Petition for Writ of Certiorari — Arnold v. United States

me me em

ry Supreme Court, U.S.

) FILED

23 _\O87

In the Supreme Court of the Unkted slates

.-

OCTOBER TERM, 1987

CHARLES ARNOLD

SPECIALIST FIVE, UNITED STATES ARMY,

PETITIONER,

Vv.

UNITED STATES OF AMERICA,

RESPONDENT.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

CHARLES A. ZIMMERMAN

Lieutenant Colonel, Judge Advocate

General’s Corps (JAGC)

United States Army Legal Services

Agency

Defense Appellate Division

5611 Columbia Pike

Falls Church, Virginia 22041

Counsel of Record

and

RUSSELL S. ESTEY

Major (P), JAGC

United States Army

ERIC T. FRANZEN

Major, JAGC

United States Army

Scott A. HANCOCK

Captain, JAGC

United States Army

KEITH W. SICKENDICK

Captain, JAGC

United States Army

QUESTION PRESENTED

Whether petitioner’s sixth amendment right of confrontation

was violated by the admission of the out-of-court statement of

the alleged victim where the victim did not appear at trial and

the government failed to demonstrate that the alleged victim

was unavailable for purposes of the sixth amendment and

where that statement lacked sufficient indicia of reliability

and trustworthiness.

TABLE OF CONTENTS

Opinions below ........6.csse cree ssesesenssees

Se I Pee Re ee ae ee nal Sat ty

Constitutional Provision Involved ....------+++++-:

Statement of the Case .......----e seer eceerteee:

Reasons for Granting the Writ ....-.------++s++0

lL.

THE HOLDING OF THE COURT OF MILITARY

APPEALS, THAT A SHOWING OF UNAVAIL-

ABILITY OF A DECLARANT IS NOT REQUIRED

FOR PURPOSES OF THE CONFRONTATION

CLAUSE, WHERE THE OUT-OF-COURT STATE-

MENT OF THE DECLARANT IS OFFERED

UNDER A FIRMLY-ROOTED EXCEPTION TC

‘THE HEARSAY RULE, IS CONTRARY TO-THIS

COURTS INTERPRETATION OF THE RE-

QUIREMENTS OF THE CONFRONTATION

CLAUSE AND RELEGATES THE CLAUSE TOA

MERE CODIFICATION OF THE RULES OF

MP ADGAN .. . oc ccs aecacus ds Sanmeeees a eeeenes

Il.

THE STATEMENT OF THE VICTIM TO HER

SCHOOL COUNSELOR DOES NOT BEAR ADE-

QUATE INDICIA OF RELIABILITY TO SATISFY

THE PURPOSES OF THE CONFRONTATION

CLAUSE NOTWITHSTANDING ITS CHARAC-

TERIZATION AS AN EXCITED UTTERANCE BY

THE COURT BELOW ........----0eeceetteeee

Cee. . cw wc kan eva snes we eee

pe WOeOree eee ee sch

Apepaenlien 6 6 aca es CHR

(II)

=

III

TABLE OF AUTHORITIES

Page

CASES:

Barber v. Page, 390 U.S. 719 (1968) ........... 6

Bourjaily v. United States, ___ U.S. ____, 107

veka as se nswasses 7, 8

California v. Green, 399 U.S.149 (1970) .. 2.2... 6

Dutton v. Evans, 400 U.S. 74 (1970) ........... 7

Haggins v. Warden, Fort Pillow State Farm,

715 F.2d 1050 (6th Cir. 1983) cert. denied 464

acc ann vccces 9, 10

Mancusi v. Stubbs, 408 U.S. 204 (1972) ......... 6

Motes v. United States, 178 U.S. 458 (1900) ..... 6

Ohio v. Roberts, 448 U.S. 56 (1980) ............ passim

People v. Hughey, 194 Cal.App.3d 1383, 240 Cal.

Rptr. 269 (Cal. Ct. App. 1987) .............. 8

Puleio v. Vose, No. 87-1135 (1st Cir. Oct. 9, 1987)

(WESTLAW, Allfeds library) .............. 9

Snyder v. Massachusetts, 291 U.S. 97 (1934) .... 9

State v. Flores, No. 51790 (Ohio Ct. App. Feb. 26,

NR ee 8

State v. Wilson, 719 S.W.2d 28 (Mo. Ct. App.

Ne ie na xh ae euros 8

United States v. Arnold, 25 M.J. 129 (C.M.A.

aan tsk edo kaw 4 daa. passim

United States v. Arnold, 18 M.J. 559 (A.C.M.R.

er i a Vink acs ex ad eas 1, 2, 3,8

United States v. Cree, 778 F.2d 474 (8th Cir.

oe ere ys ae ia Die cu ess ae wae vy)

United States v. Hines, 23 M.J. 125 (C.M.A.

ee ee a ee nee ae we 7

United States v. Inadi, 475 U.S. 387, 106 S.Ct.

DS ENE ea 0, 7,8

United States v. Moore, 791 F.2d 566 (7th Cir.

NES 9

STATUTES:

United States Code

28 U.S.C. § 1259(3) (Supp II 1984) ......... l

IV

STATUTES - Continued Page

Uniform Code of Military Justice, 10 U.S.C.

§ 801 et seg. (1982):

Article 134, 10 U.S.C. § 934 (1982) ....----- 2

OTHER AUTHORITIES:

Fed. B.Evid. SOME) .....-.-200 02s seed ee eeeee 9

Manual for Courts-Martial, United States, 1969

(Revised Edition):

Mil.R.Evid. 803(2) ....------+eereer tere 2,9

Mil.R.Evid. 803(24) .....-------+eecrteee 2,11

Mil.R.Evid. 803(2) (analysis) ...------+-++> 9

Jn the Supreme Court of the United States

OCTOBER TERM, 1987

No.

CHARLES ARNOLD

SPECIALIST FIVE, UNITED STATES ARMY,

PETITIONER,

V.

UNITED STATES OF AMERICA,

RESPONDENT.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

The petitioner, Charles Arnold, respectfully prays that a

writ of certiorari issue to review the judgment and opinion of

the United States Court of Military Appeals entered in these

proceedings.

OPINIONS BELOW

The opinion of the Court of Military Appeals is reported at

25 M.J. 129 (C.M.A. 1987)(Appendix A). The opinion of the

United States Army Court of Military Review is reported at

18 M.J. 559 (A.C.M.R. 1984)(Appendix B).

JURISDICTION

The judgment of the Court of Military Appeals was entered

on September 30, 1987, affirming petitioner’s conviction

dated February 23, 1982. The jurisdiction of this Court is in-

voked under 28 U.S.C. § 1259(3\(Supp. II 1984).

CONSTITUTIONAL PROVISION INVOLVED

The Constitution of the United States provides:

Amendment VI: “In all criminal prosecutions, the ac-

cused shall enjoy the right . . . to be confronted with the

witnesses against him;... .”

