UNITED STATES, Appellee
v.
Harvey A. GARDINIER II, Staff Sergeant
U.S. Army, Appellant
No. 06-0591
Crim. App. No. 20020427
United States Court of Appeals for the Armed Forces
Argued March 15, 2007
Decided June 6, 2007
ERDMANN, J., delivered the opinion of the court, in which BAKER,
STUCKY, and RYAN, JJ., joined. EFFRON, C.J., filed a separate
opinion concurring in part and dissenting in part.
Counsel
For Appellant: Captain Seth A. Director (argued); Colonel John
T. Phelps II, Lieutenant Colonel Steven C. Henricks, and Major
Fansu Ku (on brief); Captain Julie Caruso and Captain Charles E.
Pritchard.
For Appellee: Captain Philip M. Staten (argued); Colonel John
W. Miller II, Lieutenant Colonel Michele B. Shields, and Major
Tami L. Dillahunt (on brief); Lieutenant Colonel Francis C.
Kiley and Captain Michael Friess.
Amicus Curiae for Appellant: April Trimble (law student)
(argued); Bruce A. Antkowiak, Esq. (supervising attorney) and
Salvatore Bauccio (law student) (on brief) – for the Duquesne
University School of Law.
Military Judge: Gary V. Casida
This opinion is subject to revision before final publication.
United States v. Gardinier II, No. 06-0591/AR
Judge ERDMANN delivered the opinion of the court.
Staff Sergeant Harvey A. Gardinier II was charged with two
specifications of taking indecent liberties with a female under
sixteen years of age with intent to gratify his sexual desires
and two specifications of committing indecent acts upon the body
of the same child, in violation of Article 134, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. § 934 (2000). Gardinier
entered pleas of not guilty and was tried by a military judge
sitting alone as a general court-martial. He was found guilty
of one specification of taking indecent liberties and one
specification of committing indecent acts and not guilty of the
other two specifications. Gardinier was sentenced to a bad-
conduct discharge, confinement for three years, and reduction to
the grade of Private E-1. The convening authority approved the
sentence and the United States Army Court of Criminal Appeals
affirmed the findings of guilty and the sentence. United States
v. Gardinier, 63 M.J. 531, 547 (A. Ct. Crim. App. 2006).
General Background
In December 2001, Gardinier’s five-year-old daughter, KG,
told her mother that Gardinier had touched her inappropriately.
Her mother immediately took KG to Evans Army Community Hospital
in Ft. Carson, Colorado, where a medical examination was
conducted. The allegations were also reported to the El Paso
County (Colorado) sheriff’s office and the El Paso County
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Department of Human Services. On January 2, 2002, personnel
from those agencies conducted a joint interview of KG, which was
videotaped. That interview was immediately followed by a
forensic medical examination by a sexual assault nurse examiner.
On January 3, 2002, Gardinier was interviewed by a
sheriff’s department detective and then separately by an Army
Criminal Investigation Division (CID) agent. The CID agent did
not advise Gardinier of his rights under Article 31(b), UCMJ, 10
U.S.C. § 831(b) (2000). Both interviews were videotaped and
Gardinier provided a written statement at the request of the CID
agent. On January 7, the CID agent advised Gardinier of his
Article 31, UCMJ, rights. Gardinier waived his rights and
provided another statement.
At trial the military judge admitted the videotape of the
January 3 CID interview and both the January 3 and January 7
statements. He also admitted the “Forensic Medical Examination”
form completed by the sexual assault nurse examiner and allowed
her to testify as to what KG told her during the examination.
Further, the military judge determined that KG was not available
to testify at trial and admitted the videotape of KG’s interview
with the El Paso law enforcement and human services officials.
All of this evidence was admitted over defense objection.
