# Petition for Writ of Certiorari — McCarty v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1997
- **Citation:** 519 U.S. 1117

## Text

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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
Page
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CONSTITUTIONAL PROVISIONS INVOLVED ........ l
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TABLE OF AUTHORITIES
Page
_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._.
Pe PI ko eos bss ee ee 9
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

vi

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:
En es bs Os bas Wee PA ea 13

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

we a cette ds lain Ai

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

6a

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

9a

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0379%3A1. Public record. Not legal advice.