Petition for Writ of Certiorari — Slovacek v. United States

—

ie f ‘Tt, Supreme Court, U.S.

all > FILED

ERK

In the Supreme Court of the United States

OCTOBER TERM, 1987

Lous F. SLOVACEK, PETITIONER,

UNITED STATES, RESPONDENT.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

Colonel LEo L. Sera!

Captain HENry J. SCHWEITER

Defense Services Division

Office of the Judge Advocate

General of the Air Force

Bolling AFB

Washington, D.C. 20332

(202) 767-1562

Counsel of Record

Attorneys for Petitioner

QUESTIONS PRESENTED

1. Whether the petitioner’s sentence should be set

aside because juvenile records admitted into evidence

against him during the sentencing phase of trial were

obtained in violation of the due process clause of the Fifth

Amendment to the United States Constitution?

2. Whether the petitioner was denied due process of

law as required by the Fifth Amendment to the United

States Constitution when the Court of Military Appeals

held admission of petitioner’s juvenile records to be

harmless error?!

'These questions and this petition are presented to this Honor-

able Court pursuant to counsel's obligation to petitioner as mandated

by Article 70(c)(1) of the Uniform Code of Military Justice, 10 U.S.C.

§ $70(¢)(1) (Supp. ITT 1985), and United States v. Grostefon, 12 M.J.

431 (C.M.A. 1982); cf, Jones v. Barnes, 463 U.S. 745 (1983).

(1)

INDEX

Page

Opinions Below -_...--------- Sh hh SR Ee a l

Jurisdiction .......-.-----.-- ee Rp awe REN ae 2

Constitutional and Statutory Provisions 2

Statement of the Case —--_-- pied hacen as ; oes 2

Reasons for Granting the Writ __- as = j

dst eli cree a

TABLE OF AUTHORITIES

Cases:

Board of Liquor Commissioners vy. Pastore, 469 U.S.

cc ceemereininaeionaminninenenses : 6

Brown v. United States, 411 U.S. 223 (1973) _-.-------_-- 6

Chapman v. California, 386 U.S. 18 (1967)__------------- 6,7

Delaware v. Van Arsdall, 106 S.Ct. 1431 (196)__------_- 6,7

Fahy v. Connecticut, 375 U.S. 85 (1963) _----------------- 7

a ee cere, oer 0.c. 1 GGG?) ................................ 5

Griswold v. Connecticut, 381 U.S. 479 (1965) ...--------- 5

Jones v. Barnes, 463 U.S. 745 (1983)____-----_- PSD eee (1)

Rose v. Clark, 106 S.Ct. 3101 (1986)_____----.-------_--_-__- 6, 7,8

Thompson v. Estelle, 642 F.2d 996 (5th Cir. 1981) _----- fe)

United States v. Clay, 1 U.S.C.M.A. 74, 1 C.M.R. 74

SL Dane a Se a 5

United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982) — (J), 4

United States v. Hasting, 461 U.S. 499 (1983) _-------- 6

United States v. Slovacek, 21 M.J. 538 (A.F.C.M.R.

1985), aff'd, 24 M.J. 140 (C.M.A. 1986)__-__--------__- _ passim

Whalen v. Roe, 429 U.S. 589 (1977) __----------------------- 5

Constitutions and Statutes:

a aceeemeciontcecedinnmunns 2

28 U.S.C. § 12583) (Supp. III 1985) -.-.............._..... 2

Ee 8) ee 6

Uniform Code of Military Justice:

Article 59(a), 10 U.S.C. § 8$59(a) (1982).__..- 2,4,6

Article 67(h), 10 U.S.C. § 867(h) (Supp. ITT 1985) __ 2

(111)

IV

Table of Authorities—Continued:

Article 70(¢)(1), 10 U.S.C. §870(¢)(1) (Supp. III 1985)_. (I)

Ohio Rev. Code § 1347.01 - sa ee 5

Ohio Rev. Code § 2903.11 ..-..-...-- pea 3

Ohio Rev. Code § 2905.02 __..--.-.-------- 3

Ohio Rev. Code § 2911.01 __-.-.-.._.- - 3

Ohio Rev. Code § 2913.01 3

Ohio Rev. Code § 2923.11 ___- 3

Miscellaneous:

Comment, The Constitutional Right to Withhold Pri-

vate Information, 77 NW.U.L. Rev. 536 (1982) _______ 5

Comment, Harmless Error: Abettor of Courtroom Mis-

conduct, 74 J. Crim. L. & Criminology 457 (1983) __- &

Fed. R. Crim. P. 52(a) am 6

Ohio Op. Att’y Gen. No. 84-077 (1984) arene pm 5

Ohio R. Juv. P. 37(b) 2, 3,5

Rule for Courts-Martial 1001(b)(3) __--__- 4

Rule for Courts-Martial 1001(b)(3)(A) ae 4

Jn the Supreme Court of the GAnited States

OCTOBER TERM, 1987

Louis F. SLOVACEK, PETITIONER,

UNITED STATES, RESPONDENT.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

Louis F. Slovacek respectfully prays that a writ of cer-

tiorari issue to review the judgment of the United States

Court of Military Appeals entered in his case on June 8,

1987.

OPINIONS BELOW

The decision of the United States Air Force Court of

Military Review was issued on October 11, 1986. United

States v. Slovacek, 21 M.J. 538 (A.F.C.M.R. 1985). That

decision is reproduced in the Appendix to this Petition.

The decision of the United States Court of Military

Appeals is reported at 24 M.J. 140 (C.M.A. 1987), and is

reproduced in the Appendix.

(1)

2

JURISDICTION

The jurisdiction of this Court is invoked under 10

U.S.C. §867(h) (Supp. IIT 1985) and 28 U.S.C. § 1259(3)

(Supp. III 1985). The judgment of the Court of Military

Appeals was entered on June 8, 1987.

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

The Fifth Amendment provides:

No person shall be. . . deprived of life, liberty, or

property, without due process of law. . . .

Ruie 37(b) of the Ohio Rules of Juvenile Procedure

provides:

(B) Restriction on use of recording or transcript.

No public use shall be made by any person, including

a party, of any juvenile court record, including the

recording of a transcript thereof of any juvenile court

hearing, except in the course of an appeal or as autho-

rized by order of the court.

Article 59(a) of the Uniform Code of Military Justice

(“the Code”), 10 U.S.C. § 859(a) (1982) provides:

(a) A finding or sentence of a court-martial may not

be held incorrect on the ground of any error of law

unless the error materially prejudices the substantial

rights of the accused.

STATEMENT OF THE CASE

On March 6, 1985, petitioner was convicted by a genera!

court-martial at Homestead Air Force Base, Florida, on

charges of burglary, kidnapping, use of marijuana and

sexual misconduct with a minor. He entered mixed pleas

but was convicted on all charges and sentenced to con-

finement for life, a dishonorable discharge and other

accessory penalties.

At trial, the prosecutor sought to introduce into evi-

dence records of three juvenile adjudications pertaining

to the petitioner for the offenses of abduction, use of a

deadly weapon during a theft, and causing physical harm

by means of a deadly weapon during a theft.? (Prosecution

Exhibit 18, 19, 20; Appellate Exhibit III). (R. 81). The

defense counsel objected to the prosecution exhibits on

the basis that these records concerned “juvenile convic-

tions.” (R. 93, 94). The military judge admitted the

exhibits for the purpose of sentencing (R.95), but they

played no role in his deliberations with respect to the

petitioner's guilt or innocence.* (R. 91). The prosecutor

referred to the substance of these documents in his clos-

ing arguments on sentence. (R. 123, 128).

In order to obtain petitioner's juvenile records, the

assistant prosecutor had signed anu tendered a subnoena

duces tecum to the clerk of the Hamilton County, Ohio,

Court of Common Pieas, Juvenile Division. (Appellate

Exhibit II]). The clerk of that court had been unwilling to

release the records to anyone other than the judge presid-

ing over petitioner's trial, so the records were forwarded

to the trial judge with an enclosed letter from the clerk of

the Hamilton County Juvenile Court. (R. 96). In that

letter the clerk referenced the confidentiality provisions

of Ohio R. Juv. P. 37(b) and attached a photocopy of the

rule. (Appellate Exhibit III). Petitioner's trial defense

counsel objected to Appellate Exhibit III. (R. 95).

“Petitioner was found by the Hamilton County, Ohio, Court of

Common Pleas, Juvenile Division, to have violated Ohio Rev. Code

§§ 2903.11, 2905.02, 2911.01, 2913.01 and 2923.11. He was adjudged a

juvenile delinquent.

