

   
   
   
   U.S. v. Muirhead



UNITED STATES, Appellee
v.
Darrell J. MUIRHEAD
Machinery Repairman Second Class
U. S. Navy, Appellant
 
No. 98-0658
Crim. App. No. 96-1211
 
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
Argued May 11, 1999
Decided July 28, 1999

COX, C.J., delivered the opinion of the
Court, in which SULLIVAN, CRAWFORD, GIERKE, and EFFRON, JJ., joined.


Counsel
For Appellant: Lieutenant Frank M. Doherty,
JAGC, USNR (argued); Major Stephen D. Chace, USMC (on brief); Lieutenant
Syed N. Ahmad, JAGC, USNR.
For Appellee: Lieutenant Commander JoAnn
W. Melesky, JAGC, USN (argued); Colonel Kevin M. Sandkuhler,
USMC, and Commander Eugene E. Irvin, JAGC, USN (on brief); Commander
D.H. Myers, JAGC, USN, and Lieutenant Janice K. OGrady, JAGC,
USNR.
Military Judge: Ronald B. Leo

THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION.

Chief Judge COX delivered the opinion of the
Court.
A general court-martial composed of officer
and enlisted members found appellant guilty, contrary to his pleas, of
assault with intent to inflict grievous bodily harm, in violation of Article
128, Uniform Code of Military Justice, 10 USC § 928. The adjudged
and approved sentence provided for a bad-conduct discharge, 2 years confinement,
forfeiture of $854.40 per month for 2 years, and reduction to the lowest
enlisted grade. The Court of Criminal Appeals affirmed the findings and
all of the sentence, except for a portion of the forfeitures found to be
ambiguous.1/
48 MJ 527, 540 (N.M.Ct.Crim.App. 1998).
This Court granted review of three issues.
Our resolution of Issue II is dispositive of the case.2/

II



WHETHER THE MILITARY JUDGE ERRED WHEN HE
DENIED APPELLANTS MOTION TO SUPPRESS STATEMENTS TAKEN IN VIOLATION OF
ARTICLE 31, UNIFORM CODE OF MILITARY JUSTICE.



We find the military judge erred to the substantial
prejudice of appellant by denying his motion to suppress his statements
taken in violation of Article 31(b), UCMJ, 10 USC § 831(b). Accordingly,
we reverse.

I. FACTS
On November 6, 1994, at approximately 9:30
p.m., appellant took his 6-year old stepdaughter, M.D., to the emergency
room at the United States Naval Hospital, Guam, because she was bleeding
from her vaginal area. M.D. was wearing a nightie and underwear at the
time of her admission to the hospital. The treating physician, Commander
(CDR) Mark Ralston, asked appellant what had happened. According to CDR
Ralston, appellant said M.D. had been with her mother during the day. Appellant
had come home from work at approximately 6:30 p.m. and stayed with M.D.
while her mother went out with friends. Appellant noticed M.D. was bleeding
at around 8:30 p.m., and M.D. told him that she had placed a mop handle
in her "puki."3/
Appellant told CDR Ralston he thought the injury was accidental.
CDR Ralston attempted to question M.D. about
her injury but found her to be "silent, tearful, and nervous." Upon examining
her, CDR Ralston considered the injury nonaccidental, contrary to appellants
opinion. Following standard operating procedures, CDR Ralston took steps
to notify the Naval Criminal Investigative Service (NCIS), Child Protective
Services, and a naval hospital photographer.
CDR Ralston and an emergency room nurse then
performed a rape kit examination of M.D. After the rape kit examination
was completed, CDR Ralston told Special Agent Dwayne Daley of NCIS that
M.D. had signs of possible sexual abuse. Although CDR Ralston did not remember
specifically telling Agent Daley that he suspected appellant of sexually
abusing M.D., he attempted to convey his suspicions in that regard to the
agent. Sometime after midnight, CDR Ralston relayed to Special Agent Bonnie
Brady, also of NCIS, that his findings were tantamount to a finding of
sexual abuse and suggested that appellants house be searched. CDR Ralston
placed M.D. in a medical hold status because he suspected M.D.s injury
resulted from child abuse.
Agents Daley and Brady went to appellants
home and obtained a consensual search authorization from appellant. On
the consent form, the agents inserted the phrase "suspected child abuse"
as the reason for the search. During and immediately after the search,
Agent Brady interviewed appellant without reading him his rights under
Article 31(b). The military judge denied appellants motion to suppress
the statements obtained in violation of Article 31(b), and the Government
used those statements against appellant at his court-martial. According
to Agent Bradys testimony, appellant said he arrived home that evening
and began to argue with his wife, whereupon she stormed out of the house,
leaving M.D. with appellant. Appellant watched television and washed clothes
while M.D. played around the house. At approximately 8:30 p.m., appellant
told M.D. it was time for her to go to bed, and M.D. went upstairs to bed.
Shortly after appellant went to bed, at approximately 9:00 p.m., appellant
heard M.D. going into the bathroom and rustling around in the drawers in
her room. Upon investigating, appellant went into M.D.s bedroom and saw
her placing her underwear into the pocket of her pants. After appellant
took the underwear out of M.D.s pocket, he discovered they were covered
in blood. He then noticed M.D.s bleeding, cleaned her with a towel, and
took her to the hospital.
Agent Brady also testified that appellant said
he never heard M.D. scream that night. She also said he found the mop between
the dining room table and the living room area, saw no blood in that area,
and assumed M.D. had cleaned up the blood after she hurt herself there.
Furthermore, Agent Brady testified appellant told her M.D. used a sanitary
napkin to control her bleeding, and appellant said the child might have
stuck the mop handle into her vagina because she was "horny."

