Petition for Writ of Certiorari — Griffin v. United States

87-1813 | TYE

No. _ 4

1988

tOL, UR.

In the Supreme Court of the United States

OCTOBER TERM, 1987

JAMES GRIFFIN, PETITIONER

v.

UNITED STATES, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

LEO L. SERGI

Colonel, Office of The Judge

Advocate General

United States Air Force

HQ USAF/JAJD

Bldg 5683

Bolling AFB, DC 20332-6128

(202) 767-1562

Counsel of Record

WILLIAM J. REICHART

Major, Office of The Judge

Advocate General

United States Air Force

QUESTION PRESENTED

WHETHER ADMISSION OF A WITNESS’S EXTRA-

JUDICIAL STATEMENT INTO EVIDENCE IN

VIOLATION OF PETITIONER’S SIXTH AMEND-

MENT RIGHT TO CONFRONTATION WAS SIGNIFI-

CANT PREJUDICIAL ERROR OF CONSTITU-

TIONAL DIMENSION, UNSALVAGEABLE BY

HARMLESS ERROR ANALYSIS

(1)

TABLE OF CONTENTS

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NE a ae an are aa ore Hi

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a a web w wae mee vee on |

Constitutional Provision Involved ................ Ka Ae |

es ahh tc aie wea a cess 2

Reason for Granting Writ ............. Rd Ca aaa 42 4

8 8 a I Ra a S

Appendix A—CMA Decision .................. baa la

rE, CONN a cv ns ke sine es wha we pew oes 7a

TABLE OF CASES, STATUTE AND OTHER AUTHORITY

CASE LAW

UNITED STATES SUPREME COURT

Chapman vy. California, 386 U.S. 19 (1967) ........ 4,6

Fahy v. Connecticut, 375 U.S. 85 (1963) .... 2... . ee Se

Pope v. Illinois, __. U.S. ___, 95 L.Ed.2d 439, 107

re es oe las pow ws v's . 7

Rose v. Clarke, 478 U.S. 570 (1986) ................ 7

COURT OF MILITARY APPEALS

United States v. Griffin, 25 M.J. 423 (C.M.A. 1988)... .. la

United States v. Ward, 1 M.J. 176(C.M.A. 1975) .. 3

COURTS OF MILITARY REVIEW

United States v. Griffin, 21 M.J. 501 (A.F.C .M-.R.

BS a a ae a 3

CONSTITUTONAL AND STATUTORY AUTHORITIES

UNITED STATES CONSTITUTION

Sixth Amendment ....... iin ARE ioe

(iil)

Page

OTHER AUTHORITIES

MANUAL FOR COURTS-MARTIAL, U.S. 1984

Military Rule of Evidence 804(b)(5) ............-....-. 4

MISCELLANEOUS AUTHORITIES

Saltzberg, Schinasi and Schleuter, Military Rules of

Evidence Manual, (Michie, 1981) ................... xs

In the Supreme Court of the Gnited States

OCTOBER TERM, 1987

No.

JAMES GRIFFIN, PETITIONER

v.

UNITED STATES, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

James Griffin respectfully prays that a writ of certiorari

issue to review the judgment of the United States Court of

Military Appeals entered in his case on March 7, 1988.

OPINIONS BELOW

The decision of the United States Air Force Court of

Military Review was issued on September 5, 1985. The

decision of the United States Court of Military Appeals

was issued on March 7, 1988.

JURISDICTION

The jurisdiction of this Court is invoked under 10

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

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

Appeals was entered on March 7, 1988.

CONSTITUTIONAL PROVISION INVOLVED

The Sixth Amendment provides:

In all criminal prosecutions, the accused shall enjoy

the right ... to be confronted with the witnesses

against him...

(1)

2

STATEMENT OF THE CASE

Petitioner was tried by general court martial before of-

ficer and enlisted members at McChord Air Force Base,

Washington. Contrary to his pleas, he was found guilty of

rape.

Petitioner was sentenced to a dishonorable discharge

and to confinement for five years. The convening authori-

ty approved the sentence as adjudged on March 1, 1985.

On September 5, 1985, the Air Force Court of Military

Review affirmed the findings of guilty and the sentence as

approved. (Appendix B). The United States Court of

Military Appeals granted review of the case on December

23, 1986 and affirmed the findings and sentence on March

7, 1988.

