United States v. McConnico

PERRY, Judge

(dissenting):

In the principal opinion, Chief Judge Fletcher holds that “it would be imprudent for this Court to definitively rule that the introduction of Perdue’s confession under the circumstances of the appellant’s case *311did not in some way violate the appellant’s right to confrontation.” And he is willing only to accept, without deciding, “this conclusion at the present time . . . until more clear pronouncements in this area of constitutional law reach us from the Supreme Court.”1 He finds, however, that any violation of McConnico’s right of confrontation that may have occurred was harmless, since the record contains other evidence that Perdue committed the principal offense. Continuing, the principal opinion finds that Perdue’s confession was “properly admitted against the appellant as a declaration against penal interest in accordance with federal evidentiary law applicable at courts-martial.” In his opinion concurring in the result, Judge Cook eschews the underlying rationale of the principal opinion and, indeed, disassociates himself from the discussion concerning the admissibility of the statements. Judge Cook also identifies para. 140a(6), Manual for Courts-Martial, United States, 1969 (Revised edition), as relevant and potentially crucial to the issue presented in this case. However, Judge Cook declines to hold that the Manual provision is dispositive here, preferring instead to rest his concurrence in the result reached in the principal opinion upon the ground that “other competent evidence of Perdue’s commission of the offense attributed to him is so compelling of guilt as to foreclose any ‘reasonable possibility that the admission of . [Perdue’s written and oral pretrial statements] might have contributed to the appellant’s conviction.’ ”

My Brethren seem oblivious to the legal mischief which Perdue’s confession has wrought upon McConnico’s rights. First, the record reveals no direct evidence, other than Perdue’s confession, that McConnico drove Perdue away from the scene of the shooting or that he performed any other act which “receive[d], comfort[ed] or assist[ed]” Perdue “in order to hinder or prevent his apprehension, trial, or punishment.”2 The finding of guilty thus rests upon no direct evidence of the commission by McConnico of acts comprising the elements of the crime if accessory after the fact, absent Perdue’s confession.3 Second, the admis*312sion of Perdue’s confession violated para. l89a, Manual, supra.4 Third, the admission of Perdue’s confession violated para. 140a (6), Manual, supra.5 Fourth, admission of Perdue’s confession violated McConnico’s right, guaranteed by the Sixth Amendment to the Constitution of the United States,6 to be confronted by the witnesses against him. Thus, I believe error was committed. Moreover, I have no doubt that the admission of the statement was prejudicial. I would, therefore, reverse McConnico’s conviction and remand the case for a new trial.

I

McConnico and Perdue were tried separately on charges resulting from an altercation between two groups of servicemen at Fort Benning, Georgia, at which time Per-due shot and injured another serviceman. Perdue was tried first and convicted of the offense of assault with a dangerous weapon. Subsequent to Perdue’s trial and conviction, McConnico was brought to trial on the charge of having been an accessory after-the-fact to assault with intent to commit murder, in violation of Article 78, Uni*313form Code of Military Justice, 10 U.S.C. § 878. At McConnico’s trial, a statement given by Perdue to investigating officers prior to his trial, admitting that he shot the serviceman and stating further that McConnico drove him away from the scene, was admitted by the trial judge over objections that the statement was hearsay and that it violated MConnico’s right to be confronted with the witnesses against him, guaranteed by the Sixth Amendment to the Constitution of the United States. The military judge stated that the statement was being admitted for the limited purpose of establishing Perdue’s misconduct as the principal offender.7

