United States v. Robinson

21 M.J. 907
CourtU S Air Force Court of Military Review
DecidedFebruary 18, 1986
DocketACM 24420
StatusPublished
Cited by4 cases

This text of 21 M.J. 907 (United States v. Robinson) is published on Counsel Stack Legal Research, covering U S Air Force Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Robinson, 21 M.J. 907 (usafctmilrev 1986).

Opinion

DECISION

CARPARELLI, Judge:

The appellant has been convicted of the rape, forcible sodomy, and premeditated murder of Senior Airman Nancy Nittler. He was sentenced to a dishonorable discharge, life imprisonment, total forfeitures, and reduction to airman basic. Appellate defense counsel have assigned five errors for our consideration. We find them all to be without merit and affirm the findings and sentence. We will, however, discuss the first assigned error. It asserts that an incriminating statement made by the accused on 19 October 1982 should have been suppressed because it arose from a hypnotic interview six months earlier, was involuntary, and was inadequately corroborated.

I. FACTS

On the evening of 13 April 1982 the victim worked the night shift in Building 520, Ramstein Air Base, Germany. She worked alone as the civil engineering service call monitor. Because of an on-going construction project, she was unable to lock the main entrance to the building near the service call desk. That evening, between 2130 and 2230 hours, she was visited by other members of the civil engineering squadron. The last known visitor was Senior Airman Wood who stopped to get some maps. Senior Airman Wood testified that, as she left the building, about 2230 hours, she saw the victim preparing to go to sleep on a cot near the service call desk.

About 0615 hours the next morning Senior Airman Nittler’s body was found in the career advisor’s office, another room in the building. Examination of the body revealed that she had been brutally assaulted, raped, and anally sodomized. The body bore defense wounds on both forearms, two blunt instrument wounds on the head, internal and external injuries indicating strangulation, one superficial cut on the neck, and two deeper cuts, one of which severed her jugular vein and caused her death.

The cot in the service call room contained a large blood stain which someone had attempted to conceal by placing a blanket over it. Later examination of the flow pattern of the blood stain and experimentation with the cot showed that, at some time while the blood was fresh, the cot had been tipped on its side and later righted. There was blood splattered near the cot, another large blood stain on the floor, and a trail of blood leading to the next room, the technical order room. Except for the blood stains, however, neither the service call room nor the technical order room showed any signs of a struggle. A heavy and obvious trail of blood led from the technical order room, down a corridor to the career advisor’s office. The body was found face down in the career advisor’s office and was naked below the waist. The victim’s head was near the door and there was a large pool of blood to the right of her head.

The pathologist concluded that the head wounds and strangulation had been inflicted in the service call room, the neck wounds had been inflicted in the career advisor’s office, and the rape and anal sodomy had been perpetrated in the career advisor’s office either before the victim’s neck was cut or shortly thereafter while the victim was in the throes of dying. Analysis of the evidence at the crime scene [909]*909indicated that the victim had been dragged down the hallway by her feet after she had been rendered unconscious by the head wounds and strangulation.

All the blood stains were consistent with the victim’s blood. None of the latent fingerprints found at the scene were identified as those of the appellant or any of the other suspects in the case. Pubic hairs were collected from the floor of the career advisor’s office and examined by the criminal investigation laboratory. The laboratory was unable, however, to connect the hairs with any suspect.

Swabs from the victim’s vagina and rectum and washings of the victim’s pubic hair revealed the presence of semen. Comparison of these samples with relevant information regarding the appellant’s blood type and body fluid chemistry indicated that the appellant could have been the source of the semen.

On the evening of 16 April 1982 the appellant went to the security police desk and said that he had some information regarding the crime. When questioned by an agent of the Office of Special Investigations (OSI) the appellant said he was driving past building 520 sometime between 2380 and 0030 hours on the night of the crime and, through a part in the window curtains, saw a tall male shadowy figure in the service call room. The figure had its right hand in the air and made several downward motions as if striking something. He described the figure as tall, thin, light-haired, and wearing a dark, possibly plaid, shirt. The appellant said he had seen the figure from his vehicle in the course of two to five seconds as he drove past the building. He explained that he drove home and did not think much of it at the time. He said he waited to report his observations because he wasn’t sure of what he had seen and needed to get his thoughts together. When asked who he thought the figure was, the appellant named Sergeant Kevin B. Curtis. Curtis, in fact, was six feet four inches tall, weighed only 135 pounds, and was on duty all night across the street from building 520 on the night of the murder. He had been quickly and publicly apprehended outside building 520 on the morning of 14 April after law enforcement agencies had responded to the crime scene.

On 27 April 1982 and again on 29 April 1982 the appellant agreed to undergo hypnosis in an effort to recall as much as possible about what he had seen. Video tapes of the entirety of both interviews were admitted as prosecution exhibits during cross examination of the hypnotist, Major Russell Hibler, Ph.D.

During the hypnotic interview the appellant said he was driving past building 520 and saw a tall white male swinging what appeared to be a piece of pipe or a stick. He described the assailant as having blond or light brown hair parted in the middle and standing a head taller than the victim, “Maybe five-six [sic], maybe a little shorter.”

Two days later the appellant again consented to a hypnotic interview with the same psychologist and agents. At that time he described the assailant as much taller than the victim. He said the assailant looked similar to the victim’s husband but was heftier.

During the next five months the appellant told others about what he had seen and he expressed his concerns and suspicions about the case. He also spoke with OSI agents on 2 July, 7 July, and 21 July 1982. On the first two occasions he continued to tell the OSI agents that he had merely driven past the crime scene and he provided additional information which tended to cast suspicion on Staff Sergeant Joseph Brownell, a friend of the victim. During the 7 July interview the appellant said that, after he arrived home in the early morning of 15 April, he saw a vision in which he saw a face and the lower portion of a jaw and a mouth which appeared to be chewing raw flesh. He described the jaw as similar to Brownell’s. On 21 July he volunteered a claim that, before driving past building 520, he had sexual intercourse with a bar girl at the Scotch Bar in [910]*910Landstuhl. At trial, however, the bar girl contradicted this claim.

On 19 October 1982, the appellant was called in by OSI agents Lee and Thomas, waived his rights, and was interviewed as a suspect. The interview began about 1300 hours and ended about 0130 hours on 20 October.

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Bluebook (online)
21 M.J. 907, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-robinson-usafctmilrev-1986.