Petitioner was alleged to have raped Airman First Class

Hurst in Pierce County, Washington, near McChord Air

Force Base. Petitioner and AIC Hurst met for the first

time at the McChord Air Force Base passenger terminal on

July 8, 1984 (R. 248, 250, 614). Petitioner was enroute to

Sacramento, California, from Korea where he had been

visiting. Petitioner was in a terminal leave status and was

scheduled to retire from active duty on July 31, 1984 (R.

611-612). Petitioner’s last duty station was Beale Air Force

Base, California (R. 611). Petitioner had not previously

been in Pierce County or the local area around McChord

Air Force Base (R. 615). AlC Hurst was on leave, having

been in Idaho for two weeks, and was on her way to her

assigned duty station on Okinawa, Japan (R. 250). She

had not been to McChord Air Force Base, nor had she

been in Pierce County, Washington, before (R. 421).

After meeting in the McChord passenger terminal dur-

ing a layover between flights, petitioner and AIC Hurst

went off base to a motel and agreed to share a room and

3

the cost (R. 255). They rented a room at the Ft. Lewis

Motel where the rape was alleged to have occured several

hours later. :

AIC Hurst testified that after returning to the Ft. Lewis

Motel on the night of July 8, 1984, she learned that peti-

tioner was not leaving until the following morning (R.

265). She then left the motel room to call a taxi and re-

turned to the room (R. 266-267). When she heard a horn

blow outside, she thought the taxi had arrived and started

to collect her luggage (R. 267). However, she stated that

petitioner went outside the room, returned back inside,

closed the door and stood in front of it (R. 267). She

managed to open the door to attempt to leave, but peti-

tioner shoved her away from the door and closed it again

(R. 267). Petitioner testified that AIC Hurst never left or

tried to leave the room before they had sexual intercourse

as she claimed to have (R. 651).

At trial, the following out-of-court statement of Mrs.

Kwang Sun Bordoy was admitted over defense objection

as Pros. Exh. 2:

I arrived at McChord Air Force Base, Washington, at

approximately 1:00 P.M., 8 Jul 84, with my husband

and daughter. We are on leave awaiting air transpor-

tation to Korea.

Sometime after | put my baby to bed at approximate-

ly 10:30 the night of 8 Jul 84, I heard a scream from

the apartment area. i then saw a black man push a

white woman into apartment 17. I then went to my

husband and told him what I saw. I told him |

thought the girl was being raped. She kept screaming

for about 10 minutes or so. She finally came running

out of the apartment and went over to a taxi driver.

Shortly after that the police arrived.

4

This all happened at the Ft. Lewis Motel, Tacoma,

Washington. We were staying in room 6. Room 17 is

almost directly across from our room.

The defense specifically objected to the admission of

this statement on the grounds that the government had not

made a reasonable effort to procure the presence of Mrs.

Bordoy and that admission of the statement would deny

petitioner his Sixth Amendment right to confront

witnesses against him (R. 50). The military judge ruled

that the statement was admissible under Military Rule of

Evidence 804(b)(5). The Air Force Court of Military

_ Review found that the military judge erred by admitting

the statement, but concluded that the error was harmless.

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

(Appendix B).

REASON FOR GRANTING WRIT

The Air Force Court of Military Review was correct in

ruling that the military judge erred in admitting Pros. Exh.

2. Admission of such a statement clearly was not war-

ranted because the declarant’s claimed unavailability had

not been adequately established, and, therefore, peti-

tioner’s Sixth Amendment right to confrontation was

violated.

However, the Court of Review applied the wrong stand-

ard in holding that such an error of constitutional dimen-

sions was harmless. This Court in Chapman v. California,

386 U.S. 18 (1967) clarified its holding in Fahy v. Connec-

ticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963) at

page 24.

“We, therefore, do no more than adhere to the mean-

ing of our Fahy case where we hold, as we now do,

that before a federal constitutional error can be held

harmless, the court must be able to declare a belief

that it was harmless beyond a seasonable doubt.”

