                   UNITED STATES NAVY-MARINE CORPS
                      COURT OF CRIMINAL APPEALS
                           WASHINGTON, D.C.

                                      Before
                    K.J. BRUBAKER, B.T. PALMER, A.Y. MARKS
                             Appellate Military Judges

                             UNITED STATES OF AMERICA

                                                 v.

                         DAVID W. NEIMAN
          AVIATION BOATSWAIN'S MATE AIRMAN (E-3), U.S. NAVY

                                  NMCCA 201500119
                              GENERAL COURT-MARTIAL

Sentence Adjudged: 9 October 2014.
Military Judge: CAPT Robert B. Blazewick, JAGC, USN.
Convening Authority: Commander, Navy Region Southeast, Naval Air Station,
Jacksonville, FL.
Staff Judge Advocate's Recommendation: CDR N.O. Evans, JAGC, USN.
For Appellant: Maj Benjamin Robles, USMC; LT David W. Warning, JAGC, USN.
For Appellee: Maj Suzanne M. Dempsey, USMC; LT James M. Belforti, JAGC,
USN.

                                          26 July 2016

                        ---------------------------------------------------
                                OPINION OF THE COURT
                        ---------------------------------------------------

THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PALMER, Senior Judge:

        A panel of members with enlisted representation, sitting as a general court-martial,
convicted the appellant, contrary to his pleas, of one specification of murder and one
specification of obstructing justice in violation of Articles 118 and 134, Uniform Code of
Military Justice, 10 U.S.C. §§ 918 and 934. The members sentenced the appellant to
confinement for life with the possibility of parole, total forfeitures, and a dishonorable discharge.
The convening authority approved the sentence as adjudged.
        The appellant raises a single assignment of error, which contains three related sub-issues:
(1) that Naval Criminal Investigation Service (NCIS) agents interrogated him in violation of
Article 31(b), UCMJ, and the statements made prior to receiving his rights should have been
suppressed; (2) that any statements made after he was advised of his Article 31(b) rights should
have been suppressed as involuntary; and (3) that any statements made during his interrogation
should have been suppressed in order to deter future violations of the Constitution by NCIS
agents.

       After considering the pleadings of the parties and the record of trial, we conclude that the
findings and the sentence are correct in law and fact and that no error materially prejudicial to
the substantial rights of the appellant occurred. Arts. 59(a) and 66(c), UCMJ.

                                          BACKGROUND

        At the time of the charged offenses, the appellant was a 29-year-old Aviation
Boatswain’s Mate (Handling) Third Class assigned to Naval Air Station (NAS) Meridian,
Mississippi. He lived in base housing with his 34-year-old wife, Heather, to whom he had been
married approximately four months. Heather suffered from a rare genetic disorder and a variety
of other significant ailments that required dozens of surgeries over her lifetime and caused her
severe chronic pain. As a result, she took numerous prescribed medications, to include
hydrocodone, a synthetic opiate derived from codeine, which helped manage her pain. Heather
died in the early morning hours of 19 January 2013, while lying in bed next to the appellant. A
subsequent medical examiner’s report concluded her death was caused by toxic levels of
hydrocodone in her system.

         On 5 November 2013, NCIS Special Agent (SA) AB and Investigator (Inv.) MS
interviewed the appellant. Approximately five hours into the interview, they advised him that
they suspected him of negligent homicide, manslaughter, and misprision of a serious offense, and
gave him Article 31(b), UCMJ, rights. The appellant waived his rights and made several
admissions related to his wife’s death. Then, two hours after the initial rights advisement, SA
AB added murder to the list of suspected offenses on the rights advisement form, which the
appellant acknowledged and then stated he wished to continue the interrogation. Approximately
90 minutes later, the appellant told the agents that, knowing she had already consumed a
significant number of hydrocodone pills, he put two more pills in Heather’s soda and served the
drink to her. He admitted she was unaware the pills were in her drink and that he gave her the
hydrocodone in order to kill her and thus end her suffering.

        The next day, during an NCIS pre-polygraph interrogation with SA JH, and after again
being advised of his Article 31(b) rights, the appellant provided a more detailed confession of
how he murdered his wife. Specifically, he stated that during the evening of 18 January 2013,
Heather began acting like she was daydreaming and was staring blankly. He thereafter realized
approximately 20 hydrocodone pills were missing from his wife’s prescription bottle and when
he asked her about it, she said she had taken some pills for her pain. Then, while preparing
dinner, the appellant crushed ten hydrocodone pills on the kitchen counter, mixed them with soda
in her favorite cup, and served the drink to her. She drank the entire contents during dinner
unware he had laced it with hydrocodone.


                                                 2
         The appellant admitted that over the course of the night, he twice more crushed and
mixed approximately ten hydrocodone pills each time in Heather’s soda and served it to her.
The appellant stated his wife died before she could finish the last drink. He admitted he
thereafter cleaned the hydrocodone residue off the counter and rinsed out the cup so that “no one
would know what I had done.”1 He stated the idea of killing her came to him earlier in the week
after talking to his mother about Heather’s life insurance. The appellant explained that he and
Heather had a fight on 17 January 2013, which prompted him to “really start thinking about how
it would be a win-win situation if I killed Heather. Heather had been in a lot of pain recently and
I knew I would get the life insurance[.]”2 The appellant stated he knew the medication would
kill his wife, that he thought he was helping her by ending her pain, and that she “never gave me
any indication that she knew [the pills were in her drinks].”3