(1)

2

STATEMENT OF THE CASE

Petitioner was tried by a general court-martial composed of

officer and enlisted members at Mannheim, Federal Republic

of Germany, on February 22 and 23, 1982. Contrary to his

pleas, he was convicted of one charge of taking indecent liber-

ties with his daughter, who was under the age of 16.' Peti-

tioner was sentenced to confinement for five years, forfeiture

of all pay and allowances, reduction to the lowest enlisted

grade and to receive a bad-conduct discharge from the serv-

ice. The sentence to confinement was reduced to three years

by the authority who convened the court-martial. The United

States Army Court of Military Review affirmed the findings

of guilty and the sentence. The United States Court of

Military Appeals affirmed the lower court’s decision.

The government's case against petitioner was based on his

confession and the victim’s out-of-court statements to her

school counselor, the school nurse, and an agent of the

Criminal Investigation Division (C.1.D.). The victim did not

appear at trial nor was she subpoenaed.’ The government

took only informal steps the morning of trial to obtain the vic-

tim’s presence (R. 102, 142). At trial, the government offered

the victim’s out-of-court statements through the testimony of

the persons to whom those statements were made. The

statements to the school counselor and the school nurse were

admitted by the trial judge over defense objection as excited

utterances pursuant to Mil.R.Evid. 803(2), Manual for

Courts-Martial, United States, 1969 (Revised edition) (R.

107). The victim’s written statement to C.1.D. was admitted

over defense objection pursuant to Mil.R.Evid. 803(24)

(residual hearsay exception\R. 188-189). The Army Court of

Military Review held that the statements to the school nurse

and C.1.D. were inadmissible but that their admission was not

prejudicial.*

1 A violation of Uniform Code of Military Justice, Article 134, 10 U.S.C.

§ 934 (1982).

2 Arnold, 25 M.J. at 130.

3 Arnold, 18 M.J. at 561-62.

3

The facts alleged may be briefly stated. The victim was

petitioner's 13-year-old daughter. She alleged that petitioner

approached her in the kitchen of their home on November 15.

1981, and fondled her pubic area. Later that same evening,

petitioner entered her bedroom and told her to remove her

underpants. Petitioner apparently heard his wife exiting the

shower and departed the victim’s room. He returned later

and attempted sexual intercourse. The next morning the vic-

tim approached her guidance counselor at school and asked to

speak to him. When the guidance counselor saw her approx.

imately one hour later, her first comment was: “Is the father

supposed to be the first one to have sex with you?” This

prompted questioning by the counselor and soon the full story

was told. Subsequently, she repeated her allegations in the

presence of the school nurse and gave a statement toa C.LD.

agent.‘ The school counselor testified that the victim was nor-

mally very “bubbly” but on this occasion she was “very sub-

dued” (R. 152).

On November 6, 1981, petitioner denied the allegations

against him in a statement to C.I.D. agents. However, on

November 13, 1981, he confessed to the alleged acts. On

December-22, 1981, the victim recanted her statements. Peti-

tioner recanted his confession at trial.

The issues litigated below and considered by the Court of

Military Appeals as a prerequisite to this Court’s jurisdiction

were:

I

WHETHER THE ARMY COURT OF MILITARY

REVIEW ERRED IN HOLDING THAT. . . [THE VIC-

~ TIM'S] OUT-OF-COURT DECLARATION TO HER

SCHOOL COUNSELOR CONSTITUTED AN EX.-

CITED UTTERANCE UNDER MIL.R.EVID. 803(2).

* The latter two statements are those found inadmissible by the Army

Court of Military Review. Jd.

* Arnold, 25 MJ. at 131.

WHETHER THE ARMY COURT OF MILITARY

REVIEW ERRED IN HOLDING THAT THE ERRON-

EOUS ADMISSION OF . . . [THE VICTIM’S] OUT-OF-

COURT STATEMENTS TO HER SCHOOL NURSE

AND TO THE CID WAS NOT PREJUDICIAL TO AP-

PELLANT.

Ill

WHETHER APPELLANT'S RIGHT OF CONFRON-

TATION UNDER THE SIXTH AMENDMENT OF

THE UNITED STATES CONSTITUTION WAS

VIOLATED BY ADMISSION OF THE ALLEGED VIC-

TIM’S OUT-OF-COURT STATEMENTS, WHERE THE

GOVERNMENT FAILED TO DEMONSTRATE (1) AC-

TUAL UNAVAILABILITY OF THE ALLEGED VIC-

TIM AND (2) SUFFICIENT STEPS TO SECURE HER

PRESENCE AT THE COURT-MARTIAL.

IV

WHETHER THE MILITARY JUDGE ERRED IN HIS

CHARACTERIZATION OF ... [THE VICTIM'S]

STATEMENT TO THE CID AS A PRIOR CONSIS-

TENT STATEMENT AND IN HIS INSTRUCTION TO

THE MEMBERS TO CONSIDER THAT OUT-OF-

COURT DECLARATION AS A PRIOR CONSISTENT |

STATEMENT. |

REASONS FOR GRANTING THE WRIT

In resolving this case against petitioner, the Court of

Military Appeals states in its plurality opinion® that two ques-

tions are presented:

1. Is the statement to the school counselor an “excited

utterance?”

6 Two members of the three member Court of Military Appeals do not

——reach the confrontation issue. Judge Sullivan, in his opinion concurring In

the result, would affirm based on petitioner’s confession as corroborated

5

2. Did admitting the hearsay testimony in lieu of the vic-

tim’s éppearance at trial violate appellant’s right to con-

front witnesses against him as provided by the Sixth

Amendment to the Constitution??

The court held that the statement of the victim to the

school counselor was an excited utterance and therefore ad-

missible as an exception to the hearsay rule.* The court went

on to hold that because the statement fell within the “long-

established, well recognized” excited utterance exception to

the hearsay rule, no showing of unavailability was required

for purposes of the Confrontation Clause. 25 M.J. at 133,

citing United States v. Inadi, 475 U.S. 387, 106 S.Ct. 1121

(1986) and Ohio v. Roberts, 448 U.S. 56 (1980). Whether or

not a showing of unavailability is required for purposes of the

Confrontation Clause when a statement falls within a firmly-

rooted hearsay exception is an important federal question

which has not been settled by this Honorable Court. Further,

the decision of the Court of Military Appeals on this issue is in

conflict with the decisions of this Honorable Court inter-

preting the requirements of the Confrontation Clause.

by petitioner's presence in his own home at the time of the incident and the

victim's agitated demeanor the morning after the incident. Arnold, 25 M.J.

at 134 (Sullivan, J., concurring in the result). Chief Judge Everett, in his

dissenting opinion, concludes that the victim's statement to her school

counselor was not an excited utterance nor did it fall within any other

established hearsay exception. Therefore its admission and the admission

of her other statements transgressed petitioner’s right of confrontation

which is error of constitutional dimensions requiring remand. Jd. at 134-5

(Everett, C.J., dissenting).

7 Id. at 132.

5 Id.

OO

6

I.

THE HOLDING OF THE COURT OF MILITARY AP-

PEALS, THAT A SHOWING OF UNAVAILABILITY OF

A DECLARANT IS NOT REQUIRED FOR PURPOSES

OF THE CONFRONTATION CLAUSE, WHERE THE

OUT-OF-COURT STATEMENT OF THE DECLARANT

IS OFFERED UNDER A FIRMLY-ROOTED EXCEP-

TION TO THE HEARSAY RULE, IS CONTRARY TO

THIS COURT’S INTERPRETATION OF THE RE-

QUIREMENTS OF THE CONFRONTATION CLAUSE

AND RELEGATES THE CLAUSE TO A MERE

CODIFICATION OF THE RULES OF HEARSAY.