The Air Force Court of Military Review did not and could

not make that declaration. Instead, the Court of Review

stated that “the indicia of guilt provided by this evidence

are de minimus when compared to the other evidence of

record. . .” United States v. Griffin, supra, at 504. Sucha

conclusion inherently relies on the assumption that peti-

tioner could have been convicted even without considera-

tion of the statement which was improperly admitted. As

the United States Court of Military Appeals has ruled,

“We are not concerned here with whether there was suffi-

cient evidence on which the petitioner could have been

convicted without the evidence complained of. The ques-

tion is whether there is a reasonable possibility that the

evidence complained of might have contributed to the con-

viction.” United States v. Ward, 1 M.J. 176, 179 (C.M.A.

1975), citing, Fahy v. Connecticut, supra.

In making the determination as to the effect of im-

properly admitted evidence, one must consider the pur-

pose for which the evidence was introduced and the use to

which it was put. United States v. Ward, supra, at 180. In

this instance, the government admitted at trial that the

statement of Mrs. Bordoy was the only evidence that a

black man pushed a white woman into the motel room. As

such, this statement was evidence of a material fact and

was the most probative evicence on this point. The state-

ment of Mrs. Bordoy produced direct evidence of physical

- contact between petitioner and the victim of the alleged

rape. Such evidence is incriminating in and of itself in that

it connects petitioner with the use of physical force to pre-

vent AIC Hurst from leaving the room. As the trial

counsel argued in his closing statement, AIC Hurst went

to the door tried to get out, but she was pulled back in by

petitioner and then the screaming started. Thus, the

i

acca

6

members were specifically requested to consider the state-

ment of Mrs. Bordoy as direct evidence that petitioner

physically prevented AlC Hurst from leaving the motel

room immediately before the screaming started. Not only

is it likely that the members considered the statement for

this purpose, it is also likely that they inferred that the

resultant act of intercourse was similarly forced upon AIC

Hurst rather than being voluntarily consented to. Thus,

this statement was used to support an essential element of

the offense of rape and it cannot be deemed to be harmless.

Not only was the statement of Mrs. Bordoy used as direct

evidence of petitioner’s use of physical force against AlC

Hurst, it also was used to corroborate her testimony,

thereby enhancing the credibility of AlC Hurst. The issue

of consent was the central issue in this case and was strong-

ly contested. In a situation such as this, the credibility of the

accused and the alleged victim of a rape are the pivotal

issues. Thus, any evidence which makes one version more

likely or probable than the other is relevant and material.

When relevant and persuasive evidence is improperly in-

troduced in close cases such as in this instance, reliance on

the harmless error rule works unfair results because there is

a reasonable possibility that the evidence might have con-

tributed to the conviction. Chapman v. California, supra.

As this Court has stated on several occasions, “An error in

admitting plainly relevant evidence which possibly in-

fluenced the jury adversely to a litigant cannot. . . be con-

ceived of as harmless.” Chapman v. California, supra, at

23-24, citing Fahy v. Connecticut, supra. Petitioner sub-

mits that the record does not affirmatively establish that

there was no reasonable possibility that the statement of

Mrs. Bordoy might have contributed to petitioner’s convic-

tion. Rather, the record reveals that the admission and use

of Mrs. Bordoy’s statement was, in all likelihood, reiied

upon by members. The trial counsel specifically argued that

Mrs. Bordoy’s statement was independent and convincing

evidence that petitioner used physical force to prevent

AIC Hurst from leaving the motel room, and also that the

statement corroborated the testimony of Hurst. Either of

these two uses creates the presumption that the evidence

contributed to the conviction and it cannot be deemed to

be harmless beyond a reasonable doubt. United States v.

Ward, supra, at 180-181.

This case is distinguishable from Rose v. Clarke, 478

U.S. 570 (1986) and Pope v. Illinois, U.S. , 95

L.Ed.2d 439, 107 S.Ct. 1918 (1987). In Rose, supra, the

court found harmless error because the element of intent

at issue there was apparent to any “rational” jury by the

fact of commission of the injury. In Pope, supra, the court

remanded for harmless error analysis where a jury was

misinstructed that community standards rather than a

reasonable man standard would be utilized to exclude

redeeming social value as a defense to obscenity prosecu-

tions. The instructional error thus dealt with a subjective

prong of the obscenity test which the Illinois Court of Ap-

peals might be able to resolve by reference to other

evidence and analysis without necessity of a retrial.

