                          UNITED STATES, Appellee

                                        v.

 Timothy J. ELLIS, Aviation Electronics Technician Second Class
                      U.S. Navy, Appellant


                                  No. 01-0590

                          Crim. App. No. 98-00729


       United States Court of Appeals for the Armed Forces


                          Argued March 19, 2002

                          Decided September 30, 2002


     CRAWFORD, C.J., delivered the judgment of the Court, in
which GIERKE, J., joined. SULLIVAN, S.J., filed an opinion
concurring in part and in the result. BAKER, J., filed an
opinion concurring in the result. EFFRON, J., filed a
dissenting opinion.

                                    Counsel

For Appellant:     Lieutenant Rebecca S. Snyder, JAGC, USN
(argued).

For Appellee: Lieutenant Jason A. Lien, JAGC, USNR (argued);
Colonel R. M. Favors, USMC (on brief); Major Robert M. Fuhrer,
USMC, and Lieutenant Kevin S. Rosenberg, JAGC, USNR.

Amicus Curiae: Donald L. Vieira (law student)(argued); Steven
H. Goldblatt and Abigail V. Carter (supervising attorneys), and
Erin M. Schiller (on brief) - For the Appellate Litigation
Program at the Georgetown University Law Center.

Military Judge:     Daniel J. D’Alesio, Jr.

     THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Ellis, No. 01-0590/NA



     Chief Judge CRAWFORD delivered the judgment of the Court.

     Appellant was charged with assaulting his two-and-a-half-

year-old son, Timothy Ellis, Jr. (Timmy), on June 2, 1994, and

on June 3, 1994.   He was also charged with murdering Timmy on

June 4, 1994.   Contrary to his pleas, appellant was convicted by

officer and enlisted members of involuntary manslaughter and

assault upon a child, in violation of Articles 119 and 128,

Uniform Code of Military Justice (UCMJ), 10 USC §§ 919 and 928.

The convening authority approved the sentence of a bad-conduct

discharge, six years’ confinement, total forfeitures, and

reduction to the lowest enlisted grade.   The Court of Criminal

Appeals affirmed the findings and sentence in an opinion that

chronicles the facts and evidence.   54 MJ 958 (2001).   We

granted review of the following issues:

     I.   WHETHER THE MILITARY JUDGE ERRED IN FAILING TO
          SUPPRESS APPELLANT’S INVOLUNTARY CONFESSION.

     II. WHETHER THE MILITARY JUDGE ERRED IN FAILING TO
         DISMISS THE CHARGES OR TO ORDER OTHER APPROPRIATE
         RELIEF BASED ON THE GOVERNMENT’S DESTRUCTION OF KEY
         EVIDENCE.

     We hold that the military judge did not err in failing to

suppress the confession, and that any error in failing to take




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United States v. Ellis, No. 01-0590/NA



appropriate action because of the destruction of evidence was

harmless beyond a reasonable doubt.1

                                 BACKGROUND

      Two-and-a-half-year-old Timmy was one of seven children in

the home of appellant and his wife.         At the time of his death,

Timmy weighed 38 pounds and was 35 inches in length.             In April,

1994, one month after appellant gained custody over Timmy and

his four-year-old sister Teresa from appellant’s ex-wife (and

mother of the children), he called Ms. Carmen L. Colon, a case

manager for the Family Advocacy Program at the Naval Air

Station, Jacksonville, Florida.        Appellant told Ms. Colon that

he was having problems coping with Timmy’s and Teresa’s impact

on the family and indicated he wanted to return them to the

custody of the state rather than to his ex-wife.            As appellant

was undergoing family counseling, no decision was made on his

request to return Timmy to the state for care.

      On June 4, 1994, appellant’s wife brought Timmy, who was

unconscious, to the Naval Hospital in Jacksonville.            He was then

transferred to the University of Florida Medical Center (Medical

Center), where he died four days later.




1
  We heard oral argument in this case at the Georgetown University Law Center,
Washington, DC, as part of the Court’s “Project Outreach.” See United States
v. Pritchard, 45 MJ 126, 127 n.1 (1996).


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United States v. Ellis, No. 01-0590/NA



     On June 8, Mr. Louis N. Eliopulos, the Chief Investigator

and Operations Manager for District Four, Medical Examiner’s

Office, Jacksonville, was informed of Timmy’s death by someone

associated with organ retrieval at the Medical Center.

Mr. Eliopulos called Detective Anthony Hickson of the

Jacksonville Sheriff’s Office, Homicide Division, that same day

to inform him of Timmy’s death.   Prior to Mr. Eliopulos’s

telephone call, Detective Hickson knew nothing about Timmy’s

death.   At the time of this initial telephone call, there was no

suspicion of homicide -- Mr. Eliopulos called Detective Hickson

because it was a case for donor organs.   After Mr. Eliopulos’s

telephone call was received, Detective Hickson read a report

from Mr. Ishmael Woods, a Human Resources Services (HRS)

caseworker.    Mr. Woods was the official child abuse investigator

for HRS on this case.   Detective Hickson remembered Mr. Woods’s

report reflecting the opinion of a doctor that this was not a

child abuse case.

     On June 9, Dr. Margarita Arruza, an Associate Medical

Examiner for Jacksonville, conducted an autopsy on Timmy.

Dr. Arruza determined that the cause of death was blunt trauma

to the head.   Detective Hickson talked to either Mr. Eliopulos

or Dr. Arruza on June 9 after the autopsy.   After that




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United States v. Ellis, No. 01-0590/NA



conversation, Detective Hickson suspected that Timmy’s death was

due to “child abuse homicide.”

     On June 10, when appellant and his wife voluntarily arrived

at the Jacksonville Sheriff’s Office, Detective Hickson

certainly suspected a case of child abuse homicide, but he had

conflicting reports concerning the possible causes of Timmy’s

death.   Appellant and his wife were met by Mr. Eliopulos and

Detective Hickson.   Mr. Eliopulos was present pursuant to normal

operating procedures when one of the caregivers discovers an

injured child.   He had no substantial role in the interrogation

and was present to gather medical, social, and family history

information from appellant and his wife.

     After gathering information and listening to the initial

questioning of appellant and Mrs. Ellis, Mr. Eliopulos called

his office to determine whether the victim’s injuries could have

been caused by the victim accidentally striking his head on a

desk as Mrs. Ellis intimated.    After determining that such a

striking lacked sufficient force to cause the injuries observed

at the autoposy, Mr. Eliopulos informed Sergeant Frank Japour

and Detective Hickson that he believed a formal interrogation of

both family members was appropriate and left the office.

     Based upon the initial interviews, Detective Hickson

concluded that the victim had been in the sole care of appellant



                                  5
United States v. Ellis, No. 01-0590/NA



and his wife before he was brought to the hospital.    He also

concluded that neither appellant nor his wife had provided a

satisfactory explanation for the son’s injury.    However, neither

was arrested.   At that point, Detective Hickson decided to

proceed with separate accusatory interviews.     Appellant and his

wife, who separately were provided with Miranda warnings, each

waived the privilege against self-incrimination, as well as the

right to consult with counsel.   54 MJ at 960.

     As described by the Court of Criminal Appeals, Detective

Hickson, in the separate interrogations of appellant and his

wife, first “informed each of them that he believed there was

probable cause to arrest both of them for child abuse.”    Id.

Next, he “indicated that, if both of them were arrested, their

other six children would probably be removed from their home by

officials from the Department of Human and Rehabilitative

Services [HRS] and temporarily placed in foster care.”    Id.

     Both appellant and his wife denied any pertinent knowledge.

Appellant’s wife, who was interviewed first, also asked to speak

to appellant.   That request, which was denied initially, was

granted after his interrogation in the hopes that it would lead

to further information.   After meeting with his wife for about

15 minutes, appellant indicated that he wanted to talk.




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United States v. Ellis, No. 01-0590/NA



     After appellant had waived his rights in writing, Detective

Michael Robinson and Sergeant Japour made an audio tape of

appellant’s statement under oath.     He confirmed being advised of

his rights and his willingness to speak with them without a

lawyer.   Appellant indicated Timmy was the hardest child to deal

with, and Teresa, the four-year-old who looked like a two-year-

old, was just a little bit better.    Both Teresa and Timmy were

his children by his first wife.   After she stopped taking birth

control pills, she became pregnant so appellant would not ask

for a divorce.   He admitted Timmy “wasn’t brought into this

world under the best of conditions, [but] I still loved him.”