I. Whether the entirety of the appellant’s unwarned statements should have been
suppressed

        At trial, the defense moved to suppress the appellant’s 5 November 2013 statements
made to SA AB and Inv. MS, arguing that the agents were required to read the appellant his
Article 31(b) rights before questioning him. The defense claimed the agents believed the
appellant was a suspect long before the 5 November 2013 interview, citing the following as
support: that the agents were aware that the victim’s sister and the appellant’s former girlfriend
both suspected the appellant of involvement in Heather’s death; that SA AB attempted to
conduct a telephonic oral/wire intercept of the appellant wherein she used “negligent homicide”
as the suspected violation and referenced “negligent homicide” in an interim report of
investigation; that they engaged in significant preparation in advance of the interview, to include
attending a high level video-teleconference (VTC) with a senior NCIS official, arranging for the
presence of a polygraph examiner at the interview, and SA AB drafting a list of 91 questions she
intended to use during the interview that included a reminder to provide Article 31 (b) rights and
several accusatory questions; and that they recorded the 5 November interview, which normally
does not occur when interviewing witnesses. In response, the prosecution asserted the
investigation was a death investigation in which accidental overdose or suicide was as plausible
as homicide and that the appellant was not a suspect until he made incriminating statements
during the 5 November interview.4 The military judge ultimately granted the motion in part by
suppressing the appellant’s statement made in the 18 minutes prior to his rights advisement.




1
    Prosecution Exhibit 14 at 1.
2
    Id. at 2.
3
    Id.
4
  Although the trial counsel, in her 13 August 2014 Response to the Defense Motion to Suppress Statements of
ABHAN Neiman to NCIS Investigators, conceded the appellant “should have been provided an Art. 31(b) UCMJ
advisement at the beginning of the interview on 5 November 2013,” when arguing the motion on 21 August 2014,
she amended that position, saying instead “the vast majority of the morning [interview] session . . . did not involve
the questioning of [a] suspect.” Appellate Exhibit XVII at 9; Record at 252.
                                                           3
                                                    ANALYSIS

        “‘When there is a motion to suppress a statement on the ground that rights’ warnings
were not given, we review the military judge’s findings of fact on a clearly-erroneous standard,
and we review conclusions of law de novo. ’” United States v. Jones, 73 M.J. 357, 360
(C.A.A.F. 2014) (quoting United States v. Swift, 53 M.J. 439, 446 (C.A.A.F. 2000)). Under
these standards, “‘a military judge abuses his discretion if his findings of fact are clearly
erroneous or his conclusions of law are incorrect.’” United States v. Gilbreath, 74 M.J. 11, 2014
CAAF LEXIS 1206, at 19 (C.A.A.F. Dec. 18, 2014) (quoting United States v. Ayala, 43 M.J.
296, 298 (C.A.A.F. 1995)). “The abuse of discretion standard requires not that the judge was
wrong, but rather was clearly wrong.” United States v. Byrd, 60 M.J. 4, 12 (C.A.A.F. 2004)
(Crawford, C.J., concurring in the result). Notwithstanding the “abuse of discretion” standard,
the ultimate determination of whether a person interviewed is a suspect is a question of law that
we review de novo. United States v. Muirhead, 51 M.J. 94, 96 (C.A.A.F. 1999).

           Article 31(b), UCMJ, states:

           No person subject to this chapter may interrogate, or request any statement from
           . . . 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.

If an NCIS agent interrogates or requests a statement from a person suspected of an offense, that
agent must advise the person of his or her rights under Article 31(b), UCMJ. “Whether a person
is a suspect is an objective question that is answered by considering all the facts and
circumstances at the time of the interview to determine whether the military questioner believed
or reasonably should have believed that the servicemember committed an offense.” Swift, 53
M.J. at 446 (citation and internal quotation marks omitted).

        The military judge predicated his decision to suppress a portion of the 5 November
interview on the following findings of fact:

         1. Shortly after Heather’s death, the lead agent, SA AB, interviewed Ms. SS, Heather’s
sister, who expressed suspicions about the appellant’s involvement in her sister’s death.5 SA AB
stated that she followed up on Ms. SS’ potential leads, and that most of them did not pan out.
Further, Ms. MB, the appellant’s former girlfriend, made allegations against the appellant but SA
AB testified Ms. MB’s leads “led nowhere and that [she] was a drug user who expected to get
money and stopped cooperating once she realized she would not get any.”6


5
 Ms. SS told SA AB that the appellant had deleted some of Heather’s e-mails; that she found the cup Heather had
used the night she died, saw residue in it, and that the appellant eventually put the cup in the garbage; that the
appellant seemed excited about getting life insurance money; and that the appellant was on dating websites shortly
after Heather’s death.
6
    AE LVII at 4.

                                                         4
        2. In August 2013, while touring regional installations and after receiving an informal
brief on SA AB’s only pending death investigation, the NCIS Executive Assistant Director for
Pacific Operations organized a two-hour VTC with SA AB, Inv. MS, SA JH, two other agents, a
forensic specialist, a judge advocate, and a psychologist to review the case. As an undetermined
death, the agents knew Heather died from an overdose of prescribed hydrocodone, but they did
not know if the death was accidental, a suicide, or a homicide. The VTC members agreed that
the appellant was not “subject titled” and, because he had not been interviewed since 19 January
2013, he needed to be re-interviewed. After the VTC, the Executive Assistant Director sent Inv.
MS and a forensic specialist to NAS Meridian to help close the case.