Both of these cited cases differ from the error thrust on

petitioner herein. Mrs. Bordoy’s statement was a factual

matter adding weight and support to the alleged victim’s

side of a one-on-one swearing contest. It is not intent in-

ferable from other facts or a rational man standard ap-

pliable on appellate review to properly admitted tacts. A

Significant portion of the prosecution’s case, from a tac-

tual perspective, was introduced through this error of ad-

mission. Harmless error analysis is inappropriate to this

factual sufficiency issue in light of the critical and central

nature of the evidence on the consensual intercourse issue.

Finally, Mrs. Bordoy’s out-of-court statement con-

tained her opinion on the ultimate issue of the case when

she opined “. . . | thought the girl was being raped .. .”

Such an opinion is a legal conclusion which did not assist

the triers of fact in their determination. Rather, the admis-

sion of such conclusions invades the province of the

members by depriving the fact-finder of the opportunity

to draw its own inferences and conclusions rather than ac-

cepting those of the witness. Saltzburg, Schinasi and

Schleuter, Military Rules of Evidence Manual, p. 322

(Michie, 1981). This opinion compounded the prejudice

caused by the erroneous admission of the statement of

Mrs. Bordoy.

CONCLUSION

The decisions of the Air Force Court of Military Review

and the United States Court of Military Appeals grant that

admission of the statement in question was error but then

deny corrective action. Mrs. Bordoy was not a military

witness in this case and the trial of this case did not take

place in a foreign country or during any wartime exigen-

cies. In short, there was no military necessity which re-

quired this trial to be completed prior to Mrs. Bordoy’s ex-

pected return to the local area. Characterization of this

error aS harmless, given its status as the corroborating

evidence of the victim’s version of this one-on-one con-

frontation, is contrary to the cited civilian caselaw. Thus,

a divergence of view on this question of harmless error

exists between the military courts and civilian courts. Since

no military necessity exists justifying such a difference, the

question should be resolved at this Court.

9

WHEREFORE, appellant prays for a grant of certiorari

to review the decision of the United States Court of

Military Appeals in this case.

LEO L. SERGI

; Colonel, Office of The Judge

Advocate General

United States Air Force

HQ USAF/JAJD

Bldg 5683

Bolling AFB, DC 20332-6128

(202) 767-1562

Counsel of Record

and

WILLIAM J. REICHART

Major, Office of The Judge

Advocate General

United States Air Force

z

APPENDIX

APPENDIX A

UNITED STATES COURT OF MILITARY APPEALS

No. 53,855

ACM 24752

UNITED STATES, APPELLEE

v.

JAMES GRIFFIN, TECHNICAL SERGEANT,

U.S. AIR FORCE, APPELLANT

March 7, 1988

Accused, a technical sergeant in the United States Air

Force, was convicted by general court-martial convened at

McChord Air Force Base, Washington, Robert G. Gib-

son, Jr., J., of rape and he appealed. The Court of

Military Review affirmed, 21 M.J. 501. The United States

Court of Military Appeals, Cox, J., held that it was not

error for court, with accused’s consent, to instruct

members on effect of punitive discharge on accused’s

eligibility for retirement benefits.

Affirmed.

Everett, Chief Judge, filed an opinion concurring in the

result.

For Appellant: William J. Holmes, Esq. (argued); Col-

onel Leo L. Sergi, Major Charles E. Ambrose, Jr., Cap-

tain Karen McCoy. USAFR (on brief).

For Appellee: Lieutenant Colonel Robert E.

Giovagnoni (argued); Major Joseph S. Kistler (on brief);

Colonel Kenneth R. Rengert and Colonel Joe R. Lamport.

(la)

2a

OPINION OF THE COURT

COX, Judge:

In September 1984, appellant was tried by a general

court-martial convened at McChord Air Force Base,

Washington. The court was composed of officer (commis-

sioned) and enlisted (noncommissioned officer) personnel.