When Timmy and Teresa moved in during March 1994, they turned

the household upside down.   Appellant admitted that he would

have liked to place them in a foster home because he could not

take care of them.

     On Friday, June 2, appellant was watching the children

while his wife was with Teresa at a family counseling session.

When he went into the bedroom, he noticed that Timmy had “pooped

in his pants.”   Appellant took him into the bathroom, and the

feces fell out of his underwear and onto the floor.    Appellant

asked Timmy to pick it up.   He did not.   He just “pushed it

around the floor a little bit.”   Appellant became angry and

again told him to pick it up.   Timmy did, but dropped the feces.



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United States v. Ellis, No. 01-0590/NA



Finally, Timmy put it in the toilet, at which time appellant,

who stood 6 feet 2 inches tall and weighed 230 pounds, hit Timmy

on the left side of the face, knocking him into a wall.      He

pulled him up and dragged him by his feet towards him and

started beating him by pounding the back of his head three or

four times against the floor.    Timmy did not lose consciousness.

Later in the day, he was thought to have had a couple of

seizures.

     On Sunday, June 4, they were having a hard time getting

Timmy, who was in the garage, to eat.    Mrs. Ellis told appellant

she could not handle Timmy any longer.    Appellant went into the

garage and closed the door.    Angry, he picked Timmy up, placed

him on the picnic table, and then hit him so hard he knocked him

off the table.    He fell off the table and hit his head on the

concrete floor.    Appellant again grabbed Timmy and, three or

four times, hit his head on the concrete floor.    Shortly

thereafter, Timmy became unconscious and he was taken to the

emergency room.

     Five days earlier, while Timmy was showering, he hit his

head, resulting in a trip to the hospital for stitches.

Appellant admitted Timmy was self-abusive.    As a result, they

had to tape his feet and hands to control him.    To do the




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United States v. Ellis, No. 01-0590/NA



taping, the doctor showed him a trick with a pillowcase and a

sheet so they could restrain him to place the tape on him.

                             DISCUSSION

                             Confession

     The Fifth Amendment provides that “[n]o person ... shall be

compelled in any criminal case to be a witness against himself

nor be deprived of life, liberty, or property without due

process of law....”    Congress has implemented this

constitutional mandate in Article 31(d), UCMJ, 10 USC § 831(d),

which prohibits the admission of any statement into evidence

that is “obtained ... through the use of coercion, unlawful

influence, or unlawful inducement....”    Consequently, an

accused’s confession must be voluntary to be admissible into

evidence.   Dickerson v. United States, 530 U.S. 428, 433 (2000).

     The voluntariness of a confession is a question of law

which we review de novo.    See Arizona v. Fulminante, 499 U.S.

279, 287 (1991).    Whether the confession is voluntary requires

examining the “totality of all the surrounding circumstances --

both the characteristics of the accused and the details of the

interrogation.”    Schneckloth v. Bustamonte, 412 U.S. 218, 226

(1973); United States v. Ford, 51 MJ 445, 451 (1999).    “[I]n [a]

family context, we can imagine circumstances involving threats,

promises, or other inducements that would raise questions of the



                                  9
United States v. Ellis, No. 01-0590/NA



voluntariness of an accused’s statements....”     United States v.

Moreno, 36 MJ 107, 112 (CMA 1992).

     Moreno was questioned by the Texas Department of Human

Services regarding allegations of child sexual abuse and was

faced with a choice of cooperating and possibly keeping custody

of his children, or not cooperating and increasing the risks

that his children would be taken away.   Id. at 109, 112.     The

Court noted that this dilemma was of his own making.    Id.

Additionally, there was no improper threat; rather appellant was

“merely apprised ... where he stood in the great flow of

things.”   Id.

     In examining the totality of circumstances, we do not look

at “cold and sterile list[s] of isolated facts; rather, [we]

anticipate[ ] a holistic assessment of human interaction.”

United States v. Martinez, 38 MJ 82, 87 (CMA 1993).    The

totality of the circumstances include the condition of the

accused, his health, age, education, and intelligence; the

character of the detention, including the 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.

     Appellant was a 27-year-old Petty Officer Second Class (E-

5) with nine years of active duty service, a high-school



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United States v. Ellis, No. 01-0590/NA



diploma, and an AFQT score that placed him in the “upper mental

group” of Navy classifications.     There was no evidence appellant

suffered from any psychological handicaps that affected his

decision-making ability.     We examine the soundness of

appellant’s physical and psychological character at the time of

interrogation to determine whether the statements were

voluntary.

     While the detectives’ advice to appellant concerning

removing the remaining children from the home may have

contributed to his confession, the mere existence of a causal

connection does not transform appellant’s otherwise voluntary

confession into an involuntary one.     See Colorado v. Connelly,

479 U.S. 157, 164 n.2 (1986).    While this consequence of

appellant’s criminal conduct was unpleasant, the law enforcement

officers’ advice was an accurate picture of what would happen in

similar cases.

     Not only must we examine the circumstances surrounding the

taking of the statement regarding what was done or said, but we

must also examine what was not done or not said.    There were no

threats or physical abuse.    See, e.g., Payne v. Arkansas, 356

U.S. 560, 566 (1958).   The questioning did not continue for

days; there was no incommunicado detention, and no isolation for

a prolonged period of time.



                                  11
United States v. Ellis, No. 01-0590/NA



     Additionally, the detectives did not use appellant’s wife

as a government tool to induce him to confess.      See, e.g.,

United States v. Borodzik, 21 USCMA 95, 97, 44 CMR 149, 151

(1971).   Initially, the detectives had no idea which spouse may

have caused Timmy’s injury.   Accordingly, they spoke to both

privately.   Mrs. Ellis then talked to appellant.    After this

conversation, appellant confessed.

     Viewing all the facts taken together, we agree with the

Court of Criminal Appeals that they were not “so inherently

coercive as to overcome the appellant’s will to resist.”     54 MJ

at 968.

              Due Process and Destruction of Evidence

     On June 9, Dr. Arruza performed an autopsy and concluded

that death was caused by non-accidental blunt trauma to the head

on June 4.   In addition to the 9.5 centimeter fracture in the

skull, there were injuries around both eyes, the right check,

the left jaw, and the upper neck.    There was a cut on the lip.

There was bodily injury on the left side of the chest, the lower

left hip, on the back, the right forearm, the right and left

knees, and right and left lower legs.

     Following the autopsy, Dr. Arruza arranged for storage of

the brain and its meninges pursuant to a laboratory regulation

providing for specimens to be maintained for at least one year.



                                12
United States v. Ellis, No. 01-0590/NA



Several months later, however, the specimen container was

inadvertently discarded when the laboratory was moved to a new

location.    See 54 MJ at 969.

      At trial, appellant moved to dismiss the charges, citing

RCM 703(f)(2), Manual for Courts-Martial, United States (2000

ed.),2 which provides in pertinent part with respect to evidence

that has been destroyed or lost:

      [A] party is not entitled to the production of evidence
      which is destroyed, lost, or otherwise not subject to
      compulsory process. However, if such evidence is of such
      central importance to an issue that it is essential to a
      fair trial, and if there is no adequate substitute for such
      evidence, the military judge shall grant a continuance or
      other relief....

(Emphasis added.)     Appellant also relied upon the right to

present a defense under the Fifth Amendment, the right to cross-

examine witnesses under the Sixth Amendment, and the right to

obtain witnesses under Article 46, UCMJ, 10 USC § 846.             Id.

      Appellant contended that the missing evidence was central

to both parties, noting that the prosecution would rely on

testimony about the brain tissue to establish the time of death,

and the defense would rely on scientific examination of the

brain to both impeach the Government’s witness and to establish

a defense theory as to the time and cause of death.            Id. at 969-

70.   The defense theory of the case was that the fatal injuries


2
  All Manual provisions cited are identical to those in effect at the time of
appellant’s court-martial.


                                     13
United States v. Ellis, No. 01-0590/NA



had been inflicted by a baseball bat wielded by appellant’s

daughter several weeks earlier, or by the son’s self-abusive

head-banging behavior.    See id.

