United States v. Bresnahan

62 M.J. 137, 2005 CAAF LEXIS 1105, 2005 WL 2452550
CourtCourt of Appeals for the Armed Forces
DecidedSeptember 30, 2005
Docket04-0559/AR
StatusPublished
Cited by52 cases

This text of 62 M.J. 137 (United States v. Bresnahan) is published on Counsel Stack Legal Research, covering Court of Appeals for the Armed Forces primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Bresnahan, 62 M.J. 137, 2005 CAAF LEXIS 1105, 2005 WL 2452550 (Ark. 2005).

Opinions

Chief Judge GIERKE

delivered the opinion of the Court.

INTRODUCTION

This tragedy began on the morning that a three-month-old baby, Austin, was shaken so severely that the injuries he sustained led to his death. The tragedy continued during the early morning hours after Austin died. His family was further torn apart by his father’s confession, during questioning by a civilian police detective, that he may have shaken his baby to try to stop his crying.1 We granted review to determine whether the admission of Appellant’s confession at trial was a violation of his due process rights.2

[139]*139At trial, the defense counsel requested expert assistance to determine if Appellant’s confession was unreliable because of the detective’s interview techniques. The military judge denied the request and we granted review to determine if that ruling was erroneous.3 Also, at trial, the military judge admitted evidence of prior injuries Austin sustained before his death. The United States Army Court of Criminal Appeals concluded the military judge erred in admitting the uncharged misconduct evidence, but that the error was harmless.4 We granted review to analyze the Army Court’s holding.5 Finally, the military judge allowed the trial counsel to cross-examine a defense witness about two scientific studies that concluded male caregivers are more likely the perpetrators in shaken baby cases. Appellant challenges the conclusions of those studies as inadmissible “profile” evidence, and we granted review.6

We hold that the military judge committed no error when he admitted Appellant’s confession. Under the totality of the circumstances, Appellant’s confession was voluntary. We also conclude that the military judge did not abuse his discretion in denying the defense request for expert assistance because the defense counsel failed to demonstrate necessity for that expert’s assistance. Furthermore, we agree with the lower court that the military judge’s error in admitting the uncharged misconduct evidence was harmless. Finally, the military judge did not err in admitting the “profile” evidence because the defense counsel opened the door to this type of rebuttal. Thus, we affirm the decision of the Army Court of Criminal Appeals.

BACKGROUND

The fateful morning

On the morning of November 6, 2000, Appellant and his wife, Kristen, were awakened by the sound of their baby crying. Kristen got Austin from his crib and brought him back to their bedroom to feed him. After Kristen finished feeding him, Appellant returned Austin to his crib, laid him on his stomach, and began patting his back. At this point, Appellant noticed that the baby was not breathing. He told his wife to call 911 and he administered CPR until the paramedics arrived.

Austin was rushed to the hospital, where Dr. Mark Storm, an emergency room doctor, tried to resuscitate the baby. Dr. Storm did not see any outward signs of trauma, but because he could not get any responses from the baby, he thought Austin might have been in a coma. Dr. Storm ordered a Computed Tomography (CT) scan on the baby. The CT scan revealed that the baby’s brain had shifted, several ventricles had collapsed, and his brain was bleeding. Dr. Storm believed the injury was caused by someone having shaken Austin.

Detective Malek-Madani arrives at the hospital

Detective Leslie Malek-Madani and another Colorado Springs Police Department officer met with Appellant and his wife in a quiet room outside the intensive care unit. Appel[140]*140lant and Kristen were questioned separately and both cooperated with the inquiry. The police officers did not give them Miranda7 rights warnings at that time.

During Detective Malek-Madani’s interview with Appellant, she told Appellant that Austin’s brain injuries were so severe that he might not survive. She then asked Appellant if anything else happened that morning that might explain Austin’s injuries. Appellant responded two or three times that nothing happened to Austin except what he already told the detective — that he laid Austin down and the baby began choking on his formula.

Detective Malek-Madani responded that Appellant’s recollection of the events of the morning were “impossible” and pressed for further information. Detective Malek-Madani then asked Appellant explicitly if Austin had ever been shaken. Appellant initially stated that he had not. But Appellant then said that in attempting to soothe the baby to make him stop crying, he started to “bounce him up and down” and that it was “possible that Austin’s head had bobbed a few times while he was trying to calm him down.”

After this admission, Detective Malek-Madani pressed Appellant further. She told him that to help Austin, the doctors needed to know what had happened. Appellant eventually stated that he “may have shaken Austin a couple of times.”

The interview continues at the police station

Detective Malek-Madani asked Appellant to accompany her to the police station for further questioning. Appellant agreed. Shortly after arriving at the police station, another police officer contacted Detective Malek-Madani and told her that Sergeant (Sgt) Hogan, her supervisor, wanted Appellant returned to the hospital immediately. Dr. Kenneth Gheen, the medical director of the pediatric intensive care unit at the hospital, was concerned that he had not had the chance to talk to Austin’s parents and explain to them the seriousness of Austin’s condition. Rather than returning Appellant to the hospital at that time, Detective Malek-Madani contacted Sgt Hogan and told him that Appellant “had admitted to having shaken the baby and that [she] was hoping to capture that admission on videotape.” Sgt Hogan responded that Dr. Gheen wanted Appellant back at the hospital. But within five minutes, Sgt Hogan contacted Detective Malek-Madani again and advised her to continue the interview and that he would talk to the doctor again.

The interview continued at the police station. Detective Malek-Madani prodded Appellant for further admissions and a virtual tug-of-war ensued. The detective attempted to get Appellant to admit to shaking the baby, while Appellant tried to maintain his basic concession that he was only bouncing the baby and that he did not think that he had done anything to cause serious injury to Austin. For example, at one point, Appellant advised Detective Malek-Madani that he may have killed his son. But, within a few minutes, Appellant changed his story by saying that he thought Austin was choking on formula and he was not aware that Austin stopped breathing because Appellant was shaking him too hard. About fifteen minutes later, Appellant again admitted that he may have shaken Austin but that he thought he was only bouncing him. After approximately forty-five minutes of questioning, Detective Malek-Madani returned Appellant to the hospital.

The return to the hospital

According to the testimony of Dr. Gheen, when Appellant returned to the hospital, he told Dr. Gheen that he shook the child and laid him down, and that Austin vomited shortly thereafter. Dr.

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Cite This Page — Counsel Stack

Bluebook (online)
62 M.J. 137, 2005 CAAF LEXIS 1105, 2005 WL 2452550, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-bresnahan-armfor-2005.