In Ohio v. Roberts, 448 U.S. 56 (1980), this Court analyzed

in great detail the relationship between the Confrontation

Clause and the hearsay rule. While this Court did not “ ‘map

out a theory of the Confrontation Clause that would deter-

mine the validity of all hearsay exceptions’ (citations

omitted),” Id. at 64-5, a general approach to the problem was

identified and concisely stated:

[W]hen a hearsay declarant is not present for cross-

examination at trial, the Confrontation Clause normally

requires a showing that he is unavailable. Even then, his

statement is admissible only if it bears adequate “indicia

of reliability.” Reliability may be inferred without more in

a case where evidence falls within a firmly rooted hear-

say exception. In other cases, the evidence must be ex-

cluded, at least absent a showing of particularized

guarantees of trustworthiness. (Footnote omitted).

Id. at 66.

In establishing a requirement of unavailability, this Court

recognized the “Framers’ preference for face-to-face accusa-

tion” and that the sixth amendment establishes a “rule of

necessity” i.e., “the prosecution must either produce, or

demonstrate the unavailability of, the declarant whose state-

ment it wishes to use against the defendant.” Jd. at 65.°

However, a showing of unavailability by the proponent of a

® Citing Mancusi v. Stubbs, 408 U.S. 204 (1972); California v. Green, 399

U.S. 149 (1970); Barber v. Page, 390 U.S. 719 (1968); Motes v. United

States, 178 U.S. 458 (1900).

ee

hearsay statement need not always be made. In Dutton v.

Evans, 400 U.S. 74 (1970), a witness testified as to a conver-

sation he had with Evans’ co-conspirator in the Atlanta

Penitentiary. That testimony was admitted under a long

standing co-conspirator exception to the hearsay rule under

Georgia law. This Court found that the extrajudicial state-

ment involved was of only “peripheral significance”!® and

that the utility of cross-examination was so remote that the

Confrontation Clause did not require production of an ap-

parently available witness. This is not the situation in the in-

stant case where the victim was the only true witness against

petitioner.

Neither a showing of unavailability nor production is re-

quired where the out-of-court statement offered is that of a

co-conspirator made during the course of, or in furtherance

of, a conspiracy. United States v. Inadi, 475 U.S. 387, 106

S.Ct. 1121 (1986). In Inadi, this Court overruled the decision

of a lower court applying the Ohio v. Roberts rule of

unavailability to such statements. This Court recognized the

unique nature of the statements of a co-conspirator made in

furtherance of, or in the course of, a conspiracy! and con-

cluded that such statements should be admissible irrespective

of the availability or unavailability of the declarant. In the in-

stant case, the Court of Military Appeals cites Inadi, ap-

parently for the proposition that if a hearsay statement falls

within a firmly rooted hearsay exception, no showing of

unavailability is required. Arnold, 25 M.J. at 133. See also,

United States v. Hines, 23 M.J. 125, 128 fn.6 (C.M.A. 1986).

This Court’s decision in Bourjaily v. United States, ___ U.S.

___, 107 S.Ct. 2775 (1987), indicates that such a broad

reading of Inadi is not supportable. Bourjaily, like Inadi, in-

volved the hearsay statements of a co-conspirator offered by

the prosecution. In Bourjaily, this Court reiterated the two

10 Td. at 87.

“Such statements provide evidence of the conspiracy’s context’ that

cannot be replicated .... the statement often will derive its significance

from the circumstances in which it was made. Conspirators are likely to

speak differently when talking to each other in furtherance of their illegal

aims than when testifying . . . . [I]n-court testimony seldom will reproduce

a significant portion of the evidentiary value... .” Jd. 106 S.Ct. at 1126-7.

8

step approach of Ohio v. Roberts and then pointed out that in

Inadi the first requirement for a showing of unavailability

was eliminated when the hearsay statement is that of a co-

conspirator. Bourjaily, 107 S.Ct at 2782."

Thus, Inadi stands only for the proposition that a showing

of unavailability is not required when the hearsay statement

involved is that of a co-conspirator. The statement involved in

the instant case does not fall within the co-conspirator excep-

tion to the hearsay rule. Therefore, the Court of Military Ap-

peals’ abrogation of the unavailability rule based on Inadi is

incorrect. Although this Court stated in Ohio v. Roberts that

reliability may be inferred, without more, when a hearsay

statement falls within a firmly rooted hearsay exception, this

Court has never held that unavailability may be inferred on

the same basis.!*

In the case sub judice, both the Army Court of Military

Review and the Court of Military Appeals recognized that

there was no showing of unavailability after a good-faith ef-

fort to make the witness available.'* As stated by the Army

Court:

In the case before the Court, the government failed utter-

ly to show unavailability. Indeed, the record contains no

evidence that the government used any of the means

available to secure the presence of the witness, even

though the trial judge offered the use of his judicial

authority to do so.

Arnold, 18 M.J. at 561. The Court of Military Appeals

acknowledged this fact. Arnold, 25 M.J. at 131. Therefore,

the requirements of the Confrontation Clause have not been

satisfied and the victim’s statement to her school counselor

should not have been admitted.

12 This Court went on to hold that the co-conspirator exception to the

hearsay rule is firmly rooted and therefore no separate inquiry as to the in-

dicia of reliability of such a statement need be made, the second step of the

Ohio v. Roberts approach.

13 But see, State v. Flores, No. 51790 (Ohio Ct. App. Feb. 26, 1987); Peo-

ple v. Hughey, 194 Cal.App.3d 1383, 240 Cal. Rptr. 269 (Cal. Ct. App.

1987); State v. Wilson, 719 S.W.2d 28 (Mo. Ct. App. 1986).

14 Ohio v. Roberts, 448 U.S. at 74.

9

Il.

THE STATEMENT OF THE VICTIM TO HER SCHOOL

COUNSELOR DOES NOT BEAR ADEQUATE INDICIA

OF RELIABILITY TO SATISFY THE PURPOSES OF

THE CONFRONTATION CLAUSE NOTWITHSTAND-

ING ITS CHARACTERIZATION AS AN EXCITED UT-

TERANCE BY THE COURT BELOW.

The second aspect of the two-prong approach of Ohio v.

Roberts requires that the hearsay sought to be admitted, be

marked “with such trustworthiness that ‘there is no material

departure from the reason of the general rule.’” Id. at 65,

citing Snyder v. Massachusetts, 291 U.S. 97, 107 (1934). The

reason of the general rule as explained by Snyder is to prevent

a conviction based on depositions or ex parte affidavits and to

preserve the accused’s right to test the recollection of a

witness through cross-examination. If a declarant. is

unavailable and his out-of-court statement falls within a firmly

rooted hearsay exception, reliability can be inferred and the

purposes of the Confrontation Clauses are met.'5 The fact that

the excited utterance exception’ is a firmly rooted hearsay ex-

ception is not at issue here. See Puleio v. Vose, No. 87-1135 (1st

Cir. Oct. 9, 1987{WESTLAW Allfeds library); United States

v. Moore, 791 F.2d 566, 574 (7th Cir. 1986); Haggins v.

