                         UNITED STATES, Appellee

                                     v.

                   Richard C. BRESNAHAN, Specialist
                         U.S. Army, Appellant

                                No. 04-0559

                         Crim. App. No. 20010304

        United States Court of Appeals for the Armed Forces

                            Argued May 4, 2005

                       Decided September 30, 2005


GIERKE, C.J., delivered the opinion of the Court, in which
CRAWFORD and BAKER, JJ., joined. ERDMANN, J., filed a
dissenting opinion in which EFFRON, J., joined.



                                  Counsel

For Appellant: Captain Charles L. Pritchard Jr. (argued);
Colonel Mark Cremin and Lieutenant Colonel Mark Tellitocci (on
brief); Major Allyson G. Lambert and Captain Terri J. Erisman.

For Appellee: Major William J. Nelson (argued); Colonel Steven
T. Salata and Lieutenant Colonel Mark L. Johnson (on brief);
Captain Edward E. Wiggers.

Military Judge:     Gary V. Casida




This opinion is subject to revision before final publication.
United States v. Bresnahan, No. 04-0559/AR

     Chief Judge GIERKE delivered the opinion of the Court.

                           INTRODUCTION

     This tragedy began on the morning that a three-month-old

baby, Austin, was shaken so severely that the injuries he

sustained led to his death.   The tragedy continued during the

early morning hours after Austin died.    His family was further

torn apart by his father’s confession, during questioning by a

civilian police detective, that he may have shaken his baby to

try to stop his crying.1   We granted review to determine whether

the admission of Appellant’s confession at trial was a violation

of his due process rights.2

     At trial, the defense counsel requested expert assistance

to determine if Appellant’s confession was unreliable because of

the detective’s interview techniques.     The military judge denied

the request and we granted review to determine if that ruling




1
  Based on this confession and other evidence, Appellant was
convicted of involuntary manslaughter, in violation of Article
119, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 919
(2000). He was sentenced to a dishonorable discharge,
confinement for six years, forfeiture of all pay and allowances,
and a reduction to pay grade E-1.
2
  More specifically, we granted review to determine:
     Whether Appellant’s right to due process was violated when
     the military judge failed to suppress Appellant’s
     statements to Detective M-M where such statements may have
     been in violation of Article 31(d) and the Fifth Amendment
     prohibition against compulsory self-incrimination.
United States v. Bresnahan, 61 M.J. 12 (C.A.A.F. 2005)(order
granting review).

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United States v. Bresnahan, No. 04-0559/AR

was erroneous.3    Also, at trial, the military judge admitted

evidence of prior injuries Austin sustained before his death.

The United States Army Court of Criminal Appeals concluded the

military judge erred in admitting the uncharged misconduct

evidence, but that the error was harmless.4       We granted review to

analyze the Army Court’s holding.5       Finally, the military judge

allowed the trial counsel to cross-examine a defense witness

about two scientific studies that concluded male caregivers are

more likely the perpetrators in shaken baby cases.       Appellant

challenges the conclusions of those studies as inadmissible

“profile” evidence, and we granted review.6

       We hold that the military judge committed no error when he

admitted Appellant’s confession.       Under the totality of the

circumstances, Appellant’s confession was voluntary.       We also

3
    The specific issue we granted was:
       Whether the military judge erred to the substantial
       prejudice of Appellant by denying the defense request for
       expert assistance.
Id. at 12.
4
  See United States v. Bresnahan, No. ARMY 20010304, slip op. at
2 (A. Ct. Crim. App. June 4, 2004) (unpublished).
5
  More specifically, we granted review to determine:
       Whether the Army Court of Criminal Appeals erred in finding
       that the military judge’s erroneous admission of alleged
       prior uncharged misconduct did not substantially influence
       the findings of the court-martial.
Bresnahan, 61 M.J. at 12.
6
  The final issue was personally asserted by Appellant:
       Whether the military judge committed plain error by
       allowing the Government to introduce inadmissible profile
       evidence.


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United States v. Bresnahan, No. 04-0559/AR

conclude that the military judge did not abuse his discretion in

denying the defense request for expert assistance because the

defense counsel failed to demonstrate necessity for that

expert’s assistance.   Furthermore, we agree with the lower court

that the military judge's error in admitting the uncharged

misconduct evidence was harmless.      Finally, the military judge

did not err in admitting the “profile” evidence because the

defense counsel opened the door to this type of rebuttal.      Thus,

we affirm the decision of the Army Court of Criminal Appeals.

                              BACKGROUND

The fateful morning

      On the morning of November 6, 2000, Appellant and his wife,

Kristen, were awakened by the sound of their baby crying.

Kristen got Austin from his crib and brought him back to their

bedroom to feed him.   After Kristen finished feeding him,

Appellant returned Austin to his crib, laid him on his stomach,

and began patting his back.    At this point, Appellant noticed

that the baby was not breathing.       He told his wife to call 911

and he administered CPR until the paramedics arrived.

      Austin was rushed to the hospital, where Dr. Mark Storm, an

emergency room doctor, tried to resuscitate the baby.      Dr. Storm

did not see any outward signs of trauma, but because he could

not get any responses from the baby, he thought Austin might



Id.

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United States v. Bresnahan, No. 04-0559/AR

have been in a coma.    Dr. Storm ordered a Computed Tomography

(CT) scan on the baby.    The CT scan revealed that the baby’s

brain had shifted, several ventricles had collapsed, and his

brain was bleeding.    Dr. Storm believed the injury was caused by

someone having shaken Austin.

