United States v. Czachorowski , 2008 CAAF LEXIS 832 ( 2008 )

UNITED STATES, Appellee
v.
David A. CZACHOROWSKI, Lieutenant
U.S. Navy, Appellant
No. 07-0379
Crim. App. No. 200400735
United States Court of Appeals for the Armed Forces
Argued March 18, 2008
Decided July 9, 2008
STUCKY, J., delivered the opinion of the Court, in which EFFRON,
C.J., and ERDMANN, J., joined. BAKER, J., filed a separate
opinion concurring in part and in the result. RYAN, J., filed a
dissent.
Counsel
For Appellant: Frank J. Spinner, Esq. (argued); Lieutenant W.
Scott Stoebner, JAGC, USN (on brief); Lieutenant Darrin W. S.
Mackinnon, JAGC, USN.
For Appellee: Captain Roger E. Mattioli, USMC (argued);
Commander Paul C. LeBlanc, JAGC, USN (on brief).
Amicus Curiae for Appellant: Angela Desaulniers (law student)
(argued); Timothy Litka, Esq. (supervising attorney) (on brief)
-- for the Catholic University of America, Columbus School of
Law.
Military Judge: Nels Kelstrom
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Czachorowski, No. 07-0379/NA
Judge STUCKY delivered the opinion of the Court.
We granted Appellant’s petition to determine whether the
military judge abused his discretion when he admitted into
evidence the victim’s out-of-court statements accusing her
father of indecent acts over a defense objection that admission
violated Military Rule of Evidence (M.R.E.) 8071 and the Sixth
Amendment to the Constitution. We hold that, on the facts of
this case, the military judge improperly admitted the testimony
and, accordingly, reverse the decision of the United States
Navy-Marine Corps Court of Criminal Appeals.2
I.
Appellant allegedly digitally penetrated his four-year-old
daughter, AAC, on several occasions. On January 11, 2002, after
one such incident, AAC stated to her mother that “Daddy sticks
1
Pursuant to the June 1999 Amendments to the Military Rules of
Evidence, M.R.E. 803(24) and M.R.E. 804(b)(5) were combined and
promulgated as M.R.E. 807. 2 Stephen A. Saltzburg et al.,
Military Rules of Evidence Manual § 807.02[1] & n.1 (6th ed.
2006). The change did not alter the meaning or application of
the residual hearsay exception. Id. Similarly, Federal Rules
of Evidence (Fed. R. Evid.) 803(24) was consolidated with the
other residual hearsay exception, Fed. R. Evid. 804(b)(5), into
Fed. R. Evid. 807. “The text was not altered in any material
way because ‘no change in meaning was intended.’” United States
v. Brothers Constr. Co. of Ohio, 219 F.3d 300, 309 n.2 (4th Cir.
2000) (quoting Fed. R. Evid. 807 advisory committee’s note).
2
Oral argument in this case was heard at The Catholic University
of America, Columbus School of Law, Washington, D.C., as part of
the Court’s “Project Outreach.” See United States v. Mahoney,
58 M.J. 346, 347 n.1 (C.A.A.F. 2003). This practice was
developed as part of a public awareness program to demonstrate
2
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his finger in my pookie.” Appellant denied doing “anything to
her.” An argument with his wife erupted, followed by Mrs.
Czachorowski’s reaching for the phone to call her parents, Jean
and Vance Fisher, to relay the story. During this conversation,
Mrs. Fisher apparently heard AAC say, “Daddy stuck his finger in
my pookie.”
The child’s statements, as relayed to Mrs. Czachorowski and
overheard by the Fishers, formed the basis of the Government’s
case. According to trial counsel, AAC was interviewed three
times about her allegations and her “memory fell off
significantly [after] each interview” until she could not
remember the events at all. As such, the Government sought to
introduce AAC’s statements made to her mother and overheard by
her grandparents at trial as excited utterances under M.R.E.
803(2). Defense counsel objected and the military judge agreed,
finding that the event that caused the stress was too remote in
time to permit an excited utterance exception. The Government
then alternatively moved to introduce the statements under the
residual hearsay exception of M.R.E. 807, prompting the military
judge to hold as follows:
I believe this testimony is admissible under M.R.E.