Warden, Fort Pillow State Farm, 715 F.2d 1050, 1057 (6th

Cir. 1983) cert. denied 464 U.S. 1071 (1984). See also, United

States v. Cree, 778 F.2d 474, 501-02 (8th Cir. 1985XOliver, J.,

dissenting). The issue is also not whether the statement of the

victim in this case is admissible as an excited utterance under

Mil.R.Evid. 803(2) as applied by the military courts. The issue

is whether or not the extrajudicial statement of the victim con-

tains “sufficient indica of reliability and guarantees of

trustworthiness to satisfy the interests protected by the con-

frontation clause.” Haggins, 715 F.2d at 1057.17

8 Ohio v. Roberts, 448 U.S. at 66.

16 Mil.R.Evid. 803(2) is taken verbatim from Fed.R.Evid. 803(2). Manual

for Courts-Martial, United States, 1969 (Revised edition), Mil.R.Evid.

803(2), analysis.

'? Although reliability may be inferred when an extrajudicial statement

falls within a firmly rooted hearsay exception (Ohio v. Roberts, 448 U.S. at

66), such reliability is only an inference and not a presumption.

10

In Haggins v. Warden, Fort Pillow State Farm, 715 F.2d

1050 (6th Cir. 1983) cert. denied 464 U.S. 107 1 (1984), the

court listed three elements which are necessary for a hearsay

statement to be considered an excited utterance under the

federal rules and therefore satisfy the Confrontation Clause:

there must be an event which is startling enough to cause

nervous excitement; the statement must be made before

there is time for the declarant to contrive or misrepresent;

and, the statement must be made while the declarant is under

the stress of the excitement caused by the event. Jd. at 1057.

Application of these criteria in the instant case reflect that

the statement of the victim does not contain sufficient indicia

of reliability and guarantees of trustworthiness to satisfy the

Confrontation Clause not withstanding its characterization

as an excited utterance by the Court of Military Appeals.

Only Chief Judge Everett in his dissent comes close to a

proper analysis of the statement under consideration. As he

notes, the declarant and victim was 13 years of age at the

time of the event, not one of tender years who would,

perhaps, be likely to sustain the excitement arising from the

event for a long period. When the declarant first approached

her school counselor, she was “very quiet, subdued,” and not

excited. The statement involved was not made until almost an

hour and a half after the declarant first approached her

counselor and asked to speak to him. Then, the declarant

began the conversation by asking whether “the father [is]

supposed to be the first one to have sex with you?” The ac-

cusations against appellant were made only after the

counselor asked her why she wanted to know. The declarant

only became agitated and started crying later in the inter-

view. Arnold, 25-M.J. at-134-5 (Everett, C.J., dissenting).

The declarant’s age and her demeanor prior to and during her

statement, when coupled with the fact that the alleged event

occurred more than 12 hours before in her home with her

mother present, clearly show that the declarant had time to

reflect on the event and that at the time of her statement she

was not under the stress of the excitement caused by that

event. Although she may have been excited about telling her

- a

1]

story to the school guidance counselor, the stress of the ex-

citement generated by the event had passed.18 Therefore,

because there was time for reflective thought unimpeded by

excitement generated by the event, and because the

declarant recanted her statement prior to trial, that state-

ment does not bear the indicia of reliability and guarantees of

trustworthiness necessary to satisfy the purposes of the Con-

frontation Clause, notwithstanding the decision of the Court

of Military Appeals to the contrary.

CONCLUSION

The Court of Military Appeals affirmed the conviction of

petitioner. That conviction was based on his own recanted

confession and the repudiated, extrajudicial, oral statement

of the 13-year-old victim. The only true witness against peti-

tioner, the victim, was never present at trial, she was never

subjected to cross-examination, and her demeanor was never

subject to scrutiny by the trier-of-fact. Her damning allega-

tions were merely repeated at trial by a third party to whom

they were made after the victim had time for reflective

thought and after the excitement of the events she related had

passed. The necessity for proceeding against petitioner in this

manner was never demonstrated by the government. Indeed,

as recognized by the courts below, there was no showing by

the government that the victim was unavailable for purposes

of the Confrontation Clause. Petitioner’s right of confronta-

tion was violated by admission of the victim's extrajudicial

'8 Judge Cox in his plurality opinion notes that it may be “more intellec-

tually honest” to consider the statement under Mil.R.Evid. 803(24), a

residual hearsay exception. Arnold, 25 M.J. at 133, fn. 4.

12

statement in this case. The violation was neither minimal nor

justified. For these reasons the petition for certiorari should

be granted.

Respectfully submitted,

CHARLES A. ZIMMERMAN

Lieutenant Colonel, Judge Advocate

General’s Corps

United States Army Legal Services

Agency

Defense Appellate Division —

5611 Columbia Pike

Falls Church, Virginia 22041

Counsel of Record

and

RUSSELL S. ESTEY

Major (P), JAGC

United States Army

ERIC T. FRANZEN

| Major, JAGC

“ United States Army

Scott A. HANCOCK

Captain, JAGC

United States Army —

KEITH W. SICKENDICK

Captain, JAGC

United States Army

APPENDICES

=

a

APPENDIX A

UNITED STATES COURT OF MILITARY APPEALS

No. 50,323.

CM 442627.

UNITED STATES, APPELLEE,

vz.

CHARLES ARNOLD, SPECIALIST FIVE

U.S. ARMY, APPELLANT.

Sept. 30, 1987

For Appellant: Captain Pamela G. Montgomery (argued):

Colonel William G. Eckhardt, Lieutenant Colonel Arthur L.

Hunt, Major Stephen R. Dooley, Captain Alan D. Groesbeck,

Captain David L. Carrier (on brief); Colonel Brooks B. La

Grua, Major Eric T. Franzen, Captain William T. Wilson,

Captain Karen S. Davis.

For Appellee: Captain Richard Parker (argued); Colonel

James Kucera, Lieutenant Colonel Adrian J. Graveile, Major

Patrick M. Flachs, Captain Edmond R. McCarthy, Jr.

OPINION

COX, Judge:

Appellant was tried by general court-martial on February

22 and 23, 1982. The court was convened at Mannheim,

Federal Republic of Germany, and was composed of officer

and enlisted members. Despite his pleas, he was found guilty

of taking indecent liberties with and committing lascivious

acts upon his daughter, who was under 16 years of age, in

violation of Article 134, Uniform Code of Military Justice, 10

U.S.C. § 934. He was sentenced to be confined for 5 years; to

forfeit all pay and allowances; to be reduced to pay grade E-1;

la

2a

and to receive a bad-conduct discharge from the Army. The

convening authority reduced the confinement to 3 years but

otherwise approved the findings and sentence as adjudged.

The Court of Military Review affirmed. 18 M.J. 559 (1984).

