Appendices — Martindale v. United States

APPENDIX A

U.S. COURT OF MILITARY APPEALS

No. 54,536

NMCM 85 0771S

UNITED STATES, Appellee,

v.

Ronald E. Martindale, Appellant.

Argued Apr. 7, 1994

Decided Sep. 16, 1994

For Appellant: Lieutenant Lisa M. Higdon, JAGC, USNR

(argued).

For Appellee: Captain A. Diaz, USMC (argued); Colonel

T. G. Hess, USMC, Commander .A. Stallings, JAGC, USN,

Major Laura L. Scudder, USMC (on brief); Lieutenant

‘Sommander Lawrence W. Muschamp, JAGC, USN.

Opinion of the Court

COX, Judge:

The lengthy appellate history of this case has already

been extensively chronicled. See United States v.

Martindale, 30 MJ 172 (CMA 1990), opinion vacated, 32

(la)

2a

MJ 33 (CMA 1990); and United States v. Martindale, 36

MJ 870, 872 (NMCMR 1993) (on remand). Appellant

stands convicted of attempted sodomy (2 specifications);

sodomy (13 specifications); and committing an indecent act

with a minor, in violation of Articles 80, 125, and 134,

Uniform Code of Military Justice, 10 USC §§ 880, 925,

and 934, respectively. All offense were committed by

appellant on his adopted, learning-disabled son, who was

under the age of 16.

We granted review of three issues. 39 MJ 69. The first

issue questions whether the Court of Military Review erred

in holding that the hearsay declarant was available for

cross-examination under the Confrontation Clause of the

Sixth Amendment. The second issue questions whether

that same court erred in holding that corroborating

evidence can be used to determine the "equivalent

circumstantial guarantees of trustworthiness" requirement

of the residual hearsay evidentiary rules. The final issue

questions whether that court erred in holding that the

Secretary of the Navy’s Instruction 1752.3 was not violated

in this case. For the reasons indicated by the Court of

Military Review, we affirm.

The first two issues are resolved by our recent opinion in

United States v. McGrath, 39 MJ 158 (CMA 1994), where

a majority of this Court came to the same conclusions, for

the same reasons as did the Court of Military Review,

regarding the applicability of Idaho v. Wright, 497 US.

805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990). Both our

McGrath opinion and the opinion below held that the

Wright-Sixth Amendment rule, precluding use of

corroborating evidence to buttress the "indicia of

reliability" of hearsay statements for confrontation

purposes, did not apply when the right to confront the

eT eT ES am |

3a

hearsay declarant was expressly waived at trial. 39 MJ at

163-67; and 36 MJ at 873-81. In other words, an accused

cannot eschew confrontation at trial and then prevail on

appeal on a denial-of-confrontation theory. In addition,

both this Court’s opinion in McGrath and the opinion

below concluded that it was permissible to analyze the

reliability level of the "equivalent circumstantial guarantees

of trustworthiness" prong of the residual hearsay rules

(Mil.R.Evid. 803(24) and 804(b)(5)) unencumbered by the

Wright-Sixth Amendment restriction, where confrontation

was so waived. 39 MJ at 166-67; and 36 MJ at 880-81.

The instant case featured an unusually unexpected and

voluntary confession of crime. 30 MJ at 173. The hearsay

statement in issue was offered to corroborate the

confession. The witness-declarant was tendered to the

defense, but the defense expressly waived the right to be

confronted by the witness at trial. See 36 MJ at 875.

Therefore, appellant’s confrontation claim is without merit.

United States v. McGrath, supra. In addition, we

previously sustained the judge’s ruling on the "equivalent

circumstantial guarantees of trustworthiness" requirement

of the residual hearsay rule (i.e., the level of reliability),

based in part upon the multitude of evidence presented at

the suppression-motion hearing to corroborate the hearsay

statement. 30 MJ at 175. We adhere to our prior ruling

in that respect.

Appellant’s final claim is that Secretary of the Navy

Instruction 1752.3 (the "Family Advocacy Program")

provided appellant immunity for his incriminating

statements. Appellant originally blurted out his astonishing

confession to an Overeaters’ Anonymous counselor at a

program being conducted at a naval hospital. Later,

appellant repeated his statement to a Family Advocacy

4a

advisor and, after purgative warnings, to a Naval

Investigative Service (NIS) agent. With respect to the

applicability of and effect of this Instruction on these facts,

we concur fully with the Court of Military Review that

appellant’s statement to the NIS agent was neither tainted

nor barred by a grant of immunity. 36 MJ at 881-82.

The 1993 decision of the United States Navy-Marine

Corps Court of Military Review is affirmed.

Judges CRAWFORD and GIERKE concur.

SULLIVAN, Chief Judge (dissenting):

I respectfully dissent from the majority’s opinion for the

reasons set forth in my separate opinion in United States v.

McGrath, 39 MJ 158, 169 (CMA 1994). Specifically, the

Court of Military Review erred by relying on corroborating

evidence, i.e, the testimony of the clinical psychologist and

appellant’s confession, in concluding that the military judge

did not abuse his discretion in admitting the victim’s

out-of-court statement. 36 MJ 870, 881 (1993).

Therefore, I would reverse the decision of the appellate

court below and remand this case to that court for further

reconsideration in light of Idaho v. Wright, 497 U.S. 805,

111 L. Ed. 2d 638, 110 S. Ct. 3139 (1990). See United

States v. McGrath, supra (Sullivan, C.J., dissenting). In

light of my resolution of the second granted issue, I need

not comment on the other granted issues. United States v.

_ Martindale, No. 54,536.

WISS, Judge (dissenting).

For the reasons set forth in my separate opinion and that

of the Chief Judge, in which I joined, in United States v.

eeee————eeeeeee—e————————EEeE

Sa

McGrath, 39 MJ 158, 172, and 169 (CMA 1994), I dissent

from the majority opinion as to Issues I and II. See also

United States v. Martindale, 30 MJ 172, 175-77 (Everett,

C.J., dissenting). I would set aside the findings and

sentence and, given the state of the record, dismiss the

Charges and specifications. In this light, I do not need to

address Issue III.

6a

APPENDIX B

DEPARTMENT OF THE NAVY

OFFICE OF THE JUDGE ADVOCATE GENERAL

200 Stovall Street

Alexandria, VA 22332

IN THE UNITED STATES NAVY-MARINE CORPS

COURT OF MILITARY REVIEW

BEFORE

R. A. STRICKLAND J. E. ORR

R. M. MOLLISON

UNITED STATES

V.

RONALD E. MARTINDALE, 430 92 8298

Cryptologic Technician (Collection) Second Class (E-5)

U.S. Navy

NMCM 85 0771 Decided 11 January 1993

Sentence adjudged 19 March 1984. Military Judge: A.

Richard Philpott. Review pursuant to Article 66(c),

UCM5S, of General Court-Martial convened by

Commander, Naval Base Pearl Harbor, Box 110, Pearl

Harbor, HI 96860-5020.

Ta

LT R. M. MEDEIROS, JAGC, USNR, Appellate

Defense Counsel.

LT L. M. HIGDON, JAGC, USNR, Appellate Defense

Counsel.

LCDR LAWRENCE W. MUSCHAMP, JAGC, USN,

Appellate Government Counsel.

MOLLISON, Judge:

This remand addresses three principal issues: (1)

whether an alleged child abuse victim’s out-of-court

statement to agents of the Naval Investigative Service

(NIS) was admitted in evidence in violation of the

Confrontation Clause of the Sixth Amendment to the

Constitution, (2) whether the same statement was

properly admitted under the residual hearsay exceptions

to the rule against hearsay, and (3) whether an accused’s

prosecution was barred by the Secretary of the Navy

instruction establishing policies for the Family Advocacy

Program.

Background

The appellant confessed to sexual abuse of his

learning-disabled son. He was tried by a general court-

martial composed of officer members. As proof of the

appellant’s crimes, the Government offered the

appellant’s confession to NIS and a transcript of an NIS

interview with his alleged victim. The transcript of the

corroborating out-of-court statement was offered under

the residual hearsay exceptions to the hearsay rule. Mil.

R. Evid. 802, 803(24), 804(b)(5). The appellant

objected to the alleged victim’s out-of-court statement on

8a

grounds it did not qualify for admission under the

exceptions. Mil. R. Evid. 103(a)(1). He also moved to

suppress his confession on grounds it was

uncorroborated. Manual for Courts-Martial, United

States, 1969 (Rev.), P 69A; Mil. R. Evid. 304(a), (g).

The military judge denied the motion to suppress and

admitted both items in evidence. Mil. R. Evid. 104(a),

304(d)(4). The appellant pled not guilty. Based on this

evidence, the appellant was convicted of two

specifications of attempted anal sodomy with a child, 13

specifications of oral sodomy with a child, and one

specification of indecent acts with a child in violation of

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

Justice (UCMJ), 10 U.S.C. §§ 880, 925, 934,

respectively. The appellant was sentenced on 19 March

1984 to confinement for five years, reduction to pay

grade E-1, and a dishonorable discharge. The convening

authority approved the sentence as adjudged.

This Court affirmed the appellant’s conviction and

sentence on 30 December 1985. After remand from the

United States Court of Military Appeals, this Court again

affirmed on 6 January 1989. The Court of Military

Appeals also affirmed on 12 June 1990. 30 M.J. 172.

However, on 19 September 1990, after the United States

Supreme Court’s decision in the case of Idaho v. Wright,

110 S. Ct. 3139 (1990), the Court of Military Appeals

granted the appellant’s motion for reconsideration, set

aside this Court’s second affirmance, and remanded the

record a second time for consideration of these two

issues:

9a

I

WHETHER THE TRANSCRIPT OF AN

ORAL UNSWORN STATEMENT OF

THE VICTIM WAS ADMISSIBLE

UNDER IDAHO V. WRIGHT, 497 U.S.

805, 110 S. Ct. 3139, 111 L.Ed.2d 638

(1990).

II

WHETHER APPELLANT’S

PROSECUTION VIOLATED

SECRETARY OF THE NAVY

INSTRUCTION 1752.3.

32.M.J. 33 (C.M.A. 1990) (summary disposition).

Idaho v. Wright interprets the application of the

Confrontation Clause to out-of-court statements

introduced under exceptions to the rule against hearsay,

whereas, the aforementioned Secretary of the Navy

instruction established the Family Advocacy Program

policy within the Department of the Navy. The material

facts of the case have been fully set forth in the Court of

Military Appeals’ affirmance (30 M.J. at 173-75) and,

therefore, will not be restated, except as may be

necessary to our resolution of the issues.

We conclude that the admission of the child victim’s

out-of-court statement did not violate the Confrontation

Clause, as interpreted in Idaho v. Wright; that the

military judge did not abuse his discretion in admitting

the child’s out-of-court statement under the residual

hearsay exceptions to the hearsay rule; and, that the

10a

appellant’s prosecution did not violate Secretary of the

Navy Instruction 1752.3. Accordingly, we again affirm

the appellant’s conviction and sentence.

I.

The Confrontation Clause

The Confrontation Clause of the Sixth Amendment to

the Constitution provides: "In all criminal prosecutions,

the accused shall enjoy the right . . . to be confronted

with the witnesses against him." U.S. Const. amend. VI,

cl. 5. The Confrontation Clause’s origins are ancient.