Review of the evidence reveals that during much of the day prior to the shooting incident, Perdue had been driving McConriico’s automobile in and around Fort Benning. Shortly before the shooting incident, Perdue and McConnico were observed at the servicemen’s club. During a confrontation between two groups of men outside the club, a shot, injuring one serviceman, was fired, after which Perdue and an unidentified person got in McConnico’s automobile and drove away. Review of the record reveals that no witness testified as to who, Perdue or the other individual, drove the automobile from the scene of the shooting. Nor is there any other evidence of record to support that alleged fact, so essential to the finding of guilty. Moments later, the same automobile arrived at a barracks building some distance away from the shooting scene. No witness testified as to who drove the automobile to the barracks. Thereafter, Perdue, followed by McConnico, approached another serviceman, Hutchinson, and two female companions. Perdue displayed his pistol and admitted shooting a serviceman. An investigating officer testified during the trial that McConnico admitted to him that he (McConnico) was at the *314scene of the shooting. However, McConnico made no statement to the investigating officer that he drove Perdue away from the scene. It is thus apparent that evidence of any activity by McConnico that may have aided or assisted Perdue in avoiding detection, absent Perdue’s statement, was circumstantial and inconclusive. Indeed, without Perdue’s statement, there was no direct evidence of overt assistance by McConnico8 and the circumstantial evidence above adverted to does not constitute an unbroken chain which points unerringly to the guilt of the accused. See United States v. Mason, 8 U.S.C.M.A. 329, 24 C.M.R. 139 (1957); United States v. Jackson, 7 U.S.C.M.A. 67, 21 C.M.R. 193 (1956) (Quinn, C. J., dissenting). Perdue’s statement, therefore, constituted the most damaging and devastating evidence concerning McConnico’s alleged act of driving Perdue away from the scene of the shooting. It was this alleged conduct by McConnico that constituted the basis upon which the military judge found him guilty of being an accessory after-the-fact of aggravated assault.9

The majority insist that the above facts, even absent Perdue’s statement, support McConnico’s conviction of the charged offense. I disagree. Absent Perdue’s statement, the record is devoid of any relevant evidence that McConnico committed conduct prohibited by the statute. Thus, he stands convicted without due process of law. Vachon v. New Hampshire, 414 U.S. 478, 94 S.Ct. 664, 38 L.Ed.2d 666 (1974); Douglas v. Buder, 412 U.S. 430, 93 S.Ct. 2199, 37 L.Ed.2d 52 (1973); Gregory v. Chicago, 394 U.S. 111, 89 S.Ct. 946, 22 L.Ed.2d 134 (1969); Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966); Thompson v. Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960). As the Supreme Court teaches, “The ‘no evidence’ doctrine of Thompson v. Louisville thus secures to an accused the most elemental of due process rights: freedom from a wholly arbitrary deprivation of liberty.” Jackson v. Virginia, -U.S.-, pp.---, 99 S.Ct. 2781 p. 2787, 60 L.Ed.2d-(1979).

Nevertheless, my colleagues are persuaded that some evidence exists which tends to support the verdict of guilty, notwithstanding its paucity. See n. 3, supra. That evidence, however, does not constitute proof beyond a reasonable doubt that McConnico “receive[d], comfort[ed] or assisted]” Perdue “in order to hinder or prevent his (Perdue’s) apprehension, trial or punishment.” See n. 9, supra. See also In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), in which the Court held that the Constitution protects a defendant in a criminal case from conviction “except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” Id. at 364, 90 S.Ct. at 1073. See also Jackson v. Virginia, supra; Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977); Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); Ivan v. New York, 407 U.S. 203, 92 S.Ct. 1951, 32 L.Ed.2d 659 (1972); Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972); United States v. Verdi, 5 M.J. 330 (C.M.A.1978). The Supreme Court reminds us that “[t]he Winship doctrine requires more than simply a trial ritual.” That doctrine, the Court teaches, requires “that the factfinder will rationally apply that standard to the facts in evidence.” It is recognized that

a properly instructed jury may occasionally convict even when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt, and the same may be said of a trial judge sitting as a jury. In a federal trial, such an occurrence has traditionally been deemed to require reversal of the conviction.

Jackson v. Virginia, supra - U.S. at -, 99 S.Ct. at 2788.

*315See also Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942). I need not remind my colleagues that a court-martial is a federal trial. The facts of record in this ease cannot rationally be deemed to constitute proof beyond a reasonable doubt that McConnico committed acts prohibited by Article 78, UCMJ.

Thus, in my view, the military judge either failed to adhere to the limitations he himself imposed upon the consideration of Perdue’s statement (see n.7, supra) or he rendered a finding of guilty against McConnico upon less than proof beyond a reasonable doubt. In either event, McConnico’s conviction should not stand.

II

I agree that the Manual for Courts-Martial is the primary source of the rules of evidence for courts-martial. Article 36(a), UCMJ, 10 U.S.C. § 836. Several provisions of the Manual bear upon the admissibility of Perdue’s statement in this case. I will proceed to discuss them together with my views concerning their effect upon the admissibility of Perdue’s statement.