Appellant, a Technical Sergeant (E-6), was charged with

raping an Airman First Class (E-3) servicewoman, in

violation of Article 120, Uniform Code of Military

Justice, 10 U.S.C. § 920. Despite his not guilty pleas, he

was convicted and sentenced to be confined for 5 years

and dishonorably discharged from the service. The con-

vening authority approved the sentence as adjudged, and

the Court of Military Review affirmed. 21 M.J. 501

(1985).

In his petition to this Court, appellant has asked us to

determine if the military judge committed prejudicial error

when he instructed the court members about appellant’s

eligibility for retirement benefits. We hold that the judge’s

instructions were not prejudicially erroneous, based on the

facts and cirumstances present here.

Sometime prior to the date of the offense, appellant

submitted the paperwork required to allow him to retire

from active duty in the Air Force. When the offense oc-

curred, he was on terminal leave, awaiting transportation

to his home in another state. During an in camera hearing

[Art. 39(a), UCMJ, 10 U.S.C. § 839(a)] on sentencing in-

structions, trial counsel requested that the court members

be instructed on the effect a sentence to reduction in grade

without a punitive discharge would have on retirement

benefits. After discussing applicability of the instruction

to the case and without any objection from the defense,

the military judge agreed and advised the members as

follows:

An enlisted member who is retirement eligible at

the time of sentencing and who is reduced in grade

3a

but not sentenced to a punitive discharge will, if per-

mitted to retire, retire at the grade to which reduced

but will be paid at the higher grade.

During deliberations, the court members asked the

judge several questions concerning retirement benefits.

Specifically, they wanted to know if a punitive discharge

would cause forfeiture of all of appellant’s retirement

benefits. They also wished to know:

1. What effect would a reduction in grade have on his

retirement benefits?

2. When would a punitive discharge become effective?

3. What benefits would appellant’s dependents be en-

titled to if he were confined?

4. How long would dependent entitlement exist?

5. Would retirement occur if appellant were not

punitively discharged?

Although the military judge attempted to answer some

of the questions, he ultimately instructed them that: deci-

sions concerning appellant’s retirement status would be

made by the Secretary of the Air Force; the members

should sentence appellant based on the offense committed

and the instructions given; and the members could recom-

mend that the convening authority grant appellant clemen-

cy. Defense counsel did not object to any of the members’

questions or to the judge’s answers.

The general rule concerning collateral consequences of a

sentence is that “courts-martial [are] to concern themselves

with the appropriateness of a particular sentence for an ac-

cused and his offense, without regard to the collateral ad-

ministrative effects of the penalty under consideration.”

United States v. Quesinberry, 12 U.S.C.M.A. 609, 612, 31

C.M.R. 195, 198 (1962). We see no need to relax this rule

today.

4a

Obviously, a military judge will be confronted from

time-to-time with inquiries from court members regarding

collateral consequences of particular sentences, and an ap-

propriate reply ordinarily is to reaffirm the idea that col-

lateral consequences are not germane. On the other hand,

it is certainly not error for the judge to answer the

members’ question if an accused agrees. Military judges

are cautioned, however, to be particularly careful in those <r

situations where their answers to questions from members

are not clear.

Thus, the fact that the military judge instructed the

members about the effect of the adjudged sentence on ap-

pellant’s retirement benefits does not mandate reversal.

First, in reality, the impact of an adjudged punishment

on the benefits due an accused who is eligible to retire is

often the single-most important sentencing matter to that

accused and the sentencing authority. Thus, it is only in a

theoretical sense that the effect a punitive discharge has on

retirement benefits can be labeled collateral. Moreover,

the impact on benefits — whatever it may be —can only be a

direct and proximate consequence of the sentence.

Second, the instruction here was not given sua sponte,

but at the request of trial counsel. The military judge

discussed the instruction with defense counsel and

specifically asked if there was any objection. None was

made.

Third, during deliberations and as noted herein, the

members asked the judge questions about retirement

benefits, and, again, no objection was made to the judge’s

responses.

Lastly, during argument in mitigation, defense counsel

pleaded, as follows, for the members not to punitively

oO

Sa

discharge appellant because of the consequential loss of

retirement benefits:

[A] dream may be shattered forever and irreparably if

he be punitively discharged from the Air Force—a

punishment grossly beyond proportions of an offense

committed under such circumstances and by a man of

his record and demonstrated character.