This is yet another child-abuse case where the Government

proved its case through use of an accused’s confession and

statements made to an intermediary by the -complaining

witness. See United States v. Barror, 23 M.J. 370

(C.M.A.1987), and United States v. Hines, 23 M.J. 125

(C.M.A.1986).! The victim failed to appear at trial. Further-

more, in spite of defense counsel’s objection, she was not sub-

poenaed; the military judge did not abate the proceedings un-

til she was available; she was not deposed pretrial; and no

other legal means were employed to compel her to appear. In-

deed, although the Government made some informal effort to

locate the witness, trial counsel’s assertions to the court

members made it abundantly clear that he had no intention of

calling the witness to the stand. Instead, he said he would re-

ly on appellant’s confession and statements made by the vic-

tim to her school counselor, the school nurse, and agents of

the Criminal Investigation Command (CID) to corrobate that

confession. ?

1 In United States v. Barror, 23 M.J. 370 (C.M.A.1987), we considered

whether a written statement given to agents of the Air Force Office of

Special Investigations by appellant’s stepson, alleging that appellant had

sexually assaulted him, was admissible under Mil.R.Evid. 804(b\5). In

United States v. Hines, 23 M.J. 125 (C.M.A.1986), we considered whether,

pursuant to the residual-hearsay exception, the military judge erred by ad-

mitting into evidence written statements made by the three key witnesses

after they refused to testify in person at either the Article 32, Uniform

Code of Military Justice, 10 U.S.C.§ 832, investigation or the trial.

2 We agreed to review four issues to determine:

WHETHER THE ARMY COURT OF MILITARY REVIEW ERRED

IN HOLDING THAT...{THE VICTIM'S] OUT-OF-COURT

DECLARATION TO HER SCHOOL COUNSELOR CONSTITUTED

AN EXCITED UTTERANCE UNDER MIL.R.EVID. 803(2).

WHETHER THE ARMY COURT OF MILITARY REVIEW ERRED

IN HOLDING THAT THE ERRONEOUS ADMISSION OF .. . [THE

|

3a

According to the Government, on the night of November 5,

1981, appellant approached his 13-year-old daughter in the

kitchen of their home “and felt her up” by fondling “her pubic

area.” Later that evening he entered her bedroom and told

her to remove her underpants, which she did. Appellant

heard his wife coming out of the shower and left the room, in-

structing his daughter to leave her pants off. He returned

later, climbed into bed with her, removed his penis from his

trousers, and “attempted to” have sexual intercourse with

her explaining that he was only doing it because “fathers are

supposed to be the first ones to have sex with their

daughters.”

The next morning, November 6, the daughter went to

school and immediately sought out Mr. McGee, her high

school counselor, and told him “that she had to see” him. He

arranged for her to talk with him after her second-period

class. Mr. McGee testified that the victim normally was “a

very bubbly . . . girl,” but on that day “{sJhe . . . seemed to be

really agitated” and “very, very subdued”; “[sJhe was

crying . . . [and he] had to give her Kleenexes.” During their

conversation, the child asked, “Is the father supposed to be

VICTIM‘S] OUT-OF-COURT STATEMENTS TO HER SCHOOL

NURSE AND TO THE CID WAS NOT PREJUDICIAL TO AP-

PELLANT.

WHETHER APPELLANT'S RIGHT OF CONFRONTATION

UNDER THE SIXTH AMENDMENT OF THE UNITED ‘STATES

CONSTITUTION WAS VIOLATED BY ADMISSION OF THE

ALLEGED VICTIM'S OUT-OF-COURT STATEMENTS, WHERE

THE GOVERNMENT FAILED TO DEMONSTRATE (1) ACTUAL

UNAVAILABILITY OF THE ALLEGED VICTIM AND (2) SUFFI-

CIENT STEPS TO SECURE HER PRESENCE AT THE COURT-

MARTIAL.

IV

WHETHER THE MILITARY JUDGE ERRED IN HIS

CHARACTERIZATION OF .. . (THE VICTIM'S) STATEMENT TO

THE CID AS A PRIOR CONSISTENT STATEMENT AND IN HIS

INSTRUCTION TO THE MEMBERS TO CONSIDER THAT OUT-

OF-COURT DECLARATION AS A PRIOR CONSISTENT STATE-

MENT.

4a

the first one to have sex with you?” When he questioned her

motives for asking such a thing, “that just opened the

gate,...she started explaining in detail what had hap-

pened . . . the previous night.”

’ Mr. McGee summoned the school nurse, and the story was

repeated in her presence. Later that day, the girl was taken

to the CID office, where she made another statement, and an

investigation began.

On November 6, appellant rendered a statement to CID

agents in which he denied the allegations against him.

However, on November 13, he gave CID agents a second,

sworn, written statement in which he admitted committing

the alleged acts. Appellant recanted this confession at trial,

and the victim recanted her statement on December 22,

stating, “I would like to say my first statement was not true. I

do believe it could have been a dream.”

At trial, the Government, through examination of Mr.

McGee, offered the hearsay testimony of the victim. The

military judge admitted the testimony as an “excited ut-

terance” pursuant to Mil.R.Evid. 803(2), Manual for Courts-

Martial, United States, 1969 (Revised edition). He likewise

admitted the testimony of the school nurse recounting the

victim's statements to her as an “excited utterance” and the

victim’s November 6 statement as one of the “other excep-

tions” to the hearsay rule. Mil.R.Evid. 803(24).

The Court of Military Review held that the military judge

erred in admitting the nurse’s statement as an “excited ut-

terance” because, “[w]hile the two declarations [to the

counselor and the nurse] were part of a continuous episode,

the second [to the nurse] was more a result of the counselor's

action in initiating the discussion with the nurse and the

statement more a result of their urgings and questions.” The

court likewise found that the statements to the CID were not

admissible under Mil.R.Evid. 803(24), deferring to

Mil.R.Evid. 804(b\5) as the operative rule appearing to be

“specifically designed to address the problem of family

members who are witnesses to an intra-family criminal of-

fense.” This rule requires a determination that the witness is

“unavailable,” which was not done in this case. In fact, there

5a

is no showing that the witness was unavailable in the legal

sense. 18 M.J. at 561.

The court further found that admitting the nurse’s and the

CID agent’s testimony regarding the victim’s statements to

them constituted harmless error in view of appellant’s confes-

sion and the cumulative nature of the evidence.

We agree. First, we hold that appellant’s confession, as cor-

roborated by the victim’s spontaneous and unsolicited “ex-

cited utterances” to her school counselor, were ample

evidence, certainly sufficient to convict appellant beyond a

reasonable doubt. Second, we find that admission of the addi-

tional statements, albeit error as decided by the Court of

Military Review, was harmless error beyond any reasonable

doubt. Art. 59a), UCMJ, 10 U.S.C. § 859(a); United States v.

Davis, 20 M.J. 61 (C.M.A.1985); United States v. Remar, 19

M.J. 229 (C.M.A. 1985).

Two questions are presented in resolving this case against

appellant.

1. Is the statement to the school counselor an “excited ut-

terance?”

2. Did admitting the hearsay testimony in lieu of the

victim’s appearance at trial violate appellant’s right to con-

front witnesses against him as provided by the Sixth Amend-

ment to the Constitution?

Unfortunately, neither the Military Rules of Evidence nor

case law of this Court-or other courts—have established a

“bright line” rule on “excited utterances.” But it is universally

recognized that, in order for there to be an excited utterance,

the statement must be “spontaneous, excited or impulsive

rather than the product of reflection and deliberation.”