807, and I’m so ruling. I believe the requirements of
the rule have been met. I’m looking at the declarant,
the hearsay declarant in this case, [AAC]. I’m
the operation of a federal court of appeals and the military
justice system.
3
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looking at her emotional state at the time, the
spontaneity of the statement, the lack of any possible
motive to fabricate, and I believe the interest of
justice and the purpose of these rules require
admissibility.
In admitting the statements under M.R.E. 807, the military
judge also held AAC unavailable to testify, stating that “[t]he
child apparently is, for whatever reason, unable to come into
this courtroom to provide testimony regarding” her accusation.
Trial counsel had previously stated that AAC did “not recall”
and “simply d[id]n’t remember,” and based on that proffer, the
military judge concluded as follows: “She doesn’t remember
it -- I have no clue why. But, in any event, she is unavailable
for that purpose.” The military judge then permitted Mrs.
Czachorowski and the Fishers to testify as to AAC’s statements.
Based, in large part, on that evidence, the military judge,
sitting as a general court-martial, convicted Appellant of one
specification of indecent acts with AAC, in violation of Article
134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934(2000). The sentence adjudged consisted of a dismissal,
confinement for three years, and forfeiture of all pay and
allowances, but the convening authority disapproved the
forfeitures. In upholding the conviction, the Court of Criminal
Appeals affirmed the sentence as approved by the convening
authority. United States v. Czachorowski, No. NMCCA 200400735
(N-M. Ct. Crim. App. Jan. 23, 2007) (unpublished).
4
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II.
Appellant argues that the military judge’s decision to
admit AAC’s hearsay statements violated M.R.E. 807 and
Appellant’s Sixth Amendment confrontation right. We review the
ruling with regard to M.R.E. 807 for an abuse of discretion.3
United States v. Dewrell, 55 M.J. 131, 137 (C.A.A.F. 2001)
(citing United States v. Acton, 38 M.J. 330, 332 (C.M.A. 1993)).
Findings of fact are affirmed unless they are clearly erroneous;
conclusions of law are reviewed de novo. United States v.
Rader, 65 M.J. 30, 32 (C.A.A.F. 2007) (citing United States v.
Flores, 64 M.J. 451 (C.A.A.F. 2007)).
We find that on the facts of this case, the Government
failed to establish that the admitted hearsay was more probative
than other reasonably available evidence, thus rendering the
military judge’s decision to admit AAC’s out-of-court statements
through Mrs. Czachorowski’s and the Fishers’ testimony an abuse
of discretion.
3
Regardless of whether the evidence at issue is testimonial in
nature, admission at trial still depends on compliance with the
rules of evidence. See Whorton v. Bockting, 127 S. Ct. 1173,
1183 (2007) (suggesting that since under “Crawford [v.
Washington, 541 U.S. 36 (2004)] . . . the Confrontation Clause
has no application to [nontestimonial] statements and therefore
permits their admission even if they lack indicia of
reliability,” the only other bar to their admission is the rules
of evidence). As such, and because we hold that admission of
AAC’s testimony violated M.R.E. 807, we need not reach
Appellant’s Sixth Amendment claim.
5
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A.
As a threshold matter, Appellant argues that the Government
failed to provide advance notice of its intention to seek
admission of AAC’s out-of-court statements under M.R.E. 807, in
violation of the notice requirement of that rule. We disagree.
M.R.E. 807 requires, in pertinent part, that
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 proponent’s intention to
offer the statement and the particulars of it,
including the name and address of the declarant.
M.R.E. 807. Trial counsel originally sought admission of this
evidence as an excited utterance under M.R.E. 803(2). The
military judge sustained a defense objection to admission under
M.R.E. 803(2) because AAC made the statement far too temporally
remote from the alleged activity. Trial counsel then sought
admission through the residual hearsay exception.
