## UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before

TOZZI

, CAMPANELLA, and CELTNIEKS Appellate Military Judges

UNITED STATES, Appellee

v. Specialist JUSTIN S. CANNON United States Army, Appellant

ARMY 20130415

Headquarters, U.S. Army Combined Arms Ce nter & Fort Leavenworth

Jeffery R. Nance

, Military Judge

Colonel Fred P. Taylor , Staff Judge Advocate ( pretrial )

Colonel John S. T. Irgens, Staff Judge Advocate ( post

- trial )

For Appellant: Captain Patrick J. Scudieri, JA (argued); Colonel Kevin Boyle

, JA; Lieutenant Peter Kageleiry, Jr., JA; Major Vincent T. Shuler , JA ; Captain Patrick J.

Scudieri , JA (on brief)

.

For Appellee: Captain Jaclyn E. Shea, JA (argued); Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA; Major John K. Choik e , JA; Captain Jaclyn

E. Shea , JA (on brief).

23 June 20 1 5

---------------------------------- OPINION OF THE COURT

----------------------------------

CAMPANELLA, Judge :

A panel of officer and enlisted members sitting as a general court

- martial

convic ted appellant, contrary to his pleas, of unpremeditated murder, in violation of

Article 118

, Uniform Code of Military Justice, 10 U.S.C. § 918 (2006 ) [hereinafter UCMJ]

. The panel sentenced appellant to a dishonorable discharge

, confinement for fifty yea rs, forfeiture of all pay and allowances, and reduction to the grade of E

- 1

. T he convening authority approved the adjudged sentence and credited appellant with 142 days of confinement credit again st his sentence to confinement.CANNON

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2

This case is before us f or review pursuant to Article 66, UCMJ. A ppellant

raises two a ssign ment s of error . Both warrant discussion but not relief

. First

,

a ppellant asserts the military judge abused his discretion by denying appellant’s request for an expert consultant in the area of coercive law enforcement interrogation techniques. We agree that the military judge did not appropriately

differentiate t he standard s of review for providing expert assistance versus an expert witness in his written findings of fact and conclusion s of law . I n conducting our own analysis, however, we agree with his ultimate conclusion that appellant did not carry the burden of demonstrating his entitle ment to false confession expert

assistance

. Second, a ppellant asserts the military judge committe d plain error by admitting an “ inadmissible rock ” and presumptive positive hemoglobin test. We find neither plain nor prejudicial error here. We also find the matters raised personally by appellant pursuant to United States v. Grostefon , 12 M.J. 431 ( C.M .A. 1982) are without merit.

BACKGROUND

Appellant was convicted of the unpremeditated murder of MG. The government’s central piece of evidence in this case was appellant’s confession. This confession was subject to substantial pretrial litigation, and we recount both the details surrounding MG’s death and appellant’s later confession.

a. The Death of Appellant’s Wif e

On 27 July 2011

, appellant received word that his 16

- year old wife was found

dead in a Missouri hotel room. She had died of a drug o verdose. Appellant immediately flew home to Missouri on emergency leave and met with the investigator looking into the circumstances of his wife’s death

. Appellant appeared agitated and angry when discussing the investigation with a local police investig ator.
A s a result, the investigator cautioned appellant to not interfere with the investigation . Appellant responded to the investigator

, “I can only get in trouble if I get caught.”

b. The Camping Trip

On 29 Jul y 20 11, appellant went camping at Lak e Truman, Missouri

, with six

others

– three males and three females

. The reason s for the trip included celebrating the college graduation of one of the females and to mourn the death of appellant’s

wife.

During the evening, appellant and one of the males

, MG, argued loudly, apparently over MG’s former sexual relationship with appellant’s wife. The quarrel

culminated with MG saying he was sorry to appellant, and appellant replying with

words to the effect of

, “Oh

- it’s cool

, ” and “ I know my wife messed aro und.”CANNON

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3

Appellant and MG then hugged and went on with their evening

, gather ing with the

others around the campfire.

Th e next morning appellant travel ed back to town to plan his wife’s funeral.