We granted review of three issues: (1) whether the
military judge erred by admitting statements that Gardinier made
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to the CID agent where no Article 31(b), UCMJ, rights were
given; (2) whether statements that KG made to the sexual assault
nurse examiner were testimonial under Crawford v. Washington,
541 U.S. 36 (2004); and (3) whether the Army Court of Criminal
Appeals erred in determining that the admission of the victim’s
videotaped statement was harmless beyond a reasonable doubt.1
As we determine that the January 3 videotape of the CID
interview, Gardinier’s January 3 statement to the CID agent and
KG’s statements to the sexual assault nurse examiner were
admitted in error, we remand the case to the Army Court of
Criminal Appeals for further consideration.
Admissibility of the January 3 Statement and Videotape
A military investigator who interviews a suspect must
provide that suspect with the statutorily required rights
warnings under Article 31(b), UCMJ. With few exceptions,
statements obtained in violation of this Article may not be
received in evidence against an accused in a trial by court-
martial. Article 31(d), UCMJ; United States v. Ruiz, 54 M.J.
138, 140 (C.A.A.F. 2000); Military Rule of Evidence (M.R.E.)
1
We heard oral argument in this case at Duquesne University
School of Law, Pittsburgh, Pennsylvania, as part of the court’s
“Project Outreach.” See United States v. Mahoney, 58 M.J. 326,
347 n.1 (C.A.A.F. 2003). This practice was developed as part of
a public awareness program to demonstrate the operation of a
federal court of appeals and the military justice system.
4
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304; M.R.E. 305. We granted review of this issue to determine
whether the military judge abused his discretion by admitting
statements from Gardinier in violation of Article 31(d), UCMJ.
We find that the January 3 statement and the videotape of the
CID interview were admitted in error. The January 7 statement
was properly admitted.
Background
A detective from the sheriff’s office called Gardinier in
for questioning on January 3, 2002, and notified a CID agent,
Special Agent Phillips about the interview. Gardinier appeared
voluntarily and was told he was not under arrest and free to
leave at any time. The sheriff’s detective advised Gardinier of
his rights under Miranda v. Arizona, 386 U.S. 436 (1966), which
he waived. Later in the interview and before he voluntarily
took a computer voice stress test, Gardinier was once again
given and waived his Miranda rights.
Phillips watched the interview from behind a one-way
mirror. At its conclusion, the sheriff’s detective consulted
with Phillips who asked to interview Gardinier. The sheriff’s
detective brought Phillips into the interview room and left.
Phillips introduced himself as a CID agent and conducted the
interview without advising Gardinier of his Article 31(b), UCMJ,
rights. He also asked Gardinier to provide a written statement,
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which he did. Both the civilian and military interviews were
videotaped.
On January 7, 2002, Phillips called Gardinier to the CID
office, advised him of his Article 31(b), UCMJ, rights and told
him that another statement was necessary because he may not have
been properly warned on January 3. Gardinier waived his Article
31(b), UCMJ, rights and provided another statement.
At trial, Gardinier moved to suppress the January 3
statement, the videotape of the January 3 interviews and the
January 7 statement. The military judge denied the motion.
While he found that Phillips should have advised Gardinier of
his rights under Article 31(b), UCMJ, the failure was “harmless
error or not prejudicial to the substantial rights of the
accused and had no effect on the decisions that he made.” In
light of the Miranda warnings given by the civilian detective,
the military judge concluded that Gardinier was “in substance,
advised of all of his rights.” On appeal, the Court of Criminal
Appeals found that the rights warnings and notice regarding the
nature of the accusations that Gardinier received from the
sheriff’s detective satisfied the requirements of Article 31(b),
UCMJ. Gardinier, 63 M.J. at 534-35 n.3.
