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****CORRECTED COPY - DESTROY ALL OTHERS****

UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

 

UNITED STATES

,_,__n`._,_,...____`v.__.._________.___ ________._._____ _.,_

Airman First Class JAMES M. KERNS
United States Air Force

ACM 38793
_ M.J. _
PUBLISHED oPINIoN oF THE CoURT

22 Septemb~er 2016`

l

Sentence adjudged 4 Decernber 2014 by GCM convened at Seymour-
Johnson Air Force Base, North Carolina. Military Judge: Wendy L.
Sherman.

Approved sentence: Dishonorable discharge, confinement for 4 years,
_ total forfeiture of pay and allowances, and reduction to E-l.

Appellate C'ounsel for Appellant: Major Mich`ael A. Schrarna.

Appellate Counsel for the United States: Colonel Laura J. Megan-
Posch; Maj or Jererny D. Gehman; Maj or Meredith L. Steer; and Gerald
R. Bruce, Esquire.

Before

SANTORO, SPERANZA, and HARDING
Appellate Military Judges

PUBLISHED OPINION OF THE COURT

SANTORO_, Judge:

Officer members sitting as a general court-martial convicted Appellant, contrary to
his pleas, of violating a no-contact order on divers occasions, striking his Wife With his iist,
strangling her vvith a phone charger cable and his hands, throwing her to the ground,
slamming her head into the iloor, pulling her-hair, covering her mouth With his hands,

 

 

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forcing her legs apart, killing her cat, and threatening that he would burn down their home,

in violation of Articles 92, 128, and 134, UCl\/IJ, 10 U.S.C. §§ 892, 928, 934. Appellant

was found not guilty of three specifications of rape, two specifications of sexual assault

(charged as alternatives to the rape specifications), two specifications of aggravated assault,

one specification of Simple assault, and an additional specification of communicating

`“"_‘" _ _’ "another'threatto SK._Th'e"'adjudged"and‘approved sentence was"a‘dishonorable'discharg g "'_ ""“_‘ “"
confinement for four years, total forfeiture of pay and allowances, and reduction to E-l.

Appellant raises six assignments of err`or: (l) the staff judge advocate erred in the
post-trial recommendation to the convening authority; (2) the sentence is inappropriately
severe; (3) the findings of` guilty are factually insufficient; (4) the military judge erred in 1
denying the motion to suppress Appellant’s statements to investigators; (5) the court-
martial lacked subject-matter jurisdiction over an Article 134, UCMJ, offense; and (6) the
military judge erroneously denied a motion to sever. We find that the military judge abused .
her discretion in denying Appellant’s motion to suppress ; the court-martial had jurisdiction
over the Article 134, UCMJ, offense at'issue; and the military judge did not err in denying _
the motion to sever. The remaining assignments of error are rendered moot by our L
resolution of the suppression issue.

Background

Appellant joined the Air Force in December 2012. Five months later~, in May 2013,
he and SK married after having dated for approximately two weeks. Appellant, SK, and
SK’s infant daughter moved into base housing shortly thereafter.

Later in 2013, SK learned that Appellant had been frequenting online dating sites
and exchanging e-mails with women she did not know. SK suggested divorce. Appellant
became angry and told SK that divorce “was not an option.”'

Their relationship continued to deteriorate. On 14 December 2013, Appellant and
SK argued about the location of a cellular telephone SK testified that Appellant blocked
her from leaving their bedroom, threw her onto the bed, slammed her head against the wall,
and repeatedly punched her in the torso. A houseguest who was present during the
altercation called 9-l-l. Military and civilian law enforcement responded Civilian police
arrested Appellant and SK, both of whom spent three days in jail. Civilian prosecutors ‘
filed criminal charges against both individuals but later dropped all charges t

 

The relationship between Appellant and SK improved for a short time but ultimately
devolved into acrimony. SK testified that on one occasion after returning home from
visiting a friend, she lay in bed next to Appellant watching a movie when, without warning,
he grabbed and choked her with his hands and then with a cellular telephone charging
cable. He then grabbed SK by the hair, slammed her face into the floor, and shoved her j
into a closet. When SK tried to flee, Appellant grabbed her and prevented her from leaving.

2 _ ACM 38793

Appellant also grabbed a knife, put it to his throat, and told SK he was going to kill himself.
SK testified that she was able to stop the assault by convincing Appellant that she loved
him and wanted to have sex with him.

SK reported the assault the following day, which led to Appellant’s first interview

sergeant and, later, his commander issued “no-contact” orders directing Appellant not to
communicate with SK.