Trial counsel gave no formal notice, but defense counsel
admitted that he had known about the statement, and trial
counsel’s intent to seek admission of those statements, since
the case’s inception. The military judge held that Appellant
had a fair opportunity to prepare to confront the statement in
advance of trial and admitted the evidence.
There exists a split among the Article III courts of
appeals on the nature of notice required. Some circuits look to
6
United States v. Czachorowski, No. 07-0379/NA
the legislative history of M.R.E. 807’s federal analog to argue
that formal, pretrial notice is a prerequisite for admission
under the residual hearsay exception.4 Other circuits have
adopted a more flexible approach.5 We are persuaded by the
latter view. A formal notice requirement –- that is, oral or
written notification of the intended use of M.R.E. 807 -- is
clearly absent from the rule. The rule does require the
proponent to give (1) advance notice (2) of the statements (3)
to allow the adverse party to challenge the statements’
4
See, e.g., United States v. Ruffin, 575 F.2d 346, 357-58 (2d
Cir. 1978) (requiring formal, pretrial advance notice based on
evidence of the intent of Congress, where the lead sponsor of
the legislation stated: “‘We met with opposition [on the
requirement of advance notice.] There were amendments offered
that would let them do this right on into trial. But we thought
the requirement should stop prior to trial and they would have
to give notice before trial. That is how we sought to protect
them.’” (quoting 120 Cong. Rec. H12256 (daily ed. Dec. 18, 1974)
(remarks of Rep. William L. Hungate, Chairman, H. Subcomm. on
Criminal Justice) (interpolation in Ruffin))).
5
See, e.g., United States v. Bachsian, 4 F.3d 796, 799 (9th Cir.
1993) (excusing the failure of the prosecution to provide notice
before trial as accused had been informed that the government
intended to introduce the documents into evidence on a different
ground, the accused was provided with copies of the documents at
least two months prior to trial and did not claim he was unable
to prepare, request a continuance, and did not object to lack of
notice); United States v. Bailey, 581 F.2d 341, 348 (3d Cir.
1978) (adopting a more flexible approach for notice during trial
based on other courts of appeals’ decisions that have held that
“the purpose of the advance notice provision of the rule is
satisfied even though notice is given after the trial begins, as
long as there is sufficient opportunity provided for the adverse
party to prepare for and contest the admission of the evidence
offered pursuant to the rule”); United States v. Leslie, 542
F.2d 285, 291 (5th Cir. 1976) (same); 5 Jack B. Weinstein &
7
United States v. Czachorowski, No. 07-0379/NA
admission and substance. Any advance notice requirement, then,
applies to the statements, not to the means by which the
proponent intends to seek admission of those statements. Trial
defense counsel admitted that he knew of AAC’s statements and
trial counsel’s intention to admit them into evidence long
before trial. That satisfies the notice requirement of M.R.E.
807.
B.
Having found no abuse of discretion in the military judge’s
finding that M.R.E. 807’s notice requirement had been met, we
turn now to Appellant’s substantive claim that the admitted
statements violated M.R.E. 807. The residual hearsay exception
embraced by M.R.E. 807 permits, in rare circumstances,6 the
introduction of hearsay testimony otherwise not covered by
M.R.E. 803 or M.R.E. 804 where, given “equivalent circumstantial
guarantees of trustworthiness,” the military judge
determines that (A) the statement is offered as
evidence of a material fact; (B) the statement is more
probative on the point for which it is offered than
other evidence which the proponent can procure through
reasonable efforts; and (C) the general purposes of
Margaret A. Berger, Weinstein’s Federal Evidence § 807.04[2], at
807-37 (Joseph M. McLaughlin ed., 2d ed. 2008).
6
According to the legislative history of Fed. R. Evid. 803(24),
which corresponded to M.R.E. 803(24), the residual exception was
to “be used very rarely and only in exceptional circumstances.”
S. Rep. No. 1277 (1974), as reprinted in 1974 U.S.C.C.A.N. 7051,
7066; United States v. Guaglione, 27 M.J. 268, 274 (C.M.A.
1988).
8
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these rules and the interests of justice will best be
served by admission of the statement into evidence.