     Defense counsel asked the military judge to address the

harm caused by the missing evidence by giving an adverse

inference instruction, permitting the members to infer a fact

against the Government’s interest if the Government lost or

destroyed evidence whose content or quality was at issue.     Such

an instruction would have permitted, but not required, the

members to draw an inference against the Government’s theory

that Timmy’s death resulted from the beating appellant

administered on June 4.   The military judge declined to give the

requested instruction.

     An adverse inference instruction is an appropriate curative

measure for improper destruction of evidence.   We need not

decide, however, whether the military judge erred by refusing to

give an adverse inference instruction, because we hold that any

error in this regard was harmless beyond a reasonable doubt in

light of appellant’s confession, which we discuss infra.

     Extensive evidence was introduced by Timmy’s grandmother,

the babysitter, and others, that Timmy was hit on the head with

an aluminum baseball bat three weeks earlier by Teresa.

Additionally, the defense experts were able to examine the x-



                                    14
United States v. Ellis, No. 01-0590/NA



rays, the CAT scans, and the medical records to form an opinion

as to the timing and cause of death.     The defense witnesses

indicated, based on this evidence, that there was a pre-existing

injury and it was the re-bleeding of that injury that caused

Timmy’s death.

     Dr. Charles Odom, a defense witness, testified that if

there was a pre-existing injury, hitting that area could cause a

new injury and the fracture could open.     He stated that it would

not take the same degree of force to cause a re-injury,

swelling, and death in this case.    He opined that the baseball

bat injury three weeks prior to Timmy’s death was the traumatic,

blunt force injury that caused his sub-acute, subdural hematoma,

and death.   However, he also testified that there was a real

possibility of a different cause of the re-bleeding and,

ultimately, death.

     The defense, in its closing argument, recognized that

appellant would be responsible for any re-aggravation of the bat

injury caused by Teresa.   As a result, the defense theory was

that appellant, contrary to his oral confession under oath, did

not hit or strike Timmy on either Friday or Sunday prior to

Timmy’s admission to the hospital.

     The military judge admonished the Government not to use the

missing evidence to impeach the defense expert, and he provided



                                15
United States v. Ellis, No. 01-0590/NA



a limiting instruction at the close of the arguments.     The judge

instructed the members that they were prohibited from giving

less weight to the defense expert’s testimony solely because he

had not had the opportunity to view or test the lost evidence.

Further, the members were instructed that they could consider

Dr. Odom’s opinion as to “what he expected the microscopic

examination to show even though the brain and its meninges were

not available for [his] examination.”     54 MJ at 970-71.

     Notwithstanding the military judge’s remedial efforts,

trial counsel attacked the credibility of Dr. Odom by

emphasizing that he had not examined the lost brain and

meninges.   There was no objection.    Additionally, trial

counsel’s closing argument attempted to enhance the credibility

of Dr. Arruza by emphasizing that she had access to the lost

evidence and, in fact, had done a comprehensive exam.     Again,

there was no objection.   We need not decide, however, whether

the military judge’s failure to promptly correct or temper trial

counsel’s remarks was plain error because any error was harmless

beyond a reasonable doubt in light of appellant’s confession.

     “[A] voluntary confession of guilt is among the most

effectual proofs in the law, and constitutes the strongest

evidence against the party making it that can be given of the

facts stated in such confession.”     Hopt v. Utah, 110 U.S. 574,



                                16
United States v. Ellis, No. 01-0590/NA



584 (1884).     “A deliberate, voluntary confession of guilt is

among the most effective proofs in the law.”     United States v.

Monge, 1 USCMA 95, 97, 2 CMR 1, 3 (1952).    As the Supreme Court

recently reiterated:

        A confession is like no other evidence. Indeed, “the
     defendant’s own confession is probably the most probative
     and damaging evidence that can be admitted against him
     . . . . Certainly, confessions have profound impact on the
     jury, so much so that we may justifiably doubt its ability
     to put them out of mind even if told to do so.

Arizona v. Fulminante, 499 U.S. 279, 296 (1991)(citations

omitted).   Thus, appellant’s confession goes far in rendering

harmless any error in the military judge’s failure to give an

adverse inference instruction or stop trial counsel from

commenting on the defense’s inability to examine Timmy’s brain

and meninges.

     Of course, this assumes appellant’s confession is reliable.

False voluntary confessions do exist, and when their reliability

is called into question, so too is their otherwise overwhelming

power to prove the declarant’s guilt.    Moreover, the factual

question whether a confession is reliable is for the members of

a court-martial to decide.    See Mil.R.Evid. 304(e)(2), Manual,

supra (once military judge finds confession voluntary as a

matter of law and admits it, members determine its voluntariness

and reliability as a matter of fact); Jackson v. Denno, 378 U.S.

368, 387 n.13 (1964).


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United States v. Ellis, No. 01-0590/NA



     The question in this case, then, is whether there is a

reasonable likelihood the members would have found appellant’s

confession was involuntary or unreliable had the military judge

given an adverse inference instruction relating to the lost

brain and meninges, and stopped trial counsel from commenting on

the defense’s inability to examine them.   This question arises

for the following reasons.

     Prior to trial, appellant confessed to brutally beating

Timmy on June 2 and 4.   At trial, however, the defense denied

the beatings on these dates, maintained the confession was

fabricated, and argued the cause of Timmy’s death was his sister

hitting him on the head with a baseball bat three weeks earlier,

or possibly Timmy’s self-abusive, head-banging behavior.   In

support of this theory, a defense expert testified that the

three-week old baseball bat injury was the cause of Timmy’s

death, not injuries sustained on June 4, as the Government’s

expert concluded.

     The defense expert, however, was unable to examine Timmy’s

brain.   Such an examination may have strengthened his conclusion

that the baseball bat injury, not June 4 injuries, was the cause

of death.   This, in turn, may have been viewed by the members as

consistent with appellant’s trial position of a fabricated




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United States v. Ellis, No. 01-0590/NA



confession, thereby decreasing the voluntariness or reliability

of his confession in their minds.

     Similarly, had the military judge given the adverse

inference instruction and stopped trial counsel from commenting

on the defense’s inability to examine the brain, the

voluntariness or reliability of appellant’s confession might

also have been questioned by the members.   The presence of the

requested instruction and absence of prohibited comments could

have put the defense in a position similar to the one it would

have occupied had the brain not been lost, a position which, as

stated above, might have produced a question in the members’

minds about the voluntariness or reliability of appellant’s

confession.

     Nonetheless, for the reasons that follow, we conclude there

is no reasonable likelihood the members would have found

appellant’s confession was involuntary or unreliable, even if

the military judge had given the adverse inference instruction

and stopped trial counsel from making prohibited comments

     At the time of Timmy’s autopsy, he had multiple injuries

around his eyes, his cheek, his jaw, his neck, his lips, the

left side of his chest, his lower left hip, his right forearm,

the right and left sides of his knees, and the right and left

sides of his lower legs.   Given the magnitude and variety of



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United States v. Ellis, No. 01-0590/NA



these injuries –- injuries separate and apart from Timmy’s brain

injury -- there is simply no way the members could conclude they

were caused by a single hit to the head with a baseball bat

three weeks earlier, or by less traumatic, self-inflicted head-

banging.

     On this record, the only thing the members could conclude,

even with the requested adverse inference instruction and

without trial counsel’s questionable comments, was that the

multiple injuries Timmy sustained over his face and entire body,

independent of his brain injury, had to be caused by the June 2

and 4 beatings described by appellant in his detailed

confession, assaults that included numerous hits to the face,

grabbing and dragging by the extremities, a full-body knock into

a wall, and a full-body fall to the floor from several feet up.

     Furthermore, the members were properly instructed on their

role in determining the voluntariness and reliability of the

confession and that they could not give less weight to the

defense expert’s testimony simply because he did not examine the

brain, and we assume they did not.    See Richardson v. Marsh, 481

U.S. 200, 206 (1987)(“invariable assumption of the law that

jurors follow their instructions”).    In this context, we hold

that appellant’s voluntary, reliable, detailed confession,

admitting far more than needed to shield his wife from



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United States v. Ellis, No. 01-0590/NA



prosecution, rendered harmless beyond a reasonable doubt any

error in the military judge’s failure to give an adverse

inference instruction or stop trial counsel from making

prohibited comments related to the missing brain.    See United

States v. Moolick, 53 MJ 174, 177 (2000).