Discussion
Rights advisements are required in both the civilian and
military communities “‘to avoid impairment of the constitutional
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guarantee against compulsory self incrimination.’” United
States v. Harvey, 37 M.J. 140, 143 (C.M.A. 1993) (quoting United
States v. Gibson, 3 C.M.A. 746, 752, 14 C.M.R. 164, 170 (1954));
United States v. Rogers, 47 M.J. 135, 136 (C.A.A.F. 1997). In
the civilian community, rights advisements are required by the
1966 United States Supreme Court decision Miranda v. Arizona.
The corresponding requirement in the military community is found
in Article 31(b),2 UCMJ, which has essentially been in this form
since its inception in 19503:
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.
We have previously recognized that a rights advisement has
particular significance in the military context: “‘Because of
the effect of superior rank or official position upon one
subject to military law, the mere asking of a question under
certain circumstances is the equivalent of a command.’” Harvey,
37 M.J. at 143 (quoting Gibson, 3 C.M.A. at 752, 14 C.M.R. at
2
Article 31(b), UCMJ, rights differ slightly from Miranda
rights. See United States v. Rogers, 47 M.J. 135, 137 (C.A.A.F.
1997) (outlining the differences between the rights warnings
under Article 31(b), UCMJ, and under Miranda).
3
See Act of May 5, 1950, ch. 169, 64 Stat. 107, 118 (Article
31). In 1956, the word “may” was substituted for the word
“shall.” Act of Aug. 10, 1956, ch. 1041, 70A Stat. 48.
7
United States v. Gardinier II, No. 06-0591/AR
170). “‘Conditioned to obey, a serviceperson asked for a
statement about an offense may feel himself to be under a
special obligation to make such a statement.’” Id. at 143
(quoting United States v. Armstrong, 9 M.J. 374, 378 (C.M.A.
1980)).
We have also recognized that Congress enacted Article
31(d), UCMJ, as a “strict enforcement mechanism to implement the
rights’ warning requirements” of Article 31(b), UCMJ. United
States v. Swift, 53 M.J. 439, 448 (C.A.A.F. 2000). Article
31(d) provides that “[n]o statement obtained from any person in
violation of this article, or through the use of coercion,
unlawful influence, or unlawful inducement may be received in
evidence against him in a trial by court-martial.” In addition,
M.R.E. 305(a) and (c) provide that statements obtained without a
proper rights warning are defined as “involuntary” and excluded
from evidence by operation of M.R.E. 304(a).4
The military judge found that the sheriff’s office was not
conducting a joint investigation with the military at the time
the civilian detective gave the rights advisement under Miranda.
The military judge further determined that Phillips should have
given Gardinier a rights advisement under Article 31(b), UCMJ.
4
M.R.E. 304(b) notes some exceptions to complete evidentiary
exclusion. This case does not involve any of these exceptions.
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In light of these determinations, the January 3 statement
and videotape of the CID interview should have been excluded
under Article 31(d), UCMJ, M.R.E. 304(a), and M.R.E. 305(a) and
(c), and the military judge’s failure to do so was legal error.
Where an earlier statement was “involuntary” only because
the accused had not been properly warned of his Article 31(b),
UCMJ, rights, the voluntariness of the second statement is
determined by the totality of the circumstances. See United
States v. Brisbane, 63 M.J. 106, 114 (C.A.A.F. 2006) (quotation
and citation omitted). The earlier unwarned statement is a
factor in this total picture, but it does not presumptively
taint the subsequent statement. Id. If a “cleansing warning”
has been given -- where the accused is advised that a previous
statement cannot be used against him -– that statement should be
taken into consideration. Id. If a cleansing statement is not
given, however, its absence is not fatal to a finding of
voluntariness. Id.
While we have found that the military judge made a legal
error in admitting the January 3 statement and videotape, we are
bound by his factual findings concerning the circumstances of
the interviews if they were not clearly erroneous. See United
States v. Burris, 21 M.J. 140, 144 (C.M.A. 1985). In reviewing
those circumstances we note that when the CID agent conducted
his first interview on January 3, he did so in a professional,
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noncoercive manner. Just before this interview, Gardinier
received two Miranda warnings during his questioning by civilian
authorities, which he waived without hesitation. The military
judge found that “[a]t all times [Gardinier] was free to
exercise his own judgment and to make choices without improper
or illegal influence from any law enforcement authority.”