M.R.E. 807. Clause B balances the probativeness of available
evidence, and requires the proponent of the evidence to show he
could not obtain more probative evidence despite “reasonable
efforts.” Failure to meet that burden renders the evidence
inadmissible.
In United States v. Kim, 595 F.2d 755 (D.C. Cir. 1979), for
example, the defendant faced charges of conspiracy to defraud
the United States by bribing members of Congress with money
received from the Korean Central Intelligence Agency (KCIA).
Id. at 757. He sought to rebut evidence suggesting that his
severe financial difficulties were resolved the very day he
received the bribery monies from a KCIA agent through a telex
from a Korean bank. This document showed significant
alternative sources of income and fund withdrawals at times
unrelated to the bribery scheme. Id. at 759. The trial court
rejected the telex, offered under the residual hearsay exception
of Fed. R. Evid. 803(24). Id. at 757. While the telex may have
been the most probative evidence available as to the dates and
amounts of prior bank deposits and withdrawals, the defense
offered it as evidence of substantial alternative sources to
account for the defendant’s expenditures. Id. at 766. What is
more, the defendant had failed to show his inability to produce
9
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“actual business records reflecting the profitable business
activities which produced that income, or testimony from
business partners, employees and accountants as to the actual
income source in some active business.” Id.Similarly, in DeMars v. Equitable Life Assurance Society,
610 F.2d 55 (1st Cir. 1979), the trial court, pursuant to Fed.
R. Evid. 804(b)(5), permitted the plaintiff’s counsel to read to
the jury a portion of a letter written by a deceased physician
containing the physician’s theory on the cause of death of the
insured. Id. at 59. The First Circuit found admission of that
evidence in error because the plaintiff had failed to show that
more probative evidence was unavailable. Id. at 60-61. After
all, since the physician’s opinion “was based solely on his
examination of the decedent’s medical and hospital records, the
death certificate and the report of the postmortem
examination[,] any other physician could have been obtained to
render an opinion on fairly short notice.” Id. at 61.
Often, then, because the direct testimony of the hearsay
declarant ordinarily would be judged the most probative
evidence, a showing that the out-of-court declarant is
unavailable to testify would be helpful to fulfill the
requirements of Rule 807(B). E.g., United States v. W. B., 452
F.3d 1002, 1005-06 (8th Cir. 2006); Saltzburg, supra note 1,
10
United States v. Czachorowski, No. 07-0379/NA
§ 807.02[7] (the language “signals that the declarant’s
unavailability, while not specifically required by this
provision, is still a consideration in determining its use”).
This case, then, asks us to consider whether a trial
counsel’s bare assertion of a declarant’s unavailability
satisfies the Government’s burden to prove the unavailability of
other direct and more probative evidence on point. We hold that
it does not.
We are aware of no case where such an uncorroborated
assertion satisfies the proponent’s Rule 807(B) burden. What is
more, courts have found the residual hearsay exception
inapplicable when the evidence is not unreasonably difficult to
obtain directly from an available declarant. United States v.
Scrima, 819 F.2d 996, 1001 (11th Cir. 1987) (holding Fed. R.
Evid. 803(24) not applicable when the proponent of the evidence
made no showing that reasonable efforts could not have produced
a witness with direct, personal knowledge); United States v.
Taylor, 792 F.2d 1019, 1027 (11th Cir. 1986) (finding error in
the trial court’s admission of hearsay evidence when the
declarant could have been questioned about her own statements);
Elizarraras v. Bank of El Paso, 631 F.2d 366, 374 n.24 (5th Cir.
1980) (stating that Fed. R. Evid. 803(24) exception is generally
not applicable where the declarant is available to testify).
11
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A trial judge, then, cannot take it for granted that a
declarant of any age is unavailable or forgetful, and then admit
hearsay testimony under the residual exception instead. Absent
personal observation or a hearing, some specific evidence of
reasonable efforts to obtain other probative evidence is still
required under M.R.E. 807(B). It was insufficient, for example,
for prosecutors to justify assault victims’ unavailability based
solely on counsel’s assertion to the court that the “victims
were tourists scheduled to depart” the jurisdiction. Government
of the Canal Zone v. Pinto, 590 F.2d 1344, 1352 (5th Cir. 1979).