% Petitioner elected not to be tried by jury.

4

On appeal before the Air Force Court of Military

Review, petitioner contended, inter alia, that the trial

judge had erred by admitting the records of his juvenile

adjudications. The Court of Military Review held that

petitioner’s juvenile records were the functional equiv-

alent of a conviction but further determined that such

records were admissible before a court-martial when con-

sidering sentencing. 21 M.J. 538, 540-541 (A.F.C.M.R.

1985). The court nevertheless reduced petitioner's sen-

tence from confinement for life to sixty years. 21 M.J. at

541.

The Court of Military Appeals granted discretionary

review of petitioner's case on the issue of whether Rule for

Courts-Martial (R.C.M.) 1001(b)(3) precluded the intro-

duction in sentencing of petitioner's juvenile records. 22

M.J. 271 (C.M.A. 1986). That court found error in the

admission of this evidence because juvenile adjudications

did not equate to convictions within the meaning of

R.C.M. 1001(b)(3)(A). However, citing Article 59(a) of the

Code, the court found the error to be harmless. 24 M.J.

140 (C.M.A. 1987).

After oral argument at the Court of Military Appeals

but before the decision of that court, petitioner sought to

file by motion with the court an affidavit wherein he

purported to raise for the first time the issue that he was

denied due process of law in the manner in which his

juvenile records had been obtained. The motion was sub-

mitted pursuant to the authority of United States v.

Grostefon, 12 M.J. 431 (C.M.A. 1982). The Court of Mili-

tary Appeals denied petitioner’s motion. 24 M.J. 331

(C.M.A. 1987).

REASONS FOR GRANTING THE WRIT

I

Constitutional concepts of due process of law have long

been extended to members of the military. United States

v. Clay, 1 U.S.C.M.A. 74, 1 C.M.R. 74 (1951). This case

presents a novel application of traditional notions of due

process because the right implicated in a criminal setting

is analogous to the constitutional right of privacy.

In Griswold v. Connecticut, 381 U.S. 479 (1965), the

Supreme Court recognized a right of privacy which has

since been construed to embrace the right not to disclose

private information. Cf, Whalen v. Roe, 429 U.S. 589,

599-600 (1977). This right can be violated by governmental

collection and storage of personal data or by government

release of data to the public or to other governmental

agencies. See generally, Comment, The Constitutional

Right to Withhold Private Information, 77 NW.U.L. Rev.

536, 537 (1982). Because courts are part of the govern-

ment, their forced collection or release of personal data

may violate the constitutional right not to disclose private

information.

This Court has been sensitive to the need for due pro-

cess protections in conjunction with juvenile proceedings.

In re Gault, 387 U.S. 1 (167). So, too, has been the State of

Ohio, as shown by that state’s enactment of Ohio R. Juv. P.

37(b) and a statute to ensure controlled release of personal

information. Ohio Rev. Code § 1347.01 ef. seq.

In this case the petitioner claims that the express provi-

sions of Ohio R. Juv. P. 37(b) were violated by the release

of his juvenile recorus to the trial judge. The rule was

violated because it authorizes release of such records only

during the course of an appeal or as authorized by order of

the court. Cf, Ohio Op. Atty Gen. No. 84-077 (1984). Here,

petitioner contends there was no appeal and no court

order to justify the action of the Ohio Court in complying

with the subpoena. Such release of records denied him the

6

due process of law to which he was entitled.4 When condi-

tions such as this prevail, the threat to constitutional

standards of due process is self evident.

II

Every criminal defendant has the right to a fair trial in

accordance with principles of due process guaranteed by

the federal Constitution. However, the right to a fair trial

does not guarantee an error free trial. United States v.

Hasting, 461 U.S. 499, 508-09 (1983) (considering the

“human fallibility of the participants, there can be no such

thing as an error-free, perfect trial and. . . [the] Consti-

tution does not guarantee such a trial.”); see also, Dela-

ware v. Van Arsdall, 106 S.Ct. 1431, 1436 (1986); Brown

v. United States, 411 U.S. 223, 231-32 (1968). In recogni-

tion of this precept, military and other federal harmless

error statutes have been enacted. Article 59(a), U.C.M.WJ.;

10 U.S.C. §859(a) (1982); 28 U.S.C. § 2111 (1982); see

also, Fed. R. Crim. P. 52(a). These statutes essentially

preciude the reversal of convictions and sentence for

small errors or defects that have little, if any, likelihood

f having changed the result of trial.” Chapman v. Cal-

ifornia, 386 U.S. 18, 22 (1967); see, Rose v. Clark, 106

S.Ct. 3101, 3106 (1986). Curiously, these rules make no

distinction between constitutional errors and errors of

federal laws and rules.