       3. SA AB did not expect her list of 91 questions would elicit incriminating responses,
and she saved the accusatory questions until the very end for this reason. SA AB was “taken
aback” when the appellant made admissions that required Article 31(b) warnings.7

        4. Inv. MS was an investigator-review specialist assigned to the NCIS cold-case
homicide unit. He believed this was “an overdose case but the cause of death remained
undetermined.” 8 He recalled the August VTC focused on whether further investigation could
change the case from “undetermined to a ‘natural [death] or suicide or what it turned out to be.’”9
Inv. MS further stated because the appellant only made a “one-page statement immediately after
his wife’s death,” that it was “the normal course of business” to get a final statement in
undetermined death cases.10 Based on Heather’s history of suicide attempts and her apparent
overdose, Inv. MS believed this was “a death case and not a criminal case.”11

       5. SA JH, a polygraph examiner, observed a majority of the interview/interrogation on 5
November. Usually polygraph examiners are not present during interviews, but in this case the
examiners were authorized to travel to NAS Meridian so that a polygraph could be administered
quickly, if needed, before the appellant’s imminent separation from the Navy. SA JH initially
believed this was not a criminal case, but at 1335, during a break in the 5 November interview,
he recommended SA AB advise the appellant of his Article 31(b) rights.

        The military judge organized the appellant’s 5 and 6 November interview/interrogation
into several phases, with Phases I-III provided in relevant part below:

        Phase I – The beginning of the initial interview at 0838 until 1318—the point at which
the military judge concluded that the agents “should have reasonably suspected the accused of
committing an offense.”12 The military judge found that the appellant said he wanted to talk
with investigators, was pleased when he learned he was going to speak with NCIS, seemed

7
    Id. at 4.
8
    Id. at 3.
9
    Id.
10
     Id.
11
     Id.
12
     Id. at 5.
                                                5
happy to finish the investigation, and gave the agents permission to review his finances. The
military judge further found that the agents’ questions did not indicate they suspected him of
culpability. After an hour-long lunch break, the appellant was “less open,” prompting Inv. MS to
tell him he “shouldn’t hold back information because it makes [you] look bad and [we] don’t
want to do that.”13 When discussing Heather’s favorite cup, the appellant was visibly more
emotional, and at 1318, SA AB asked him why he threw the cup away.

        Phase II – From 1318 to 1336, when the agents provided the appellant his Article 31(b)
rights. During this phase, SA AB asked the appellant why he rinsed the cup before throwing it
away. At 1330, they asked about Heather’s prescription medication, and the appellant stated he
kept control of the pills. At 1335, SA AB stopped Inv. MS from asking further questions and,
immediately thereafter advised the appellant he was suspected of manslaughter, negligent
homicide, and misprision of a serious offense and read the appellant his rights under Article
31(b), which he waived.

       Phase III – From 1336 until 1552, when agents added “Article 118 (Murder)” to the
appellant’s written rights advisement in response to his statement that, while continuing to deny
culpability in his wife’s death, he wanted to “help ease her pain.” The appellant then again read
and acknowledged his rights.

        The military judge issued several decisions on the suppression motion. First, on 12
September 2014, he found “the rights warnings [sic] were not involuntary” and thus admitted all
of the appellant’s statements made after rights advisement. He further found that the “agents
subjectively believed they were not investigating an offense, and therefore, not required to
warn,” but he was still reviewing the record to determine “whether there is a point at which they
should reasonably have suspected the accused and warned him.”14 On 18 September 2014, the
military judge partially granted the defense motion to suppress after finding that SA AB and Inv.
MS “should have reasonably suspected [the appellant] of an offense at [1317]”15 and suppressed
the appellant’s statements from 1318 until 1336—when the appellant was provided and waived
his rights under Article 31(b).16 Then, in denying a defense request for reconsideration, he was
“soundly convinced that [SA AB] did not suspect the accused on the 5th of November, when the
questioning started that morning.”17 Finally, the written findings of fact and conclusions of law
included an understanding that “[e]ven if the accused was warned when [the agents] first


13
     Id.
14
   Military Judge e-mailed Interim Ruling, enclosure (1) to Appellant’s Clemency Request of 26 Feb 2015; AE LVII
at 1 (referencing the 12 September e-mail).
15
  Military Judge e-mailed Interim Ruling, enclosure (1) to Appellant’s Clemency Request of 26 Feb 2015 (1317
was approximately when the appellant became visibly more emotional after being asked about Heather’s favorite
cup).
16
  Id. The military judge also gave the defense the option to include the suppressed statements if they so desired
under the rule of completeness per MILITARY RULES OF EVIDENCE 106 and 304(h), MANUAL FOR COURTS-MARTIAL,
UNITED STATES (2012 ed.).
17
     Record at 789-90.

                                                       6
suspected him, the court must also determine whether they should reasonably have suspected the
accused and warned him earlier.”18

        We exercise our fact-finding power to consider the additional essential facts enumerated
below. United States v. Doucet, 43 M.J. 656, 659 (N.M.Ct.Crim.App. 1995); see also United
States v. Swan, 45 M.J. 672, 680 (N.M.Ct.Crim.App. 1996) (“We need not rely upon the military
judge to list the essential findings when, as in this case, they are apparent.”).