However, that is exactly the type of assertion on which the
military judge relied in this case. Trial counsel stated,
without evidence of record, that AAC had lost all memory of the
assaults over the previous year. This record also indicates
that the military judge neither conducted an individual
assessment of AAC’s unavailability in this case nor sought
additional corroboration, choosing instead to take AAC’s
unavailability for granted. The military judge found that AAC
“either doesn’t recall or has no independent recollection or
other basis for saying that she uttered th[e accusatory] words,”
adding that “[t]he child apparently is, for whatever reason,
unable to come into this courtroom to provide testimony
regarding this. She doesn’t remember it –- I have no clue why.”
By ignoring the Government’s burden to prove that reasonable
12
United States v. Czachorowski, No. 07-0379/NA
efforts could not be made to bring AAC to testify herself, the
military judge erred when he apparently relied on trial
counsel’s assertion that AAC’s “memory fell off significantly”
and that she “simply doesn’t remember,” and found AAC
unavailable without a basis for that finding other than the
assertion.
Nor did trial defense counsel concede the issue of
unavailability. Like the military judge, defense counsel was
simply confronted with trial counsel’s bare assertion that AAC
was unavailable without any explanation. Defense counsel stated
that “we’ve been advised in the pretrial conference, [that] the
child will not testify” and that he did not know, “beyond what
was said [at trial], why the child will not come in.” Rather
than conceding AAC’s unavailability, defense counsel thus
highlighted the meager foundation upon which the military
judge’s determination stood.
Since the Government failed to establish that it could not
procure more probative testimony through other reasonable means,
as required by M.R.E. 807(B), admission of AAC’s out-of-court
statements was error that materially prejudiced Appellant’s
substantial rights under Article 59(a), UCMJ, 10 U.S.C. § 859(a)
(2000).
13
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III.
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is reversed. The findings and sentence are
set aside. The record is returned to the Judge Advocate General
of the Navy. A rehearing is authorized.
14
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BAKER, Judge (concurring in part and in the result):
I agree with the result in this case; however, I write
separately to distinguish my views from those of the majority in
two respects. First, the requirement for notice is more nuanced
than as presented in the majority opinion. In my view, Military
Rule of Evidence (M.R.E.) 807 requires notice that a proponent
intends to offer evidence under the residual hearsay exception,
not simply that the proponent intends to offer the hearsay
evidence in some manner. Second, in light of its conclusions
regarding notice, the Court’s opinion does not fully address the
colloquy between the military judge and defense counsel on the
issue of the unavailability of the child witness. My reading of
the record suggests that the military judge may have assumed
that he obtained a concession from defense counsel.
I.
The majority concludes that the notice requirement of
M.R.E. 807 is satisfied as long as the proponent notifies the
other party that it intends to offer the hearsay statements.
However, the text of the rule makes it clear that the notice
contemplated is for hearsay “admitted under this exception,” and
not just under a hearsay exception, expressly noting that:
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 proponent’s intention to offer the statement
United States v. Czachorowski, No. 07-0379/NA
and the particulars of it, including the name and address
of the declarant.
M.R.E. 807 (emphasis added).
Moreover, if no more than generalized notice were required
an adverse party would not have a “fair opportunity to prepare
to meet it,” because he would not have prepared to address the
three threshold requirements found within the rule.
A contrary reading is inconsistent with military practice.
