(concurring with exception):
16. I concur in the majority opinion except insofar as, near the end, ¶ 15, the majority relies in part upon corroborating statements of H’s sister to conclude that H’s statements to Mrs. P were trustworthy within the meaning of Mil.R.Evid. 803(24), Manual for Courts-Martial, United States, 1984. As I have stated previously, I believe that the “equivalent circumstantial guarantees of trustworthiness” that are necessary for admissibility under either Mil.R.Evid. 803(24) or 804(5) are limited to any “circumstance that immediately and directly surrounds the making of the statement itself, not some collateral circumstance.” United States v. McGrath, 39 MJ 158, 172 (CMA) (Wiss, J., dissenting), cert. denied, — U.S.-, 115 S.Ct. 420, 130 L.Ed.2d 335 (1994); accord United States v. Morgan, 40 MJ 405, 413 (CMA 1994) (Wiss, J., dissenting).
17. Even as so restricted, however, I am satisfied that there are adequate “circumstantial guarantees of trustworthiness” here. As was the case of the victim’s statements in United States v. Clark, 35 MJ 98 (CMA 1992), H’s statements to Mrs. P “were voluntary, uncontrived, unconstrained, and spontaneous in that none of the essential details of these statements were suggested to [H] by others;” “[n]o motive was suggested for [H] to lie;” and H “had first hand knowledge of all the events to which her out-of-court statements pertained.” Id. at 106. Specifically, the military judge found as fact that
(B) [H] came inside on her own accord, after having been told to play outside, and sought out Mrs. [P] in her bedroom.
(C) [H] laid down on the bed beside her looking very sad and teary-eyed.
(D) Before Mrs. [P] could say anything to her, [H] asked if Mrs. [P] knew what happened to her and her dad.
(J) [H]’s statement was spontaneous, and her more detailed explanation was in response to a leading question, but one which implied no wrongdoing.
([K]) The statement was detailed as to its sexual content.
Further, as the majority reasons, H’s statements may not qualify as excited utterances, but her “sad and teary-eyed” demeanor when initiating the conversation with Mrs. P argues in favor of the trustworthiness of her statements, as does the obvious lack of any offensive, substantive “leading” of H by Mrs. P in the conversation. ¶ 15.
Accordingly, with the exception noted at the outset, ¶ 16, I agree with the majority opinion.