He returned to Lake Truman at 2100, ate dinner with the group

, and went to sleep

some time after midnight . Because of rain

, the group slept in side the two vehicles that evening

. MG slept in the back seat of appellant’s truck cab

, appellant slept in

the front seat

, and one of the girls, MG’s former fiancée , slept i n the covered bed of

the truck. The others slept in side the second vehicle.

Early the following morning of 31 Jul y 20 11, MG could not be located

. After

an unfruitful search for MG, the group called the police for help

. A ppellant left the

lake around 0 900 to pick up a friend at the airport while the others stayed to search

for MG

. Appellant returned to the lake with his friend around 1400 that afternoon

. The friend l oaned his phone to police to assist in the search. Appellant left the lake

around 160 0 to a t t end his wife’s wake that evening

, followed by dinner with his family and others who attended the wak e

. That evening, after an emotional day, appellant was driven home by his friend.

c. The Interrogation

The following day

, appellant went to a de partment store

, bought a suit , and went directly to his wife’s funeral. A fter the funeral at about 1530 hours

, accompanied by his brother and others

, appellant went to the Sheriff’s O ffice to
retrieve his friend ’ s phone

. While there, a ppellant agreed to an investigator’s request to be interviewed. Appellant was taken to a locked interview room with a

two

- way mirror and read his Miranda rights. Appellant waived his rights and provided a written statement denying any knowledge of the cause of M G’s disappe arance.

The investigator discussed the statement with appellant and bec a me suspicious of appellant’s involvement due to his demeanor a nd the contents of his

written statement. The investigator left the room and spoke to the local prosecutor.

The inves tigator re

- entered the room and told appellant he would be recording the interview. He reminded appellant of his Miranda r ights , which appellant waived a second time

, then the investigator continued to question him

. Appellant change d his story after the investigator told him MG had been found dead

in the water. Appellant’s second written sworn statement indic a ted appellant had found MG already unconscious near the campfire

, got scared

, and p laced MG’s body

in the lake

. Finding the story incomplete and u n believable , the interrogator

co ntinued to question appellant.CANNON

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4

Upon further questioning, appellant confessed shortly thereafter to throwing a

rock at the back of MG ’s head

, causing MG to have an epileptic seizure and becom e unconscious . Appellant then mo ved MG’s unconscious body in to the water and went back to sleep

. Appellant stated he only intended to scare MG that night, not kill

him. Appellant also admitted he was angry and did this because MG told appellant

h e had slept with appellant’s wife

.

The investigator’s tone throughout the recorded portion of the interrogation

was s upportive and understanding. He did not raise his voice or threaten appellant. The interrogation technique consisted of telling appellant there was little doubt as to

his invol vement and progressively making appellant more comfortable with making

admissions b y offering appellant justifications for his behavior. Much of the information appellant admitted originated with the investigator. During the interrogation, appellant also drew a sketch for the investigator outlinin g where the events took place.

d. Motion for Expert Assistance

Appellant was charged with the premeditated murder of MG. After the convening authority denied defense’s request for expert assistance, a ppellant

motioned the trial court to compel the expert assistance of a forensic psychologist

- a purported expert in the study of coercive interrogations. The psychologist did not testify during the motion hearing . Instead, appellant provided the curriculum vita e of the psychologist and outlined why the assistant w as needed and how he would be

used

. I n support of th e motion, appellant signed an affidavit disavowing his

confession. Also, prior to trial

, a Rule for Courts

- Martial [hereinafter R.C.M .] 706

board di agnosed appellant with “Bereavement” under the Diagnostic and Statistical

M anual of Mental Disorders , Fourth Edition

. After both written and oral submissions, the military judge denied the defense’s motion to compel the “false

confession” expert consultan t. Appellant now argues the military judge erred i n denying his motion for expert assistance.

e. The Rock and Presumptive Blood Test

A week after appellant’s confession, the detective who interrogated appellant

went to the lake crime scene and found a r ock on top of some grass that he thought looked out of place and fit appellant’s confession, given its size and location. The

rock had two reddish spots on it that the detective believed to be blood. At trial,

w ithout objection from defense, the detectiv e testified that he used a field test on the rock to test for the presence of hemoglobin. That test turned olive