The military system has long been one of open discovery. See
Article 46, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §
846 (2000); Rule for Courts-Martial (R.C.M.) 701. Thus, in most
cases, excluding rebuttal evidence, the parties will obviously
have been put on notice that hearsay evidence is likely to be
offered. So, it would make little sense to have a rule that
requires notice of something of which a party is likely to
already be aware. Therefore, given the myriad hearsay
exceptions, the rule more logically requires notice of intent to
offer the statements under the residual exception. This would
be consistent with how most other federal circuits view the
requirement. See Kirk v. Raymark Indus., Inc., 61 F.3d 147, 167
(3d Cir. 1995); Wilco Kuwait (Trading) S.A.K. v. DeSavary, 843
F.2d 618, 628 (1st Cir. 1988); United States v. Brown, 770 F.2d
768, 771 (9th Cir. 1985); United States v. Atkins, 618 F.2d 366,
372 (5th Cir. 1980); United States v. Guevara, 598 F.2d 1094,
2
United States v. Czachorowski, No. 07-0379/NA
1100 (7th Cir. 1979); United States v. Ruffin, 575 F.2d 346, 358
(2d Cir. 1978). It is also consistent with this Court’s
practical approach to the preservation of objections and the
rules of evidence generally.
The purpose of notice is to allow the parties the
opportunity to know on what basis they should be prepared to
argue the admission of evidence. As this case illustrates, this
approach makes particular sense with respect to M.R.E. 807,
which raises legal and factual predicates that are distinct from
those at issue in applying other specific hearsay exceptions.
We have implicitly accepted this reading of the notice
requirement of the residual hearsay rule in one of our own
cases. See United States v. Grant, 42 M.J. 340, 341 (C.A.A.F.
1995) (“As required by the . . . rule, [trial counsel] provided
notice of intent to offer residual hearsay.”).
Nonetheless, notwithstanding my disagreement with the Court
on the notice requirement, I would not resolve the case on this
issue. Counsel raised the notice issue and indicated he was
aware of the intent to offer the statements but was not aware
that they would be offered as residual hearsay. However, he did
not indicate that he needed more time to prepare to meet the
evidence offered under the residual theory.
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II.
The majority’s conclusion regarding notice is relevant to
whether defense counsel conceded the admissibility of the
hearsay evidence. The Court’s rendition of what happened at
trial suggests that the military judge received a proffer from
trial counsel concerning the child witness’s availability and
without more, ruled that the child was unavailable. A fuller
reading of the record suggests that the military judge was
seeking, albeit unsuccessfully, a concession from civilian
defense counsel on the availability of the child, to inform his
application of M.R.E. 807 to the hearsay evidence, which in the
context of this case might have proven determinative. The
relevant part of the record reads:
MJ: Now, I’ve just asked for a proffer from the
government. The child apparently is, for whatever
reason, unable to come into this courtroom to provide
testimony regarding this. She doesn’t remember it -–
I have no clue why. But in any event, she is
unavailable for that purpose. So that statement, if
it comes in at all, it would have to come in through
the mother. There is no other source of that
evidence, as I understand the state of the evidence to
date. Does the defense dispute that?
CDC: That there’s no other evidence?
MJ: No other evidence for -– of that statement.
That’s the evidence being offered, “Daddy put his
finger in my pookie.” Now, as I understand what the
government proffered –- you can dispute this proffer,
but as I understand what the government proffered is
if it comes in, it comes in through the mother or it
doesn’t come in at all because there’s no other source
of that information. The child either doesn’t recall
4
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it or for whatever reason cannot come in here and say,
“Daddy did this to me.”
CDC: That makes sense and, not to make matters any
more complicated than they can be, I don’t know,
beyond what was said here this morning, why the child
will not come in here and there may be -– I don’t
know, there may be a Brady issue at a later time after
you rule on this motion.
. . . .
MJ: . . . So I guess what I’m asking you, Mr.
Perillo, is do you have any reason to suggest that
there is other evidence out there on this point?
CDC: The only other --
MJ: On this point of evidence, “Daddy put his finger
in my pookie.”
CDC: If I understand your question, the only other
evidence I’m aware of is the medical testimony, such
as it is, from the nurse, the doctor and --
Shortly after defense counsel’s abbreviated response, the
military judge ruled that the hearsay statement of the child was
admissible under M.R.E. 807. If, in fact, as the majority
concludes, defense counsel had already received fair notice
under M.R.E. 807, then it would be fair to read counsel’s
statement as a concession on admissibility under M.R.E. 807.