Appellant was ordered to live in the dormitory so SK and her daughter could remain
in their home. SK, however, decided to take her daughter to Kentucky where they had
family. Appellant repeatedly contacted SK by telephone and text message and sent her
flowers, apologizing for his behavior and asking if they could “work things out.”

l When SK returned from Kentucky, she found Appellant waiting for her at their
home. He had placed a mattress on the living room floor and made a display of several
items from their wedding, including photographs and SK’s wedding dress. An argument
quickly ensued. Appellant told SK that after she left for Kentucky, he broke her eight-
week old kitten’s legs, snapped its neck “to put it out of its misery,” and threw it in the
trash. SK’s tears at hearing this further enraged Appellant, who choked her and covered
her mouth. ` »

As the argument progressed, Appellant told SK he wanted to have sex with her. She
testified that although she said “no,” Appellant forced her legs apart and lay on her,
' Eventually she allowed him to have sex with her, but when the sex ended quickly,
Appellant became angrier. He went to the garage and returned with a container of gasoline,
which he placed on the kitchen floor. He told SK he was going to set her and the house,
with her infant daughter in it, on fire. Appellant eventually left the residence and SK
reported the incident to law enforcement later that day.

Pursuant to Mil. R. Evid. 413, the Govemment offered testimony from AG. AG
attended high school with Appellant and testified that when she was 14 or 15 years old,
Appellant repeatedly raped and forcibly sodomized her during what was, at other times, a
consensual sexual relationship AG also testified that during one of the rapes, Appellant
physically restrained her with zip ties. AG reported the assaults to civilian law
enforcement She said the police talked her out of going forward with the case.

Additional facts necessary to resolve the assignments lof error are included below.
Dem`al of Motz'on to Suppress

Appellant argues that the military judge erred when she denied his motion to
v suppress statements he made to investigators We review a military judge’s denial of a

 

3 ACM 3 8793

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'motion to suppress for an abuse of discretion. Unz'z‘ed Sz‘ates v. Chatfz`eld, 67 M.J. 432, 437

(C.A.A.F. 2009) (citing Unz`tea'States v. Pz'pkz'n, 58 M.J. 35 8, 360 (C.A.A.F. 2003)). Under
this standard, the military judge’s findings of fact are upheld unless they are clearly
erroneous or unsupported by the record. Unz'ted States v. Leea’y, 65 M.J. 208, 213
(C. A. A. F. 2007). We review de novo any conclusions of law supporting the denial of a

discretion when (l) the findings of fact upon which she predicates her ruling are not
supported by the evidence of record; (2) incorrect legal principles were used; or (3) her
application of the correct legal principles to the facts is clearly unreasonable Unz`red Smtes
v. EZZZ`S,'68 M.J. 341, 344 (C.A.A.F. 2010) (citing Um'tea’ Sz‘az‘es v. Mackz`e, 66 M.J. 198,

199 (C.A.A.F. 2008)).

While the military judge made extensive findings of fact, the findings critical to the
resolution of this issue are few. Those noted here are supported by the record and not
contested by Appellant. On 18 January 2014, law enforcement was dispatched to
Appellant’s residence SK told responding personnel that Appellant physically assaulted
her and, in an attempt to get Appellant to stop the assault, she convinced him to have sex.
AFOSI agents transported Appellant to their office Special Agent (SA) PA advised
Appellant of his rights under Article 31, UCMJ, 10 U.S.C. § 831, and told him he was
suspected of “assault.” Appellant acknowledged his'rights and requested legal counsel.
SA PA terminated the interview.

Ten days later, on 28 January 2014, AFOSl agents met SK at her residence for a
previously-scheduled follow-up interview During the interview, SK provided additional

details about the 18 January incident and also alleged that Appellant had committed new _

crimes-violation of a no- -contact order, physical assault and forced sexual intercourse_
that same day, 28 January, before the agents arrived.

After taking this second statement from SK, agents arranged to have Appellant
brought to his first sergeant’s office AFOSI apprehended Appellant there and transported
him to the AFOSI detachment in handcuffs SA PA brought Appellant into an interview
room and told him that they wanted to discuss what had occurred that day but that they did
not intend to talk about the events of` 18 lanuary. SA PA further told Appellant that he was
now suspected of “sexual assault.” Appellant said he understood his rights, did not want

an attorney present, and was willing to speak with investigators SA PA began the _

questioning by asking, “What has happened in your life from [19 January] until five
minutes ago when we put you in handcuffs?”

During the subsequent discussion, Appellant repeatedly referred to what happened
on 18 January. SA PA did not directly ask any questions about the l8th, but after Appellant
referred to that day several times, SA PA asked him if he wanted to talk about that as well.
Appellant responded that he did. SA PA then re-advised Appellant of his Article 31,

4 ACM 3 8793

-motion to suppress a confession €hatfzela',- 67- M. J. at -43~7._A- -military judge- -abuses her_~»_~-_~---~

 

451 <'”\

UCMJ, rights, this time for ‘assault” on 18 January. Appellant acknowledged and waived
his rights

Appellant argues that his 28 January statement should have been suppressed because
,the same agent who interviewed him on both the 18th and 28th knew Appellant had
- - _- -previously~requested counsel~for- the~~1~8-J anuary'incident and-‘»"rnerel~y~ characterized [~the'2~8--~--~~»-_- ~- ~
January incident] as potentially violating a different statute” In support of his argument, d
Appellant cites Article 31, UCMJ, the Military Rules of Evidence, and decisions of the
United States Supreme Court interpreting and applying the Fifth Amendment, but
Appellant does not clearly identify the right(s) he claims was violated.