And so I beseech you ... that you not punitively

discharge this man and impose a forfeiture of his

retirement forever.

In any event, absent timely objection, an error in

sentencing instructions is waived unless such error rises to

the level of “plain error.” R.C.M. 1005(f), Manual for

Courts-Martial, United States, 1984. As we have recently

reiterated:

In order to constitute plain error, the error must

not only be both obvious and substantial, it must also

have “had an unfair prejudicial impact on the jury’s

deliberations.” [Citation omitted.] The plain error

“doctrine . . . “is to be used sparingly, solely in those

circumstances in which a miscarriage of justice would

otherwise result.” [Citation omitted.]}

United States v. Fisher, 21 M.J. 327, 328-29

(C.M.A.1986).

In sum, we are satisfied that neither the military judge’s

instructions to the court members nor his responses to

their questions constituted such error. Thus, there is no

error which “materially prejudices the substantial rights

of” appellant. Art. 59a), UCMJ, 10 U.S.C. § 859(a).

The decision of the United States Air Force Court of

Military Review is affirmed.

Judge SULLIVAN concurs.

EVERETT, Chief Judge (concurring in the result):

6a

in my view, it is quite appropriate for the sentencing

authority — whether court members or military judge —to

consider the collateral consequences of various sentencing

alternatives. Therefore, it is permissible for a judge to in-

struct on those consequences, either sua sponte or at the

request of the parties or of the members. Likewise, it is

permissible for the members to seek instruction in this

regard.

Unfortunately, however, the collateral consequences of

a sentence—or even of a conviction—cannot always be

foreseen. Moreover, military judge is less likely to be in-

formed as to collateral, than as to direct, consequences.

Thus, for practical reasons and in the exercise of his sound

discretion, a military judge is entitled to limit the scope of

the advice he provides — as the judge attempted to do here.

If the military judge erred in his instructions, his error

was waived by the defense’s lack of objection. No reason

exists to grant relief from this waiver, since the failure to

object apparently reflected a tactical choice by defense

counsel, rather than oversight or incompetence on his

part.

7a

UNITED STATES AIR FORCE

COURT OF MILITARY REVIEW

ACM 24752

UNITED STATES

We

TECHNICAL SERGEANT JAMES GRIFFIN, FR 255-64-9454

UNITED STATES AIR FORCE

SEP 5 1985

Sentence adjudged 21 September 1984 by GCM convened:

at McChord Air Force Base, Washington. Military Judge:

Robert G. Gibson, Jr.

Approved sentence: Dishonorable discharge and confine-

ment for five (5) years.

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

Lieutenant Colonel Patrick C. Sweeney and Captain

Bruce T. Brown.

Appellate Counsel for the United States: Colonel Kenneth

R. Rengert, Colonel Andrew J. Adams, Jr., and Captain

S. Kistler.

Before

HODGSON, FoRAY and MURDOCK

Appellate Military Judges

DECISION

Hopason, Chief Judge:

On 8 July 1984, the appellant and Airman First Class H

met in the passenger terminal at McChord Air Force Base,

Washington, where both were on leave seeking space

8a

available transportation back to their units. This casual

meeting progressed to the point where the appellant sug-

gested they split the cost of a motel room where they could

clean up and rest. He indicated his flight was due to leave

at 2300 hours that night and he would not be in the room

after that. This was agreeable to Airman H and she ac-

companied him to a motel near the base. After the ap-

pellant obtained a room she gave him her share of the cost,

and left for the evening—she returned at approximately

2300 hours and found the appellant still there and who

then announced he was staying until morning. Airman H

did not consider this arrangement satisfactory and left the

room to call a taxi. She returned to the room to get her

luggage and while there the taxi arrived. When the ap-

pellant told the taxi driver it would not be needed she

became frightened, started to scream and attempted to

leave the room. The appellant, who was dressed in his

underwear, blocked the door and forced her onto the bed,

took her pants off and had sexual intercourse with her.

