United States v. McGrath

SULLIVAN, Chief Judge

(dissenting):

The granted issue in this case is:
WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANT BY ADMITTING INTO EVIDENCE APPELLANT’S 9 JUNE 1989 STATEMENT AND THE 9 JUNE 1989 AND 20 JUNE 1989 STATEMENTS PURPORTEDLY GIVEN TO AGENTS OF THE AIR FORCE OFFICE OF SPECIAL INVESTIGATIONS BY THE PUTATIVE VICTIM.
The out-of-court statements of A.M. clearly establish that appellant sexually abused her as charged and as he himself confessed prior to trial. However, this evidence was also essential corroboration for appellant’s confession, and its exclusion might also render inadmissible appellant’s confession. Mil. R. Evid. 304(g), Manual for Courts-Martial, United States, 1984. Appellant argues that the alleged victim’s pretrial statements were admitted at his trial in violation of the Confrontation Clause of the Sixth Amendment and Mil.R.Evid. 804(b)(5).

I

Constitutional Question

The majority opinion first holds: “It is true, of course, that the victim was not subjected to ‘full and effective cross-examination,’ California v. Green, 399 U.S. at 159, 90 S. Ct. 1935-36.” 39 MJ at 163. I agree. In United States v. Owens, 484 U.S. 554, 108 S.Ct. 838, 98 L.Ed.2d 951 (1988), the Supreme Court generally said:

The Confrontation Clause of the Sixth Amendment gives the accused the right “to be confronted with the witnesses against him.” This has long been read as securing an adequate opportunity to cross-examine adverse witnesses. See, e.g., Mattox v. United States, 156 U.S. 237, 242-243, 15 S.Ct. 337, 339, 39 L.Ed. 409 (1895); Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 1076, 13 L.Ed.2d 934 (1965)....

484 U.S. at 557, 108 S.Ct. at 841 (emphasis added). Here A.M. appeared at trial but refused to answer any questions about the charged offenses or her prior statements about the charged offenses. Unlike the situation of the forgetful witness in United States v. Owens, supra, A.M. cannot be said to be “a hearsay declarant [who] is present at trial and subject to unrestricted cross-examination.” Id. at 560, 108 S.Ct. at 843 (emphasis added).

Nevertheless, the majority opinion further concludes that appellant “waived cross-examination,” 39 MJ at 163, and it is this conclusion with which I must respectfully disagree. See generally Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 *170(1938). For this holding, the opinion relies on the decision of United States v. Thevis, 665 F.2d 616 (5th Cir.), cert. denied, 456 U.S. 1008, 102 S.Ct. 2300, 73 L.Ed.2d 1303 (1982). There, clear and convincing evidence was presented that the defendant murdered the very witness whose grand-jury statements the prosecution sought to introduce. The Fifth Circuit held

that a defendant who causes a witness to be unavailable for trial for the purpose of preventing that witness from testifying also waives his right to confrontation under the Zerbst standard. A defendant who undertakes this conduct realizes that the witness is no longer available and cannot be cross-examined. Hence, in such a situation the defendant has intelligently and knowingly waived his confrontation rights.

665 F.2d at 630 (emphasis added). In United States v. Hines, 23 MJ 125, 133 (CMA 1986), this Court held that it would not find such a waiver in the “absentee of] a specific factual finding that ... [the witness] was being controlled by appellant.” No such finding was reached by the judge in this case, and indeed no clear and convincing evidence was presented in this case that appellant caused the witness not to testify at this court-martial.

The majority opinion finally suggests that appellant made a tactical decision not to cross-examine A.M., and thus no Constitutional violation occurred. 39 MJ at 163. First, I note that it is clear from this record that defense counsel did not want the alleged victim to testify in this case or have her pretrial statements admitted. What defense counsel would? Nevertheless, it is not clear that defense counsel did not want to cross-examine this witness if her damaging pretrial statements were admitted. What defense counsel wouldn’t? In any event, there is case law that holds that “[t]he right to confrontation is- not” violated “if a defendant for tactical reasons chooses to forego cross-examination.” See United States v. Figueroa, 976 F.2d 1446, 1457 (1st Cir.1992). However, in appellant’s case, defense counsel declined to cross-examine A.M. before the military judge ruled that her pretrial statements were admissible and after she unequivocally stated that she would answer no questions about her prior statements. I cannot find that the Sixth Amendment was satisfied under this theory.