In Chapman vy. California, supra, this Court shaped

the law of harmless constitutional error in criminal pro-

ceedings. There, the Court rejected the argument that all

federal constitutional errors, regardless of the facts and

4 Petitioner makes no comment with respect to whether any such

violation may have been mooted by the holding of the Court of

Military Appeals that admission of these records in evidence was

error. 24 M.J. at 140; see, Board of Liquor Commissioners v. Pastore,

469 U.S. 238, 240 (1985).

circumstances, must always be deemed _ harmful.

Reiterating the test first articulated in Fahy v. Connecti-

cut, 375 U.S. 85 (1963), the Court stated “[t]he question is

whether there is a reasonable possibility that the evi-

dence complained of might have contributed to the convic-

tion.” 386 U.S. at 23. To hold a constitutional error

harmless, a reviewing court “must be able to declare a

belief that it was harmless beyond a reasonable doubt.”

Id. at 24.

Since Chapman, the Court has gradually broadened

the use of harmless error analysis in the constitutional

context. Last term, in Delaware v. Van Arsdall and Rose

v. Clark, both supra, the Court took further steps in this

direction, finding that violations of the right to cross

examine a testifying witness and the right to a properly

instructed jury can constitute harmless errors. In Rose v.

Clark, specifically, Justice Powell, writing for the major-

ity, declined to include an erroneous jury instruction on

intent among those violations that, under Chapman

require automatic reversal because they “necessarily ren-

der a trial fundamentally unfair.” 106 S.Ct. at 3106. The

Court said “{I]f the defendant had counsel and was tried

by an impartial adjudicator, there is a strong presumption

that any other errors that may have occurred are subject

to harmless error analysis.” /d., at 3106-07. Thus, these

opinions indicate a willingness to apply harmless error

analysis to almost any constitutional violation not

explicitly exempted by Chapman as rendering a trial

fundamentally unfair.

Against this background, the petitioner contends that

the Court of Military Appeals denied him due process of

law and erred to his substantial prejudice by concluding

that the trial court’s consideration of his juvenile adjudica-

tions in the determination of the sentence he was to

receive constituted harmless error. See generally, Com-

8

ment, Harmless Error: Abettor of Courtreom Miscon-

duct, 74 J. Crim. L. & Criminology 457 (1983); but see,

Thompson v. Estelle, 642 F.2d 996 (5th Cir. 1981). As

described in the first part of this section, the error com-

plained of herein is, petitioner contends, of constitutional

dimensions. He contends that the improper acquisition

and introduction of his juvenile records abridged his basic

due process right to a fair trial.

Petitioner takes issue with the determination by the

Court of Military Appeals that this evidence was

cumulative with his confession. He avers that the detail of

the exhibits goes beyond the generic description of events

recited in his confession and directly exacerbated his sen-

tence. Petitioner subscribes to the view adopted by Jus-

tice Blackmun in his dissent in Rose v. Clark that “{a] trial

that was fundamentaly unfair at the time it took place. . .

cannot be rendered fundamentally fair in retrospect by

what amounts to nothing more than an appellate review of

the sufficiency of the evidence.” 106 S.Ct. at 3113 (Black-

mun, J., dissenting). The apparent interest in the outcome

determination function of the trial as expressed by the

majority opinion in that case has, petitioner submits,

eclipsed concern for the integrity of the process leading up

to the trial outcome.

The Court of Military Appeals overlooked the prejudice

inherent in the consideration of petitioner's juvenile rec-

ords. Moreover, no standard of analysis was articulated in

support of that court’s conclusion that the error was

harmless. Accordingly, the petitioner contends such a

conclusion was erroneous, and this case warrants further

examination by this Court.

9

CONCLUSION

For the foregoing reasons, the petition for writ of cer-

tiorari should be granted.

tespectfully submitted.

Colonel LEo L. SERGI

Captain HENRY J. SCHWEITER

Defense Services Division

Office of the Judge Advocate

General of the Air Force

Bolling AFB

Washington, D.C. 20332

(202) 767-1562

Counsel of Record

Attorneys for Petitioner

August 1987

APPENDIX A

UNITED STATES, Appellee,

Vv.