Detective Malek-Madani arrives at the hospital

       Detective Leslie Malek-Madani and another Colorado Springs

Police Department officer met with Appellant and his wife in a

quiet room outside the intensive care unit.      Appellant and

Kristen were questioned separately and both cooperated with the

inquiry.    The police officers did not give them Miranda7 rights

warnings at that time.

       During Detective Malek-Madani’s interview with Appellant,

she told Appellant that Austin’s brain injuries were so severe

that he might not survive.    She then asked Appellant if anything

else happened that morning that might explain Austin’s injuries.

Appellant responded two or three times that nothing happened to

Austin except what he already told the detective –- that he laid

Austin down and the baby began choking on his formula.

       Detective Malek-Madani responded that Appellant’s

recollection of the events of the morning were “impossible” and

pressed for further information.       Detective Malek-Madani then

asked Appellant explicitly if Austin had ever been shaken.


7
    Miranda v. Arizona, 384 U.S. 436 (1966).

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United States v. Bresnahan, No. 04-0559/AR

Appellant initially stated that he had not.   But Appellant then

said that in attempting to soothe the baby to make him stop

crying, he started to “bounce him up and down” and that it was

“possible that Austin’s head had bobbed a few times while he was

trying to calm him down.”

     After this admission, Detective Malek-Madani pressed

Appellant further.   She told him that to help Austin, the

doctors needed to know what had happened.    Appellant eventually

stated that he “may have shaken Austin a couple of times.”

The interview continues at the police station

     Detective Malek-Madani asked Appellant to accompany her to

the police station for further questioning.   Appellant agreed.

Shortly after arriving at the police station, another police

officer contacted Detective Malek-Madani and told her that

Sergeant (Sgt) Hogan, her supervisor, wanted Appellant returned

to the hospital immediately.   Dr. Kenneth Gheen, the medical

director of the pediatric intensive care unit at the hospital,

was concerned that he had not had the chance to talk to Austin’s

parents and explain to them the seriousness of Austin’s

condition.   Rather than returning Appellant to the hospital at

that time, Detective Malek-Madani contacted Sgt Hogan and told

him that Appellant “had admitted to having shaken the baby and

that [she] was hoping to capture that admission on videotape.”

Sgt Hogan responded that Dr. Gheen wanted Appellant back at the



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United States v. Bresnahan, No. 04-0559/AR

hospital.   But within five minutes, Sgt Hogan contacted

Detective Malek-Madani again and advised her to continue the

interview and that he would talk to the doctor again.

     The interview continued at the police station.     Detective

Malek-Madani prodded Appellant for further admissions and a

virtual tug-of-war ensued.   The detective attempted to get

Appellant to admit to shaking the baby, while Appellant tried to

maintain his basic concession that he was only bouncing the baby

and that he did not think that he had done anything to cause

serious injury to Austin.    For example, at one point, Appellant

advised Detective Malek-Madani that he may have killed his son.

But, within a few minutes, Appellant changed his story by saying

that he thought Austin was choking on formula and he was not

aware that Austin stopped breathing because Appellant was

shaking him too hard.   About fifteen minutes later, Appellant

again admitted that he may have shaken Austin but that he

thought he was only bouncing him.     After approximately forty-

five minutes of questioning, Detective Malek-Madani returned

Appellant to the hospital.

The return to the hospital

     According to the testimony of Dr. Gheen, when Appellant

returned to the hospital, he told Dr. Gheen that he shook the

child and laid him down, and that Austin vomited shortly

thereafter.   Dr. Nieca Caltrider, the pediatric ophthalmologist,



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United States v. Bresnahan, No. 04-0559/AR

testified that Appellant told him he may have shaken Austin

“some, a little harder than he should.”     Appellant said he laid

Austin down, heard some gurgling sounds, and saw Austin vomit

and then become gray.

                             DISCUSSION

I.   Appellant’s confession to Detective Malek-Madani

     The Fifth Amendment to the Constitution prohibits any

person from “be[ing] compelled in any criminal case to be a

witness against himself.”   Article 31(d), UCMJ, prohibits the

admission of statements obtained from an accused “through the

use of coercion, unlawful influence, or unlawful inducement.”8

Thus, an accused’s confession must be voluntary to be admitted

into evidence.9

     Whether a confession is voluntary is a question of law we

will review de novo.10   This review requires us to look to the

totality of the circumstances to determine “whether the

confession is the product of an essentially free and

unconstrained choice by its maker.”11     In assessing the totality

of the circumstances, we will look to factors such as:     the

mental condition of the accused; his age, education, and

intelligence; the character of the detention, including the


8
   10 U.S.C. § 831(d) (2000).
9
   United States v. Ellis, 57 M.J. 375, 378 (C.A.A.F. 2002).
10
    Id.
11
    United States v. Bubonics, 45 M.J. 93, 95 (C.A.A.F. 1996).


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United States v. Bresnahan, No. 04-0559/AR

conditions of the questioning and rights warning; and the manner

of the interrogation, including the length of the interrogation

and the use of force, threats, promises, or deceptions.12

     Undoubtedly, Appellant found himself in a stressful

situation on the morning of his son’s death.   Austin was in

critical condition in the hospital and Detective Malek-Madani

was pressuring Appellant to confess to shaking his son.     This

pressure on Appellant continued for a few hours, both at the

hospital and at the police station.   Based on the totality of

the circumstances, however, we conclude that Appellant’s

confession was voluntary.