         1. Even though the telephonic oral/wire intercept request submitted on 26 February 2013
listed the appellant as a “target” and the suspected violation annotated thereon was “negligent
homicide,” SA AB testified a “target” does not mean the same thing as “suspect.”19 Further, SA
AB explained she annotated her early report narratives as a “negligent homicide” in response to
the family’s suspicions, but all those leads were “coming up empty handed.”20 SA AB
acknowledged she intermittently copied the phrase “negligent homicide” into newer report
versions, but stated doing so was inadvertent since she had “no information to develop a suspect”
for negligent homicide.21 Also, long before the 5 November interview, NCIS deemed Ms. MB a
non-credible, unreliable witness, and thus the telephonic wire intercept never occurred.

        2. SA AB explained she video-recorded the 5 November interview because the family
had previously contacted Congress with concerns NCIS was participating in a “cover up” to
protect the appellant.22 SA AB wanted to use the video to demonstrate the thoroughness of the
interview and to show they, in fact, had asked all the “hard questions.”23 SA AB testified that
she believed this was a routine death investigation; the various possible manners of death
included accidental overdose, suicide, and homicide; and she was not leaning toward any
particular possibility. Further, she did not believe the interview would elicit incriminating
responses from the appellant and that she had no information to believe a crime had been
committed related to Heather’s death.24

        3. Prior to the 5 November interview, Inv. MS believed that the case was a death
investigation, vice a homicide case; that the appellant had yet to be extensively interviewed; that
the case was going to be closed after the interview; and that he was not sure whether it was a



18
     AE LVII at 13.
19
     Record at 1050.
20
     Id. at 188.
21
     Id. at 959-60.
22
  Id. at 126; AE XVI at 40-41 (On 25 March 2013, Ms. SS, an attorney, e-mailed the Director of the Navy Casualty
Branch demanding responses to her inquiries and stating her “next calls [were] going to be to the media, my
congressmen, my governor, our secretary of state . . . and anyone else who will listen to me.”).
23
     Record at 127, 971-72; AE XXXII at 148-51.
24
     Record at 118.

                                                       7
suicide or accidental overdose. It was not until the appellant stated he had cleaned out his wife’s
soda cup that he thought, “this doesn’t sound right.”25

        4. SA JH, the NCIS polygraph examiner who conducted the appellant’s 6 November
interrogation, testified he and the other agents did not consider the appellant a suspect at the
onset of the 5 November interview; that the appellant was not “subject-titled” in their
investigation; and there were three possible manners of death, “homicide, suicide, and
accidental.” Although homicide was a possible outcome, “that wasn’t anything that anybody was
necessarily prepared for when they [started the 5 November interview].”26

        The absence of these findings from the military judge’s recitation of his otherwise
detailed and comprehensive essential findings does not render the record incomplete. Swan, 45
M.J. at 680. We therefore adopt the military judge’s findings of fact, as amended.

        We next review the military judge’s conclusions of law. At issue is whether the military
judge, in reaching his conclusions, gave too much weight to the agents’ subjective belief that the
appellant was not a suspect. We agree that the military judge considered the agents’ subjective
opinions on whether the appellant was a suspect. Indeed, the military judge, to varying degrees,
referenced the agents’ subjective opinions in each of his rulings. He even went so far as to factor
in the agents’ “body language” when opining that neither suspected the appellant of a criminal
offense.27 Additionally, the military judge’s conclusions of law omit any citation to controlling
case law identifying the appropriate objective standard for determining whether a person is a
suspect. Nevertheless, for the following reasons, we remain satisfied the military judge applied
the correct standard.

        First, as discussed supra, the military judge’s preliminary rulings on 12 and 18
September 2014 both contained, as a predicate question, whether the agents “reasonably”
suspected the appellant.28 Then, in his final findings of fact and in his conclusions of law, the
military judge twice states the court’s obligation to assess whether they should “reasonably have
suspected the accused and warned him earlier.”29 Each ruling, therefore, evidenced the military
judge’s understanding that the agents’ belief must be reasonable.

         Second, the military judge need not ignore the agents’ subjective beliefs. “[I]n 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 considered the interrogated person to be a suspect.”
Muirhead, 51 M.J. at 96. A military judge errs only when placing “great weight on the
subjective opinions of the agents as to whether Article 31(b) rights were required” and thereby
fails to view the issue objectively. Id. at 97. Clearly, the military judge did not consider the

25
     AE XVII at 53-53a.
26
     Record at 1130-31, 1220-21.
27
     AE LVII at 14.
28
     Military Judge Interim Rulings, enclosure (1) to Appellant’s Clemency Request of 26 Feb 2015.
29
     AE LVII at 5, 13.

                                                          8
agent’s subjective beliefs to be dispositive because he discounted those beliefs when suppressing
the appellant’s statements made after SA AB asked him why he threw the cup away. Moreover,
the military judge articulated several objective reasons for concluding the appellant was not a
suspect. These include finding the case was an unresolved death investigation; recognizing the
appellant, who was with his wife when she died, had only provided two cursory statements; and
acknowledging the need to resolve the case before the appellant’s pending separation.

        Third, “a military judge . . . is presumed to know and follow the law.” United States v.
Allen, 31 M.J. 572, 602, (N.M.C.M.R. 1990) (citations omitted). Thus, the fact that the military
judge did not cite specific cases expressly discussing the objective standard in his conclusions of
law does not mean that he did not apply or understand the law.

        For these reasons, we find the military judge understood and then applied the correct
objective, reasonable man standard, giving appropriate, but not excessive, weight to the agents’
subjective opinions, when properly concluding the appellant initially was not a suspect on the
morning of 5 November.