However, since it is my view counsel did not receive the
requisite notice under M.R.E. 807, I do not believe defense
counsel conceded the availability issue or the necessity
requirement of M.R.E. 807. As a result, it became incumbent on
the proponent of this evidence, the Government, to carry its
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burden of showing that the hearsay statements were more
probative on the issue than any other evidence available to it.
Since this did not occur, the military judge admitted the
testimony as the Court concludes -- without evidence satisfying
the requirements of M.R.E. 807. Accordingly, I concur in the
result.
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RYAN, Judge (dissenting):
I agree with Judge Baker that the notice requirement of
Military Rule of Evidence (M.R.E.) 807 requires specific notice
of intent to offer a statement under the residual exception to
the hearsay rule. See Czachorowski, __ M.J. __ (1-3) (Baker,
J., concurring in part and in the result). However, I disagree
with the majority and Judge Baker’s conclusion that the military
judge abused his discretion in admitting the hearsay statement.
We review a military judge’s decision to admit evidence for
an abuse of discretion. United States v. Donaldson, 58 M.J.
477, 482 (C.A.A.F. 2003). In a decision to admit or exclude
evidence, “a military judge abuses his discretion if his
findings of fact are clearly erroneous or his conclusions of law
are incorrect.” United States v. Ayala, 43 M.J. 296, 298
(C.A.A.F. 1995); see also Donaldson, 58 M.J. at 488 (granting
military judges considerable discretion in admitting evidence as
residual hearsay); United States v. Pollard, 38 M.J. 41, 49
(C.A.A.F. 1993) (“The ruling of the military judge admitting
residual hearsay is entitled to ‘considerable discretion’ on
appellate review.”). Here the military judge correctly
delineated the legal test for the admission of residual hearsay
and his findings of fact were not clearly erroneous. He did not
abuse his discretion, let alone the “considerable discretion,”
this Court previously afforded him.
United States v. Czachorowski, 07-0379/NA
The second prong of M.R.E. 807 requires that the evidence
proffered be “more probative on the point for which it is
offered than other evidence.” M.R.E. 807(B). While I agree
with the majority that the purpose of the second prong is to
“balance[] the probativeness of available evidence,”
Czachorowski, __ M.J. at __ (9) (emphasis added), I disagree
that when the parties apparently agree there is no other
evidence, the military judge nonetheless has an independent duty
either to seek other more probative evidence or to require the
proponent to prove none exists.
After a timely hearsay objection by the defense, the
Government asserted that AAC, a five-year-old child, no longer
remembered the event and that AAC’s mother’s testimony was the
only other evidence of AAC’s original statement. When provided
a chance to rebut the Government’s assertion, defense counsel
instead conceded, at the end of the colloquy described by Judge
Baker, Czachorowski, M.J. at (4-5) (Baker, J., concurring
in part and in the result), that “the only evidence of which I’m
aware as to the alleged statement of the child would be mom.”1
1
Judge Baker suggests that despite the military judge’s
acceptance of the defense counsel’s apparent concession that AAC
was unavailable, defense counsel could not concede because he
did not have proper notice of the basis on which the evidence
was being offered. But the military judge neither abused his
discretion nor committed plain error: defense counsel was so
informed at trial and never suggested to the military judge
either that he disagreed that AAC was unavailable because she
2
United States v. Czachorowski, 07-0379/NA
Presented with no other evidence against which to balance the
probative value of the mother’s testimony, the military judge
concluded that the mother’s testimony was “more probative on the
point for which it [was] offered than any other evidence.”
M.R.E. 807(B).2 In light of the record when viewed in its
entirety, the military judge’s conclusion was plausible and
therefore not clearly erroneous. See Anderson v. City of
Bessemer City, 470 U.S. 564, 573-74 (1985) (“If the district
court’s account of the evidence is plausible in light of the
record viewed in its entirety, the court of appeals may not
reverse it even though convinced that had it been sitting as the
trier of fact, it would have weighed the evidence
differently.”).
The majority asserts that the military judge nonetheless
erred because even where the defense does not contest that the
hearsay declarant is unavailable and the defense agrees there is
no other more probative evidence, the Government still has a
burden to “prove the unavailability of other direct and more
did not remember or that he needed more time to challenge the
admissibility of the evidence as residual hearsay.