II. ANALYSIS
A. Failure to Give Rights Advisement
Article 31(b) provides:



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 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.



By its terms, Article 31(b) applies to a person
suspected of an offense. The determination of whether a person interviewed
is a suspect is a question of law. United States v. Good, 32 MJ
105, 108 (CMA 1991); United States v. Meeks, 41 MJ 150, 161 (CMA
1994). A military judge considering the question of whether a person is
a suspect uses an objective standard. The question is whether a reasonable
person would consider someone to be a suspect under the totality of the
circumstances. Meeks, supra; United States v. Shake,
30 MJ 314, 317 (CMA 1990). On appeal, the military judges decision on
whether the person being questioned was a suspect is reviewed de novo.
United
States v. Miller, 48 MJ 49, 54 (1998). Of course, in some cases, a
subjective test may be appropriate; that is, we look at what the investigator,
in fact, believed, and we decide if the investigator cosidered the interrogated
person to be a suspect.
In ruling on appellants motion, the military
judge stated that, although the injury to M.D. suggested the possibility
of abuse, the NCIS agents did not believe that appellant was a suspect;
nor that there were enough facts to lead them to reasonably believe that
appellant should be considered a suspect. The Court of Criminal Appeals
affirmed the trial judges ruling, relying heavily on the fact that both
NCIS
agents testified they did not consider appellant
to be a suspect when the statements were obtained. 48 MJ at 536-37. The
court emphasized that both agents were "[w]ell trained and experienced"
and would not have allowed appellant to accompany them in the search; nor
would they have interviewed appellant in any location except their offices
if they had considered him a suspect. The court noted that appellant did
not consider himself a suspect under the circumstances. Further influencing
the courts decision was the fact that none of appellants statements were
reduced to writing; nor were they incriminating. Id.
The military judge and the court below placed
great weight on the subjective opinions of the agents as to whether Article
31(b) rights were required. However, this is the wrong test, for the issue
must be viewed objectively. Meeks, 41 MJ at 161; Shake, 30
MJ at 317.
Our review of the record leads us to conclude
that a reasonable person under the circumstances would have considered
appellant a suspect, requiring a rights advisement pursuant to Article
31. Appellant took M.D. to the emergency room hospital; the whereabouts
of M.D.s mother was unknown. CDR Ralston told Agent Brady that the injury
to M.D. was suspicious. CDR Ralston also told Agent Daley that M.D. had
signs of possible sexual
abuse. After talking to Agent Daley, CDR Ralston
thought Agent Daley understood that CDR Ralston considered appellant a
suspect. After conducting a rape kit examination of M.D., CDR Ralston relayed
to Agent Brady that his findings were tantamount to a finding of sexual
abuse and suggested to her that appellants house be searched. The time
of day for this communication also highlights the seriousness of the situation.
Agent Brady received this information after midnight, but before approximately
2:50 a.m. when the search of appellants house commenced. Furthermore,
and importantly, the reason for the search was listed on the consent to
search form as "suspected child abuse."
Although the agents in their testimony attempted
to explain the child abuse entry on the consent form as merely something
within the "ballpark" of what they were investigating, this attempted explanation,
in conjunction with all of the other circumstances, does not withstand
the reasonable person test. A reasonable person would have concluded that
appellant was a suspect in the abuse of M.D. -- not only a possible perpetrator
but also someone who may have been an accessory to the abuse. These experienced
agents should have read appellant his rights under Article 31(b) before
questioning him. Consequently, the military judge erred when he denied
appellants motion to suppress his statements to Agent Brady.