       Finally, we conduct our de novo review of the record to determine whether a reasonable
person under the circumstances should have suspected the appellant of involvement in his wife’s
death. See Muirhead, 51 M.J. at 97 (conducting de novo review based on the overall record to
determine whether a reasonable person under the circumstances would have considered a person
a suspect, and finding fault with the lower court’s assessment of the agents’ subjective beliefs).

        Here, the following information, available to investigators prior to the 5 November
interview, supports an objectively reasonable belief that appellant was initially not a suspect:
Heather died of an overdose of hydrocodone, a medication that was lawfully prescribed to her;
she had attempted suicide in the past via drug overdose; she suffered from depression; she was in
drug treatment for hydrocodone addiction; she was in extremely poor health and lived in chronic
pain; the 60-pill prescription of hydrocodone, which was picked up on 17 January 2013, was
found at her bedside with only five pills remaining; there was no evidence of a struggle or any
injuries found on her; in a 19 January 2013 sworn statement, the appellant said his wife died in
her sleep; the appellant appeared grief stricken the day she died; the appellant stated their
marriage had no domestic issues and they were “laid back and mostly stay[ed] at home”;30
Heather’s family stated they anticipated receiving a call someday that she had died of an
overdose; Ms. SS had a strong bias against the appellant and alerted NCIS to the appellant’s
former girlfriend, Ms. MB; and, the suspicions raised by Ms. MB were deemed unsubstantiated
and unreliable.

        Additionally, we disagree with the appellant’s conclusion that the August 2013 VTC, the
significant NCIS presence for the 5 November 2013 interview, and the fact that the 5 November
interview was recorded indicate the agents believed that the appellant was a suspect. The record
indicates the VTC was organized to assist SA AB (who was the sole agent at NAS Meridian)
with an unresolved death investigation and that the agents believed, in light of Ms. SS’s threats
to contact the media and government officials, that their efforts would be highly scrutinized. As

30
     PE 10 at 1-2.

                                                 9
a result, the NCIS agents wanted to be as transparent and as thorough as possible. Further, the
fact that the appellant was facing administrative separation in November provided incentive to
resolve the death the investigation before he was discharged.

         Accordingly, while recognizing the “relatively low quantum of evidence” needed before
deeming a servicemember a suspect who must receive a rights advisement, Swift, 53 M.J. at 447,
we do not find that a reasonable person would have considered the appellant a “suspect under the
totality of the circumstances” of this case. Muirhead, 51 M.J. at 96. Accordingly, the appellant
was not entitled to a rights advisement until 1317 on 5 November 2013, when the military judge
properly ruled that the agents reasonably should have viewed the appellant as a suspect.
Moreover, even if we were to assume the military judge erred in concluding the appellant was
not a suspect during the first several hours of the interview, we find such error harmless. First,
prior to the point in the interview when the military judge deemed the agents should have
provided a rights advisement, the appellant had made no admissions. Second, in partially
granting the suppression motion, the military judge excluded the appellant’s admissions made
prior to his actual rights advisement. Thus, taken together, we find that had error occurred, it
would have been harmless beyond a reasonable doubt. See United States v. Brisbane, 63 M.J.
106, 107, 116 (C.A.A.F. 2006) (finding admission of the appellant’s statements “harmless
beyond a reasonable doubt” even though he had been “entitled to a rights advisement” that had
not been administered, because after later receiving a rights warning, the appellant provided
“more detailed statements describing his conduct”).

II. Whether the appellant’s statements made after rights advisements should have been
suppressed

       At trial, the appellant moved to suppress his 5 and 6 November 2013 verbal and written
statements made following his Article 31(b) rights advisement as involuntary. The defense
argued that agents used coercive interrogation techniques that took advantage of a highly
emotional appellant whose low intelligence and compliant nature made him susceptible to the
agents’ questions and their suggested answers. They further argued that he was unaware of the
criminal nature of his interrogation and that the circumstances of the interview/interrogations
involving several agents, spanning two days, ending with a polygraph examination, amounted to
coercion.

        The defense also averred that SA AB, Inv. MS, and SA JH, when providing the appellant
his Article 31(b) rights, did not give him cleansing warnings or otherwise explain his prior
statements could not be used against him. Further, he now alleges SA AB and Inv. MS used his
pre-rights advisement statements to coerce him into making further admissions after he waived
his rights. In particular, in addition to exploiting his admission that he rinsed Heather’s drinking
cup, the appellant claims that the agents used his statement—that he did not assist his wife after
learning she had taken approximately 50 hydrocodone pills—“to push [the appellant] towards
further admissions even after SA [AB] provided him with rights advisement.”31 The appellant
also cites other statements he made before rights advisement that he construes as motive-related
admissions (e.g., the appellant’s maintaining some nominal contact with his old girlfriend while

31
     Appellant’s Brief at 49.

                                                 10
still married to Heather and the appellant’s statement to Ms. MB in the weeks after Heather’s
death indicating he was aware she had life insurance).

        In response, the Government, both at trial and on appeal, argued the evidence shows the
appellant knowingly, intelligently, and voluntarily waived his rights and that his statements were,
by a preponderance of the evidence, voluntary under the totality of the circumstances. They
further assert the appellant was aware of the criminal nature of the interrogation because he knew
he murdered his wife and made several comments during the interview/interrogation indicating
he understood the agents’ role in the investigation.