Coy v. lowa, 487 U.S. 1012, 1015-16 (1988). The

Confrontation Clause envisions:

a personal examination and cross-

examination of the witness, in which the

accused has an opportunity, not only of

testing the recollection and sifting the

conscience 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 worth of belief.

Mattox v. United States, 156 U.S. 237, 242-43 (1895).

The Confrontation Clause bars the admission of some,

but not all, evidence that would otherwise be admissible

under an exception to the hearsay rule. Wright, 110 S.

Ct. at 3145-46. When evidence is admitted contrary to

the Confrontation Clause, the error is of constitutional

proportions, and the conviction must be reversed by the

reviewing court unless the error is harmless beyond a

| —

lla

reasonable doubt. Delaware v. Van Arsdall, 475 U.S.

673, 684 (1986); United States v. Greer, 33 M.J. 426,

431 (C.M.A. 1991).

"Confrontation Clause cases fall into two broad

categories: cases involving the admission of out-of-court

statements and cases involving restrictions imposed by

law or by the trial court on the scope of cross-

examination." Delaware v. Fensterer, 474 U.S. 15, 18

(1985) (per curiam). In Ohio v. Roberts, 448 U.S. 56

(1980), the United States Supreme Court considered the

first category. There it set forth a general approach for

determining when incriminating out-of-court statements,

otherwise admissible under an exception to the hearsay

rule, may be admitted without violating the

Confrontation Clause. In order for such hearsay to be

admitted without violating the Confrontation Clause, the

hearsay must have "indicia of reliability." "Indicia of

reliability” may be found: (1) when the hearsay falls

within a firmly-rooted exception to the rule against

hearsay, or (2) when it is supported by "a showing of

particularized guarantees of trustworthiness." Roberts,

448 U.S. at 66. In Idaho v. Wright, the Supreme Court

further held that the totality of the circumstances should

be considered when determining whether there are

particularized guarantees of trustworthiness, but these

circumstances are limited to those surrounding the

making of the statement and do not include other

evidence at trial that corroborates the truth of the

statement. "To be admissible under the Confrontation

Clause, hearsay evidence used to convict a defendant

must possess indicia of reliability by virtue of its

inherent trustworthiness, not by reference to other

12a

evidence at trial."’ Wright, 110 S. Ct. at 3150.

The Confrontation Clause applies in trials by court-

martial. United States v. Jacoby, 11 C.M.A. 428, 29

C.M.R. 244 (1960).

"’The main and essential purpose of confrontation is to

secure for the opponent the opportunity of cross-

examination." Davis v. Alaska, 415 U.S. 308, 315-16

(1974) (quoting 5 J. Wigmore, Evidence § 1395 (3d ed.

1940)). There is generally no Confrontation Clause

issue, however, when the declarant testifies or when the

declarant is available to testify. E.g., United States v.

Owens, 484 U.S. 554 (1988); California v. Green, 399

U.S. 149 (1970); United States v. Dean, 31 M.J. 196

(C.M.A. 1990), cert. denied, 111 S. Ct. 1106 (1991);

United States v. Quick, 26 M.J. 460 (C.M.A. 1988);

United States v. Lyons, 33 M.J. 543 (A.C.M.R. 1991)

(citing cases), aff'd on other grounds, 36 M.J. 183

(C.M.A. 1992).

"Confrontation means more than being allowed to

confront the witness physically." Davis, 415 U.S. at

315. For exampie, Confrontation Clause questions will

arise when restrictions on cross-examination may

"effectively .. . emasculate the right of confrontation

itself."" Fensterer, 474 U.S. at 19 (quoting Smith v.

” The application of Wright continues to evolve. For example, the

Supreme Court has recently held that the Confrontation Clause, Roberts

and Wright do not preclude the admission of evidence qualifying under

firmly-rooted exceptions to the hearsay rule, such as the “spontaneous

declaration" and "medical examination" exceptions, even though the non-

testifying declarant is available to be called as a witness. White v.

Illinois, 112 S. Ct. 736 (1992).

13a

Illinois, 390 U.S. 129, 131 (1968)). Accordingly, when

a witness asserts his privilege against self-incrimination

and refuses to answer questions on cross-examination, he

is subject to having his direct testimony stricken on the

basis of the Confrontation Clause. United States v.

Rivas, 3 M.J. 282 (C.M.A. 1977). For the same reason

the same witness’ out-of-court statements will also be

inadmissible in the absence of "indicia of reliability."

United States v. Gomez-Lemos, 939 F.2d 326 (6th Cir.

1991). Similarly, if "a child is so young that she cannot

be cross-examined at all, or if she is simply too young

and too frightened to be subject to a thorough direct or

cross-examination, the fact that she is physically present

in the courtroom should not, in and of itself, satisfy the

demands of the Clause." United States v. Spotted War

Bonnet, 933 F.2d 1471, 1474 (8th Cir. 1991), cert.

denied, 112 S. Ct. 1187 (1992) (citation and quotations

omitted) (on remand from the Supreme Court). But,

the Confrontation Clause includes no

guarantee that every witness called by the

prosecution will refrain from giving

testimony that is marred by forgetfulness,

confusion, or evasion. To the contrary, the

Confrontation Clause is generally satisfied

when the defense is given a full and fair

opportunity to probe and expose these

infirmities through cross-examination,

thereby calling to the attention of the

factfinder the reasons for giving scant

weight to the witness’ testimony.

Fensterer, 474 U.S. at 21-22, 106 S.Ct. at 295.

l4a

The appellant’s 12-year old son testified and was

subject to cross-examination at a pretrial hearing at

which the court ruled in limine on the admissibility of

the child’s out-of-court statement to NIS. At that

hearing, the child responded to questions posed by both

parties. In substance, he recalled talking with the NIS

agents, but he either could not remember acts of sexual

abuse and the contents of the statement he made to NIS,

or he chose not to. Record at 132-43. The child’s

pretrial deposition was also considered by the military

judge for purposes of ruling on the admissibility of the

child’s out-of-court statement.* Appellate Exhibit XIV;

record at 150. Mil. R. Evid. 104(a); see Bourjaily v.

United States, 483 U.S. 171 (1987). The appellant and

his counsel were present at the taking of the deposition

and the appellant’s son was available for cross-

examination. At the deposition, the child testified he

had told the NIS agents the truth, but again could not

recall acts of abuse or chose to forget them.

After the military judge admitted the transcript of the

child’s out-of-court statement to NIS, the following

colloquy occurred:

MILITARY JUDGE: First of all, under the

rules, when the statement of a hearsay

declarant is admitted, the declarant’s

credibility is placed in issue just as if he

testified. Secondly, I want to scrupulously

and within the maximum limits of my

authority preserve the Defense right to

cross -- confront and cross-examine [the

' The deposition was not offered on the merits and did not go to

the members.

15a

declarant]. So accordingly, if Defense

wishes him produced or -- Let me add an

additional option, and that is the option --

and I accord this to you, Defense Counsel

-- if you wish [the declarant] produced and

placed on the stand to testify as to

whatever he can or cannot and then wish

to cross-examine him and to require me to

do so -- or to require me to so order the

Government, I’m prepared to do so in

order to preserve your right to confront

and to cross-examine.

DEFENSE COUNSEL: Yes, Your Honor.

After consulting with my client, it is not

the Defense’s desire to have [the declarant]

to be forced to call and testify again about

the events contained in his statement.

Defense, for the record, again believes that

an order by the Judge that he testify will

have no more effect than it did before.

However, the Defense does plan on calling

[the declarant] in mitigation.

MILITARY JUDGE: Very well. My point

is that -- and I don’t ask that you

implicitly waive anything. The burden of

proof is on the Government. But I will

give you the opportunity to confront and

cross-examine him and to do so as a part

of the Government’s case, not placing,

therefore any burden on you at all. And

all you need do is simply say the word that

you desire, and he will be produced.

Whatever the Government wishes to ask or

l6a

cross-examination will be anything in [the

declarant’s out-of-court statement] and that

relates to these offenses. Do you desire

that he be produced in any part of the

Government’s case-in-chief? |

|

whatever he testifies to, proper scope of

|

|

DEFENSE COUNSEL: [No response. |

MILITARY JUDGE: Again, when I say

"desire," I understand about burden of

proof. I’m just preserving you right to

confront and cross-examine.

DEFENSE COUNSEL: No, Your Honor.

We do not.

Record at 288-289. Finally, during the pre-sentencing

procedure the appellant’s son was called by the

appellant, and his son testified in his behalf.

The appellant was afforded a full and fair opportunity

to probe and expose the infirmities in the child’s ability

to perceive, recall and relate events, to probe and expose

the child’s motivations, such as bias, fear, love, or

hatred, and thereby to call to the attention of the fact-

finder the reasons for giving scant weight to the child’s

statement. The alleged victim’s forgetfulness and

possible evasiveness did not deprive the appellant of the

fruits of cross-examination. They were exactly the

things that cross-examination and the Confrontation

Clause are designed to expose. In short, the posture of

the case is not of a witness refusing to respond to

questions on cross-examination on grounds of self-

incrimination as in Rivas or Gomez-Lemos. Rather, the

iain iia

oe

17a

witness was more like a forgetful or evasive witness as

in Owens, Fensterer, Green or Spotted War Bonnet. The

fruits of cross-examination were there for the appellant

to pick or to leave alone as he saw fit. Under these

circumstances, viz., (1) the declarant testified during the

suppression hearing at which the appellant was afforded

an opportunity for effective cross-examination, (2) the

declarant testified at a pretrial deposition at which the

appellant was afforded the opportunity for effective

cross-examination, (3) the appellant expressly declined

trial court’s offer to place the declarant on the stand in

the Government’s case-in-chief for purposes of cross-

examination and confrontation, and (4) the declarant was

actually called by the appellant during the pre-sentencing

procedure, we conclude that the Confrontation Clause

was satisfied. Owens; Dean; Quick. Finding the

Confrontation Clause was satisfied, we further conclude

the finer points of the Clause’s application to the out-of-

court statements of non-testifying declarants, as

announced in Wright, are therefore not in issue.

18a

The Residual Hearsay Exception’

The President has been authorized by Congress to

promulgate court-martial trial procedures, including

modes of proof. Art. 36(a), UCMJ, 10 U.S.C. § 836(a). :

The President’s regulations apply, so far as he considers |

practicable, the rules of evidence generally recognized in Y

the trial of criminal casesin United States district courts.

Id. Pursuant to this statutory authority, the President has

promulgated the Military Rules of Evidence [hereinafter

"Rule(s)" or "Mil. R. Evid."}].

