United States v. Kelley

EVERETT, Senior Judge

(concurring in part and dissenting in part):

Although I harbor the same general reservations that Judge Sullivan expresses about the extent to which military judges have applied the hearsay exception related to medical diagnosis or treatment, I do agree with the majority’s treatment of Issue I and concur in it.

As to Issue II, I disagree with the majority that the Government, as the proponent of the evidence, satisfied the “necessity” requirement for admissibility of residual hearsay under Mil.R.Evid. 803(24), Manual for Courts-Martial, United States, 1984. CK herself testified and was subject to cross-examination. Surely, then, she constituted the “best evidence” of what appellant allegedly did to her, as compared to what Andy would testify that CK told him as to what appellant allegedly did to her. See Larez v. City of Los Angeles, 946 F.2d 630, 644 (9th Cir.1991) (“necessity” prong equates to a best-evidence requirement).

Implicitly responding to this argument, the majority subjectively concludes that “CK’s testimony established little.” 45 MJ at 281. The majority’s own summary of CK’s testimony, however, belies that evaluation. 45 MJ at 278-79. I recognize that, in certain respects, her testimony did contradict what Andy subsequently testified to regarding what she had told him. That inconsistency, however, does not make Andy’s testimony “necessary” as the “best evidence” of what appellant allegedly did to CK. Just because the prosecution did not like some of the things CK said in her testimony does not make Andy’s more prosecution-friendly testimony “necessary.” Rather, the inconsistency between CK’s testimony and what she allegedly had told Andy, at best, provides the *283basis for Andy’s testimony to be considered for the narrow purpose of impeaching CK with a prior inconsistent statement after CK herself had been asked about it. See Mil. R.Evid. 613(b).

On this basis, I believe that admission of Andy’s testimony as substantive evidence was error. Moreover, the majority’s discussion of the supposed necessity for Andy’s testimony makes the best argument that admission of that testimony was not harmless to appellant. See Art. 59(a), Uniform Code of Military Justice, 10 USC § 859(a). Accordingly, I would set aside the findings and sentence and authorize a rehearing.

Since I would dispose of Issue II on the basis of the lack of the necessity for Andy’s testimony, I do not need to reach the question of the reliability of CK’s out-of-court statements to Andy and whether the military judge properly limited his concern in that regard to the circumstances surrounding the making of that statement. Nonetheless, in light of the majority opinion, I pause to offer a short comment in connection with that question.

The cases cited both by the majority and by Judge Sullivan — United States v. McGrath 39 MJ 158 (CMA 1994), and United States v. Martindale, 40 MJ 348 (CMA 1994) — presented the question whether the military judge could look beyond the circumstances surrounding the declaration to find corroboration of reliability, once constitutional confrontation had been satisfied. As Judge Sullivan points out, this Court has divided on that question, with the majority holding that a judge may do so in his discretion and the dissenters finding that he lacks that discretion under the express terms of Mil.R.Evid. 803(24) and 804(b)(5).

Here, by contrast, appellant complains that the military judge did not exercise discretion to look beyond the immediate circumstances to find the statement un reliable. In this context, regardless of the different views expressed in McGrath and Martindale, nothing in either of the rules of evidence just mentioned or in Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990), precludes a judge from considering extrinsic circumstances not related to the taking of a statement in deciding to exclude out-of-court statements as unreliable. At the same time, as the majority points out, nothing requires a judge to exercise his discretion in this manner.