     At the time of Austin’s death, Appellant was a twenty-two

year-old Specialist with over five years of service in the Army.

There is no evidence in the record that Appellant suffers from

any type of mental deficiency or is of low intelligence.

     When Detective Malek-Madani began questioning Appellant, he

was cooperative and, upon her request, voluntarily accompanied

her to the police station.   Appellant was never under arrest, he

was not constrained at any time, and he was questioned at the

police station for no more than forty-five minutes before

Detective Malek-Madani returned him to the hospital.   Although

not explicitly informed that he could leave, Appellant was free


12
  See Ellis, 57 M.J. at 379; United States v. Sojfer, 47 M.J.
425, 429-30 (C.A.A.F. 1998).



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United States v. Bresnahan, No. 04-0559/AR

to terminate any of the interviews at any time.   We agree with

the military judge that there is “scant evidence” that Appellant

believed he was in custody or that he made false incriminating

statements or admissions.

     Appellant asserts that Detective Malek-Madani’s “clear

message” to him “was that he had to confess to shaking his son

to permit the doctors to save Austin’s life.”   In other words,

he had to confess or Austin would die.   As noted above, in

assessing the totality of the circumstances, we will consider

the detective’s use of threats, promises, or deceptions.13    Under

certain circumstances, threats or deceptions may overcome an

individual’s “free will” in making a confession.14

     In Ellis, we held the appellant’s confession was voluntary

even though the investigating detectives told him they had


13
  Ellis, 57 M.J. at 379.
14
  Compare Lynumn v. Illinois, 372 U.S. 528, 534 (1963)(holding
confession involuntary when police showed up at defendant’s
apartment to arrest her for the sale and possession of marijuana
and advised her that if she did not cooperate, state financial
aid for the children would be terminated and her children would
be taken from her), with United States v. Brave Heart, 397 F.3d
1035, 1036-38 (8th Cir. 2005) (concluding confession was
voluntary when defendant voluntarily drove himself to police
station, consented to questioning for over two hours, was never
placed under arrest, and confessed to killing his nephew after
the officers stated they believed he was directly responsible
for his nephew’s injuries and suggested that his sister-in-law
may share the responsibility) and United States v. Moreno, 36
M.J. 107, 112 (C.M.A. 1992) (holding confession voluntary when
made to a social worker, who was not part of a law enforcement
investigation, when appellant faced choice between cooperating
with a social worker, or not cooperating and risk losing his
children).

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United States v. Bresnahan, No. 04-0559/AR

probable cause to arrest him for child abuse and that his

children “would probably be removed” from his home if he was

arrested.15   In this case, the essence of Detective Malek-

Madani’s statements to Appellant was that the doctors needed to

know exactly what happened to Austin so they could save his

life.   Detective Malek-Madani admits that she did not return

Appellant to the hospital immediately after receiving the

request from Sgt Hogan because she was more concerned with

securing Appellant’s confession than allowing Appellant to

return to the hospital.    Thus, similar to the detectives’

statements in Ellis, Detective Malek-Madani’s statements to

Appellant were said with the intent to secure a confession from

Appellant by “exploit[ing] any emotional ties [A]ppellant might

have” to Austin.16    But the statements were “an accurate picture”

of what was happening to Austin.17     And “[w]hile the detectives’

advice to [A]ppellant . . . may have contributed to his

confession, the mere existence of a causal connection does not

transform [A]ppellant’s otherwise voluntary confession into an

involuntary one.”18



15
   57 M.J. at 377.
16
   Id. at 384 (Baker, J., concurring in the result).
17
   Id. at 379.
18
   Id.; see also Brave Heart, 397 F.3d at 1041 (noting that a
police officer’s intention to arrest the defendant “‘does not
render a confession involuntary per se,’” but is “simply one
factor to be considered in the totality of the circumstances”)
(internal citations omitted).

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United States v. Bresnahan, No. 04-0559/AR

     Furthermore, we will look not only to what was said to

Appellant, but “we must also examine what was not done or not

said.”19    Detective Malek-Madani did not threaten Appellant in

any way or physically injure him.20    She was not confrontational

or intimidating.    Appellant was not detained, questioned for a

prolonged amount of time, or held in isolation for any amount of

time.21    Based on the totality of the circumstances in this case,

we hold Appellant’s confession was voluntary.

     Additionally, we are persuaded by the Government’s argument

that, regardless of whether Appellant actually believed the

doctors would not help Austin unless he confessed, Detective

Malek-Madani’s statements would not provide a motive for

Appellant to lie.    If Appellant did not shake Austin, then

telling the detective that he did shake him would not help the

doctors determine how to treat the baby appropriately.    For

Appellant to lie about what he did would not save Austin’s life.




19
   Ellis, 57 M.J. at 379; see also Brave Heart, 397 F.3d at 1041
(stating that officers “elicit confessions through a variety of
tactics, including claiming not to believe a suspect’s
explanations, making false promises, playing on a suspect’s
emotions, using his respect for his family against him,
deceiving the suspect, convening sympathy, and even using raised
voices,” but “[n]one of these tactics render the confession
involuntary . . . unless ‘the overall impact of the
interrogation caused the defendant’s will to be overborne’”)
(internal citation omitted).
20
   Ellis, 57 M.J. at 379.
21
   Id.