     It is important “to distinguish between the discrete issues

of voluntariness and credibility....”    Jackson, 378 U.S. at 387

n.13.   There is no question but that appellant’s confession was

voluntary as a matter of law, for the reasons set forth in the

first part of this opinion.   Here, we conclude that by focusing

on Timmy’s other injuries, in addition to his brain injury, the

members could not help but find appellant’s confession was also

voluntary and reliable as a matter of fact.

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.




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United States v. Ellis, No. 01-0590/NA


     SULLIVAN, Senior Judge, (concurring in part and in result):

     Nearly fifty years ago, Justice Sherman Minton observed

that "[a] defendant is entitled to a fair trial but not a

perfect one."   Lutwak v. United States, 344 U.S. 604, 619

(1953).   In this case it would have been better had the medical

examiner’s staff not discarded the victim’s brain and its

coverings; however, this evidence was not “apparently

exculpatory” at the time it was discarded.   See United States v.

Garries, 22 MJ 288, 292-93 (CMA 1986); United States v. Kern, 22

MJ 49 (CMA 1986).    Also, there was no bad faith in the loss of

this potential evidence.   See United States v. Gomez, 191 F.3d

1214, 1218-19 (10th Cir. 1999); Holdren v. Legursky, 16 F.3d 57,

60 (4th Cir. 1994); State v. Graham, 454 S.E. 2d 878, 880-81

(N.C. App. 1995).    Moreover, loss of the tissue samples did not

deny appellant the ability to present a defense based on his

theory of the case.   See Appellate Exhibit LXI (Military Judge’s

Ruling on Motion).    In these circumstances, I am satisfied that

appellant received a fair trial as provided in our Constitution.

See Arizona v. Youngblood, 488 U.S. 51, 60 (1988)(Stevens, J.,

concurring).

     I also agree with the lead opinion that appellant's

confession to injuring the victim was voluntary.   The detectives

investigating this case did comment to appellant that if he and

his wife were apprehended for inflicting the injuries leading to


                                  1
United States v. Ellis, No. 01-0590/NA


the victim's death, their children would be placed by Department

of Human and Rehabilitation Services in foster care.    This was a

correct statement of fact as to the procedure in Florida; nor

was the threat to arrest appellant's wife a bad-faith attempt or

pretext to extract a false confession from appellant.     As such

this statement should not be the basis for excluding appellant's

confession.   See Henson v. Commonwealth, 20 S.W.3d 466 468-69

(Ky. 1999); see also Johnson v. Trigg, 28 F.3d 639, 644-45 (7th

Cir 1994).

     Appellant did not make any admissions at the time this

statement was made.   It was not until several hours later, and

after he had spent about 20 minutes in conversation alone with

his wife, that he implicated himself in these offenses.

Moreover, there was no evidence that the police had placed

improper pressure on appellant's wife to force him to confess.

Cf. United States v. Borodizik, 21 USCMA 95, 44 CMR 149 (1971).

Thus, the detective’s statement, neither standing alone nor in

connection with other events occurring during the interview,

sufficed to overbear appellant's will.   Cf. Columbe v.

Connecticut, 367 U.S. 568 (1961).

     A final issue in this case is whether the military judge

erred by failing to take remedial steps to protect appellant

from unfair prejudice at trial resulting from the inadvertent

loss of these items of potential evidence.   See R.C.M.


                                 2
United States v. Ellis, No. 01-0590/NA


703(f)(2), Manual for the Courts-Martial, United States (1994

ed.).   Although the military judge concluded that the lost

evidence was not essential to a fair trial, he did take steps to

protect against the government “unfairly bolstering” its case on

this basis.   See R.C.M. 801(a)(3), Manual, supra (Power of trial

judge to ensure rules are complied with).    Cf. United States v.

Manuel, 43 MJ 282 (1995).    Appellant complains that these

measures were inadequate.

     Initially, I note that the trial judge in this case denied

the defense's request to give an adverse inference instruction

against the Government as a result of the loss of the brain

materials.    An adverse inference instruction, where the lost

evidence was not discarded in bad faith, is not warranted.     See

United States v. Artero, 121 F.3d 1256, 1259-60 (9th Cir 1997);

United States v. Jennell, 749 F.2d 1303, 1308-09 (9th Cir 1984);

See generally 2A Charles Allen Wright, Federal Practice and

Procedure § 489 at 412-19 (3d ed. 2000).    Accordingly, the

military judge did not err in failing to give the defense

requested instruction.

     Nevertheless, the military judge did allow the admission of

the defense expert’s testimony in this case and instructed trial

counsel to refrain from impeaching the defense expert on the

basis of his inability to examine the brain coverings.

Appellant has not persuaded me that these measures were legally


                                  3
United States v. Ellis, No. 01-0590/NA


inadequate.   See generally United States v. McElhaney, 54 MJ

120, 129 (2000).   Admittedly, trial counsel may have violated

the military judge's protective order in attempting to impeach

the defense expert with his pre-trial investigation testimony

which was predicated on this expert’s failure to examine the

lost evidence.   However, the trial judge’s final instructions to

the members cured any error resulting from his failure to

immediately enforce his protective order.   See United States v.

Meeks, 35 MJ 64, 69 (CMA 1992)(Military Judge’s instructions

preclude any possibility of prejudice).




                                 4
United States v. Ellis 01-0590/NA


     BAKER, Judge (concurring in the result):

     I agree with Judge Effron's factual recitation and legal

framework for addressing the relationship between Issue I and

Issue II; however, I join the conclusion in the lead opinion

that appellant’s statement was voluntary and any error by the

military judge in failing to provide an appropriate remedy in

view of the lost evidence was harmless.

     Although I agree with the result reached in the lead

opinion, I write separately to address concerns I have about the

way the result is reached.    On Issue I, the majority opinion

fails to capture or acknowledge the potentially coercive effect

a threat to deprive parents of their access and rights to their

children may have on their custodial confessions.    I believe

that such threats carry with them an increased risk that parents

may confess involuntarily; and as such, courts must review the

confessions rendered under such threats with heightened

sensitivity.   With respect to Issue II, I do not join the

apparent conclusions in the lead opinion regarding the mental

processes of the members.    While I agree that any error was

harmless, I am not prepared to step into the shoes of the

members and state with certainty what members were, or were not,

prepared to consider and just how reliable and voluntary they

might have found appellant’s confession to be.    Moreover, the

lead opinion relies on a factual theory involving review of
United States v. Ellis 01-0590/NA


medical evidence that was not presented to the members.

Nonetheless, I am confident there was no reasonable likelihood

that any error by the military judge affected the findings.

Therefore, for the reasons stated below, I agree to affirm.

                                I.

     The Supreme Court has recognized that “[v]ery few people

give incriminating statements in the absence of official action

of some kind.”   Schneckloth v. Bustamonte, 412 U.S. 218, 224

(1973).   It has also recognized that “custodial police

interrogation, by its very nature, isolates and pressures the

individual,” Dickerson v. United States, 530 U.S. 428, 435

(2000), and that it “trades on [his or her] weakness[es].”

Miranda v. Arizona, 384 U.S. 436, 455 (1966).   Nevertheless, the

Court has also held that “certain interrogation techniques,

either in isolation or as applied to the unique characteristics

of a particular suspect, are so offensive to a civilized system

of justice that they must be condemned under the Due Process

Clause of the Fourteenth Amendment.”   Miller v. Fenton, 474 U.S.

104, 109 (1985).   Whether interrogation tactics are coercive and

exceed constitutionally permissible limits is determined by

looking at the totality of the circumstances in each case.

Haynes v. Washington, 373 U.S. 503, 513 (1963).

     In this case, the civilian police officers sought to trade

upon and exploit any emotional ties appellant might have to his


                                 2
United States v. Ellis 01-0590/NA


six surviving children.    The critical question for purposes of

this appeal therefore is:    Did the police exceed permissible

conduct in doing so?

       For love of children parents will do many things that

escape the bounds of common sense or elude concepts of natural

law.    But as this case illustrates, some parents are also

capable of abhorrent criminal conduct toward their children.