Louis F. SLOVACEK, Senior Airman,

U.S. Air Force, Appellant.

No. 54,049.

ACM 24800.

U.S. Court of Military Appeals.

June 8, 1987.

Accused, a senior airman, United States Air Force, was

convicted before a general court-martial, Arnold I. Persky, J.,

of kidnapping, sodomy, and wrongful use of marihuana, and he

appealed. The United States Air Force Court of Military

Review, 21 M.J.538, Hodgson, C.J., affirmed findings and sen-

tence except for confinement in excess of 60 years. Review was

granted. The United States Court of Military Appeals, Sul-

livanJ., held that: (1) juvenile adjudication was not “conviction”

for purposes of rule authorizing introduction of evidence of

military or civilian convictions of accused, and (2) erroneous

admission of evidence of juvenile adjudications of accused was

harmless.

Affirmed.

For appellant: Major Deborah A. Baker (argued); Colonel

Leo L. Sergi and Major William H. Lamb (on brief).

For appellee: Captain Mark Van Nuys (argued); Colonel

Kenneth R. Rengert (on brief); Lieutenant Colonel Donal F-

Hartman, Jr.; Major Thomas O. Maser, USAFR.

SULLIVAN, Judge:

Appellant was tried by a general court-martial composed of a

military judge alone March 6, 1985, at Homestead Air Force

Base, Florida. Pursuant to his pleas, he was found guilty of

kidnapping, sodomy, and wrongful use of marihuana, in viola-

tion of Articles 134, 125, and 112a, Uniform Code of Military

(la)

2a

Justice, 10 U.S.C. §§ 934, 925, and 912a, respectively. Con-

trary to his pleas, he was found guilty of one specification of

burglary, in violation of Article 129, UCMJ, 10 U.S.C. § 929.

Appellant was sentended to a dishonorable discharge, con-

finement for life, total forfeitures, and reduction to E-1. The

convening authority approved this sentence. The Court of Mili-

tary Review affirmed the findings and the sentence except for

confinement in excess of 60 years. 21 M.J. 538.

We granted review of the following issue:

WHETHER R.C.M. 10018(3) PRECLUDES THE

INTRODUCTION IN SENTENCING OF JUVENILE

RECORDS OF THE APPELLANT.

We hold that error occurred in the admission of this evidence at

appellant’s court-martial. Nevertheless, we find such error was

harmless. Art. 59(a), UCMJ, 10 U.S.C. § 859(a); Mil. R. Evid.

103, Manual for Courts-Martial, United States, 1984.

The facts pertinent to this appeal are not in dispute. After

smoking a marihuana cigarette and consuming large amounts

of alcohol, appellant drove to the on-base residence of a fellow

servicemember. He entered the house and abducted a 3-year-

old child. He then drove to an isolated area off-base, had the

child perform fellatio on him, and returned the victim to a

location near her home, at which time he was apprehended.

Three days later appellant executed a sworn statement

admitting. his actions with the child. In that confession,

appellant also gratuitously acknowledged prior acts of miscon-

duct while he was a juvenile living in Ohio. His admission as

evidenced in the record reads as follows:

Also, when I was 17 years old, I spent a year in a Juvenile

maximum security facility. I was arrested for assault. A

friend of my ALAN GOINES (unsure of last name), Were

out looking for girls, we saw a girl we knew from school

and asked her for a ride. She gave us the ride, and ALAN

ended up trying her up and telling her that we were going

to force her to have sex with us. I stopped ALAN from

doing anything. We were caught by the police, I went to

court and was sentenced. The incident occurred in Cincin-

‘

3a

nati, OH, in Nov 74. I was in 11 grade at the time. Alan was

15, and the girl, whose name I can’t remember, was 17.

The incident occurred at Hawthorne or Grand Street. At

the time I was living on Considine Street, and ALAN lived

two houses away. I don’t know where he is now. I have

thought about having sex with young girls age 11 and up;

however, I never have. I further state that I have had no

other sexual contact with [the child] or any other small

children.

During sentencing, copies of records from the Hamilton

County, Ohio, Court of Common Pleas, Juvenile Division, were

received as three prosecution exhibits. The information con-

tained therein indicates appellant was adjudged a delinquent

for abduction, possession of a deadly weapon during a theft,

and causing physical harm with a deadly weapon. The defense

objected to admission of these records because “juvenile con-

victions” are inadmissible for sentencing purposes at a court-

martial. In an earlier motion, he characterized them as “juve-

nile adjudications.”