The oft-cited right to remain silent and right to have counsel present have multiple
sources: the United States Constitution, specifically the Fifth and Sixth Amendments; the |
Uniform Code of Military Justice; the Military Rules of Evidence; and decisions of our 4
superior courts interpreting these rights1 While the protections afforded an accused by
these sources may overlap, they are not coextensive and require independent analysis See j
y United States v. E'vans, 75 M.J. 302, 305 (C.A.A.F. 2016). 1

a. Consz‘z`z‘utz'onal Protectz'ons -

The Fifth Amendment to the United States Constitution states, in part, that “[n]o
person . . . shall be compelled in any criminal case to»be a witness against himself.”2 In
Miranda v. Arz'zona, 384 U.S. 436 (1966), the Supreme Court adopted a set of prophylactic
measures to protect a suspect’s Fifth Amendment right from the “inherently compelling
pressures” of custodial interrogation Id. at 467. The Court noted that being held
“incommunicado” in an “unfamiliar,” “police-dominated atmosphere,” id. at 456-57,
involves psychological pressures “which work to undermine the individual’s will to resist
and to compel him to speak where he would not'otherwise do so freely.” Ia’. at 467.

To combat the possible coercive effect of those pressures, Mz'rana’a created a rule
that police officers must warn a suspect prior to custodial interrogation that he has the right
to remain silent and the right to the presence of an attorney. After the warnings are given,
the interrogation must cease if the suspect indicates that he wishes to remain silent. lf the
suspect states that he wants an attorney, the interrogation must cease until an attorney is
present. Ia’. at 474. ,

 

Later, in Edwards v. Arizona, 451 U.S. 477 (1981), the Court added a second
protective layer, holding that once an accused has invoked his right to have counsel during
a custodial interrogation, “[he] is not subject to further interrogation by the authorities until

 

1 The Sixth Amendment right to counsel is inapplicable to this case as charges had not yet been preferred at the time
of either interview. Kl`rby v. Illz'noz's, 406 U.S. 682, 688 (1972) (plurality opinion); United States v. Adams, 45 C.M.R.
175, 179 (1972); Mil. R. Evid. 305(0)(3).

2 U.S. CONST. amend. V.

 

5 ACM 38793 j
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counsel has been made available to him, unless the accused himself initiates further
communication, exchanges, or conversations with the police.” 451 U.S. at 484-85. ~

The Court’s rationale in Edwards is that once a suspect indicates that “he is not
capable of undergoing [custodial] questioning without advice of counsel, . . . any

instigation, is itself the product of the ‘inherently compelling pressures’ and not the purely
voluntary choice of the suspect.” Arz`zona v. Roberson, 486 U.S. 675, 681 (1988) (citations
omitted).

The prohibition of subsequent custodial interrogation applies even when the later
interrogation is about a different 'crime, z`d., or when the subsequent interrogation is
conducted by a different law enforcement authority. Minnz`ck v. Mssz`ssippz`, 498 U.S. 146
(1990). lt applies even when the suspect has consulted an attorney during the interim. Ia’.

Four years before Appellant’s trial, in Maryland v. Shatzer, 559 U.S. 98 (2010), the

Supreme Court was confronted with the question of whether law enforcement can re- '

initiate interrogation after the right to counsel has been invoked and there has been a break
in custody. The Supreme Court noted that the “implicit assumption” in the Ea'wards rule

is that the subsequent requests for interrogation pose a
significantly greater risk of coercion. That increased risk
results not only from the police’s persistence in trying to get
the suspect to talk, but also from the continued pressure that
begins when the individual is taken into custody as a suspect
and sought to be interrogated_pressure likely to ‘increase as
custody is prolonged.’ The Edwam's presumption of
involuntariness ensures that police will not take advantage of
the mounting coercive pressures of ‘prolonged police custody’
by repeatedly attempting to question a suspect who previously
requested counsel until the suspect is ‘badgered into
submission.’ s

Id. at 105 (citations omitted).

The “paradigm” Edwards case is one in which a suspect has been arrested for a
particular crime and is held in uninterrupted pretrial custody while that crime is being
actively investigated Ia’. “After the initial interrogation, and up to and including the
second one, he remains cut off from his normal life and companions, ‘thrust into’ and
isolated in an ‘unfamiliar,’ ‘police-dominated atmosphere,’ where his captors ‘appear to
control [his] fate.”’ Ia’. (citations omitted).

6 ACM 38793

'_ __--- vsubsequent-waiver that ~ha~s ~ come~at-the~authorities3 ~b ehest;~and~-not-at~the- suspect-’~‘~s -own--_---~_--

 

The Court also noted, however,. that when

a suspect has been released from his pretrial custody and has
returned to his normal life for some time before the later
attempted interrogation, there is little reason to think that his

 

 

 

change"of".h'e'art"regardingintenogation"without*counsel"ha's_'_
been coerced. 'I-Ie has no longer been isolated. He has likely
been able to seek advice from an attorney, family members,
and friends And he knows from his earlier experience that he
need only demand counsel to bring the interrogation to a halt;
and that investigative custody does not last indefinitely In
these circumstances it is farfetched to think that a police
officer’s asking the suspect whether he would like to waive his
Mimnda rights will any more ‘wear down the accused’ than
did the first such request at the ' original attempted
interrogation_which is of course not deemed coercive His
change of heart is less likely attributable to ‘badgering’ than it
is to the fact that further deliberation in familiar surroundings
has caused him to believe (rightly or wrongly) that cooperating
with the investigation is in his interest.

