Petition for Writ of Certiorari — McCarty v. United States

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(1) 961002 DEC 20 19% .

Noperict Ur iit CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1996

MASTER SERGEANT JOHNNY R. McCARTY,

PETITIONER

V.

UNITED STATES OF AMERICA, RESPONDENT

Petition For a Writ of Certiorari to the United States

Court of Appeals for the Armed Forces

PETITION FOR WRIT OF CERTIORARI

Ormond R. Fodrea

Major, United States Air Force

Appellate Defense Division

Counsel for Petitioner

Air Force Legal Services Agency

Appellate Defense Division

112 Luke Avenue, Suite 343

Bolling AFB, DC 20332-8000

202-767-1562

December 1996

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QUESTION PRESENTED

WHETHER THE MILITARY JUDGE VIOLATED DUE

PROCESS BY PERMITTING THE PROSECUTION TO

ELICIT THE CONFIDENTIAL SPOUSAL

COMMUNICATIONS OF THE APPELLANT AND HIS

WIFE THROUGH THE TESTIMONY OF JANET EVANS

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The petitioner, Master Sergeant Johnny R. McCarty

respectfully prays that a writ of certiorari issue to review the

order and judgment of the United States Court of Appeals for

the Armed Forces entered in his case on 30 September 1996.

iV

INDEX

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TABLE OF AUTHORITIES

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_United States Supreme Court:

Blau v. United States, 340 U.S. 332,

71 S.Ct. 301, 95 L.Ed. MEEEUOES Kshs 36a Pa bee. 1]

Pereira v. United States, 347 U.S. 1,

74 S.Ct. 358, 98 L.Ed. 435 (te) Seep er aan Re Hare 1]

Trammel v. United States, — U.S. —.

Nee ns PO 55 os 6b kk es 1]

Wolfe v. United States, __U.S._.

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Federal Courts:

In Re Grand Jury Matter, 969 F.2d 995

DN eh pee 2

United States v. Bilzerian, 926 F.2d 1285

SN 055 ous ice ee 2

Hipes v. United States, 603 F.2d 786

Se NN ee a ee ee 1]

United States v. Archer, 733 F.2d 354

(Sth Cir.), cert. denied, 469 U.S. 196 (1984) ...... 8,9

United States v. Mendelsohn, 896 F.2d 1183

(9th Cir. 1990) Sr Pee Lae ep Oy mR aR SD Se

United States v. Wilson, 798 F.2d 509

SAAR Rs TNE bo £65 er ES

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Military Courts:

United States v. Higgins, 6 U.S.C.M.A. 308,

Statute:

Dale OL IT SOE oh 2 ck dicen bebe Ch eee ee 11

United States v. Hughes, 28 M.J. 391

co Ee, RP arene remeriag rap ee 7,8

United States v. Martel, 19 M.J. 917, 925—926

SR RED oi seo 6 kK ws dba des Bene Kedas 12

United States v. Nees, 18 U.S.C.M.A. 29

La PE 60 o.8t dee cee Feu s eee ek nediwel 10

United States v. Smith, 33 M.J. 114

TE Bcc s ih Gc wald ba 08 <b ed veo eee 12

United States v. Tipton, 23 M.J. 338

CM SEE nc oi ial «Cb c ewensk echo aeecreeen 12

United States v. Whitehead, 30 M.J. 1066

PR RE obs 2. ks Edd oe owandscke bere 11,12

State Courts:

Meador v. State, 711 P.2d 852 (Nev. 1985) ......... 14

State v. Cohn, 576 P.2d 933

Pon ac P SOUND vie's ows 8504 eda cee bh einen 14

State v. Penn, 412 S.E.2d 660 (N.C. 1992) .......... 14

28 U.S.C. §1259

Rule of Evidence:

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OPINIONS BELOW

The order and judgment of the United States Court of

Appeals for the Armed Forces, reported at___ M.J. __ (1996),

is located at Appendix A. The unpublished opinion of the

United States Air Force Court of Criminal Appeals is located

at Appendix B.

JURISDICTION

The final order of the United States Court of Appeals for

the Armed Forces was entered on 30 September 1996. The

jurisdiction of this Court is invoked under 28 U.S.C. Sec 1259

(3) (West Supp. 1995) and 10 U.S.C. Sec 867(a) (West Supp.

1994).

CONSTITUTIONAL PROVISIONS INVOLVED

Sth Amendment

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

property, without due process of law.

STATEMENT OF THE CASE

On 20 November 1992, 26 and 28-30 January 1993, and

1 February 1993, appellant was tried by a general

court—martial consisting of officer and enlisted members.

Contrary to his pleas, he was convicted of sodomy. indecent

acts, attempted carnal knowledge and giving alcohol to a

child. He was sentenced to a bad conduct discharge, 10 years

confinement, and reduction in rank.

ARGUMENT

THE MILITARY JUDGE VIOLATED

DUE PROCESS BY PERMITTING

THE PROSECUTION TO ELICIT.

THE CONFIDENTIAL SPOUSAL

COMMUNICATIONS OF THE APPELLANT

AND HIS WIFE THROUGH THE TESTIMONY

OF JANET EVANS

Standard of Review

The federal courts are split on the proper standard of

review to be applied by the appellate courts when considering

privileges. The decisions in the various circuits have run the

complete gamut. See e.g., United States v. Mendelsohn, 896

F.2d 1183, 1188 (9th Cir. 1990)(“de novo”); In Re Grand Jury

Matter, 969 F.2d 995, 997 (11th Cir. 1992)(“plenary”); United

States v. Bilzerian, 926 F.2d 1285, 1293 (2d Cir. 1991)(“abuse

of discretion”). United States v. Wilson, 798 F.2d 509, 512 (1st

Cir. 1986)(“clearly erroneous”).

