Opposition Brief — Arnold v. United States

No. 87-832 ) | JAN 22 1988 |

ae JR.

LERK

—

In the Supreme Court of the Cnited| States

OcTOBER TERM, 1987

CHARLES ARNOLD, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF MILITARY APPEALS

BRIEF FOR THE UNITED STATES IN OPPOSITION

CHARLES FRIED

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

NORMAN G. COOPER

Col., JAGC, USA -

GARY F. ROBERSON 2

Lt. Col., JAGC, USA

GARY L. HAUSKEN

Capt., JAGC, USA

JOHN L. Ross

Capt., JAGC, USA

DONALD W. HITZEMAN

Capt., JAGC, USA

Appellate Government Counsel

Government Appellate Division

United States Army Legal Services Agency

Falls Church, VA 22041-5013

—r

QUESTION PRESENTED

Whether the admission as an excited utterance of

statements made by petitioner’s daughter to her school

counselor violated the Confrontation Clause of the Sixth

Amendment,

(I)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Bourjaily v. United States, No. 85-6725 (June 23, 1987) .. 9

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

Dutton v. Evans, 400 U.S. 74 (1970) .................. 8

Haggins v. Warden, 715 F.2d 1050 (6th Cir. 1983), cert.

EE 6

McLaughlin v. Vinzant, 522 F.2d 448 (ist Cir.), cert.

IS SE OO ce ca sce ccanccces 6

Ohio v. Roberts, 448 U.S. 56 (1980) ................... 7,8

Puleio v. Vose, 830 F.2d 1197 (Ist Cir. 1987) ........... 6

Tennessee v. Street, 471 U.S. 409 (1985) ............... 8

United States v. Cree, 778 F.2d 474 (8th Cir. 1985) ...... 6

United States v. Inadi, 475 U.S. 387 (1986) ............. 7,8

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

cert. denied, 450 U.S. 1001 (1981) .................. 6

United States v. Moore, 791 F.2d 566 (7th Cir. 1986) .... 6

Constitution, statute and rules:

U.S. Const. Amend. VI (Confrontation Clause) ...... 5, 7, 8,9

Uniform Code of Military Justice, art. 134, 10 U.S.C.

eS ss ea a's bib w acess VK pbc Od Oe oe 1-2

Mil. R. Evid.:

NEE a a a a a 2

EAGER ne Oe ae a 4,5

a ns dion eka tia valine © 0K 0-4 4

Miscellaneous:

C. McCormick, Handbook of the Law of Evidence

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Jn the Supreme Court of the United States

OCTOBER TERM, 1987

No. 87-832

CHARLES ARNOLD, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF MILITARY APPEALS

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the Court of Military Appeals (Pet.

App. la-12a) is reported at 25 M.J. 129. The opinion of

the Army Court of Military Review (Pet. App. 13a-16a) is

reported at 18 M.J. 559.

—

JURISDICTION

The judgment of the Court of Military Appeals was

entered on September 30, 1987. The petition for a writ of

certiorari was filed on November 23, 1987. The jurisdic-

tion of this Court is invoked under 28 U.S.C. (Supp. III)

1259(3).

STATEMENT

Petitioner, a member of the United States Army, was

tried by a general court-martial at Mannheim in the

Federal Republic of Germany. He was convicted of taking

indecent liberties with and committing indecent acts upon

his daughter, a child under the age of 16, in violation of

Article 134 of the Uniform Code of Military Justice

(1)

tw

(UCMJ), 10 U.S.C. 934. He was sentenced to confinement

for five years, forfeiture of his pay, a reduction in rank,

and a bad conduct discharge. The convening authority

reduced the period of confinement to three years, but

otherwise approved the findings and sentence. The Army

Court of Military Review affirmed the findings and

sentence (Pet. App. 13a-16a). The Court of Military Ap-

peals affirmed (id. at la-12a).

1. On November 13, 1981, petitioner orally confessed

to having sexually molested his teenage daughter, Charise.

He also provided a written, sworn, and signed confession

to an agent of the Army’s Criminal Investigation Division

(CID) (GX 4; Tr. 200-202). Petitioner admitted that he

had entered his daughter’s bedroom on the night of

November 5, intending to teach her about sex and to have

sexual intercourse with her (/bid.). He acknowledged that

he had rubbed her thigh with his hand and pulled his penis

from his trousers, but he said that he left the room when

his daughter started to cry and just before his wife got out

of the shower. Petitioner also explained that, a short time

after he went to bed, he heard Charise crying, he put his

clothes on, and he went to check on her. According to

petitioner, his oldest son was standing by his bedroom

door and said that he heard Charise crying. Petitioner said

that he re-entered Charise’s bedroom; she said that

nothing was wrong, and petitioner returned to his bed.'