Later, Airman H got away and ran out the door. At that

time she was, according to a male witness, “hollering for

help and that she had been raped.” The taxi driver whom

she had called for transportation and who the appellant

turned away at the room door, heard the screams and call-

ed the police. Other guests staying at the motel heard the

screams and a woman’s voice saying “Please stop,” “It

hurts,” and “Don’t.” One witness, a woman Staying at the

motel, testified that Airman H ran to her crying and said,

“Help me—I’ve been raped.” Subsequently, the appellant

was arrested by the local police department and later

released on $5,000.00 bail. For reasons not stated in the

record the civilian authorities declined to prosecute the in-

cident.

At trial the appellant admitted sexual intercourse with

Airman H, but contended she consented to the act. He

9a

testified she returned to the room that evening crying and

upset over something that occurred earlier. While he was

comforting her a taxi arrived and he told the driver it

would not be needed. At this point she started screaming

so he “grabbed her,” they struggled and fell onto the bed

with him on top. She quit crying and apologized for mak-

ing him miss his flight. While the two of them were lying

on the bed, he removed her pants and had sexual inter-

course with her. Additionally, the appellant offered

evidence as to his truthfulness and reputation for being

law abiding.

In a trial with enlisted members, the appellant was con-

victed of rape and sentenced to a dishonorable discharge

and five years confinement.

The appellant argues that while both he and Airman H

were Air Force members, the alleged offense occurred off-

base, and therefore the court-martial was without jurisdic-

tion to try him as the incident was not “service-connected.”

O’Callahan v. Parker, 395 U.S. 258 (1969); Relford v.

Commandant, 401 U.S. 355 (1971); see also United States

v. Hudlund, 2 M.J. 11 (C.M.A.1976).

Of course, a mere off-base occurrence does not deprive

a court-martial of jurisdiction over a crime if the conduct

of the service member which takes place beyond the boun-

daries of the installation has a significant impact on the

Armed Services as an entity. United States v. Lockwood,

15 M.J. 1 (C.M.A. 1983); United States v. Shorte, 18 M.J.

518 (A.F.C.M.R. 1984), affd., i xe sy 6

1985); United States v. Wojciechowski, 19 M.J. 577

(N.M.C.M.R. 1984). Further, such intangibles traditional-

ly associated with the military forces as “reputation” and

“morale” have been given renewed emphasis in determin-

ing the “service-connection” of off-base offenses. United

States v. Lockwood, supra.. The “service-connection” re-

10a

quirement is decided on a case-by-case, offense-by-offense

basis and is a factual determination. United States v. Roa,

____ M.J. ___ (A.F.C.M.R. 1985); United States v.

Shorte, supra. While court-martial jurisdiction cannot

presently be predicated solely on the military status of the

parties involved, this circumstance is an important factor

to be considered in determining whether the military has a

distinct interest in the prosecution of the case overriding

the interest of the civilian community. United States v.

Shorte, supra; United States v. Kyles, 20 M.J. 571

(N.M.C.M.R. 1985).

In the case at hand, the appellant and the victim were

Air Force members who became acquainted' while on a

military installation. The victim testified that the ap-

pellant’s status as a non-commissioned officer was a

significant factor in her agreeing to the room-sharing ar-

rangement. We have repeatedly held that maintaining

discipline within the Armed Services is a unique military

function. United States v. Benedict, _.. M.J. —__

(A.F.C.M.R. 1985); United States v. Heering, _. M..J..

_____ (A. F.C.M.R. 1985). For unknown reasons the State

of Washington chose not to pursue the incident. In our

view, the rape of one service member by another, no mat-

ter where it takes place, has a clear and recognizable im-

pact on the morale, reputation and integrity of the Armed

Forces. We attach meaningful weight to the appellant’s

status as a non-commissioned officer, that he and the vic-

tim met on base and from there went to the site of the

crime, and the crime’s proximity to a military installation.

United States v. Lockwood, supra, at 10. All of these cir-

cumstances make a compelling argument that the interest

' The appellant was in uniform at the time of their meeting.

lla

of the military far outweighs that of the civilian communi-

ty sO as to justify trial by court-martial. United States v.

Heering, supra; United States v. Benedict, supra; United

States v. Roa, supra; United States v. Shorte, supra;

United States v. Hollis, 16 M.J. 954 (A.F.C.M.R. 1984);

see also United States v. Wilson, ___ M.J. ___

(N.M.C.M.R. 1985).