2
The military judge concluded:
That’s how I understand the state of the evidence.
So, under that rationale, then this is the only
evidence probative of that point. There is no other
evidence, and so therefore, the second part of the
test under 807 is met by the government because there
is no other evidence on this point.
3
United States v. Czachorowski, 07-0379/NA
probative evidence on point.” See Czachorowski, __ M.J. at __
(8-12). This approach appears novel. The cases cited by the
majority stand for the proposition that prong (B) of the
residual hearsay exception must be considered and satisfied, a
point of law with which I agree. But no case suggests that
M.R.E. 807(B) is not satisfied where there is no factual dispute
that the hearsay declarant does not remember the event and both
parties agree that the proffered testimony is the only probative
evidence. The majority’s contrary suggestion -– that to satisfy
M.R.E. 807(B) the military judge is still required in this
situation to make some personal observations about the hearsay
declarant, to cite specific evidence, or to hold a hearing to
establish that reasonable efforts were made to obtain other
probative evidence, Czachorowski, __ M.J. __ at (11-12) --
places a burden on the military judge not contemplated by the
rules of evidence. Just as the rules, except in instances of
plain error, put no duty on the military judge to interpose
himself between counsel and evidence that, if objected to, would
be inadmissible, see M.R.E. 103(a) (requiring parties to make
timely objections to prevent the admission of inadmissible
evidence), the military judge has no affirmative duty to worry
and challenge facts to which the parties apparently agree.
The sole issue contested by the parties with respect to the
admissibility of AAC’s hearsay statement was whether the third
4
United States v. Czachorowski, 07-0379/NA
prong of M.R.E. 807 was satisfied; residual hearsay is
admissible only if “the general purpose of [the M.R.E.] and the
interests of justice will best be served by admission of the
statement into evidence.” M.R.E. 807(C). Couched in other
terms, the statement must be highly reliable. United States v.
Wellington, 58 M.J. 420, 425 (C.A.A.F. 2003) (quoting United
States v. Giambra, 33 M.J. 331, 334 (C.M.A. 1991).3
Having established from the defense counsel’s concession
that no alternative evidence was available, the military judge
properly focused his inquiry, and the parties their arguments,
on the question whether the hearsay was sufficiently reliable.
The record reflects that, immediately after reviewing one of
this Court’s prior decisions, the military judge explicitly
addressed the factors we identified and made specific findings
relating to AAC’s mental state, the spontaneity of her
statement, the absence of suggestive questioning, and the
circumstances under which the statement was made. See, e.g.,
Donaldson, 58 M.J. at 488 (listing factors).
There is no doubt that the military judge could have
reasonably ruled in favor of excluding the hearsay on the ground
it was not sufficiently reliable, which was the actual point of
3
As the military judge stated in his formal ruling on the
defense motion, “There wasn’t a question regarding materiality,
probative value and necessity, but only the trustworthiness of
the statement, and those factors were laid out on the record.”
5
United States v. Czachorowski, 07-0379/NA
contention between the parties in this case. The mother and her
parents were the only ones who heard the child’s statement, the
marriage between the mother and Appellant was both dysfunctional
and in disarray, the mother had a history of mental illness and
dishonesty, and neither the physical evidence nor the extrinsic
evidence from those who had interviewed the child unequivocally
supported the statement. Ultimately, however, the military
judge applied the correct law; he was in the best position to
judge the credibility of the mother and her parents; and his
findings of fact, including those credibility determinations,
were not clearly erroneous. See Anderson, 470 U.S. at 574(“Where there are two permissible views of the evidence, the
factfinder’s choice between them cannot be clearly erroneous.”).
The facts of this case are troubling, but the military
judge did not abuse his discretion, and the Court of Criminal
Appeals conducted a proper legal and factual sufficiency review.
United States v. Czachorowski, No. NMCCA 200400735 (N-M. Ct.
Crim. App. Jan. 23, 2007) (unpublished).
I respectfully dissent.
6