A Court of Military Review must obey implicitly the mandates

of the remanding court. When a case is remanded in limited terms, it

must confine its review to matters within those limitations. The scope of

review must be interpreted closely. United States v. Jordan, 35 M.J. 856

(N.M.C.M.R. 1992). Having noted that Idaho v. Wright is a Confrontation

Clause case and the Confrontation Clause was satisfied in this case, it

might appear we are venturing beyond the scope of our remand when we

revisit the question of whether the child’s out-of-court statement was

admissible under the residual hearsay exception to the hearsay

exclusionary rule, quite aside from the Constitution’s Confrontation

Clause. We believe that the issues -- Confrontation Clause and

admissibility as residual hearsay -- are so intertwined that the remand

fairly embraces the latter. We also note that in United States v. Hines, 23

M.J. 125 (C.M.A. 1986), the Court of Military Appeals

"constitutionalized" the criteria for admitting residual hearsay. Therefore,

if we apply Hines strictly, Wright limits the admissibility of residual

hearsay despite the fact the Confrontation Clause itself has not been .

violated. Hence, within the terms of the remand, we would still be

obliged to address the impact of Wright on the admissibility of the out-of-

court statement under our own evidentiary rules. If we fail to address the

statement’s qualification as residual hearsay by limiting the scope of our

review, we would be in effect "deconstitutionalizing" the criteria for

admitting residual hearsay, contrary to Hines. We prefer to confront this

issue head on, and we presume the Court of Military Appeals expected

nothing less. We proceed accordingly.

—_

19a

All relevant evidence is admissible in trials by court-

martial, unless admission is otherwise limited by the

Constitution, statutes, or the rules, themselves. All

irrelevant evidence is inadmissible. Mil. R. Evid. 402.

Hearsay, though relevant, is inadmissible under the rules,

unless it qualifies under an exception to the rule

excluding hearsay. Mil. R. Evid. 801, 802, 803, 804.

Rule 804 permits the admission of certain forms of

hearsay when the declarant is unavailable as a witness.

Rule 803 permits the admission of certain forms of

hearsay whether or not the declarant is available as a

witness. Both rules permit the admission of hearsay not

specifically covered by other exceptions to the rule of

inadmissibility. These are the so-called "residual hearsay

exceptions." The two residual hearsay exceptions

(declarant unavailable/declarant available) are virtually

identical. Thus, under either rule, the following is

admissible:

A statement not specifically covered by

any of the foregoing exceptions [to the

rule against hearsay] but having equivalent

circumstantial guarantees of

trustworthiness, if the court determines that

(A) the statement is offered as evidence of

a material fact; (B) the statement is more

probative on the point for which it is

offered than any other evidence which the

proponent can procure through reasonable

efforts; and (C) the general purposes of

these rules and the interests of justice will

best be served by admission of the

statement into evidence... .

20a

Mil. R. Evid. 803(24), 804(b)(5) (brackets and emphasis

added).

The military judge determines whether the evidence is

admissible. Mil. R. Evid. 104(a). The military judge \

has considerable discretion in determining the

trustworthiness and admissibility of a statement under the

residual hearsay exception, and the military judge’s

determination to admit evidence under this exception

normally will not be reversed except for an abuse of that

discretion. United States v. Powell, 22 M.J. 141, 145

(C.M.A. 1986); United States v. Ortiz, 34 M.J. 831, 835

(A.F.C.M.R. 1992); Lyons, 33 M.J. at 543.

The Government offered the child’s out-of-court

statement under both residual hearsay exceptions

although it was of the opinion the child was not

available. Record at 244-245, 248, 255. The trial

defense counsel argued the child was available but urged

that his out-of-court statements lacked circumstantial

guarantees of trustworthiness. Record at 252-55. The

military judge found the child was unavailable under

Rule 804(a)(2) (persistent refusal to testify) and Rule

804(a)(3) (lack of memory). Record at 260. However,

he admitted the out-of-court statement under both

residual hearsay exceptions. Record at 260-61. In doing

so, the military judge found the criteria for admissibility

were satisfied, but he did not identify the specific

"equivalent circumstantial guarantees of trustworthiness"

upon which he relied. We must determine whether he

abused his discretion in admitting the child’s out-of-court p

statement.

We pause, however, to make three observations. The

first is that inasmuch as the residual hearsay exceptions

2la

are virtually identical under either Rule 803 or 804, a

determination of "unavailability" is not an indispensable

prerequisite to a ruling that hearsay is admissible as

"residual hearsay." In fact, Rule 804(b)(5), (residual

hearsay exception/declarant unavailable) is superfluous in

light of Rule 803(24) (residual hearsay

exception/availability of declarant immaterial). Méil. R.

Evid. 804(b)(S) Analysis. See also Lyons, 36 M.J. at

186 n.2. The availability of the declarant, however,

remains a factor in determining whether the other criteria

for admitting "residual hearsay" are satisfied: Does the

hearsay statement have circumstantial guarantees of

trustworthiness equivalent to the other specific hearsay

exceptions? Is it more probative on the point for which

it is offered than any other available evidence? Are the

purposes of the evidentiary rules and the interests of

justice served by its admission?

Secondly, we observe that the military judge’s

determination that the witness was unavailable for

purposes of admitting his out-of-court statement under a

residual hearsay exception is not inconsistent with our

determination that the same witness was available for

Confrontation Clause purposes. As discussed above, the

presence of the witness and the content of the expected

testimony were sufficient to satisfy the Confrontation

Clause’s requirement to afford the opportunity for

effective cross-examination. As we will discuss in

greater detail infra, there is overlap, but not congruence,

between the Confrontation Clause and hearsay rules.

Green, 399 U.S. at 155-56. The characterizations of

"unavailability" are made for different purposes, and

there is no requirement that they coincide. Cf Owens,

484 US. at 564.

224

Thirdly, and of greatest importance to the appellant’s

case, we are of the view that Wright interprets the

Constitution’s Confrontation Clause, but does not purport

to interpret rules of evidence, per se. In other words, we

believe that while the requirements of the Confrontation

Clause’s "particularized guarantees of trustworthiness"

and the residual hearsay exception’s "equivalent

circumstantial guarantees of trustworthiness" have

common features, they are not identical. Specifically,

the two rules part company when it comes to

determining whether extrinsic, corroborating evidence

may be considered as a circumstance justifying

admission.'® This point is pivotal to the appellant’s

case. It requires a brief comparison of the Confrontation

Clause and the hearsay exceptions."

" Wright holds that when deciding whether an out-of-court

statement possesses "particularized guarantees of trustworthiness" for

Confrontation Clause purposes, a court may not consider extrinsic or

corroborating circumstances. In practical terms, the court could not

consider the accused’s own confession. Greer. We are of the opinion

this same limitation does not apply in determining whether the out-of-

court statement possesses "equivalent circumstantial guarantees of

trustworthiness" for the purposes of Rules 803 and 804 when the

Confrontation Clause, itself, has been otherwise satisfied. Because the

Confrontation Clause was satisfied in the appellant’s case, the practical

effect of our conclusion is that the appellant’s own confession could be

used when determining whether his son’s out-of-court statement possessed

“equivalent circumstantial guarantees of trustworthiness" justifying its

admission under the residual hearsay exceptions.

'| We are mindful of the Court of Military Appeals’ decision in

Hines, wherein the Court (Cox, J.) noted:

The constitutional requirement that the evidence be

taken under circumstances bearing "indicia of

reliability" appears on its face to be closely related to

the evidentiary requirement that the evidence have

23a

"equivalent circumstantial guarantees of

trustworthiness." Since, to be admissible, residual

hearsay staternents have to pass both constitutional and

evidentiary muster, we can see no harm in

"constitutionalizing" this aspect of Mil. R. Evid.

804(b)(S). Therefore, we agree with those courts that

have construed these requirements to be equivalent. See

e.g., United States v. Nick, 604 F.2d 1199, 1203 (9th

Cir. 1979); United States v. West, 574 F.2d [1131,]

1138 [(4th Cir. 1978)].

23 M.J. at 134.

A Court of Military Review is not generally free to ignore the precedent

established by the Court of Military Appeals. United States v. Jones, 23

M.J. 301, 302 (C.M.A. 1987). However, we believe our senior Court

does not intend us to be bound by a case decision mindless of the impact

that subsequent developments in the law may have upon it. Hines

predates Wright. Our reading of Hines suggests that the admissibility of

the out-of-court statements there was in large part predicated on the

assumption that a corroborating circumstance, namely, the accused’s

confession, could be considered for both Confrontation Clause and

evidentiary purposes. 23 M.J. at 137-38. Since Wright, the Court of

Military Appeals has been obliged to retreat from that position insofar as

the Confrontation Clause is concerned. Greer, 33 M.J. at 431. Most

recently, Judge Cox of the Court of Military Appeals and author of Hines

has noted that Wright overruled the Confrontation Clause aspects of

Hines, but that Wright’s application to residual hearsay offered under

Rule 803(24) as an evidentiary matter remains an open question. United

States v. Lyons, 36 M.J. at 188 (Cox, J., concurring); United States v.

Moreno, 36 M.J. 107, 121 (C.M.A. 1992) (Cox, J.). Meanwhile, Judge

Crawford of the same Court has already expressed her view that "the

factors as to ‘particularized guarantees of trustworthiness’ under the

Confrontation Clause versus the ’ guarantees of trustworthiness’ under the

residual hearsay rule are different." Lyons, 36 M.J. at 189 (Crawford, J.,

concurring). Whereas no harm to the fact-finding process was perceived

to exist at the time of Hines, significant harm to it could now occur if

evidence, sufficiently trustworthy to be admitted under evidentiary rules,

must be formalistically excluded under Confrontation Clause requirements

even though the Confrontation Clause has, itself, been satisfied.

24a

The Confrontation Clause and the evidentiary hearsay

rule stem from the same roots and are generally designed

Therefore, we believe on remand the Court of Military Appeals expected

that this Court would be free to consider whether Hines has continued

vitality insofar as it welded the residual hearsay exception to the

Confrontation Clause.

The Confrontation Clause’s test of "“particularized guarantees of

trustworthiness" is linguistically very similar to the residual hearsay

exception’s test of "equivalent circumstantial guarantees of

trustworthiness." While such similarities are useful, they do not mandate

the conclusion that the tests must be equivalent. Cf Owens, 484 U.S. at

564. Weare also mindful of Wright's quotation of Huff v. White Motor

Corporation, 609 F.2d 286 (7th Cir. 1979), wherein the Seventh Circuit

Court of Appeals observed (609 F.2d at 292): "The circumstantial

guarantees of trustworthiness on which the various specific exceptions to

the hearsay rule are based are those that existed at the time the statement

was made and do not include those that may be added by using

hindsight." Wright, 110 S. Ct. at 3149. By quoting with approval this

passage from Huff v. White Motor Corporation, arguably the Supreme

Court was holding that when determining whether there are "equivalent

circumstantial guarantees of trustworthiness" under the residual hearsay

exceptions, the fact-finder is similarly limited to circumstances

surrounding the taking of the out-of-court statement and may not consider

corroborating evidence, no matter how pertinent. We, however, are

reluctant to read too much into Wright. The Court was closely divided

on the Confrontation Clause issue, and it took great care not to equate the

evidentiary rules with the Confrontation Clause.

The Army Court of Military Review has considered the same issue in

United States v. Palacios, 32 M.J. 1047 (A.C.M.R. 1991), but found it

unnecessary to resolve because it did not affect the outcome of the case.

32 M.J. at 1051 n.7. But see United States v. Pacheco, M.J. ;

No. 92-09 (A.C.M.R. 4 November 1992); United States v. Valdez, 35 M.J.

