with his wife before going to NCIS.
Colonel Jackson, along with SSgt Walker,
drove Appellant to meet with his wife.
During the drive, Appellant repeated the incriminating remarks
that he
had made earlier in the evening to Ms. Wong, Ms. Reeber,
and SSgt Walker. Soon after they
arrived, a chaplain also arrived, along with the wife of SSgt Walker’s
commanding officer. Appellant repeated
his incriminating remarks to them, and demonstrated how he had shaken
CJ.
Eventually,
Colonel Jackson and SSgt Walker
drove Appellant to the NCIS office, where Colonel Jackson told SA Warshawsky that Appellant wanted to confess. SA Warshawsky
took
Appellant into an interview room and administered a cleansing warning,
which
informed Appellant that “any prior illegal admissions or other
improperly
obtained evidence which incriminated [him could not] be used against
[him] in a
trial by court-martial.” SA Warshawsky also advised Appellant of his
self-incrimination
rights under Article 31(b), UCMJ, 10 U.S.C. § 831(b)(2000),
and Miranda v. Arizona, 384 U.S. 436 (1966).
See Military Rule of Evidence 305
[hereinafter M.R.E.]. Appellant
indicated that he understood both the cleansing warning and his right
against
self-incrimination, and that he still desired to speak to NCIS. He then made a detailed incriminating
statement.
D. DEVELOPMENTS
AT TRIAL
At
a pretrial hearing, Appellant moved to suppress the multiple statements
that he
made on the evening of
II.
DISCUSSION
A.
IMMUNITY
The
Government may not compel a person to make an incriminating statement. U.S. Const. amend.
V; Article 31, UCMJ; M.R.E. 301. Through a grant of immunity coextensive with
the privilege against self-incrimination, the Government may require a
person
to make a statement that would otherwise be incriminating.
Kastigar v.
The
minimum grant of immunity adequate to
overcome the privilege is that which under [Rule for Courts-Martial]
704 or
other proper authority provides that neither the testimony of the
witness nor
any evidence obtained from that testimony may be used against the
witness at
any subsequent trial other than in a prosecution for perjury, false
swearing,
the making of a false official statement, or failure to comply with an
order to
testify after the military judge has ruled that the privilege may not
be
asserted by reason of immunity.
If
a person provides information under a
grant of immunity, the Government in a subsequent criminal prosecution
must
affirmatively demonstrate “that the evidence it proposes to use is
derived from
a legitimate source wholly independent of the compelled testimony.” Kastigar,
406
The
underlying principle furthered by a grant of testimonial immunity is
that the
witness and the Government should be left “in substantially the same
position
as if the witness had claimed [the] privilege [against
self-incrimination].”
The
Government may not rely upon or use immunized testimony in making the
decision
to prosecute. See
As
noted in Part I, the military judge in
the present case determined that Appellant’s statements to Ms. Wong
were made
pursuant to a grant of immunity under state law. See
Haw. Rev. Stat.
§ 587-42(a). The parties in this
appeal have not identified an opinion by the
B. THE MOTION
TO SUPPRESS
Under
Kastigar,
the Government must demonstrate that Appellant’s incriminating
statement to
NCIS was “derived from a legitimate source wholly independent of” his
earlier inculpatory statement to Ms. Wong. 406
The
idea of confessing to NCIS on August 15
originated with Appellant, and he steadfastly resisted the advice of
others who
urged him to defer making a statement to NCIS.
SSgt Walker, who heard Appellant’s confession shortly after he
arrived
at Ms. Wong’s office, asked Appellant if he would not rather wait to
speak with
NCIS until the following morning, but Appellant insisted that he do so
that
evening. Ms. Reeber,
the Child Protective Services official who spoke to Appellant that
night, told
Appellant that he should consult with his attorney before speaking to
NCIS. Appellant did not take her advice. SSgt Walker, upon learning that Appellant was
speaking with a Child Protective Services official, interrupted
Appellant’s
conversation to advise him to remain silent.
Again, he rejected that advice.
The
record further demonstrates that Colonel Jackson, who came to Ms.
Wong’s office
to protect Appellant from harming himself, was told upon arrival by
Appellant’s
friend, SSgt Walker, that Appellant wanted to make a statement to NCIS. Appellant expressed no reluctance to Colonel
Jackson about turning himself in to NCIS.
When Colonel Jackson remarked that he would call the police if
Appellant
did not go freely, Appellant said “[Y]ou
don’t have
to do that, I know I did this, and that I am not trying to deny it.” Under other circumstances, a statement
similar to Colonel Jackson’s remarks might be problematic in terms of
assessing
the derivative nature of any subsequent statement.
In the present case, however, there is no
evidence of record that Colonel Jackson’s remarks prompted Appellant to
make a
statement that he otherwise did not want to make or that it was used to
overcome any reluctance manifested by Appellant. On
the contrary, Appellant repeatedly
insisted to both friends and officials that he wanted to make a
statement to
NCIS that night, even when they cautioned him about doing so.
Against
this backdrop, SA Warshawsky administered
a cleansing
warning to Appellant, informing him that “any prior illegal admissions
or other
improperly obtained evidence which incriminated [him could not] be used
against
[him] in a trial by court-martial.” SA Warshawsky also advised Appellant of his Article
31(b) and Miranda
rights. Appellant indicated that he
understood these rights and that he desired to waive them.
Only at that point did SA Warshawsky
allow Appellant to make a statement.
In
summary, the evidence shows that Appellant wanted to make a statement
to NCIS, that he was determined to confess
that evening, that
he did not waver from that course, and that his confession to NCIS was
knowingly and voluntarily made. His
decision to confess did not result from Government exploitation of his
immunized testimony. Under these
circumstances, the Government has met its burden of affirmatively
demonstrating
that his statement was derived from a legitimate source wholly
independent of
the compelled testimony.
C. THE
DECISION TO PROSECUTE
Although
Appellant moved to suppress the testimonial use of his confession to
NCIS, he
did not move to dismiss the charges or otherwise allege at trial that
the
Government improperly used immunized testimony in the course of making
the
decision to prosecute. Under Rule for
Courts-Martial 907(b)(2)(D)(ii), an
allegation of
improper use of immunized testimony in the prosecutorial decision
constitutes a
waivable basis for a motion to dismiss. In that context, we conduct a plain error
review; that is, we assess (1) whether there was an error; (2) if so,
whether
the error was plain or obvious; and (3) if the error was plain or
obvious
error, whether it was prejudicial. See
Although
the investigation initially focused on Ms. Allen because of the
estimated time
of the abuse that resulted in CJ’s hospitalization on
III.
CONCLUSION
The
decision of the United States
Navy-Marine Corps Court of Criminal Appeals is affirmed.