Ia’. at 107-08.

To resolve this tension, the Court established a bright-line rule that Edwards’
prohibitions would not apply when there has been at least a 14-day break in custody
between initial and subsequent custodial interrogations Id. at 110-11. Among other
benefits, the l4-day rule prevents police from releasing a suspect from custody, even if
only for-a few moments or days, to enable them to reinitiate questioning Id.

Our superior court has cited Shatzer in only one case and'for a proposition other
_ than the l4-day bright line rule, but nothing in our superior court’s treatment of Shaz‘zer
suggests that the l4-day rule is inapplicable to the military. United States v. Hutchz'ns, 72
M.J._294, 298 (C.A.A.F. 2013). To the contrary, our superior court cited Shatzer as it
concluded that the government had violated an accused’s Fifth Amendment right to counsel
by not providing him with an attorney after he requested one Ia’.

b. Proz‘ectz`ons Provz`a’ed by the UCMJ
Article 31(b), UCMJ, states:
No person subject to this chapter may interrogate, or request

any statement from, an accused or a person suspected of an
offense without first informing him of the nature of the

7 ACM 3 8793

 

 

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accusation and advising him that he does not have to make any
statement regarding the offense of which he is accused or
suspected and that any statement made by him may be used as
evidence against him in a trial by court-martial

suspected of an offense, the questioner must advise the person of his or her rights under
Article 3l(b), UCMJ. Our superior court has repeatedly affirmed that spontaneous
statements although possibly incriminating, are not within the bounds of Article 31,
UCMJ. See, e.g., United States v. Lz`chz‘enhan, 40 M.J. 466, 470 (C.M.A. 1994); United
States v. Vz'rale~, 34 M.J. 210, 212 (C.M.A. 1992).

As our superior court recently noted in Evans, “when an Article 3_l(b), UCMJ,
violation occurs, the appropriate test for prejudice depends on the facts and circumstances
presented.” 75 M.J. at 303. Our superior court set forth which test applies:

lf the Article 3 l(b), UCMJ, violation also implicates the
constitutional rights of the accused, then the harmless beyond
a reasonable doubt test applies But if the Article 31(b), UCMJ,
violation stands alone as a statutory violation (that is, if the
violation does not also present a constitutional violation) then
the nonconstitutional test for prejudice_spelled out in United
States v. Kerr, 51 M.J. 401, 405 (C.A.A.F. l999)-applies.

Evans, 75 M.J. at 303.
c. Implementation ofthe Proz‘ectz`ons and Prz'vileges by the Military Rules of Evidence3

The Military`Rules of Evidence also recognize that the privileges and protections
emanate from three distinct sources: the Fifth Amendment, Article 31, and the Military
Rules of Evidence themselves Mil. R. Evid. 301(a). '

Mil. R. Evid. 305(c)(2) states that when a person who is suspected of an offense and
is subject to custodial interrogation requests counsel, any statement made after the
invocation of the right to_ counsel is_ inadmissible unless counsel was present for the
interrogation Mil. R. Evid. 305(0)(2). When one subjected to custodial interrogation
requests counsel, any subsequent waiver obtained during a custodial interrogation

 

3 Executive Order 13,643 made several changes to the existing Military Rules of Evidence, most notably moving
provisions of what had been Mil. R. of Evid. 304 and 305 to other locations Within those rules Exec. Order No.
13,643, 78 Fed. Reg. 29559 (15 May 2013). The military judge’s decision cites the previous Rule numbers; this
opinion cites the Rules currently in effect. Mil. R. Evid. 301(a) remains substantively unchanged What Was Mil. R.
Evid. 305(f)(2) is now found at Mil. R. Evid. 305(c)(2). What was Mil. R. Evid. 305(g)(2)(B) is now found at Mil.
R. Evid. 305(e)(3)(A). '

8 ACM 38793 .

_~_ _”~~ mrl:hus~,~i~f aperson~subject/to the ~U~€~MJ"interro gates*or requests*any~statement-from-a~~person--'~"“__ -"-;

 

concerning the same or different offenses is invalid unless the prosecution can demonstrate
by a preponderance of the evidence that the accused initiated the communication leading
to the waiver or that the accused “has not continuously had his . . . freedom restricted by
confinement, or other means, during the period between the request for counsel and the
subsequent waiver.” Mil. R. Evid. 305(e)(3)(A).

 

 

 

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Notably, Mil. R. Evid. 305(e)(3)(A) appears to allow law enforcement to reinitiate
interrogation as long as the accused has not continuously had his freedom restricted by
confinement, and*this appears to be exactly the type of police abuse the Shatzer rule was
designed to prevent.

a'. Analysz`s

As noted above, the right to remain silent and the right to counsel emanate from
both the Constitution and military law, but their breadth, applicability, and the potential
remedies for violations are not coextensive See Evans, 75 M.J. 302. Appellant is entitled
to the most favorable of these privileges under the facts of his case Mil. R. Evid. 301(a).