555, 563 (A.C.M.R. 1992); United States v. Pollard, 34 M.J. 1008, 1011

(A.C.M.R. 1992). The Air Force Court of Military Review appears to

have been presented with a similar issue in Ortiz, and appears to have

found "equivalent circumstantial guarantees of trustworthiness” in a

battered spouse’s written statement to a security police investigator from

corroborating statements she made earlier. 34 M.J. at 835.

eV

25a

to protect similar values, but the Supreme Court has not

viewed them as congruent, and in Wright it took care not

to equate the two. Wright, 110 S. Ct. at 3146; Dutton v.

Evans, 400 U.S. 74, 86 (1970); Green, 399 US. at

155-56. The Confrontation Clause "helps assure the

) accuracy of the fact-finding process," and denial of

| confrontation "calls into question the ultimate ’integrity

| of the fact-finding process.’"'? Chambers v.

| Mississippi, 410 U.S. 284, 295 (1973) (quoting Dutton v.

Evans and Berger v. California, 393 U.S. 314, 315

(1969)). To achieve its values, the Confrontation

Clause: (1) insures the witness is placed under oath and

is subject to the penalty for perjury, thus impressing

upon the witness the seriousness of the matter and his

obligation to tell the truth, (2) forces the witness to

submit to cross-examination, "the greatest legal engine

ever invented for the discovery of the truth,” and (3) aids

the jury in determining the witness’ credibility by

observing his demeanor. Green, 399 U.S. at 158. "The

combined effect of these elements -- physical presence,

oath, cross-examination, and observation of demeanor by

the trier of fact -- serves the purposes of the

Confrontation Clause by ensuring that evidence admitted

against an accused is reliable and subject to the rigorous

| adversarial testing that is the norm of Anglo-American

: criminal proceedings." Maryland v. Craig, 110 S. Ct.

3157, 3163 (1990). In addition to promoting reliability

in the fact-finding process, the Confrontation Clause

serves "symbolic goals." Lee v. Illinois, 476 U.S. 530,

a “The mission of the Confrontation Clause is to advance a

practical concern for the accuracy of the truth-determining process in

criminal trials by assuring that the trier of fact [has] a satisfactory basis

for evaluating the truth of the prior statement." Dutton v. Evans, 400

U.S. at 89.

26a

540 (1986). "Given [the] human feelings of what is

necessary for fairness, the right of confrontation

contributes to the establishment of a system of criminal

justice in which the perception as well as the reality of

fairness prevails."" Coy v. Iowa, 487 U.S. 1012,

1018-19 (1988) (quoting Lee v. Illinois, 476 U.S. at

540).

"The hearsay rule is based on experience and grounded

in the notion that untrustworthy evidence should not be

presented to the trier of fact.". Chambers, 410 US. at

298. Hearsay statements are traditionally excluded for

the same reasons articulated respecting violations of the

Confrontation Clause, that is, they lack conventional

indicia of reliability: they are not made under oath or

other circumstances impressing the declarant of their

solemnity, there is no cross-examination, and there is no

opportunity to judge the declarant’s demeanor. /d.

However, "a number of exceptions [to the rule against

hearsay] have developed over the years to allow

admission of hearsay statements made under

circumstances that tend to assure reliability and thereby

compensate for the absence of the oath and opportunity

for cross-examination." Jd. at 298-99. Aside from the

residual hearsay exceptions, the Military Rules of

Evidence set out 27 exceptions to the rule against

hearsay, plus two other circumstances in which out-of-

court statements are not classified as "hearsay" and hence

do not fall within the rule against hearsay. Mil. R. Evid.

801(d), 803, 804. These specific exceptions derive their

reliability from the circumstances under which they were

made or the statement’s content.

The residual hearsay exceptions, themselves, apply only

to highly reliable and necessary evidence. United States

27a

v. Giambra, 33 M.J. 331, 334 (C.M.A. 1991). In fact,

Rules 803(24) and 804(b)(5) are taken from Federal

Rules of Evidence 803(24) and 804(b)(5) without

change. Mil. R. Evid. 803(24), 804(b)(5) Analysis.

These evidentiary rules are to be employed in the same

manner their federal counterparts are generally applied in

other federal courts. Powell, 22 M.J. at 143. In adopting

the Federal Rules, Congress "intended that the residual

hearsay exceptions will be used very rarely, and only in

exceptional circumstances." S. Rep. No. 1277, 93d

Cong., 2d Sess. (1974), reprinted in 1974 U.S.C.C.A.N.

7051, 7065, cited in United States v. Guaglione, 27 M.J.

268, 274 (C.M.A. 1988). The trial judge, however, has

considerable discretion in determining the trustworthiness

and admissibility of a statement under the residual

hearsay exception. Powell, 22 M.J. at 145; Ortiz, 34

M.J. at 835; Lyons, 33 M.J. at 543. "The facts of

individual cases will frequently defy the application of

hard-and-fast rules. Rather, what must generally occur is

the balancing of a variety of circumstances unique to a

particular case." Powell, 22 M.J. at 145.

In summary, the Confrontation Clause and hearsay

rules overlap, but they are not congruent. They have

similar roots and share similar values. They both share

the common goal of promoting accuracy in fact-finding.

They achieve those goals by somewhat different means.

The Confrontation Clause focuses primarily on the

mechanism of cross-examination, whereas the hearsay

exceptions focus on associated circumstances from which

the trial judge gleans a level of confidence in the

evidence’s trustworthiness meriting its consideration by

the jury. For this purpose, oath, physical presence of the

witness and cross-examination are relevant circumstances

in judging trustworthiness, but not the sole means. The

28a

Confrontation Clause directly promotes a symbolic value

-- public confidence in the fact-finding process. The

objective of the hearsay rules appears to be more

pragmatic. It only promotes this additional value

indirectly. Such a differentiation in values is consistent

with the different sources of the Confrontation Clause

and the rules of evidence -- the former being

constitutional, the latter statutory and regulatory. Simply

put, the Confrontation Clause embodies a fundamental

constitutional right. The hearsay rules do not.

With these similarities and differences in mind, we are

of the view that if the fundamental objectives of the

Confrontation Clause, including its symbolic goal, have

been achieved, there is no purpose to loading baggage on

the hearsay rules which interferes with their sole

objective of advancing the quest for the truth. More

specifically, we see no reason to impose an arbitrary

limitation on the range of circumstances the military

judge may consider when determining whether hearsay

possesses "equivalent circumstantial guarantees of

trustworthiness" justifying its admission as an exception

to the hearsay rule. In short, we hold that when the

Confrontation Clause is otherwise satisfied, the military

judge possesses the discretion to consider the totality of

circumstances, including corroborating evidence, in

determining whether hearsay has "equivalent

circumstantial guarantees of trustworthiness" warranting

its admission under the residual hearsay exceptions. Cf

United States v. Hines, 23 M.J. 125 (C.M.A. 1986);

United States v. Yeauger, 24 M.J. 835 (N.M.C.M.R.

1987), aff'd, 27 M.J. 199 (C.M.A. 1988), cert. denied,

490 U.S. 1005 (1989). See also Quick, 26 M.J. at 461;

Powell, 22 M.J. at 145.

29a

We turn therefore to the evidentiary question: Whether

the military judge abused his discretion in admitting the

child’s out of court statement as residual hearsay? We

acknowledge we are at somewhat of a handicap because

the military judge did not give his rationale. Hines,

decided after appellant’s case was tried, now clearly

requires the military judge to state on the record the

specific facts and circumstances which he thinks indicate

that the hearsay statements have a sufficiently high

degree of trustworthiness and necessity to justify their

admission. Hines, 23 M.J. at 135. Clearly, something

more than a mantra is contemplated. See United States

v. Brown, 34 M.J. 1024, 1026 (N.M.C.M.R. 1992).

Having said as much, we believe the record is sufficient

for us to make an informed decision.

We apply the criteria set forth in Rule 803(24). The

out-of-court statement was of a material fact. It was the

victim’s own confirmation that he had been sexually

abused by his father. It appears there is no evidence

more probative on the alleged crimes which the

Government could procure with reasonable efforts. The

child’s out-of-court statement appears to be the only

piece of evidence corroborating the appellant’s

confession. Mil. R. Evid. 304(g). There is nothing

indicating other witnesses were present, and the

likelihood that there were other witnesses is extremely

remote. The general purpose of the rules and the interest

of justice were served by admitting the statement in

evidence. Again, the child’s statement appears to be the

only piece of corroborating evidence available, and it is

in the interest of justice to protect children from

unnecessary trauma and embarrassment in the courtroom.

Cf. Maryland v. Craig, 110 S. Ct. at 3167. Finally, we

find the following equivalent circumstantial guarantees

30a

of trustworthiness: (1) the child’s statement was taken by

two persons, both of whom were called to explain the

circumstances surrounding its recordation; (2) prior to

taking the statement, an agent impressed upon the child

the importance of telling the truth and the child swore to

tell the truth; (3) the child was speaking from first hand

knowledge; (4) no cogent motivation for the child to lie

was suggested; (5) about two weeks after making the

statement to NIS, the child was examined by a clinical

psychologist who testified that child’s symptoms were

consistent with a sexually-abused child, that the child

confirmed the acts of sodomy by his father, that the

child expressed no ill will to his father, and that he was

in fact concerned his father would be punished; (6) the

same psychologist also testified that he had listened to

the audiotapes of the NIS interview, that at time the

child was a very pressured little boy, but from a clinical

and structural point, his basic personality and integrity

were quite intact, and that from his evaluations the child

would not create anything out of his own fantasy or

make statements that did not have some objective

validity (see United States v. Suarez, 35 M.J. 374, 376

(C.M.A. 1992)); (7) the child was available to testify;

and (8) the child’s statement and the appellant’s own

confession which preceded it were mutually

corroborating.'® See Yeauger; Hines; Powell. Based

on these circumstances, we conclude the military judge

did not abuse his discretion in admitting the child’s out-

of-court statement.

'3 See Bourjaily, 483 U.S. at 179-80 ("Individual pieces of

evidence, insufficient in themselves to prove a point, may in cumulation

prove it. The sum of an evidentiary presentation may well be greater

than its constitent parts ... [A] piece of evidence, unreliable in isolation, |

may become quite probative when corroborated by other evidence.") |

3la

Il.

The second issue on remand was briefed and decided

in our first affirmance of appellant’s conviction and

sentence. United States v. Martindale, No. 85-0771

(N.M.C.M.R. 20 December 1985). The appellant has

offered nothing new in respect to this assignment of

error. We reaffirm our previous holding. We note in

particular: (1) that Secretary of the Navy Instruction

1752.3 was issued after the appellant made his statement

to NIS; (2) that the instruction does not grant

transactional immunity;'* (3) that insofar as the

instruction might be read to grant a use immunity to

those who voluntarily refer themselves to the Family

Advocacy Program, it was not violated in the appellant’s

case because his statements to Family Advocacy

Program personnel were never used in evidence against

him; (4) that the appellant was informed by Family

Advocacy Program personnel that there was a possibility

of prosecution; (5) that prior to appellant’s confessing to

NIS, the interrogating NIS agent expressly informed the

appellant that prior statements by him could not be used

against him, but that future statements made by him

could be; (6) that nothing done by government

representatives either gave the appellant a legitimate and

reasonable expectation that he would not be subjected to

punitive action or constituted an agreement upon which

the appellant reasonably relied to his detriment (United

States v. Churnovic, 22 M.J. 401 (C.M.A. 1986); United

ns Implied grants of immunity are in disfavor. United States v.