The law has not heretofore provided a per se prohibition on

police officers discussing the fate of a suspect’s children

during interrogation.    Nor should it.   The fate of such children

may be relevant to the offense, a necessary by-product of the

criminal process, or, indeed, may serve as a source of lawful

police leverage and a truth-finding vehicle.    However, given the

complex emotional ties between parent and child, such

interrogation methods will present inherently close and

contextual questions as to whether any subsequent statement is

indeed voluntary.    This is why a “totality of the circumstances”

test is used.    Law enforcement officers, and the courts that

review their actions, must proceed with heightened sensitivity

to test the validity of any confession given subsequent to a

discussion relating to an accused’s family members, to ensure

that police conduct does not offend justice.    Such care was

taken in this case.




                                  3
United States v. Ellis 01-0590/NA


     Both the military judge and the Court of Criminal Appeals

concluded that appellant’s recorded statement occurred after he

received and voluntarily and intelligently, waived his Miranda

rights.   54 MJ 958, 967 (2001).   These rights, and appellant’s

waiver of them, were reaffirmed prior to appellant’s confession.

The officers surely hoped to pressure appellant or his wife into

confessing, but they did not badger him, scream at him,

otherwise bully him down this path, or discourage or impede the

exercise of his rights.    While appellant no doubt felt pressure

to confess, the length and content of the interrogation was not

overbearing.   The statements concerning the fate of appellant’s

children were certainly within the realm of possibility.

Appellant’s confession followed a meeting with his wife rather

than just after his time with the police.    Furthermore, as

pointed out in the lead opinion, the confession itself admitted

far more, in terms of the number of incidents, the provocation

for the incidents, and the level of brutality, than would have

been required for appellant to protect his wife from prosecution

by falsely confessing.    According to the court below:

          The appellant admitted to the detective that, on 2
     June 1994, he struck Timmy in the face and then grabbed the
     child’s head and pounded it on the shower floor several
     times after Timmy defecated in his pants and started
     playing with the feces. Detective Robinson left the room
     and returned with Sergeant Japour. The appellant was
     advised that his admission was inconsistent with the
     medical evidence pointing to a more recent injury. The
     appellant then admitted that he had also assaulted Timmy on


                                   4
United States v. Ellis 01-0590/NA


      4 June 1994. He stated that he became very angry because
      the child would not eat his breakfast and was picking again
      at a sore inside his lip. So, he stood the child on a
      small picnic table in the family garage and struck him with
      sufficient force to knock him to the ground. The appellant
      then grabbed the child by the head and pounded it several
      times against the cement floor.

Id. at 960.

Finally, given the totality of all these circumstances the

military judge put the context and veracity of appellant’s

confession squarely before the members.1          In short, the military



1
 In his instructions regarding appellant’s audiotaped confession, the military
judge admonished the members, inter alia, as follows:

      It is for you to decide the weight or significance, if any, the
      accused’s pretrial statement deserves under all the
      circumstances. In deciding what weight or significance, if any,
      to give the accused’s statements, you may consider that evidence
      has been introduced that certain police interrogation techniques
      were employed during the initial interview and accusatory
      interview of the accused and that Detective Hickson made comments
      to the accused and Lauri Ellis concerning the probable
      involvement of HRS in the removal of the children from the Ellis’
      home if both the accused and Lauri Ellis were arrested.

      You should consider the testimony of the witnesses concerning the
      taking of the statement, including their demeanor in the courtroom and
      how their testimony is either consistent or inconsistent with the prior
      statements they may have given. You should consider the environment in
      which the interviews and the statements were taken, including the
      physical layout of the spaces and whether rights advisements were given
      to the accused. Additionally, you should consider any evidence that
      you believe either corroborates or contradicts the matters asserted by
      the accused in his pretrial statement. You may also consider the
      accused’s tone of voice and demeanor evidenced in Prosecution Exhibit
      3.

      I want to be very clear. These examples of the type of evidence you
      may consider in determining what weight you wish to give to the
      accused’s pretrial statement, in determining the truth or falsity of
      the statement, are illustrative only. You are at liberty to consider
      all of the evidence in the case that relates to the credibility of the
      accused’s pretrial statement in determining the weight and
      significance, if any, you want to give it. In determining this matter,
      you are permitted to use your own common sense and knowledge of human
      nature.


                                      5
United States v. Ellis 01-0590/NA


judge and the CCA addressed this confession with the caution and

care required.    Their findings of fact are not clearly

erroneous.    Reviewing the lower courts’ application of law to

facts de novo, I reach the same legal conclusion as that in the

lead opinion, and the court below -- appellant’s confession was

voluntary.

                                  II.

     The military judge sought to address the missing evidence

in three ways.    First, after hearing evidence on the defense

motion for relief, the military judge ruled that the Government

could not argue to the trier of fact that its expert’s opinion

merited more weight because only she had the opportunity to

personally observe the brain and surrounding tissue during the

autopsy.     Second, he ruled that the prosecution could neither

direct questions, nor cross-examine witnesses, where the

intended or probable response would imply that the Government

witness’ opinion was of greater weight simply because of her

unique opportunity to make certain observations during the

autopsy.     Finally, at the close of the case on the merits, the

military judge instructed the members (1) that they were

prohibited from drawing an inference adverse to the weight of

the defense expert’s testimony solely because he had not had the

opportunity to personally view or test the lost evidence, and




                                   6
United States v. Ellis 01-0590/NA


(2) that they could consider the defense expert’s opinion as to

what he expected a microscopic examination to show even though

the brain and mininges were not available for his examination.


     Appellant contends that in at least three instances the

trial counsel undermined the reliability of the defense expert’s

opinion by emphasizing during cross-examination that Dr. Charles

Odom had not examined the brain and dura.   During the cross-

examination of Dr. Odom, the trial counsel attempted to attack

Dr. Odom’s conclusion that he was confident to a reasonable

medical certainty that the child’s fatal injury occurred some

two to three weeks before June 4.   He attempted to impeach the

doctor with his testimony from an earlier court session pursuant

to Article 39(a), UCMJ, 10 USC § 839(a), during which the doctor

had indicated that without the ability to microscopically

examine some tissue visible in one of the autopsy photographs,

he was not willing to stake his reputation on his conclusion

regarding the date of the injury.   As a result, appellant argues

that the trial counsel violated the military judge’s rulings and

that the judge’s subsequent instruction regarding the defense

expert’s testimony was an inadequate remedy.   In appellant’s

view, an adverse inference instruction was required.

     In my opinion, the military judge provided an adequate

remedy for the missing evidence by admonishing the Government



                                7
United States v. Ellis 01-0590/NA


not to use the missing evidence to impeach the defense expert

and by giving the members a limiting instruction at the close of

arguments.   Arguably, error occurred when trial counsel

nonetheless sought to impeach the defense expert on the ground

that he had not examined the missing brain tissue depicted in

one of the photographs, and the military judge did not take

immediate corrective action.     However, even if one concludes

that the instruction did not cure the error, it factors into the

harmless error analysis.

     Both the government and defense experts agreed that

microscopic examination of the skull could narrow the timeframe

of the injury.   54 MJ at 970.    Dr. Margarita Arruza, the

government expert, testified that her examination of the brain

tissues placed the date of injury on June 4, not three weeks

earlier as asserted by the defense.     She concluded, based on a

microscopic examination of the skull two and a half years after

performing the autopsy, that the skull had been fractured twice,

with the newest injury being four days old at the time of death.

The defense expert, Dr. Odom, disagreed, testifying that his

microscopic examination of the skull showed that the fatal

injury was inflicted approximately three weeks prior to death.

     If the adverse inference instruction had been given, the

members would have been permitted, but not required, to infer

that the lost brain tissues would have supported the defense


                                   8
United States v. Ellis 01-0590/NA


theory that the injuries were inflicted three weeks before

death.    The adverse inference instruction would have applied

only to the lost brain tissues, not to the examination of the

skull.    The panel would still have been presented with competing

expert views regarding examination of the skull.    This in turn

would diminish the importance of expert testimony and increase

the importance of appellant’s confession.