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United States v. Bresnahan, No. 04-0559/AR

II.   Denial of defense request for expert assistance

      After the convening authority denied the defense counsel’s

request for expert assistance in the area of false confessions,

the defense counsel raised the issue with the military judge

before trial.   The defense counsel requested an expert

consultant “not only” to address the vulnerability of

Appellant’s confession, but also to examine the “coercive

interrogation techniques and how the use of those techniques in

this case may shed light on the confession’s reliability, not

necessarily its voluntariness.”    Defense counsel postulated that

the expert would be in the best position to help the defense

determine whether Appellant’s emotional state at the time he

made the confession was such that the unreliability of the

confession would be a possible defense.    The military judge

stated, “defense counsel is searching for evidence that would

assist in her defense of the accused, but with little evidence

to indicate such evidence exists.”     The military judge then

denied the request, concluding that the defense made an

inadequate showing of the necessity for Dr. Richard Leo’s

assistance.

      An accused is entitled to an expert’s assistance before

trial to aid in the preparation of his defense upon a




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United States v. Bresnahan, No. 04-0559/AR

demonstration of necessity.22     But necessity requires more than

the “‘mere possibility of assistance from a requested expert’. .

. .”23   The accused must show that a reasonable 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.’”24

     We apply a three-part test to determine whether expert

assistance is necessary.25   The defense must show:   (1) why

the expert assistance is needed; (2) what the expert

assistance would accomplish for the accused; and (3) why

the defense counsel were unable to gather and present the

evidence that the expert assistance would be able to

develop.26   A military judge’s ruling on a request for

expert assistance will not be overturned absent an abuse of

discretion.27

     In determining whether the military judge abused his

discretion in denying the defense’s request for an expert

consultant, each case turns on its own facts.     Neither the


22
   United States v. Gunkle, 55 M.J. 26, 31 (C.A.A.F. 2001)
(citing United States v. Garries, 22 M.J. 288, 291 (C.M.A.
1986)).
23
   Id. (citing United States v. Robinson, 39 M.J. 88, 89 (C.M.A.
1994)).
24
   Id. (quoting Robinson, 39 M.J. at 89).
25
   United States v. Gonzalez, 39 M.J. 459, 461 (C.M.A. 1994);
United States v. Ndanyi, 45 M.J. 315, 319 (C.A.A.F. 1996).
26
   Gonzalez, 39 M.J. at 461; Ndanyi, 45 M.J. at 319.
27
   Gunkle, 55 M.J. at 32.



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United States v. Bresnahan, No. 04-0559/AR

denial nor the grant of a request for an expert consultant

to explore the reliability of a confession is necessarily

grounds for reversal.   But, as this Court has previously

noted, “[t]o reverse for ‘an abuse of discretion involves

far more than a difference in . . . opinion . . . .’”28

Under the facts of this case, we hold that the military

judge did not abuse his discretion by concluding that the

defense failed to meet its burden of necessity under

Gonzalez.29

     The defense counsel requested Dr. Leo’s expert

assistance to help explore the possibility that Detective

Malek-Madani’s techniques at the hospital and at the police

station were so coercive that Appellant’s confession may

have been unreliable.   Appellant’s confession to Detective

Malek-Madani was important evidence for the prosecution.

And we accept arguendo that Dr. Leo possessed knowledge and

expertise in the area of police coercion beyond that of the

defense counsel and that the defense counsel could benefit

from his assistance.




28
   United States v. Travers, 25 M.J. 61, 62-63 (C.M.A.
1987)(internal citations omitted).
29
   39 M.J. at 461 (holding that the military judge did not abuse
his discretion in denying the defense’s request for expert
assistance where the defense was given the “tools potentially to
gather evidence to lay a foundation for the necessity of an
independent investigator” but did not use them).

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United States v. Bresnahan, No. 04-0559/AR

     But defense counsel never presented any evidence to

suggest that Appellant’s confession was actually false.

Furthermore, the military judge clearly articulated in his

findings of fact that the defense presented no evidence

suggesting that Appellant suffers from any abnormal mental

or emotional problems.30   He also found no evidence

suggesting that Appellant has a “submissive personality so

weak or disoriented as to make false incriminatory

statements in response to accusations of serious criminal

conduct.”

     This was a close call.    Just as we hold that the

military judge did not abuse his discretion by denying the

request, we would also conclude that the military judge

would not have abused his discretion had he granted the

request.    Because the military judge was not clearly

erroneous in his findings of fact and he did not base his

decision on an incorrect view of the law,31 we conclude that




30
   The military judge cited United States v. Hall, 93 F.3d 1337
(7th Cir. 1996).
31
   See United States v. Gore, 60 M.J. 178, 187 (C.A.A.F. 2004)
(noting that a military judge will be reversed for an abuse of
discretion only “‘if the military judge’s findings of fact are
clearly erroneous or if his decision is influenced by an
erroneous view of the law.’” “Further, the abuse of discretion
standard of review recognizes that a judge has a range of
choices and will not be reversed so long as the decision remains
within that range.”)(internal citations omitted).



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United States v. Bresnahan, No. 04-0559/AR

he did not abuse his discretion in denying the defense’s

request for expert assistance.