Sanders, 33 M.J. 1026 (N.M.C.M.R. 1991). See also United States v.

Cooper, 35 M.J. 417 (C.M.A. 1992) (in the absence of prejudice to the

accused, dismissal is not mandated for violations of internal departmental

policies by criminal investigators and informants).

32a

States v. Brown, 13 M.J. 253 (C.M.A. 1982); United

States v. Zupkofska, 34 M.J. 537 (A.F.C.M.R. 1991);

United States v. Spence, 29 M.J. 630-(A.F.C.M.R.

1989)); and, (7) that assuming information concerning

the appellant’s child abuse improperly came to NIS’

attention, the appellant’s confession, made after complete

warnings, including a "cleansing warning," and a waiver

of the privilege against self-incrimination, was free of

any taint that might have resulted from an alleged

improper disclosure. United States v. Norfleet, 36 M.J.

129 (C.M.A. 1992) (unwarned admissions of child abuse

made to a civilian contract counselor at a Family Service

Center did not preclude introduction of subsequent

warned admissions to NIS); United States v. Williams,

35 M.J. 323 (C.M.A. 1992) (results of voluntary

urinalysis and confession to drug use were not the

product of a prior urinalysis arguably inadmissible on the

basis of an Air Force directive, rejecting the "but for"

test for taint).

Ill.

Accordingly, the findings and sentence are reaffirmed.

R. M. MOLLISON

Senior Judges STRICKLAND and ORR concur.

R. A. STRICKLAND

JAMES E. ORR

33a

APPENDIX C

U.S. COURT OF MILITARY APPEALS

No. 54536/NA

NMCM 85 0771

UNITED STATES, Appellee,

V.

Ronald E. Martindale, Appellant.

Decided Sep. 19, 1990

APPEAL -- SUMMARY DISPOSITION

On consideration of appellant’s petition for

reconsideration of opinion of the Court in United States

v. Martindale, 30 MJ 172 (CMA 1990), in light of Jdaho

v. Wright, U.S. , 110 S.Ct. 3139, 111 L.Ed.2d 638

(1990), it is ordered that the petition for reconsideration

be granted; that the mandate dated June 25, 1990, is

vacated; that the decision of the United States

Navy-Marine Corps Court of Military Review is set

aside; and that the record of trial is returned to the Judge

Advocate General of the Navy for remand to the Court

of Military Review for consideration of the following

issues:

I. Whether the transcript of an oral unsworn statemen:‘

of the victim was admissible under Jdaho v. Wright, U.S.

34a

, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990).

II. Whether appellant’s prosecution violated Secretary

of the Navy Instruction 1752.3.

35a

APPENDIX D

U.S. COURT OF MILITARY APPEALS

No. 54536/NA

NMCM 85 0771

UNITED STATES, Appellee,

V.

Ronald E. Martindale, Appellant.

Decided June 12, 1990

For Appellant: Lieutenant Jeffrey S. Horwitz, JAGC,

USNR (argued).

For Appellee: Lieutenant Commander Lawrence W.

Muschamp, JAGC, USN (argued); Commander Thomas

W. Osborne, JAGC, USN (on brief); Captain Wendell A.

Kjos, JAGC, USN.

Opinion of the Court

COX, Judge:

Appellant was tried by a generai court-martial before

members in March 1984. Contrary to his pleas, he was

found guilty of two specifications of attempted sodomy,

one specification of committing an indecent act with a

minor, and thirteen specifications of sodomy, in violation

36a

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

Justice, 10 USC §§ 880, 934, and 925, respectively.

These offenses were committed by appellant upon his

adopted son, S, who was under 16 years of age.

Appellant was sentenced to be confined for 5 years,

reduced to pay grade E-1, and dishonorably discharged

from the United States Navy. The convening authority

approved the findings and sentence. The Court of

Military Review in an unpublished decision affirmed the

findings and sentence on December 30, 1985. In

September 1986, this Court granted an issue raised in

appellant’s appeal asking us to determine if the "Court of

Military Review errjed] in holding that a transcript of

the oral unsworn statement of [S] was properly admitted

into evidence." By summary disposition, 24 MJ 405

(1987), we set aside the decision below and remanded

the record of trial for further consideration in accordance

with our decision in United States v. Barror, 23 MJ 370

(CMA 1987).

On January 6, 1989, after further reflection on the

issue, the Court of Military Review found:

[After] again examin[ing] the record of

trial, the clemency petitions, the

assignment of error . . . [we] have

concluded that the findings and sentence

are correct in law and fact and that no

error materially prejudicial to the

substantial rights of the appellant was

committed. ... Accordingly, the findings

and sentence as approved on review below

are affirmed.

Unpub.op. at 3.

37a

This time we granted appellant’s appeal to consider:

WHETHER THE MILITARY JUDGE

COMMITTED PREJUDICIAL ERROR

BY ADMITTING INTO EVIDENCE A

TRANSCRIPT OF AN ORAL

UNSWORN STATEMENT OF . . . [THE

VICTIM, S].

We are called upon here to determine if the

out-of-court statement of the alleged victim was

admissible in evidence to corroburate appellant's

confession. We conclude that the military judge did not

err when he found admissible the transcript of the

interview between the alleged victim and special agents

of the Naval Investigative Service (NIS). In so holding,

we conclude that the witness was "functionally

unavailable" and, therefore, the decision to admit the

evidence was justified. Mil.R.Evid. 804(a)(3), Manual

for Courts-Martial, United States, 1969 (Revised

edition). We are convinced that no aspect of this ruling

denied appellant’s right to confront the child accuser.

United States v. Quick, 26 MJ 460 (CMA 1988). The

witness was present at the suppression hearing, testified

at a pretrial deposition, and, indeed, testified for his

stepfather during the sentencing hearing. See Coy v.

Iowa, 487 U.S. 1012, 108 S. Ct. 2798, 101 L. Ed. 2d

857 (1988); United States v. Owens, 484 U.S. 554, 108

S. Ct. 838, 98 L. Ed. 2d 951 (1988). In addition, we

have determined that sufficient evidence was introduced

during the suppression hearing concerning admissibility

of the confession to allow the military judge to conclude

that the child’s statement to the NIS special agents had

sufficient "guarantees of trustworthiness" to make it

reliable. Mil.R.Evid. 804(b)(5). See United States v.

38a

Hines, 23 MJ 125 (CMA 1986).

This case was contested before members. The only

evidence presented to them by the Government was

appellant’s confession and the contested statement. The

latter, introduced through the testimony of NIS Special

Agent Machin, was supported by evidence of a transcript

of an interview between two NIS agents and the victim,

appellant’s adopted son. This statement was introduced

through the testimony of NIS Special Agent Kellam. An

explanation of the circumstances surrounding the

confession and the subsequent interview of the child by

the NIS agents is necessary for a complete understanding

of the case.

Appellant was enrolled in Navy Over-Eaters

Anonymous, a program which mirrored the "Twelve

Steps" of Alcoholics Anonymous. "Step 5" of that

program required each individual to admit his or her

wrongs to another person. Because he was extremely

distraught over his past sexual abuse of his stepson,

which included fellatio and attempted anal intercourse,

appellant decided to admit his actions to a counselor first

and then to a Family Advocacy advisor. He ultimately

confessed to NIS on January 13, 1984.' Five days later,

appellant’s wife was asked to bring her son to the NIS

office to be interviewed.

Appellant filed a motion in limine asking the military

judge to exclude the confession, claiming it lacked

Because of appeliant’s participation in this program, Part II of the

dissent apparently expresses concern that appellant has been unfairly

prosecuted. This issue is not before us. If Chief Judge Everett’s instincts

are correct, such is a matter for clemency consideration.

39a

sufficient corroboration under Mil.R.Evid. 304(g). To

substantiate appellant’s admissions, the Government

called the child as a witness. Although he was 12 years

old, the child was emotionally and mentally disabled and

could not read well. At the motion hearing, he testified

that he could not remember what he told the NIS agents

on January 18, and that he was unsure if what they said

he told them was true. He also stated, in response to

questioning from the military judge, "No, I don’t want to

tell you, "cause I don’t know." He repeated over and

over that he did not remember the events or the

interview. See United States v. Owens, supra.

Previously, the child had appeared at a deposition

attended by trial and defense counsel, as well as

appellant. There, he said that his statements to the NIS

agents about his father’s sexual abuse were true.

However, just as he eventually did at the suppression

hearing, he became very upset during the questioning

and stated that he could no longer remember what he

had said during the NIS interview.

Because he was either unable or unwilling to

corroborate his stepfather’s confession, the Government

requested that the child be declared unavailable to testify

and that, instead, a transcript of his interview with the

NIS agents be admitted as an exception to the hearsay

rule under Mil.R.Evid. %04(b)(5) or, if he was found

available, Mil.R.Evid. 803(24). Deiense counsel sought

to exclude the transcript, arguing that the child was

available and that the transcript lacked the

"circumstantial guarantees of trustworthiness" required

by either rule.

40a

The NIS interview of the child lasted approximately 2

hours (from 3:30 to 5:05 p.m.). During that time, Agent

Davis asked the child many questions, all of which were

based upon appellant’s written confession, which she had

with her. The agents asked predominantly leading

questions. During the first 30 minutes, they asked the

child to sign a sworn statement, but upon learning that

his reading comprehension was poor, they obtained a

tape recorder. Agent Kellam testified that she had to turn

the tape recorder off several times during the interview,

because the child was "confused" or to allow Agent

Davis, who was asking most of the questions, to collect

her thoughts. Agent Kellam testified that she did not

know that the child was emotionally or mentally disabled

until after the interview.

The Government sought to introduce the interview as

evidence to corroborate appellant’s confession. In

support of its contention that the interview satisfied the

residual hearsay rule in that it was reliable, the

Government called Dr. James Tom Greene, a clinical

psychologist, who had talked with the child about 2

weeks after his interview with the NIS agents. Although

Dr. Greene recommended against requiring the child to

testify, Dr. Greene did say that, should it be necessary

for him to testify, a number of steps could be taken to

make the ordeal less traumatic. Dr. Greene also opined

that the child had been sexually abused.

Additionally, Dr. Greene offered his opinion on the

reliability of the child’s statements to the NIS agents.

The doctor testified that the child was very emotionally

and psychologically disturbed; that he suffered from a

learning disability which, in Dr. Greene’s opinion, was

both "neurologically based” and a result of the sexual

4la

abuse. Dr. Greene stated that he had performed a

number of psychological tests on the child and conducted

an interview, as stated above, 2 weeks after the boy was

interrogated by NIS agents. During their discussion, the

child freely told Dr. Greene that he had been made to

perform fellatio on his father several times. While the

child was not clear about the exact frequency of the acts,

he was forthright in stating that they had occurred. He

exhibited no ill will towards his father and was, in fact,

very concerned that his father could be punished. Dr.

Greene stated that, based on his interview with the child

and his own experience with other child-sexual-abuse

victims, he did not believe the child was fabricating the

fact that the sexual abuse occurred. The doctor agreed

that it was possible the child was "latching on to"

suggestions by the NIS agents as to exact times and

frequency of the sexual abuse. He maintained, however,

that there was no indication that the boy had fabricated

the fact that the abuse occurred or that it had happened

frequently, over a long period of time. All of Dr.

Greene’s testimony was offered in camera to support the

admission of the confession and not on the merits. See

United States v. Arruza, 26 MJ 234, 237 (CMA 1988).

Basing his decision on the child’s claimed lack of

memory and unwillingness to testify, as well as Dr.

Greene’s testimony regarding the traumatic effect

testifying would have on the child, the military judge

ruled that the boy was "unavailable" to testify as a

witness at trial. He stated that, "taken as a whole, .. .

[the transcript] has substantial equivalent circumstantial

guarantees of trustworthiness," under Mil.R.Evid.

803(24) or 804(b)(5), but he did not specify what those

guarantees were. The military judge then ruled that

appellant’s confession could be admitted into evidence

42a

and that the transcript of the child’s NIS interview could

be admitted to corroborate appellant’s admissions. The

transcript eventually was offered during the

Government’s case-in-chief.

There are two separate concerns regarding the military

judge’s ruling. First, Mil.R.Evid. 304(g)(2) provides that

"{t]he military judge alone shall determine when

adequate evidence of corroboration has been received."

Furthermore:

[t]he independent evidence [used for

corroboration] need raise only an inference

of the truth of the essential facts admitted.

The amount and type of evidence

introduced as corroboration is a factor to

be considered by the trier of fact in

determining the weight, if any, to be given

to the admission or confession.

Mil.R.Evid. 304(g)(1). We are satisfied from the

evidence presented at the pretrial in limine hearing that

the military judge did not err in finding the confession to

be corroborated. See Mil.R.Evid. 104(a).

Notwithstanding the fact that the confession was

admissible, the question remains as to whether the

out-of-court declarations of the child were admissible on

the merits.

Appellant does not contend that admission of the NIS

interview with S violated his right to confront the

witness under the Sixth Amendment to the Constitution

43a

of the United States.? Rather, he contends that the

statement should not have been admitted because it

lacked the "circumstantial guarantees of trustworthiness"

required by Mil.R.Evid. 803(24) or 804(b)(5). Based

upon the entire record presented to the military judge,

including appellant’s confession, we are satisfied that the

hearsay testimony offered to corroborate appellant’s

admissions was reliable and admissible under

Mil.R.Evid. 804(b)(5).

The record also supports the military judge’s ruling

that the child was "unavailable" within the meaning of

Mil.R.Evid. 804(a)(2) and (3). The judge’s ruling,

however, was based solely on admissibility of the

hearsay evidence and did not infringe upon or restrict

appellant’s right to confront his accusers. United States

v. Quick, 26 MJ at 462. Accordingly, we find no error

prejudicial to the rights of appellant.

The decision of the United States Navy-Marine Corps

Court of Military Review is affirmed.

Judge SULLIVAN concurs.

In light of Coy v. lowa, 487 U.S. 1012, 108 S. Ct. 2798, 101 L. Ed.

2d 857 (1988), and Craig v. Maryland, 493 U.S. 1041, 110 S. Ct. 834,

107 L. Ed. 2d 830 (1990), the Bench and Bar should be forewarned that

the correct procedure would have been to put the child on the witness

stand in front of the members in order that they might weigh the import

of the “unavailability” or the believability of the out-of-court statement.

44a

EVERETT, Chief Judge (dissenting).

The issue before us is admissibility of the transcript of

an interview by Naval Investigative Service (NIS) agents

of Martindale’s adopted son. The military judge and the

majority of this Court are of the opinion that the

transcript’s admissibility was established under

Mil.R.Evid. 804(b)(5), Manual for Courts-Martial,

United States, 1969 (Revised edition). I disagree.

I

The legislative history of the residual hearsay exception

indicates that Congress "intended" the exception to "be

used very rarely, and only in exceptional circumstances."

S.Rep. No. 1277, 93d Cong., 2d Sess. 20, reprinted in

1974 U.S. Code Cong. & Admin. News 7051, 7066

(emphasis added). The circumstance that the transcript

was corroborated by appellant’s own confession is not

itself "exceptional." Cf United States v. Barror, 23 MJ

370, 372 (CMA 1987); United States v. Hines, 23 MJ

125, 137-38 (CMA 1986); United States v. Bailey, 581

F.2d 341, 349 (3d Cir.1978). Nor is corroboration

determinative of the reliability of the hearsay statement.

In Hines, we cautioned: "Corroboration alone, however,

without other factors indicating reliability, would

generally not suffice to render [hearsay] statements

reliable." 23 MJ at 138 n. 17 (emphasis added; citation

omitted). In other words, if the ex parte statement is

lacking in "circumstantial guarantees of" reliability, the

fact that the statement is corroborated by an accused’s

confession is not enough to satisfy the demands of

Mil.R.Evid. 804(b)(5). See United States v. Barror and

United States v. Bailey, both supra.

45a

The majority implies as much when it bases its

conclusion "upon the entire record presented to the

military judge, including appellant’s confession . . ." 30

MJ at 175 (emphasis omitted). The majority does not

identify what in the "entire record" it finds so convincing

as to the statement’s reliability -- but I find the

circumstances surrounding the statement to be quite the

contrary.

The son was 12 years old; emotionally and mentally

disabled; and functionally illiterate. He was under the

impression that the agents would not allow his mother to

be present with him during the interview; indeed, when

his mother asked to remain with her son during the

interview, the agents persuaded her not to do so. The

record is devoid of any legitimate reason for

interviewing an illiterate, emotionally disturbed boy

under such conditions.

The interview lasted 2 hours. During the interview, the

agents asked the son several questions: They were based

on appellant’s confession; they were predominantly

leading; the son obviously was uncomfortable with them;

and almost all were answered by "yes," "no," or "I don’t

know." Against the backdrop of this style of

interrogation (and the questionable reliability of any

statement that results), consider two other almost

incredible factors: It was not until 30 minutes into the

interview, when the agents asked the son to sign a sworn

statement, that they learned that he was functionally

illiterate; and they did not realize that he was mentally

disabled until after the interview was over! Under these

circumstances, the risk that the product of this interview

is not reliable is so high that it boggles the mind.

46a

To aggravate matters even more (if that is possible),

the transcript admitted into evidence is derived from a

recorded interview in which, as the NIS agents candidly

admitted, there were several intentionally unrecorded

gaps (shades of a bygone era). We do not know what

was said or done during those intervals -- we are told by

the agents, however, that the recorder was turned off at |

least five times either because the son was confused or

to permit the questioner to collect her thoughts!

Martindale, of course, had no opportunity to question his

son during the interview.

Notwithstanding, the military judge found that, despite

the conditions of the interview, the statement evinced

"circumstantial guarantees of trustworthiness" "as a

whole"; but he failed to explain what those guarantees

were or what parts comprised the "whole." Regrettably,

the majority opinion suffers from the same oraission.

It is possible that the majority relies on the testimony

of Dr. Greene "that there was no indication that the boy

had fabricated the fact that the abuse occurred or that it

had happened frequently, over a long period of time.”

The majority does concede, though, that the doctor did

acknowledge "that it was possible the child was ‘latching

on to’ suggestions by the NIS agents as to exact times

and frequency of the sexual abuse." 30 MJ at 175. Why

is it possible that the child was led in some of his

answers but not in others?

The doctor testified that he had not seen any indication |

that the fact or duration of abuse had been fabricated by

the alleged victim. The question that immediately arises

is whether he had any affirmative indication that this |

information had not been fabricated. In light of the : |

47a

expert’s concession that the child may have "’latch[ed]

on to’ suggestions by the NIS agents as to" some of the

details of his answers and in light of the previously

noted comedy of errors surrounding the interrogation,

this seems to be a fair question. Strikingly, it is

unanswered by the record.

Perhaps even more importantly, the doctor’s testimony

as to "fabrication" really is testimony as to the credibility

of the alleged victim. As was pointed out by Judge Cox

in the lead opinion in United States v. Arruza, 26 MJ

234, 237 (CMA 1988), cert. denied, 489 U.S. 1011, 109

S. Ct. 1120, 103 L. Ed. 2d 183 (1989):

This Court has consistently held that

child-abuse experts are not permitted to

opine as to the credibility or believability

of victims or other witnesses. United

States v. Petersen, 24 M.J. 283 (C.M.A.

1987); United States v. Deland, 22 M.J. 70

(C.M.A.), cert. denied, 479-U.S. 856, 107

S. Ct. 196, 93 L. Ed. 2d 128 (1986);

United States v. Cameron, 21 M.J. 59

(C.M.A. 1985). This holding is consistent

with the decisions of Federai Circuit

courts. See United States v. Azure, 801

F.2d 336 (8th Cir. 1986).

Although in this case the expert’s opinion was

presented in the process of determining whether the

transcript should be admitted into evidence, the fact

remains that it was relied on by the military judge and is

now relied on by the majority -- a reliance which, in my

opinion, violates the rule established in Arruza. In any

event, the extraordinarily high risk of unreliability posed

48a

by the circumstances surrounding the questioning quite

adequately offsets any assurance that might be drawn

from Dr. Greene’s testimony.

As the majority opinion notes, the son did testify at the

sentencing phase of the trial. However, what occurs

after findings of guilt is irrelevant in deciding whether

the military judge erred in admitting the transcript into

evidence in determining guilt or innocence. Martindale

should not be penalized in any way for his decision not

to call or confront his son during the trial of the case or

to ask during the hearing on the motion in limine

whether the transcript contained all of the son’s

responses during his interview by the two NIS agents.

In view of the mental state and illiteracy of this

12-year-old, any failures to obtain complete testimony

from him should be held against the Government, rather

than against Martindale.

In sum, I conclude that this evidence did not

adequately comply with Mil.R.Evid. 804(b)(5), and its

reception constituted prejudicial error.

II

Finally, I am concerned because the entire prosecution

stems from what seems to me to be a violation of a

naval directive designed to protect servicemembers who,

like Martindale, have voluntarily sought counseling for a

problem. Secretary of the Navy Instruction 1752.3

provides in paragraph 7a for "voluntary self-referral" and

states that "disclosure of offenses to designated FAP

[Family Advocacy Program] representatives for the

express purpose of obtaining treatment or rehabilitation

may not be used against the member in any disciplinary

CT

49a

action under the UCMJ or as the basis for characterizing

a discharge." (Emphasis added.)

Martindale had referred himself to the Family

Advocacy Program; and I conclude that this referral --

even though the result of the conversations with a

supervisor -- fell within the category of "voluntary

self-referral." Representatives of the Family Advocacy

Program, in turn, advised him to disclose his offenses to

the Naval Investigative Service. This advice on their

part does not seem to comply with the intent of the

directive.

When Martindale reported to the Naval Investigative

Service, he was given a so-called "cleansing warning,"

which advised him that "[a]ny statement you have

previously made such as to members of your command

cannot be used against you." Under the circumstances

here, I am convinced that this warning was insufficient

to overcome the pervasive effect of the previous advice

given to Martindale by his Family Advocacy Program

counselor, who suggested that talking to NIS agents

about his offenses was necessary as part of his therapy.

It goes without saying that I have no sympathy for the

crimes of which Martindale was convicted. However, I

am convinced of the importance of Family Advocacy

Programs; and it seems to me -- and apparently also to

the Secretary of the Navy -- that voluntary self-referral

is an important part of such programs. Indeed, voluntary

self-referral and prohibitions against disclosure have

been incorporated into various other important programs,

such as those dealing with alcohol and substance abuse

and AIDS.

50a

I conclude that a prohibition against the use of

information disclosed "for the express purpose of

obtaining treatment or rehabilitation" is a rational -- and

probably vital -- component of voluntary self-referral.

This being so, I cannot condone the evasion of this

privilege which has occurred in the present case and

which prejudiced appellant.

Il

Since Martindale was convicted on inadmissible -- and

unreliable -- evidence, I would reverse the decision

below.

S5la

APPENDIX E

DEPARTMENT OF THE NAVY

OFFICE OF THE JUDGE ADVOCATE GENERAL

200 Stovall Street

Alexandria, VA 22332

IN THE UNITED STATES NAVY-MARINE CORPS

COURT OF MILITARY REVIEW

BEFORE

EDWARD M. BYRNE A. F. MIELCZARSKI

J. E. RUBENS

UNITED STATES

V.

RONALD E. MARTINDALE, 430 92 8298

Cryptoiogic Technician (Collection). Second Class (E-5)

U.S. Navy

NMCM 85 0771 Decided 6 January 1989

Sentence adjudged 19 March 1984. Military Judge: A.

Richard Philpott. Review pursuant to Article 66(c),

UCM], of General Court-Martial convened by

Commander, Naval Base Pearl Harbor, Box 110, Pearl

Harbor, HI 96860-5020.

LT ANTHONY D. POKURNO, JAGC, USN, Appellate

Defense Counsel

52a

LCDR LAWRENCE W. MUSCHAMP, JAGC, USN,

Appellate Government Counsel

EDWARD M. BYRNE, A. F. MIELCZARSKI, J. E.

RUBENS

PER CURIAM:

Contrary to his pleas, Petty Officer Second Class

Martindale was found guilty by a general court-martial

in March of 1984 of two specifications of attempted

sodomy, one specification of committing indecent acts

with a minor, and thirteen specifications of sodomy, in

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

Military Justice (UCM3), respectively.

A panel of this Court, in a lengthy opinion, affirmed

the findings of guilty and the sentence in this case.

United States v. Martindale, No. 85 0771 (NMCMR 30

December 1985).

On September 25, 1986, the United States Court of

Military Appeals granted review on the following issue

raised by appellate defense counsel:

Did the Navy-Marine Corps Court of

Military Review err in holding that a

transcript of the oral unsworn statement of

Sean Martindale was properly admitted

into evidence?

On March 16, 1987, the United States Court of

Military Appeals decided United States v. Barror, 23

M.J. 370 (C.M.A. 1987).

53a

Thereafter, on June 16, 1987, the United States Court of

Military Appeals issued the following order:

On further consideration of the granted

issue (23 M.J. 159) in light of United

States v. Barror, 23 M.J. 370 (C.M.A.

1987), it is ordered that the decision of the

United States Navy-Marine Corps Court of

Military Review is set aside. The record

of trial is returned to the Judge Advocate

General of the Navy for remand to that

court for further consideration in

accordance with United States v. Barror,

supra.'

Appellant now asserts the following assignment of

error before this Court:

THE TRANSCRIPT OF [S]’S ORAL

UNSWORN STATEMENT TO NAVAL

INVESTIGATIVE SERVICE AGENTS

WAS IMPROPERLY ADMITTED TO

EVIDENCE UNDER Mil. R. Evid.

804(A)(3) AND 803(24), DENYING

APPELLANT HIS CONSTITUTIONAL

RIGHT TO CONFRONT WITNESSES

AGAINST HIM, WHERE APPELLANT

WAS UNABLE TO CROSS-EXAMINE

[S] CONTEMPORANEOUSLY WITH

HIS PRETRIAL STATEMENT, [S]’S

STATEMENT WAS 'NHERENTLY

UNRELIABLE AND THERE WERE NO

' United States v. Martindale, 24 MJ. 405 (C.M.A. 1987).

54a

CIRCUMSTANCES SUBSTANTIALLY

EQUIVALENT TO EFFECTIVE

CROSS-EXAMINATION AT THE

INTERVIEW.

In United States v. Barror, 23 M.J. 370 (C.M.A. 1987),

the United States Court of Military Appeals stated that in

United States v. Hines, 23 M.J. 125 (C.M.A. 1986), it

had concluded that an unavailable witness’s pretrial

statement, bearing indicia of reliability and circumstantial

guarantees of trustworthiness, may be admissible against

an accused in lieu of confrontation as an exception to the

rule against hearsay only if the circumstances indicated

the statement was taken with such a degree of

bipartisanship that the purposes of cross-examination

were served or if the pretrial statement was confirmed

through corroboration. The military judge in our case

admitted [S]’s oral unsworn statement as corroboration

of the appellant’s confession.” Consequently, the

appellant’s own confession confirmed the reliability of

[S]’s oral unsworn statement. See Hines, 23 M.J. at

137-38 and Barror, 23 M.J. at 372. Further, Dr.

Greene’s testimony reinforced the reliability of [S]’s oral

unsworn statement. See R. 104-106.

We conclude that [S] was unavailable as a witness on

the merits. The defense waived the issuance of an order

"It is noted that one of the trial defense counsel’s approaches to this

case was to argue that the appellant’s statement and his adopted son’s

statement are so diverse that the appellant could not be proven guilty

beyond a reasonable doubt when the two are matched up against each

other. (R. 519.) This may have been the reason why the defense did not

request an instruction that [S]’s oral unsworn statement was admitted only

for the limited purpose of corroborating the appellant’s statement. (R.

538.)

55a

to [S] to testify: the only method by which [S] could

have been made to testify on the merits. See R. 145. We

note that [S] did testify for the defense in presentencing.

R. 621-22. In any event, we agree with the factual

conclusions of the military judge concerning the

nonavailability of [S]. R. 260.

We have again examined the record of trial, the

clemency petitions, the assignment of error and the

government’s reply thereto and have concluded that the

findings and sentence are correct in law and fact and that

no error materially prejudicial to the substantial rights of

the appellant was committed. In doing so, we note that

we have considered, inter alia, the recent opinions of the

United States Court of Military Appeals in United States

v. Yeauger, 27 M.J. 199 (C.M.A. 1988); United States v

Guaglione, 27 M.J. 268 (C.M.A. 1988); and United

States v. Koistinen, 27 M.J. 279 (C.M.A. 1988). We

have considered the appellant’s desire to remain in the

U.S. Navy. Accordingly, the findings and sentence as

approved on review below are affirmed.

56a

APPENDIX F

U.S. COURT OF MILITARY APPEALS

No. 54536/NA

NMCM 85 0771

UNITED STATES, Appellee,

v.

Ronald E. Martindale, Appellant.

Decided June 16, 1987

APPEAL -- SUMMARY DISPOSITION

On further consideration of the granted issue (23

M.J. 159) in light of United States v. Barror, 23 M.J.

370 (C.M.A.1987), it is ordered that the decision of the

United States Navy-Marine Corps Court of Military

Review is set aside. The record of trial is returned to

the Judge Advocate General of the Navy for remand to

that court for further consideration in accordance with

United States v. Barror, supra.

57a

APPENDIX G

DEPARTMENT OF THE NAVY

OFFICE OF THE JUDGE ADVOCATE GENERAL

200 Stovall Street

Alexandria, VA 22332

IN THE UNITED STATES NAVY-MARINE CORPS

COURT OF MILITARY REVIEW

BEFORE

JOHN W. KERCHEVAL II MICHAEL D. RAPP

JOHN E. GRANT, JR.

UNITED STATES

V.

RONALD E. MARTINDALE, 430 92 8298

Cryptologic Technician (Collection) Second Class (E-5)

U.S. Navy

NMCM 85 0771 Decided 30 December 1985

Sentence adjudged 19 March 1984. Review pursuant to

Article 66(c), UCMJ, of General Court-Martial convened

by Commander, Naval Base Pearl Harbor, Box 110,

Pearl Harbor, Hawaii 96860.

For Appellant: LCDR ALVIN L. MCDONALD, JAGC,

USN, Appellate Defense Counsel.

58a

For Appellee: LT J. K. IANNO, JAGC, USNR,

Appellate Government Counsel

PER CURIAM:

Contrary to his pleas, appellant was found guilty at a

general court-martial of two specifications of attempted

sodomy, one specification of committing indecent acts

with a minor, and 13 specifications of sodomy,

violations of Articles 80, 134, and 125, Uniform Code of

Military Justice (UCMJ), respectively.

Appellant, at the time of trial, was a second class petty

officer and had been in the Navy since 1969. Due to a

continuing weight problem, he was sent by his command

in November 1983 to the obesity program at Long Beach

Naval Hospital. While attending that program, appellant

disclosed to his counselor during a private session that

he had sodomized his adopted son. The counselor,

although continuing to assist the appellant, advised him

that the Navy’s office with cognizance over family

advocacy would also have to be informed. Appellant

thereafter went to that office in Long Beach for

counseling and revealed his misconduct. After appellant

returned to his command in Hawaii, he reported in

accordance with directions to the Family Advocacy

office, and the counselor advised appellant to tell Naval

Investigative Service (NIS) of his misconduct. In the ..

company of his wife the appellant then drove to NIS

Headquarters, where NIS Agent M advised appellant of

his Article 31(b), UCMJ, and counsel rights. After that

appellant made a detailed confession to Agent M.

Contrary to appellant’s claims at trial, the military judge

found appellant’s statement to NIS voluntary and

therefore admissible against appellant.

59a

To corroborate appellant’s admissions to NIS, the

Government submitted, at trial, the transcript of a tape

recorded pretrial statement made by the victim,

appellant’s adopted son, Sean, to NIS agents. During a

deposition and an Article 39(a), UCMBJ, session at the

pretrial motion stage of appellant’s court-martial,

however, Sean testified that he did not remember any of

the incidents with his father, nor was he sure about what

he had told NIS. The military judge, over appellant’s

objections, held Sean’s tape recorded statements

admissible under Mil.R.Evid. 803(24). The statements

of appellant and Sean comprised the Government’s

substantive case on the merits at the court-martial.

Appellant comes before us with four assignments of

error, which we will address separately:

I

ERROR TO THE SUBSTANTIAL

PREJUDICE OF THE APPELLANT

OCCURRED WHEN THE MILITARY

JUDGE RULED THAT APPELLANT’S

CONFESSION WAS ADMISSIBLE.