When he was called back to the CID office on January 7, the
CID agent gave Gardinier his Article 31(b), UCMJ, rights and
told him that another statement was needed because he may not
have been properly warned of his rights on January 3. Gardinier
waived his Article 31, UCMJ, rights, just as he had previously
waived his Miranda rights. While the CID agent did not
specifically inform Gardinier that the January 3 statement might
not be admissible against him, the written rights advisement did
state, “[y]our prior statement you provided on 3 Jan 02, was
given with [what] may not have been a proper rights advisement.
Now that a proper rights advisement has been provided, are you
willing to provide an additional statement?” Gardinier wrote
the word “yes” by this statement followed by his initials,
indicating that he had read it and thus also had an opportunity
to ask questions regarding its meaning.
There is no suggestion that either the January 3 or the
January 7 interview was a coercive event, nor do Gardinier’s
relative age and maturity level raise concerns about the
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statement’s voluntariness. Under the totality of the
circumstances surrounding both the January 3 and January 7
statements, we conclude that Gardinier’s decision to make a
second statement on January 7, 2002, was made voluntarily
following a proper Article 31(b), UCMJ, rights advisement and
was therefore admissible.
KG’s Statements to the Sexual Assault Nurse
The Confrontation Clause bars the admission of testimonial
statements of a witness who did not appear at trial unless the
witness was unavailable to testify and the defendant had a prior
opportunity for cross-examination. Crawford, 541 U.S. at 53-54.
We granted review of this issue to determine whether statements
that KG made to the sexual assault nurse examiner were
testimonial hearsay. We hold that these statements were
testimonial and their admission into evidence at the court-
martial was error.
Background
After KG reported to her mother that her father touched her
inappropriately, KG’s mother took her to the Evans Army
Community Hospital for examination. A few days later, the
sheriff’s department and the human services department conducted
a joint interview of KG. Immediately following that interview
KG was examined by Ms. Valerie A. Sievers, a sexual assault
nurse examiner (SANE). Ms. Sievers, who also described herself
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as a clinical forensic specialist, conducted a forensic medical
examination of KG and completed a report entitled “Forensic
Medical Examination Form.” This form included a section on
patient history in which Ms. Sievers documented statements that
KG made about Gardinier’s conduct.
At trial, the complete form was admitted into evidence as
was Ms. Sievers’ testimony about KG’s statements. The
Government called Ms. Sievers to testify as an expert in the
area of sexual assault nursing and examination. During her
testimony, trial counsel moved for admission of Ms. Sievers’
complete report under the business records exception to the
hearsay rule, M.R.E. 803(6). Defense counsel’s objection on
authentication grounds was overruled. Defense counsel later
objected to Ms. Sievers’ testimony about KG’s statements on
hearsay grounds. Trial counsel argued that the testimony was
“off of her document, which [was] already admitted into
evidence” and that it fell “under the medical rules exception.”
Defense counsel’s objection was overruled and the testimony was
allowed.
Discussion
Whether these statements are inadmissible hearsay under
Crawford is a question of law that we review de novo. United
States v. Rankin, 64 M.J. 348, 351 (C.A.A.F. 2007). Without
articulating a comprehensive definition of “testimonial” in
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Crawford, the Supreme Court “set forth ‘[v]arious formulations’
of the core class of ‘testimonial’ statements.” United States
v. Davis, 126 S. Ct. 2266, 2273 (2006). We recognize that these
formulations should not be viewed as an exhaustive list of
testimonial statements. Id. (noting that the Court found it
unnecessary to endorse any of the formulations because “some
statements qualify under any definition”). Nevertheless, one of
these formulations, i.e., “statements that were made under
circumstances which would lead an objective witness reasonably
to believe that the statement would be available for use at a
later trial” offers a useful baseline to begin analysis of the
testimonial quality of the statements at issue in this case.