A. Paragraph 139a, Manual, supra provides that hearsay is not competent evidence and that it may not be admitted or considered.10 Paragraph 139a emphasizes that “[hjearsay may not be recited or otherwise introduced in evidence, and it does not become competent evidence by reason of a mere failure to object to its reception in evidence.” 11 Hearsay evidence is described as “[a] statement which is offered in evidence to prove the truth of the matters stated therein, but which was not made by the author when a witness before the court.” 12 Confirming the reason for imposing the rule in courts-martial, the President emphasized13

the fundamental principle . . . that in a criminal prosecution the testimony of the witnesses shall be taken before the court, so that at the time they give the testimony offered in evidence they will be sworn and will be subject to cross-examination, the scrutiny of the court, and confrontation by the accused.

The rule is, of course, subject to certain well-established exceptions.

It cannot be disputed that Perdue’s statement establishing his misconduct as the principal offender is a written “statement” which was “offered in evidence to prove the truth of the matters stated therein.” Indeed, Perdue’s statement established conclusively that Perdue committed the principal offense of which McConnico stands convicted as an accessory after the fact. The crucial fact was for all practical purposes a condition precedent to McConnico’s conviction as an accessory after the fact.14 The statement also contains an assertion that McConnico drove Perdue away from the scene of the shooting. However, the trial judge, who also served as the trier of fact, indicated that he would not consider that part of the statement.15 The record confirms that Perdue did not testify during McConnico’s trial and, thus, as the author of the statement, did not make it “when a witness before the court.” Thus, Perdue’s statement is hearsay, both inadmissible and incompetent as evidence under para. 139a, Manual, supra, unless otherwise admissible, as is contended by my colleagues.

B. Paragraph 140a (6), Manual, supra, provides16 that

[a] confession or admission not made as testimony in the trial is admissible for the purpose of proving the truth of the matters stated in the confession or admission only when the person who made it is an accused in the case, and it is then admissible for that purpose only with respect to, and against, the accused who made it.

*316Perdue was not an accused in the case on trial. McConnico was on trial. The wording of this Manual provision is, I suggest, plain and unambiguous. It prohibited consideration of Perdue’s confession at McConnico’s trial. In his separate opinion, Judge Cook seems to agree that this provision of the Manual prohibited consideration of Per-due’s confession at McConnico’s trial. However, in Judge Cook’s view, the admission of Perdue’s statement had no effect on the outcome of the trial since there was other substantial evidence on which the findings of guilty could have been made. As I have stated above, the evidence of conduct by McConnico was, at best, circumstantial and inconclusive. Perdue’s statement constituted the only direct evidence of conduct by McConnico which arguably supports the finding of guilty of accessory after the fact. Thus, in my view, admission of Perdue’s statement violated para. 140a (6), Manual, supra.

C. Though only tangentially relevant to this case, para. 140b, Manual, supra, relating to the trial of two or more persons, provides that

evidence of a statement made by one of them which is admissible against him only or against him and some, but not all, of his co-accused may not be received in evidence unless all references inculpating an accused against whom it is inadmissible are effectively deleted or the maker of the statement becomes subject to relevant cross-examination.

While this was not a joint trial, it was a trial of McConnico for the crime of being an accessory after the fact of a crime, the commission of which Perdue had admitted in a statement which also inculpated McConnico. Even if the two men had been tried jointly, the statement would have been admissible only against Perdue after all references inculpating McConnico had been “effectively deleted.” The effective deletion of inculpating references to McConnico must be accomplished by the prosecution before displaying the statement to the fact finders. In this case, the trial was held before a military judge alone. Admittedly, the judge stated that he would not consider that portion of the statement which asserted that McConnico drove the automobile from the shooting scene.17 However, the record contains several discussions between the judge and the attorneys concerning the disputed reference to McConnico.18 In my view, even if otherwise admissible, this Manual provision required deletion of all reference to McConnico before displaying it to the fact finder.

Ill

The Sixth Amendment to the Constitution of the United States provides: “In all criminal prosecutions, the accused shall enjoy the right . . to be confronted with the witnesses against him.”19 The principal opinion recognizes the existence of the Amendment but submerges it beneath the declaration of penal interest exception to the rule against hearsay evidence and “federal evidentiary law,” thus depriving military servicemen and women of its protections.20 A canvassing of relevant deci*317sions of the Supreme Court immediately reveals the unique protections afforded by the confrontation clause to the accused. In Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1895), the Court stated:

The primary object of the [Confrontation Clause of the Sixth Amendment] was to prevent depositions or ex parte affidavits . . . being used against the prisoner in lieu of 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 worthy of belief.