A

VOLUNTARINESS OF THE CONFESSION

Appellant contends, as he did at trial, that his

confession was not given voluntarily, because he was

under the mistaken assumption that cooperation with NIS

was a part of his obesity and Family Advocacy programs

and therefore mandatory if he wanted to stay in the

Navy. In determining if apellant’s statement to NIS was

60a

involuntary, as defined by Mil.R.Evid. 304(c)(3), we

must decide if, under "the totality of the circumstances,"

his statement was given with a free will. United States

v. Murphy, 18 M.J. 220, 224-27 (C.M.A. 1984). We

find that it was. Although appellant, with the

encouragement of his counselors and in the absence of

warnings, freely discussed sexual misconduct involving

Sean with Family Advocacy, none of those discussions

were entered into evidence against him, and no promises

were made to the appellant that his violations would not

lead to criminal actions against him. Further, before

interviewing the appellant, NIS Agent M advised him

that "any" earlier statements could not be used against

him. In addition, Agent M advised appellant that he had

the right to remain silent and to speak to a lawyer, and

that any statement he did make could be used against

him. Appellant then acknowledged his understanding,

even producing his own rights card, and chose to waive

his rights. Considering these facts along with the

appellant’s age, technical specialty, and years in the

Service, we find that the appellant made his statement to

NIS of his own free will, even if his decision to

cooperate with NIS was motivated by hope of lenient

prosecutorial treatment.

¥

B

CORROBORATION

Appellant next alleges that there was insufficient

evidence presented at trial to corroborate his confession.

Mil.R.Evid. 304(g) provides, in part, that:

6la

[a]n admission or a confession of the

accused may be considered as evidence

against the accused on the question of guilt

or innocence only if independent evidence,

either direct or circumstantial, has been

introduced that corroborates the essential

facts admitted to justify sufficiently an

inference of their truth.

The Government is not required to present evidence

establishing each and every element of the offenses

charged, but is only required to establish through

sufficient evidence ihat an accused’s statement is

trustworthy. United States v. Schuring, 16 M.J. 664

(ACMR 1983), pet. denied, 17 M.J. 287 (C.M.A. 1984).

Sean’s recorded statements to NIS agents sufficiently

corroborated appellant’s confession by various means.

Sean was able to articulate the surrounding

circumstances and describe with specificity the acts of

oral sex he had performed on his father, and he

confirmed that these acts occurred many times over the

previous four years. Although the exact interval was

unclear, Sean stated that his father had asked him to do

this at least once or twice a month since he was eight

years old; Sean was twelve at the time of his statements.

In addition, Sean confirmed several times that he knew

what the truth was and that he was, at the time, telling

the truth. (See Assignment of Error II for further

discussion.) The trial court needed no further

corroboration.

62a

Cc

NAVY POLICY

Navy policy states that the disclosure of offenses to

Family Advocacy representatives should not be used

against a person in a disciplinary action or as the basis

for characterizing a discharge. SECNAVINST 1752.3 of

27 January 1984, paragraph 7a(3). Appellant argues that

subject instruction is legally applicable regarding his

statement to NIS. We disagree. By its terms the

instruction would govern only appellant’s statements to

Family Advocacy counselors and none were presented at

trial. Further appellant was advised, prior to confessing

to NIS, that those earlier statements absolutely could not

be used against him. To hold that the NIS statement

was inadmissible due to the above-stated Navy policy

would effectively bar the prosecution of anyone

reporting to Family Advocacy prior to cooperating with

NIS. We find no basis for such a conclusion. Thus, we

do not find that the military judge erred in ruling that

appellant’s confession was admissible, and therefore it

was properly admitted.

II

THE MILITARY JUDGE COMMITTED

PREJUDICIAL ERROR BY ADMITTING

INTO EVIDENCE A TRANSCRIPT OF

THE ORAL UNSWORN STATEMENT

OF SEAN MARTINDALE.

In admitting Sean's tape recorded statements to NIS

agents under Mil.R.Evid 803(24), the military judge

specifically found "substantial equivalent circumstantial

A Map mee mum DE et te ne

ee ae ee ed oe ee ae eee ren Niko! Mae Sige ot

63a

guarantees of trustworthiness" therefor. We find, as the

military judge did, that the following requirements of

Mil.R.Evid. 804(24) were present: (a) adequate notice

had been given to appellant and counsel of the proffered

evidence; (b) the evidence related to a material fact

before the trial court; (c) the evidence was certainly

more probative on the point for which it was offered

than any other evidence available; and (d) the general

purposes of the Rules and the interests of justice were

best served by admission of Sean’s statement. There is

ample evidence of record to show that Sean’s statement

is trustworthy. Several times during the interview Sean

stated that he knew the difference between right and

wrong and swore he was telling the truth. The two NIS

agents testified concerning the circumstances of the

interview, specifically confirming the absence of any

coercion, threats or restraint placed on Sean. Although

sometimes hesitant in his responses, Sean nevertheless

explained the sequence of events coherently, in detaii

and with an appreciation for the gravity of the

proceedings. His age and the absence of apparent

disability or motive to fabricate contributed to the

trustworthiness of his statement. In addition, Sean’s lack

of memory at trial does not negate the trustworthiness of

his earlier statement. See United States v. Hines, 18

M.J. 729 (AFCMR 1984) (victims’ refusal to testify at

trial); United States v. Russell, 712 F.2d 1256 (8th Cir.

1983) (absence of memory of witness). Dr. G, an expert

in mental health and child psychology, testified at trial

that Sean’s responses to psychological testing were

indicative of one who had been sexually abused and that

Sean’s memory lapse between the tape recorded session

and later proceedings as a normal reaction of a child

who had been sexually abused. Dr. G also testified that

he believed that Sean’s statements to the NIS agents

64a

were truthful. In the face of such strong evidence, we

cannot, as a matter of law, find error in the military

judge’s ruling admitting Sean’s recorded statements, a

matter within his sound discretion. United States v.

Whalen, 15 M.J. 872, 877 (ACMR 1983).

{II

A SENTENCE WHICH INCLUDES A

DISHONORABLE DISCHARGE AND

CONFINEMENT AT HARD LABOR

FOR 5 YEARS IS INAPPROPRIATELY

SEVERE.

We disagree. We find the sentence more than

appropriate for the offenses committed by appellant,

considering the sordid nature of the offenses, the lengthy

time involved, and the deleterious effect on the victim.

IV

THE MILITARY JUDGE ERRED TO

THE SUBSTANTIAL PREJUDICE OF

APPELLANT WHEN HE ADMITTED

INTO EVIDENCE APPELLANT’S

CONFESSION WITHOUT MASKING

THOSE PORTIONS WHICH

DISCUSSED UNCHARGED

MISCONDUCT AND INSTRUCTED

THE MEMBERS THAT THEY COULD

CONSIDER SUCH FOR THE PURPOSE

OF CORROBORATION OF SEAN’S

STATEMENT.

65a

As stated by the government counsel at trial, that

portion of appellant’s statement which referred to prior

uncharged misconduct was not being entered for the

purposes of proving appellant’s guilt or innocence nor

was it being entered to show that appellant had acted in

conformity therewith. It was intended solely to

demonstrate the reliability of Sean’s statement.

Therefore, Mil.R.Evid. 404(b) and 304(g) have not been

violated. Additionally, the military judge gave a clear ©

limiting instruction to the members concerning the

portion at issue. We find no merit in appellant’s

argument that the probative value of this evidence was

far outweighed by the prejudice that might have resulted,

considering the relative leniency of the adjudged

sentence and the seriousness of the charges.

Accordingly, the findings of guilty and the sentence as

approved on review below are affirmed.

GRANT, Judge (concurring):

I concur with the majority opinion except as indicated

herein.

I

The linchpin consideration in determining whether

appellant’s confession was involuntary within the

meaning of Mil.R. Evid. 304(c)(3) is whether the

appellant actually believed that he had to cooperate with

Naval Investigative Service (NIS) agents to satisfy the

follow up requirements prescribed upon his discharge

from the weight program or be administratively

discharged from the Naval Service. The appellant cited

the after-care plan write up, Defense Exhibits D and E,

66a

which directed that he be seen by Family Advocacy

Service (FAS) at his command for follow up counseling,

and the insistence of the FAS counselor at his command

during follow up counseling that he make a statement to

NIS regarding his sodomitical relationship with his

adopted son, as evidence that if he did not comply and

cooperate with NIS agents, he would have been

discharged administratively as a weight-control failure

for refusal to participate in the after-care plan. The rub

comes into play, however, by virtue of no one officially

assigned to the weight-control program or FAS ever

suggesting that the after-care plan included a requirement

that the appellant cooperate with and provide authorities

a statement. The requirement existed ostensibly only in

the mind of the appellant. On the contrary the FAS

counselor, at the appellant’s command, before the

appellant proceeded to NIS for purposes of making a

statement, advised the appellant that he could be

prosecuted for such offenses, but the appellant,

notwithstanding such advice, accompanied by his wife,

showed up at NIS with a Miranda card in his hand,

waived all statutory and constitutional rights, and

confessed to the crimes for which he was subsequently

found guilty.

Under such circumstances, I believe the appellant

cooperated with NIS not out of fear that if he did not, he

would be administratively separated from the Naval

Service as a weight-control failure. The appeliant had

much more to lose by making a statement to NIS,

namely, prosecution, confinement, and almost certain

punitive discharge upon conviction, than he did at an

administrative discharge board as a weight-control

failure. The only reasonable explanation for appellant’s

cooperation is that after fully evaluating his options, he

67a

considered prosecution the least desirable scenario, and

opted to demonstrate repentance and a potential for

rehabilitation by making a statement to NIS as his best

chance to either avoid a court-martial or at least to lessen

his potential punishment at a court-martial, knowing full

well that anything he said could be used against him at a

trial by court-martial. His belated attempt to attribute

his cooperation with NIS to the fear of being

administratively discharged as a weight control failure if

he did not, is self-serving and a continuation of his

original design to avoid the full impact of his criminal

actions.

II

The Government was permitted to introduce, over the

appellant’s objection, misconduct not charged as part of

the appellant’s confession to the offenses charged,

pertaining to an earlier act of sodomy perpetrated by

appellant upon his adopted son and identical in nature to

a portion of the offenses charged, and admitted into

evidence for the limited purpose of supporting the

statement of the adopted son. The net effect was to

permit the Government to bootstrap the credibility of the

adopted son’s statement, which, in turn, was admitted

into evidence to corroborate those parts of the

appellant’s confession regarding misconduct charged. I

view this as indirectly condoning that which Mil.R.Evid.

304(g) specifically proscribes, namely, the use of an

uncorroborated confession or admission of an accused as

independent evidence corroborating the essential facts

admitted to in regard to a confession or admission

bearing directly upon the offenses charged.

68a

In addressing the impact thereof, I find the

inadmissible evidence was harmless beyond a reasonable

doubt, where (1) the misconduct not charged occurred

long before the misconduct charged; (2) the impact of

the misconduct not charged was relatively benign

compared to the extensive nature of the remaining

portions of the appellant’s confession bearing directly

upon misconduct charged; (3) other independent

evidence corroborated the appellant’s confession; (4) no

evidence attested to the inherent unreliability of

appellant’s confession or suggested the confession was

obtained through coercion; (5) the trial defense counsel

failed to redact the objectionable portions of the

confession pertaining to misconduct not charged despite

reasonably available solutions, although provided such an

opportunity by the trial judge, and (6) the sentence

adjudged was relatively lenient given the maximum

authorized punishment and the serious nature of the

offenses of which the appellant was found guilty.

Accordingly, I join the majority in affirming the

findings of guilty and sentence as approved on review

below.

* U.S. GOVERNMENT PRINTING OFFICE: 1994 387-714/2001

EEE eoO

oy LRP es Be oe he; Ur Gel® eee