                                              ANALYSIS

           In relevant part, MILITARY RULE OF EVIDENCE 304(a)-(b), SUPPLEMENT TO MANUAL FOR
COURTS-MARTIAL, UNITED STATES, MILITARY RULES OF EVIDENCE (2012 ed.) states, “an
involuntary statement from the accused, or any evidence derived therefrom, is inadmissible at
trial . . . unless the military judge finds by a preponderance of the evidence that . . . the statement
was made voluntarily[.]” “A confession that follows an earlier confession obtained due to actual
coercion, duress, or unlawful inducement is presumptively tainted.” United States v. Benner, 57
M.J. 210, 213 (C.A.A.F. 2002) (citing United States v. Ford, 51 M.J. 445, 450-51 (C.A.A.F.
1999) (citing United States v. Phillips, 32 M.J. 76, 79 (C.M.A. 1991), and applying the analysis
in Oregon v. Elstad, 470 U.S. 298 (1985)). However, “[o]nly those statements that are ‘actually
coerced’ require application of the more stringent test generally described in Military Rule of
Evidence 304(b)(3)[.]” United States v. Cuento, 60 M.J. 106, 109 (C.A.A.F. 2004). If, on the
other hand, the earlier confession was involuntary “‘only because the suspect had not been
properly warned of his panoply of rights to silence and to counsel, the voluntariness of the
second confession is determined by the totality of the circumstances.’” Id. (quoting Phillips, 32
M.J. at 79); see also United States v. Cummings, No. 201000623, 2011 CCA LEXIS 610, at *6,
unpublished op. (N.M.Ct.Crim.App. 30 Aug. 2011) (citing Schneckloth v. Bustamonte, 412 U.S.
218, 226 (1973)) (“We assess the totality of the circumstances surrounding the making of the
statement when determining voluntariness.”). “‘The earlier, unwarned statement is a factor in
this total picture, but it does not presumptively taint the subsequent confession.’” Cuento, M.J.
60 at 109 (quoting Phillips, 32 M.J. at 79). See also Benner, 57 M.J at 213. The essence of the
inquiry is “whether the confession is the product of an essentially free and unconstrained choice
by its maker.” United States v. Bubonics, 45 M.J. 93, 95 (C.A.A.F. 1996). Factors we consider
in determining whether a confession is voluntary 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.” United States v. Ellis,
57 M.J. 375, 379 (C.A.A.F. 2002).

        We again “apply a clearly-erroneous standard of review to findings of fact and a de novo
standard to conclusions of law.” United States v. Norris, 55 M.J. 209, 215 (C.A.A.F. 2001)
(citations omitted). The voluntariness of a confession is a question of law reviewed de novo.
United States v. Freeman, 65 M.J. 451, 453 (C.A.A.F. 2008). Before analyzing the military
judge’s conclusions of law and ultimate decision to admit the appellant’s statements, we first
assess the military judge’s findings of fact applicable to this issue. A “military judge abuses his
discretion if his findings of fact are clearly erroneous[.]” Ayala, 43 M.J. at 298.
                                                  11
        In reviewing the military judge’s findings of fact for an abuse of discretion, we find them
deficient only in regards to failing to identify all the appellant’s pre-rights advisement
admissions. An “‘[a]dmission’ means a self-incriminating statement falling short of an
acknowledgment of guilt, even if it was intended by its maker to be exculpatory.” MIL. R. EVID.
304(a)(1)(C). In certain circumstances, a failure to act could constitute the offense of negligent
homicide. Indeed, two of the five elements under negligent homicide are that a “death resulted
from the . . . failure to act of the accused” and that the “failure to act of the accused which caused
the death amounted to simple negligence[.]” MANUAL FOR COURTS-MARTIAL, UNITED STATES
(2012 ed.), Part IV, ¶84(b).

        The military judge found “[t]he only admission provided by the accused prior to his
rights advisement that was different from…his statement from 19 January 2013, was that he
explained that he had rinsed the camouflage cup[.]”32 We, however, find the appellant made a
second admission when he stated he was aware Heather had significantly overmedicated herself
with hydrocodone and that he took no action to assist her. Specifically, the record reveals that
some ten minutes after the time the military judge deemed the appellant entitled to Article 31(b)
rights advisement, SA AB asked the appellant how many hydrocodone pills were left when he
came home from work. His responses indicated only ten pills remained from a 60-pill
prescription that was filled the day prior, prompting SA AB to ask, “did the alarm not go off in
your head, where the hell have all these pills gone?”33 The appellant indicated he took no action
other than to hide the bottle from his wife. SA AB immediately departed the interview room,
retrieved a rights advisement form, and advised the appellant that she suspected him of negligent
homicide and other offenses. The agents thereafter referred to the appellant’s failure to call 911
several times during the remainder of the interrogation.34

        Under the circumstances of this case, and in light of the agents’ use of this information
during their interrogation, we find the military judge’s finding of fact limiting his analysis to one
admission (cleaning the cup) and not including the second admission (failing to assist his wife
upon learning she had taken a significant drug overdose), was clearly erroneous. Ayala, 43 M.J.
at 298. Nevertheless, although the military judge failed to recognize this second admission in his
findings, we find the error harmless and will address it, infra, after we examine his ruling on
whether the appellant’s post-advisement statement should have been suppressed.35 In all other
respects, we adopt the military judge’s findings of fact on this issue as our own.

       We must now assess whether the appellant’s pre-rights advisement statements were
obtained as a result of actual coercion, duress, or unlawful inducement. If they were not so


32
     AE LVII at 10.
33
     PE 16, Disc 3 at 13:31:05.
34
     See id. at Disc 3 at 13:52:47, 14:13:40, 14:20;07, and 14:29:50.
35
  We also find the evidence does not support the appellant’s claim that his other pre-rights verbal statements that he
had some contact with Ms. MB while married and that he told Ms. MB about Heather’s life insurance within weeks
of her death were admissions. We find nothing in the context of those statement--made when neither the military
judge nor this court considered the appellant a suspect--that would cause the agents to consider them incriminating.