- green, which purportedly indicates the presence of blood. On cross

- examination, the detective conceded that to the best of his knowledge, the confirmatory test conducted by the crime laboratory did not detect any blood or DNA on the rock.CANNON

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5

The government initially attempted to admit a photograph of the rock. Appellant objected based upon the best evidence rule, stating, “We feel that [trial

co unsel] should produce the rock.” The military judge next confirmed that the trial counsel had possession of the rock and then stated, “Okay, well, we’ll put it in tomorrow.” Defense counsel replied, “Yes, Your Honor.” At an Article 39(a)

session later t hat day, the defense asked the military judge to ensure that the rock would be present the next day and stated, “we will put it in.” The next day, the government offered the rock into evidence. When asked if he had any objection to the evidence, defense counsel replied, “No objection, Your Honor.” Appellant now complains the military judge committed plain error by admitting the rock and the inadmissible presumptive hemoglobin test.

LAW AND DISCUSSION

I. Fals e Confession Expert Assistance

We review a mili tary judge's decision to deny a request for expert assistance

for an abuse of discretion. United States v. Bresnahan , 62 M.J. 137, 143 (C.A.A.F. 2005). A military judge abuses his discretion when : (1) the findings of fact upon which he predicates his ru ling are not supported by the evidence of record; (2) if incorrect legal principles are used; or (3) if his application of the correct legal principles to the facts is clearly unreasonable. United States v. Ellis , 68 M.J. 341, 344 (C.A.A.F. 2010) (citing United States v. Mackie , 66 M.J. 198, 199 (C.A.A.F. 2008))

.

Moreover, “ [w]hen judicial action is taken in a discretionary matter, such action cannot be set aside by a reviewing court unless it has a definite and firm

conviction that the court below commit ted a clear error of judgment in the conclusion it reached upon weighing of the relevant factors. ” United States v.

Houser , 36 M.J. 392, 397 (C.M.A. 1993)

.

If the defense demonstrates that expert assistance is relevant and necessary, then an expert shall be employed at government expense to assist the defense.

R.C.M. 703(d). U pon a proper showing of necessity, an accused is entitled to expert

assistance. United States v. Ford , 51 M.J. 445, 455 (C.A.A.F. 1999) (quoting United

States v. Burnette , 29 M.J . 473, 475 (C.M.A. 1990))

. “ [N]ecessity requires more

than the ‘ mere possibility of assistance from a requested expert. ’ ” Bresnahan , 62

M.J. at 143 (quoting United States v. Gunkle , 55 M.J. 26, 31 (C.A.A.F. 2001))

. “ The

accused must show that a reasonab le probability exists both that an expert would be of assistance to the defense and that denial of expert assistance would result in a fundamentally unfair trial. ” Id . (quoting Gunkle , 55 M.J. at 31 ).CANNON

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6

In United States v. Gonzalez

, 39 M.J. 459, 461 (C.M. A. 1994), our superior

court set forth a three

- part test to determine whether expert assistance is necessary : (1) why the expert assistance is needed; (2) what the expert assistance accomplishes for the accused, and (3) why the defense counsel were unable to gather and present the evidence that the expert assi stant would be able to develop.

W e first turn to the military judge’s written findings of fact . W hile the military judge’s findings of fact are not ina ccurate, they are incomplete

, thereby meriting less deference

. Cf. United States v. Benton , 54 M.J. 717, 725 (Army Ct. Crim. App. 2001) (giving less deference to a military judge’s ruling where he did not engage in fact

- finding on the record). W e find additional relevant facts related

to appellant’s r equest for expert assistance as follows : 1) appellant ’s affidavit that

his confession was false ; 2) appellant’s lack of sleep preceding his interrogation ; 3) appellant’s emotional state and the diagnosis of b ereavement in the R.C.M. 706

examination ; 4) appellant’s initial denial of involvement in MG’s disappearance; and

5 ) the timing of the interrogation immediately following appellant’s wife’ s funeral. 1

We next look to the l egal principles used by the judge

. We note in his written ruling, the militar y judge correctly identifie d the relevant factors to determine

whether appellant was entitled to expert assistance

. We further note the military judge specifically stated on the record during the motions hearing that he was not considering the issue of wh ether the expert could testify for purposes of the request for expert assistance.