Crawford, 541 U.S. at 51-52.
In Rankin, we identified several factors that could be
considered when distinguishing between testimonial and
nontestimonial hearsay under these circumstances. 64 M.J. at
352. Those factors include: (1) was the statement elicited by
or made in response to law enforcement or prosecutorial
inquiry?; (2) did the statement involve more than a routine and
objective cataloging of unambiguous factual matters?; and (3)
was the primary purpose for making, or eliciting, the statement
the production of evidence with an eye toward trial? Id.
(C.A.A.F. 2007) (citation and quotation omitted). In
undertaking this factors approach, our goal is an objective look
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at the totality of the circumstances surrounding the statement
to determine if the statement was made or elicited to preserve
past facts for a criminal trial. Cf. Davis, 126 S. Ct. at 2273-
74 (distinguishing between testimonial and nontestimonial
statements made in the course of police interrogation by
determining whether the circumstances objectively indicate that
the primary purpose is to prove past events potentially relevant
to later criminal prosecution).
In applying this approach to the statements that Ms.
Sievers elicited from KG, we consider the first and third
factors together because they are related in this factual
context.5 We determine that on balance the evidence tips towards
a conclusion that the statements were elicited in response to
law enforcement inquiry with the primary purpose of producing
evidence with an eye toward trial.
Ms. Sievers is a coordinator for the Colorado SANE Program
and also conducts sexual assault examinations at the Children’s
Advocacy Center. It was in this capacity that she examined KG.
Ms. Sievers testified that she elicited a patient history from
KG “to determine diagnosis and treatment,” and she completed the
5
As to the second factor, we have no difficulty concluding that
Ms. Sievers’ documentation of KG’s allegations of sexual abuse
is more than a routine and objective cataloging of unambiguous
factual matters. See United States v. Magyari, 63 M.J. 123,
126-27 (C.A.A.F. 2006) (holding that data entries by lab
technicians fit into this category).
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“treatment” section on the medical form referring KG to Evans
Army Community Hospital for follow-up care. However, Ms.
Sievers also testified that she sees children at the Children’s
Advocacy Center to conduct forensic evaluations and detailed
genital examinations.6 Although there is a “treatment” section
on the form, the form itself is entitled a “Forensic Medical
Examination Form” rather than simply a medical exam form and Ms.
Sievers referred to the report as “the medical legal record.”
We also note that one of questions Ms. Sievers asked KG was:
“Can you tell me what you talked about with Ken the policeman?”
This question reflects more of a law enforcement purpose and
less of a medical treatment purpose.
In addition, the Government concedes that the sheriff’s
office was involved in arranging the examination; the consent
form for the examination stated that the medical report would be
provided to law enforcement; the report was sent to the
sheriff’s office; the sheriff’s office was billed for the
forensic medical exam; and the forensic medical examination form
was introduced by the Government at Gardinier’s court-martial
after the Government established that Ms. Sievers has testified
as an expert in the area of SANE examinations over fifty times
and qualified her as an expert in this area.
6
“Forensic” is defined as “[u]sed in or suitable to courts of
law or public debate.” Black’s Law Dictionary 676 (8th ed.
2004).
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We recognize that the referral of an alleged victim to a
medical professional by law enforcement or trial counsel does
not always establish that the statements at issue were made in
response to a law enforcement or prosecution inquiry or elicited
with an eye toward prosecution. Cf. United States v. Rodriguez-
Rivera, 63 M.J. 372, 381 (C.A.A.F. 2006). Here, however, the
evidence indicates that Ms. Sievers, who specialized in
conducting forensic medical examinations, performed a forensic
medical exam on KG at the behest of law enforcement with the
forensic needs of law enforcement and prosecution in mind.