We begin with the Fifth Amendment privilege None .of the parties below, or even
Appellant before us, argued, cited, or addressed the Shatzer bright-line l4-day waiting
period before a subsequent custodial interrogation could occur. Perhaps because of this
oversight, the military judge did not make any findings of fact or reach conclusions of law
with respect to whether the 18 January 2014 interview constituted custodial interrogation.
lf it did, Shatzer would appear to render all of Appellant’s ` statements on 28 January
inadmissible as well as any evidence derived therefrom,' as we easily conclude that it was
law enforcement that initiated the second interrogation-albeit purportedly about only the
28 January offenses4 Conversely, if the 18 January interview was non-custodial, then the
Edwards/Shatzer prophylaxis would provide no relief because 28 January would then have
been Appellant’s first custodial interview

The Government argues that we should use our Article 66(c), UCMJ, 10 U.S.C. §
866(0), fact-finding power to supplement the military judge’s findings and hold that the
18 January interview was non-custodial

 

4 Although SA PA stated he Would focus on the 28 January incident, the first thing he said to Appellant on 28 January
was a reference to his 18 January interrogation He told Appellant that “last time they talked” they “Weren’t able to
get anywhere,” “the cards are not stacked in [his] favor,” and that he wanted to hear Appellant’s side so “I don’t have
to bust in and throw cuffs on you.” SA PA reminded Appellant that AFOSI had all of his information already on file
because of his prior interrogation He also told Appellant that he “missed an opportunity” during the prior
interrogation and that his questions, although beginning with 28 January, would “tie back to what happened” at the
prior interrogation The military judge did not address these statements in her analysis; instead, she focused on
whether Appellant initiated the discussion about the 18 January incident some time after he purportedly waived his
rights With respect to the 28 January incident We need not reach the question of whether Appellant did, in fact,
initiate the discussion about the 18 January incident, as we conclude that SA PA re-initiated interrogation at the outset
See UnitedStates v. Hutchz'ns, 72 M.J. 447 (C.A.A.F. 2013) (investigator’s request for consent to search, after subject
had requested counsel, constituted a re-initiation of interrogation under the facts of that case).

9 ACM 3 8793

 

 

In Miranda, the Supreme Court defined custodial
interrogation as ‘questioning initiated by law enforcement

. officers after a person has been taken into custody or otherwise
deprived of his freedom of action in any significant way.’ To

 

 

 

'_ answer 'the‘ 'question“whether~ an ~ accused~'is*in 'custody~ for
purposes of Miranda, we consider ‘all of the circumstances
surrounding the interrogation’ to determine ‘how a reasonable
person in the position of the [accused] would gauge the breadth
of his or her freedom of action.’ The Supreme Court has stated
that two inquiries are essential to a custody determination:
‘first, what were the circumstances surrounding the
interrogation; and second, given those circumstances would a
reasonable person have felt he or she was not at liberty to
terminate the interrogation and leave.’ We consider the facts
objectively in the context of a reasonable person's perception
when situated in Appellant's position

To be considered in custody for purposes of Mz'rana’a, a
reasonable person in Appellant's position must have believed
he or she was restrained in a ‘formal arrest or restraint on
freedom of movement of the degree associated with a formal
arrest.’ AS an initial matter, there is no per se rule that
whenever a suspect appears at a police station for questioning,
the suspect is therefore in custody. The Supreme Court has
looked to several factors when determining whether a person
has been restrained, including: (l) whether the person appeared
for questioning voluntarily; (2) the location and atmosphere of -
the place in which questioning occurred, and (3) the length of
the questioning In addition, the federal circuit courts of
appeals have evaluated the circumstances of an interrogation
based on a variety of factors including ‘the number of law
enforcement officers present at the scene [and] the degree of
physical restraint placed upon the suspect.’

Cha¢fzezd, 67 M.J. at 437-33 (citations amiaed).`

In support of its argument, the Gove_rnment notes that the military judge explicitly
found the 28 January interview custodial and therefore, by inference from the omission,
must have necessarily found that the 18 January interview was not. The Government also
notes that the Air Force Form 3589 (interview record) for the 18 January interview does
not indicate that Appellant was in custody and that the interview lasted only seven minutes

10 ACM 3 8793

 

 

However, other evidence in the record suggests that the interview may have been
custodial. Appellant was placed in the back of a police car and driven from the scene to
the AFOSI office While there, he was fingerprinted and photographed, actions that are
not usually taken with mere witnesses SA PA described the 18 January interview as a
“subject interview.” Appellant was also not allowed to depart AFOSI on his own, but

civilian pre-trial confinement on 1 8-19 January 2014.5

The record is silent as to whether the 18 January interview was recorded The
28 January interview was While this `difference'may point to one interview’s being
custodial and the other not, there is no evidence in the record from which we can draw that

inference

record are the following: whether Appellant was handcuffed before being transported to
AFOSI; whether Appellant went to AFOSI voluntarily; whether Appellant’s command
ordered him to go with investigators whether agents told him he was under apprehension
or arrest; whether there were lany restrictions placed upon him during or after the
' _ interrogation; as well as other facts from which we can determine how a reasonable person
in Appellant’s shoes would gauge the breadth of his freedom of action

ln her analysis of the motion, the military judge cited Edwam’s and determined that
While the fact that Appellant was not in continuous custody was not in dispute, the military

Appellant was in custody, then was released, then placed back into custody; or thatthe
28 January interview was the first time Appellant was ever in custody.

