United States v. Mahler

49 M.J. 558, 1998 CCA LEXIS 479, 1998 WL 917332
CourtNavy-Marine Corps Court of Criminal Appeals
DecidedDecember 17, 1998
DocketNMCM 97 00558
StatusPublished
Cited by4 cases

This text of 49 M.J. 558 (United States v. Mahler) is published on Counsel Stack Legal Research, covering Navy-Marine Corps Court of Criminal Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Mahler, 49 M.J. 558, 1998 CCA LEXIS 479, 1998 WL 917332 (N.M. 1998).

Opinion

ROLPH, Judge:

A general court-martial composed of officer and enlisted members convicted the appellant, contrary to Ms pleas, of assault consummated by a battery upon Kade MaMer, Ms 17-day-old son by burning him on the back with a hot object, and of murdering Ms son by engaging in inherently dangerous acts (forcefully shaking and strikmg Ms son with Ms hands), in violation of Articles 128 and [560]*560118(3), Uniform Code of Military Justice, 10 U.S.C. §§ 928 and 918(3)(1998)[hereinafter UCMJ].1 The members sentenced the appellant to life in prison, a dishonorable discharge, total forfeitures of all pay and' allowances, and reduction to E-l. The convening authority approved the sentence as adjudged.

We have thoroughly and carefully reviewed the record of trial, the appellant’s five assignments of error,2 and the briefs submitted by both defense and Government appellate counsel. Except as discussed below, we conclude that the findings and sentence in this case are correct in law and fact, and that no error materially prejudicial to the substantial rights of the appellant was committed. Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a) and 866(c).

Facts

This tragic ease involved two alleged acts of severe - child abuse by the appellant, the latter of which ultimately resulted in the death of his newborn son, Kade Mahler. At approximately 1400 on 14 July 1995, the appellant and his wife arrived at the Acute Care Unit of the Naval Hospital at Camp Pendleton, California, with their 17-day-old infant son, stating that he was having difficulty breathing, and that, he had been “burned on his back by spilled coffee.” Immediately recognizing that the infant was in acute distress, the nurse on duty rushed Kade to the emergency room where resuscitative efforts were commenced. Ultimately, Kade was transferred to the Pediatric Intensive Care Unit of the Naval Medical Center (Balboa), San Diego, CA, where he was eventually declared “brain dead” and, on 22 July 1995, removed from life-support systems. The San Diego Medical Examiner’s Office conducted an autopsy on Kade and determined the cause of death to be “shaken-impacted infant syndrome.” Record at 764.

Medical personnel at Naval Hospital, Camp Pendleton, California, almost immediately suspected some form of child abuse because of what appeared to be a circular thermal burn on Kade’s back, consistent in size and shape with the tip of a lighted cigar. Record at 455-456. In attempting to obtain a history on Kade and determine what might have caused his condition upon admission (his burn and internal distress), a family practice resident, Dr. Laura Dyer (LT, MC, USN), interviewed appellant and his wife in the waiting room. The appellant stated to Dr. Dyer that it had been “his turn” to get up with the baby and that he did so at 0330 that morning when Kade began crying. He claimed that Kade began choking and stopped breathing while nursing on his bottle. In an effort to get his son to breathe again, the appellant stated that he hit Kade on the back and rubbed his neck. Id. at 474. According to appellant, Kade coughed, began to breathe again, drank the rest of his bottle, and went back to sleep. Id. The appellant told Dr. Dyer that if they saw bruising on Kade’s neck, it was from him “rubbing the neck to try to restore breathing.” Id. He claimed the baby slept well until the next feeding sometime around 0900 when “milk [561]*561just ran out of his mouth.” Id. Despite this behavior, neither parent made any effort to get Kade to the hospital. They claimed they thought Kade was simply “tired” from having been up crying earlier. When specifically asked about the source of the bum on Kade’s back, the appellant claimed that it had been accidentally inflicted when “clumbsy old dad spilled coffee on the baby” sometime around 0430 that morning. Id. at 475. When one of the staff pediatricians, Dr. Peggy Shaffer (LCDR, MC, USN), later went to the waiting room to update appellant and his wife concerning their son’s condition, the source of the bum came up again. The appellant reiterated his assertion that the burn was the result of spilled coffee. When Dr. Shaffer told him that the shape of the bum was inconsistent with a hot liquid bum because of its distinctly circular characteristic, the appellant spontaneously stated, “Oh, like a cigar bum,” or “I’ve seen a cigar burn.” Id. at 514.

In a statement provided later that evening to agents of the Naval Criminal Investigative Service (NCIS), appellant claimed that he had attempted to “vigorously” resuscitate Kade after he stopped breathing around 0330, and that he had actually performed mouth-to-mouth resuscitation. In his signed and written statement, the appellant said:

[Kade] got upset and wasn’t breathing right[;] he was having long gasps. I lost my cool. I shook him vigorously for probably 5-10 seconds while he was on the hide-away bed. I saw Kade’s head bounce off the mattress for about one dozen times. He fussed a little bit and he kind of moaned. This is when he stopped breathing all together. I panicked. I started to try to revive him. I was hitting the back of his head and his cheeks with my open hand.

Prosecution Exhibit 3, at 2-3.

Appellant claims that Kade eventually started breathing again, and drank some from his bottle. Id. at 3. He never woke his wife, who was asleep in their room, and he never sought any type of medical assistance at this time. At approximately 1200, Kade stopped breathing again. Appellant and his wife immersed him in cold water to get him to breathe, and appellant once again administered mouth-to-mouth resuscitation. Id. Finally, at approximately 1400, some 11 hours after Kade first displayed breathing problems, appellant and his wife brought their son to the emergency room at Camp Pendleton.

The Government’s theory was that the appellant had intentionally burned Kade with a cigar when he wouldn’t stop crying, and then, in a fit of anger, violently shook his newborn son causing brain damage and, ultimately, brain death. According to the Government, Kade’s death was a homicide. The defense theory was that Kade had been accidentally burned by spilled coffee or some unknown chemical or hot object, and that his ultimate death was not murder. Instead, they argued that his death resulted naturally from a rare congenital heart defect known as “DiGeorge’s Sequence.” The defense attempted to explain the accused’s statement to NCIS by asserting that the phrase, “I lost my cool,” did not indicate anger on the part of the appellant, but rather panic over his son’s inability to breathe.

Ineffective Assistance of Counsel

In appellant’s first assignment of error, he alleges that his civilian defense counsel, Mr. Edward Torrence, was ineffective because he failed to vigorously investigate, and defend against, the allegation that appellant had intentionally burned his infant son with a cigar or similar hot object. Appellant’s Brief at 4.

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Related

United States v. Morris
54 M.J. 898 (Navy-Marine Corps Court of Criminal Appeals, 2001)
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52 M.J. 539 (Navy-Marine Corps Court of Criminal Appeals, 1999)
United States v. Lowe
50 M.J. 654 (Navy-Marine Corps Court of Criminal Appeals, 1999)
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50 M.J. 575 (Navy-Marine Corps Court of Criminal Appeals, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
49 M.J. 558, 1998 CCA LEXIS 479, 1998 WL 917332, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-mahler-nmcca-1998.