     As the lead opinion rightly states, appellant bore a heavy

burden in attempting to persuade members that his confession was

a false product of unlawful police pressure.    As the Court

stated in Arizona v. Fulminante, a voluntary and corroborated

confession “is like no other evidence.    Indeed, ‘the defendant’s

own confession is probably the most probative and damaging

evidence that can be admitted against him. . . .”    499 U.S. 279,

296 (1991).    As noted above, appellant’s confession was

particularly damaging.    It was specific, graphic, and consistent

with the Government’s theory of the case.    It also went well

beyond what was necessary to absolve appellant’s wife, or end a

police interview of insignificant duration and lacking of

duress.    As a result, I am confident that if there was error

regarding the military judge’s instruction to members, there was

no reasonable likelihood it affected the findings.




                                  9
United States v. Ellis, No. 01-0590/NA




     EFFRON, Judge (dissenting):

     The lead opinion concludes that appellant’s confession was

voluntary as a matter of law.   The lead further concludes that

the confession may be relied upon to render harmless any error

resulting from the failure of the military judge to provide an

appropriate instruction regarding the destruction of important

evidence.   I respectfully disagree.   The focus in the lead

opinion on the admissibility ruling of the military judge fails

to take into account the difference between: (1) the role of the

military judge in determining admissibility of a confession as a

matter of law, and (2) the role of the court-martial panel in

assessing the voluntariness and corroboration of a confession as

a matter of fact.


     The military judge in the present case erred in failing to

appropriately instruct the members regarding the adverse

inference that may be drawn from the destruction of the brain

and meninges.   That instruction was directly related to the

evidence relied upon by the prosecution to buttress and

corroborate appellant’s confession.


     In the state court proceedings that preceded appellant’s

court-martial, the trial judge and the appellate court concluded

that the confession was inadmissible.    See 54 MJ 958, 969
United States v. Ellis, No. 01-0590/NA


(2001).   Even if the military judge ruled correctly that the

confession was voluntary as a matter of law, the evidence in

this case raised substantial doubts about the reliability of the

confession – a matter in which the ultimate decision rests with

the court-martial panel, not the military judge.    See

Mil.R.Evid. 304(e)(2), Manual for Courts-Martial, United States

(2000 ed.).   Moreover, the prejudicial impact of the failure to

instruct was compounded when the military judge failed to

sustain defense objections to the Government’s use of the

destroyed evidence, both to bolster the credibility of its

expert witness and undermine the credibility of the defense

expert.   In light of the concerns raised by these errors, I

cannot be confident that a properly instructed panel would have

concluded that the confession was sufficiently reliable and

corroborated to support a finding of guilty beyond a reasonable

doubt.


                           I. Background

                         A. The Confession

     Appellant’s family consisted of his wife and seven

children, including Timothy (Timmy) Ellis, Jr., appellant’s two-

and-a-half-year-old son from a prior marriage.    On June 4, 1994,

appellant’s wife brought Timmy, who was unconscious, to the

Naval Hospital in Jacksonville, Florida.     He was transferred to



                                 2
United States v. Ellis, No. 01-0590/NA


the University of Florida Medical Center in Jacksonville, where

he died four days later.


     After considering information from the initial autopsy,

Detective Anthony Hickson, of the Jacksonville Sheriff's Office,

Homicide Division, suspected that the death was a homicide

resulting from child abuse.   At his request, appellant and

appellant’s wife came to the Jacksonville Sheriff’s Office on

June 10.   After they arrived at 11:00 a.m., they were

interviewed in separate locations.   Although they were not

allowed to move about the office area unless accompanied by an

escort, they were not placed in locked rooms or in handcuffs,

nor were they told explicitly that they could not leave.


     Based upon the initial interviews, Detective Hickson

concluded that Timmy had been in the sole care of appellant and

his wife before he was brought to the hospital.    He also

concluded that neither appellant nor his wife had provided a

satisfactory explanation for Timmy’s injuries.    At that point,

Detective Hickson decided to proceed with separate accusatory

interviews.   Appellant and his wife, who were separately

provided with Miranda warnings, each waived the privilege

against self-incrimination as well as the right to consult with

counsel.




                                 3
United States v. Ellis, No. 01-0590/NA


      As described by the Court of Criminal Appeals, Detective

Hickson, in the separate interrogations of appellant and his

wife, first “informed each of them that he believed there was

probable cause to arrest both of them for child abuse.”             54 MJ

959, 960.    Next, he “indicated that, if both of them were

arrested, their other six children would probably be removed

from their home by officials from the Department of Human and

Rehabilitative Services . . . and temporarily placed in foster

care.”   Id.


      Both appellant and his wife denied any pertinent knowledge.

Appellant’s wife, who was interviewed first, also asked to speak

to appellant.     That request, which was denied initially, was

granted after his interrogation in the hopes that it would lead

to further information.       After meeting with his wife for about

15 minutes, appellant indicated that he wanted to talk.             He made

a confession that was taped and transcribed, and which included

an admission to a series of severe attacks on Timmy on June 2

and June 4.1


      Appellant was prosecuted for his son's death in state court

in June 1995.     The trial judge granted appellant’s motion to


1
  Appellant confessed to attacking his son twice by slamming the child’s head
against the ground, first on June 2, against the tile floor in the bathroom,
and a second time on June 4, against the concrete garage floor. In the
present case, the Government took the position each confession was true, and
charged appellant with committing both acts.


                                      4
United States v. Ellis, No. 01-0590/NA


suppress his confession, the ruling was sustained on appeal, and

the state terminated the prosecution.    See id. at 969.   In April

1996, military charges were preferred against appellant for the

same offense, and were referred to trial in July 1996.     See

Bartkus v. Illinois, 359 U.S. 121 (1959)(permitting state trial

after federal court acquittal for same conduct); R.C.M.

907(b)(2)(C), Manual, supra (motion to dismiss based on former

jeopardy limited to prior court-martial or federal civilian

court proceedings).


     At the court-martial, appellant sought to suppress his

statement on the grounds that it was involuntary.   With respect

to the present appeal, the pertinent aspect of appellant’s

motion involved the question of whether his will was overborne

by Detective Hickson’s statement that the police had probable

cause to arrest him and his wife, and that if they both were

arrested, their other children would be placed in foster homes

by the Department of Human and Rehabilitative Services.     After

receiving evidence from both the prosecution and defense, the

military judge concluded that the prosecution had met its burden

of proving that the confession was voluntary by a preponderance

of the evidence, and ruled that the confession was admissible.

With respect to Detective Hickson’s statements to appellant and

his wife about removing the children to foster homes, the



                                5
United States v. Ellis, No. 01-0590/NA


military judge ruled that these remarks did not constitute

either a threat or an improper promise, but served merely as an

appeal to speak the truth.    See id. at 963.   The Court of

Criminal Appeals found that although Detective Hickson’s

reference to Department of Human and Rehabilitative Services

could be “reasonably construed as an implied threat directed at

the couple’s other children,” it did not cause appellant to

confess against his will.    54 MJ at 968.


     The defense vigorously challenged the voluntariness of the

confession and asked the members to disregard it as unreliable

and uncorroborated by the medical evidence.     In support of the

corroboration requirement, the prosecution relied on the

disputed expert testimony.    See Mil.R.Evid. 304(g), Manual,

supra.   The military judge instructed the members that it was

their responsibility to determine whether the confession was

voluntary and whether it was sufficiently corroborated.



                  B. Destruction of Critical Evidence

     On June 9, the day after the victim died, an autopsy was

performed by Dr. Margarita Arruza, an Associate Medical Examiner

in the Jacksonville Medical Examiner’s Office.     She concluded

that the death was the result of an injury on June 4, that was

not accidental.    During the course of the examination, she



                                   6
United States v. Ellis, No. 01-0590/NA


removed the brain and its meninges from the cranium.      She sliced

the brain and made a visual inspection of the material at

various depths to check for infarcts -- areas of dead tissue

resulting from prolonged deprivation of blood.    She concluded

that there were none based on her unaided visual inspection, but

did not conduct a confirmatory microscopic examination of the

tissue. See 54 MJ at 969.


     Following the autopsy, Dr. Arruza arranged for storage of

the brain and its meninges pursuant to a laboratory regulation

providing that specimens be maintained for at least one year.

Several months later, however, the specimen container was

inadvertently discarded when the laboratory was moved to a new

location.    See id.