United States v. Iron Shell, 633 F.2d 77, 86 (8th Cir. 1980),

cert. denied, 450 U.S. 1001, 101 S.Ct. 1709, 68 L.Ed.2d 203

(1981), citing numerous cases. Further, the event must be

“startling.” United States v. LeMere, 22 M.J. 61, 67

(C.M.A.1986). And most importantly, the declarant must be

“under the stress of excitement caused by the event.”

Mil.R.Evid. 803(2). Here, even though at least 12 hours had

passed before the victim's first statement was made, “[t]he

lapse of time between the startling event and the out-of-court

statement although relevant is not dispositive in the applica-

6a

tion of rule 803(2).” 633 F.2d at 85, citing Garcia v. Watkins,

604 F.2d 1297, 1300 (10th Cir.1979).

We are convinced by the facts and circumstances of this

case that the girl’s unsolicited, spontaneous statements to her

school counselor at the first available opportunity while she

was “very, very agitated” were indeed “excited utterances.”

The victim was acting not only under the influence of the at-

tempted sexual asssault but also under the threat of being

shot by her father.

While we “yield to no one in. . . [olur respect for the Con-

frontation Clause of the Sixth Amendment,” Lee v. Illinois,

476 U.S. 530, 106 S.Ct. 2056, 2066, 90 L.Ed. 2d 514 (1986)

*“A fresh complaint of a sexual offense may come within . . . [the] excep-

tion (for excited utterances] depending on the circumstances.” Analysis of

Mil.R.Evid. 803(2), Manual for Courts-Martial, United States, 1969 (Re-

vised edition), p. A18-103. See United States v. Smith, 14 M.J. 845

(A.C.M.R.1982) (evidence of fresh complaint of a sexual offense which is

nonhearsay or fits within another exception to the hearsay rule is relevant

and admissible). Several states have adapted their hearsay exceptions to

accommodate the complaints of child victims. In State v. Garay, 453 So.2d

1003, 1007 (La.App. 4th Cir.1984), the court stated that their res gestae ex-

ception, “defined as ‘events speaking for themselves under the immediate

pressure of the occurrence, through the instructive, impulsive, and spon-

taneous words and acts of the participants, and not the words of the par-

ticipants when narrating the events,’” has been “repeatedly interpreted”

by the Louisiana Supreme Court

to admit the original complaint of a young child when the . . . facts and

circumstances of the case indicate that it was a product of a shocking

episode and not a fabrication. The original complaint of the young child

is the statement made at the first reasonable opportunity under the

particular facts and circumstances of the case.

(Citations omitted.) The court further opined that “(a] very young child

raped by an adult standing in the position of parent, caretaker, or friend

cannot be expected to immediately come forward with a complete and ex-

act report of the event . . . [T]he child may be unable to speak about the in-

cident until” the child is “safely in the presence of a compassionate adult

whom” the child “can trust.” See People v. Taylor, 66 Mich.App. 456, 239

N.W. 2d 627 (1976); see also Sparks v. State, 172 Ga.App. 891, 324 S.E. 2d

824, 825 (1984) (admissibility of child’s statement not dependent upon “any

arbitrary time, . . . but is left to the sound discretion of the court in deter-

mining . . . whether declarations meet the requirements of being free from

‘all suspicion of device or afterthought’ ”). See generally 89 A.L.R. 3d 102

(1979 & Supp.1987).

fa

(Blackmun, J., dissenting), see United States v. Hines, supra,

we are satisfied that we do not impinge upon its awesome

guarantees by holding that long-established, well-recognized

exceptions to the hearsay rules, such as “excited utterances,”

are so inherently reliable as to be admissible and, thus, con-

form to the constitutional guarantee of confroniation. See

United States v. Dunlap, Dkt. No. 53393, __ M.J. _ (C.M.A.

September 1987). Under such circumstances, we are also con-

vinced that a showing of unavailability is not required,

although we prefer that every reasonable effort be made to

ensure the appearance of the witness. United States v. Inadi,

475 U.S. 387, 106 S.Ct. 1121, 89 L.Ed.2d 390 (1986); Ohio v.

Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980).

Furthermore, here, as in United States v. Hines, supra, “ap-

pellant’s admissions so confirm the reliability of the

declarant’s statements, at least to the extent of actual cor-

roboration, that our misgivings about ‘afford{ing] the trier of

fact a satisfactory basis for evaluating the truth of the prior

statement,’... are... extinguished.” Jd. at 137-38 (footnote

omitted), citing California v. Green, 399 U.S. 149, 161, 90

S.Ct. 1930, 1936, 26 L.Ed.2d 489 (1970).

Let there be no doubt, however, that this Court favors con-

frontation, and this case should be read very narrowly.

United States v. Hines; supra; United States v. Cokeley, 22

M.J. 225 (C.M.A.1986). But, we recognized that “[tjhere is a

real world as well as a theoretical one,” Lee v. Illinois, supra

at 2066. When a child reports sexual abuse to a trusted school

counselor the first thing the morning after it has happened,

in a highly-agitated and emotional condition, and, later, after

being warned of his constitutional rights to remain silent and

to engage the services of a lawyer, the alleged defendant con-

fesses to the very acts of which the child has complained, it is

time to apply real-world standards and uphold his

conviction.‘

The decision of the United States Army Court of Military

Review is affirmed.

‘ Although Chief Judge Everett may be technically correct that the vic-

tim did not uncontrollably scream out her complaint about her father within

minutes after the attack, his perception of how excitement manifests itself

a

8a

SULLIVAN, Judge (concurring in the result):

I would affirm the conviction even without the challenged

hearsay statements. Appellant’s sworn voluntary confession

was sufficiently corroborated by his admitted presence at the

scene of the incident that night and by his daughter’s agitated

demeanor the morning after the incident. Mil.R.Evid. 304(g),

Manual for Courts-Martial, United States, 1969 (Revised edi-

tion); United States v. Yeoman, 25 M.J. 1 (C.M.A.1987). In

any event, this girl victim was under a gun threat by her

in adolescent girls is, in my opinion, incorrect. The “stress of excitement”

can linger long after a traumatic episode and not manifest itself until the

child is in the company of friends, confidants, teachers, ministers, or others

they trust. Is it written in stone that every female (or male for that matter)

must or will react in a prescribed manner to a given situation? Of course

not. For example, if three people happen to see a fatal accident, one might

want to get a closer look, one might pass out immediately and the third

might become hysterical or sick. Can any man comment on how or what a

female feels when she’s sexually assaulted — just as males cannot comment

on the pain of childbirth? Add to that the fact that a girl is assaulted by her

own father, a person to whom she is supposed to look for love, guidance,

| protection, and care, and only God knows what she will do—some have

been known to never say a word until years have passed, and sadly, some

commit suicide. Commonwealth of Va. v. Paul J. Kauffman, Crim. No.

18055 (13-year-old girl took her own life by jumping into the path of oncom-

ing train; during investigation by Prince William County authorities to

determine why this child would commit suicide, her personal diary was un-

covered, wherein she had made numerous entries describing sexual

assaults upon her by her father; defendant was tried by jury and convicted

on Jan. 9, 1987; case has been appealed to the Court of Appeals for the

Commonwealth of Virginia). Silence does not mean they were not

traumatized.