Under the totality of the circumstances presented here, KG’s
statements to Ms. Sievers are testimonial and were admitted in
error.
The Court of Criminal Appeals’ Article 66(c), UCMJ, Review and
Consideration of Prejudice Under New Evidentiary Landscape
The Court of Criminal Appeals concluded that the military
judge abused his discretion in finding that KG was legally
unavailable to testify within the meaning of M.R.E. 804(a). 63
M.J. at 540. The lower court found that the subsequent
admission of KG’s videotaped interview with the civilian
authorities violated Gardinier’s Sixth Amendment right to
confrontation. Id. at 543-44. However, in considering the
other evidence admitted at trial, the lower court ultimately
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concluded that the erroneous admission of the videotape was
harmless beyond a reasonable doubt. Id. at 545.
We have determined that the following evidence was admitted
in error: (1) Gardinier’s January 3, 2002 statement; (2) the
January 3 videotape of the CID interview with Gardinier; and (3)
the statements KG made to Ms. Sievers during the sexual assault
examination. These determinations change the evidentiary
landscape that was before the Court of Criminal Appeals when it
conducted its initial review.
In light of this changed evidentiary landscape, it is
appropriate that we return the case to the Court of Criminal
Appeals to conduct an Article 66(c), UCMJ, 10 U.S.C. § 866(c)
(2000), factual sufficiency review and also to consider whether
the erroneous admission of KG’s videotaped interview with the
civilian authorities was harmless beyond a reasonable doubt. In
addition, the admission of Gardinier’s January 3, 2002,
statement, the admission of the videotape of Gardinier’s
interview with the CID agent, and the admission of KG’s
statements to Ms. Sievers were errors of constitutional
magnitude. See Crawford, 541 U.S. at 61; Brisbane, 63 M.J. at
116 (reviewing Article 31(b), UCMJ, error under standard of
harmless beyond a reasonable doubt). Therefore, the Court of
Criminal Appeals should also consider whether those errors were
harmless beyond a reasonable doubt.
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Decision
The decision of the United States Army Court of Criminal
Appeals is set aside. The record of trial is returned to the
Judge Advocate General of the Army for remand to the Court of
Criminal Appeals for further review consistent with this
opinion.
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EFFRON, Chief Judge (concurring in part and dissenting in
part):
I concur in the majority opinion’s determination that a
remand is warranted because the military judge erred in
permitting the introduction of the key pieces of evidence.
First, the military judge erroneously permitted a sexual assault
nurse to recount KG’s statements, which constituted inadmissible
testimonial hearsay under the Confrontation Clause of the Sixth
Amendment. See Crawford v. Washington, 541 U.S. 36 (2004).
Second, the military judge erred in admitting into evidence
Appellant’s January 3 statement to the Army Criminal
Investigation Division (CID) and the related videotape of his
interview with the CID because these statements were obtained
without providing Appellant with the rights warnings required by
Article 31(b), Uniform Code of Military Justice (UCMJ), 10
U.S.C. § 831(b) (2000). I respectfully disagree, however, with
the majority opinion’s determination that Appellant’s January 7
statement, obtained by the same CID agent without a cleansing
warning, was admissible.
Successive interrogations after an unwarned statement
As the majority opinion observes, United States v.
Brisbane, 63 M.J. 106 (C.A.A.F. 2006), provides the appropriate
framework for analyzing the admissibility of Appellant’s second
statement. In Brisbane, we noted that when a statement is
United States v. Gardinier, No. 06-0591/AR
inadmissible because an individual was not provided with the
applicable rights warning, the voluntariness of a second
statement is determined by the totality of the circumstances.
Id. at 114. In assessing the totality of the circumstances, we
take into account the presence of a “cleansing warning” -- that
is, advice that a person’s prior statement cannot be used
against that person. Id. The absence of a cleansing warning is
a factor to be considered under the totality of the
circumstances, but “the absence of such [a warning] is not fatal
to a finding of voluntariness.” Id.