III. Uncharged misconduct evidence

        At trial, the Government attempted to introduce evidence of

prior injuries to Austin, as indicative of child abuse.     More

specifically, the Government wanted to introduce X-rays and

autopsy photographs that revealed that Austin had rib fractures

that were inflicted four to eight weeks before he died.32    The

defense moved in limine to exclude the evidence.    The military

judge denied the motion.

        At trial, Dr. Phillip Gunther, an expert in radiology and

identification of nonaccidental trauma in children, testified

about the injuries evident from the X-rays.    After his

testimony, the military judge sua sponte instructed the members

that any evidence that Austin may have suffered injuries in the

past could be considered only “for the limited purpose of its

tendency, if any, to prove that the alleged injuries under

consideration here were not caused by an accident or inadvertent

act.”    The military judge stated, “it may also be used as proof

that the accused may have intended to inflict those injuries

because evidence of prior injuries may indicate an intent to

injure.”    And he cautioned the members that because there was

“no direct evidence that the accused inflicted” the prior


32
     Bresnahan, No. ARMY 20010304, slip op. at 2.

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United States v. Bresnahan, No. 04-0559/AR

injuries, they may consider the evidence for the purpose of

deciding intent only if they “conclude that the accused

inflicted those injuries. . . .”     Finally, he stated that the

members should “not consider this evidence for any other

purpose, and [they] may not conclude from this evidence that the

accused is a bad person or has criminal tendencies and that he

therefore committed the offense charged.”

     Later, Dr. David Bowerman, the coroner who performed the

autopsy, also testified about the rib fractures.    He stated that

considering the “whole scenario,” including the hemorrhage in

the brain, the retinal hemorrhages, the swelling of the brain,

and the healing rib fractures, Austin’s injuries resulted from

nonaccidental trauma.   At the conclusion of his testimony, the

military judge again instructed the members that the same

instruction he gave earlier regarding the evidence of the rib

fractures would apply to Dr. Bowerman’s testimony.

     Finally, at the conclusion of all the evidence presented by

the Government and the defense, the military judge cautioned the

members regarding the limited purpose for which they could

consider the evidence that Austin suffered injuries in the past.

He stated:

     Evidence that Austin Bresnahan may have suffered injuries
     in the past may be considered by you for the limited
     purpose of its tendency, if any, to prove that the alleged
     injuries under consideration here were not caused by an
     accident or inadvertent act. This is the same instruction
     I gave you earlier. Similarly, it may also be used as


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United States v. Bresnahan, No. 04-0559/AR

     proof that the accused may have intended to inflict these
     injuries because evidence of prior injuries may indicate an
     intent to injure. Note, however, that there was no direct
     evidence that the accused inflicted the prior injuries.
     Therefore, you may consider the evidence of prior injuries
     for purposes of deciding intent only if you conclude that
     the accused inflicted them. You may not consider this
     evidence for any other purpose, and you may not conclude
     from this evidence that the accused is a bad person or has
     criminal tendencies and that he therefore committed the
     offense charged.

     Because no evidence exists that Appellant caused Austin’s

fractured ribs, the Army Court of Criminal Appeals determined

that the military judge abused his discretion by admitting the

uncharged misconduct evidence.33    The Army Court concluded,

however, that the admission was harmless based on the strength

of the Government’s case, the weakness of the defense case, and

the limiting instructions given by the military judge.34

     If a court concludes that uncharged misconduct evidence was

erroneously admitted,35 the military judge’s decision will not be

overturned “unless the error materially prejudices the

substantial rights of the accused.”36    The harmlessness of the

error will be evaluated by “‘weighing:    (1) the strength of the

Government’s case, (2) the strength of the defense case, (3) the

materiality of the evidence in question, and (4) the quality of


33
   Id. at 5.
34
   Id. at 8-9.
35
   See United States v. Reynolds, 29 M.J. 105, 109 (C.M.A. 1989)
(stating the three-part test for admissibility of uncharged
misconduct and noting that the evidence must pass each of the
three parts to be admissible).
36
   Article 59(a), UCMJ, 10 U.S.C. § 859(a) (2000).

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United States v. Bresnahan, No. 04-0559/AR

the evidence in question.’”37   As a question of law, we will

review the Army Court’s application of the harmlessness factors

de novo.38

     We agree with the Army Court’s conclusion that the error

was harmless.   As described above, the Government’s case was

strong.   It consisted of Appellant’s confession to Detective

Malek-Madani that he may have shaken his baby, his statements to

Dr. Gheen and Dr. Caltrider at the hospital that he shook

Austin, and the testimony of five different doctors who each

concluded that Austin died from being shaken.

     Dr. Gheen and Dr. Donald Sceats, a neurological surgeon,

both diagnosed Austin as having a subdural hematoma and

subarachnoid hemorrhage and were both of the opinion that these

injuries were consistent with shaken baby syndrome.     Dr.

Caltrider detected retinal hemorrhaging in the baby’s left eye.

Dr. Caltrider explained that in most shaken baby cases,

hemorrhaging occurs in both eyes.     Unilateral retinal

hemorrhaging is “not the most common type of presentation, but

certainly in probably 20 percent of [shaken baby] cases, it has

been reported to be unilateral.”      Dr. Gunther, the radiologist,

determined that Austin had acute swelling and bleeding in his


37
   United States v. McDonald, 59 M.J. 426, 430 (C.A.A.F. 2004)
(citing United States v. Kerr, 51 M.J. 401, 405 (C.A.A.F.
1999)).
38
   United States v. Rodriguez, 60 M.J. 239, 246 (C.A.A.F. 2004).