Unfortunately, the military judge’s written analysis does not appear to follow

his oral assurance

. T he military judge ’s written ruling blurred the standards between

a reque st for expert assistance and a request for an expert witness. Initially, t he military judge correctly not ed the reason for the expert assistance request was because the defense identified indicia of a possible false confession

, and they need ed

an expert t o help them evaluate the case. The military judge then wr ote as follows :

This argume nt assumes that so called false confession opinion testimony would be re levant and admissible under

the rules of evidence and applicable law . Furthermore,

the defense ha s not shown why they are not able to marshal the facts as they have done in their brief, present those to the trier of fact, argue that the statement of the accused should not be considered reliable, and ask for an

instruction on voluntariness to determine the weight to be given to the statement. If a statement is admitted into

1 The Supreme Court has noted this court’s authority under Article 66(c), UCMJ, to

“revise factua l determinations.” Ryder v. United States , 515 U.S. 177, 188 (1995).CANNON

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7 evidence, the defense must be permitted to present

evidence as to the voluntariness of the statement. The military judge in such a case must instruct the members to give weight to the statement as it deserves under all

circumstances

. . . . The defense has failed to show why they need the assistance of [Doctor B] to accomplish this basic defense counsel function. Certainly, the defense can

a n d has gathered and pres ented the eviden ce on their own

– for this motion in fact. According to defense, [Doctor
B] could not help the defense determine or even opine whether the confession was false. Even if he could, such testimony, were it eventually offered, would not be

allowed because an expert may not act as a human lie

detector. ( emphasis added)

The military judge appears to have conflated the distinction between a request for expert assistance and a request for an expert witness to provide testimony at trial. Whether expert witness testimony is or is not admissible is not necessarily

relevant or dispositive to the analysis under Gonzalez when ruling whether the

defense met their burden to demonstrate necessity

. We are troubled by t he military judge ’ s c oncerns related to expert testi mony admissibility and the weight he may have given it when deciding to deny the request for expert assistance. As such, we conclude the military judge based his decision on an incorrect application o f the law

, and we are left to review this issue de nov o

. See United States v. Manns , 54 M.J. 164, 166 (C.A.A.F. 2000) (conducting its own balancing test when a military judge

does not articulate his reasoning on the record).

Turning again to the Gonzale z factors, we look to the validity of appellant’s

claim to determine the necessity of the requested expert assistance. In Bresnahan

, the appellant requested an expert assistant to examine the coercive interrogation techniques used by a civilian detective

, but the defense failed to present evidence that appella nt’ s confession was actually false or that appellant suffered from any

“ abnormal mental or emotional problems, ” or possessed a “ submissive personality ” that would cause him to falsely confess. 62 M.J. at 143. The court in Bresnahan ultimately held that t he military judge did not abuse his discretion when he denied the defense request for expert assistance as the defense did not meet its threshold evidentiary burden under Gonzalez

. Id . at 143

- 44

.

Here, as in Bresnahan , we find that the defense has fail ed to meet its evidentiary burden in demonstrating need . While the defense has o ffered some

s uggest i ons that ap pellant’s confession may have been false (including appellant’sCANNON

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8

self

- serving affidavit disavowing his confession)

, 2 defense counsel ultimately

a dmit ted the request f or expert assistance was needed to help them determine the

voluntarines s and trustworthiness of the appellant’s confession. D efense counsel

d oes not provide evidence that appellant was sus ceptible to coercion , of low intelligence, or had any mental disorder or condition that might make it more likely that he confess falsely. While appellant was diagnosed with b ereavement at his R.C.M. 706 board, defense counsel fail ed to link this assessment to the notion of

false confession. In fact, defense counsel specif ically state d it need s expert assistance to run a series of psycholo gical tests to determine if appellant suffered from “intellectual deficits” impacting his ability to process information or if he was open to suggestibility without offering evidence to support this hypothesis.