When an accused challenges the admissibility of a statement
under Article 31(b), UCMJ, and Military Rule of Evidence
(M.R.E.) 305, the government bears the burden of establishing
that the statement is admissible. See United States v. Benner,
57 M.J. 210, 212 (C.A.A.F. 2002). When a court determines that
an earlier statement is inadmissible, the government bears the
burden of demonstrating that a subsequent statement is
admissible under the totality of the circumstances. United
States v. Phillips, 32 M.J. 76, 80 (C.M.A. 1991).
Appellant’s unwarned statement and the subsequent interrogation
The record reflects a direct connection between Appellant’s
unwarned statement on January 3 and his decision to respond to
CID’s request for a statement only four days later on January 7.
Appellant testified that subsequent to his January 3 statement,
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he was directed by his first sergeant to call the CID agent,
Special Agent Phillips. According to Appellant, Special Agent
Phillips “asked me if I could come in to clarify questions and
clarify or follow up on questions that were asked on the 3rd of
January.” Appellant added: “Basically, all he was looking for
was to clarify what was said and, you know, make sure that what
I was talking about was accurate, or you know, he wanted to get
it down on forms there, too.” When asked if Special Agent
Phillips had told him that his January 3 statement might not be
able to be used against him, Appellant said: “I don’t remember
him saying anything about it could be used against me.”
Appellant offered the following explanation for his
decision to make a statement to Special Agent Phillips on
January 7 in light of his prior statement to Phillips on January
3: “I just thought he knew what he wanted to know. I mean, all
he was in there to do was basically clarify what was said and
basically rehash the 3 January interview.”
At the January 7 interview, Special Agent Phillips
presented Appellant with a rights waiver certificate containing
the following advisement: “Your prior statement you provided on
3 Jan 02, was given with [what] may not have been a proper
rights advisement.” The military judge, in his findings of
fact, stated that Special Agent Phillips “did not explain what
[the January 7 advisement] meant; i.e., he did not give a
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cleansing warning.” In his conclusions of law, the military
judge determined that a cleansing warning was not required
because Appellant “was, in substance, advised of all of his
rights” before he made the January 3 statement.
The military judge erred in his conclusion on the January 7
statement because it was based on his erroneous determination
that the January 3 statement was admissible. The Court of
Criminal Appeals likewise erred in its conclusion that the
January 3 statement was admissible.
The Government had an opportunity at trial to rebut
Appellant’s testimony that he gave a statement on January 7
because the Government already possessed the January 3 statement
and the admissions contained therein. Special Agent Phillips
did not tell him that his earlier statement could not be used
against him at trial. In view of the fact that qualified
military judges at both the trial and intermediate appellate
level believed as a matter of law that the January 3 statement
was admissible, it was reasonable for Appellant -- a layman --
to assume on January 7 that his choices were constrained by the
Government’s ability to exploit the incriminating statements
from his January 3 statement. The Government was required to
show that Appellant voluntarily made a second statement after
making an earlier involuntary statement. See Brisbane, 63 M.J.
at 114. The Government, however, chose at trial not to rebut
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Appellant’s testimony about his reasons for providing a
statement on January 7, preferring to rely on its belief in the
propriety of the January 3 statement. Although the absence of a
cleansing warning is not always fatal, in this case, the record
reflects a statement obtained by the same law enforcement agent
close in time to the unwarned statement. Appellant reasonably
viewed his options as constrained by the earlier statement. In
that context, Government has not met its burden of demonstrating
that the January 7 was admissible under the totality of the
circumstances. Accordingly, I respectfully dissent from that
portion of the majority opinion that would permit reliance on
the January 7 statement.
5
United States v. Gardinier
Court: Court of Appeals for the Armed Forces
Date filed: 2007-06-06
Citations: 65 M.J. 60
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