IN THE CASE OF
UNITED STATES, Appellee
v.
Christopher R. GILBRIDE, Airman First Class
U.S. Air Force, Appellant
No. 01-0503
Crim. App. No. 33724
United States Court of Appeals for the Armed Forces
Argued November 27, 2001
Decided April 26, 2002
EFFRON, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., and GIERKE and BAKER, JJ., joined. SULLIVAN,
S.J., filed an opinion concurring in the result.
Counsel
For Appellant: Lieutenant Colonel Brandon A. Burnett (argued); Lieutenant
Colonel Beverly B. Knott, Lieutenant Colonel Timothy W. Murphy, and Major
Maria A. Fried (on brief); Colonel James R. Wise.
For Appellee: Captain Peter J. Camp (argued); Colonel Anthony P. Dattilo,
Major Lance B. Sigmon, and Major Cheryl D. Lewis (on brief); Major Bryan
T. Wheeler.
Military Judge: J. Jeremiah Mahoney
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Gilbride, No. 01-0503/AF
Judge EFFRON delivered the opinion of the Court.
A general court-martial composed of officer members
convicted appellant, contrary to his pleas, of aggravated
assault, in violation of Article 128, Uniform Code of Military
Justice (UCMJ), 10 USC § 928. He was sentenced to a bad-conduct
discharge, confinement for one year, total forfeitures, and
reduction to the lowest enlisted grade. The convening authority
approved the sentence but waived application of the automatic
forfeitures in favor of an allotment for appellant’s dependents.
The Air Force Court of Criminal Appeals affirmed the findings
and sentence in an unpublished opinion.
On appellant’s petition, we granted review of the following
issue:
WHETHER THE MILITARY JUDGE ABUSED HIS
DISCRETION IN DENYING THE DEFENSE REQUEST
TO INTRODUCE THE WRITTEN PORTION OF
APPELLANT'S INTERROGATION STATEMENT UNDER
THE EVIDENTIARY RULE OF COMPLETENESS.
For the reasons set forth below, we affirm.
I. BACKGROUND
The assault charge in the present case involved injuries
to appellant’s stepson, JB. The case arose when a doctor
examining JB determined that he had a severe spiral fracture
of the left femur and suspected that the injury had been
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caused by child abuse. According to the physician, appellant
told him that JB had been injured when he fell from the sofa,
and that JB later walked unimpeded. The physician suspected
child abuse because, in his view, the injury could only have
been caused by twisting the leg, and the child would not have
been capable of walking with such an injury.
Appellant, who was interviewed by agents of the Air
Force Office of Special Investigations (AFOSI) as a suspect,
waived his rights and responded to their questions. After
relating differing versions of events, appellant stated that
the injury occurred when he was trying to dress JB.
Appellant stated that because JB was squirming and
uncooperative, he grabbed JB’s leg with both hands and
twisted it to force the leg into JB’s pants. Appellant told
the agents that JB screamed in pain, so he knew that JB was
hurt, but did not know the leg was broken. Using a
demonstrative doll-like figure provided by the agents,
appellant showed the agents how he had injured the child.
After finishing the verbal questions, the agents asked
appellant to prepare a written statement. According to Agent
Carrigan, who participated in the interrogation, the request
for a written statement was a routine part of the
interrogation process. Appellant’s written statement was
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substantially similar to his verbal responses to the
interrogators, except for the following:
I’m telling the truth when I say that I didn’t mean to
hurt [JB]. I couldn’t ever imagine hurting a little
child on purpose & I truly didn’t mean to hurt him.
I’m not some psychopath child beater, I didn’t mean to
hurt him, I just wanted to get his pants put back on
him.
The entire interrogation, from the beginning of the inquiry
through completion of appellant’s written statement, spanned
approximately six hours, with no significant break between the
verbal and written statements.
At trial, Agent Carrigan, who testified as a prosecution
witness, recounted the content of appellant’s oral confession.
Trial counsel deliberately avoided questions concerning the
written statement. At the close of the direct examination, the
prosecution requested a session under Article 39(a), UCMJ, 10
USC § 839(a), where trial counsel sought to preclude any attempt
by the defense to introduce the written statement on the grounds
that it constituted inadmissible hearsay. Defense counsel urged
admission under the rule of completeness embodied in Mil. R.
Evid. 106 and 304(h)(2), Manual for Courts-Martial, United
States (2000 ed.).∗ The military judge ruled that the written
statement was not admissible under either rule, concluding that
∗
These Manual provisions are identical to the ones in effect at the time of
appellant's court-martial.
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it constituted exculpatory hearsay and that it was not needed to
complete the oral statement. The military judge indicated that
he would reconsider his decision if the written statement later
became admissible for some other purpose.
Later in the prosecution’s case, the Government presented
an expert witness, Dr. Hymel, who testified regarding the
possible causes of JB’s injuries. During cross-examination,
defense counsel inquired as to whether Dr. Hymel, in the course
of his analysis, had considered the exculpatory remarks in
appellant’s written statement. When the doctor acknowledged
that he had considered appellant’s written statement, the
military judge permitted defense counsel to introduce evidence
of appellant’s written exculpatory statement disclaiming intent
to hurt JB.
In his closing argument, defense counsel forcefully argued
lack of intent. The members acquitted appellant of
intentionally inflicting grievous bodily harm on a child under
sixteen years of age, but found him guilty of the lesser-
included offense of aggravated assault.