     At trial, appellant moved to dismiss the charges, citing

R.C.M. 703(f)(2), Manual, supra, which provides, in pertinent

part, with respect to evidence that has been destroyed or lost:

            [I]f such evidence is of such central
            importance to an issue that is essential to
            a fair trial, and if there is no adequate
            substitute for such evidence, the military
            judge shall grant a continuance or other
            relief in order to produce the evidence or
            shall abate the proceedings . . . .


Appellant also relied upon the right to present a defense under

the Fifth Amendment, the right to cross-examine witnesses under




                                  7
United States v. Ellis, No. 01-0590/NA


the Sixth Amendment, and the right to obtain witnesses under

Article 46, UCMJ, 10 USC § 846.    See 54 MJ at 969.


     Appellant contended that the missing evidence was central

to both parties, noting that the prosecution would rely on

testimony about the brain tissue to establish the time of death,

and the defense would rely on scientific examination of the

brain to impeach the Government’s expert witnesses and to

establish a defense theory as to the time and cause of death.

The defense theory of the case was that the injuries had been

inflicted by a baseball bat wielded by appellant’s daughter

several weeks earlier, or by Timmy’s self-abusive head-banging

behavior.    See id. at 969-70.


     Before ruling on the motion, the military judge received

testimony from the prosecution’s expert, Dr. Arruza, and the

defense expert, Dr. Charles Odom, a medical examiner with the

Dallas County (Texas) Medical Examiner’s Office.    As summarized

by the Court of Criminal Appeals:

            Both experts agreed that a microscopic
            examination of the missing evidence,
            particularly the meninges, could have
            pinpointed the approximate timeframe of when
            the injury occurred. But they agreed, too,
            that a microscopic examination of the skull
            fracture, which was preserved, and available
            for defense examination could also help to
            narrow down the timeframe of the injury.




                                  8
United States v. Ellis, No. 01-0590/NA


54 MJ at 970.   The military judge denied the defense motion,

ruling that the defense had failed to meet its burden in terms

of showing that the missing evidence was apparently exculpatory

and that comparable evidence was not reasonably available.    See

id. (applying the constitutional test set forth under California

v. Trombetta, 467 U.S. 479, 489 (1984)).   To address the problem

caused by the loss of the evidence, the military judge also

ruled that the prosecution could not state or infer that because

Dr. Arruza had the opportunity to examine the missing tissue,

her testimony should be given more weight than testimony of the

defense experts.   See id.


     During the prosecution’s case-in-chief, Dr. Arruza

testified that her gross examination of the child’s skull and

the missing tissues placed the date of injury at June 4, and

stated that she had believed a microscopic analysis would lead

to the same result.   Dr. Arruza further testified that she

conducted a microscopic examination of the fracture two and a

half years after performing the autopsy, and determined that she

had misdated the fracture, and that it was actually three to six

weeks old.   However, Dr. Arruza concluded the skull had been




                                 9
United States v. Ellis, No. 01-0590/NA


refractured and the new injury was consistent with being four

days old.2


      The defense expert, Dr. Odom, testified that his unaided

visual observation of the skull indicated that it had been

fractured approximately three weeks prior to death, and that his

opinion was confirmed when he microscopically examined the

skull.   Based on his examination of the skull fracture, medical

records, and autopsy photographs taken of the destroyed brain

evidence, Dr. Odom concluded that Timmy’s death was caused by a

subacute subdural hematoma -- a blood clot in the space between

the brain and dura -- which had began to liquify and re-bleed,

causing irritation to, and swelling of, the brain.            Dr. Odom

further stated that the subacute subdural hematoma was two to

three weeks old at the time of death.         He added that he would

have expected a microscopic examination of the missing brain

tissue to confirm his gross observations had he been able to

conduct such an examination.


      During cross-examination, trial counsel repeatedly

challenged the reliability of Dr. Odom’s testimony by obtaining

an acknowledgment from Dr. Odom that he would not stake his



2
  Dr. Arruza conducted the microscopic examination of the skull, at the
request of the defense, after learning the defense expert, Dr. Odom, had
determined the fracture was three weeks old by gross examination of autopsy
pictures of the skull specimen.


                                     10
United States v. Ellis, No. 01-0590/NA


professional reputation on his analysis of the timeframe in the

absence of a microscopic examination of the missing tissue.

During closing argument, trial counsel returned to this theme,

suggesting to the members that they could not rely on Dr. Odom’s

testimony because “he is evidently not one to stake his

reputation on it[.]”   Trial counsel urged the members to reject

the defense theory based on Dr. Arruza’s testimony that ”she did

not see any evidence of a subacute or chronic subdural

hematoma[,]. . . that such evidence would be visible on

inspection, and she didn’t see it.”   The military judge did not

sustain defense counsel’s objection to the prosecution’s

exploitation of the missing evidence.


     With respect to the missing evidence, the military judge

instructed the members that they could not give less weight to

the testimony of Dr. Odom solely because he did not have the

same opportunity as Dr. Arruza to examine the missing specimen.

He also stated that they could consider Dr. Odom’s opinion as to

what he would have expected the microscopic examination to show,

even though the specimen was unavailable.


     Defense counsel asked the military judge to address the

harm caused by the missing evidence by giving an adverse

inference instruction, permitting the members to infer a fact

against the Government’s interest if the Government lost or


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United States v. Ellis, No. 01-0590/NA


destroyed evidence whose content or quality was at issue.    Such

an instruction would have permitted, but not required, the

members to draw an inference against the Government’s theory of

the time of death.   The military judge declined to give the

requested instruction.



                           II. Discussion

                          A. The Confession

     As the lead opinion notes, a confession may not be

introduced against the accused unless it was provided

voluntarily, U.S. Const. amend. V; Article 31(d), UCMJ, 10 USC

§ 831(d), a determination which is based upon the totality of

the surrounding circumstances.    Schneckloth v. Bustamante, 412

U.S. 218, 226 (1973).    Statements by law enforcement officials

about consequences for family members may render a statement

involuntary, depending on the totality of the circumstances.

Compare Lynumn v. Illinois, 372 U.S. 528, 534 (1963)(confession

deemed involuntary when police advised defendant that if she did

not cooperate, state financial aid for the children would be

terminated and the children would be taken from her), with

United States v. Moreno, 36 MJ 107, 112 (CMA 1992)(confession

not involuntary 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


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United States v. Ellis, No. 01-0590/NA


facing a greater risk of losing his children).       We specifically

recognized in Moreno that other “circumstances involving

threats, promises, or other inducements” could “raise questions

of the voluntariness of an accused’s statements to a social

worker or other similarly situated person.”    Id.    In general,

the courts have approached such cases with a focus on the facts

of each individual case.    In a number of cases, the courts have

determined that the facts rendered a confession involuntary.

See, e.g., United States v. Tingle, 658 F.2d 1332 (9th Cir.

1981); Hall v. State, 266 N.E.2d 16 (Ind. 1971); People v. Rand,

21 Cal. Rptr. 89 (Cal.Ct.App. 1962).    In other cases, the courts

have determined that the facts did not amount to unlawful

coercion.    See, e.g., United States v. Murray, 45 MJ 554 (N-M.

Ct. Crim. App. 1996); United States v. Vandewoestyne, 41 MJ 587

(A.F. Ct. Crim. App. 1994).


       In the present case, the law enforcement officials

discussed placing the couple’s children in foster homes for a

specific purpose -- “to pressure them into providing additional

information as to the cause of Timmy’s” death.    See 54 MJ at

968.    They did not raise the specter of removing the children

for a beneficial or neutral purpose.


       Under these circumstances, the case presents a very close

question as to whether appellant’s confession was involuntary –


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United States v. Ellis, No. 01-0590/NA


whether he confessed not because he was guilty, but rather, to

assume the sole blame, thereby exonerating his wife so that the

children could remain with her.    In the state court proceedings

against appellant, the trial judge ruled that the confession was

inadmissible, and that ruling was sustained on appeal; however,

the military judge and the Court of Criminal Appeals came to a

different conclusion.   Assuming, without deciding, that the

judicial rulings in the present case were correct as a matter of

law, such rulings do not resolve the issue of whether the

confession was reliable -- an issue committed by law to the

members of the court-martial panel under Mil.R.Evid. 304(e)(2),

Manual, supra.   See also Crane v. Kentucky, 476 U.S. 683 (1986).