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United States v. Bresnahan, No. 04-0559/AR

brain.   He testified that he could narrow the time of injury to

be within the last five to seven days.   Dr. Bowerman, the

coroner, determined the cause of death to be “acute head trauma”

and concluded that the retinal hemorrhage, healing bilateral rib

fracture, and subdural and subarachnoid hemorrhage were

consistent with child abuse and shaken baby syndrome.   This

medical testimony clearly established the cause of death, and

the defense did not contest that the nature of Austin’s death

was nonaccidental at trial.

     If the members believed the doctors’ testimony, then Austin

died at the hands of either Appellant or his wife.   Appellant

and his wife were the only two who were with Austin on the

morning he died.    Moreover, both testified that Appellant was

the one who carried Austin from the bedroom back to his bed and

was therefore the last one to see Austin before he suffered his

fatal injuries.

     On the other hand, the defense case was weak.    A nurse-

midwife testified that Appellant accompanied his wife to her

prenatal appointments and seemed interested in the development

of her pregnancy.   Major Craig Webb, M.D., an expert in

pediatrics, child abuse syndrome, and child abuse, testified

that Appellant’s wife kept their home in a way that signaled

neglect, increasing the risk of abuse.   Except for this

testimony regarding the neglectful state of the home, the



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United States v. Bresnahan, No. 04-0559/AR

defense put on no evidence that Appellant’s wife, rather than

Appellant, caused Austin’s death.    Major Webb also opined,

however, that Austin ultimately died from shaken baby syndrome.

Another doctor, Dr. Stephen Smith, testified that he disagreed

with the conclusion that Austin died from shaken baby syndrome

and concluded that instead he died from “a blunt flat blow”     to

the head.   But Dr. Bowerman, the coroner, directly contradicted

this testimony by testifying that he did not find any evidence

of a blunt blow to Austin’s head.    Finally, one of Appellant’s

supervisors testified to his good duty performance.

     During instructions, the military judge pointed out to the

members three different times that no direct evidence existed

that Appellant previously injured Austin.    He cautioned the

members that they could use the evidence for the limited purpose

of “its tendency, if any, to prove that the alleged injuries

under consideration here were not caused by an accident or

inadvertent act.”

     Furthermore, the evidence of the healing rib fractures

created little risk of unfair prejudice toward Appellant.      The

only viable suspects in this case, as noted above, were

Appellant and his wife.   Either could have caused the previous

injury.   Accordingly, the evidence did little, if anything, to

suggest that it was Appellant rather than his wife who caused

the fatal injuries to Austin.   The evidence’s true import was



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United States v. Bresnahan, No. 04-0559/AR

that it made it more likely that Austin’s fatal injury was

caused by abuse rather than by accident -– an issue that was not

in dispute.

      Weighing the strength of the Government case against

Appellant, including the materiality and quality of the

Government’s evidence, against the weakness of the defense case

and the lack of any real risk of unfair prejudice to Appellant,

we conclude that any error in admission of the uncharged

misconduct evidence was harmless.

IV.   Profile evidence

      During cross-examination of Major Webb, the defense witness

who attempted to establish Appellant’s wife as the perpetrator,

the trial counsel asked Major Webb if he was aware of a study

that revealed that seventy-nine percent of all shaken baby cases

are perpetrated by male caregivers.    Major Webb acknowledged his

awareness of the study.   The trial counsel then asked Major Webb

if he was aware of a second study, published four years later,

which revealed that seventy percent of shaken baby cases were

perpetrated by male caregivers.    Major Webb similarly agreed

that he was aware of the study.    The defense did not object to

these questions and responses.    Appellant now asserts that the

military judge committed plain error by allowing the Government

to introduce inadmissible profile evidence against Appellant.




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United States v. Bresnahan, No. 04-0559/AR

     Under the plain error standard, Appellant must show that

any error was plain and obvious and that it resulted in an

“unfair prejudicial impact on the [members’] deliberations.”39

Profile evidence is defined as “evidence that presents a

‘characteristic profile’ of an offender, such as a pedophile or

child abuser, and then places the accused’s personal

characteristics within that profile as proof of guilt.”40

Generally, the use of any “profile” characteristic as evidence

of guilt or innocence is improper at a criminal trial.41    Profile

evidence is admissible “only in narrow and limited

circumstances.”42    For example, it is admissible in rebuttal when

a party opens the door by presenting potentially misleading

testimony.43

     In this case, we agree with the Government that the trial

counsel was within the proper bounds of rebuttal when he cross-

examined Major Webb about the study.    The defense had opened the

door to such questioning by having Major Webb testify about

various “factors” that pointed to Appellant’s wife as the one

who killed Austin.    Major Webb testified about the various


39
   United States v. Powell, 49 M.J. 460, 463 (C.A.A.F. 1998).
40
   United States v. Traum, 60 M.J. 226, 234 (C.A.A.F. 2004)
(citing United States v. Rynning, 47 M.J. 420, 422 (C.A.A.F.
1998)).
41
   Id.
42
   United States v. Banks, 36 M.J. 150, 162 (C.M.A. 1992).
43
   Id.