To corroborate petitioner’s confession, the government

introduced statements made by his daughter to her school

counselor, to a nurse, and to a CID agent on the morning

after the assault. At the first opportunity on the morning

atter the assault, Charise contacted her school counselor

' Petitioner recanted his confession at trial (Tr. 240-243).

2? Under military law, a defendant's contession may be considered as

evidence of his guilt only if independent evidence, direct or cir-

cumstantial, sufficiently corroborates the essential facts of the contes-

sion to justify an inference that it is truthtul. Mil. R. Evid. 304(g).

3

and attempted to speak with him. According to the

counselor, Charise was “very, very agitated” at that time,

and her physical and emotional appearance was very dif-

ferent from what it normally was. Charise was normally

“very bubbly,” but that morning she seemed agitated and

“very, very subdued” (Tr. 152; Pet. App. 3a).

Charise went on to ner first two classes and then re-

turned to the counselor’s office. She was very quiet and

subdued. Her first words to the counselor were, “Is the

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

The counselor asked, “Why are you asking this?” That

question, he testified, “just opened the gate” (Tr. 152-153).

The counselor said that, without leading questions or

prompting, Charise broke into tears and powied out the

details of her father’s assault (Tr. 155; Pet. App. 3a).

Charise told the counselor that, on the previous night,

petitioner accosted her in the kitchen of their home by

fondling her pubic area (Tr. 153-154). Charise asked what

was going on, and petitioner responded, “I just wanted to

check out your reaction with boys” (Tr. 154). Later that

night, petitioner entered Charise’s bedroom after she had

gone to bed. Petitioner told her to remove her underpants,

and she obeyed. He then left the room because his wife

was apparently just getting out of the shower. He in-

structed his daughter to leave her underpants off (Tr.

154-155, 170). Petitioner returned to his daughter’s

bedroom later, removed his penis from his pants, got on

top of her, and attempted to have sexual intercourse with

her. He told her that a father was supposed to be the first

one to have sex with his daughter (Tr. 156-157). A noise

from his wife’s room caused petitioner to leave Charise’s

room. Before leaving, however, petitioner warned Charise

that she was not to tell anyone about what he had done,

and he reminded her that he had a gun (Tr. 157). Charise

was crying as her father left (Tr. 156-157).

4

After Charise related the events of the previous evening,

she was asked to repeat her story to the school nurse. Later

that day, Charise gave a consistent sworn statement to a

CID agent (GX 5). Charise recanted that statement on

December 22 (GX 6).

2. At trial, Charise’s statement to the school

counselor, the nurse, and the CID agent were offered in

evidence to corroborate petitioner’s confession. Over vb-

jection, the trial judge admitted the statements to the

school counselor and to the nurse under Mil. R. Evid.

803(2) as excited utterances (Tr. 107).+ Also over objec-

tion, the trial judge admitted Charise’s statement to the

CID agent under Mil. R. Evid. 803(24), the residual hear-

Say exception (Tr. 188-189, 192). Charise did not testify

for the prosecution, nor did petitioner call her to disclaim

the truth of any of her statements.

3. The Army Court of Military Review affirmed (Pet.

App. 13a-16a). The court held that Charise’s statements to

her school counselor were properly admitted as excited ut-

terances (/d. at 14a). The court also held that it was error

for the trial judge to admit the statements Charise made to

the school nurse and to the CID agent, but that, because

those statements were cumulative, the error was harmless

(id. at 14a-16a).

4. The Court of Military Appeals affirmed by a di-

vided vote (Pet. App. 7a). In an opinion announcing the

judgment of the court, Judge Cox concluded that

‘Judge Cox noted that Charise lived at home during the period

prior to the trial and that “[t}heoretically, 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” (Pet. App. 8a

n.4). In fact, the prosecutor represented to the trial judge on the

morning of trial that he could not find Charise even after checking het

home and school (Tr. 102; see also Tr. 142-144).

* Mil. R. Evid. 803(2) was adopted w thout change trom the Federal

Rules of Evidence.