In deciding the correct standard to apply to military cases

involving spousal privilege, the best place to start is

Mil.R.Evid. 504. Nowhere in the rule is there language which

suggests discretion on the part of the military judge. Either the

privilege applies, or it doesn’t. The standard utilized should be

“de novo” or “plenary.” This should be especially so in a case

where, as in the one sub judice, the military judge makes no

findings of fact regarding the motion. Cf, United States v.

Martel, 19 M.J. 917, 924-926 (A.C.M.R. 1985).

Background

As previously noted, MSgt Johnny McCarty was

convicted of attempted carnal knowledge, sodomy and

indecent acts on Hollie, a child under 16 years of age. Hollie

was first questioned by law enforcement authorities on 17

January 1992. She made no allegations of sexual abuse until

19 January 1992. The prosecution sought to introduce

testimony from Hollie’s natural mother, Janet Evans, that she

received a telephone call from the appellant’s wife on 18

January 1992, the day before Hollie’s revelations. Trial

counsel proffered:

The following morning, 18 January 1992, Mrs Janet

Evans received a phone call from Sergeant

McCarty’s wife. Janet Evans will testify that Mrs

McCarty calied her and said, Janet, your daughter is

making allegations that my husband sexually

abused her. If you will tell her to drop these

allegations, these charges, we'll work something out

to get custody back to you.

R. 111. This alleged call was of significant importance in

proving the prosecution’s case.

However, we do believe that it is relevant and very

important to come to a jury, and that it is

circumstantial evidence of the guilty mind of the

accused. The investigators also will testify that Mrs

McCarty was not present that night et the police

station. Again, there was no mention of sexual

abuse or sexual molestation to Sergeant McCarty

that night by anyone, yet Janet Evans will testify

that his wife knew about these allegations on

Saturday morning. The evidence will further show

that Hollie did not come forward and formally make

any abuse allegation until 19 January.

* * *

But after further looking at it hard, it was the

government’s position that it isn’t hearsay, because,

again I think the rule is the truth of the matter

asserted in the statement, the statement being, your

daughter has made allegations my husband has

sexually molested her. We’re not saying that

Statement is true because, in fact, Hollie hadn’t

made any allegations until the following day. We're

just offering that it was said and the government

believes that it is circumstantial evidence that goes

to the guilty conscience of the accused because

there would have been no other way Mrs McCarty

would have known unless her husband had told her

because she was not present that night.

R. 111-112, 113—114 (emphasis added).

Defense counsel objected to this evidence on the grounds

of hearsay and privileged communications. R. 112—113, 114.

The military judge ruled contrary to the defense, R. 115, and

Janet Evans thereafter testified as follows:

Yes. Margaret McCarty called me. She said that

Hollie had stolen some rings, and she had found

them in her drawer, asked Hollie about them, she

didn’t believe they weren’t worth anything, so she

took them and had them appraised. She found out

they were worth a lot more money so she went to

the lady that Hollie had babysat for, and the lady

said, yes, those were her rings, and that she had

pressed charges against her. She said that they had

taken Hollie downtown and that Hollie had accused

Johnny McCarty of sexually molesting her, and that

if I would please, please, just tell her and convince

her not to press charges, that I could have my

daughter back.

R. 353-355 (emphasis added).

Following the testimony of Janet Evans, the military

judge instructed the members as follows:

Members of the court, the statements allegedly

made by Mrs McCarty to Mrs Evans, in their phone

conversation, would be hearsay if offered to prove

the truth of the matter asserted. That is, that Hollie

was alleging she had been sexually abused. A

statement is not hearsay if it is not offered to proved

the truth of the matter asserted.

You may believe or not believe, as yo see fit,

whether the statements were said by Mrs McCarty.

However, in determining whether the accused is

guilty of the offenses involving Hollie Smith, you

may not consider them as evidence to prove the

truth of the matter asserted, which is Hollie alleging

that she was sexually abused.

The purpose of the testimony, as trial counsel stated, was

to show consciousness of guilt on the part of the appellant.

Trial counsel stressed this during arguments on findings where 7

he stated:

ie »- .

No one, all the investigators there that night, andthe

social worker came in here and told you, number

one, she didn’t admit abuse that night; and number |

two, no one mentioned anything to him about ,

sexual molestation or sexual abuse. He was read his :

rights, as Sergeant Slease told you in his stipulation

of expected testimony, he was read his rights for

endangering the welfare of a minor by providing

alcohol. That was it. No mention of sexual

molestation or abuse.

But he didn’t know what Hollie had said back there.

She had been back there for a long time, so now

what’s he got to do? He’s a security policeman. Do I

go home and tell my wife that Hollie has made these

allegations, or do I wait, because the cops are going

to be coming, because we submit to you, members,

that in his mind he thought she’d spilled the beans,

and that’s why she was taken out of there by a

social worker. So now he’s between a rock and a

hard place. Do / tell her? Do I come up front with

her and say Hollie has made these allegations, or

do I wait for the police to come take me away, and

tell her at that time?

* * *

And then what he did, members, is he told his wife,

you’re going to hear, or Hollie saying-—members,

the government submits to you that his wife, at that

time became upset. She believed him, couldn’t

figure out what was going on with Hollie, so the

next morning she called Mrs Evans, she called Janet

Evans.

* * *

Members, that was the first person that Hollie Smith

ever admitted to that she had been sexually abused.

And that was Sunday, January 19th. So, how did

Mrs McCarty know on Saturday morning, January

18th? It’s simple, members, he panicked; he

panicked and figured he'd better tell his wife before

the cops come and get him, having no idea that his

wife would then call Janet Evans.