At trial the prosecution successfully convinced the trial

judge, over objection of the defense counsel, that the

statement of Mrs. Kwang Sun Bordoy, a guest at the motel

where the alleged rape occurred, was admissible under the

residual hearsay exception of Mil. R. Evid. 804(b)(5). In

the challenged statement Mrs. Bordoy indicated she heard

screams coming from a room almost directly across from

hers and “saw a black man push a white woman into the

[room].” :

We have consistently held that statements admitted

under the residual hearsay exception do not violate the

confrontation clause of the Sixth Amendment if the ex-

press requirements of the rule are met. United States v.

Barror, 20 M.J. 501 (A.F.C.M.R. 1985). We have also

noted that the rule’s focus is narrow and meant to be in-

voked sparingly and in rare circumstances. United States

v. Harris, 18 M.J. 809 (A.F.C.M.R. 1984). In Barror,

supra, we observed that the residual hearsay exception

finds its greatest application in trials where children are

the victims of alleged sexual abuse. While the rule’s use is

not limited to that area, the situations in which it may be

be invoked must be exceptional. Accordingly, the re-

quirements of the rule are to be strictly construed.

The declarant of the challenged statement is a Korean

national and the wife of an Air Force member. At the time

of trial she was in Korea visiting her mother. When the

12a

declarant was to return to the United States is unclear. To

show that the declarant was “unavailable” as contemplated

by Mil. R. Evid. 804(b), the trial counsel established that

the wife of an Office of Special Investigations (OSI) agent

who spoke Korean attempted to contact her on behalf of

the Government by telephone, but was unable to do so.

The OSI agent admitted he did not seek the assistance of

his counterpart in Korea in an effort to locate the witness.

One unsuccessful telephone call appears to be the sum

total of the Government’s attempt to find Mrs. Bordoy.

In our opinion the Government did not make a reason-

able effort to secure Mrs. Bordoy’s presence at trial. Mil.

R. Evid. 804(a)(5). Had the prosecution concluded her

testimony was needed a deposition was an option. Article

49, U.C.M.J.; R.C.M. 702; see United States v. Amerine,

17 M.J. 947 (1984). Inconvenience in obtaining a witness is

not an acceptable substitute for that person’s unavailabili-

ty. Cf. United States v. Hubbard, 18 M.J. 687 (A.C.M.R.

1984) (witness held unavailable on a showing of: [1]

witness absent without leave two weeks before trial; [2]

CID notified of absence and local “hangouts” watched; [3]

witness’s parents contacted; and [4] local police at parents’

location also searched for the witness). On the above facts

we hold that the trial judge abused his discretion in admit-

ting Mrs. Bordoy’s statement. Accord United States v.

Crayton, 17 M.J. 932 (A.F.C.M.R. 1984). However, the

indicia of guilt provided by this evidence are de miminis

when compared to the other evidence of record which in-

cluded the appellant’s judicial admission that he engaged

in sexual intercourse with the victim albeit, according to

him, with her consent. We are satisfied that the inadmissi-

ble statement was harmless error and did not contribute to

the appellant’s conviction.

13a

The appellant contends he is entitled to 76 days adminis-

trative credit toward his sentence as the result of pretrial

confinement rather than the 75 days credit he was given.

Appellant government counsel concede that he is entitled

to an additional day’s credit and we agree. The appellant

will be given one day administrative credit toward his con-

finement in addition to the credit already received. United

States v. Allen, 17 M.J. 126 (C.M.A. 1984).

IV

The remaining assigned errors? are resolved against the

appellant. United States v. Rogan, 19 M.J. 646

(A.F.C.M.R. 1984); United States v. Shea, 17 M.J. 966

(A.F.C.M.R. 1984). The evidence of guilt in this case is

overwhelming. We are convinced beyond a reasonable

doubt that the appellant committed the offense alleged.

Article 66(c), U.C.M.J. The findings of guilt and the

sentence are AFFIRMED.

ForAy, Senior Judge, and MuRDOcKk, Judge, concur.

OFFICIAL:

/S/ CHARLES L. WILLE

Charles L. Wille

Captain, USAF

Chief Commissioner

> The defense MOTION TO FILE DOCUMENT is GRANTED.

US GOVERNMENT PRINTING OFFICE. 1988—212-484/62024