United States v. Murray

45 M.J. 554, 1996 CCA LEXIS 379, 1996 WL 727154
CourtNavy-Marine Corps Court of Criminal Appeals
DecidedDecember 16, 1996
DocketNMCM 96 00115
StatusPublished
Cited by3 cases

This text of 45 M.J. 554 (United States v. Murray) 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. Murray, 45 M.J. 554, 1996 CCA LEXIS 379, 1996 WL 727154 (N.M. 1996).

Opinion

McLAUGHLIN, Senior Judge:

The appellant was tried and convicted, pursuant to conditional pleas of guilty under Rule for Courts-Martial 910(a)(2), Manual for Courts-Martial, United States (1995 ed.)[MCM]. He was found guilty of two specifications of assault on a child under the age of 16 years with a force likely to produce death or grievous bodily harm in violation of Article 134, Uniform Code of Military Justice [UCMJ], 10 U.S.C. § 934 (1994). The appellant admitted to injuring the child through culpable negligence. Record at 72. The victim was approximately 1 year old and suffered serious head, rib, and limb injuries. The victim was a foster child in the care and custody of the appellant and his wife.

The appellant has assigned a single error in the case.1 2We heard oral argument on 3 October 1996. We find that the military judge did not err in denying the appellant’s motion to suppress his pretrial confession. We are guided in our review by the recent ease of United States v. Bubonics, 45 M.J. 93 (C.M.A.1996). In reaching our decision we have reviewed the military judge’s decision de novo and assessed “the totality of all the surrounding circumstances — both the characteristics of the accused and the details of the interrogation.” Bubonics, 45 M.J.-, slip [555]*555op. at 4 (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973)). In our analysis, we focus on the defense proposition that the appellant confessed either because he and/or his wife were threatened with jail, or because the appellant was threatened with losing his unborn child to state authorities, or because the appellant was promised counseling instead of a court-martial.

We note that the appellant was a 20-year-old high school graduate. He had been on active duty for over 2 years. The record indicates he had no difficulty in understanding his rights or reading documents. The record also indicates that he voluntarily waived his rights to counsel and to remain silent.

On the day of the interrogation, 14 October 1994, Special Agent Minniek arranged for the appellant’s unit to make him available to be picked up and brought to the Naval Criminal Investigative Service [NCIS] local office. Record at 19-20. They arrived at the office by 0800 and the rights advisement began at 0809. By 0811, the appellant had executed a written waiver of his rights. The appellant was not under apprehension. He had not undergone any disruptive, humiliating, or intrusive treatment in his transport from the command to the NCIS office. See United States v. Fagan, 28 M.J. 64 (C.M.A.), cert, denied, 493 U.S. 823, 110 S.Ct. 83, 107 L.Ed.2d 48 (1989). This was a regular workday. The record indicates that the appellant had access to head facilities, rest breaks, and refreshments. Record at 24; Appellate Exhibit XVII p. 2 ¶ 13.

From 0811 until approximately 1000, Special Agent Minniek conducted an interrogation that was “very accusatory in nature.” Record at 21. The agent told the appellant that “we had confirmed that the child’s injuries had to have come from either himself or his wife.” Id. With regard to references to the appellant’s pregnant wife, Special Agent Minniek testified:

Q. Special Agent Minniek, getting back to when you interviewed the accused’s wife, Misty Murray, had you referenced her in your interrogation of the accused in the morning hours prior to her arrival at NCIS?
A. Yes, sir.
Q. How did you do that?
A. I talked to Lance Corporal Murray and just advised him that we had already established that this child was in their care and custody all the time. We had accounted for times when the child wasn’t in their care and custody and could confirm that the child was never injured when he was out of their custody.
Q. Did you make any reference to the fact as to who must have caused the injuries?
A. Yes, sir, I did.
Q. How did you do that?
A. I just let Lance Corporal Murray know that if he hadn’t done it and his wife hadn’t done it, one or the other of them were responsible for the injuries to this child.
Q. At any point did you indicate that the wife could be charged by someone?
A. Yes, sir, I did.
Q. How did you do that?
A. I just — and I don’t specifically remember this, but I wouldn’t deny that I said it. I would have probably said that if you didn’t do it, your wife can be charged in the state court.
A. Did you indicate to him that if he didn’t make a statement his wife would be charged?
Q. No, sir, I did not.
Q. Did you indicate to him that if he didn’t make a statement that his wife would be imprisoned?
A. No, sir, I did not.

Record at 29-30. After establishing that the agent and the appellant both knew that Mrs. ' Minniek was pregnant, the trial counsel continued the questioning:

Q. Did you ever reference to him an indication that the child would be taken from him and his wife upon its birth?
A. Absolutely not.
Q. Did you ever tell him that if he didn’t make an admission or confess that the [556]*556child would be taken from either his custody or his wife’s custody?
A. No, sir, I did not.

Record at 30-31.

Special Agent Minnick mixed his accusations with a softer approach. The special agent had information that the appellant had been abused as a child. Record at 21. Special Agent Minnick also suggested that if the victim’s injuries were accidental they should be discussed. Id. During this time period, the appellant explained the source of a burn on the child’s arm but did not explain any other injuries. Id. Another agent questioned the accused for about 30 minutes after Special Agent Minnick thought that he was not getting anywhere. Record at 20-21. After this 2 hour and 30 minute interrogation, the appellant was left alone in the interrogation room until he was served lunch from 1215 to 1245. Record at 22-23. It appears from the record that the accusatory portion of the interrogation lasted only 2 hours and 30 minutes. At 1245, Special Agent Minnick returned to the appellant and began preparing the appellant’s statement of denial. From about 1330 to 1550, Special Agent Minnick faced his computer and typed out the appellant’s statement as it developed. Record at 26. According to the record, at about 1515, Special Agent Minnick decided to give it “one last ditch effort to get an admission out of [appellant].” Record at 27, 44. The appellant had never indicated a desire for legal representation or a hesitancy to discuss the victim with Special Agent Minnick. As the agent testified at trial, his last ditch effort produced the following information:

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Related

United States v. Ellis
57 M.J. 375 (Court of Appeals for the Armed Forces, 2002)
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54 M.J. 958 (Navy-Marine Corps Court of Criminal Appeals, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
45 M.J. 554, 1996 CCA LEXIS 379, 1996 WL 727154, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-murray-nmcca-1996.