* * *

And members of the court, again I ask you to keep

in mind, because the government does submit that

Margaret McCarty, the morning she called Janet

Evans, told her about the allegations and if you

believe Janet Evans, that that call was made, then

you've got to ask yourselves, how would Margaret

McCarty know when Hollie Smith had never told

anyone, had told no one, no one mentioned a thing

to that man about any sexual abuse, how would

Margaret McCarty know? The only logical

conclusion you can come to, members of the court,

is that he panicked. He panicked and he told his

wife because he thought the cops were going to be

coming, only he didn't know that Hollie was still

keeping their little secret.

R. 639-641, 643 (emphasis added).

While the prosecution’s interest in presenting this

testimony is understandable from the standpoint of advocacy,

that interest does not convert inadmissible evidence into

admissible evidence. The evidence which the prosecution

alleged showed consciousness of guilt, appellant telling his

wife that Hollie had made these allegations, was a confidential

spousal communication and the military judge therefore

abused his discretion in denying the defense objection.

Analysis

In analyzing this issue, it is important to distinguish

between spousal incapacity and confidential communications.

As the Court of Appeals for the Armed Forces in United

States v. Hughes, 28 M.J. 391 (C.M.A. 1989), observed:

Mil.R.Evid. 504 recognizes the “Husband—wife

privilege.” Section (a), “Spousal incapacity,”

succinctly provides: “A person has a privilege to

refuse to testify against his or her spouse.” This

language quite clearly makes two points——both of

which are recognized in the Drafters’ Analysis of

the rule: First, the privilege belongs to the

witness—spouse, not the accused—spouse; second,

the privilege addresses the capacity of the testifying

spouse to testify in court at all, rather than the

content of the testimony.

In both respects, this rule is distinguishable from

section(b), “Confidential communications made

during marriage.” Subsection (1) defines this

privilege as follows: “A person has a privilege

during and after the marital relationship to refuse to

disclose, and to prevent another from disclosing,

ary confidential communication made to the spouse

of the person while they were husband and wife and

not separated as provided by law.” In contrast to the

incapacity rule of section (a), this privilege is, at

once, more expansive and more narrow: It belongs

to either spouse, not just the testifying spouse: but it

protects only confidential marital communications

between the spouses, not in—court testimony about

matters other than communications.

Id., at 393 (emphasis added).

The Hughes court went on to further distinguish the

impact between these two sections of Mil.R.Evid. 504:

In short, then, as the Archer! court concluded, once

the Supreme Court ruled in Trammel* that the

spousal—testimony privilege belongs only to the

testifying spouse and that the defendant—spouse

may not invoke it, the conclusion logically follows

that neither can the defendant object to the spouse’s

out—of—court testimony. Moreover, again as the

Archer court reasoned, the whole rationale

underlying the witness—spouse’s privilege in court is

absent when the statement was made out of court:

The out of court statement already has been made,

! United States v. Archer, 733 F.2d 354 (Sth Cir.), cert. denied, 469

U.S. 196 (1984).

-Trammel v. United States, 100 S.Ct. 906 (1980).

aa aaceaiiiaiiiiiiliiaiiiiiaaiaiialiaii ial

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so whatever harm to the marriage that might flow

from such a statement already has occurred. While

the marital-communications privilege is based on

the policy of fostering marital confidences and

focuses, therefore, on the timing of the

communication (that is, it must be made within the

marriage relationship), the spousal—testimony

privilege focuses on the court-room and on the

impact on the marriage from what happens there.

In Wolfe v. United States, 54 S.Ct. 279 (1934), this

Honorable Court made the following observation concerning

marital confidences:

The basis of the immunity given to communications

between husband and wife is the protection of

marital confidences, regarded as so essential to the

preservation of the marital relationship as to

outweigh the disadvantages to the administration of

justice which the privilege entails. [Citations

omitted]. Hence, it is that the privilege with respect

to communications extends to the testimony of

husband or wife even though the different privilege,

excluding the testimony of the one against the other,

is not present. [Citations omitted].

Id., at 280.

The differing societal interests protected by the distinct

provisions of Mil.R.Evid. 504 mandate contrary results when

a spouse’s out—of—court statement is introduced against an

accused via a third party. As noted by the Hughes Court, this

was discussed in United States v. Archer, 733 F.2d 354 (Sth

Cir. 1984), where it was observed:

Trammel denies the defendant the right to exclude

the testimony of his spouse offered against him at

trial; so must it deny him the right to exclude the

10

spouse’s out—of—court statements when offered in

evidence by a writing or through testimony of a

third party. The witness—spouse enjoys the right to

refuse to testify at trial, of course, but it would

strain both the logic of Trammel and the basis of the

privilege to allow the witness—spouse who refuses

to testify under Trammel or who testifies for the

defendant to demand the exclusion of previous

statements made out of court.

An out—of—court spousal statement is already made

by the time of trial. Marital harmony would be

enhanced minimally if at all, therefore, by

excluding the statement when offered after the fact

through a third—party witness at trial, and the “the

normally predominant principle of utilizing all

rational means for ascertaining truth” would be

unnecessarily frustrated. [Citations omitted]. . .

Finally, like the Trammel court, we distinguish

communications from one spouse to another made

in confidence. Such statements are protected,

regardless of the means by which they are offered

into evidence, by the separate privilege accorded

confidential marital communications. [Citations

omitted].

Id., at 358-359. This echoes the reasoning of the court in

United States v. Nees, 18 U.S.C.M.A. 29, 39 C.M.R. 29

(1968):

While the presence of a third person at the time the

communication was made might be evidence that

no confidentiality was intended [citations omitted],

the same view does not obtain for documents

coming into possession of a third person through

voluntary delivery by the addressee—

1]

spouse——otherwise the privilege could by collusion

be practically nullified for written communications.

As Wigmore states, “The privilege is intended to

secure freedom from apprehension in the mind of

the one desiring to communicate; it thus belongs to

the communicating one.” [Citation omitted].

Id., at 32 (emphasis in original).°

Having established the general principle that an accused

may prevent a third party from disclosing marital confidences,

the next matter to address is whether the elicited testimony

involved such a confidence. All “[m]arital communications

are presumptively confidential, Blau v. United States, 340

U.S. 332, 333, 71 S.Ct. 301, 302, 95 L.Ed. 306 (1951):[4]

Hipes v. United States, 603 F.2d 786 (9th Cir. 1979); and such

presumption may only be overcome ‘by proof of facts

showing that they were not intended to be private.’ Pereira v.

United States, 347 U.S. 1, 6, 74 S.Ct. 358, 361, 98 L.Ed. 435

(1954).” United States v. Whitehead, 30 M.J. 1066, 1072

(A.C.M.R. 1990).

The prosecution argued that the appellant “had told” Mrs

McCarty about the sexual abuse allegations. R. 114 (emphasis

added). Thus, it was clearly communicative. Further, there

3An accused—spouse has an even greater expectation that verbal

communications will remain confidential. Written communications

have a certain degree of permanence compared to the spoken word.

“Where a letter of one spouse falls into the hands of a third person,

it is said that the ‘sacred shield of privilege’ is removed, since one

who makes a communication to another in writing is deemed to

have understood that it might be preserved and used against him.”

United States v. Higgins, 6 U.S.C.M.A. 308, 20 C.M.R. 24, 33

(1955), citing Wharton, Criminal Evidence, 11 ed., § 1256.

‘in Trammel v. United States, 100 S.Ct. 906, 909-910, note 5

(1980), the Court observed that they were not disturbing the

decisions in Wolfe and Blau.

12

_

was no contention that the appellant and Mrs McCarty were

not married, or that the communication occurred outside the

marital relationship. “So long as a married couple has not

been ‘separated as provided by law,’ the confidential

communication is privileged.” United States v. Tipton, 23 M.J.

338, 344(C.M.A. 1987).

The prosecution never argued, nor was any evidence

presented to establish, that the appellant intended his spouse

to disclose the confidence to a third person. Indeed, trial

counsel argued to the contrary when he asserted the appellant

had “no idea that his wife would then call Janet Evans.” R.

641. Cf, United States v. Whitehead, 30 M.J. at 1072-1073

(“We agree with the military judge that appellant’s

communication to Mrs. Whitehead to ‘tell them what time he

came home’ was not a confidential communication since it

was intended to be conveyed by her to third persons, namely

CID agents that might be calling”); United States v. Martel,

19 M.J. 917, 925-926 (A.C.M.R. 1985)(“any private

communication between spouses is presumed confidential and

thus privileged; however, this presumption can be negated by

proof that the communication, although uttered in private, was

of such a nature or was made under such circumstances as

obviously to have been intended to be subsequently conveyed

to other persons”).

Neither the appellant nor his wife testified on direct

examination about conversations occurring after the appellant

returned home on the evening of 17 January 1992. The

appellant certainly did not “predicat[e] his defense” on any

such conversation. United States v. Smith, 33 M.J. 114, 118

(C.M.A. 1991). On direct and cross examination Mrs

McCarty merely responded in the negative when asked if she

had told Janet Evans anything about sexual allegations on 18

January 1992. R. 498-499, 500. Under such circumstances

there was no waiver of the privilege.

iii

13

Even if waiver could be implied, the analogous situation

considered by the Martel Court is applicable:

We recognize that “waiver may be found in.. .

some act of testimony which in fairness places the

person in a position not to object consistently to

further disclosure. 8 Wigmore, Evidence § 2340(2)

(McNaughton rev.1961)(emphasis added).

However, we conclude that admission of substantial

portions of Gracie’s testimony in this case was

error, based upon our finding that it is

fundamentally unfair to invoke a waiver of marital

privilege when an appellant timely asserts the

privilege at trial, is erroneously thwarted in this

effort by the military judge, scrupulously avoids

testifying as to the privileged communications on

direct examination, and denies engaging in these

acts and conversations in response to questions

posed by the government and the court members. To

hold otherwise would provide the government with

an unfair advantage and a virtually unrestrained

Opportunity to circumvent the President’s intent in

promulgating M.R.E. 504(b). This we will not do.

Moreover, the government’s failure to raise the

issue of appellant’s waiver of the marital privilege

at trial circumscribes our ability to review this issue

on appeal absent plain error. See United States v.

Brown, 634 F.2d at 829.

19 M.J. at 930.

One last aspect of Mil.R.Evid. 504 bears comment.

Mil.R.Evid. 504(c)(2) states that there is no privilege “In

proceedings in which one spouse is charged with a crime

against . . . a child of either.” While Hollie may have been in

the custody of the McCarty’s, she was not “a child of either.”

The President, in adopting the Military Rules of Evidence, has

ikem

oi eth ah

14

not followed the path of several states in extending this

exception to custodial settings. See, e.g., Meador v. State, 711

P.2d 852, 854 (Nev. 1985)(“a child of either, or a child in the

custody or control of either”); State v. Penn, 412 S.E.2d 660,

662 (N.C. 1992)(“the minor child of either spouse, including

any illegitimate or adopted or foster child of either spouse”);

State v. Cohen, 576 P.2d 933, 938 (Wash. Ct. App. 1978)(“any

child of whom said husband or wife is the parent or guardian”).

Thus, the exception does not apply in appellant’s case.

CONCLUSION

Appellant’s trial was lengthy and the charges hotly

contested. A conviction, particularly without the testimony

concerning the telephone conversation between Mrs McCarty

and Janet Evans, was far from certain. The military judge’s

ruling violated the process due as protected by the Sth

Amendment to the United States Constitution. The conviction

should be set aside.

Respectfully submitted,

ORMOND R. FODREA,

Major, United States Air Force

Appellate Defense Counsel

Counsel for the Petitioner

Air Force Legal Services Agency

Appellate Defense Division

112 Luke Avenue, Suite 343

Bolling AFB, DC 20332-8000

(202) 767-1562

December 1996

!

la

APPENDIX A

UNITED STATES, Appellee

V,

Johnny R. McCARTY, Master Sergeant

U.S. Air Force, Appellant

No. 95-0851

Crim. App. No. 30556

United States Court of Appeals for the Armed Forces

Argued May 22, 1996

Decided Sep. 30, 1996

Counsel

For Appellant: Colonel Jay L. Cohen (argued); Captain

Richard R. Desmond (on brief).

For Appellee: Colonel Jeffery T. Infelise (argued); Captain R.

Scott Howard.

Military Judge: Howard R. Altschwager

i i a,

2a

Opinion of the Court

COX, Chief Judge:

Appellant was convicted of crimes arising out of sexual

misconduct with his niece, a child under the age of 16.) We

granted his petition to consider whether evidence introduced

against him at trial was a confidential spousal communication,

and was therefore inadmissible as a privileged communication

under Mil.R.Evid. 504(b), Manual for Courts—Martial, United

States (1995 ed.). We hold that it was not.

FACTS

The victim, appellant’s niece, lived in appellant’s home.

She and a girlfriend were implicated in a theft of jewelry

which had taken place in a residence on Malmstrom Air Force

Base. At the request of the security police, appellant took his

niece to the police station to be interviewed concerning the

theft. En route, appellant asked his niece to lie about alcohol

that he had furnished her and her girlfriend. The alcohol had

been found in a-closet in the girlfriend’s room. He also asked

her not to tell the police about his sexual activities with her.

| Appellant was tried by a general court-martial at Malmstrom Air

Force Base, Montana, consisting of officer and enlisted members.

He was convicted, contrary to his pleas, of attempted carnal

knowledge, sodomy with a child, and committing indecent acts, in

violation of Articles 80, 125, and 134, Uniform Code of Military

Justice, 10 USC §§ 880, 925, and 934, respectively. He was also

convicted of violating Montana law by giving an alcoholic

beverage to a minor, in violation of Article 134. Appellant received

a bad—conduct discharge, confinement for 10 years, and reduction

to Airman First Class. The convening authority approved the

sentence. The Court of Criminal Appeals affirmed the findings and

the sentence in an unpublished opinion.

3a

Although the victim eventually told the security police the

truth about the alcohol found in her girlfriend’s closet, she did

not tell the police about appellant’s sexual activities with her.

Following the interview, the Montana Department of

Family Services became involved in the case and made a

decision to remove the victim from appellant’s home. The

victim did not reveal the sexual misconduct to the Montana

authorities. The first time the victim told anyone about the

sexual misconduct was on January 19, when she revealed it to

her mother during a telephone conversation.

On January 18, and before the victim had told anyone

about appellant’s sexual behavior toward her, appellant’s wife,

Margaret, telephoned Janet Evans, the victim’s mother. Ms.

Evans testified about statements Mrs. McCarty made to her

during that conversation, as follows:

Yes. Margaret McCarty called me. She said that [H][the

victim] had stolen some rings, and she had found them in her

drawer, asked [H] about them, she didn’t believe they [were]

worth anything, so she took them and had them appraised.

She found out they were worth a lot more money so she went

to the lady that [H] had baby sat for, and the lady said, yes,

those were her rings, and that she had pressed charges against

her. She said that they had taken [H] downtown and that [H]

had accused Johnny McCarty of sexually molesting her, and

that if I would please, please, just tell her and convince her

not to press charges, that I could have my daughter back.

Then she proceeded to tell me what a horrible, horrible child |

had, how she didn’t... .

At that point, defense counsel objected to the testimony

as being beyond the ruling of the military judge. His objection

was sustained. Following the witness’ testimony, the military

judge instructed the members that they could not consider the

Statements as evidence that H “was alleging she had been

sexually abused.” He continued:

4a

You may believe or not believe, as you see fit,

whether the statements were said by Mrs. McCarty.

However, in determining whether the accused is

guilty of the offenses involving H., you may not

consider them as evidence to prove the truth of the

matter asserted, which is H. alleging that she was

sexually abused.

In resolving the issue presented in this case, we must first

look at how it was raised at trial. During an in camera session,

Article 39(a), Uniform Code of Military Justice, 10 USC

§ 839, trial counsel advised the military judge that he intended

to call Ms. Evans for the purpose of introducing the foregoing

statement. Defense counsel initially contended that the

evidence was hearsay. At the prompting of the military judge,

defense counsel further stated that he believed the statement

also involved the spousal privilege. Importantly, although

there was some discussion between the military judge and

defense counsel concerning whether the statement was

covered by the spousal privilege, no specific objection was

made on that basis, and no findings of fact were made by the

military judge.

?Although we do not base our decision on waiver, this case shows

exactly why Mil.R.Evid 103, Manual for Courts—Martial, United

States (1995 ed.), requires a timely objection, stating the specific

ground of objection, and requires a record that the appellate court

can review. It is difficult, if not impossible, to second guess the

intent of the trial defense counsel if he or she does not make the

specific objection known to the military judge. Though not at issue

here, a good argument can be made that the testimony of Ms. Evans

concerning her conversation with Mrs. McCarty was “double

hearsay” or perhaps even “triple hearsay, i.e. Mrs. McCarty said

that appellant said that H said, etc. However, it appears from the

record that all the parties understood that the evidence was being

offered as a “circumstance” surrounding the first revelation of the

allegations, and nothing else.

Sa

At trial, the prosecution used the statement to argue that

it was evidence of appellant’s guilt. Trial counsel stated:

[I]f you believe Janet Evans, that that call was

made, then you've got to ask yourselves, how

would Margaret McCarty know when [H] [the

victim] had never told anyone. . . . The only logical

conclusion you can come to, members of the court,

is that he panicked. He panicked and he told his

wife because he thought the cops were going to be

coming, only he didn’t know that [H] was still

keeping their little secret.

The Court of Criminal Appeals found:

While the appellant is certainly correct that trial

counsel treated the appellant’s wife’s comments, as

reported by Janet, as circumstantial evidence to

show the appellants guilty state of mind, we find no

spousal “confidential communication” here to

protect. Mil.R.Evid. 504(b)(1).

Unpub. op. at 4.

We agree with the court below. Mil.R.Evid 504(b)(1)

provides:

A person has a privilege during and after the marital

relationship to refuse to disclose, and to prevent

another from disclosing, any confidential

communication made to the spouse of the person

while they were husband and wife and not separated

as provided by law.

There is nothing inherent in the testimony of Ms. Evans

that reveals itself as a confidential marital communication.

First, Ms. McCarty denied making any such statement to Ms.

Evans. Second, it can be fairly argued that the military judge

and defense counsel were focused on the idea that the

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telephone conversation contained a hearsay declaration of the

victim, not a spousal privileged communication. Assuming

arguendo that the conversation could be so construed, the

burden of establishing that there even was a marital

communication is upon the party claiming it. See Mil.R.Evid.

504(b)(3), Manual, supra. There is in fact no direct or

circumstantial evidence that appellant ever had a privileged

conversation with his wife. Under these circumstances, we

conclude that appellant failed to make out a claim of a

privileged communication. Lastly, there was no objection to

the testimony on the grounds of spousal privilege, only

conversation about it. Therefore, the military judge did not

abuse his discretion, so his ruling allowing admission of the

testimony was not clearly erroneous. Mil.R.Evid. 103; see

United States v. Rust 41 MJ 472, 479 (1995).

Once the military judge allowed the telephone

conversation into evidence, the logical and legal inferences

which could be drawn from that conversation, i.e. that

appellant had guilty knowledge of the sex abuse prior to the

time the allegations were actually made, were fair game. The

military judge instructed the members that they could not

consider the statements for the truth that the victim had in fact

made allegations. No objection was taken to his limiting

instructions.

Accordingly, we find no error which materially

prejudiced the substantial rights of appellant.

The decision of the United States Air Force Court of

Criminal Appeals is affirmed.

Judges CRAWFORD and GIERKE concur.

7a

SULLIVAN, Judge (concurring in the result):

Mil.R.Evid. 504(c) (2), Manual for Courts—Martial,

United States, 1984, states:

(2) Spousal incapacity and confidential

communications. There is no privilege under

subdivisions (a) or (b):

(A) In proceedings in which one spouse is

charged with a crime against the person or property

of the other spouse or a child of either, or with a

crime against the person or property of a third

person committed in the course of committing a

crime against the other spouse. .. .

HS is appellant’s niece. She lived with appellant from age 2 to

12 because Janet Evans was unable to care for her. I would

hold that HS was a “de facto” child of appellant and his wife

for purposes of this rule.

On the hearsay question noted by Senior Judge Everett

and not granted for review by the Court, I find no error. The

prosecution wanted to evidence the words of Mrs. McCarty to

show her knowledge of or state of mind as to HS’s complaint

against her husband. Since no complaint had been made by

HS at the time Mrs. McCarty said these words, the

prosecution hoped the members would infer that her

knowledge or state of mind was caused by her husband’s

telling her incorrectly that such a complaint was made or that

such a complaint would be made. Such action by appellant

was relevant as evidence of his consciousness of his guilt. The

initial evidentiary proposition that Mrs. McCarty said certain

words can be proved by testimony of someone hearing those

words without violating the hearsay rule if such evidence is

not offered to establish the truth of those words. Cf.

Mil.R.Evid. 801(c) (“Hearsay is a statement . . . offered in

evidence to prove the truth of the matter asserted.”).

Sa

EVERETT, Senior Judge (dissenting):

I agree with the majority’s conclusion that the evidence

in question was not an inadmissible confidential spousal

communication. However, I cannot accept its premise that

“[t]here is nothing inherent in the testimony of Janet Evans

that reveals itself as a confidential marital communication.”

—MJ at (4). See Mil.R.Evid. 504(b), Manual for

Courts—Martial, United States (1995 ed.).

I

When trial counsel offered the testimony of Ms. Evans,

defense counsel objected to admissibility of the challenged

sentence on the ground, inter alia, that it was hearsay——that

Mrs. Evans would testify as to what Mrs. McCarty had told

her. Mil.R.Evid. 802. In response, trial counsel asserted that it

was not hearsay because the prosecution was not offering it to

prove the truth of the matter asserted—-that is, that appellant

had sexually molested his niece. Mil.R.Evid. 801(c). Rather,

in the words of the Court of Criminal Appeals, trial counsel

contended that this “testimony supplied evidence of the

appellant’s guilty mind, since he must have leaped to the

conclusion that Hollie reported his abuse and fold that to his

wife.” Unpub. op. at 4 (emphasis added). As an aside, as the

majority opinion points out, an argument might well be made

under this view that Ms. Evans’ testimony might be not only

hearsay, but even double or triple hearsay.__MJ at (5) n.2.

Now, in considering the granted issue whether admission

of this testimony violated the spousal communication

privilege, the majority-—in agreement with the Government

and with the court below—-—says no, implicitly, because the

testimony does not necessarily represent that Mrs. McCarty

learned of the purported allegation from her husband. In other

words, the testimony itself does not necessarily indicate that

appellant’S wife had learned of the purported report from her

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husband; that she could have learned of it any number of

ways; and that, accordingly, appellant had not carried his

burden of asserting the privilege.

The circularity of the Government’s trial and appellate

positions, the latter of which has been subscribed to by the

Court of Criminal Appeals and now by the majority of this

Court, is obvious: How can one escape the spousal

communication issue on the basis that there was no showing

that the matter was learned by appellant’s wife from her

husband, when the only theory relied upon for admission of

the testimony over a hearsay objection at trial necessarily was

conditioned on appellant having told his wife about the

matter?! Either appellant’s wife learned of this from her

husband (the necessary factual predicate for trial counsel’s

theory of admissibility), or she did not (the basis of the

majority's avoidance of the spousal communication theory).

Nonetheless, I join the majority in rejecting the

appellant’s claim of spousal privilege. Mil.R.Evid.

504(c)(2)(A) provides that there is no spousal communication

privilege “[i]n proceedings in which one spouse is charged

with a crime against the person or property of the other

spouse or a child of either . . .” While H was not the offspring

of appellant and his wife, the fact is that, as her uncle and

aunt, they had raised her as their custodial child for over 10

years, since she was 2 years old. I have no doubt that the

purpose behind refusing the privilege to one accused of a

crime against the couple’s child would apply with equal force

where the child was in the custody of the couple and for many

years had been raised as their own.

II

In my view, however, appellant’s hearsay claim must be

upheld. The relevance of Ms. Evans’ testimony was to

establish that Mrs. McCarty had made a statement to her from

10a

which it could be inferred that appellant had stated to his wife

that he had abused the child. His statement to Mrs. McCarty

would not be hearsay under Mil.R.Evid. 801(d). Arguably, his

wife’s declaration about the admission appellant made to her

was not hearsay, either. See Mil.R.Evid. 801(d)(2). However,

Ms. Evans’ repetition of Mrs. McCarthy’s declaration clearly

was hearsay and no exception applies to justify reception of

this hearsay into evidence. Therefore, it should have been

excluded as appellant contended at trial. In my view,

reception of the evidence was prejudicial error. Art. 59(a),

Uniform Code of Military Justice, 10 USC § 859(a).

lla

APPENDIX B

UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

UNITED STATES

V.

Master Sergeant JOHNNY R. McCARTY,

FR466—88-—6695

United States Air Force

ACM 30556

5 April 1995

Sentence adjudged 1 February 1993 by GCM

convened at Malmstrom Air Force Base, Montana.

Military Judge: Howard R. Altschwager.

Approved sentence: Bad—conduct discharge,

confinement for 10 years, and reduction to E-3.

Appellate Counsel for Appellant: Colonel Terry J.

Woodhouse, Colonel Jay L. Cohen, Lieutenant

Colonel Frank J. Spinner, and Captain Robert E.

Watson.

Appellate Counsel for the United States: Colonel

Jeffery T. Infelise.

12a

Before

HEIMBURG, SCHREIER, and BECKER

Appellate Military Judges

OPINION OF THE COURT

HEIMBURG, Senior Judge:

In a trial before a general court-martial which included

enlisted members, the appellant was convicted of attempted

carnal know!edge, sodomy and indecent acts on Hollie, a

child under 16 years of age, and wrongfully giving alcoholic

beverages to persons under 21. Articles 80, 125, and 134,

UCMJ, 10 U.S.C. §§ 880, 925, and 934 (1988). His approved

sentence is a bad—conduct discharge, confinement for 10

years, and reduction to E-3. The appellant has asserted four

errors, none of which we find persuasive.

In his first assignment of error, the appellant asserts the

military judge erred in denying his challenge of two members

for cause. We consider the challenge against Chief D first.

Before the convening authority amended the membership to

include Chief D, trial defense counsel had sent him a letter

asking for a character reference, which the chief declined to

give. At trial, Chief D stated he declined to give a reference

because he didn’t believe it was “appropriate.” The appellant

asserts that the chief’s refusal to give a character reference

amounted to a negative opinion about the appellant. In this

appeal, but not at trial, the appellant also seizes on Chief D’s

response to a voir dire question: had he formed an opinion as to

whether the appellant is a truthful or an untruthful person?

Chief D replied: “Not that it would pertain to this matter, no,

Sir.” No one further questioned the chief about this response,

and it formed no basis for challenge. The appellant now argues

that the chief’s reluctance to give a character statement, in light

13a

of this comment, clearly shows that he had formed an opinion

that the appellant was not truthful, which he refused to disclose.

The military judge questioned Chief D about the basis

for his refusal to give a character statement. The chief

responded that he didn’t know the appellant very well, not

well enough to write a character statement. He denied that his

refusal had anything to do with the allegations in the case.

The military judge was convinced, as are we, that Chief D’s

refusal was based on his lack of knowledge of the appellant

and his principled policy not to give character statements

unless he had a substantial basis for such an opinion.

Trial defense counsel challenged Major J on the basis

that he would be improperly influenced by prior knowledge of

the case. After counsel finished questioning Major J in

individual voir dire about an unrelated matter, the major

volunteered that, as he was listening to “input” (presumably

from counsel and the judge) he recalled having seen some

“paperwork associated with this case as it came through the

blotter-—the blotter and police reports.” Major J said he

served as executive officer to the commander who convened

the court-martial, and as part of his duties he reviewed all

police blotters and reports which came into the office. He

recalled no specifics about the appellant’s case except the

charges, never discussed the case with anyone else, including

the commander, and felt himself able to base his decision

solely on what he saw and heard in court.

Military judges are enjoined to use a liberal standard

when ruling on challenges, but our review is for abuse of

discretion. United States v. McLaren, 38 M.J. 112 (C.M.A.

1993); United Staies v. White, 36 M.J. 284 (C.M.A. 1993). We

find that the military judge did not abuse his discretion in

denying the challenges against these two members. United

States v. Lake, 36 M.J. 317, 324 (C.M.A. 1993); United States

v. Reynolds, 23 M.J. 292 (C.M.A. 1987).

\

l4a

In his second assignment of error, the appellant asserts

the military judge erred in admitting, over defense objection,

Hollie’s testimony about the appellant's prior sodomy and

indecent acts on her. Hollie, who was 14 years old at trial,

testified that her earliest memories of the appellant, beginning

at age two, were of “him coming into my room and pulling

down his pants and telling me to suck his penis.” She testified

that he also kissed her, touched her, and would “perform oral

sex” on her, and these events occurred “three, two times a

week” prior to the earliest charged offenses. The military

judge ruled this testimony was admissible, under Mil. R.

Evid. 404(b), to “prove plan, scheme, or a continuous pattern

of conduct” and “to show that the accused had the necessary

intent to arouse or appeal to his sexual desires for young

girls.”

Our review of the military judge's ruling is for abuse of

discretion. United States v. Acton, 38 M.J. 330, 332 (C.M.A.

1993), cert. denied, — U.S. — , 114 S. Ct. 1056 (1994).

When we consider the admissibility of evidence under Mil.

R. Evid. 404(b), we bear in mind that it need not “fit within

a particular category listed in the rule.” United States v.

Castillo, 29 M.J. 145, 150 (C.M.A. 1989). The military

judge spoke of “plan, scheme, or a continuous pattern of

conduct,” but if the evidence he admitted is relevant for

some purpose other than to demonstrate criminal

predisposition, and if its probative value is not substantially

outweighed by the danger of unfair prejudice, it is

admissible. Acton, 38 M.J. at 333; Castillo, 29 M.J. at 150;

Mil. R. Evid. 403.

Hollie could not, with few exceptions, recall specific

times and occasions when the appellant committed the various

sexual acts on her, in large part because the acts began so

early in her life and continued for so long. The evidence of

appellant’s prior acts was properly admitted to explain her

1Sa

lack of specificity. Moreover, such evidence was admissible to

Show why Hollie was so conditioned by the appellant’s

benavior that she didn’t complain or turn him in to authorities

when she became older. See Acton; United States v. Saul, 26

M.J. 568 (C.M.A. 1988). We find no abuse of discretion in the

military judge’s ruling admitting Hollie’s testimony about the

appellant’s prior acts of sexual abuse. Mil. R. Evid. 403.

The appellant’s third assignment of error is that the

military judge erred in permitting a breach of the marital

privilege of Mil. R. Evid. 504(b). Over defense objection, the

military judge permitted Janet, Hollie’s mother, to testify

about a telephone conversation she had with appellant's wife

the morning before Hollie reported the appellant’s sexual

abuse.

Hollie was called into the base security police office on a

Friday evening, accompanied by the appellant, to be

questioned about the theft of some rings. Hollie testified that

the appellant was nervous, and, as he drove her to the security

police office he cautioned her not to report their sexual acts.

She testified that she did not report sexual abuse by the

appellant, despite being questioned about it by investigators

who were suspicious of her relationship with the appellant.

The investigators corroborated Hollie’s testimony that no

report was made that evening. Nevertheless, because of their

suspicions about the family, they called a state social worker,

who put Hollie into a temporary “receiving home.” The next

morning, Janet testified, the appellant’s wife telephoned her,

ostensibly to cancel a previously—planned birthday celebration

for Hollie. Janet testified that the appellant’s wife said that

Hollie “had accused [appellant] of sexually molesting her, and

that if I would please, please, just tell her and convince her

not to press charges, that I could have my daughter back.”

Trial counsel argued that Janet’s testimony supplied evidence

of the appellant’s guilty mind, since he must have leaped to

l6a

the conclusion that Hollie reported his abuse and told that to

his wife. ,

Although the appellant argues that the testimony of Janet

constituted a breach of the spousal communication privilege,

we find no breach because we find no testimony relating a

spousal communication. Janet’s testimony reported a

conversation she had with the appellant’s wife, initiated by the

appellant’s wife. None of Janet's testimony about that

conversation revealed any purported words spoken between

the appellant and his wife. Nor did Janet testify about the

substance of anything that appellant told his wife. The

appellant's wife reported, as a fact, that Hollie reported sexual

abuse. The trial counsel, by proving that no report occurred,

used Janet’s testimony as circumstantial evidence to show that

the appellant must have told his wife something she could

have learned nowhere else: that Hollie reported his alleged

sexual abuse to authorities. From that, he argued the

appellant’s consciousness of guilt. While the appellant is

certainly correct that trial counsel treated the appellant’s

wife’s comments, as reported by Janet, as circumstantial

evidence to show the appellant’s guilty state of mind, we find

no spousal “confidential communication” here to protect. Mil.

R. Evid. 504(b)(1).

In his final assignment of error, the appellant asserts the

military judge erred in his instruction on the elements of the

specification of Charge IV, which charged the appellant with

wrongfully giving alcoholic beverages to minors in violation

of state law, the Assimilated Crimes Act, and Article 134,

UCMJ. The judge instructed the members on an additional

element not required for conviction of an assimilated crime

under 18 U.S.C. § 18 (1988), but that did not prejudice the

appellant. United States v. Williams, 17 M.J. 207, 216-17

(C.M.A. 1984). While the instructions on this offense were

not a model of clarity (the judge misspoke at one point), no

17a

element was omitted, and, considered as a whole, they

adequately informed the members of all the elements they

were required to find beyond reasonable doubt. The appellant

did not object. We find no prejudice to the appellant. Article

59a), UCMJ, 10 U.S.C. § 859(a) (1988). See United States v.

Alford, 31 M.J. 814, 817-19 (A.F.C.M.R. 1990).

We conclude the findings and the sentence are correct in

law and fact, the sentence is appropriate, and no error

prejudicial to the substantial rights of the appellant was

committed. Accordingly, the findings of guilty and the

sentence are

AFFIRMED.

Judges SCHREIER and BECKER concur.

OFFICIAL

ALVIN STRIBLING

Technical Sergeant, USAF

Chief Court Administrator