Charise’s unsolicited and spontaneous statements to her

school counselor while she was “very, very agitated” and

“under the threat of being shot by her father” constituted

excited utterances (id. at 6a-9a). Judge Cox added that, as

a long-established and well-recognized exception to the

hearsay rules, the exception for excited utterances is so

firmly rooted that statements introduced under that excep-

tion are sufficiently reliable to satisfy the Confrontation

Clause even in the absence of cross-examination of the

declarant (id. at 7a). Under such circumstances, he con-

cluded, the proponent of the evidence need not show that

the witness is unavailable to testify at trial (/bid.). Judge

Sullivan concurred in the judgment (id. at 8a-9a). He

stated that petitioner’s confession was sufficiently cor-

roborated by other circumstantial evidence so that his con-

viction could be affirmed without addressing the ad-

missibility of Charise’s excited utterances (/d. at 8a). Judge

Sullivan also concluded, however, that Charise’s

statements to her school counselor constituted excited ut-

terances under Mil. R. Evid. 803(2) because of her father’s

threats (Pet. App. 8a). Chief Judge Everett dissented. In

his view, Charise’s statements to the school counselor were

not excited utterances, because of the delay between the

time of the incident and the time that she made the

statements (id. at 9a-1 1a).

ARGUMENT

Petitioner claims that his daughter’s statements to her

school counselor were admitted into evidence in violation

of the Confrontation Clause of the Sixth Amendment.

Petitioner’s claim, however, is quite narrow. Petitioner

does not maintain that his daughter’s statements were not

excited utterances,’ nor does he contend that excited ut-

> The lapse of time between the crime and Charise’s statements,

“although relevant|,] is not dispositive” of the question whether her

6

terances do not fit within a firmly-rooted exception to the

hearsay rule.® Instead, petitioner argues that his

daughter’s statements should not have been admitted,

because the government failed to show that she was

unavailable to testify at trial and because her statements

were not sufficiently reliable. Neither claim has merit.

1. Although petitioner now contends that the govern-

ment should have been required to prove that his daughter

was unavailable to testify at trial before the trial court ad-

mitted Charise’s statements to her school counselor, peti-

tioner did not object to the admission of her statements on

that ground. Moreover, on the morning of trial the prose-

cutor represented to the court that he could not find

Charise, who was living at home at the time, even after

having two other government witnesses (the school

counselor and nurse) look for her at home and at school

(Tr. 102; see also Tr. 142-144). Thus, the record suggests

that Charise was in fact unavailable to testify, and if peti-

tioner had objected to her testimony on the ground that

she was available, the court would have been justified in

' making a finding of unavailability. In any event, the

government was not required to prove that Charise was

unavailable before her statements to her school counselor

could be admitted at trial.

statements fit within the excited utlerance exception to the hearsay

rule. United States y. lron Shell, 633 F.2d 77, 85 (8th Cir. 1980), cert.

denied, 450 U.S. 1001 (1981).

® The courts of appeals have agreed that the excited utterance ex-

ception is firmly rooted in the common law. Puleio v. Vose, 830 F.2d

1197, 1205-1206 (Ist Cir. 1987) (citing a long history of cases over the

past 200 years approving the excited utterance exception); United

States v. Moore, 791 &.2d 566, 574 (7th Cir. 1986); Hageins v.

Warden, 715 F.2d 1050 (6th Cir. 1983), cert. denied, 464 U.S. 1071

(1984); McLaughlin v. Vinzant, $22 F.2d 448, 450 (Ist Cir.), cert.

denied, 423 U.S. 1037 (1975); see also Untied States v. Cree, 778 F.2d

474, 502 (8th Cir. 1985) (Oliver, J., dissenting),

7

Petitioner relies (Pet. 6) oa Ohio v. Roberts, 448 U.S. 56

(1980), as support for his claim that the government

should have been required to prove that his daughter was

unavailable. Roberts, however, does not require proof of

the declarant’s unavailability as a prerequisite to the ad-

mission of every out-of-court statement. Roberts involved

the question whether the admission at trial of testimony

given at a preliminary hearing violated the Confrontation

Clause, and the cases cited and discussed in the Court’s

opinion involved the introduction at trial of testimony

given at a prior judicial proceeding. 448 U.S. at 65, 74.

The statement in Roberts on which petitioner relies (Pet.

6, quoting Roberts, 448 U.S. at 66)—that an out-of-court

statement is inadmissible unless the declarant is shown to

be unavailable — must be read in light of the facts of that

case. As this Court subsequently explained in United

States v. Inadi, 475 U.S. 387, 394 (1986) (citations and

footnote omitted), “Roberts simply reaffirmed a long-

standing rule * * * that applies unavailability analysis to

prior testimony. Roberts cannot fairly be read to stand for

the radical proposition that no out-of-court statement can

be introduced by the government without a showing that

the declarant is unavailable.”