Id. at 242 — 13, 15 S.Ct. at 339. Seventy years later, in a decision holding the protections of the Sixth Amendment applied to state criminal proceedings under the Fourteenth Amendment, the Court stated:

There are few subjects, perhaps, upon which this Court and other courts have been more nearly unanimous than in their expressions of belief that the right of confrontation . . . is an essential and fundamental requirement for the kind of fair trial which is this country’s constitutional goal.

Pointer v. Texas, 380 U.S. 400, 405, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923 (1965). The Court has remained steadfast in its recognition of the basic right which the amendment was designed to protect. Barber v. Page, 390 U.S. 719, 721, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968). As Chief Justice Burger only recently emphasized in Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974):

“Our cases construing the [confrontation] clause hold that a primary interest secured by it is the right of cross-examination.” Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 1076, 13 L.Ed.2d 934 (1965).

Continuing, Chief Justice Burger stated:

Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. Subject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the witness’ story to test the witness’ perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i. e., discredit, the witness.

Davis v. Alaska, supra at 316, 94 S.Ct. at 1110. The Supreme Court has remained steadfast in its adherence to the concept that the right of confrontation includes the right to cross-examine the witnesses. See Davis v. Alaska, supra; California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970); Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100 (1968); Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968); Barber v. Page, supra; Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968); Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966); Douglas v. Alabama, supra; Pointer v. Texas, supra; Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Bridges v. Wixon, 326 U.S. 135, 65 S.Ct. 1443, 89 L.Ed. 2103 (1945); Salinger v. United States, 272 U.S. 542, 47 S.Ct. 173, 71 L.Ed. 398 (1926); Dowdell v. United States, 221 U.S. 325, 31 S.Ct. 590, 55 L.Ed. 753 (1911); Motes v. United States, 178 U.S. 458, 20 S.Ct. 993, 44 L.Ed. 1150 (1900); Kirby v. United States, 174 U.S. 47, 19 S.Ct. 574, 43 L.Ed. 890 (1899); Reynolds *318v. United States, 98 U.S. 145, 25 L.Ed. 244 (1879).

It is true that the Supreme Court has affirmed convictions in two cases cited in the principal opinion, where out-of-court declarations of witnesses, inculpating the accused, were admitted at trials. In California v. Green, supra, the Court affirmed Green’s conviction, based in part upon the prosecutor’s use, over Green’s objection, of a witness’ preliminary-hearing testimony to “refresh” his memory while testifying for the state during Green’s trial for the sale of marihuana. The witness had testified at the preliminary hearing that he had obtained marihuana from the backyard of Green’s parents’ home and had given the money from its sale to Green. At that preliminary hearing, Green’s attorney (the same lawyer who represented Green at his trial), fully cross-examined the witness. In accordance with a California statute,21 the trial judge permitted the prosecutor to utilize the preliminary-hearing transcript by reading certain portions of the witness’ preliminary hearing testimony in the presence of the jury, causing the witness to admit that, at the preliminary hearing, he did in fact inculpate Green as the transcript of that hearing confirmed. The Supreme Court found no violation of Green’s right of confrontation because the witness did in fact testify at Green’s trial and was subject to full cross-examination by Green’s attorney. The Court specifically concluded “that the Confrontation Clause is not violated by admitting a declarant’s out-of-court statements, as long as the declarant is testifying as a witness and subject to full and effective cross-examination.” Id. 399 U.S. at 158, 90 S.Ct. at 1935. And in Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970), the Court found no denial of Evans’ right of cross-examination where a Georgia trial judge, in obedience to Georgia’s co-conspirator exception to the rule against hearsay evidence, permitted a witness to testify concerning an incriminating reference to Evans made to the witness by a co-conspirator of Evans while the co-conspirator and the witness were prison cellmates. The co-conspirator, Williams, was one of several accomplices of Evans during the murders of three Georgia policemen. Williams made the out-of-court statement to the witness under circumstances which the trial court concluded to be in furtherance of the conspiracy. Thus, the statement was admissible under Georgia’s co-conspirator rule. Mr. Justice Stewart noted that 20 witnesses testified for the prosecution and that Evans’ attorney was provided full opportunity to cross-examine each of them, including one of Evans’ co-defendants, Truett, who testified in detail concerning the killing of the three policemen. The witness’ testimony as to the out-of-court statement by Williams, the co-conspirator, was, in the Court’s view, of only “peripheral significance at most, [and] was admitted in evidence under a co-conspirator exception to the hearsay rule long established under state statutory law.” Id. at 87, 91 S.Ct. at 219. The Court concluded that application of the Georgia statute in the circumstances of that case did not violate the Constitution. The witness’ testimony was not “crucial” or “devastating” evidence concerning Evans’ participation in the murders which, the Court observed, had been “abundantly established by Truett’s testimony and by Williams’ prior conviction.” Id. at 88, 91 S.Ct. at 219.

