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 Center & 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. Choike, JA; Captain Jaclyn
E. Shea, JA (on brief).


                                    23 June 2015

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                             OPINION OF THE COURT
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CAMPANELLA, Judge:

       A panel of officer and enlisted members sitting as a general court-martial
convicted 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 years, forfeiture of all pay and allowances, and reduction to the grade of E-1.
The convening authority approved the adjudged sentence and credited appellant with
142 days of confinement credit against his sentence to confinement.
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       This case is before us for review pursuant to Article 66, UCMJ. Appellant
raises two assignments of error. Both warrant discussion but not relief. First,
appellant 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 the standards of review for providing expert assistance versus an expert
witness in his written findings of fact and conclusions of law. In conducting our
own analysis, however, we agree with his ultimate conclusion that appellant did not
carry the burden of demonstrating his entitlement to false confession expert
assistance. Second, appellant asserts the military judge committed 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 Wife

       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 overdose. 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.
As 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 July 2011, appellant went camping at Lake Truman, Missouri, with six
others – three males and three females. The reasons 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 around.”



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Appellant and MG then hugged and went on with their evening , gathering with the
others around the campfire.

       The next morning appellant traveled 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 inside 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 in the covered bed of
the truck. The others slept inside the second vehicle.

       Early the following morning of 31 July 2011, MG could not be located. After
an unfruitful search for MG, the group called the police for help. Appellant left the
lake around 0900 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 loaned his phone to police to assist in the search. Appellant left the lake
around 1600 to attend his wife’s wake that evening, followed by dinner with his
family and others who attended the wake. That evening, after an emotional day,
appellant was driven home by his friend.

      c. The Interrogation

       The following day, appellant went to a department store, bought a suit, and
went directly to his wife’s funeral. After the funeral at about 1530 hours,
accompanied by his brother and others, appellant went to the Sheriff’s Office to
retrieve his friend’s phone. While there, appellant 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 MG’s
disappearance.

       The investigator discussed the statement with appellant and became
suspicious of appellant’s involvement due to his demeanor and the contents of his
written statement. The investigator left the room and spoke to the local prosecutor.

        The investigator re-entered the room and told appellant he would be
recording the interview. He reminded appellant of his Miranda rights, which
appellant waived a second time, then the investigator continued to question him.
Appellant changed his story after the investigator told him MG had been found dead
in the water. Appellant’s second written sworn statement indicated appellant had
found MG already unconscious near the campfire , got scared, and placed MG’s body
in the lake. Finding the story incomplete and unbelievable, the interrogator
continued to question appellant.




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       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 moved MG’s unconscious body into 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
he had slept with appellant’s wife.

       The investigator’s tone throughout the recorded portion of the interrogation
was supportive 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 involvement and progressively making appellant more comfortable with making
admissions by 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 was needed and how he would be
used. In support of the motion, appellant signed an affidavit disavowing his
confession. Also, prior to trial, a Rule for Courts-Martial [hereinafter R.C.M.] 706
board diagnosed appellant with “Bereavement” under the Diagnostic and Statistical
Manual 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 consultant. 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,
without 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.




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

       We review a military 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 ruling 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). Upon 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 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.” Id. (quoting Gunkle, 55 M.J. at 31).




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       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 assistant would be able to develop.

       We first turn to the military judge’s written findings of fact. While the
military judge’s findings of fact are not inaccurate, 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). We find additional relevant facts related
to appellant’s request 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 bereavement 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 legal principles used by the judge. We note in his written
ruling, the military judge correctly identified 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 whether 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. The military judge’s written ruling blurred the standards between
a request for expert assistance and a request for an expert witness. Initially, the
military judge correctly noted the reason for the expert assistance request was
because the defense identified indicia of a possible false confession, and they needed
an expert to help them evaluate the case. The military judge then wr ote as follows:

             This argument assumes that so called false confession
             opinion testimony would be relevant and admissible under
             the rules of evidence and applicable law. Furthermore,
             the defense has 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 factual determinations.” Ryder v. United States, 515 U.S. 177, 188 (1995).



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             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
             and has gathered and presented the evidence 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 the military
judge’s concerns related to expert testimony 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 of the law,
and we are left to review this issue de novo. 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 Gonzalez 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 appellant’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 the 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 failed to meet its
evidentiary burden in demonstrating need. While the defense has offered some
suggestions that appellant’s confession may have been false (including appellant’s




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self-serving affidavit disavowing his confession) , 2 defense counsel ultimately
admitted the request for expert assistance was needed to help them determine the
voluntariness and trustworthiness of the appellant’s confession. Defense counsel
does 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 bereavement at his
R.C.M. 706 board, defense counsel failed to link this assessment to the notion of
false confession. In fact, defense counsel specifically stated it needs expert
assistance to run a series of psychological 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 defense 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, defense counsel
justified their request for an expert assistant to review 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, 55 M.J. at 31). For
the third factor, defense counsel did not adequately meet their evidentiary burden to
demonstrate why the defense team could not gather and present the evidence that the
expert assistant would be able to develop in this case. See Gonzalez, 39 M.J. at 461.

       We agree with the ultimate conclusion that the defense motion for expert
assistance should have been denied based on what the defense proffered.

           II. The Presumptive Hemoglobin Test and Admission of the Rock

       Appellant argues the military 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 what occurred during the interrogation that produced a false
confession. We accordingly give this disavowal less weight.


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omitted). Here, we are convinced appellant deliberately decided not to object to the
admission of the rock. In fact, he 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. Hill, 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 between 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 test in Hill. Appellant has not met his burden in
demonstrating that the admission of the blood test was plain or obvious error.

       That said, even 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-examination 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 presumptive blood test into evidence.




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                                CONCLUSION

       Upon consideration of the entire record and the submissions of the parties we
hold the findings of guilty and the sentence are AFFIRMED.

      Senior Judge TOZZI and Judge CELTNIEKS concur.

                                       FOR THE
                                       FOR THE COURT:
                                               COURT:




                                       MALCOLM
                                       MALCOLM H.  H. SQUIRES,
                                                      SQUIRES, JR.
                                                               JR.
                                       Clerk
                                       Clerk of
                                             of Court
                                                Court




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