- Here, the communication with the school counselor, a person who knew

the girl well enough to detect substantive differences in her demeanor, was

made at the first opportunity this young girl had to “utter” her complaint.

The fact that she did not appear at trial does not render her statements

false. Theoretically, the lapse of time between the date of the incident and

the trial was sufficient to permit this young girl to be pressured in various

ways not to testify, i.e., she continued to reside at home and could see first-

hand the stress placed on the family unit by appellant’s arrest and for-

theoming trial. This could by itself, cause a young girl to bolt as this one

did.

Although it may be more intellectually honest to fit this evidence into

Mil.R.Evid. 803(24), there is ample authority to support its admission as an

“excited utterance.” See n. 3, supra.

nani

9a

father when she made the statement to Mr. McGee.

Mil.R.Evid. 803(2).

EVERETT, Chief Judge (dissenting):

I

The alleged victim—appellant’s stepdaughter —did not ap-

pear at the trial; and, apparently, no effort was made by the

Government to secure her presence. In her absence, the pros-

ecution, over strenuous defense objection, introduced in

evidence several out-of-court statements by her on the day

after the alleged offense. The first was to a high school

counselor, Mr. McGee; the next was in the presence of Mr.

McGee and a school nurse, Mrs. Frank; and finally there was

a written sworn statement to agents of the Criminal In-

vestigation Command (CID). Both the principal opinion and

the Court of Military Review hold that the latter two

statements were inadmissible. I fully agree. However, I am at

odds with their conclusion that the first statement to Mr.

McGee was admissible as an excited-utterance hearsay excep-

tion under Mil.R.Evid. 803(2), Manual for Courts-Martial,

United States, 1969 (Revised edition).

The rationale of this exception is “that persons are less like-

ly to have concocted an untruthful statement when they are

responding to the sudden stimulus of ‘a startling event.’”

United States v. LeMere, 22 M.J. 61, 68 (C.M.A. 1986). Unlike

the requirement under the original version of the 1969

Manual for Courts-Martial (para. 1426), which authorized ad-

mission in evidence of a declarant’s “spontaneous exclama-

tion,” there is no requirement under the Military Rules of

Evidence of “independent evidence of the startling event

which gave rise to” the excited utterance. See United States v.

Sandoval, 18 M.J. 55, 62 (C.M.A.1984). However, the excited

utterance must occur “while the declarant was under the

stress of excitement caused by the event or condition.”

United States-v. LeMere, supra at 67.

In LeMere this Court agreed with the Court of Military

Review that a statement made by a 3-and-a-half-year-old

daughter to her mother the morning after the alleged sodomy

could not qualify as an excited utterance, because the

declarant clearly was no longer “under the stress of excite-

10a

ment” after a 12-hour lapse of time. In the present case, it is

even more difficult than it would have been in LeMere to

justify reception of the statement, because the alleged victim

was 13 years of age and probably would be less likely than a

younger child to sustain for a long period any excitement

resulting from the alleged event.*

When the girl had first come in to see Mr. McGee, she had

been “very quiet, subdued,” rather than excited. Then, over

an hour and a half passed between the time that she first ap-

proached Mr. McGee and asked to speak with him and when

she finally talked with him. Thus, there was ample opportuni-

ty for reflection; and so the latter conversation with this

counselor clearly does not comply with the rationale of an

“excited utterance” — namely, that if someone makes a state-

ment about an emotional event before having an opportunity

to reflect, it is likely to be truthful. When she did commence

the conversation, it began not with a statement but with the

question whether “the father [is] supposed to be the first one

to have sex with you?” Only when Mr. McGee asked why she

was inquiring, did she voiunteer her accusations against ap-

pellant. According to Mr. McGee, she began crying later in

the interview; but it would be bootstrapping to reason that

excitement generated by telling about an event can give rise

to the “excited utterance” contemplated by Mil.R.Evid.

803(2). Subsequently, when Mrs. Frank, the school nurse,

was present, the girl was at times very calm and staring off

into space.

If the statement to Mr. McGee was inadmissible, almost

nothing is left of the Government’s case. Judge Sullivan

refers to appellant’s “admitted presence at the scene of the in-

cident that night and... his daughter’s agitated demeanor

the morning after the incident.” However, I perceive little

significance in Arnold’s “presence” in the home where he and

his daughter lived; and I am not sure what was the “agitated

demeanor” and why it should be given much weight.

* As I have commented elsewhere, “Judge Clause apparently believed

that for a small child excitement can continue much longer than for an

adult.” United States v. LeMere, 22 M.J. 61, 68 (C.M.A.1986); see United

States v. LeMere, 16 M.J. 682, 688 (A.C.M.R.1983) (Clause, S.J., con-

curring.)

lla

Of course, the issue is not one of the sufficiency of evidence

to corroborate a confession but instead whether an accused

has been prejudiced by reception of inadmissible evidence. It

has not even been argued to this Court that, if the statement

to Mr. McGee was inadmissible, error in receiving it was not

prejudicial. While I do not believe such an argument has

merit, it would seem that, before appellant’s conviction is af-

firmed on this ground, the case should be remanded to the

Court of Military Review for consideration of the issue of pre-

judice.

II

In my view, even if the statement to Mr. McGee was prop-

erly admitted-as Judge Cox and the Court of Military

Review believe is true—appellant is still entitled to a retrial

because of the erroneous admission of the other state-

ments — especially the girl’s detailed written statement to the

CID.

Here, unlike LeMere, the alleged victim did not testify at

trial and so could not be observed by the factfinder. Cf.

United States v. White, 25 M.J. 50 (C.M.A.1987) (Everett,

C.J., concurring). No showing has been made that she was

unavailable; and, since she had apparently attempted to

repudiate her pretrial statements, the Government probably

was quite content not to have her testify. Her out-of-court

statements do not fall within any established hearsay excep-

tion.

Accordingly, any error in admitting the extrajudicial

statements was of constitutional dimensions and _ trans-

gressed appellant’s right of confrontation. Consequently, the

test for affirmance is whether the appellate court is con-

vinced beyond a reasonable doubt that the accused was not

prejudiced by the error at trial. United States v. Remai, 19

M.J. 229 (C.M.A.1985). ,

Under such a test, I cannot see how Arnold’s conviction can

be affirmed. Indeed, if the statement to Mr. McGee was inad-

missible, I cannot understand how the conviction could be

Fie 12a

upheld under any harmless error test with which-I am

familiar.

Ill

In closing, I emphasize that I abhor child abuse as much as

~ anyone; and I recognize the difficulties a prosecutor must

face in such cases. However, I also recognize that children

sometimes make false accusations of sexual abuse and that

even a confession is not conclusive evidence of guilt. The

rights of a child victim are important; but so, too, are the con-

stitutional rights of a criminal defendant, especially when

faced with accusations of committing crimes which stir such

deep feelings as these.

13a

APPENDIX B

UNITED STATES ARMY COURT OF

MILITARY REVIEW

CM 442627.

UNITED STATES, APPELLEE,

Vv.