                                  24
United States v. Bresnahan, No. 04-0559/AR

stresses that Appellant’s wife was under that increased the risk

of child abuse.   Such factors included a recent move, financial

problems, the long hours Appellant worked that kept him away

from the home, being the caretaker of two very young children,

and having a chronically-ill child.   Major Webb testified that

Appellant’s wife was responsible for the cleanliness of the

household and that the conditions of the house indicated that

she was neglectful in her housekeeping duties.   Major Webb also

testified that her neglect signaled abuse.

     The trial counsel was responding to the defense’s attempt

to establish Appellant’s wife as the perpetrator because she had

bad habits of uncleanliness by highlighting the fact that two

different studies found males to be the primary perpetrators in

shaken baby cases.   The trial counsel was not relying on the

expert himself to establish that Appellant, as a male, was the

perpetrator.   In fact, the trial counsel did not use this

evidence at all during the Government’s case-in-chief.   Rather,

the trial counsel was questioning the witness’s knowledge of

studies performed by other doctors pointing to a characteristic

of Appellant that was statistically linked to shaken baby cases

to rebut Major Webb’s testimony that certain factors pointed to

Appellant’s wife as most likely the perpetrator.   The defense

had opened the door to this otherwise impermissible question.




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United States v. Bresnahan, No. 04-0559/AR

     Moreover, even if the military judge erred in not sua

sponte excluding such testimony, the error was not plain and

obvious.   And, for many of the same reasons articulated in the

harmlessness analysis in the uncharged misconduct issue above,

any error in admitting this evidence was harmless.

                            CONCLUSION

     The decision of the United States Army Court of Criminal

Appeals is affirmed.




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United States v. Bresnahan, No. 04-0559/AR


     ERDMANN, Judge, with whom EFFRON, Judge, joins

(dissenting):

     The majority holds that the military judge did not abuse

his discretion in denying the defense request for expert

assistance on the subject of false confession.    Because I find

that the military judge applied an incorrect standard to the

defense request for expert assistance and that the defense made

an adequate showing that expert assistance was necessary, I

would hold that the military judge abused his discretion and

would reverse the decision of the lower court.1

     In denying the defense request for assistance from an

expert consultant the military judge concluded:

          a.    There is nothing in the evidence
                received to support any suspicion that
                Accused made false incriminating
                statements or admissions.

          b.    Defense candidly admitted that it was
                requesting Dr. Leo’s assistance to make
                a preliminary determination of whether
                accused made false statements. Stated
                differently, defense counsel is
                searching for evidence that would
                assist in her defense of accused, but
                with little evidence to indicate such
                evidence exists.

Similar to the military judge, the majority relies on a finding

that “defense counsel never presented any evidence to suggest

that Appellant’s confession was actually false.”   United States

1
  Because I would reverse on Issue II, I would not reach the
remaining issues.
United States v. Bresnahan, No. 04-0559/AR


v. Bresnahan, __ M.J. __, __ (16) (C.A.A.F. 2005).     The majority

also notes that the military judge made findings of fact that

support a conclusion that Bresnahan did not make a false

confession.   Id.    In upholding this ruling of the military

judge, I am concerned that the majority sets the bar

unreasonably high for defendants who are seeking the assistance

of an expert consultant in order to prepare and fairly present a

defense.

     Bresnahan needed to show a reasonable probability “‘both

that an expert would be of assistance to the defense and that

denial of the expert assistance would result in a fundamentally

unfair trial.’”     United States v. Gunkle, 55 M.J. 26, 31

(C.A.A.F. 2001) (quoting United States v. Robinson, 39 M.J. 88,

89 (C.M.A. 1994)).    The conclusion reached by both the military

judge and the majority suggests that the “assistance to the

defense” referenced in this test must be in the form of

favorable testimony or favorable evidence.    Bresnahan, __ M.J.

at __ (16).   However, when a defendant requests assistance from

an expert consultant, rather than an expert witness, he should

not initially be required to show conclusively that evidence

favorable to his case exists.

     “Consulting with an expert will often be a necessary

precondition to establishing the expert’s necessity as a

witness.”   United States v. Warner, __ M.J. __, __ (22)


                                   2
United States v. Bresnahan, No. 04-0559/AR


(C.A.A.F. 2005).   Trial defense counsel made clear to the

military judge that “the defense is asking for an expert

consultant at this time, not an expert witness . . . .”

Bresnahan needed Dr. Leo’s assistance to determine whether there

was evidence to present in support of his contention that his

confession was unreliable and that elements of it were false.

If Bresnahan were able to develop evidence that his confession

was false prior to receiving expert assistance, then he would

not need the assistance at all.   Requiring “evidence that such

evidence exists” as the military judge did here is circuitous

reasoning.

     To address this “classic military defense counsel

dilemma[,]”2 where defense counsel requests an expert consultant

I would require defense counsel to make a colorable showing that

a given defense may be reasonably available to the defendant.

Using the three-prong test from United States v. Gonzalez, 39

M.J. 459, 461 (C.M.A. 1994), the defendant would then be

required to show that the expert consultant is necessary to

evaluate and potentially present that defense.3   In this

instance, Bresnahan made just such a showing.