We highlight these evidentiary deficiencies to demonstrate why we decline to
exercise our Article 66(0), UCl\/IJ, fact-finding authority to supplement the military judge’s
findings A record this undeveloped precludes us from meaningfully exercising our fact-
finding power, particularly when we have neither seen nor heard the witnesses Moreover,
it is apparent from the record that the military judge did not consider Sharzer and its
application to these facts While the military judge did consider and apply l\/lil. R. Evid.
305(e)(3)(A), which purported to implement Appellant’s Fifth Amendment protections it
did not for the reasons explained above6 Because we conclude that applying Shatzer was

 

5 We do not know whether that is a scrivener’s error that was intended to reference Appellant’s confinement in
December 2013 after being arrested by civilian police or whether there was another period of civilian pretrial
confinement that is not otherwise indicated in the record

6 lt is unclear whether the failure to amend Mil. R. Evid. 305(e)(3)(A) to implement the Sha`tzer rule is a drafter’s
oversight or an affirmative effort to avoid ,Shatzer. Nevertheless, We conclude we are bound to apply the clear
precedent of the Supreme Court as there has been no argument made that Shatzer is (or should be) inapplicable to the

military.

1 ' 11 ACM 38793

 

Potentially relevant 18 January interview facts for which there is no evidence in the -

Edwaro’s was inapplicable to this case because Appellant “was not in continuous custody.”,

judge’s finding that Appellant was not in continuous custody can be read two ways: either -

'__ " '" m"rather" released to"'his"first""sergeant._The ~*charge~ sheet"indicates-that*Appellant-`was-'in*__-~-~

 

'*_ _ "_“fab‘out' the ‘2 8"January"events"'b`ecaus e‘Appellant"s"l'8'_IanuarYinvo'c ation_of‘ri’ghts"cannot

 

critical to resolving the motion to suppress and because the military judge failed to use the
correct legal principles she must be found to have abused her discretion7

The Government argues that even if the 18 January interview were custodial, and
therefore the Shaz‘zer rule applied, AFOSI was not precluded from interviewing Appellant

 

bar his later custodial interrogation about a crime that had not yet occurred _ We are not
persuaded ` `

There is nothing in Shaz‘zer that suggests the l4-day waiting period is offense-
specific; to the contrary, Shaz‘zer implements the Fifth Amendment’s protections which are
not offense-specific Roberson, 486 U.S. 675 . l\/loreover,_all of the cases cited by the
Government on this point pre-date Shaz‘zer. The`Govemment’s concern that allowing
Appellant to invoke the Shatzer 14-day rule in this case would “provide immunity . . . so ;
he can commit crimes with impunity and render law enforcement helpless to investigate d
and interview suspects about these newly-committed crimes” is off the mark. Nothing _
about our resolution of this case renders law enforcement helpless To the contrary, had »
law enforcement complied with existing law,' or had the prosecution been aware of the law `
and developed the necessary record, the outcome may well have been different.

Having found error, we now turn to prejudice Because the violation of Appellant’s
Fifth Amendment right, as implemented by Sha'tzer, is a constitutional error, we cannot
affirm his conviction unless we are convinced beyond a reasonable doubt that the
admission of his statement was harmless Evans, 75 M.J. at 302.

The military judge suppressed those portions of Appellant’s statement in which he
discussed killing SK’s cat (Additional Charge lll, Specification l).8 'There appears to be
no derivative evidence obtained through the use of Appellant’s statement relating to this
specification The members were instructed that they could not consider evidence that
Appellant may have assaulted SK when they determined whether Appellant killed her cat.
In the absence of evidence to the contrary, the members are presumed to follow the military
judge’s instructions See United States v. Pz`olunek, 74 M.J. 107, 111 (C.A.A.F. 2015),
quoting United States v. Rz'cken‘s, 1 M.J. 78, 82 (C.M.A. 1975) (stating that members are
presumed to follow the instructions of the military judge absent evidence to the contrary).
We, therefore, conclude that the erroneous admission of Appellant’s statement was 1
harmless beyond a reasonable doubt with respect to his conviction of Additional Charge r
III, Specification 1.