The closeness of the question as to the reliability of the

confession is highly relevant to the issue considered next --

whether any error by the military judge in fashioning a remedy

for the missing evidence was harmless beyond a reasonable doubt.


                 B. Destruction of Critical Evidence

     The primary rule at issue in this case is R.C.M. 703(f)(2),

Manual, supra, which governs the relief a party may seek when

evidence that is of “central importance to an issue” is

“destroyed, lost, or otherwise not subject to compulsory

process.”   The applicable precedent interpreting R.C.M.

703(f)(2) is United States v. Manuel, 43 MJ 282, 288 (1995), in



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United States v. Ellis, No. 01-0590/NA


which we concluded that in R.C.M. 703(f)(2), the President

granted safeguards to a military accused beyond the minimal

requirements required by Article 46, UCMJ, or by the

Constitution under Trombetta.   The rule does not include a

requirement to show that the evidence was lost or destroyed as a

result of the Government’s bad-faith.    We emphasized that the

“rule gives the court discretion to fashion an appropriate

remedy if lost evidence is of such central importance to an

issue that is essential to a fair trial.”    Manuel, 43 MJ at 288

(emphasis and internal quotations omitted).    The question before

us is whether the military judge in this case fashioned an

appropriate remedy.


     In the present case, there was substantial prejudice to the

rights of the accused as a result of the destruction of the

evidence.   The central issue at trial was the time of the injury

that caused Timmy’s death.   The prosecution endeavored to show

that the injury occurred four days before death.    The defense

expert testified that the injury likely occurred three weeks

before death.   The military judge permitted the prosecution to

attack the credibility of the defense expert by emphasizing the

fact that the expert had not examined the missing specimen.    As

a result, the military judge significantly diminished the effect

of his prior remedial ruling which, in order to cure any



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prejudice to the defense resulting from the destruction of the

brain evidence, had prohibited such questioning.


     The military judge also permitted trial counsel in closing

argument to bolster the credibility of the government’s expert

by emphasizing her access to, and examination of, the missing

specimen.   In addition, the military judge denied repeated

defense requests for an adverse inference instruction.     Even if

the initial ruling of the military judge denying the motion to

dismiss was correct, the subsequent proceedings reflected a

failure to take appropriate corrective action to remedy the

problems posed by the destruction of this critical evidence.


                     C. Harmless Error Analysis

     The military judge had a number of remedial actions

available to address the problem of the missing evidence, to

include an adverse inference instruction.   The record, however,

contains defense requests for both an adverse inference

instruction and other relief, and the military judge’s denials.

If the military judge did not wish to phrase the instruction

precisely as proposed by the defense, he was obligated under

R.C.M. 703(f)(2) and Manuel to give an appropriate instruction,

which he did not do.   Moreover, the military judge further erred

by failing to sustain defense objections to trial counsel’s

improper argument.



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United States v. Ellis, No. 01-0590/NA


     The lead opinion concludes that any errors in this case

were rendered harmless by the admission of appellant’s

confession.    I respectfully disagree.


     A military judge’s ruling on the voluntariness of a

confession as a matter of law does not answer the question as to

its truthfulness as a matter of fact.     “A [trial judge’s]

finding that the confession is voluntary prior to admission no

more affects . . . the jury’s view of the reliability of the

confession than a finding in a preliminary hearing that evidence

was not obtained by an illegal search affects . . . the jury’s

view of the probativeness of this evidence.”     Jackson v. Denno,

378 U.S. 368, 386 n.13 (1964); see also Mil.R.Evid. 304(e),

Manual, supra; United States v. Meade, 20 USCMA 510, 513, 43 CMR

350, 353 (1971).


     If a reviewing court finds that there is an error at trial,

that error cannot be deemed harmless by reliance on a confession

that has been challenged on voluntariness grounds before the

members without first considering the impact, if any, of the

error on the members’ determination of the confession’s actual

truth.    Mere admission of a confession does not establish its

reliability.    See, e.g., Mil.R.Evid. 304(e)(2); Crane, 476 U.S.

at 689.    In the present case, there are three theories, based

upon the prosecution’s evidence and arguments at trial, under


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United States v. Ellis, No. 01-0590/NA


which the members could have convicted appellant:    (1) the

members concluded that appellant’s confession and the

prosecution’s expert testimony were both credible and permitted

a finding of guilty beyond a reasonable doubt; (2) the members

concluded that although the confession was unreliable, the

prosecution’s expert testimony permitted a finding of guilty

beyond a reasonable doubt; or (3) the members concluded that the

confession was credible, and the prosecution’s expert testimony

was not sufficiently credible on its own to permit a finding of

guilty beyond a reasonable doubt but was sufficient to

corroborate appellant’s confession.


     We have no way of knowing which theory was employed by the

members to convict appellant.   What is significant on appeal is

that each theory relies on the testimony of the prosecution’s

expert, Dr. Arruza.   The prosecution did not present other

independent evidence of appellant’s guilt.    See 54 MJ at 970

(“The Government maintained that the medical evidence would

corroborate . . . appellant’s admission that he had fatally

injured his son on 4 June 1994”).    Accordingly, any harmlessness

analysis must consider the impact on the members’ ultimate

credibility determinations flowing from trial counsel’s improper

use of the missing evidence to bolster Dr. Arruza’s testimony,

and undermine the credibility of the defense expert, Dr. Odom.



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United States v. Ellis, No. 01-0590/NA


Similarly, we must consider the impact of the military judge’s

failure to give an adverse inference instruction.


     The lead opinion assumes that there is a fourth theory

under which the members could have convicted appellant.    The

opinion is based on the assumption that the members disregarded

the expert testimony concerning the time of death derived by the

Government's expert from the missing evidence, and that they

focused solely on the expert testimony regarding other injuries

as the basis for determining that the confession was reliable.

This theory is not viable.   Nothing occurred at trial to signal

to the members that they should disregard Dr. Arruza's

conclusions drawn from her examination of the brain and focus

solely on the other injuries for purposes of evaluating the

confession.   On the contrary, the evidence regarding the brain

was the central focus of the Government’s case and the

Government’s arguments on findings.


     In the present case, the issue of voluntariness was so

close that state judges at both the trial and appellate level

determined that appellant’s confession was inadmissible.    In

making our determination as to whether the errors in the present

case were harmless beyond a reasonable doubt, it is

inappropriate to rely on a theory which requires us to assume

that the members, in reaching a decision on reliability, were


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United States v. Ellis, No. 01-0590/NA


not substantially influenced by evidence central to the

prosecution’s case.


      The Government bears the burden of demonstrating that the

errors in this case did not substantially influence the members’

verdict.    United States v. Moolick, 53 MJ 174, 177 (2000).            The

possibility that the members ignored the central evidence in the

case and convicted appellant based on a theory that was not

presented to them is too speculative to uphold a conviction on

grounds of harmlessness beyond a reasonable doubt.            In that

regard, it is noteworthy that the members rejected the

Government’s argument that appellant murdered his son,

convicting him of a lesser included offense -- involuntary

manslaughter -- notwithstanding the brutality described in the

confession.3    There is a significant possibility that the members

placed considerable reliance on Dr. Arruza’s testimony to

resolve any doubts they had as to the timing of Timmy's fatal

head injury.    The Government bears the burden of negating this

possibility if the conviction in this case is to be sustained on

grounds of harmless error.       Id.    The Government has failed to do

so.   In the context of the very close question presented to the


3
  Appellant was charged with the unpremeditated murder of his son under one of
two theories: (1) murder with intent to kill, or (2) murder by “inflicting
great bodily harm,” the latter requiring the members to find that appellant
engaged in acts which were “inherently dangerous . . . and evinced a wanton
disregard for human life, and that [appellant] knew that death or great
bodily harm [to his son] was a probable consequence of the act.”


                                       20
United States v. Ellis, No. 01-0590/NA


members as to voluntariness of the confession, and in light of

the interlocking nature of the prosecution’s evidence and

argument on the confession and the expert testimony, the

military judge’s failure to take appropriate corrective action

was not harmless beyond a reasonable doubt.




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