                                                            12
obtained, then we must determine whether the appellant’s post-rights statements were voluntary
under the totality of the circumstances.

        In the exercise of our de novo review, we find the military judge correctly concluded the
pre-rights advisement statements were not obtained as a result of actual coercion, duress, or
unlawful inducement. Although the appellant’s initial admissions—that he rinsed the cup and
failed to seek help upon learning of his wife’s overdose—were made during a technical violation
of Article 31(b), we find, as discussed supra, that the agents did not reasonably suspect the
appellant of an offense until some five hours into the interview. Moreover, as confirmed in the
military judge’s findings of fact and our own review of the record, the agents’ questioning began
during regular work hours, with no apparent indication the appellant was tired or suffered from
lack of sleep. The agents carefully explained why they needed to speak with him, never raised
their voices, never threatened him, nor did they ever make any promises or provide any
assurances of leniency or other benefit in exchange for his cooperation. The agents offered him
water, they repeatedly asked him if he needed a break, and the interview actually stopped for
more than an hour when the appellant left for an unsupervised lunch. Taken together, we find no
evidence of “coercion, duress, or unlawful inducement” during the appellant’s pre-rights
advisement interview or during his actual rights waiver. Benner, 57 M.J. at 213.

       We next examine whether the appellant’s post-rights advisement admissions made on 5
and 6 November, as contained in his sworn statements and depicted in video-recordings, were
voluntary under the totality of the circumstances. Phillips, 32 M.J. at 79. We find that they
were.

        In the military judge’s conclusions of law, he found the prosecution met its burden to
establish, by a preponderance of the evidence, that the appellant’s statements were voluntary
based on a totality of the circumstances. He also found that the appellant’s sworn statements
were not the product of actual coercion, duress, or inducement and thus were not presumptively
tainted. After considering the Article 31(b) rights advice provided to the appellant; the nature of
the questioning; the lack of physical punishment or deprivation of sleep; the lack of detention;
and the appellant’s age, education, and intelligence, the military judge, citing Ellis, 57 M.J. at
379, found the appellant’s waiver of his rights was knowing and voluntary. In reaching this
conclusion, the military judge found the duration of interview/interrogation was not overly
onerous; that all the questioning occurred during normal work hours; that the appellant was
offered water, regular breaks, and lunch; and that the appellant freely returned to his barracks
overnight. The military judge found the video recording revealed the appellant read and
understood his rights without pressure or stress, and he appeared engaged and responsive
throughout the questioning.

       We find the military judge’s conclusions of law are supported by both the record and his
findings of fact.

        In assessing the totality of the circumstances to determine the voluntariness of the
appellant’s confessions, we consider the holdings of our higher court in analogous cases where
service members made initial unwarned statements that investigators relied upon in a subsequent
interrogation following Article 31 rights advisement. United States v. Norfleet, 36 M.J. 129,
130-32 (C.M.A. 1992) (holding that a statement made by the appellant to investigators who had
                                                13
advised him of his rights, and who had exerted no coercion, was voluntary, even though those
investigators were aware of an unwarned statement made 12 days earlier by the appellant,);
Cuento, 60 M.J. at 109-10 (holding that following a coerced initial statement, a subsequent post-
rights advisement statement made seven days later to an NCIS investigator not involved in the
initial civilian investigation was voluntary, for a 37-year old accused who was not in custody,
and who was “oriented to his surroundings” by the agent); Brisbane, 63 M.J. at 115 (holding that
when a counselor acting in furtherance of an investigation failed to provide initial rights
advisement, and a subsequent post-rights statement was made to an investigator without
cleansing warnings, the subsequent warned statements were voluntary and admissible in the
absence of coercive or inhumane questioning). Finally, we note that although the appellant was
not provided “cleansing warnings,”36 such warnings are not a prerequisite to admissibility, and a
failure to provide such warnings is only one of many factors used in assessing voluntariness
under the “totality of the circumstances.” United States v. Lichtenhan, 40 M.J. 466, 469-70
(C.M.A. 1994).

        In analyzing this case, we recognize our “consideration of the totality of the
circumstances, however, is not merely an exercise in counting how many factors weigh on each
side of the issue, for all factors are not evenly weighted under all circumstances.” Phillips, 32
M.J. at 80. We must “discern whether the circumstances as a whole satisfy us that [the
appellant’s] admissions . . . were made voluntarily.” Id. Because the circumstances leading to
the appellant’s confessions do not precisely mirror the above-cited cases, we next detail the
factors we consider relevant to our determination that the admissions were voluntary.

        When the agents realized the appellant was a suspect, they clearly educated him on his
Article 31(b) rights by reading those rights to him as he read along, asking him to initial his
understanding on the rights advisement form, and then asking him to read the right waiver
portion aloud. Only then did he waive his rights. Importantly, he was again reminded of his
rights mid-afternoon on 5 November when SA AB added murder as a suspected offense on his
rights advisement form. Under these circumstances, there can be little doubt the appellant
understood he was under no obligation to continue speaking with the agents and that his decision
to do so was a voluntary one.