B. Prejudice To Appellant
The finding of error does not end our inquiry.
The admission of appellants statements must be reviewed using a harmless-error
analysis to determine if appellant was materially prejudiced. Error not
amounting to a constitutional violation will be harmless if the factfinder
was not influenced by it, or if the error had only a slight effect on the
resolution of the issues of the case. United States v. Barnes, 8
MJ 115-116 (CMA 1979).
The evidence against appellant consisted of
three out-of-court, inconsistent statements of M.D. identifying appellant
as the perpetrator; a stipulation of expected testimony from the treating
physician; testimony from an expert on child abuse that contained an opinion
on the probable cause of injury differing from that of the defense expert;
photographs of the injury to M.D. and of blood found throughout the home;
and testimony from the two NCIS agents, during which Agent Brady recounted
appellants unwarned statements.
According to Agent Brady, appellant said he
arrived home that evening and began to argue with his wife, whereupon she
stormed out of the house, leaving M.D. with appellant.4/
Appellant saw that M.D. was bleeding after he had put her to bed, but appellant
did not hear M.D. cry or scream that night. Agent Brady also testified
that appellant said he found the mop between the dining room table and
the living room area, saw no blood in that area, and assumed M.D. had cleaned
up the blood after she hurt herself there. Furthermore, Agent Brady testified
that appellant told her M.D. used a sanitary napkin to control her bleeding,
and appellant said the child might have stuck the mop handle into her vagina
because she was "horny."
These facts were exclusively derived from appellants
statements to Agent Brady. Moreover, it is important to note that M.D.
did not testify at trial.5/
We cannot say in this case, where there
was no direct evidence that appellant had committed the offenses, that
the admission of appellants statements through the testimony of Agent
Brady was harmless. At first glance, it may appear that appellants statements
were not inculpatory since they did not directly admit the charges. However,
appellants statements supplied the members with a potential motive for
his committing the offense; a problematic explanation why no blood was
found between the dining room and living room area; an unusual characterization
of a 6-year old as to why she would injure herself that way; an unordinary
means M.D. used to stop her bleeding; and appellants denial that he heard
M.D. cry out that evening. Under the circumstances, these facts reasonably
must
have influenced the members during
their deliberations and had more than a slight effect on the resolution
of the issues in the case.
Accordingly, appellants testimony
had a substantial influence on the findings. See, e.g.,
United
States v. Adams, 44 MJ 251, 252 (1996). Although we are mindful of
the principle that prejudicial error should be found sparingly, the interests
of justice require that this case be reversed since the admission of information
derived from appellants unwarned statements materially prejudiced his
right to a fair trial.

III. CONCLUSION
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is reversed. The findings and sentence
are set aside. The record of trial is returned to the Judge Advocate General
of the Navy. A rehearing may be ordered.
FOOTNOTES:
1/ The court-martial
sentenced appellant, in pertinent part, to "forfeit all pay and allowances,
which is $854.40 per month for 2 years." The Court of Criminal Appeals
found this portion of the approved sentence to be ambiguous and affirmed
only the unambiguous portion, namely, forfeiture of $854.40 pay per month
for 2 years.
2/
Granted Issues I and III are as follows:




I
WHETHER THE MILITARY
JUDGE ERRED WHEN HE ADMITTED HEARSAY AS SUBSTANTIVE EVIDENCE.

III
WHETHER THE MILITARY
JUDGE COMMITTED PLAIN ERROR WHEN HE DID NOT EXCLUDE AN EXPERTS TESTIMONY
THAT THE INJURY TO THE CHILD WAS THE RESULT OF CHILD ABUSE.



3/
The record indicates that M.D. used "puki" and "pik-pik" as terms to describe
her pubic area.
4/
When he arrived home on the evening of M.D.s injury, appellant discovered
a message to his wife requesting that she pick up a man named John. Appellant
had previously suspected his wife was having an affair, and this revelation
added to his suspicion.
5/
The defense called M.D. as a witness, but she did not respond to any questions
and was ruled unavailable by the military judge.

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