II. DISCUSSION
Mil. R. Evid. 304(h)(2) is a longstanding rule of
completeness pertaining to confessions introduced against an
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United States v. Gilbride, No. 01-0503/AF
accused. As we noted in United States v. Rodriguez, 56 MJ 336,
341-42 (2002), the rule
(1) applies to oral as well as written
statements; (2) governs the timing under
which applicable evidence may be introduced
by the defense; (3) permits the defense to
introduce the remainder of a statement to
the extent that the remaining matter is part
of the confession or admission or otherwise
is explanatory of or in any way relevant to
the confession or admission, even if such
remaining portions would otherwise
constitute inadmissible hearsay; and (4)
requires a case-by-case determination as to
whether a series of statements should be
treated as part of the original confession
or admission or as a separate transaction or
course of action for purposes of the rule.
See also United States v. Harvey, 8 USCMA 538, 25 CMR 42 (1957).
When an oral statement and a written confession are involved,
the issue is “whether the accused’s written statement is
separate and unrelated from the oral confession, or whether it
is part of or the product of the same transaction or course of
action.” Id. at 546, 25 CMR at 50.
We review a military judge’s evidentiary rulings for an
abuse of discretion. United States v. Ayala, 43 MJ 296 (1995).
A military judge abuses his or her discretion by making findings
of fact that are clearly erroneous or reaching conclusions of
law that are incorrect. Id. at 298.
In the present case, the AFOSI interrogating agents
promptly followed their oral questioning of appellant with a
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United States v. Gilbride, No. 01-0503/AF
request that he make a written statement as part of the routine
interrogation process. The statement, which was prepared
shortly after the verbal interrogation, covered the same subject
matter as the immediately preceding oral confession. Under
these circumstances, we conclude that the written statement was
made as part of the same transaction or course of action as the
oral statement. As a result, the military judge erred in
denying appellant’s request to introduce the exculpatory remarks
from his written statement under the rule of completeness in
Rule 304(h)(2).
We test the error to determine whether it materially
prejudiced the substantial rights of appellant under Article
59(a), UCMJ, 10 USC § 859(a). In the present case, the error
was harmless. Although the military judge initially rejected
defense counsel’s completeness argument, he subsequently
permitted the defense to introduce appellant’s exculpatory
statement during the prosecution’s case because it had been
relied upon by the Government’s expert witness, Dr. Hymel.
Also, defense counsel was able to effectively argue that
appellant did not have the requisite intent for the offense of
intentional infliction of grievous bodily harm, as demonstrated
by the fact that the members acquitted appellant on that charge,
convicting him only of the lesser-included offense of aggravated
assault.
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United States v. Gilbride, No. 01-0503/AF
This is not a case in which timing or other considerations
created circumstances in which the damage from the error in
applying the completeness doctrine was irreparable. See Beech
Aircraft Corp. v. Rainey, 488 U.S. 153, 171-72 n. 14 (1988). We
hold that, under the circumstances of this case, any prejudice
from the military judge’s erroneous exclusion of the evidence
was cured when the court-martial acquitted appellant of the
specific-intent offense.
III. CONCLUSION
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
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SULLIVAN, Senior Judge (concurring in the result):
I agree that Mil.R.Evid. 106 is not at issue in this case.
See United States v. Rodriguez, 56 MJ 336, 343 (2002) (Sullivan,
S. J., concurring in part and in the result); United States v.
Goldwire, 55 MJ 139, 147 (2001) (Sullivan, J., concurring in the
result). It applies only when a writing or recorded statement is
introduced at trial. See United States v. Ramirez-Perez, 166
F.3d 1106, 1112-13 (11th Cir. 1999). The Government in this case
only evidenced appellant’s oral admission and confessions to
police officers and, accordingly, Mil.R.Evid. 304(h)(2) is the
pertinent evidentiary rule.
Mil.R.Evid. 304(h)(2) states:
(2) Completeness. If only part of an
alleged admission or confession is
introduced against the accused, the
defense, by cross-examination or
otherwise, may introduce the remaining
portions of the statement.
Here, appellant seeks the admission of his written statement
completed and signed some three hours after his earlier oral
confessions to police. (R. 112, 122) Whether this written
statement, with its exculpatory assertion of an innocent intent,
was a “remaining portion” of his earlier oral statements was a
question for the trial judge’s discretion. Appellant’s written
statement, unlike his earlier oral admissions and confessions,
was prepared entirely by himself. In addition, the separation in
time between these statements, and the difference in form,
United States v. Gilbride, No. 01-0503/AF
suggest to me that the military judge did not abuse his
discretion in holding these were separate statements. See United
States v. Rodriguez, supra.
However, I concur with the majority that, even if error
occurred, exclusion of the statement was harmless. See Article
59(a), Uniform Code of Military Justice, 10 USC § 859(a). The
excluded written statement asserted that appellant did not intend
to harm his stepson, the alleged victim in this case. This same
statement, however, was later evidenced at this court-martial
under another evidentiary rule. Moreover, the members found
appellant guilty of an assault with a dangerous weapon and
acquitted him of the greater offense of intentionally inflicting
grievous bodily harm on the young boy. Therefore, I conclude
that the military judge's ruling did not materially prejudice
appellant.
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