2
  United States v. Warner, __ M.J. __, __ (21) (C.A.A.F. 2005)
(quoting United States v. Kreutzer, 59 M.J. 773, 777 n.4 (A. Ct.
Crim. App. 2004), aff’d, 61 M.J. 293 (C.A.A.F. 2005)).
3
  I note also that this court has found defense counsel to have
provided ineffective assistance where they have failed to
explore potential defenses available to a defendant. See, e.g.,


                                  3
United States v. Bresnahan, No. 04-0559/AR


     Although Bresnahan’s confession was voluntary and therefore

admissible at trial, the defense counsel made a colorable

showing that there was a reasonable possibility she could raise

doubt in the members’ minds as to the reliability of that

confession.   This was a viable, distinct, and perhaps crucial

avenue for the defense to explore.

          Confessions, even those that have been found
          to be voluntary, are not conclusive of
          guilt. . . . [S]tripped of the power to
          describe to the jury the circumstances that
          prompted his confession, the defendant is
          effectively disabled from answering the one
          question every rational juror needs
          answered: If the defendant is innocent, why
          did he previously admit his guilt?

Crane v. Kentucky, 476 U.S. 683, 689 (1986).




United States v. Wean, 45 M.J. 461, 463 (C.A.A.F. 1997) (finding
that one of the bases for a finding of ineffective assistance by
trial defense counsel was that “defense counsel’s approach to
the use of expert witnesses by the Government, coupled with his
omission in not using expert testimony, demonstrated a lack of
understanding of the law and a failure to properly research and
investigate appellant’s case.”); United States v. Scott, 24 M.J.
186, 192 (C.M.A. 1987) (“A defense counsel has ‘the duty . . .
to conduct a prompt investigation of the circumstances of the
case and to explore all avenues leading to facts relevant to the
merits of the case and the penalty in the event of
conviction.’”) (quoting ABA Standards, The Defense Function,
Standard 4-4.1 (2d ed. 1979)). Trial defense counsel was
attempting to diligently explore the circumstances surrounding
Bresnahan’s confession and the meaning of those circumstances.
The confession was critical evidence in the Government’s case.
Had she not attempted to explore the reliability of this
confession Bresnahan may well have had a case for ineffective
assistance of counsel, and yet she was thwarted in her attempt
by the military judge’s denial of an expert consultant to assist
her.


                                 4
United States v. Bresnahan, No. 04-0559/AR


     Trial defense counsel told the military judge that the

defense was focusing on Bresnahan’s emotional state at the time

of the confession because “as noted by some of the literature,

in situations where there are child abuse, medical questions

asked, those are situations that can typically have the

counterintuitive notion of false confessions come about.”   She

also identified for the military judge several factors based on

her own research that might suggest that Bresnahan gave a false

confession including:   (a) the sophistication of the

interrogators; (b) the fact that Bresnahan was not able to speak

to doctors about the condition of his son; and (c) the fact that

the interrogator told Bresnahan that he needed to tell her what

he did to his son so that the doctors could save his son’s life.

Finally, she noted that this research was the defense’s:

          feeble attempt to do what the defense
          expects Dr. Leo will do with precision and
          expertise -- review the evidence, interview
          the witnesses, apply known factors in his
          field of expertise to the facts of this case
          and determine the likelihood of a false or
          coerced confession based on the employment
          of coercive interrogation techniques.

               . . . The defense can go no further in
          developing this line of defense and needs
          expert assistance. Perhaps the defense can
          go no further even with this assistance, but
          the defense needs an expert to so advise or
          to help further develop this defense.

     Not only did defense counsel show that an attack on the

reliability of the confession was reasonably available, the


                                 5
United States v. Bresnahan, No. 04-0559/AR


three-prong Gonzalez test was also satisfied.     Trial defense

counsel made clear that she needed the expert to explore and

help develop the case and the possibility that parts of

Bresnahan’s confession were false.   The need for an expert

consultant was supported by a detailed summary of the scientific

validity and difficulty of this issue as well as a list of

several factors indicating coercive techniques that might have

lead Bresnahan to give a false confession.

     Defense counsel explained that the expert could recognize

and identify factors in the interrogation process and in

Bresnahan’s emotional state that might support this contention.

She also explained that her own research was not enough to allow

her to fully explore the subject because there was too much

material and evaluating it required greater expertise than she

possessed.   In particular, defense counsel noted that because of

the depth and complexity of this area, the defense could not

properly educate itself in this area for trial.

     Under these circumstances it is clear that the expert

assistance Dr. Leo could provide was necessary to the defense.

The majority does not contest the fact “that Dr. Leo possessed

knowledge and expertise in the area of police coercion beyond

that of defense counsel and that the defense counsel could

benefit from his assistance.”   Bresnahan, __ M.J. at __ (15).

Furthermore, it is clear that without the assistance of Dr. Leo,


                                 6
United States v. Bresnahan, No. 04-0559/AR


trial defense counsel was denied the opportunity to explore a

reasonable issue that went to the center of the Government’s

case.    If the members had found Bresnahan’s confession

unreliable then they might not have found beyond a reasonable

doubt that he had caused the injuries to Austin.    Denying

Bresnahan the opportunity to present this defense therefore

resulted in a “fundamentally unfair trial.”    Gunkle, 55 M.J. at

31.

        I would find that the military judge abused his discretion

in denying the defense request for expert assistance, reverse

the decision of the United States Army Court of Criminal

Appeals, set aside the findings and sentence, and authorize a

rehearing.




                                   7
