United States v. Griffin

50 M.J. 278, 1999 CAAF LEXIS 722, 1999 WL 303967
CourtCourt of Appeals for the Armed Forces
DecidedMay 12, 1999
Docket98-0056/A
StatusPublished
Cited by39 cases

This text of 50 M.J. 278 (United States v. Griffin) 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. Griffin, 50 M.J. 278, 1999 CAAF LEXIS 722, 1999 WL 303967 (Ark. 1999).

Opinions

[279]*279Judge GIERKE

delivered the opinion of the Court.

A military judge sitting as a general court-martial convicted appellant, contrary to his pleas, of two specifications of making a false official statement; taking indecent liberties; and communicating a threat, in violation of Articles 107 and 134, Uniform Code of Military Justice, 10 USC §§ 907 and 934, respectively. The adjudged and approved sentence provides for a bad-conduct discharge, confinement for 10 months, and reduction to the lowest enlisted grade. The convening authority waived the automatic forfeitures for 6 months from the date of his action. The Court of Criminal Appeals affirmed the findings and sentence in an unpublished opinion.1

This Court granted review of the following issues:

I
WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY DENYING THE ADMISSION OP THE DEFENSE EXPERT TESTIMONY, AND, IN DOING SO, PREVENTED APPELLANT PROM PUTTING ON A DEFENSE.
II
WHETHER THE APPLICATION OF ARTICLES 57(a) AND 58b, UCMJ, VIOLATES THE EX POST FACTO CLAUSE OP THE CONSTITUTION WITH RESPECT TO APPELLANT.

For the reasons set out below, we resolve Issue I by holding that the military judge did not abuse his discretion. We resolved Issue II in appellant’s favor in United States v. Gorski 47 MJ 370 (1997).

Factual Background

The court below summarized the events preceding appellant’s court-martial as follows:

In February of 1991, Wanda Griffin, wife of the appellant, heard their two-year-old daughter, F., and her husband laughing in the bathroom of their home. Wanda went in to investigate and discovered her husband and F in the bathtub together. Wanda saw F playing with appellant’s penis which was erect. Wanda grabbed F out of the bathtub, and Wanda and F then moved out of the home into a shelter. Appellant told his wife that if she took F he would kill her. The conduct in the bathtub ultimately led to an [Air Force Office of Special Investigations] investigation, in the course of which the accused made a statement denying that his daughter touched his genitalia. Subsequently, appellant’s commander advised him that the allegations had been unsubstantiated and the case was closed. Sometime later the wife and daughter moved back to reside with appellant.
Several years later, in 1994, appellant received permanent change of station orders from Whiteman Air Force Base to Minot Air Force Base. He was advised that upon changing stations security clearances are normally updated. In August of 1995, in the course of an investigation for his update, appellant was interviewed by Mr. Schmitt, an investigator for the Defense Investigative Service (DIS) .... After making a statement denying any misconduct took place in February 1991 when he was bathing his daughter, appellant agreed to take a polygraph.
At 0900 hours on 19 September 1995 appellant met with the polygrapher, Special Agent Snyder, also from DIS, who advised appellant of his rights as required by [Department of Defense] directive and appellant declined counsel. By 1045 hours of the same day appellant had signed a statement admitting that his previous statements were not completely correct and that his daughter had touched his erect penis in the bathroom on the occasion witnessed by his wife.

Unpub. op. at 2-3.

Appellant’s two denials of misconduct were the basis for two charges of making false [280]*280official statements (Charge I and its specifications). His conduct with his daughter in the bathtub in February of 1991 was the basis of two charges: committing indecent acts with his daughter (specification 1 of Charge II); and taking indecent liberties with his daughter (specification 2 of Charge II). His alleged threat to kill his wife if she took his daughter away was the basis of a charge of communicating a threat (specification 3 of Charge II).

At his court-martial, appellant made a timely motion to suppress his statement to Special Agent (SA) Snyder on the grounds that it was coerced and false. In response, the Government produced the testimony of SA Snyder. He testified that he interviewed appellant, using “a rapport based interview technique that calls for the assumption that the person tells the truth to the person that he likes or respects.” The entire interview, from initial rights’ advisement until execution of the signed written statement, took about an hour and 45 minutes. SA Snyder described the interview technique as follows:

When he first comes in — it begins when I greet them I identify myself, show them the badge and credentials, shake hands, and then start talking to them at that time about their background, where they’re from, what they like, what they don’t like, in an attempt to develop rapport from the very beginning.

SA Snyder testified that he did not remember if he told appellant anything about himself, although it was possible. Only he and appellant were in the interview room. SA Snyder testified that he was not sure if he had both of appellant’s previous statements. He thought that he only knew about the statement that appellant made to SA Schmitt denying the allegations.

SA Snyder testified that he looks for nonverbal cues during an interview, such as lack of eye contact. If he sees clusters of nonverbal cues that indicate that the subject is not being truthful, he tries “to get them to talk and open up more.”

SA Snyder testified that he tells the subjects that the adjudicator, and not he, makes the decision whether to grant a security clearance. He testified that he works for the Department of Defense, not the military services, and that the subject is advised in the Privacy Act statement that the results of the interview can be disclosed to the military department concerned.

SA Snyder testified that, at the end of his interview of appellant, he and appellant discussed the cryptic notes he had taken, and he asked appellant if he would provide a handwritten statement. SA Snyder reviewed his notes and told appellant what they reflected that he had said. After telling appellant “[t]he areas that we needed to cover,” he asked appellant “if there was anything else that he wanted to” include in the statement, and appellant added some words “on his own.”

When the interview ended, appellant did not “appear to be scared” of SA Snyder. SA Snyder did not remember appellant getting upset at any time during the interview. SA Snyder testified that he made no threats or promises during the interview.

Appellant described the interview differently. He testified that the interview began “very calm, very caring.” SA Snyder asked him if he had allowed his daughter to touch his genitals, and appellant calmly answered, “no.” SA Snyder asked another similar question and appellant again responded, “no.” Appellant testified that SA Snyder then said, “I’m getting the impression you’re not being completely truthful.” SA Snyder asked, “have you ever said with your daughter on your lap, she is making me horny?” Appellant testified that he was caught off guard and was disgusted, causing him to hesitate.

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Cite This Page — Counsel Stack

Bluebook (online)
50 M.J. 278, 1999 CAAF LEXIS 722, 1999 WL 303967, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-griffin-armfor-1999.