[1] Appellate defense counsel carries that argument for-

ward on this appeal and maintains that juvenile records do not

amount to a “conviction” within the meaning of R.C.M.

1001(b)(3)(A), Manual, supra, It provides:

The trial counsel may introduce evidence of military or

civilian convictions of the accused. For purposes of this

rule, there is a “conviction” in a court-martial case when a

sentence has been adjudged.

The Government, on the other hand, urges this Court to

broadly interpret this evidentiary rule to conform sentencing

practice at courts-martial to that in federal civilian courts. See

United States v. Hansen, 701 F.2d 1078, 1082-83 (2d Cir. 1983).

We agree with defense counsel. Our starting point in resolving

this question is the language of R.C.M. 1001(b)(3)(A). See Art.

36, UCMJ, 10 U.S.C. § 836. The word “conviction” is not fully

defined in this rule of military procedure. However,

Mil. R. Evid. 609(d), which was also promulgated by the Presi-

4a

dent, implicitly recognizes a difference between a conviction

and a juvenile adjudication.

It states:

(d) Juvenile adjudications. Evidence of juvenile

adjudications is generally not admissible under this rule.

The military judge, however, may allow evidence of a

juvenile adjudication of a witness other than the accused if

conviction of the offense would be admissible to attack the

credibility of an adult and the military judge is satisfied

that admission in evidence is necessary for a fair deter-

mination of the issue of guilt or innocence.

Consistency in recognizing a difference between the two is

appropriate. See generally R.C.M. 102. In addition, excessive

reliance on federal! civilian sentencing practice is mispiaced.

Sentencing is exclusively a function of a judge in federal civilian

criminal courts, and a reluctance to expose lay members at

courts-martial to such a broad range of sentencing information

is understandable. See generally United States v. Mack, 9 M_J.

300, 316-19 (C.M.A. 1980); App. 21, Analysis, R.C.M. 1001,

Manual, supra.

[2) Accordingly, we hold that a juvenile adjudication is not

a conviction for purposes of R.C.M. 1001(b)(3)(A). Error

occured in this case. However, this error was harmless because

these prosecution exhibits were substantially cumulative of the

admissions of appellant in his pretrial statement which were

noted earlier. This statement had already been received in

evidence on the merits of the burglary charge. In this regard

R.C.M. 1001(f)(2)(A) states:

(f) Additional matters to be considered. In addition to

matters introduced under this rule, the court-martial may

consider—

(2) Any evidence properly introduced on the merits

before findings, including:

(A) Evidence of other offenses or acts of misconduct

even if introduced for a limited purpose.

5a

(Emphasis added.) Prejudice in this context is illusory since

this information was already properly before the judge for q

sentencing purposes.

The decision of the United States Air Force Court of Military

Review is affirmed.

Chief Judge EVERETT and Judge COX Concur.

ba

APPENDIX B

UNITED STATES COURT OF MILITARY APPEALS

Daily Journal

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ORDERS GRANTING PETITION FOR REVIEW

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7a

APPENDIX C

UNITED STATES

Senior Airman Louis F. SLOVACEK,

FR 280-68-1163, United States

Air Force.

ACM 24800.

U.S. Air Force Court of Military Review.

Sentence Adjudged 6 March 1985.

Decided 11 Oct. 1985.

Accused, a senior airman, United States Air Force, was

convicted before a general court-martial, Arnold I. Persky, J.,

of kidnapping, sodomy with a child under 16, burglary and

wrongful use of marijuana, and accused appealed. The United

States Air Force Court of Military Review, Hodgson, C.J., held

that erroneous admission of hearsay evidence concerning

admission of hearsay evidence concerning prior sexual contact

was not fatal to burglary conviction and that evidence of juve-

nile convictions was properly considered in sentencing.

Affirmed.

Appellate Counsel for the Accused: Colonel Leo L. Sergi and

Major William H. Lamb.

Appellate Counsel for the United States: Colonel Kenneth

R. Rengert, Major Robert E. Ferencik and Major Thomas G.

Maser, USAFR.

Before HODGSON, FORAY, and MICHALSKI, Appellate

Military Judges.

