United States v. Kindle

Opinion

CRAWFORD, Judge:

Contrary to his pleas at a general court-martial at Fort Riley, Kansas, appellant was found not guilty of unpremeditated murder but guilty of the lesser-included offense of manslaughter, in violation of Article 119, Uniform Code of Military Justice, 10 USC § 919. Appellant was sentenced by officer and enlisted members to a dishonorable discharge, 5 years’ confinement, partial forfeitures, and reduction to the lowest enlisted grade. In response to a clemency petition, the convening authority reduced the forfeitures but otherwise approved the sentence. The Court of Criminal Appeals affirmed the findings and sentence in an unpublished opinion dated November 24, 1994. We granted review on the following issue:

WHETHER THE MILITARY JUDGE ERRED BY FAILING TO ADMIT THE HEARSAY STATEMENTS OF MRS. SUTTON UNDER THE RESIDUAL HEARSAY EXCEPTION, M.R.E. 803(24), WHERE THE STATEMENTS POSSESSED THE PARTICULARIZED GUARANTEES OF TRUSTWORTHINESS AND THE ADEQUATE INDICIA OF RELIABILITY REQUIRED FOR ADMISSIBILITY.

FACTS

After an argument in a local restaurant, appellant left in his vehicle and was followed by Mr. Miller, the victim, for approximately 6 miles when both stopped. An argument ensued and appellant shot Mr. Miller numerous times.

To support his contention that he had shot Mr. Miller in self-defense, appellant sought to introduce a statement of Mrs. Miller through Mrs. Joanna Sutton. Mrs. Sutton was the foster-care mother who had taken care of Mrs. Miller’s children after the death of her husband. Mrs. Sutton alleged that Mrs. Miller, who was present at the time of the altercation, said that her husband was armed with a tire iron. Mrs. Miller denied making the statement to Mrs. Sutton. Mrs. Sutton was unclear about what exactly she heard. When Mrs. Sutton was asked for details concerning the shooting, she said, “All I know is they met at McDougals [the restaurant].” When asked what happened before the car stopped, she testified, “I guess” they [the Miller group] flashed their lights and tried to make people get off the road if they were in their way. When questioned for details about what happened when the car stopped, she testified, “I wish I would have listened to her a little more closely.” She did not know how appellant and the victim were positioned or remember anything about the crowbar. She “guessed” they exchanged words but was not sure “what finally happened.” She did not record or take notes about the conversation. In effect, it went “in one ear and out the other.” She was “interpreting” but not listening to what was said because she was more concerned with the care of the children and the fact that her husband was called a name by Mr. Miller. Again and again she repeated she did not know what happened or what was said. Appellant testified that the victim had a gun rather than a tire iron.

The judge made the following findings of fact:

1. Declarant, Mrs. Miller, was intoxicated during the viewing period. Her ability to accurately perceive and recount what transpired is doubtful.

2. Declarant was rambling at the time of statement to Mrs. Sutton.

3. Mrs. Sutton was not listening carefully to what Declarant was saying.

4. Mrs. Sutton readily inserted what she perceived and what she believed the Declarant saw rather than relating what the Declarant said.

5. Mrs. Sutton is biased against Declarant and sought on numerous occasions to cast the Declarant as an unfit mother.

6. Mrs. Sutton’s testimony is viewed as recounting the ramblings of an alcoholic’s memory of an event viewed while Declarant was intoxicated, remembered by a biased witness who readily substitutes her perceptions of what she believes the witness saw for what the witness said.

DISCUSSION

Unless the judge’s findings are clearly erroneous, they should be sustained. United States v. Burris, 21 MJ 140, 144 (CMA 1985). Our standard of review as to admissibility of Mrs. Miller’s out-of-court statement is whether the judge abused his discretion. United States v. Grant, 42 MJ 340 (1995); United States v. Morgan, 40 MJ 405 (CMA 1994); United States v. McGrath, 39 MJ 158 (CMA 1994).

Pursuant to Mil.R.Evid. 103, Manual for Courts-Martial, United States (1995 ed.), the proponent has the burden of showing the “substance of the evidence.” This is not necessary when the substance is “apparent from the context within which questions were asked.” Mil.R.Evid. 103(a)(2). In this instance, the defense, the proponent of the evidence, never established what statement was made. It was clear that Mrs. Sutton was very upset with Mrs. Miller concerning the relationship with the children, their clothing, and their care. As the judge found, Mrs. Miller “was rambling” and the witness “was not listening carefully to what” Mrs. Miller “was saying.” He concluded Mrs. Sutton “readily inserted what she perceived rather than what the declarant had said.”

The defense theory at trial was that appellant was acting in self-defense. Thus, the military judge did not abuse his discretion in denying the defense motion to admit Mrs. Miller’s statement to Mrs. Sutton for the purpose of proving that the victim was armed with a tire iron and that Mrs. Miller incited her husband to attack appellant. But the judge did allow the statement to be used as a prior inconsistent statement to impeach Mrs. Miller’s credibility when she denied the statement at trial. See Mil.R.Evid. 613. The military judge also gave limiting instructions to that effect.

In essence, the defense, except for the substantive statement itself, was able to attack and impeach Mrs. Miller through an excellent cross-examination. Thereafter, this cross-examination was effectively highlighted in argument. Accordingly, the declarant’s testimony, together with the testimony of appellant effectively overcame any adverse impact from the judge’s ruling that is in question here. Thus, assuming the military judge erred, we hold that the error was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824,17 L.Ed.2d 705 (1967).

The decision of the United States Army Court of Criminal Appeals is affirmed.