Thus, in both cases relied upon by the majority, the Supreme Court upheld the admission of evidence in state prosecutions, pursuant to state statutes, which, under the peculiar circumstances of each case, were held not to violate the right of confrontation. Neither case is similar to this case. Moreover, in each ease, the Court reiterated *319the time-honored concerns of the Sixth Amendment. In California v. Green, supra, 399 U.S. at 158, 90 S.Ct. at 1935, Mr. Justice White found “good reason to conclude that the Confrontation Clause is not violated by admitting a declarant’s out-of-court statements,” as was done at Green’s trial pursuant to the California Evidence Code, so long as the declarant is testifying as a witness and subject to full and effective cross-examination. Significantly, he noted that the conclusion he reached was supported by comparing the purposes of confrontation with the alleged dangers of admitting an out-of-court statement.

Confrontation: (1) insures that the witness will give his statements under oath — thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; (2) forces the witness to submit to cross-examination, “the greatest legal engine ever invented for the discovery of truth”; (3) permits the jury that is to decide the defendant’s fate to observe the demeanor of the witness in making his statement, thus aiding the jury in assessing his credibility.

Id. The Court found that the appearance of the declarant (Porter) on the witness stand, provided Green the opportunity to test the out-of-court statement against the above-stated concerns of the Sixth Amendment’s right of confrontation. And in Dutton v. Evans, supra, the Court found no violation of the right of confrontation under the peculiar circumstances of that case in view of the fact that the case did not involve evidence in any sense “crucial” or “devastating.” Moreover, the Court observed that the witness was vigorously and effectively cross-examined and that the testimony, in any event, was of peripheral significance at most and was admitted under Georgia’s co-conspirator exception to the hearsay rule. Said the Court, “The Georgia statute can obviously have many applications consistent with the Confrontation Clause, and we conclude that its application in the circumstances of this case did not violate the Constitution.” 400 U.S. at 87-88, 91 S.Ct. at 219. But neither case supports the admission of Perdue’s statement in the instant case. The majority’s reliance upon those cases is, therefore, misplaced. No statute or rule permitted the admission of Perdue’s statement. Moreover, admission of the statement was prohibited by the provisions of the Manual for Courts-Martial above discussed, and by the Sixth Amendment to the Constitution of the United States.

For the reasons set forth above, I would reverse the decision of the Court of Military Review, and would permit a rehearing if the appropriate authority deemed it practicable.

. Tnere are few subjects on which pronouncements by the Supreme Court have been more clear and unambiguous. See the discussion infra in Part III. Indeed, only a short time ago, the Supreme Court issued its opinion in Parker v. Randolph,-U.S. -, 99 S.Ct. 2132, 60 L.Ed.2d 713 (1979), in which it held that the admission in a joint trial of several defendants of their several interlocking confessions, each implicating the other, did not violate the Sixth Amendment. But the Court distinguished the Parker case’s facts from those of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Said the Court:

When, as in Bruton, the confessing codefendant has chosen not to take the stand and the implicated defendant has made no extrajudicial admission of guilt, limiting instructions cannot be accepted as adequate to safeguard the defendant’s rights under the Confrontation Clause.

99 S.Ct. at 2140.

. McConnico was convicted of the offense of being an assessory after the fact, in violation of Article 78, Uniform Code of Military Justice, 10 U.S.C. § 878, which provides:

Any person subject to this chapter who, knowing that an offense punishable by this chapter has been committed, receives, comforts, or assists the offender in order to hinder or prevent his apprehension, trial, or punishment shall be punished as a court-martial may direct.