DECISION

HODGSON, Chief Judge:

8a

During the early evening hours of 1 November 1984, the

appellant smoked a marijuana cigarette at his off-base quarters

near Homestead Air Force Base. Later that evening he and a

friend consumed large amounts of alcoholic beverages both on

and off base. While returning to his home the appellant took a

short cut through Homestead Air Force Base and drove to the

on-base residence of a fellow servicemember with whom he was

acquainted. Upon arriving there, he entered the house and

abducted their three year old daughter. He then drove to an

isolated area off-base and had the child perform fellatio on him.

He was arrested as he returned the victim to her home.

On the above facts and pursuant to mixed pleas,! the

appellant was convicted in a bench trial of kidnapping, sodomy

with a child under 16, burglary and wrongful use of marijuana.

He was sentenced to a dishonorable discharge, total for-

feitures, life imprisonment and reduction to airman basic.

I

As part of its evidence on the burglary allegation, the pros-

ecution offered an out-of-court statement of the appellant

wherein he acknowledged he went to the residence for the

purpose of getting the child and “having sex” with her. Also

included in the document was the statement, “I further state

that I have had no other sexual contact with the child or any

ether small children.” In his cross-examination of the inter-

viewing officer, defense counsel sought to establish that the

police investigation of the incident tended to confirm the truth-

fulness of the appellant’s statement.

The prosecutor contended that the circumstances just

described would permit him to establish, as rebuttal evidence,”

an earlier incident by the appellant involving sexual contact

with the victim The trial judge agreed and allowed a police

| The appellant pleaded guilty to the kidnapping, sodomy and drug allega-

tions. He defended the burglary charge on the ground he was too intoxicated

to form the required intent at the time he entered the dwelling. The trial

judge rejected this contention.

2 The trial judge permitted the government to offer the evidence in its case-

in-chief.

Ya

investigator to testify that the victim’s mother told him that

her daughter told her that “six months prior the accused had

had her perform oral sex on him.”

[1,2] Assuming, arguendo, the Government may impeach

a portion of a confession it has offered on the merits (see

Mil.R.Evid. 607), the question remains as to the method of

getting this evidence before the court. The child who allegedly

participated in the act could have been called as a witness not-

withstanding her tender years, cf. United States v. Allen, 13

M.J. 597 (A.F.C.M.R. 1982) (Trial judge properly qualified a

four year old child as a witness), but the record is silent as to

why this was not done. The statement of the police investigator

is a clear example of multiple hearsay, but hearsay within

hearsay is not excluded if an exception to the hearsay rule

satisfies each hearsay problem associated with the statement.

See Mil.R.Evid. 802 and 805. While not stated at trial by either

the prosecutor or the trial judge, it appears to us that the

residual hearsay exception of Mil. R.Evid. 804 is the only basis

for admitting the child’s statement.

We have repeatedly held that statements admitted under the

residual hearsay exception are admissible only where the

express requirements of the rule are met. United States »v.

Barror, 20 M.J. 501 (A.F.C.M.R. 1985). Here the Government

failed to establish: 1) that the child was unavailable as witness,

see United States v. Griffin, 21 M.J. 501 (A. F.C.M.R. 1985); 2)

that the child’s statement possessed “circumstantial guaran-

tees of trustworthiness’ as to its truthfulness, United States v.

Barror, supra; and 3) that the defense was notified in advance

of trial that the child’s statement would be used, Mil. R. Evid.

804(b)(5); see also United States v. Ruffin, 12 M.J. 952

(A.F.C.M.R. 1982). Under these circumstances we hold that

the trial judge abused his discretion in admitting the child’s

statement. Accord United States v. Crayton, 17 M.J. 932

(A.F.C.M.R. 1984).

[3-7] Having concluded the trial judge erred, we must now

assess the effect of this testimony on the appellant's burglary

conviction. Not every error in admission of evidence requires

the reversal of a conviction. Harmless error results where it is

10a

not reasonably probable that the fact finders were swayed by

the invalid evidence. United States v. Clark, 12 M.J. 978

(A.F.C.M.R. 1982). The appellant contends he was too drunk to

form the specific intent alleged to exist at the time of the

breaking and entering. In his pre-trial statement he acknowl-

edged he entered the house with the purpose of “having sex”

with the child. True, at trial he sought to negate this admission,

but his is a factual dispute that the trial judge resolved against

him. Farther, the appellant’s intent at the time of this entry

may be established by circumstantial evidence and may be

inferred from the time and manner of the entry and his conduct

after entry. Here, the appellant abducted the child and took

her to an isolated area where the offense occurred. In our view,

there is compelling evidence to support the appellant’s convic-

tion for burglary, and the rebuttal evidence as to alleged prior

misconduct with the victim did not contribute to that convic-

tion. United States v. Garcia, 15 M.J. 685 (A. F.C.M.R. 1983).

