(dissenting):
I respectfully dissent. I agree with the conclusions of the trial judge.
In applying the totality of the circumstances test to determine whether a confession is voluntary, a court’s inquiry should center on 3 sets of circumstances: (1) the characteristics of the accused, (2) the conditions of interrogation, and (3) the conduct of law enforcement officials. Green v. Scully, 850 F.2d 894 (2d Cir.1988). The test “anticipates a holistic assessment of human interaction.” United States v. Martinez, 38 M.J. 82, 87 (C.M.A.1993). In applying this test, this Court should recall that
the military judge was in a unique position to decide the appropriate weight to give appellant’s assertion of an overborne will. His vantage point is one that simply cannot be reproduced ... by the Court of Military Review.... Where ... the military judge expresses special influence of that unique viewpoint on his judgment, that expression must weigh heavily in our reaching our own determination.
Martinez, 38 M.J. at 86.
When we focus attention on the first 2 sets of circumstances mentioned above, we find nothing significant that supports the appellant’s assertion that his confession was coerced. To the contrary, when he made his confession, the appellant was 23 years of age, a high school graduate, and a man of about average intelligence with approximately 2]á years experience in the Navy. An expert testified concerning the appellant’s anti-social personality, opining that the appellant’s personality disorder would have no effect on his susceptibility to interrogation techniques. Additionally, prior to confessing the appellant clearly waived his rights after being thoroughly advised of those rights. During his interrogation, the appellant stated neither a desire to terminate the interrogation nor to consult counsel. He was never deprived of food or drink or physically abused. The interrogation prior to his oral confession was relatively brief (i.e., approximately 45 minutes). The late hour of the interrogation is insignificant because the appellant worked a late shift and was apprehended approximately 3 hours after the end of his normal duty hours. When questioned, the appellant was stone-cold sober; he did not then appear fatigued. Significantly absent from this ease are any of the many factors frequently cited as indicia of a coerced confession (e.g., a *742youthful accused, an accused of exceptionally low intelligence, prolonged interrogation, an intoxicated accused, an accused under the influence of drugs).
Given the factors mentioned above, the only issue in this case is whether the conduct of the law enforcement officials, when considered with all other circumstances presented, was such that the appellant’s confession was the product of an overborne will and therefor not a free and voluntary act.
Turning to the third and critical set of circumstances, I note that the appellant was handcuffed for transportation purposes, a routine procedure, and the handcuffs were removed while he was interrogated. Before interviewing the appellant, the law enforcement official with him fully advised him of his rights and obtained a knowing and intelligent waiver of those rights. The “good guy/bad guy” technique of interrogation that was subsequently used is not inherently evil and is a permissive interrogation technique — unless it goes too far. MAI Hofmann was part of the appellant’s interrogation for only 2 to 3 minutes. During that time, he obviously created some apprehension in the appellant’s mind when he loudly proclaimed that “he didn’t have time for the accused, and that he could sign a warrant to have him arrested by the Virginia Beach Police,” according to the military judge’s findings, and slammed the door when he left the room. In this regard, I note that the appellant’s testimony was that MAI Hofmann said that if he did not cooperate, he would “wind up in the Virginia Beach City Jail for the night.” Record at 12, and that MAI Hofmann’s testimony was that he would usually say under such circumstances “Look, I do not need anything. I can go right down to Virginia Beach magistrate and swear out a warrant.” Record at 46. After MAI Hofmann’s cameo appearance, MA2 Levesque treated the appellant nicely and the appellant did not feel intimidated by MA2 Levesque, although he did not trust him because he believed “[n]ever trust a nice guy.” Record at 177. Thereafter, after continuing questioning, the appellant orally confessed to MA2 Levesque. His oral confession was followed by a neatly printed holographic confession that was started at 0300, subsequently expanded upon by questions and answers penned by MA2 Levesque, and sworn to by the appellant at 0330.
In his findings, the military judge noted that the statement by MAI Hofmann was not amplified upon or commented upon by MA2 Levesque during his subsequent “good guy” questioning of the appellant. Then, the judge significantly acknowledged the obvious: that although the appellant had testified that he was afraid that he would be confined if he did not make a statement, a number of inconsistencies in his testimony and the testimony of other witnesses “bring this statement into question.” App.Ex. XIII at 2. Stated otherwise, the military judge carefully evaluated the appellant’s performance on the witness stand and, based on all the evidence presented, concluded that the appellant was not being candid with the judge. Although the judge did not explain in detail the basis for his conclusion, the record contains considerable evidence which convinces me that the appellant was attempting to manipulate the facts to his benefit. For example:
a. When asked by trial counsel if the appellant’s rights had been explained to him, the appellant responded “I can’t recall,” and only admitted that he had been informed of his rights after being thoroughly cross-examined on that point by the trial counsel. Record at 16-17.
b. When asked by his counsel if he felt physically threatened when MAI Hofmann entered the room, the appellant replied “I thought he was going to come after me for not cooperating with him. He was going to hit me.” Record at 12. Later, on cross-examination, the appellant admitted that MAI Hofmann never touched him. Record at 19.
The nature of the “threat” alleged must also be considered. About all it boils down to is that MAI Hofmann conveyed the message to the appellant that at about 0200 he was able to go to a magistrate (i.e., a judicial official) and obtain a warrant that would cause the appellant to remain in jail for the remainder of the night. Frankly, I have grave doubts about whether this comment would create fear in the heart of any 23 year old Sailor of such enormity that his will *743would be overborne and he would confess to larceny of a shipmate’s property.
Finally, in determining whether the appellant’s confession was voluntary, I place considerable weight on the fact that MA2 Levesque properly advised the appellant of his suspect’s rights, that the appellant voluntarily waived those rights, and that the appellant, a mature adult, never attempted to terminate the interview or consult a lawyer. As stated recently by the United States Supreme Court, “[T]he primary protection afforded suspects subject to custodial interrogation is the Miranda warnings themselves. ‘[F]ull comprehension of the rights to remain silent and request an attorney [is] sufficient to dispel whatever coercion is inherent in the interrogation process.’” Davis v. United States, — U.S. -, -, 114 S.Ct. 2350, 2356, 129 L.Ed.2d 362 (1994) (citing Moran v. Burbine, 475 U.S. 412, 427, 106 S.Ct. 1135, 1144, 89 L.Ed.2d 410 (1986)).
At the bottom line, I am convinced that the military judge was in a superb position to accurately evaluate all the evidence — particularly the appellant’s testimony — and that he wisely concluded, based on all circumstances presented, that the appellant was “blowing smoke” (my words) when he contended that he confessed to committing larceny solely because of MAI Hofmann’s “bad guy” routine. Additionally, I am confident that the military judge properly understood the burden of proof in this case and did not inappropriately transfer it to the appellant. I would affirm.