. See the discussion in Part I. It is true that witnesses for the Government placed McConnico at the scene of the altercation and identified McConnico’s automobile as the vehicle in which Perdue and an unidentified person drove away from the scene of the shooting. However, this testimony, added to other testimony of record that Perdue and McConnico were friends from the same hometown and that Per-due had possession of McConnico’s automobile earlier during the day on which the shooting occurred, could support a belief that Perdue drove the automobile away from the scene of the shooting. Even considering a finding that the unidentified person was McConnico, that would not constitute proof beyond a reasonable doubt that McConnico aided or assisted Perdue “in order to hinder or prevent his apprehension, trial or punishment.” This circumstance could just as easily indicate that McConnico became terror stricken when Perdue shot the other serviceman and ran to his own automobile to leave the scene, lest he be accused of the commission of the offense. See United States v. Staten, 189 U.S.App.D.C. 100, 581 F.2d 878 (1978); Bailey v. United States, 135 U.S.App.D.C. 95, 416 F.2d 1110 (1969).

The principal opinion states that the record contains evidence, absent Perdue’s statement, *312which supports McConnico’s conviction. However, no mention is made of that evidence and there is good reason my colleagues do not refer to the supporting evidence, for it is nonexistent in the record. I have examined the record and have not found any direct evidence to support the finding of guilty absent Perdue’s statement. Moreover, two items of circumstantial evidence do not constitute an unbroken chain which points unerringly to the guilt of McConnico. See United States v. Jackson, 7 U.S.C.M.A. 67, 21 C.M.R. 193 (1956) (Quinn, C. J., dissenting). Additionally, the principal opinion finds solace in the fact that we did not grant review on the issue of the sufficiency of the evidence. 3 M.J. 486 (1977). Thus, by decree, the majority renders the absence of supporting evidence a non-issue. That is an amazing observation to me and will be to anyone willing to read the record and canvass the evidence. Oftimes the cursory review of trial records within the statutory period of 30 days precludes the in-depth consideration which we are able to give after review has been granted. My own review of the record now reveals the absence of supporting evidence, absent Perdue’s statement. This Court can and should grant relief where the absence of evidence to support a finding of guilty is manifest, as is the case here.

. Para. 139a, Manual for Courts-Martial, United States, 1969 (Revised edition), provides:

A statement which is offered in evidence to prove the truth of the matters stated therein, but which was not made by the author when a witness before the court at the hearing in which it is so offered, is hearsay. The word “statement” means not only an oral or written expression but also non-verbal conduct of a person intended by him as a substitute for words in expressing the matter stated. Hearsay may not be recited or otherwise introduced in evidence, and it does not become competent evidence by reason of a mere failure to object to its reception in evidence. This rule simply means that a fact cannot be proved by showing that someone stated it was a fact. The basis of the rule is the fundamental principle, which is subject to certain well-established exceptions, that in a criminal prosecution the testimony of the witnesses shall be taken before the court, so that at the time they give the testimony offered in evidence they will be sworn and will be subject to cross-examination, the scrutiny of the court, and confrontation by the accused. Hearsay as defined above includes the testimony of a witness given at the hearing that on another occasion he made a certain statement, if that statement is offered to prove the truth of the matters stated and has not been adopted by the witness as a part of his testimony at the hearing.
The fact that a given statement was made may itself be relevant. If this is so, the making of the statement may be shown by any competent evidence, not for the purpose of proving the truth of what was stated but for the purpose of proving the fact that it was stated.

. Para. 140a(6), Manual, supra, states in pertinent part:

A confession or admission not made as testimony in the trial is admissible for the purpose of proving the truth of the matters stated in the confession or admission only when the person who made it is an accused in the case, and it is then admissible for that purpose only with respect to, and against, the accused who made it.