II

[8,9] The appellant next argues that the trial judge erred

in admitting, over objection, during sentencing, evidence of

three “juvenile convictions,” i.e., abduction, use of a deadly

weapon during a theft and causing physical harm by means of a

deadly weapon during a theft. These offenses apparently

resulted from a single episode when the appellant was seven-

teen. He was subsequently adjudged a delinquent by the

Hamilton County, Ohio Court of Common Pleas, Juvenile Divi-

sion.

Appellate defense counsel maintain these juvinile records do

not amount to a conviction within the meaning of R.C.M.

10016(3)(A)?, and are essentially “civil” in nature and not crimi-

nal. We note in passing that the Court directed that the

appellant remain under the care and control of the “YOUTH

COMMISSION STATE OF OHIO, MAXIMUM SECURITY

3R.C.M. 10016(3)(A) states in part:

(3) Evidence of Prior Convictions of the Accused.

(A) In General. The trial counsel may introduce evidence of military or

civilian convictions of the accused. . .

lla

FACILITY” until age 21 or, if sooner, released under due

process of law.

A significant number of jurisdictions permit evidence of

prior juvenile adjudications to be considered by the sentencing

authority in assessing punishment}. This is true in Ohio where

the Ohio Revised Code, 2151.35 states in part:

The disposition of a child under the judgment rendered or

any evidence given in the [juvenile] court shall not be

admissible against the child in any case or proceeding in

any other court, except that the judgment rendered and

the disposition of such child may be considered by any

court only as to the matter of sentence or to the granting of

probation, (emphasis added.)

At best, sentencing is a deliberative, thoughtful process and

not ascience. It follows therefore that the sentencing authority

should be given as much relevant information as is available and

admissible to guide him or her in the sentencing task.

The appellant’s juvenile records are the functional equivalent

of a conviction, and since the Manual for Courts-Martial does

not expressly prohibit the consideration of juvenile adjudica-

tions, and the Ohio statute expressly permits it, we see no

reason in law or logic to bar their admission. We find support

for this conclusion in United States v. Barrow, 9 U.S.C.M.A.

342, 26 C.M.R. 123 (1958) and United States v. Morris, 9

U.S.C.M.A. 347, 26 C.M.R. 127 (1958), where the Court of

Military Appeals held it permissible for the reviewing

authority to consider the accused’s juvenile misdeeds and con-

victions when considering clemency. Surely, the sentencing

authority should be allowed the same prerogative when arriv-

4 United States v. Hansen, 701 F.2d 1078 (2d Cir. 1983); United States v.

Battle, 523 F.Supp. 855 (S.D. Ohio, W.D. 1981); Hayden v. State, 283 S.C.

121, 322 S.E.2d 14 (1984); Commonwealth v. Smith, 333 Pa.Super. 179, 481

A.2d 1365 (1984); People v. Hubbell, 1080 Cal. App.3d 253, 166 Cal. Rptr. 466

(1980); Dickens v. State, 368 So.2d 950 (Fla. App, 1979); Jn Interest of Mar-

eno, 43 Ill.App.3d 556, 2 Ill.Dec. 425, 357 N.E.2d 592 (1976); State v.

Koehmstedt, 297 N.W.2d 315 (N.D.1980); State v. Hernandez, 20 Wash. App.

225, 581 P.2d 157 (1978).

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12a

ing at a sentence. The appellant’s juvenile records were prop-

erly admitted.

II]

In light of the error discussed in Part I of this opinion, the

record of trial and the appellant’s prior disciplinary history, we

find appropriate only so much of the sentence as provides for a

dishonorable discharge, confinement for 60 years, total for-

feitures and reduction to airman basic. The findings of guilty

and the sentence, as modified, are

AFFIRMED.

FORAY, Senior Judge and MICHALSKI, Judge, concur.

U.S. GOVERNMENT PRINTING OFFICE; 1966 161483 40508

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