 

 

7 We take this opportunity to remind all trial participants that they should remain current on the law relevant to issues

in dispute and conduct updated research as necessary.
8 The military judge found that Appellant was not properly warned pursuant to Article 31, UCMJ, 10 U.S.C. § 831,
that he was suspected of killing the cat, and therefore suppressed that portion of his statement

12 ACM 38793

 

 

linnA_L_ 44 4 _ . _ _

We reach a different result, however, with respect to the other charges and
specifications Appellant’s 28 January interview with SA PA was far-reaching and
addressed his entire relationship with SK, including the charged verbal and physical
arguments and the violation of the “no-contac ” orders Appellant either,admitted,
corroborated, or did not dispute committing many of the acts of which he was convicted

' __ “_ __~SA~PAls~~inter\/'ieweof'~A~ppellant~f~igured,-prominently-in~both-'~opening~'statements~and*

closing arguments

Erroneous admission of a confession “requires a reviewing court to exercise extreme
caution before determining that the admission of the confession at trial was harmless.”
Arizona v. Fulmz'nante, 499 U.S. 279, 296 (1991) (“[T]he admissions of a defendant come
from the actor himself, the most knowledgeable and unimpeachable source of information
about his past conduct. ”); see also United States v. Ellz's, 57 l\/l. J. 375, 381 (C. A. A. F. 2002)
(“[T]he defendant’s own confession is probably the most probative and damaging evidence
that can be admitted against him. ”).

Viewing the record as a whole, we are not convinced that the erroneous admission
of Appellant’s statement was harmless beyond a reasonable doubt. _We must, therefore, set
aside the findings on the affected"charges and the sentence9 Our resolution of this issue
does not reach the ultimate question of whether Appellant’s statement could be admissible
on remandif a sufficient factual foundation exists Rather, we hold that the military judge
abused her discretion in failing to use the correct legal principles to resolve the suppression
motion See United States v. Mott, 72 M.J. 319 (C.A.A.F. 2013).10

Subjecz‘-Matter Jurz'sdz`cz‘z`on

Appellant argues that the court-martial did not have subj ect-matter jurisdiction over
the' Article 134, U.Cl\/Il, offense, which alleges Appellant killed SK’s cat. The specification
alleged that Appellant did, “between on or about 18 January 2014 and on or about 28
January 2014, wrongfully kill the cat belonging to [SK], such conduct being of a nature to
bring discredit upon the armed forces.”

We review the existence of jurisdiction de novo. United States v. Harmon, 63 M.J.
98, 101 (C.A.A.F. 2006). Generally, for a court-martial to have jurisdiction, there must be
jurisdiction over the offense, jurisdiction over the accused, and a properly convened and
composed court-martial. Id. Appellant contests the existence of the first prerequisite:
jurisdiction over the offense

 

9 Because the Fifth Amendment provides Appellant the relief he seeks we need not analyze whether Article 31,
UCMJ, or the Military Rules of Evidence would afford greater protections on these facts'.
10 We decline to order a hearing pursuant to United States v. DuBay, 37 C.M.R. 411 (1967), to resolve factual

» deficiencies instead following our superior court's approach in Molt of remanding for rehearing

13 ACM 38793

 

 

 

 

444 n 1

Article 134, UCl\/IJ, proscribes three categories of conduct: conduct which is

prejudicial to good order and discipline (clause 1), conduct which is service discrediting .

(clause 2), and conduct which constitutes a “crime or offense not capital” '(clause 3).

Appellant argues that because the military has what is commonly known as

' _ _ ~~ ~_'_‘~‘proprietaryrj urisdiction&~over~Seymour-Johns on*Air~ Force 'Base;'and"the~local~'prosecutor-_*__w~

did not cede authority to the Air Force to prosecute this offense, the court-martial lacked
subject-matter jurisdiction11 In support of his argument, Appellant cites the Federal
Assimilative Crimes Act (ACA), 18 U.S.C. § 13, and argues that the ACA “cannot be
invoked with respect _to crimes committed in places which_although they may be owned
by the United States_are not subject to its ‘exclusive or concurrent jurisdiction.”’ United
States v. Irvz`n, 21 l\/l.l. 184, 186 (C.M.A. 1986).

The ACA states in pertinent part:

Whoever within or upon any of the places now existing or
hereafter reserved or acquired as provided in section [18 USC
§ 7], or on, above, or below any portion of the`territorial sea of
~the United States not within the jurisdiction of any State,
Commonwealth, territory, possession, or district is guilty of
any act or omission which, although not made punishable by
any enactment of Congress, would be punishable if committed
or omitted within the jurisdiction of the State, Territory,
Possession, or District in which such place is situated, by the
laws thereof in force at the time of such act or omission, shall
be guilty of a like offense and subject to a like punishment

The ACA establishes “crimes or offenses not capital” within the meaning of Article 134,
clause 3. Therefore, acts which constitute a violation of a state criminal statute may be
prosecutable by court-martial under Article 134, clause 3, but only if committed in a
location where the ACA has effect (i.e., an area in which the United States has legislative
jurisdiction). ' ‘

Here, however, Appellant was charged under Article 134, clause 2 (service
discrediting conduct), not clause 3. The specification at issue did not allege, nor was the
Government required to establish, that Appellant’s actions violated a state statute
proscribing animal cruelty. lnstead, the Government charged and was required to prove
that Appellant’s conduct was service discrediting.