My rejection of the majority approach to the Constitutional issue does not dictate that appellant was per se denied his right to confrontation in this case. I note, however, that appellant did assert at trial that admission of this hearsay evidence would violate his right to confrontation under the Sixth Amendment. See generally United States v. Owens, 484 U.S. at 558-61, 108 S.Ct. at 842-43. However, the military judge, in ruling on the trustworthiness question, did consider the independent corroboration of appellant’s confession. That was Constitutional error under Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139 (1990).

II

Evidentiary Question

The majority opinion, finding no Constitutional violation, proceeds to decide that the military judge and Court of Military Review did not err in admitting this hearsay evidence under Mil.R.Evid. 804(b)(5). Although I need not reach that question, I again must respectfully disagree. Evidence corroborating the truth of matters asserted in the hearsay statements may not be considered in finding the “equivalent circumstantial guarantees of trustworthiness” required by this evidentiary rule.

My basis for this conclusion is the following language of Mil.R.Evid. 804(b)(5):

(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(1) Former testimony. Testimony given as a witness at another- hearing of the same or different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. A record of testimony given before courts-martial, *171courts of inquiry, military commissions, other military tribunals, and before proceedings pursuant to or equivalent to those required by Article 32 is admissible under this subdivision if such a record is a verbatim record. This paragraph is subject to the limitations set forth in Articles 49 and 50.
(2) Statement under belief of impending death. In a prosecution for homicide or for any offense resulting in the death of the alleged victim, a statement made by a declarant while believing that the declarant’s death was imminent, concerning the cause or circumstances of what the declarant believed to be the declarant’s impending death.
(3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far’ tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the position of the declarant would not have made the statement unless the person believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.
(4) Statement of personal or family history. (A) A statement concerning the declarant’s own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history, even though declarant had no means of acquiring personal knowledge of the matter stated; or (B) a statement concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the other’s family as to be likely to have accurate information concerning the matter declared.
(5) Other exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the military judge determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative of the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interest of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the intention to offer the statement and the particulars of it, including the name and address of the declarant.

(Emphasis added.)

Three reasons exist for my construction of Mil.R.Evid. 804(b)(5) as prohibiting consideration of independent corroborative evidence of the matter asserted in the hearsay statements. First, Idaho v. Wright, supra, holds that such corroborative evidence is not a matter relevant to the trustworthiness of a statement but rather to the lack of prejudice in its admission. 497 U.S. at 823, 110 S.Ct. at 3150-51; see United States v. Ellis, 935 F.2d 385-95 (1st Cir.1991). Second, the Supreme Court in Idaho v. Wright, supra, expressly defined “particularized guarantees of trustworthiness” in light of Fed.R.Evid. 804(b)(5) and concluded that only the “circumstances ... surrounding] the making of the statement” could be considered. 497 U.S. at 820, 110 S.Ct. at 3149. See United States v. Grooms, 978 F.2d 425, 427 (8th Cir.1992); United States v. Accetturo, 966 F.2d 631, 636 (11th Cir.1992). Finally, this Court generally constitutionalized Mil. R.Evid. 804(b)(5) in United States v. Hines, 23 MJ at 134; therefore, the holding of Idaho v. Wright, supra, constitutionally prohibiting consideration of independent corroborative evidence logically should be applicable.

Despite all of the above, I would not set aside appellant’s conviction. Even cursory review of the military judge’s findings reveals that appellant’s confession was one of many reasons that he found AM.’s pretrial *172statements were trustworthy within the meaning of Mil.R.Evid. 804(b)(5). I also note that this case was tried before the decision of the Supreme Court in Idaho v. Wright, supra, and in light of this Court’s decisions prior to Idaho v. Wright, supra, which permitted consideration of independent corroborating evidence on the trustworthiness question. Therefore, I would remand this case to the trial court for reconsideration of this issue in light of Idaho v. Wright, supra, and United States v. Greer, 33 MJ 426 (CMA 1991) .