. U.S.Const. amend. VI, states:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

. The military judge read the statement several times and participated in a colloquy with the attorneys during which he referred to the language which would not be considered. The record reflects the following:

MJ All right. Now, this part in here, you’re not concerning the last sentence to the first paragraph on the first page where it reads: “I just hopped in and told him to take me to the barracks, and I just went into the barracks and went to sleep.” You’re not offering that?
TC No, sir, we’re not, and we’re also not offering the previous sentence, “Everybody started running and McConnico ran to his car.” We’re not offering that either.
MJ All right. In other words, really what you’re offering then is just everything in the first paragraph above that, in substance, right? In other words, the first paragraph beginning with the statement where it says the last sentence — “I know one bullet hit the dude that was rushing me, the other hit another dude; the third one, it didn’t hit no one.” That’s just it; you’re not offering anything else?
TC Your Honor, I’m somewhat confused. Would you start with the first sentence that you perceive?
MJ I said the beginning of the statement on page one, there’s a statement there consisting of several sentences. The last sentence of that statement reads before the questions was asked, “Where did you get the gun?” The last sentence says, “I just hopped in and told him to take me to the barracks and just went into the barracks and went to sleep,” — you’re not offering that at all?
TC No, I’m not.
MJ So I will not consider that. You also said you were not offering the one preceding that — “Everybody started running and McConnico ran to his car.” — you’re not offering that?
TC That is correct.
MJ But you’re offering the rest of it above that?
TC Yes, Your Honor.
MJ All right, the rest of the statement won’t be considered then; it will be disregarded. In other words, you’re merely offering the offense of assault with intent to commit murder, not having anything to do with leaving the scene or why or possible self-defense, or anything of that nature?
TC Absolutely.
Of course, trial judges are presumed to have trained and disciplined minds which enable them to distinguish and discard from their minds inadmissible evidence. However, for a judge serving as the trier of the facts to review and discuss the evidence which he has agreed to exclude and which evidence is the single most damaging evidence to the accused, brings to the fore the admonition made by the Court in United States v. Walker, 154 U.S.App.D.C. 6, 8, 473 F.2d 136, 138 (1972): “The disciplined judicial mind should not be subjected to any unnecessary strain; even the most austere intellect has a subconscious.” See also Bruton v. United States, supra.

. See n. 3, supra.

. To convict, the military judge was required to find beyond a reasonable doubt that McConnico (1) had guilty knowledge that Perdue committed an offense punishable under the Code and thereafter that he (2) received, comforted or assisted Perdue (3) in order to hinder or prevent his (Perdue’s) apprehension, trial or punishment. See Article 78, UCMJ. See also Bailey v. United States, supra.

. See n. 4, supra.

. Id.

. Id.

. Id. (emphasis added).

. See n. 9, supra.

. See n. 7, supra. See also Bruton v. United States, supra.

. See n. 5, supra.

. But see n. 14, supra.

. Id.

. See n. 6, supra.

. Article 36(a), UCMJ, 10 U.S.C. § 836(a), provides:

The procedure, including modes of proof, in cases before courts-martial . and other military tribunals may be prescribed by the President by regulations which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts, but which may not be contrary to or inconsistent with this chapter.

Pursuant to Article 36(a), the President has promulgated the provisions of the Manual for Courts-Martial which contain the provisions above enumerated at notes 4 & 5, which I deem applicable to the admissibility of Perdue’s statement. Where, as here, the Manual contains rules concerning the admission of evidence, the Manual is the sole authority concerning the admissibility of evidence in courts-martial. The Federal Rules of Evidence are not at this time applicable to courts-martial. See Fed.R.Evid. 1101(a). Thus, the majority’s reliance upon Fed.R.Evid. 804(b)(3) is impermissible. It is true that we referred to Fed.R.Evid. *317804(b)(3) in United States v. Johnson, 3 M.J. 143 (C.M.A.1977), in holding that the trial judge erred in refusing to admit Tanner’s incriminating statement at Johnson’s trial. But Johnson himself offered Tanner’s statement. Moreover, our holding in Johnson was predicated principally upon Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), and cognate cases which hold that as a matter of due process, a defendant has the right to defend against the state’s accusations and that Johnson could, therefore, utilize Tanner’s confession as defense evidence notwithstanding a Mississippi rule of evidence to the contrary.

. Cal.Evid.Code § 1235: “Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770.” This latter section “requires that the witness be given an opportunity to explain or deny the prior statement at some point in the trial. See Cal.Evid.Code § 770 (1966); People v. Johnson, 68 Cal.2d 646, 650 n. 2, 68 Cal.Rptr. 599, [602 n. 2,] 441 P.2d 111, 114 n. 2 (1968), cert. denied, 393 U.S. 1051, 89 S.Ct. 679, 21 L.Ed.2d 693 (1969).” 399 U.S. 149, 150 n. 1, 90 S.Ct. 1930, 1931, 26 L.Ed.2d 489 (1970).