 

11 “Proprietary jurisdiction,” in this context, signifies that “the possession [of the real property] by the United States
is 'sirnply that of an ordinary proprietor.” United States v. Irvin, 21 M.J. 184, 186 (C.M.A. 1986).

14 ACM 38793

l
1
l

l
1
1

 

 

 

lt appears that the parties both below and on pappeal, misunderstood the nature of
proprietary jurisdiction Simply put, when an active duty Airman commits an offense
under the UCl\/IJ on an installation over which the United States has “proprietary
jurisdiction,” a court-martial still has subject-matter jurisdiction over the offense.' The
installation’s jurisdictional status is irrelevant to whether a court-martial has subject-matter

--'~ ~ -_ -jurisdiction~to try-an'offense-under~the'UC-l\/H.~lZ~Se_»eaSolorio~v.~Unz're~d-Sz‘ate~s;48-3-UTS.~43-5____~ -`

(19871

Both below and on appeal, the parties disagreed about whether the local prosecutor
had ceded “jurisdiction” to the Air Force to try this offense The military judge found as a
fact that he had. However, the parties’ arguments about whether the local district attorney
had ceded “jurisdiction” to the Air Force are similarly not relevant to whether the court-
martial had jurisdiction over the offense Jurisdiction is created by operation of law and
cannot be “acquired” or “ceded” either by the Air Force or a local prosecutor. However,
when a member is subject to both UCMJ and state (or foreign) jurisdiction the Air Force
as a matter of policy will coordinate with the relevant civilian prosecutor to determine
which sovereign will exercise the jurisdiction it already possesses See Air Force
lnstruction 51-201 Admz'nz`stratz`on ofMiliz‘ary Jusz‘z'ce, jj 2.6 (6 June 2013).

Because the specification at issue was charged as an Article 134, clause 2 offense,
and the only challenge on appeal is that the court-martial lacked subj ect-matter jurisdiction
over that offense, Appellant is entitled to no relief. The court-martial had jurisdiction over
Appellant and his offenses and was properly constituted

Denz'al of Motz`on to Sever

Appellant also argues that the military judge abused her discretion in denying his
motion to sever the allegation that Appellant killed the cat from the remaining offenses
Rule for Courts-l\/larti'al (R.C.l\/l.) 906(b)(10) permits a party to move for severance of
offenses “but only to prevent manifest injustice.” The discussion to this rule states
“[o]rdinarily, all known charges should be tried at a single court-martial” and “|'j]oinder of
minor and maj or offenses or of unrelated offenses is not alone a sufficient ground to sever
offenses.” R.C.M. 906(b)(10), Discussion.

We review a military judge’s decision to deny a severance motion for an abuse of
discretion United States v. Duncan, 53 M.J. 494, 497-98 (C.A.A.F. 2000). To prevail on
appeal, Appellant must demonstrate more than the fact that separate trials would have
provided a better opportunity for an acquittal; he must show that the ruling caused actual
prejudice by preventing him from receiving a fair trial. Id. When reviewing a military
judge’s denial of a severance motion, we examine whether: (1) the findings reveal an

 

12 On a proprietary-jurisdiction installation state offenses cannot become Federal offenses under the ACA (because
of the installation’s jurisdictional status), and therefore there Would be no “offense under the UCMJ.”

15 ACM 3 8793

 

1 , ‘__,` n_ .T__..

l

 

impermissible crossover of evidence; (2) the evidence of one offense would be admissible
proof of the other; and (3) the military judge provided a proper limiting instruction -Unz'ted
States vi Curz‘z`s, 44 M.J. 106, 128 (C.A.A.F. 1996).

The military judge found that Appellant’s killing of SK’s cat would have been
relevant*and*adrni`s s`i"bl*e"to ' prove 'SK”’ s'fea"r' o'f*d'e'ath"orgri*evous*b'o'fdi'lyfharrn,*a'swell'asj an
implied threat that similar violence might be levied against her if she denied Appellant
intercourse Appellant does not meaningfully contest those findings

Appellant was acquitted of the most serious charges he faced and he points to
nothing suggesting that the findings reveal an impermissible cross-over of evidence He
also concedes that the military judge provided an appropriate limiting instruction,4 but
argues that “given the uniqueness of the cat slaying and the climate at the time of trial, it is
clear that the_ Appellant was unduly prejudiced . . . since the court members might have
been subje'ct`o_to a spillover effect regardless of the spillover instruction.” We find that
Appellant has *'failed to meet his burden to show that the military judge abused her
discretion

We decline to engage in speculation about the “climate” at the time of trial nor will
we assume, without evidence, that the members disregarded the military judge’s

1 instructions See Pz`olunek, 74 M.J. at 111 (quoting Rz'cketts, 1 l\/l.J. at 82) (“members are

presumed to follow the instructions of the military judge absent evidence to the contrary”). .
Conclusz'on _

The findings of guilt as to Specification 1 of Additional Charge 111 and of Additional
Charge 111 are affirmed All other findings of guilty and the sentence are set aside The
record of trial shall be returned to The Judge Advocate General. A rehearing is authorized .
as to the findings of guilt that have been set aside and as to sentence

 

16 ACM 3 8793

 