SPECIALIST FIVE CHARLES ARNOLD, SSN

253-74-8023, UNITED STATES ARMY, APPELLANT.

30 May 1984.

Captain Mark W. Harvey, JAGC, argued the cause for

appellant. With him on the brief were Colonel William G.

Eckhardt, JAGC, Lieutenant Colonel Arthur L. Hunt, JAGC,

Major Robert C. Rhodes, Major Paul J. Luedtke, JAGC, Ma-

jor Robert M. Ott, JAGC, Captain Barry Rothman, JAGC,

and Captain Michael T. Kelly, JAGC.

Captain Edmond R. McCarthy, Jr., JAGC, aruged the

cause for appellee. With him on the brief were Colonel James

Kucera, JAGC, Lieutenant Colonel John T. Edwards, JAGC,

Major Patrick M. Flachs, JAGC, and Captain Glenn D.

Gillett, JAGC.

Before HANSEN, SU-BROWN, and COKER, Appellate

Military Judges.

OPINION OF THE COURT

COKER, Judge:

Appellant was charged with committing indecent liberties

and attempted carnal knowledge of his thirteen year old

daughter in violation of Articles 134 and 80, Uniform Code of

Military Justice, 10 U.S.C. 934 and 880 (1976), and of rape of

a fellow soldier in violation of Article 120, Uniform Code of

Military Justice, 10 U.S.C. 920 (1976). He pleaded not guilty

to all charges, but was found guilty by a general court-martial

l4a we

of officer and enlisted members of the indecent liberties of-

fense. The confinement portion of his adjudged sentence of a

bad-conduct discharge, confinement at hard labor for five

years, total forfeitures, and reduction to Private F-1 (sic) was

reduced by the convening authority to three years, but other-

wise was approved. The evidence supporting his conviction

includes his confession and the statements his daughter made

to (1) a school counselor; (2) a school nurse; and (3) an agent of

the Criminal Investigation Command (CID). Of thirteen

assignments of error by appellant, six relate to the ad-

missibility of the three statements by his daughter. While this

Court finds that two of the statements were admitted er-

roneously, we find no prejudice.

On November 5, 1981, at approxiamately 2130 hours, the

incident involving the appellant and his daughter occurred.

At 0820 hours the next morning, the daughter asked to speak

to a school counselor. A conversation with the counselor took

place at approximately 1000 hours and lasted for about one

hour. Without benefit of leading questions or prompting, she

detailed the incident of the previous evening. From 0820

hours and through the period of the conversation, her emo-

tional reactions and appearance were distinctly abnormal.

The school nurse was called in by the counselor and the

daughter repeated her story. Subsequently, she was taken to

the CID where she executed a sworn, written statement that

again repeated the basic information she had given the

counselor. The daughter was not called as a witness at the

trial and all three statements were admitted into evidence,

the first two as excited utterances under Rule 803(2), Military

Rules of Evidence [hereinafter cited as Mil.R.Evid.], and the

written statement under Rule 803(24), Mil.R.Evid., the so

called residual hearsay exception.

Under the particular facts and circumstances of this case,

we find that the daughter’s unsolicited and unquestioned

statement to her counselor related to a startling event and

was made by her while still under the stress of excitement

caused by that event. Such declaration was, therefore, ad-

missible at appellant’s trial under Rule 803(2), Mil.R.Evid.

United States v. Urbina, 14 M.J. 962 (A.C.M.R.1982), pet.

lorem Wan eB

15a

denied, 15 M.J. 380 (C.M.A.1983). The facts do not support

the same conclusion as to the declaration to the school nurse.

While the two declarations were part of a continuous episode,

the second was more a result of the counselor’s action in ini-

tiating the discussion with the nurse and the statement more

a result of their urgings and questions. Yet, we perceive no

prejudice to appellant. The second declaration was basically a

repetition of the first one, and therefore, was only cumulative

in effect.!

The statement to the CID does not fall within the meaning

or intent of Rule 803(24), Mil.R.Evid. Initially, the Court

questions whether the written out-of-court statement of a

victim-witness, who is available, is admissible under any cir-

cumstances under Rule 803(24), Mil.R.Evid. The general

heading of Rule 803, states that the unavailability of the

declarant is not a pre-requisite for admissibility. Yet, fifteen

of the exceptions pertain to some type of records and not the

personal testimony of a declarant-witness. Three pertain to

reputation testimony where the declarant must be present

and subject to cross-examination as to their opinion. Three

pertain to impressions, intent and memory and the declarant

again must be present and subject to cross-examination as to

the basis of their testimony. Only two, excited utterances and

medical diagnosis, permit the use of a declarant’s personal

out-of-court statement. Both recognize the peculiarity of cir-

cumstances surrounding such declarations provide strong

circumstantial guarantees of trustworthiness. The re-

quirements in Rule 803(24), Mil.R.Evid., as to notice, par-

ticularities, and reasonable efforts, when considered in the

context of the total rule, militate strongly against the govern-

ment position that mere absence, as opposed to unavailabili-

ty, of a declarant is sufficient to admit the personal and out-

1 We note in addition that this second declaration, with the proper founda-

tion, may well have been admissible under Rule 803(4), Military Rules of

Evidence, as a statement made for medical diagnosis and treatment. See

Army Regulation 608-1, Personnel Affairs, Army Community Services

Program, para. 7-5, (15 May 1983).

l6a

of-court statement of such a declarant. The rule, in context,

requires either the in-court testimony of the declarant to pro-

vide a basis for admissibility, peculiar circumstances that

guarantee trustworthiness, or the unavailability of the

witness. The specific language of Rule 803(24)(B)

Mil.R.Evid., does indicate some necessity concerning

availability. To accept the further government argument that

a sworn, contemporaneous statement to the police is

automatically more probative and trustworthy than in-court

testimony would be a rejection of the American system of

criminal justice as embodied in the fourth, fifth, and sixth

amendments.

In the opinion of the Court, the only basis for the ad-

missibility of the daughter’s statement to the CID, under the

facts and circumstances of this case, was Rule 804(b\X5),

Mil.R.Evid. This exception to the Hearsay Rule appears

specifically designed to address the problem of family

members who are witnesses to an intra-family criminal of-

fense. This rule requires a govenmental showing of

unavailability of the witness. In the case before the Court, the

government failed utterly to show unavailability. Indeed, the

record contains no evidence that the government used any of

the normal prosecutorial or judicial means available to secure

the presence of the witness, even though the trial judge of-

fered the use of his judicial authority to do so.

However, as was the declaration to the school nurse, the

statement to the CID was cumulative in content and effect. It

provided no additional evidence as to the offense. The

government fully proved its case beyond a reasonable doubt

through the appellant’s confession and the corrobative

evidence of the declaration to the school counselor. We find

that the erroneous admission of the two statements did not

materially prejudice the substantial rights of the appellant. In

determining that his rights were not abridged, we note, the

failure of appellant to request the presence of the witness,

the failure to object to her absence, and the failure to raise

any constitutional argument.

The remaining assignments of error are not meritorious.

The findings of guilty and the sentence are affirmed.

Chief Judge HANSEN and Judge SU-BROWN concur.

US. GOVERNMENT PRINTING OFFICE 1987— 196-655'62012