        The record reveals the post-rights advisement portions of the interrogation proceeded in
similar fashion to the pre-rights advisement phase. Although the agents did challenge the
appellant on inconsistencies in his statements and appealed to his sense of guilt, the video record
clearly shows they did not raise their voices, seek to intimidate him, or use coercive tactics.
They continued to give him breaks, offered him water, gave him time to regain his composure, at
times attempted to give him comfort, and brought him dinner.




36
  We struggle to discern when the agents could have appropriately provided cleansing warnings. They did not
consider the appellant a suspect until they actually read him his rights (when they learned of his inaction after he
became aware Heather had overdosed) and it would be ten months before a military judge would determine his
unwarned statements actually existed and a technical violation of Article 31(b) had occurred. Fortunately, the
agents ameliorated the situation by their repeated clear and unequivocal explanations of the appellant’s rights before
he rendered a full confession.

                                                         14
         During the evening of 5 November, after a 65-minute break, the appellant carefully
reviewed his NCIS-typed confession, taking more than four minutes to read it. He then swore to
its truth on pain of perjury. Concerned for the appellant’s well-being overnight, the agents
arranged for his master chief to spend the evening with him. The master chief refrained from
discussing the case but had dinner with the appellant, watched television with him, and provided
emotional support before the appellant returned to his barracks room to sleep the remainder of
the night. During this substantial overnight break, the appellant certainly had the opportunity to
consider the day’s events, and to evaluate whether he should continue with the interview.

        The following morning, the master chief, again driving his personal vehicle, picked up
the appellant, who said he slept for a full eight hours, got breakfast with him, and relaxed and
watched television with appellant, before taking him back to the NCIS office. Once there, the
appellant was yet again advised of his Article 31(b) rights and again waived them before
beginning his pre-interview with SA JH. Following what amounted to only two and a half hours
of questioning, the appellant fully confessed to the murder. That confession was then reduced to
a written sworn statement.

         Notwithstanding defense evidence presented on the appellant’s suggestible nature or
below average intelligence, the appellant was, at the time of the interview, a 30-year-old Sailor,
who had previously attained the grade of Petty Officer Third Class and “missed the E-5 test” by
one point.37 As a high school graduate, former emergency medical technician, and average
Sailor, he certainly possessed the capacity to knowingly and voluntarily incriminate himself.
The video record from both days supports his intellectual capacity and his full cognizance of the
agents’ role and the purpose behind the questioning. As noted in the military judge’s findings of
fact, the appellant’s telling comment to himself, made during the break and before murder was
added as a suspected offense, that he did not “want to go to jail but I am,”38 demonstrates he
fully knew what was at stake when he chose to answer the agent’s questions.

        We have considered but reject the appellant’s argument that he was unaware of the
criminal nature of his interrogation; that his relatively low intelligence and susceptibility to
authority overrode his free and unconstrained decision making; that the character and conditions
of his non-custodial interrogation rendered his statements involuntary; and that he was subject to
coercive interrogation techniques.39

        A notable factor distinguishing the appellant’s case from the analogous cases cited supra
is the video showing with absolute clarity the 5 November interview and interrogation. The
unfiltered video reveals a tearful, intensely unhappy appellant attempting to minimize his
criminal role in his wife’s death while struggling to alleviate his remorse and guilt. For example,
during his 5 November interview, SA AB told the appellant she believed he was “getting a
37
     PE 6, Disc 1 at 19:52:35.
38
     AE LVII at 6; PE 6, Disc 3 at 15:52:50.
39
  In so holding, we note the appellant was permitted to present evidence and argument to the fact finder on all these
areas, including testimony from an expert in forensic psychology, an expert in clinical social work and grief
counseling, and an expert in homicide investigations and law enforcement interrogations and false confessions. See,
Record at 1313, 1360,1428.

                                                         15
burden lifted,” to which he replied, “Yes, I want to, I want to” while nodding his head.40 Later,
Inv. MS told him, “you can unburden your soul,” to which the appellant vigorously nodded in
agreement. 41 And, later still, Inv. MS told him, “you are the only one who can help us with
[finding out exactly what happened to Heather], and you need to have it too…am I right?” The
appellant responded by saying, “yes” while nodding his head.42 Lastly, sitting alone in the
interview room shortly after confessing to his wife’s murder, the appellant said, “the truth shall
set you free.”43

       The appellant was also recorded as he read aloud his entire 6 November confession,
which provided additional detail on his efforts to kill his wife (secretly giving her 30 pills instead
of two) and clarified financial gain as an additional motive. On the video, he adopted his
statement, agreed that he had been offered breaks and lunch, and affirmed his statement was true
and not coerced. The video reveals the appellant was alert, engaged, and had little difficultly
reading his statement.

         “When neither the initial nor the subsequent admission is coerced, little justification
exists for permitting the highly probative evidence of a voluntary confession to be irretrievably
lost to the factfinder.” Elstad, 470 U.S. at 312. Under the circumstances of this case, we find the
appellant’s confessions voluntary and thus appropriately considered by the members.

       Our holdings moot the appellant’s final issue contained within his assignment of error,
and we need not consider whether we should take action in this case to deter future violations of
the Constitution. We find no Constitutional violations occurred.

                                              CONCLUSION

            The findings and the sentence are affirmed.

            Chief Judge BRUBAKER and Judge MARKS concur.


                                                           For the Court


                                                           R.H. TROIDL
                                                           Clerk of Court




40
     PE 16, Disc 3 at 13:35:45.
41
     Id. at 14:33:30.
42
     Id., Disc 4 at 15:09:40.
43
     Id., Disc 6 at 18:57:33.
                                                   16