Although petitioner claims that /nadi stands only tor

the proposition that co-conspirator declarations can be in-

troduced without the need to show that the declarant is

unavailable, the rationale of Jnadi is broader than that.

The Court in /nadi distinguished prior testimony — which

requires a showing of unavailability — from other kinds of

testimony, not just from co-conspirator declarations.

While former testimony “often is only a weaker substitute

for live testimony,” the Court explained, other exceptions

to the hearsay rule have “independent evidentiary

significance of [their] own” (475 U.S. at 394).

8

That analysis applies to excited utterances. Like a co-

conspirator declaration, an excited utterance “often will

derive its significance from the circumstances in which it

was made.” /nadi, 475 U.S. at 395. As in the case of a co-

conspirator declaration, an excited utterance may be even

more reliable than subsequent in-court testimony, because

the relationship between the parties at the time of trial may

significantly affect the reliability of the evidence the

declarant gives from the stand. Thus, like co-conspirator

declarations, excited utterances “derive much of their

value from the fact that they are made in a context very

different from trial, and therefore are usually ir-

replaceable as substantive evidence.” 475 U.S. at 395-396.

Concerns Over reliability do not justify requiring the

government to prove that a declarant is unavailable before

the trial court may admit excited utterances. The primary

function of the Confrontation Clause is to enhance the

reliability of the factfinding process at trial.’ The

historical process of defining exceptions to the hearsay

rule has identified classes of out-of-court statements that

are particularly reliable. For that reason, the Court has ex-

plained that “[rJeliability can be inferred without more ina

case where the evidence falls within a firmly rooted hear-

say exception.” Roberts, 448 U.S. at 66.

Excited ultterances have historically been admissible as

excepuions to the hearsay rule, because they are made

under circumstances indicating that they are sincere and

are Ordinarily made before a person develops a motive to

fabricate. See C. McCormick, Handbook of the Law of

Evidence § 297, at 704 (E. Cleary ed. 1972). For those

reasons, excited utterances carry sulficent guarantees of

“The decisions of this Court make it clear that the mission of the

Controntation Clause is to advance a practical concern for the ac-

curacy of the truth-determining process” (Dulion vo Evans, 400 U.S

74, 89 (1970) (plurality opinion)). See also Jennessee \. Street, 471

U.S. 409, 415 (1985); Roberts, 448 ULS. at 66.

oor

9

reliability that the additional safeguard of cross-

examination is not constitutionally required. Excited ut-

terances are admissible without a showing of unavailabili-

ty, not because the Confrontation Clause is “a mere

codification of the rules of hearsay,” but because an ex-

cited utterance is one example of the situation where “the

overlap is complete” between the constitutional provision

and the hearsay rules (California v. Green, 339 U.S. 149,

155 (1970)), and cross-examination is no! necessary to in-

sure reliability.

2. Although petitioner concedes that the excited ut-

terance exception is a firmly rooted exception to the hear-

say rule (Pct. 9), he maintains that his daughter’s excited

utterance lacked sufficient indicia of reliability to satisfy

the Confront.tion Clause. That claim lacks merit. As this

Court explained in Bourjaily v. United States, No. 85-6725

(June 23, 1987), slip op. 10 (citation omitted), “Roberts

itself limits the requirement that a court make a separate

inquiry into the rehability of an out-of-court statement.

* * * [NJo independent inquiry into reliability is required

when the evidence ‘falls within a firmly rooted hearsay ex-

ception.’ ” In any event, even if the trial court was re-

quired to determine whether Charise’s statements to her

school counselor were trustworthy, petitioner’s own con-

fession provided powerful corroboration of his daughter’s

statements. Moreover, the evidence that Charise had suf-

fered some psychological trauma, along with the im-

pulsive, nondeliberative nature of her statements, also

tends to show that the statements were reliable. Finally,

there was no evidence that Charise had any motive to

fabricate her accusations. Under these circumstances,

Charise’s statements to her school counselor were suffi-

ciently reliable to justify their admission even though she

was not present at trial.

10

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

NORMAN G. COOPER

Col., JAGC, USA

GARY FF. ROBERSON

Lt. Col, JAGC, USA

GARY L. HAUSKEN

Caupt., JAGC, US-1

JOHN L. ROSS

Cupt., JAGC, USA

DONALD W. HITZEMAN

Capt., JAGC, USA

Appellate Governinent Counsel

Government ippellate Di mision

l nited States Ariny lL eval Services -lgenc\

JANUARY 1988