Trial d efense counsel also failed to proffer any information or professional

studies related to false confession issues to demonstrate the link to this case and failed to present testimony of the expert on the record. Further, d efense counsel justified their request for an expert assistant to revie w whether the interrogation

method applied by the investigator was suggestive or coercive. We find defense’s proffer does not demonstrate necessity and amounts to the “mere possibility of

assistance” from a requested expert. Id . at 143 (quoting Gunkle , 5 5 M.J. at 31)

. For the third factor, defense counsel did not adequately meet their evident iary burden to
demonstrat e why the defense team could not gather and present the evidence that the expert assistant would be able to develop in this case. See Gonza lez , 39 M.J. at 461.

W e agree with t he ultimate conclusion that the defense motion for expert
assistance should have be en denied based on what the defense proffered.

II. The Presumptive Hemoglobin Test and Admission of the Rock

Appellant argues the mili tary judge committed plain error by admitting a rock

and the presumptive hemoglobin test and that he was prejudiced by this admission. As a threshold matter, we must determine whether appellant expressly waived the right to challenge the admissibility of this evidence or merely forfeited the issue. See United States v. Campos , 67 M.J. 330, 331 (C.A.A.F. 2009) (identifying the determination as to whether an issue is affirmatively waived or forfeited as a “threshold issue”). We hold appellant affirmatively waived any claim regarding the rock and forfeited his claim regarding the presumptive blood test.

“A forfeiture is basically an oversight; a waiver is a deliberate decision not to present a ground for relief that might be available in the law.” Id. at 332 (citation

2 By placing this disavowal in a sworn statement, appellant was not cross

- examined regarding it. Appellant’s statement does not explain what portions of his confession

were false or wh at occurred during the interrogation that produced a false confession. We accordingly give this disavowal less weight.CANNON

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9

omitted). Here, we are convinced appellant deliberately decided not to object to the

admission of the rock. In fact, h e requested the government to produce it instead and then did not object to its admission. He cannot now on appeal claim that it was erroneously admitted. See Johnson v. United States , 318 U.S. 189, 201 (1943) (“We cannot permit an accused to elect to pursue one course at the trial and then, when that has proved to be unprofitable, to insist on appeal that the course which he rejected at trial be reopened to him.”).

With regard to the presumptive hemoglobin test , appellant forfeited his claim by not objecting to it. To show plain error , appellant must show: “(1) there was

error; (2) the error was plain or obvious; and (3) the error materially prejudiced a substantial right of the accused.” United States v. Tunstall , 72 M.J. 191, 193

- 94 (C.A.A.F. 2013) (quoting United States v. Girouard , 70 M.J. 5, 11 (C.A.A.F. 2011)).

Appellant relies on our decision in United States v. H ill , 41 M.J. 596, 598 (A.C.M.R. 1994), where we determined a “luminol test” that was “presumptive positive” for blood on clothing was inadmissible. The parties in Hill litigated that issue at trial. In this case, however, the record does little to enligh ten this court as to the reliability of the test. See Mil. R. Evid. 702. We do not know the type of

blood

- testing kit used, whether it has been tested or subjected to peer

- review, the potential error rate, the standards used to control its operation or t he degree of its acceptance in the scientific community. We also do not know if the test is able to

discern b etween human and animal blood.

However, the absence of these answers cuts against appellant in a plain error review because he did not challenge this evidence or otherwise request a Daubert hearing to test the reliability of the blood test. Given the lack of litigation regarding the blood test, we do not have a factual basis to determine whether this blood test is analogous to the inadmissible tes t in Hill . Appellant has not met his burden in demonstrating that the admission of the blood test was plain or obvious error.

That said, e ven were we to find plain and obvious error, appellant has not

demonstrated prejudice by the admission of the blood test. The evidence does little either to add strength to the government’s case or detract from the defense’s case. Absent the rock, the government’s case is strong with a confession from appellant, a motive, an opportunity, and the victim’s body to corro borate the confession. Additionally , defense counsel conducted an effective cross

- examin ation of the investigator regarding the negative lab testing of the rock

, making its value to the government’s case scant. We conclude appellant has demonstrated no c lear, obvious

error by which he was prejudiced with regard to the military judge's ruling to allow the rock and presumpti ve blood test into evidence.CANNON

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10 C ONCLUSION

Upon consideration of the entire record and the submissions of the parties we

hold the find ing s of guilty and the sentence are AFFIRMED.

Senior Judge TOZZI and Judge CELTNIEKS concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: