Petition for Writ of Certiorari — McGrath v. United States
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Bupreme Court, U.8.
) FILED
94 190 auc 14199
No.
OFFICE OF HE cl Eek
In the Supreme Court of the United States
OCTOBER TERM, 1994
ALVA Z. MCGRATH, PETITIONER
V.
UNITED STATES OF AMERICA, RESPONDENT
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF MILITARY APPEALS
PETITION FOR WRIT OF CERTIORARI
JAY LINDSEY COHEN
Colonel, United States Air Force
Chief Appellate Defense Division
Counsel of Record
RICHARD D. DESMOND
Captain, United States Air Force
Appellate Defense Counsel
Counsel for the Petitioner
MARGE A. OVERLY
Captain, United States Air Force
Appellate Defense Counsel
Counsel for the Petitioner
AIR FORCE LEGAL SERVICES AGENCY
Appellate Defense Division
172 Luke Avenue, Suite 208
Bolling AFB, DC 20332-5113
July 1994
—
ES a aR
QUESTIONS PRESENTED
Whether a witness must be declared unavailable before
the Confrontation Clause analysis of Idaho v. Wright can
be applied to the witness’ out-of-court statement offered
under a residual hearsay exception?
Assuming this Honorable Court finds that a witness
must be declared unavailable before applying the Con-
frontation Clause analysis of residual hearsay of /daho v.
Wright, whether a witness’ appearance solely to announce
her refusal to testify constitutes unavailability for pur-
poses of the Confrontation Clause?
Whether this Court’s decision in Jdaho v. Wright applies
to an analysis of residual hearsay irrespective of a Con-
frontation Clause violation?
TABLE OF CONTENTS
Page
Ek Aye ar ie l
es oa yb ocgb nee wes 2
Constitutional Provisions Involved ................. 2
re 2
Reasons for Granting the Writ ..................... 8
ee ee ek aan even eanmwa 18
RRR SEG ae ee ne a la
ET RE PE a a 36a
ill
TABLE OF AUTHORITIES
Supreme Court Cases:
Delaware v. Fensterer, 474 U.S. 15 (1985) ........
Idaho v. Wright, 110 S. Ct. 3139 (1990) .........
Ohio v. Roberts, 448 U.S. 56 (1980) .............
United States v. Owens, 484 U.S. 554 (1988) .....
Federal Cases:
Huff v. White Motor Corp., 609 F.2d 286 (7th Cir.
WOME i wins ko ne ar ea ae ee en ee
McCafferty v. Leapley, 944 F.2d 445 (8th Cir.
EE hae nn eae terne oe yeas.
Phillips v. Wyrick, 558 F.2d 489 (8th Cir. 1977),
cert. denied, 434 U.S. 1088 (1978) ............
Sherly v. Seabold, 929 F.2d 272 (6th Cir. 1991) ...
United States v. Accetturo, 966 F.2d 631 (11th Cir.
FEE oi hers dee eee aise s
United States v. Bakhtiar, 994 F.2d 970 (2d Cir.),
cert. denied, 114 S. Ct. 554 (1993) ............
United States v. Ellis, 935 F.2d 385 (1st Cir. 1991),
cert. denied, 112 S. Ct. 201 (7992) ............
United States v. George, 960 F.2d 97 (9th Cir.
EE 6 6 he Kaa Nee a Ed ae a oe
United States v. Gomez-Lemos, 939 F.2d 236 (6th
Res os ca ete eG aa ee en
United States v. Matthews, 20 F.3d 538 (2d Cir.
PE ot oho bis ck at ea a eee cae
United States v. Thevis, 665 F.2d 616 (Sth Cir.),
cert. denied, 456 U.S. 1008 (1982) ............
State Cases:
People v. Francis, 200 Cal. App. 3d 579 (Cal. Ct.
Pe UN st 65.0) wkd re S besa er eae ewer’
People v. Reyher, 728 P.2d 333 (Colo. Ct. App.
DEE Shih cat Carats pce ae tere belek eee
State v. Hansen, 312 N.W.24 96 (Minn. Ct. App.
FRE inane oe SKS se ee eee ae ee
TABLE OF AUTHORITIES — Continued
Military Cases: Page
United States vy. McGrath, 39 M.J. 158 (C.M.A.
PO 265404 Gey ceeeiee ore ee eee l
Periodicals:
Constitutional Admissibility of Hearsay Under the
Confrontation Clause; Reliability Requirement
for Hearsay Admitted Under a Non-“Firmly
Rooted” Exception — Idaho v. Wright, 14 Camp-
bell Law Review 347 (1992)... . 0... ccc cccccns 18
Hearsay and the Confrontation Clause, 41 Federal
Bar News and Journal 133 (February 1994) .... 18
Idaho v. Wright: Is It a Step in the Wrong Direc-
tion in Determining the Reliability of Hearsay
Statements for the Confrontation Clause?, 52
Ohio State Law Journal 663 (1992) .......... 17
In the Supreme Court of the United States
OCTOBER TERM, 1994
No.
ALVA Z. McG! ./H, PETITIONER
v.
UNITED STATES OF AMERICA, RESPONDENT
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF MILITARY APPEALS
PETITION FOR WRIT OF CERTIORARI
The petitioner, Alva Z. McGrath, respectfully prays
that a writ of certiorari issue to review the order and judg-
ment of the United States Court of Military Appeals
entered in his case on 6 May 1994.
OPINIONS BELOW
The order and judgment of the United States Court of
Military Appeals, reported at 39 M.J. 158 (C.M.A. 1994)
is located at Appendix A. The unpublished decision of the
United States Air Force Court of Military Review, United
States v. McGrath, ACM 28358 (A.F.C.M.R. Il May
1992) is reprinted at Appendix B.
2
JURISDICTION
The final order of the United States Court of Military
Appeals was entered on 6 May 1994. The jurisdiction of
this Court is invoked under 28 U.S.C.A. § 1259(3) (Supp.
1993) and 10 U.S.C.A. § 867(a) (Supp. 1993).
CONSTITUTIONAL PROVISIONS INVOLVED
The Sixth Amendment of the Constitution of the United
States provides in relevant part: “In all criminal prosecu-
tions, the accused shall enjoy the right ... to be con-
fronted with the witnesses against him. . .”
STATEMENT OF THE CASE
At a general court-martial convened at Hahn Air Base,
Germany, petitioner was convicted, by military judge sit-
ting alone, of carnal! knowledge, sodomy, and indecent
acts with his 14-year old daughter. He was sentenced to a
dis’. rorable discharge, 10 years confinement, and reduc-
tio. ©) the lowest enlisted grade. At trial, the government
relied on statements made by petitioner’s daughter to a
pediatrician under a residual hearsay exception.
On 9 June 1989, the petitioner’s 14-year-old daughter,
A.M., told a school counselor that she had been sexually
abused by the petitioner, her natural father. (R. 171) The
Mental Health Clinic at Halin Air Base Hospital was noti-
fied of these allegations, as were the Office of Special In-
vestigations (OSI) and the base legal office. (R. 55, 78,
171) Special Agent (SA) Kenneth Sallinger of the OSI and
Ms. Leann Steinbach, a German national associated with
the OSI, picked up A.M. at school and took her to the
Mental Health Clinic. (R. 80, 82) They were met there by
Captain Timothy Friesen, a staff psychologist who had
previous contact with A.M., and Captain Deborah Hall,
3
an attorney with extensive experience in prosecuting child
abuse cases. (R. 54-56) The first interview of A.M. began
at the Mental Health Clinic in the presence of Captain
Friesen, SA Sallinger, Ms. Steinbach, Captain Hall, and
Sergeant Donitta Gardiner, a technician assigned to the
Mental Health Clinic who was also previously acquainted
with A.M. (R. 56, 82, 172) Although A.M. began to talk
in general terms about the allegations, she became increas-
ingly embarrassed and uncomfortable talking about the
incidents in front of men. (R. 57, 173) Captain Freisen and
SA Sallinger left the room. Captain Hall continued with
the interview. (R. 57) Captain Hall was not aware of what
specific allegations had been made by A.M. At trial, Cap-
tain Hall stated that she did not offer suggestions to A.M.
as to what might or must have happened. (R. 57, 72, 76)
A.M. demonstrated the abuse by petitioner with anatomi-
cally correct dolls. (R. 59) According to Captain Hall’s
testimony, A.M. appeared embarrassed and slightiy upset,
but in control during the interview, which lasted between
30 minutes and one hour. (R. 60)
Following this interview, Captain Hall, SA Sallinger,
and A.M. went to the OSI offices on the base. (R. 61)
Capiain Hall told A.M. that they were there “to put down
everything that you told me in writing.” (R. 61) A.M.
essentially dictated her statement to Captain Hall, who
typed the statement on a computer. (R. 61) As Captain
Hall typed, A.M. sat next to her and reviewed the state-
ment, making whatever corrections and additions she
wished to make. (R. 61-62) A.M. read the statement from
the computer screen after it had been typed, read it again
after it was printed, and signed it under oath. According
to Captain Hall’s testimony, A.M. did not recant or re-
tract any portion of the statement made during the inter-
view at the Mental Health Clinic. (R. 63) According to
Captain Hall’s testimony, A.M. understood the words
4
used in the statement, including specific sexual terms, and
appeared to understand the oath given her prior to signing
the statement. (R. 63, 69)
On 20 June 1989, eleven days later, A.M. went to the
OSI office and told SA Sallinger that she had more infor-
mation to tell him regarding the allegations and about
other acts of her father. (R. 99, 109) Virtually the same
dictation process was used to reduce A.M.’s statement to
writing with SA Sallinger as the typist. (R. 99-100) Ac-
cording to SA Sallinger’s testimony, A.M. appeared a “lit-
tle nervous”, but in control at that time. (R. 99) A.M.
again proofread the statement as it was being typed and
made corrections she felt were necessary. According to SA
Sallinger, he did not offer suggestions or make any correc-
tions other than those requested by A.M. (R. 100) A.M.
read the statement after it was printed, swore to it, and
signed the statement. (R. 102) This meeting lasted about
one hour. (R. 99)
When confronted by the authorities on 9 June 1989, the
petitioner made a six-page, handwritten confession.
At trial, defense counsel moved to suppress the peti-
tioner’s confession on the grounds that it was uncorrobo-
rated. The Government’s response was that the confession
was corroborated by the A.M.’s two pretrial statements.
The Government called A.M. as a witness. (R. 19)
A.M. testified that she was 14 years old and the
daughter of the petitioner. (R. 19) When asked about the
allegations and the statements she provided, she refused to
answer. (R. 20-21) A.M. acknowledged that she was pre-
sent at trial pursuant to an order from the German civil
authorities, but that she had no intention of testifying
against her father. (R. 21-23) She repeatedly replied “I
refuse to answer that” when questioned about the abuse.
(R. 21) A.M. acknowledged the importance of the oath
she took prior to testifying, and in connection with each
of the statements. (R. 24) She specifically denied lying
under oath in her prior statements. (R. 25)
The military judge explained to A.M. the importance of
her testimony and of resolving the allegations against her
father. (R. 41, 43-44) A.M. remained steadfast in her re-
fusal to testify. She said she loved her family, did not want
to hurt them any more, and did not want her father to go
to jail. (R. 41, 45-46) She felt some of the charges against
him were “a little heavy.” (R. 45) While she felt that her
father should be punished, A.M. said that he had gone
through enough while facing the charges, and that “maybe
he was punished, ‘cause he knows if he tries it again, it
would be a whole lot worse.” (R. 46)
The military judge explained that the Air Force had an
interest in deciding whether the allegations were true, to
which A.M. replied,
A. Well, yes, they would like to know, but I don’t
want to testify, and that’s just how I feel. I just
don’t want to testify.
Q. Has anybody, anybody at all—family, friend, or
whatever —come sat down with you and said —
well, this is what’s going to happen if you testify,
and this is what happens if you don’t testify?
A. No, I really—I have been told that, but they
haven’t said—well, your father is going to go to
jail if you testify, and he’s not going to jail if you
don’t testify and all—but they gave me an idea
like—if you testify, there may be enough evi-
dence to put your father in jail, and if you don’t
testify, there may not be enough to end up put-
ting your father in jail, and I got the idea that I
don’t want to testify. I don’t want my father in
jail.
6
(R. 47) After again stressing the need for her cooperation
to resolve the charges, the military judge asked:
Q. Is there something that I could do that would
make it easier for you to testify —
A. (Interrupting) I don’t want to testify.
Q. To just tell your story?
A. I don’t want to testify. That’s that. I don’t care
where I am, who I’m with—I don’t want to
testify.
Would it help if I asked the spectators to leave?
No, I don’t wan to testify. Like I said, I don’t
care who’s there, I don’t care where I am—I
don’t want to testify.
> ©
Q. Just one final question. What are your feelings
right now about your father?
A. Very sad, because he may go to jail and lose his
family, his job, and probably everything else he
has.
(R. 47-48)
The Government sought to admit the 9 June and 20
June statements as Prosecution Exhibits 4 and 5 respec-
tively, under the “residual hearsay rule” of Military Rule
of Evidence 804(b)(5S). The military judge found that A.M.
was unavailable under Military Rule of Evidence 804(a)(2).
(R. 52) He then heard the testimony of Captain Hall (R.
53-77) and SA Sallinger (R. 77-127) regarding the creation
of the statements.
Trial defense counsel objected to the admission of the
statements and offered the testimony of four witnesses.
Sergeant Deborah McQuiston, the Area Defense Para-
legal, testified that, on the morning of trial, A.M. said
that “five percent” of the 20 June statement was untrue.
5
(R. 151) Sergeant McQuiston was not privy to any other
part of A.M.’s conversation with the defense counsel at
which this statement was initially made; A.M. was asked
to repeat the statement for Sergeant McQuiston later.
Staff Sergeant David Terrell, a friend of the petitioner,
testified that in his opinion A.M. was not always truthfui.
(R. 155-63) Captain Friesen, who had been A.M.’s
counselor since December 1988, expressed his opinion that
A.M. would not intentionally lie, although the way she
relates to individuals, particularly men, “might cause her
to respond the way she believed was expected.” (R. 175)
Sergeant Donitta Gardiner, who had developed a rapport
with A.M., was a facilitator of a therapy group, recalled
what she felt may have been leading questions during the 9
June interview in the Mental Health Clinic. (R. 187-95)
Sergeant Gardiner admitted she was not present when
either statement was reduced to writing and she believed
A.M. to be truthful. (R. 193)
The military judge concluded that A.M.’s statements
were admissible under Military Rule of Evidence 804(b)(5)
and made specific findings of fact regarding the reliability
of the statements. (R. 211-14) Included in the military
judge’s findings was the following:
The court also relies on the fact that the accused con-
fessed to much of the sexual misconduct in his 9 June
89 statement to the OSI, Prosecution Exhibit 2 for
Identification; that is, he confessed to the fondling of
his daughter’s breasts and vaginal area, to having her
fondle his penis, confessed to performing oral
sodomy on her on a number of occasions, to rubbing
his penis on her vagina. Again, his confession
substantially supports her statements as to the times
and places indicated by the victim and as to the activi-
ty which allegedly occurred.
(R. 214)
8
On appeal to the Air Force Court of Military Review,
the petitioner argued that the trial judge erred when he ad-
mitted A.M.’s out-of-court statements under Military Rule
of Evidence 804(b)(S). The Air Force Court of Military
Review found that A.M. was unavailable and her state-
ments bore adequate indicia of reliability as required by
Military Rule of Evidence 804(b)(5). In addition, the
Court of Review noted that A.M.’s statements were cor-
roborated by the petitioner’s confession. United States v.
McGrath, ACM 28358, unpub. 7 (A.F.C.M.R. 11 May
1992) (Appendix B).
Petitioner appealed the decision of the Air Force Court
of Military Review to the United States Court of Military
Appeals. The Court of Military Appeals held that peti-
tioner waived his right to cross-examination when he
failed to question A.M. at trial. Thus, the Court of Mili-
tary Appeals held, the petitioner’s right to confrontation
was not violated and the trial judge could properly review
corroborating evidence to support the trustworthiness of
out-of-court statements offered under a residual hearsay
exception. United States v. McGrath, 39 M.J. 158, 164
(C.M.A. 1994).
REASONS FOR GRANTING THE WRIT
I
THIS COURT HAS NOT DETERMINED
WHETHER A WITNESS MUST BE DECLARED
UNAVAILABLE BEFORE THE CONFRONTA-
TION CLAUSE ANALYSIS OF JDAHO y.
WRIGHT CAN BE APPLIED TO THE WITNESS’
OUT-OF-COURT STATEMENT OFFERED
UNDER A RESIDUAL HEARSAY EXCEPTION.
In Idaho v. Wright, 110 S. Ct. 3139 (1990), this Court
left unanswered whether, before a child’s out-of-court
9
statements can be admitted under a residual hearsay ex-
ception, the Confrontation Clause requires the govern-
ment to show that a child witness is unavailable at trial,
and, if so, what that showing requires. Petitioner’s case
raises this issue and provides an opportunity for this Court
to address this question. A brief review of the case law in
this area helps demonstrate the problem.
In Ohio v. Roberts, 448 U.S. 56 (1980), this Court held
that the admission of hearsay statements into evidence
against a criminal defendant did not violate the Confron-
tation Clause under two circumstances: when the state-
ments were within “firmly rooted” hearsay exceptions, in
which case the Court inferred their reliability “without
more”, or when they otherwise indicated reliability
through “particularized guarantees of trustworthiness.”
Roberts at 66.
A decade later, in Idaho v. Wright, supra, the Court
continued to rely on the holding of Roberts in determining
the admissibility of hearsay statements under the Confron-
tation Clause and continued to focus on the trustworthi-
ness of hearsay statements. Wright at 3150. In Wright, the
government introduced statements made by a child victim
to a doctor in a counseling session concerning sexual abuse
by her mother and the mother’s boyfriend. The statements
were Offered under one of Idaho’s residual hearsay excep-
tions, rule 803(24). Wright at 3144. The trial court, in rul-
ing that the Confrontation Clause did not prohibit the ad-
mission of the child’s statements, relied on, inter alia, the
presence of physical evidence to corroborate that sexual
abuse had occurred. Wright at 3152.
In judging the reliability of statements not falling within
a “firmly rooted” hearsay exception, the Wright court ex-
cluded the use of corroborating evidence in determining
the reliability of hearsay offered as evidence. /d.
10
Unfortunately, /Jdaho v. Wright did not resolve the
question whether, before a child’s out-of-court statements
were admitted, the Confrontation Clause required the
prosecution to show that a child witness is unavailable at
trial—and, if so, what that showing required. For pur-
poses of deciding Wright, the Court assumed without
deciding that, to the extent the unavailability requirement
applied in the case, the child witness was unavailable
within the meaning of the Confrontation Clause. Wright
at 3147.
Unless and until this Court determines whether a wit-
ness must first be declared unavailable before the Con-
frontation Clause analysis of Wright can be applied to
residual hearsay statements, trial courts are left in the dark
to devise their own standards of availability and unavail-
ability.
IF THIS HONORABLE COURT WERE TO HOLD,
FOR THE FIRST TIME, THAT A WITNESS
MUST BE DECLARED UNAVAILABLE BEFORE
APPLYING THE CONFRONTATION CLAUSE
ANALYSIS OF RESIDUAL HEARSAY UNDER
IDAHO v. WRIGHT, THE NEXT LOGICAL
QUESTION WHICH NEEDS TO BE RESOLVED
IS WHETHER A _ WITNESS’ APPEARANCE
SOLELY TO ANNOUNCE HER REFUSAL TO
TESTIFY CONSTITUTES UNAVAILABILITY
FOR PURPOSES OF THE CONFRONTATION
CLAUSE. 3
If this Court establishes a requirement of unavailability
prior to applying the Confrontation Clause analysis of
Idaho v. Wright, then this Court needs to set out what is
required for a showing of unavailability, because occa-
ee
11
sions arise wherein a witness may appear at trial for
limited purposes, but not appear before the jurors to testi-
fy against the accused.
The Confrontation Clause of the Sixth Amendment
provides: “In all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the witnesses
against him.. .”
In the case sub judice, the Court of Military Appeals
concluded that the Confrontation Clause was satisfied
where the witness appeared, refused to testify, and was not
cross-examined by the defense. Under these circum-
stances, the Court of Military Appeals found that peti-
tioner had “waived cross-examination.” United States v.
McGrath, 39 M.J. 158, 163 (C.M.A. 1994). For this hold-
ing, the majority in McGrath relied on the decision of
United States v. Thevis, 665 F.2d 616, 632-33 (Sth Cir.),
cert. denied, 456 U.S. 1008 (1982) (waiver of right to con-
frontation is “a fortiori” waiver of right to raise hearsay
objection).
In United States v. Thevis, however, there was clear and
convincing evidence that the defendant murdered the very
witness whose grand jury statements the prosecution
sought to introduce. The Thevis court held:
a defendant who causes a witness to be unavailable
for trial for the purpose of preventing that witness
from testifying also waives his right to confrontation
under the Zerbst standard. A defendant who under-
takes this conduct realizes that the witness is no
longer available and cannot be cross-examined.
Hence, in such a situation the defendant has intelli-
gently and knowingly waived his confrontation rights.
665 F.2d at 630.
There was no finding by the military judge in the case
sub judice, that petitioner caused the witness not to testify.
12
Indeed, there was no evidence presented that petitioner
caused the witness not to testify.
The victim’s refusal to testify in the case sub judice is
also clearly distinguishable from prior case law in which
this Court held that the Confrontation Clause was not vio-
lated by admitting a declarant’s out-of-court statement as
long as the declarant is testifying as a witness and is sub-
ject to full and effective cross-examination. In Delaware v.
Fensterer, 474 U.S. 15 (1985), a government expert witness
had reached an incriminating conclusion regarding a piece
of evidence (a strand of hair), but he could not, at trial,
remember which of three possibilities led him to that ulti-
mate conclusion. Fensterer complained that he could not
effectively cross-examine, and thus discredit the expert
with respect to his conclusion. This Court held that
Fensterer was not denied confrontation, noting:
The main and essential purpose of confrontation is to
secure for the opponent the opportunity of cross-
examination . . . Generally speaking, the Confronta-
tion Clause guarantees an opportunity for effective
cross-examination, not cross-examination that is ef-
fective in whatever way, and to whatever extent, the
defense might wish...
474 U.S. at 19-20.
In United States v. Owens, 484 U.S. 554 (1988), an
assault victim made an out-of-court identification of the
defendant as his assailant less than a month after the
assault. By the time of trial, the victim could remember
having identified Owens as his assailant, but he could no
longer remember having seen his assailant. This Court per-
mitted receipt of the out-of-court identification, even
though cross-examination was impossible. Quoting from
Fensterer, the Court reiterated that it was the “opportunity
for effective cross-examination” that was guaran-
13
teed by the Confrontation Clause. Even if the victim had
no memory, the opportunity guaranteed by the Constitu-
tion was offered. “It is sufficient,” said Justice Scalia for
the Court, “that the defendant has the opportunity to
bring Out such matters as ... the very fact that he [the
witness] has a bad memory.” 484 U.S. at 559.
In the case sub judice, A.M., the victim, appeared at
trial for a limited purpose and refused to answer any ques-
tions concerning the charged offenses or her prior written
statements. Thus, A.M. cannot be said to be a hearsay
declarant who is present at trial before the jury and subject
to unrestricted cross-examination. A.M. could not be
cross-examined concerning a bad memory (like the wit-
nesses in Fensterer and Owens), she refused to testify.
The fact scenario in the case sub judice is analogous to
situations in which a witness relies on a Fifth Amendment
right against self-incrimination and refuses to testify. A
number of federal and state courts have found the witness
to be “unavailable” for Confrontation Clause purposes
where the witness refuses to testify based on a Fifth
Amendment right against self-incrimination. See United
States v. Bakhtiar, 994 F.2d 970 (2d Cir.), cert. denied,
114S. Ct. 554 (1993); United States v. Matthews, 20 F.3d
538 (2d Cir. 1994); Phillips v. Wyrick, 558 F.2d 489 (8th
Cir. 1977), cert. denied, 434 U.S. 1088 (1978); People v.
Reyher, 728 P.2d 333 (Colo. Ct. App. 1986); and Srate v.
Hansen, 312 N.W.2d 96 (Minn. Ct. App. 1981). See also,
People v. Francis, 200 Cal. App. 3d 579 (Cal. Ct. App.
1988) (“a witness who is physically available yet refuses to
testify, after the court has used all available avenues to
coerce such testimony, is unavailable. This is true even
though such a witness does not fit neatly into one of the
subdivisions of [the State’s evidence code].”).
As evidenced by the foregoing case law, courts have ad-
dressed all manner of witness “unavailability.” The facts in
14
petitioner’s case do not fit squarely into any of the fore-
going. A clear standard for resolving issues of witness
availability with facts similar to petitioner’s will help
eliminate the needless confusion in this important area.
THIS COURT NEEDS TO CLARIFY WHETHER
ITS DECISION IN IDAHO v. WRIGHT APPLIES
TO AN ANALYSIS OF RESIDUAL HEARSAY IR-
RESPECTIVE OF A CONFRONTATION CLAUSE
VIOLATION, BECAUSE LOWER COURTS
HAVE BECOME ENTANGLED IN THE LEGAL
MORASS CREATED BY THE OVERLAP OF THE
HEARSAY RULE AND CONFRONTATION
RIGHTS.
This Court’s treatment of the Confrontation Clause in
the context of out-of-court statements sought to be ad-
mitted against a criminal defendant at trial, pursuant to an
exception to a residual hearsay exception, has created
more questions than answers. For example, this Court’s
decision in Idaho v. Wright, supra, purported to clarify
the question of whether corroborating evidence used to
support the trustworthiness of an out-of-court statement
offered under a residual hearsay exception violated the
Confrontation Clause. Untortunately, although the
Wright Court created a Confrontation Clause analysis to
answer the question before it, the decision left unanswered
whether the analysis applied to evidence used to support
the trustworthiness of a residual hearsay exception ir-
respective of a violation of the Confrontation Clause.
In Wright, a mother was convicted of lewd conduct with
a minor after she held her daughters, then aged two and
five, while her male codefendant had sexual intercourse
with them. The younger daughter, who was three at the
15
time of trial, was found to be “not capable of communi-
cating to the jury” and did not testify. Wright at 809. Her
account of what occurred, however, came into evidence
through the testimony of a pediatrician who had ques-
tioned her. Wright at 809-10. The trial court permitted the
testimony pursuant to Idaho’s residual hearsay exception.
The mother appealed her conviction on the ground that
admission of the pediatrician’s testimony regarding the
young victim’s inculpatory statements violated her Con-
frontation Clause rights. Wright at 812.
In affirming the Idaho Supreme Court’s reversal of the
mother’s conviction, the Court first reviewed its decision
in Roberts, supra. The Wright Court sought to clarify the
Confrontation Clause requirement, as enunciated in
Roberts, that incriminating hearsay admitted against a
defendant bear “adequate indicia of reliability.” Wright at
3153. Primarily, the Court focused on this reliability re-
quirement as it pertains to hearsay admitted under a non-
firmly rooted exception; that is, the Court formulated a
test for determining what evidence constituted a “showing
of particularized guarantees of trustworthiness” for non-
traditional hearsay. Wright at 3147.
Since Wright did not involve a “firmly rooted” hearsay
exception, but rather the residual, or catchall, hearsay ex-
ception, the Court delineated the conditions necessary for
hearsay statements admitted under an exception that is not
“firmly rooted.” The statement must evince “particular-
ized guarantees of trustworthiness” drawn from the
“totality of the circumstances . . . that surround the mak-
ing of the statement and that render the declarant particu-
larly worthy of belief.” It “must be at least as reliable as
evidence admitted under a firmly rooted hearsay excep-
tion” and must “be so trustworthy that adversarial testing
would add little to its reliability.” Wright at 820-21. In the
absence of such a showing, hearsay statements will be pre-
16
sumed unreliable and will be barred by the Confrontation
Clause from admission into evidence. Wright at 821.
The Wright court held that “particularized guarantees
of trustworthiness” for hearsay are based on a considera-
tion of the “totality of circumstances.” Wright at 3148.
However, it limited the scope of the consideration to those
circumstances that “surround the making of the [hearsay]
statement and that render the declarant particularly
worthy of belief.” Wright at 3148. The Wright court re-
jected the state of Idaho’s contention that the totality of
circumstances should also include other evidence at trial
that corroborates the truth of the out-of-court statement.
Wright at 3148. Thus, the Court held that in evaluating the
reliability of residual hearsay, consideration of corrobo-
rative evidence violates a defendant’s right to confront wit-
ness. Wright at 3150.
While the Court’s holding in Jdaho v. Wright addressed
the issue of the particularized guarantees of trustworthi-
ness Of hearsay evidence for Confrontation Clause pur-
poses, the opinion makes clear that the Court would apply
the same analysis and proscriptions to the issue of the
equivalent guarantees of trustworthiness for residual hear-
say exception purposes.
First, while the Wright court stated it was not engrafting
Confrontation Clause requirements onto hearsay analysis,
it employed the “circumstantial guarantees of trustworthi-
ness” test for residual hearsay as the starting point for its
analysis of the “particularized guarantees of trustworthi-
ness” required for Confrontation Clause analysis of re-
sidual hearsay. Wright at 3149. Quoting from Huff v.
White Motor Corp., 609 F.2d 286, 292 (7th Cir. 1979), the
Wright court held that “[t]he circumstantial guarantees of
trustworthiness on which the various specific exceptions to
the hearsay rule are based on those that existed at the time
the statement was made and do not include those that may
17
be added by using hindsight.” The Court in Wright be-
lieved that the “particularized guarantees of trustworthi-
ness” required of hearsay for admission under the Con-
frontation Clause must likewise be drawn from the totality
of circumstances that surround the making of the state-
ment and that render the declarant particularly worthy of
belief. Wright at 3149. The Wright Court’s rationale for
invoking this rule was to prevent “admission of a presump-
tively unreliable statement by bootstrapping on the trust-
worthiness of other evidence at trial.” Wright at 3150. The
Court believed that the presence of corroborating evidence
more appropriately indicated that any error in admitting
the statement might be harmless, rather than that any
basis exits for presuming the declarant to be trustworthy.
ld.
The Supreme Court in Wright arrived at this holding
despite federal circuit courts having almost uniformly
looked for corroboration beyond the circumstances sur-
rounding the making of the Statement, when determining
reliability under the Confrontation Clause. See Idaho y.
Wright: Is It a Step in the Wrong Direction in Determining
the Reliability of Hearsay Statements for the Confronta-
tion Clause?, 52 Ohio State Law Journal 663 (1992):
Idaho v. Wright, 110 S. Ct. at 3154, n. 2.
However, since Wright, federal circuit courts have en-
forced Wright’s prohibitions against corroborating evi-
dence used to support residual hearsay. In United States y.
Accetturo, 966 F.2d 631, 634 (11th Cir. 1992), the
Eleventh Circuit Court of Appeals stated that “The
Supreme Court has now stated unequivocally that inde-
pendent corroborating evidence may not be used to evalu-
ate the admissibility of hearsay evidence which the govern-
ment seeks to have admitted pursuant to a residual hearsay
exception.” The First Circuit embraced the same interpre-
tation. United States y. Ellis, 935 F.2d 385 (1st Cir. 1991)
18
cert. denied, 112 S.Ct. 201; see also, United States v.
Gomez-Lemos 939 F.2d 236 (6th Cir. 1991); Sherly v. Sea-
bold, 929 F.2d 272 (6th Cir. 1991) (statement of 82 year
old victim, who suffered from memory loss after being
beaten and robbed, and whose condition was so much
worsened after the attack that she had to be placed in a
nursing home, held inadmissible.). The Eighth Circuit in-
terpreted Wright in the same fashion. See McCafferty v.
Leapley, 944 F.2d 445 (8th Cir. 1991); also see, United
States v. George, 960 F.2d 97 (9th Cir. 1992).
Many commentators agree with the interpretation that
the Wright proscription applies to establishing particular-
ized guarantees of trustworthiness in support of admission
of evidence under residual hearsay exceptions. See, e.g.,
Hearsay and the Confrontation Clause, 41 Federal Bar
News and Journal 133 (February 1994); Constitutional
Admissibility of Hearsay Under the Confrontation
Clause; Reliability Requirement for Hearsay Admitted
Under a Non-“Firmly Rooted” Exception—Idaho vy.
Wright, 14 Campbell Law Review 347 (1992).
As is readily apparent from the foregoing, the Wrigni
decision has created more questions in the area of con-
frontation and residual hearsay then it had hoped to
answer.
CONCLUSION
The entanglement of hearsay rules and the Confronta-
tion Clause has created a tegal morass for courts to wade
through. “Firmly rooted” hearsay exceptions, which are
presumptively reliable, are contrasted from “non-firmly
rooted” hearsay exceptions, which must bear “circum-
stantial guarantees” of trustworthiness. “Circumstantial
guarantees of trustworthiness” required for residual hear-
say exceptions are weighed alongside “particularized
19
guarantees of trustworthiness” required under a Confron-
tation Clause analysis of residual hearsay. All the while,
questions of witness availability and its effect on a defend-
ant’s right to confrontation abound.
The unifying theme for issues involving hearsay or the
Confrontation Clause is “reliability.” This Court needs to
strike a balance between its “indicia of reliability” test and
its “particularized guarantees of trustworthiness” test. A
comprehensive yet clear standard to resolve issues involv-
ing hearsay exceptions and the Confrontation Clause will
eliminate the needless confusion and reduce future litiga-
tion in this important area.
Respectfully submitted,
JAY LINDSEY COHEN
Colonel, United States Air Force
Chief Appellate Defense Division
Counsel of Record
RICHARD D. DESMOND
Captain, United States Air Force
Appellate Defense Counsel
Counsel for the Petitioner
MARGE A. OVERLY
Captain, United States Air Force
Appellate Defense Counsel
Counsel for the Petitioner
AIR FORCE LEGAL SERVICES AGENCY
172 Luke Avenue, Suite 208
Bolling AFB, DC 20332-5113
(202) 767-1562
July 1994
APPENDICES
APPENDIX A
U.S. COURT OF MILITARY APPEALS
No. 68,260.
CMR No. 28358.
¥.
ALVA Z. MCGRATH, TECHNICAL SERGEANT
U.S. AIR FORCE, APPELLANT.
Argued Oct. 5, 1993.
Decided May 6, 1994.
Accused was convicted by general court-martial, Dennis
L. Olson, J., of multiple sexual offenses committed
against his daughter. The United States Air Force Court of
Military Review affirmed. Review was granted. The
United States Court of Military Appeals, Cox, J., held
that: (1) accused was not denied his rights under confron-
tation clause, and (2) military judge did not abuse his
discretion in considering corroborating evidence to deter-
mine that victim’s pretrial statements had sufficient indicia
of reliability to satisfy residual hearsay exception.
Affirmed.
Sullivan, C.J., and Wiss, J., filed dissenting opinions.
For Appellant: Captain Ursula P. Moul (argued); Col-
onel Terry J. Woodhouse (on brief); Colonel Jay L.
Cohen, Lieutenant Colonel Frank J. Spinner, Major Mary
C. Yastishock, Captain Marc. A. Fox.
For Appellee: Major John H. Kongable (argued); Co/l-
onel Richard L. Purdon and Colonel Jeffery T. Infelise
(on brief).
(la)
2a
Opinion of the Court
Cox, Judge:
At his trial, appellant, through various legal maneuvers,
attempted to block the victim from testifying at the court-
martial. Failing that, when offered the opportunity to
cross-examine her, he declined. On this appeal, he now
argues he was denied his Sixth Amendment right to be
confronted by the victim at trial. As a result of this alleged
denial, he contends that two of the victim’s out-of-court
statements should have been ruled inadmissible.' The ex-
clusion of those statements, in turn, would leave his own
pretrial confession “uncorroborated”—and thus inad-
missible under Mil.R.Evid. 304(y).2 We dispute that the
Confrontation Clause is so malleable; and we affirm ap-
pellant’s conviction.
' The granted issue asks:
WHETHER THE MILITARY JUDGE ERRED TO THE SUB-
STANTIAL PREJUDICE OF APPELLANT BY ADMITTING
INTO EVIDENCE APPELLANT'S 9 JUNE 1989 STATE-
MENT AND THE 9 JUNE 1989 AND 20 JUNE 1989 STATE-
MENTS PURPORTEDLY GIVEN TO AGENTS OF THE AIR
FORCE OFFICE OF SPECIAL INVESTIGATIONS BY THE
PUTATIVE VICTIM.
> Mil.R.Evid. 304(g), Manual for Courts-Martial, United States,
1984, provides in pertinent part as follows:
An admission or a confession of the accused may be considered
as evidence against the accused on the question of guilt or inno-
cence only if independent evidence, either direct or circumstan-
tial, has been introduced that corroborates the essential facts ad-
mitted to justify sufficiently an inference of their truth... . If
the independent evidence raises as inference of the truth of some
but not all of the essential facts admitted, then the confession or
admission may be considered as evidence against the accused only
with respect to those essential facts stated in the confession or ad-
mission that are corroborated by the independent evidence.
3a
Appellant stands convicted of multiple sexual offenses
perpetrated on his natural daughter, A, who was between
the ages of 13 and 14 at the time of the offenses.3 Essen-
tially, the victim made two sworn statements in June 1989
detailing appellant’s misconduct, which allegedly occurred
in the Federal Republic of Germany over the preceding
year-and-a-half. When confronted by the authorities, ap-
pellant made a six-page, handwritten confession. There is
no issue before us regarding the voluntariness of this con-
fession.
Appellant was tried by a military judge sitting alone as a
general court-martial at Hahn Air Base, Federal Republic
of Germany. The court-martial opened on November 15,
> The first specification alleged carnal knowledge on divers occa-
sions Over a 5-month period; the second specification alleged sodomy
on divers occasions over the same 5-month period; the third and
fourth specifications alleged committing indecent acts upon the body
of the vi-:im’on divers occasions over periods of 1 year and of | and
¥2 months, respectively; the final specification alleged taking indecent
liberties with the victim on divers occasions over a 17-month period.
See Arts. 120, 125, and 134, Uniferm Code of Military Justice, 10
USC §§ 920, 925, and 934, respectively. Contrary to his pleas, ap-
pellant was convicted of these charges by a military judge sitting as a
general court-martial at Hahn Air Base, Federal Republic of Ger-
many. The judge sentenced appellant to a dishonorable discharge,
confinement for 10 years, and reduction to E-1; the convening
authority approved this sentence.
The Court of Military Review, in an unpublished 10-page opinion,
found the evidence overwhelming that appellant attempted to commit
carnal knowledge on the victim, but that court was not convinced
beyond a reasonable doubt that penetration was achieved. According-
ly, the court affirmed the lesser-included offense of attempted carnal
knowledge, Art. 80, UCMJ, 10 USC § 880. Unpub. op. at 8-9. The re-
maining charges and specifications were also affirmed. Reassessing
the sentence, the court below affirmed the sentence except for confine-
ment exceeding 9 years.
4a
1989, with the defense moving to suppress appellant’s con-
fession. Counsel’s basis for the motion was:
“We do not believe it can be properly corroborated.”
The Government’s response was that the confession was
corroborated by the victim’s pretrial statements. The
Government’s first witness was the victim, A.
She identified herself and stated: that she was appel-
lant’s 14-year-old daughter; that, until June 1989, she had
been living with appellant “in the same household” in the
Federal Republic of Germany; that, commencing in June
1989, she lived in a foster home for several months [in
Germany]; and that recently she had moved back into the
family home with her stepmother (appellant’s wife), her
two stepbrothers, and her stepsister. Appellant “was basi-
cally living in a dormitory” when she returned to the
home.
When asked by the prosecutor if she had made “state-
ments against” appellant in June 1989, she “refuse[d] to
answer” the question. When asked if she “wish[ed] to re-
tract” anything from the statements, she “refuse[d] to
answer.”
She acknowledged that she had “receive[d] an order
from the German court” to appear at the court-martial
and that was “the reason” she was present. She stated that
she had “indicated” to the military prosecutor the day
before the court-martial that she “had no intention of
testifying against ... [her] father.” She said that her
reason for not wishing to testify was to avoid “the poten-
tial harm it could do to ... [her] father” and that she
“didn’t want to hurt . . . [her] family any more.”
She also acknowledged, however, that she had taken
“an oath back in June of this year”; that she had
“promise[d] to tell the truth back then”; and that she had
not lied under that June oath.
Sa
At this juncture in the proceedings, trial counsel re-
quested the military judge to “make inquiry of the witness
and, if necessary, given an order to the witness to testify in
this case.” The defense promptly requested an Article
39(a), Uniform Code of Military Justice, 10 USC § 839(a),
session “for purposes of judicial notice of German law and
to discuss other matters. .. .”
The discussion during the Article 39(a) session centered
on the victim’s apparent privilege under German law not
to testify against her father, an issue previously identified
and discussed at a pretrial conference. See RCM 802,
Manual for Courts-Martial, United States, 1984. The
prosecution conceded that, under the North Atlantic
Treaty Organization’s (NATO) Status of Forces Agree-
ment and the pertinent implementing regulations, German
law applied to the victim and that, under German law, she
had such a privilege. In addition, the prosecution ac-
knowledged that, pursuant to the treaty, the prosecution
had been obliged to request the German court’s to sub-
poena the victim to attend the court-martial. The prose-
cution disputed, however, the contention that the German
privilege applied at the court-martial. The prosecution
conceded, nevertheless, that neither the military judge nor
the German courts had the authority to order the victim to
testify should she decline.
The defense acknowledged that
the witness is aware, was aware yesterday, that this
was a provision of the German law, based upon her
being told that, or having it confirmed by a German
social worker... .
In addition, defense counsel argued that
since her presence here is premised solely upon the
German subpoena, which is the only power that can
make her appear here, that she needs to be instructed
6a
under the German law of her rights and see if that is
what she is essentially, in her inexperienced, perhaps
unsophisticated way, is attempting to convey to this
court. If so, Your Honor, we would submit that a
motion to strike any testimony she gave without hav-
ing been advised would be something the defense
would raise, but we submit that there is no power that
this court has to order her to testify under American
law and, as we know, under German law here today.
Such an order to testify would have been, in the defense’s
view, “an improper order .. . because it cannot be en-
forced.”
The military judge announced his decision “to talk with
her and encourage her . . . to voluntarily talk,” reserving
the possibility of “issu[ing] her an order, realizing I may
not be able to compel or to punish her for violation of that
order.” The defense promptly objected, arguing:
Your Honor, the defense concurs that the goal of
justice is to have her voluntarily testify, with the em-
phasis on the word “voluntarily,” and we would sub-
mit, with all due respect, that if you, sitting up there
with your judicial robes in the position of authority
over her, give her an order, knowing that you cannot
do anything about a refusal, but implying to her that
you can, you have taken away, to a certain degree,
one which we may not be able to measure, her volun-
tary choice to testify, under fear of a threat which is
no threat. We do not submit that that is voluntary
testimony and we would register our objection to that
procedure.
When the prosecutor complained that the Government
was trying to afford appellant confrontation but that it
was the defense that was trying to prevent it, defense
7a
counsel countered that the defense did not “write” the
rules, but
[w]e are doing everything in our power that is enabled
us and allowed us under the law. What we are saying
about this witness is, she appears to be the type of
person who can be pressured, and we are concerned
that inadvertently, or perhaps advertently, the mili-
tary judge will pressure her into providing testimony
which is suspect by the very nature of the pressure.
The witness was then recalled, and the military judge
questioned her. He encouraged her to testify, but he did
not order her to testify. Indeed, he informed her that he
had no power to order her to testify or to punish her for
refusing to testify. The victim told the judge that she
decided herself not to testify against appellant.
Asked about her reasons for not wanting to testify, she
mentioned the difficulty of testifying in front of people.
When the judge sympathized with her and tried to offer
encouragement on that point, she stated:
And the other reason is because I don’t want my dad
to go to jail.
Again the judge sympathized with her, and she responded:
I can only say that I guess I want my dad t be pun-
ished, but I’ve already talked to my mom about my
dad when we have our—when we visit, that way deal-
ing with how he feels and all. She just doesn’t do this
with me to know what’s going on. I know he’s been
going through a whole lot more with all the charges
that have been laid on him.
Again the judge offered sympathy, and she responded:
And I feel maybe that’s enough, maybe he has been
punished, ‘cause he knows if he tries it again, it would
be a whole lot worse.
8a
(Emphasis added.) She also allowed that “[s]ome of the
charges that have been put on him I think are a little
heavy.”
Asked by the judge if anybody had “sat down with you
and said—well, this is what’s going to happen if you
testify, and this is what happens if you don’t testify?,” she
responded:
No, I really—I have been told that, but they haven’t
said— well, your father is going to go to jail if you
testify, and he’s not going to go to jail if you don’t
testify and all— but they gave me like an idea like —if
you testify, there may be enough evidence to put your
father in jail, and if you don’t testify, there may not
be enough to end up putting your father in jail, and I
got the idea that I don’t want to testify. I don’t want
my father in jail."
To the judge’s question, “Do you feel if you testified that
he might go to jail?,” the victim responded: “Yes.”
At the conclusion of the judge’s questioning of the wit-
ness, the defense was offered an opportunity to question
her. The defense declined. Ultimately, the military judge
received prosecution exhibits 4 and 5 in evidence under the
“residual hearsay rule” of Mil.R.Evid. 804(b)(5).5 See
* Evidently it was this comment that prompted the Court of Military
Review to observe that the victim had received “a short course on the
law of evidence and how her testimony or lack thereof would affect the
outcome of her father’s trial.” Unpub. op. at 6.
* Mil.R.Evid. 804(b)(S) provides:
The following are not excluded by the hearsay rule if the declarant is
unavailable as a witness:
5. Other exceptions.
A statement not specifically covered by any of the foregoing excep-
tions but having equivalent circumstantial guarantees of trust-
9a
Appendix. There are no issues before us pertaining to the
correctness of the parties’ understanding of German law as
it may have applied to the victim or to the military judge’s
handling of these matters; and we do not decide them.
The Confrontation Clause of the Sixth Amendment
provides: “In all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the witnesses
against him.”
As the Supreme Court has consistently pointed out:
[I]t is this literal right to “confront” the witness at the
time of trial that forms the core of the values furthered by
the Confrontation Clause:
“The primary object of the constitutional provision
in question was to prevent depositions or ex parte
worthiness, if the military judge determines that (A) the state-
ment is offered as evidence of a material fact; (B) the statement is
more probative of the point for which it is offered than any other
evidence which the proponent can procure through reasonable ef-
forts; and (C) the general purposes of these rules and the interest
of justice will best be served by admission of the statement into
evidence. However, a statement may not be admitted under this
exception unless the proponent of it makes known to the adverse
party sufficiently in advance of the trial or hearing to provide the
adverse party with a fair opportunity to prepare to meet it, the in-
tention to offer the statement and the particulars of it, including
the name and address of the declarant.
(Emphasis added.)
Mil.R.Evid. 803(24) (availability of declarant as witness immaterial)
is virtually identical. The military judge selected Mil.R.Evid. 804(b)(5S)
due to its technical definition of “ ‘Unavailability as a witness,’
includ[ing] situations in which the declarant. . . persists in refusing to
testify concerning the subject matter of the declarant’s statement
despite an order of the military judge to do so.” See Mil.R.Evid.
804(a)(2).
10a
affidavits, such as were sometimes admitted in civil
cases, being used against the prisoner in lieu of a per-
sonal examination and cross-examination of the
witness in which the accused has an opportunity, not
only of testing the recollection and sifting the cons-
cience of the witness, but of compelling him to stand
face to face with the jury in order that they may look
at him, and judge by his demeanor upon the stand
and the manner in which -he gives his testimony
whether he is worthy of belief.” Mattox v. United
States, 156 U.S. 237, 242-243, 15 S.Ct. 337, 339, 39
L.Ed. 409 (1895).
California v. Green, 399 U.S. 149, 157-58, 90 S.Ct. 1930,
1934-35, 26 L.Ed.2d 489 (1970).
Accordingly, the Supreme Court has stressed the
primacy of the need to produce the witness at the trial, if
at all possible. Barber v. Page, 390 U.S. 719, 723, 88 S.Ct.
1318, 1321, 20 L.Ed.2d 255 (1968) (error to admit
transcript of witness’ prior testimony, where witness in
federal prison in adjoining state and state made “no
effort” to produce him at trial); cf. Pointer v. Texas, 380
U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965).
Production of the witness solves a myriad of problems.
Even though the witness cannot be subject to cross-
examination at the point the hearsay statement is made,
that fact
cannot easily be shown to be of crucial significance as
long as the defendant is assured of full and effective
cross-examination at the time of trial. The most suc-
cessful cross-examination at the time of the prior
statement was made could hardly hope to accomplish
more than has already been accomplished by the fact
that the witness is now telling a different, inconsistent
story.... |
lla
California v. Green, 399 U.S. at 159, 90 S.Ct. at 1935-36.
Cf. United States v. Yeauger, 27 MJ 199, 202 (CMA
1988), cert. denied, 490 U.S. 1005, 109 S.Ct. 1638, 104
L.Ed.2d 154 (1989). The Green Court, in a case wherein
the hearsay declarant was “markedly evasive and unco-
Operative on the stand,” concluded that
the Confrontation Clause is not violated by admitting
a declarant’s out-of-court statements, as long as the
declarant is testifying as a witness and subject to full
and effective cross-examination.
Id. 399 U.S. at 151 and 158, 90 S.Ct. at 1931 and 1935.
In Delaware v. Fensterer, 474 U.S. 15, 106 S.Ct. 292, 88
L.Ed.2d 15 (1985), a government expert had reached an
incriminating conclusion regarding a piece of evidence (a
strand of hair), but he could not, at trial, remember which
of three possibilities led him to that ultimate conclusion.
Fensterer complained that he could not effectively cross-
examine, and thus discredit, the expert with respect to his
conclusion. The Supreme Court held that Fensterer was
not denied confrontation, noting:
“The main and essential purpose of confrontation is
to secure for the opponent the opportunit 'y of cross-
examination.” Id. [Davis v. Alaska, 415 U.S. 308,] at
315-16 [94 S.Ct. 1105, at 1109-10, 39 L.Ed.2d 347]
[(1974)] (quoting 5 J. Wigmore, Evidence § 1395, p.
123 (3d ed. 1940) (emphasis in Original)). Generally
speaking, the Confrontation Clause guarantees an
opportunity for effective cross-examination, not
cross-examination that is effective in whatever way,
and to whatever extent, the defense might wish... .
474 U.S. at 19-20, 106 S.Ct. at 294-95. Fensterer’s cross-
examination of the expert, including “demonstrat[ing] to
the jury that ... [the expert] could not even recall the
theory on which his opinion was based,” was held suffi-
12a
cient to satisfy the Confrontation Clause. /d. at 20, 106
S.Ct. at 295.
In United States v. Owens, 484 U.S. 554, 108 S.Ct. 838,
98 L.Ed.2d 951 (1988), an assault victim made an out-of-
court identification of the defendant as his assailant less
than a month after the assault. By the time of trial, the vic-
tim could remember having identified Owens as his assail-
ant (near a month after the attack). However, as a result
of the grievous head injuries he suffered in the assault, he
could no longer remember having seen his assailant, or in-
deed any of his numerous visitors, except one (not the ac-
cused) while he was in the hospital. The Supreme Court
permitted receipt of the out-of-court identification, even
though cross-examination was impossible. Quoting from
Fensterer the Court reiterated that it was the “opportunity
for effective cross-examination” that was guaranteed by
the Confrontation Clause.* Even if the victim had no
memory, the opportunity guaranteed by the Constitution
was Offered. “It is sufficient,” said Justice Scalia for the
Court, “that the defendant has the opportunity to bring
out such matters as . . . the very fact that he [the witness]
has a bad memory.” 484 U.S. at 559, 108 S.Ct. at 842.
We likewise have long insisted that the hearsay declar-
ant be produced whenever possible. United States v.
Miller, 7 USCMA 23, 30, 21 CMR 149, 156 (1956) (two
perfunctory phone calls on even before trial insufficient
® Nothing in the Supreme Court’s cases supports Chief Judge Sulli-
van’s radical view, 39 MJ at 170, that an accused’s mere sense of shift-
ing tactical advantage is all that it takes to override the Supreme
Court’s opportunity-to-cross-examine benchmark, such that the ac-
cused can, on impulse, now decline to cross-examine a tendered
witness, Or now resurrect the denial-of-confrontation shield, accord-
ing to his maximal level of comfort at the moment. The accused either
has an opportunity to cross-examine at trial, or he does not. Whether
he chooses to exercise it is his business.
13a
effort to locate prosecution witness; deposition not ad-
missible); United States v. Gaines, 20 USCMA 557,
561-62, 43 CMR 397, 401-02 (1971) (error to receive
deposition of prosecution witness, absent showing of ac-
tual unavailability, where Government procured witness’
departure from country (Viet Nam) and effected his dis-
charge from active duty prior to expiration of his enlist-
ment).
In United States v. Barror, 23 MJ 370, 372-73 (CMA
1987), we admonished government counsel generally as
follows:
When difficulties or inconveniences arise in obtaining
the witnesses, or when it appears that they may be
“softening” in their position, there may be a certain
human tendency —or at least the appearance of one—
for prosecutors to relax somewhat their efforts to ob-
tain the witnesses —if they already have admissible ac-
cusatory statements in hand. For this reason, we have
been quite insistent that all reasonable means of ob-
taining crucial witnesses’ presence be undertaken
before we will consider approving substitutes. See,
e.g., United States v. Cokely, 22 MJ 225 (CMA
1986); United States v. Hinton, 21 MJ 267 (CMA
1986).
(Footnote omitted.)
In the instant case, the Government did not seek to rely
on paper evidence, but rather produced the witness. It is
true, of course, that the victim was not subjected to “full
and effective cross-examination,” California v. Green, 399
U.S. at 159, 90 S.Ct. at 1935-36; but then the defense
waived cross-examination. Indeed it is clear that examina-
tion of the victim, direct or cross, was the very last thing
l4a
on earth the defense wanted to have happen. Having thus
eschewed confrontation, appellant cannot now claim a
denial of it. See United States v. Hines, 23 MJ 125, 132
(CMA 1986); cf. United States v. Thevis, 665 F.2d 616,
632-33 (Sth Cir.) (waiver of right to confrontation is “a
fortiori” waiver of right to raise hearsay objection), cert.
denied, 456 U.S. 1008, 102 S.Ct. 2300, 73 L.Ed.2d 1303
(1982). As a result of appellant’s waiver of cross-examina-
tion, we hold that he was not denied his rights under the
Confrontation Clause.
IV
The question remains:
What of the victim’s pretrial statements received in
evidence under Mil.R.Evid. 804(b)(5)?’ The military
judge’s extensive findings in that regard, after a
lengthy evidentiary hearing into the circumstances
surrounding the statements, are attached hereto. See
Appendix. Generally, these findings address the cir-
cumstances surrounding the taking of the statements.
In at least two respects, however, the judge made
reference to corroborating matters as supporting his
conclusions of reliability. One such corroborating
matter was the seizure from appellant’s belongings of
a particular pornographic video described by the vic-
tim as having been repeatedly shown to her by appel-
lant. The other—and most significant —corroborat-
ing factor was appellant’s confession to the very con-
duct described in the victim’s pretrial statements. We
now consider whether it was proper to consider such
corroboration.
’ See n. 5, supra.
lSa
In Jdaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111
L.Ed.2d 638 (1990), the Supreme Court concluded that a
particular hearsay statement was improperly received in
evidence because the trial judge had relied in part on in-
dependent evidence corroborating the declarant’s state-
ment. 497 U.S. 817-26, 110 S.Ct. at 3148-51, 3153. Ap-
pellant contends that Wright bars receipt of A’s pretrial
statements due to the military judge’s referrence to cor-
roborating evidence. We disagree.
In Wright, the Supreme Court neatly encapsulated its
previously developed approach to confrontation-hearsay
analysis when it stated:
In Ohio v. Roberts, [448 U.S. 56, 100 S.Ct. 2531,
65 L.Ed.2d 597 (1980),] we set forth “a general ap-
proach” for determining when incriminating state-
ments admissible under an exception to the hearsay
rule also meet the requirements of the Confrontation
Clause. 448 U.S., at 65, 100 S.Ct. at 2538. We noted
that the Confrontation Clause “operates in two sepa-
rate ways to restrict the range of admissible hearsay.”
Ibid. “First, in conformance with the Framers’ prefer-
ence for face-to-face accusation, the Sixth Amend-
ment establishes a rule of necessity. In the usual case
. .. , the prosecution must either produce, or demon-
strate the unavailability of, the declarant, whose
statement it wishes to use against the defendant.”
Ibid. (citations omitted.) Second, once a witness is
shown to be unavailable, “his statement is admissible
only if it bears adequate ‘indicia of reliability.’ Relia-
bility can be inferred without more in a case where the
evidence falls within a firmly rooted hearsay excep-
tion. In other cases, the evidence must be excluded, at
least absent a showing of particularized guarantees of
trustworthiness.” Jd. at 66, 100 S.Ct. at 2539 (foot-
16a
note omitted); see also Mancusi v. Stubbs, 408 U.S.
204, 213, 92 S.Ct. 2308, 2313, 33 L.Ed.2d 293 (1972).
497 U.S. at 814-15, 110 S.Ct. at 3146.
Wright, however, was a very different case from the in-
stant one. There, the trial judge conducted a voir dire ex-
amination of the victim, 3 years old at the time of trial,
and concluded she was “not capable of communicating to
the jury.” The parties agreed. 497 U.S. at 809, 110 S.Ct. at
3143. Live confrontation of the hearsay declarant was
neither formally tendered, as here, nor waived, as here. In
the Wright circumstances, with the infant not able to
testify, the Supreme Court went forward to apply the
Roberts confrontation analysis to the proffered hearsay
evidence itself (i.e., the testimony of an examining physi-
cian relating the victim’s statements to him, offered under
Idaho’s residual hearsay exception).
In the course of that application, the Supreme Court
concluded that
“particularized guarantees of trustworthiness” must
be shown from the totality of the circumstances, but
we think the relevant circumstances include only
those that surround the making of the statement and
that render the declarant particularly worthy of
belief.
497 U.S. at 819, 110 S.Ct. at 3148 (emphasis added). For
purposes of the Confrontation Clause, in other words, the
fact that the 3-year-old’s statement was corroborated by
other evidence could not be used to bootstrap its trust-
worthiness. 497 U.S. at 823, at 110 S.Ct. at 3150.
The Wright n. * «ity “derive[d]” the foregoing noncor-
roboration conclusion
from the rationale for permitting exceptions to the
general rule against hearsay:
17a
“The theory of the hearsay rule .. . is that the
many possible sources of inaccuracy and untrust-
worthiness which may lie underneath can best be
brought to light and exposed, if they exist, by the
test of cross-examination. But this test or securi-
ty may in a given instance be superfluous; it may
be sufficiently clear, in that instance, that the
statement offered is free enough from the risk of
inaccuracy and untrustworthiness, so that the
test of cross-examination would be a work of
supererogation.” 5S J. Wigmore, Evidence
§ 1420, p. 251 (J. Chadbourne rev. 1974).
In other words, if the declarant’s truthfulness is so clear
from the surrounding circumstances that the test of cross-
examination would be of marginal utility, then the hearsay
rule does not bar admission of the statement at trial.
497 U.S. at 819-20, 110 S.Ct. at 3148-49 (emphasis added).
By its terms, however, the Wigmore comment, like
Wright itself, plainly relates to circumstances wherein the
opportunity for cross-examination has been neither pro-
vided or waived. Accordingly, we do not read Wright as a
blanket assertion that, even in cases where confrontation
has been actually provided or waived, hearsay evidence of-
fered under a rule of evidence must itself satisfy Sixth
Amendment — Roberts confrontation analysis prior to ad-
mission. In particular, we see no suggestion in Wright
that, in such cases, the Sixth Amendment forbids refer-
ence to corroborating evidence for a determination of
“equivalent circumstantial guarantees of trustworthiness”
under the “residual hearsay” evidentiary rules.
Furthermore we would not expect the Confrontation
Clause to be so applied to a pure rule-of-evidence ques-
tion. The military “residual hearsay” rules, after all, are
but verbatim copies of their Federal Rules of Evidence
18a
counterparts, Fed.R.Evid. 803(24) and 804(b)(5), which
rules are applicable to federal civil and criminal cases
alike. Since the Confrontation Clause does not apply to
civil cases at all, we do not read Wright as purporting to
engraft Confrontation Clause requirements onto hearsay
rules of evidence generally. Cf. Amcast Industrial Corp. v.
Detrex Corp., 779 F.Supp. 1519, 1527-28 (N.D.Ind. 1991)
(motion for summary judgment based on plaintiff’s reli-
ance on hearsay to support complaint in action under
Comprehensive Environmental Response, Compensation,
and Liability Act, as amended 42 USC §§ 9601 ef seq.:
“Among the factors considered ‘n_ determining
whether to apply the residua! exception are .. . the
existence of sufficient corroborative evidence.”).
In criminal cases where the confrontation opportunity
was provided — California v. Green, supra, for example,
where the witness was “markedly evasive and uncoopera-
tive on the stand”—the declarant’s prior statement itself
was not subjected to a separate confrontation analysis.
399 U.S. at 168-69, 90 S.Ct. at 1940-41. In United States v.
Owens, supra, where the victim-witness could not remem-
ber seeing his assailant, yet the opportunity for confronta-
tion was provided, the victim’s prior identification of the
defendant as his assailant was received without independ-
ent constitutional scrutiny. 484 U.S. at 564, 108 S.Ct. at
845.
This is not surprising, since the Supreme Court has
often reminded us that the Confrontation Clause and the
hearsay exceptions are not co-extensive:
It seems apparent that the Sixth Amendment’s Con-
frontation Clause and the evidentiary hearsay rule
stem from the same roots. But this Court has never
equated the two, and we decline to do so now.
19a
Dutton v. Evans, 400 U.S. 74, 86, 91 S.Ct. 210, 218, 27
L.Ed.2d 213 (1970) (footnotes omitted).
While it may readily be conceded that hearsay rules
and the Confrontation Clause are generally designed
to protect similar values, it is quite a different thing to
suggest that the overlap is complete and that the Con-
frontation Clause is nothing more or less than a codi-
fication of the rules of hearsay and their exceptions as
they existed historically at common law... .
California v. Green, 399 U.S. at 155, 90 S.Ct. at 1933.
Thus we do not apply the prohibition against bolstering
“indicia of reliability” under Sixth Amendment — Roberts
analysis to the “equivalent circumstantial guarantees of
trustworthiness” requirement of residual hearsay under
the rules of evidence. The Supreme Court has not yet
definitively ruled on whether corroboration is one of the
circumstances which may be used to assure the trust-
worthiness of hearsay under the rules of evidence, and the
lower courts and the commentators have taken a variety of
positions. Compare Imwinkelried, The Scope of the
Residual Hearsay Exceptions in the Federal Rules of Evi-
dence, 15 San Diego L.Rev. 239 (1978), and the cases cited
therein, with Sonenshein, The Residual Exceptions to the
Federal Hearsay Rule: Two Exceptions in Search of a
Rule, 57 N.Y.U.L.Rev. 867 (1982), and the cases cited
therein.®
§ Professor Imwinkelreid and others have also commented on the
mixed quality of some evidence that is routinely received under the
traditional common-law hearsay exceptions:
As noted by Professor Davis, with whom other commentators
have concurred, one of the most irrational features of hearsay
20a
law is that “technically incompetent hearsay is often more reliable
than technically competent evidence.”. . .
* * *
Rather than ensuring extraordinary reliability, the traditional ex-
ceptions permit the admission of hearsay of frankly dubious relia-
bility. In Professor McCormick’s terse words, they sanction the ad-
mission of “[mJuch worthless evidence.” In the case of some excep-
tions, the guarantee of trustworthiness seems “imagined” rather than
real. On occasion, the common law seemed content with any guaran-
tee other than the mere fact that tiie statement had been made.
Professor Morgan was one of the first to expose the suspect nature
of some of the evidence routinely admitted under the traditional ex-
ceptions. For example, he pointed out that the continuity of state of
mind theory overlooks probative memory dangers. Modern witness
psychology has validated Morgan’s criticism. This discipline has pro-
vided new insights which confirm the high probability of error in such
frequently admitted types of hearsay as excited uterrances.
The primary explanation for the relatively low quality and reliabili-
ty of traditionally admitted hearsay is the common law’s obsession
with perjury. There are four distinct probative dangers — perception,
memory, narration, and sincerity. Nevertheless, the common law
courts, in framing the exceptions, focused primarily on sincerity. For
most exceptions, there is no real substitute for a cross-examiner’s abili-
ty to probe errors in perception, memory, or narration; realistically,
there is only a substitute for the oath—some circumstantial inference
that the declarant is not consciously lying. The hoary exceptions for
dying declarations, declarations against interest, and excited utter-
ances illustrate that the courts have placed the greatest emphasis on
the testimonial quality of sincerity in evolving the traditional excep-
tions.
Imwinkelried, The scope of the Residual Hearsay Exceptions in the
Federal Rules of Evidence, 15 San Diego L.Rev. 239, 262-63 (1978)
(footnotes omitted).
The instant case embodies a major improvement over “traditional
hearsay exception” practice and, to a considerable extent, ameliorates
the common-law concern about the sincerity of the declarant. Since
the declarant was on the witness stand at the court-martial explaining
her reasons for refusing to testify (revealing in the process significant
details and ratifying, in effect, her prior statements), the factfinder —
2la
We have previously sided with those courts holding that
corroboration by other evidence is one of the means by
which hearsay evidence can be tested for trustworthiness. °
United States v. Hines, 23 MJ at 138'°; United States v.
here the military judge—was presented with an eye and earful with
which to evaluate her sincerity, motivations, and credibility. An op-
portunity to so observe the declarant-witness will often enhance great-
ly a factfinder’s ability to weight prior statements. Cf. California v.
Green, 399 U.S. 149, 159, 90 S.Ct. 1930, 1935-36, 26 L.Ed.2d 489
(1970).
* Prior to Wright, virtually all of the United States Courts of Ap-
peals had cited corroboration as a factor appropriate to reliability
analysis. See Comment, /daho v. Wright:
Is it a Step in the Wrong Direction Determining the Reliability of
Hearsay Statements for the Confrontation Clause? 53 Ohio
St.L.J. 663, 666-71 (1992) (discussing cases).
'© Regarding the Chief Judge’s comment that, in United States v.
Hines, 23 M.J. 125, 134 (CMA _ 1986), we “constitutionalized
Mil.R.Evid. 804(b)(5),” 39 MJ at 171; that statement is taken com-
pletely out of context. Hines was decided almost 4 years before /daho
v. Wright, supra, and nothing in Hines could possibly be construed as
addressing the question of what pieces of evidence might be used to
ascertain reliability. The quoted portion of Hines clearly was focusing
on how reliable evidence had to be in order to be admissible under the
residual hearsay exception—and our answer was that it had to be
every bit as reliable as did evidence receivable in lieu of confrontation
under the Sixth Amendment. As to this requirement, we have certainly
not backed off one iota.
If my Hines text, in retrospect of Wright, is at all ambiguous on that
point, | would invite the reader to examine the substance of the cases I
cited (23 MJ at 134). These cases were cited in support of our conclu-
sion that reliability must be very high indeed to satisfy the residual
hearsay exceptions. /.e., United States v. Nick, 604 F.2d 1199, 1203
(9th Cir. 1979) (“The question in each case [confrontation/hearsay]
must be whether a particular hearsay declaration, otherwise admissi-
ble, has such great probative value as evidence of a material fact and
such a high degree of trustworthiness under all of the circumstances
that its reception outweighs any risk to a defendant that unreliable
22a
Yeauger, 27 MJ at 202; see also United States v. Jones, 30
MJ 127, 131 (CMA 1990) (Cox, J., concurring) (“Like al!
hearsay exceptions, this [Mil.R.Evid. 803(24)] is a rule of
reliability, truthfulness, trustworthiness, and accuracy.”).
Pending clarification to the contrary by the Supreme
Court, we adhere to that view.
Under the circumstances of this case, see Appendix, we
hold that the military judge did not abuse his discretion in
considering corroborating evidence, including appellant’s
confession, in determining that the victim’s pretrial state-
ments satisfied the residual hearsay requirements of
Mil.R.Evid. 804(b)(5).
The decision of the United States Air Force Court of
Military Review is affirmed.
Judges CRAWFORD and GIERKE concur.
APPENDIX
The ruling of the military judge on the defense objection
to admission of the victim’s pretrial statements (Pros.Ex. 4
and 5) was as follows:
evidence may be received against him. . . .”); United States v. West,
$74 F.2d 1131, 1138 (4th Cir. 1978) (“All of this [reciting the evidence
corroborating the hearsay] lends a high degree of reliability and trust-
worthiness to Brown’s testimony before the grand jury. . . . It should
not be surprising that the same circumstances suffice to meet the re-
quirements of § 804(b)(S) and of the Confrontation Clause.”).
Certainly ! was not purporting in Hines to prophesy subsequent rul-
ings regarding the ‘ypes of evidence that might be used to establish
reliability, for either Sxith Amendment or hearsay purposes; I was
also not asserting that the residual hearsay evidentiary rule must be
welded to the Confrontation Clause for all purposes, procedural as
well as substantive, for all time. As the instant case does not, in my
judgment, involve a Sixth Amendment component, the unaffected
portion of the Hines opinion is very much apposite to the instant
facts. | regard this opinion as an application of the viable portions of
Hines, not an overruling of them.
2m atin
23a
The court rules that the victim’s out of court state-
ments, Prosecution Exhibits 4 and 5 for Identifica-
tion, are admitted under M.R.E. [Mil.R.Evid.]
804(b)(5). In arriving at this ruling, the court has
determined that the statements by the victim were
made by the victim, . . . [A]; second, that the state-
ments are offered as evidence of material facts in this
case; that is, evidence of the sexual misconduct al-
leged in the charges and the specifications. The court
has determined that the statements are more proba-
tive on the issues of whether any sexual misconduct
occurred than any other evidence which the Govern-
ment could reasonably procure through reasonable
means. In fact, considering the refusal of the victim
to testify in this case, the statements are the only form
in which the victim’s allegations can be presented to
the court.
The court has also determined that the general pur-
pose of the Military Rules of Evidence and the inter-
ests of justice will be served by admission of the vic-
tim’s statements into evidence. Again, this case in-
volves an intra-family alleged criminal offenses [sic]
where really the only evidence in this particular case,
substantial evidence, is from the family members
themselves, one of which who [sic] has been deemed
unavailable; this is, the victim.
The court also finds that the statements of . . . [A] have
the following equivalent circumstantial guarantees of
trustworthiness:
First, the victim had no apparent motive to lie; sec-
ond, both statements are typed, easily readable, are
coherent and, more importantly, are signed under
oath by the victim. Next, the victim, in her brief ap-
pearance on the stand yesterday, acknowledged that
24a
she had been under oath, placed under oath in June
of ’89, and that she had never lied when under oath.
Next, that the victim’s motivations in revealing the
alleged sexual misconduct against her on 9 June ’89 is
reflected in her 20 June ’89 statement, wherein she
States that for several days prior to 9 June ’89 she
feared that her father was going to have actual sexual
intercourse with her and that she felt it was necessary
to report his conduct to Mrs. Harris. Furthermore,
... [A] was afraid that her father might be doing
something similar to her sister, and again, appears to
be her motivations for revealing the alleged miscon-
duct.
Next, the victim has not recanted her statements. On
the stand yesterday, she expressed her desire simply
not to be involved and declined in fact the opportuni-
ty to recant. The court really does not give much
weight to her statement allegedly overheard yesterday
by Sergeant McQuiston [(the Area Defense Counsel
Administrator; the statement overheard was made by
the victim to civilian defense counsel just before the
court-martial commenced)] that her 20 June state-
ment is five percent untrue. That statement really in
itself is very unclear as to what she means. There is an
indication she’d only read two lines of the statement
and then made that particular statement and the court
just does not place virtually any weight on that par-
ticular statement considering that [sic] the victim’s
now reluctance to participate in these proceedings or
to hurt her father in any way.
The court also considers the details of the conduct of
the interviews, which affirms the accuracy and the
voluntary nature of the victim’s statements. On the
9th of June, the victim, when she was being inter-
oe
25a
viewed, was not overly emotional or confused or dis-
traught, but was coherent. She readily told her story,
once she was allowed to be just with women, to then
Lieutenant Hall. Lieutenant Hall did not pressure the
victim or put words in her mouth or coerce her in any
way. Lieutenant Hall typed the statement using lan
guage obtained directly from the victim. The victim
had the opportunity to change or correct her state-
ment. Thus, the 9 June ’89 statement is substantially
the victim’s own recitation, own words of the allega-
tion.
On 20 June ’89, again the victim initiated the inter-
view with Special Agent Sallinger. The victim was
coherent, under control. She again was not pressured
or forced into giving the statement or a statement in
any particular form. She was given the opportunity to
change and correct her statement. Her words again
were given directly to Special Agent Sallinger, who
typed them up on the computer as she gave them to
him.
The court also finds as circumstantial evidence of
trustworthiness, that both statements are detailed.
They’re not inherently inconsistent or unbelievable,
and they appear to be couched in language and termi-
nology of that used by a young teenager. The court
also relies on the fact that some of the misconduct,
some of apparently the touching and the feeling, oc-
curred just several days before she reported it, and the
other misconduct, again, within a reasonable period
of time where she was likely to recall the details of
that misconduct.
The court finds that the victim’s refusal to testify also
affirms the accuracy of her statements, since she
26a
recognized from the stand that if she testified and told
the truth, that her father would go to jail. It certainly
indicates to the court that her reflecting back on her
statements that she realizes that there’s something in
that statement which is true, which is harmful to her
father.
In response to the court’s question about the charges
themselves, she did answer that they were too heavy,
or words.to_that effect, but she did not say that the
allegations which led to those charges were untrue.
The court also relies on the fact that the accused con-
fessed to much of the sexual misconduct in his 9 June
89 statement to the OSI, Prosecution Exhibit 2 for
Identification; that is, he confessed to the fondling of
his daughter’s breasts and vaginal area, to having her
fondle his penis, confessed to performing oral
sodomy on her on a number of occasions, to rubbing
his penis on her vagina. Again, his confession
substantially supports her statements as to the times
and places indicated by the victim and as to the activi-
ty which allegedly occurred.
In her 20 June ’89 statement, the victim stated that the
accused had made her watch dirty movies, one of
which was entitled, “Between the Sheets.” Numerous
purported pornographic video tapes were seized from
the accused’s home, including one called “Between the
Sheets.”
Finally, in assessing the victim’s character for truth-
fulness, the court has received differing opinions
from several different witnesses—Sergeant Terrell,
Captain Friesen, Sergeant Gardiner. However, I do
not find the opinions as to her lack of trustworthiness
SO persuasive as to discount the victim’s credibility as
it relates to her 9 and 20 June statements.
27a
SULLIVAN, Chief Judge (dissenting):
The granted issue in this case is:
WHETHER THE MILITARY JUDGE ERRED TO
THE SUBSTANTIAL PREJUDICE OF APPEL-
LANT BY ADMITTING INTO EVIDENCE AP-
PELLANT’S 9 JUNE 1989 STATEMENT AND
THE 9 JUNE 1989 AND 20 JUNE 1989 STATE-
MENTS PURPORTEDLY GIVEN TO AGENTS OF
THE AIR FORCE OFFICE OF SPECIAL INVESTI-
GATIONS BY THE PUTATIVE VICTIM.
The out-of-court statements of A.M. clearly establish that
appellant sexually abused her as charged and as he himself
confessed prior to trial. However, this evidence was also
essential corroboration for appellant’s confession, and its
exclusion might also render inadmissible appellant’s con-
fession. Mil.R.Evid. 304(g), Manual for Courts-Martial,
United States, 1984. Appellant argues that the alleged-vic-
tim’s pretrial statements were admitted at his trial in viola-
tion of the Confrontation Clause of the Sixth Amendment
and Mil.R.Evid. 804(b)(5).
I
Constitutional Question
The majority opinion first holds: “It is true, of course,
that the victim was not subjected to ‘full and effective
cross-examination,’ California v. Green, 399 U.S. at 159,
90 S.Ct. 1935-36.” 39 MJ at 163. I agree. In United States
v. Owens, 484 U.S. 554, 108 S.Ct. 838, 98 L.Ed.2d 951
(1988), the Supreme Court generally said:
The Confrontation Clause of the Sixth Amendment
gives the accused the right “to be confronted with the
witnesses against him.” This has long been read as
securing an adequate opportunity to cross-examine
28a
adverse witnesses. See, e.g., Mattox v. United States,
156 U.S. 237, 242-243, 15 S.Ct. 337, 339, 39 L.Ed.
409 (1895); Douglas v. Alabama, 380 U.S. 415, 418,
85 S.Ct. 1074, 1076, 13 L.Ed.2d 934 (1965). ...
484 U.S. at 557, 108 S.Ct. at 841 (emphasis added). Here
A.M. appeared at trial but refused to answer any ques-
tions about the charged offenses or her prior statements
about the charged offenses. Unlike the situation of the
forgetful witness in United States v. Owens, supra, A.M.
cannot be said to be “a hearsay declarant [who] is present
at trial and subject to unrestricted cross-examination.” /d.
at 560, 108 S.Ct. at 843 (emphasis added).
Nevertheless, the majority opinion further concludes
that appellant “waived cross-examination,” 39 MJ at 163,
and it is this conclusion with which I must respectfully
disagree. See generally Johnson v. Zerbst, 304 U.S. 458,
464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). For this
holding, the opinion relies on the decision of United States
v. Thevis, 665 F.2d 616 (Sth Cir.), cert. denied, 456 U.S.
1008, 102 S.Ct. 2300, 73 L.Ed.2d 1303 (1982). There, clear
and convincing evidence was presented that the defendant
murdered the very witness whose grand-jury statements
the prosecution sought to introduce. The Fifth Circuit
held
that a defendant who causes a-witness to be unavail-
able tor trial for the purpose of preventing that wit-
ness from testifying also waives his right to confron-
tation under the Zerbst standard. A defendant who
undertakes this conduct realizes that the witness is no
longer available and cannot be cross-examined.
Hence, in such a situation the defendant has in-
telligently and knowingly waived his confrontation
rights.
29a
665 F.2d at 630 (emphasis added). In United States v.
Hines, 23 MJ 125, 133 (CMA 1986), this Court held that it
would not find such a waiver in the “absen[ce of] a specific
factual finding that . . . [the witness] was being controlled
by appellant.” No such finding was reached by the judge in
this case, and indeed no clear and convincing evidence was
presented in this case that appellant caused the witness not
to testify at this court-martial.
The majority opinion finally suggests that appellant
made a tactical decision not to cross-examine A.M., and
thus no Constitutional violation occurred. 39 MJ at 163.
First, I note that it is clear from this record that defense
counsel did not want the alleged victim to testify in this
case or have her pretrial statements admitted. What de-
fense counsel would? Nevertheless, it is not clear that de-
fense counsel did not want to cross-examine this witness if
her damaging pretrial statements were admitted. What
defense counsel wouldn’t? In any event, there is case law
that holds that “[t]he right to confrontation is not” vio-
lated “if a defendant for tactical reasons chooses to forego
cross-examination.” See United States v. Figueroa, 976
F.2d 1446, 1457 (Ist Cir. 1992). However, in appellant’s
case, defense counsel declined to cross-examine A.M.
before the military judge ruled that her pretrial statements
were admissible and after she unequivocally stated that she
would answer no questions about her prior statements. |
cannot find that the Sixth Amendment was satisfied under
this theory. .
My rejection of the majority approach to the Constitu-
tional issue does not dictate that appellant was per se
denied his right to confrontation in this case. I note, how-
ever, that appellant did assert at trial that admission of
this hearsay evidence would violate his right to confronta-
tion under the Sixth Amendment. See generally United
States v. Owens, 484 U.S. at 558-61, 108 S.Ct. at 842-43.
30a
However, the military judge, in ruling on the trustworthi-
ness question, did consider the independent corroboration
of appellant’s confession. That was Constitutional error
under /daho v. Wright, 497 U.S. 805, 110 S.Ct. 3139
(1990).
I!
Evidentiary Question
The majority opinion, finding no Constitutional viola-
tion, proceeds to decide that the military judge and Court
of Military Review did not err in admitting this hearsay
evidence under Mil.R.Evid. 804(b)(5). Although I need
not reach that question, I again must respectfully disagree.
Evidence corroborating the truth of matters asserted in the
hearsay statements may not be considered in finding the
“equivalent circumstantial guarantees of trustworthiness”
required by this evidentiary rule.
My basis for this conclusion is the following language of
Mil.R.Evid. 804(b)(5):
(b) Hearsay exceptions. The following are not ex-
cluded by the hearsay rule if the declarant is unavail-
able as a witness:
(1) Former testimony. Testimony given as a wit-
ness at another hearing of the same or different pro-
ceeding, or in a deposition taken in compliance with
law in the course of the same or another proceeding,
if the party against whom the testimony is now of-
fered had an opportunity and similar motive to
develop the testimony by direct, cross, or redirect ex-
amination. A record of testimony given before courts-
martial, courts of inquiry, military commissions,
other military tribunals, and before proceedings pur-
suant to or equivalent to those required by Article
3la
32 is admissible under this subdivision if such a record
is a verbatim record. This paragraph is subject to the
limitations set forth in Articles 49 and 50.
(2) Statement under belief of impending death. In
a prosecution for homicide or for any offense result-
ing in the death of the alleged victim, a statement
made by a declarant while believing that the declar-
ant’s death was imminent, concerning the cause or cir-
cumstances of what the declarant believed to be the
declarant’s impending death.
(3) Statement against interest. A statement which
was at the time of its making so far contrary to the
declarant’s pecuniary or proprietary interest, or so far
tended to subject the declarant to civil or criminal
liability, or to render invalid a claim by the declarant
against another, that a reasonable person in the posi-
tion of the declarant would not have made the state-
ment unless the person believed it to be true. A state-
ment tending to expose the declarant to criminal
liability and offered to exculpate the accused is not
admissible unless corroborating circumstances clearly
indicate the trustworthiness of the statement.
(4) Statement of personal or family history. (A) A
statement concerning the declarant’s own birth, adop-
tion, marriage, divorce, legitimacy, relationship by
blood, adoption, or marriage, ancestry, or other
similar fact of personal or family history, even
though declarant had no means of acquiring personal
knowledge of the matter stated; or (B) a statement
concerning the foregoing matters, and death also, of
another person, if the declarant was related to the
other by blood, adoption, or marriage or was so inti-
mately associated with the other’s family as to be like-
ly to have accurate information concerning the matter
declared.
32a
(5S) Other exceptions. A statement not specifically
covered by any of the foregoing exceptions but having
equivalent circumstantial guarantees of trustwor-
thiness, if the military judge determines that (A) the
statement is offered as evidence of a material fact; (B)
the statement is more probative of the point for which
it is offered than any other evidence which the propo-
nent can procure through reasonable efforts; and (C)
the general purposes of these rules and the interest of
justice will best be served by admission of the state-
ment into evidence. However, a statement may not be
admitted under this exception unless the proponent of
it makes known to the adverse party sufficiently in
advance of the trial or hearing to provide the adverse
party with a fair opportunity to prepare to meet it, the
intention to offer the statement and the particulars of
it, including the name and address of the declarant.
(Emphasis added.)
Three reasons exist for my construction of Mil.R.Evid.
804(b)(S) as prohibiting consideration of independent cor-
roborative evidence of the matter asserted in the hearsay
statements. First, Idaho v. Wright, supra, holds that such
corroborative evidence is not a matter relevant to the trust-
worthiness of a statement but rather to the lack of preju-
dice in its admission. 497 U.S. at 823, 110 S.Ct. at
3150-51; see United States v. Ellis, 935 F.2d 835-95 (ist
Cir. 1991). Second, the Supreme Court in /daho vy.
Wright, supra, expressly defined “particularized guaran-
tees of trustworthiness” in light of Fed.R.Evid. 804(b)(5)
and concluded that only the “circumstances ... sur-
round[ing] the making of the statement” could be con-
sidered. 497 U.S. at 820, 110 S.Ct. at 3149. See United
States v. Grooms, 978 F.2d 425, 427 (8th Cir. 1992);
United States v. Accetturo, 966 F.2d 631, 636 (11th Cir.
33a
1992). Finally, this Court generally constitutionalized
Mil.R.Evid. 804(b)(5) in United States v. Hines, 23 MJ at
134; therefore, the holding of /daho v. Wright, supra,
constitutionally prohibiting consideration of independent
corroborative evidence logically should be applicable.
Despite all of the above, I would not set aside
appellant’s conviction. Even cursory review of the military
judge’s findings reveals that appellant’s confession was
one of many reasons that he found A.M.’s pretrial state-
ments were trustworthy within the meaning of Mil.R.Evid.
804(b)(5). I also note that this case was tried before the
decision of the Supreme Court in Jdaho v. Wright, supra,
and in light of this Court’s decisions prior to Idaho vy.
Wright, supra, which permitted consideration of indepen-
dent corroborating evidence on the trustworthiness ques-
tion. Therefore, I would remand this case to the trial court
for reconsideration of this issue in light of Jdaho v.
Wright, supra, and United States v. Greer, 33 MJ 426
(CMA 1991).
Wiss, Judge (dissenting):
I join fully in the dissenting opinion of the Chief Judge.
Pursuant to his rationale, I agree that appellant did not
waive his Sixth Amendment confrontation and cross-
examination rights, so appellant’s reliance upon those
rights remains viable. The Government’s responsibility in
this context, then, was either to produce the witness
(which assumes her availability) or to demonstrate her un-
availability. Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531,
65 L.Ed.2d 597 (1980), relied upon in United States v.
Clark, 35 MJ 98, 104 (CMA 1992).
A number of interesting questions suggest themselves
within the issue of whether the witness was available or
unavailable, see, e.g., United States v. Ortiz, 35 MJ 391
34a
(CMA 1992); United States v. Clark, supra. The deter-
minative impact of the question of her availability, how-
ever, is rendered moot under these facts by my agreement
with the Chief Judge that the showing of reliability that is
necessary under the evidentiary hearsay rules is the same
as will satisfy the Confrontation Clause when the witness
is unavailable. United States v. Hines, 23 MJ 125 (CMA
1986); see United States v. Clark, supra (where appellant
waived confrontation rights, Court applied constitutional
reliability standard in determining whether residual hear-
say rule was met).
In addition to the rationale offered by the Chief Judge
on the appropriate reading of Mil.R.Evid. 804(b)(5)—
and, as well, Mil.R.Evid. 803(24), which is the residual-
hearsay exception applicable when the declarant is avail-
able and is worded precisely the same as is Mil.R.Evid.
804(b)(5) —I suggest that a fair reading of the rules them-
selves ineluctably leads to the same conclusion. Each of
these hearsay exceptions applies to an out-of-court “state-
ment not specifically covered by any of the foregoing [spe-
cific] exceptions but having equivalent circumstantial
guarantees of trustworthiness.” It seems clear to me that
the “equivalent” guarantees, thus, are those that are found
within the “foregoing [spec. <] exceptions.” Perusal of
those exceptions — Mil.R. Evid. 803(1)-(23) and Mil.R.Evid.
804(b)(1)-(4) — reveals that, in every instance, the basis for
reliability of the out-of-court statement is some circum-
stance that immediately and directly surrounds the making
of the statement itself, not some collateral circumstance.
Finally, | agree with the Chief Judge that the appropri-
ate disposition of this case, in light of our reasoning, is to
remand for reconsideration. The military judge obviously
relied to some extent upon the circumstances surrounding
3Sa
the making of the witness’ out-of-court Statement; it is
equally obvious, though, that he relied to some extent
upon impermissible collateral factors — one of which was a
potentially powerful one, appellant’s confession. Under
these circumstances, it is appropriate to return this case to
the trial level for a proper reliability analysis.
36a
APPENDIX B
UNITED STATES AIR FORCE
COURT OF MILITARY REVIEW
ACM 28358
UNITED STATES
Vv.
TECHNICAL SERGEANT ALVA Z. MCGRATH, FR541-70-7702
UNITED STATES AIR FORCE
11 May 1992
Sentence adjudged 17 November 1989 by GCM
convened at Hahn Air Base, Federal Republic of Ger-
many. Military Judge: Dennis L. Olson (sitting
alone).
Approved sentence: Dishonorable discharge, confine-
ment for 120 months, and reduction to E-1.
Appellate Counsel for the Appellant: Colonel
Richard F. O’Hair, Colonel Jeffrey R. Owens, Major
Ronald G. Morgan, and Captain Michael D. Burt.
Appellate Counsel for the United States: Colonel
Robert E. Giovagnoni, Major Paul H. Blackwell, Jr.,
and Major Leonard R. Rippey.
Before
HODGSON, MCLAUTHLIN, and JAMES
Appellate Military Judges
37a
OPINION OF THE COURT
Hopcson, Senior Judge:
In a bench trial, Technical Sergeant McGrath was con-
victed of carnal knowledge, sodomy, and indecent acts
with his 14-year-old daughter. He was sentenced to a dis-
honorable discharge, 10 years confinement, and reduction
to E-1. The convening authority approved the sentence as
adjudged.
On appeal he argues that the trial judge erred in admit-
ting the out-of-court statements of his daughter; there is
insufficient evidence to support a carnal knowledge con-
viction; his request for a defense witness was improperly
denied; the sentence is inappropriately severe. Because we
grant some relief, some discussion of the assigned errors is
warranted.
FACTS
On 9 June 1989, the appellant’s daughter, Aileen,' told
her school counselor “that something had been going on
and could she tell her about it.” She then made an allega-
tion of sexual abuse by the appellant, her natural father.
The counselor notified the staff psychologist at the Hahn
Hospital Mental Health Clinic, the Office of Special In-
vestigations (OSI), and the base legal office.
Initially, Aileen met with Doctor Timothy Friesen, the
staff psychologist, Special Agent Ken Sallinger of the OSI,
and Captain Deborah Hall, an attorney from the base
legal office with extensive experience in child abuse cases.
Sergeant Donitta Gardiner, who is assigned to the Mental
Health Clinic, and Leann Steinbach, a German employed
in the OSI office, were also present. Aileen was first ques-
tioned by Agent Sallinger, but when she became uncom-
' This is not the girl’s real name.
38a
fortable discussing the specific acts in front of the men
present, they left and Captain Hall obtained a more de-
tailed account of what Aileen’s father had done. Captain
Hall’s method of interviewing Aileen was to ask her to de-
scribe an incident, obtain the details, and then inquire if
anything else happened. The procedure was repeated for
each revealed incident. Aileen was not crying, but she “ap-
peared embarrassed and slightly upset.”
Later, Aileen, Captain Hall, and Special Agent Sal-
linger went to the OSI office where Hall and Aileen re-
duced Aileen’s oral statements to writing. It took approxi-
mately an hour to produce the sworn written statement
that Aileen signed. A little over a week later, on 20 June,
Aileen contacted Agent Sallinger and said she had some
more information. This disclosure was also reduced to a
sworn written statement after an interview that lasted ap-
proximately one hour.
These two statements disclosed the following. Aileen ar-
rived at Hahn Air Base, Germany shortly before Thanks-
giving Day, 1987. In January 1988, the appellant asked
Aileen if she wanted to watch “dirty movies” with him. She
saw these movies about three times between January and
April 1988. They would watch them at night when the ap-
peilant’s wife was at work. She remembers one of the
movies was entitled “Between the Sheets” and was about a
mattress and brass bed talking about sexual encounters oc-
curring On the bed over a 200-year period. The film itself
graphically depicts men and women engaged in various
forms of sexual relations.
About 15 April 1989, the appellant took Aileen into the
bedroom and told her to get undressed. He got undressed
and the two sat on the bed naked. He then began to caress
her vagina and clitoris, which he refer to as the “tickle but-
ton.” In this same general time frame the appellant asked
Aileen when he “could have her.” When she suggested 16
39a
he indicated she “would be a non-virgin by then.” Her
alternative suggestion of 15 was swept aside because “he
couldn’t wait that long.” He finally agreed to wait until she
was 14.
In the later part of April 1989, the appellant again took
his daughter to her room and undressed her, he got un-
dressed himself. He began kissing her mouth and breasts
and subsequently began to kiss and lick her vagina. He
then masturbated himself to orgasm. When she told him
she did not think father and daughter should do this, he
replied, “it was the only way he could get [her] through
this so [she] can have a happy life.”2
About the middle of May, the appellant again undressed
himself and his daughter and laid down on the bed. He
began by kissing her on the mouth and whispered in her
ear, “I’m going to kiss you all over. I’m going to stick it all
the way in.” When she said no, he began to kiss her
stomach, thighs and vagina. Later, he rubbed his erect
penis On the outside of her vagina. There is scant evidence
of penetration.
On Tuesday, 6 June, Aileen asked to borrow the appel-
lant’s baseball glove. He said she could if “he could have
[her] tomorrow.” The next day the appellant’s wife stayed
home. On Thursday, the appellant worked. On Friday,
Aileen talked to the school counselor because she knew on
Saturday the appellant “would try to take advantage of
her.”
After proper warnings, the appellant provided a state-
ment on 9 June to law enforcement investigators. In this
Statement, the appellant admitted fondling his daughter’s
> In his statement to the OSI, the appellant implied that he knew
that Aileen’s step-father had sexually abused her and that this was his
way of getting the incident out in the open and get “closer” to her as a
father.
40a
breasts and vaginal area on numerous occasions. He aiso
admitted masturbating in her presence and performing
cunnilingus on her. He acknowledged rubbing his erect
penis on her vaginal area, but denied ever having sexual in-
tercourse with her. He insisted that during these episodes
he stopped whenever his daughter asked him to.
He maintained he had her undress because he “wanted
to break down the physical barriers which might be keep-
ing her from expressing her feelings.” He claimed that his
actions with his daughter were to show that “she [could]
also derive pleasure from sexual encounters,” and “she had
been deprived of this while [her] step-father got his own
satisfaction.” The appellant’s statement suggests that
Aileen had been sexually abused by her step-father before
she came to live with him. He stressed that his conduct
with his-datrghter was to help her overcome her earlier sex-
ual experiences.
A search of the appellant’s house on 12 June disclosed
video movies entitled “Between the Sheets” and “Taboo
IV.” Both movies contained explicit sexual encounters in-
volving sexual intercourse, fellatio, and cunnilingus. The
predominant theme of “Taboo IV” was the condonation
of incestuous relationships, including ones between father
and daughter.
RESIDUAL HEARSAY EXCEPTION
The appellant argues that the trial judge erred when he
admitted Aileen’s 9 and 20 June 1989 out-of-court state-
ments under Mil. R. Evid. 804(b)(5). Appellate courts
have consistently held that this rule is to be construed
strictly and used in rare, exceptional circumstances. See
United States v. Yeauger, 27 M.J. 199 (C.M.A. 1988). In
military courts the residual hearsay exception finds its
most frequent use in trials where children are victims of
4la
alleged sexual abuse. It is unquestioned that society has a
deep and compelling interest in protecting the welfare of
its children. Accordingly, it would appear that Rule
804(b)(5) is well-suited to address the circumstance of
family members who are witnesses to or victims of an
intra-family offense. See United States v. Arnold, 18M.J.
559 (A.C.M.R. 1984), aff'd 25 M.J. 129 (C.M.A. 1987).
Rule 804(b)(5) was taken without change from its
federal counterpart. One of the necessary predicates for
admitting a proposed statement is that it is more probative
on the point than any other evidence the Government can
muster through reasonable efforts. See United States vy.
Fisher, 28 M.J. 544 (A.F.C.M.R. 1989). Here, the
daughter’s out-of-court declarations were not only proba-
tive but “necessary” to the Government’s case. See United
States v. Giambra, 33 M.J. 331, 335 (C.M.A. 1991).
For out-of-court statements to be admissible under Rule
804(b)(5) two conditions must be met: 1) the witness is not
available; and 2) the statement has adequate indicia of re-
liability. See United States v. Taggart, 944 F.2d 837 (11th
Cir. 1991).
Appellate defense counsel initially claim the trial judge
erred when he determined that Aileen was “unavailable”
since she appeared as a witness at trial. To place this claim
in context, it is necessary to examine Aileen’s testimony in
some detail.
Aileen was the prosecution’s opening witness. After be-
ing sworn she testified that she was 14 years old and had
lived with the appellant from the time she was 12 until
June 1989 at which time she was placed in a foster home.
However, just before trial she returned home to live with
her mother, two brothers and sister — while the appellant
moved to an on-base dormitory.
When asked to relate what happened between herself
and her father, she replied, “I refuse to answer that ques-
42a
tion.” When pressed by the trial counsel and the judge, she
indicated she had no intention of testifying against her
father because she did not want to hurt her family or him.
However, when given the opportunity to retract the state-
ments accusing her father of sexual abuse, she refused to
do so. She stated repeatedly during her time on the witness
stand that she would not testify against the appellant “be-
cause I don’t want my dad to go to jail.” She also stated
that perhaps he had been punished enough, “ ‘cause he
knows if he tries it again, it would be a whole lot worse.”
In refusing to testify she stated:
I have been told that, but they haven’t said well, your
father is going to jail if you testify, and he’s not going
to jail if you don’t testify and all—but they gave me
like an idea like—if you testify, there may be enough
evidence to put your father in jail, and if you don’t
testify, there may not be enough to end up putting
your father in jail, and I got the idea that I don’t want
to testify. | don’t want my father in jail.
Throughout the trial judge’s questioning, Aileen was
adamant in her refusal to testify- When given the oppor-
tunity to cross-examine Aileen, trial defense counsel spe-
cifically declined to do so.
Appellate defense counsel urge that the trial judge did
not seek alternative measures, for example by removing
Aileen to the jurisdiction of a United States district court
with authority to compel her testimony. In suggesting this
remedy appellate counsel has not provided us with any au-
thority that permits a military judge to order a civilian liv-
ing in Germany to the United States for the purpose of ac-
cepting a subpoena. Cf. United States v. Santiago-Davila,
26 M.J. 380 (C.M.A. 1988) (no subpoena power exists to
force an accused’s wife to return to Germany from the
United States for husband’s court-martial).
43a
Appellant also claims the trial judge’s determination of
Aileen’s “unavailability” usurped his “right to confront
and cross-examine his accuser.” This assertion is some-
what ironic in that Aileen was on the witness stand and
available for cross-examination which defense counsel
pointedly declined to do, making it apparent that the /ast
thing the appellant wanted was to question Aileen about
the alleged offenses. The appeliant, in essence, is attempt-
ing to use the confrontation clause “as a sword, not a
shield.” See United States V. Hines, 23 M.J. 125, 132
(C.M.A. 1986). Appellate defense counsel also maintain
that the appellant is not responsible for Aileen’s refusal to
testify by his use of coercion, control, or influence. See
United States v. Barror, 23 M.J. 370, 373 (C.M.A. 1987).
Be that as it may, Aileen testified that somebody gave her
a short course on the law of evidence and how her testi-
mony or lack thereof would affect the outcome of her
father’s trial. See generally United States v. Rousseau, 21
M.J. 960 (A.C.M.R. 1986).
A witness who refuses to testify is unavailable for the
purposes of Rule 804(b)(5). See Mil. R. Evid 804(a)(2).
Here the witness, whose testimony was the heart of the
Government’s case, refused to relate that testimony. The
record is clear that Aileen was steadfast in her refusal to
give evidence she considered harmful to her father. In view
of her relationship to the appellant and her reasons for not
testifying, the trial judge was correct in taking her at her
word that she would not testify, and finding her “unavail-
able” within the meaning of the residual hearsay excep-
tion. See Jennings v. Maynard, 946 F.2d 1502 (10th Cir.
1991); see also United States v. Barror, 20 M.J. 501, 502
n.l (A.F.C.M.R. 1985), rev'd on other grounds, 23 M.J.
370 (C.M.A. 1987).
We must now decide if Aileen’s out-of-court statements
contain “adequate indicia of reliability” to justify their
44a
admission in evidence. There is no litmus test for reliabili-
ty of out-of-court statements. Each case must be evaluated
on its own facts. Barker v. Norris, 761 F.2d 1396 (9th Cir.
1985). In United States v. Bridges, 24 M.J. 915, 917
(A.F.C.M.R. 1987), we acknowledged that the question-
ing techniques of the interviewer can introduce subtle
biases that could make out-of-court statements suspect.
See also United States v. Hines, supra and United States v.
Barror, supra. Here, the record is devoid of any sugges-
tion of improper questioning. Captain Hall, who was ex-
perienced in child abuse cases, testified how the interview
was conducted. There is no indication she used suggestive
or leading questions. If the defense thought otherwise, it
could have questioned Aileen on the subject while she was
testifying.
The voluntariness of the out-of-court statement is also
an important consideration. Barker v. Norris, supra.
Here, Aileen sought out a school counselor who referred
the matter to the appropriate authorities. Her second
statement was the result of her contacting the OSI, not the
other way around. Further, there is no apparent motive
for her to falsify her statements. See State v. Larson, 472
N.W.2d 120 (Minn. 1991). On the other hand, she stated
logical reasons for refusing to testify against her father.
United States v. Ruffin, 12 M.J. 952 (A.F.C.M.R. 1982),
pet. denied, 13 M.J. 952 (C.M.A. 1989).
Like all hearsay exceptions, Mil. R. Evid. 804(b)(5) is a
rule of reliability, truthfulness, trustworthiness and ac-
curacy. United States v. Oriiz, M.J.
(A.F.C.M.R. 1992). On this level, Aileen’s statements to
investigators matched the appellant’s description of the of-
fenses to a significant degree. See State v. Swader, 697
P.2d 557 (Or. App. 1985). We also find noteworthy that
when Aileen was offered the opportunity in court to recant
her out-of-court statements, she declined to do so. Cf.
45a
United States v. Crayton, 17 M.J. 932 (A.F.C.M.R. 1984)
(step-daughter’s recantation made out-of-court statement
unreliable).
We find that Aileen’s statements of 9 and 20 June 1989,
have “adequate indicia of reliability” to permit their ad-
mission in evidence. First, they were voluntary and not the
result of leading or suggestive questions. Second, there is
no apparent motive for her to falsely accuse her father.
Third, the appellant’s admissions to law enforcement of-
ficers confirm the reliability of the declarant’s statements.
And fourth, the statements were in detail and under oath.
The purpose of Rule 804(b)(5) is to insure that the inter-
ests of justice will be served by the admission of the state-
ment in evidence. The sexual abuse of children invariably
occurs in private and far from the public eye. Often,
juvenile victims of sexual abuse by family members are
subjected to intensive familial pressure not to testify con-
cerning what took place. Here, the statements were of-
fered on a material fact and probative on the point for
which they were offered. Finally, any misgivings about the
reliability of Aileen’s statements were put to rest by the ap-
pellant’s admissions. See United States v. Hines, supra at
137, 138.
It is in the interests of justice to admit out-of-court
statements of sexually abused juveniles when such state-
ments have the necessary “indicia of reliability” and “cir-
cumstantial guarantees of trustworthiness” to justify their
admission. We conclude that such conditions exists here.
United States v. Gans, 32 M.J. 412 (C.M.A. 1991); United
States v. Morgan, 31 M.J. 43 (C.M.A. 1990); United
States v. Martindale, 30 M.J. 172 (C.M.A. 1990); United
States v. Gibson, 29 M.J. 379 (C.M.A. 1990); United
States v. Quick, 26 M.J. 460 (C.M.A. 1988); see also
United States v. Spotted War Bonnet, 933 F.2d 1471 (8th
46a
Cir. 1991). The decision to admit such statements lies
within the sound discretion of the trial judge, and his rul-
ing will not be disturbed unless he clearly abuses that
discretion. United States v. Ortiz, supra; United States v.
Spotted War Bonnet, supra. We find no abuse of dis-
cretion here.
DENIAL OF WITNESS REQUEST
Six days before trial, the defense requested that Aileen’s
step-father, Walter E. Hall of Salem, Oregon, be made
available at the trial in Germany. Mr. Hall would have
testified that Aileen lacked truthfulness and credibility and
had made false allegations of sexual abuse against him.
The defense averred that Hall’s testimony was of “crucial
importance” as it concerned “a matter so similar to the
current allegations . . . [and would be] admissible under
Military Rule of Evidence 608(a).”
Since no subpoena power exists to force Hall to go to
Germany to testify in the appellant’s trial, the Government
fulfilled its obligation to the appellant by offering him in-
vitational travel orders with all expenses paid. Hall made it
clear to the assistant trial counsel who spoke with him by
phone that he had no intention of testifying and that “it
would take a valid subpoena. . . to force him to come into
a... court and give his testimony.” The trial judge ruled
that Hall was unavailable. See Mil. R. Evid. 104(a);
United States v. Santiago-Davila, supra. The prosecution
offered to stipulate to Hall’s testimony, and ultimately the
appellant agreed to this.
The record establishes that the prosecution did every-
thing it could to convince Hall to travel to Germany on the
short notice the defense gave. If the defense truly thought
Hall’s testimony was of such central importance to a vital
issue, and no adequate substitute for the testimony was
47a
available, it should have sought either a continuance or an
abatement of the proceedings until such time as Hall was
available, R.C.M. 703(b)(3), or a change of venue,
R.C.M. 906(b)(11). In light of the appellant’s decision not
to comply with these procedural alternatives but to stipu-
late to Hall’s testimony, we find no violation of the Con-
frontation Clause of the Sixth Amendment or Article 46 of
the Code. See United States v. Davis, 29 M.J. 357
(C.M.A. 1990).
SUFFICIENCY OF THE EVIDENCE
The appellant argues, both in the formal appellate
pleadings and in his Grostefon? submission, that the
evidence does not support a conviction of carnal knowl-
edge (specification 2, of Charge I). We agree. While there
is abundant evidence that the appellant rubbed his penis
between Aileen’s legs and outside her vaginal area, there is
no direct evidence that penetration was achieved. Appel-
late government counsel maintain that the appellant’s ad-
mission “I... rubbed my penis on her vagina” and his
statement to Aileen that “I’m going to stick it all the way in
” circumstantially establishes that sexual intercourse
was accomplished. Aileen, however, also indicated that
when she said “no” to the appellant’s proposal to “stick it
all the way in,” he laughed and begin to kiss her neck and
breasts, implying that his attention was diverted. Also, the
reason Aileen decided to report her father’s sexual abuse
on Friday was her fear that “he would try to take advant-
age of me on Saturday.” This, when considered with the
appellant’s prior stated intention “to have” Aileen in
return for letting her use his baseball glove, suggests that
the appellant had not yet had sexual intercourse with his
daughter.
> United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
48a
In summary, we are not convinced beyond a reasonable
doubt that the appellant had sexual intercourse with his
14-year-old daughter. Thus, his conviction of carnal
knowledge cannot stand. Article 66(c), UCMJ. There is,
however, overwhelming proof that he is guilty of attempt-
ed carnal knowledge in violation of Article 80 of the Code.
See United States v. Langford, 46 C.M.R. 1058
(A.F.C.M.R. 1973). We may, of course, properly affirm
any lesser included offense supported by the evidence. Ar-
ticle 59(b), UCMJ; United States v. Gately, 13 M.J. 757
(A.F.C.M.R. 1982). Attempted carnal knowledge is a
lesser included offense of carnal knowledge. MCM 1984,
Part IV, para. 45d(2)(b); United States v. Langford,
supra.
Only so much of the findings of guilty of specification 2
of Charge I as find the appellant guilty of the lesser includ-
ed offense of attempted carnal knowledge in violation of
Article 80, UCMJ, are affirmed. We will reassess the
sentence in our decretal paragraph.
MULTIPLICITY
Appellate defense counsel claim that the offenses al-
leged in the specifications of Charge II] which occurred
over a 17-month period “constituted but a single course of
criminal conduct” and the trial judge erred when he re-
fused to consider them multiplicious for sentencing.
We find no error in the trial judge’s ruling that the of-
fenses were separate for punishment. They took place at
different times and locations. The offenses were not the
result of a single impulse or continuous flow of events that
continued uninterrupted but had days and sometimes
months in between. See United States v. Crowe, 30 M.J.
1144 (A.F.C.M.R. 1990). These circumstances afforded
the appellant an opportunity to reflect on his conduct and
49a
chose to refrain from committing additional misconduct.
United States v. Jobes, 20 M.J. 506 (A.F.C.M.R. 1985),
pet. denied 21 M.J. 102 (C.M.A. 1985). The appellant was
properly punished for all three offenses.
SENTENCE APPROPRIATENESS
Reassessing the sentence based upon the modified find-
ings of guilty and the entire record, we find appropriate
only so much there of as provides for a dishonorable dis-
charge, 9 years confinement, and reduction to E-1. United
States v. People, 29 M.J. 426 (C.M.A. 1990); United
States v. Sales, 22 M.J. 305 (C.M.A. 1986). The reassessed
sentence is not inappropriate given the nature of the of-
fenses and the circumstances surrounding them. For the
reasons stated, the findings of guilty and the sentence,
both as modified, are
AFFIRMED.
Judges MCLAUTHLIN and JAMES concur.
[SEAL OMITTED]
OFFICIAL
s/ Laura L. Green
LAURA L. GREEN
Clerk of Court
Court of Military Review
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