United States v. Hughes

Judge EFFRON

delivered the opinion of the Court.

A general court-martial composed of officer members convicted appellant, contrary to his pleas, of 2 specifications of indecent acts with a child, in violation of Article 134, Uniform Code of Military Justice, 10 USC § 934. He was sentenced to a dishonorable discharge, confinement for 8 years, total forfeitures, and reduction to the lowest enlisted grade. The convening authority approved these results.

The Court of Criminal Appeals held that the military judge had erroneously admitted certain hearsay statements. After concluding that the errors affected the sentence but not the findings, the court reassessed the sentence. It reduced the period of confinement to 5 years but otherwise affirmed the sentence approved by the convening authority. 48 MJ 700, 724 (1998).

On appellant’s petition, we granted review of the following issues:

I. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED IN FINDING A CHILD COMPLAINANT COMPETENT TO TESTIFY TRUTHFULLY DESPITE OVERWHELMING EVIDENCE TO THE CONTRARY, AND AS SUCH, VIOLATED APPELLANT’S SIXTH AMENDMENT RIGHT TO CONFRONTATION WHEN THE CHILD’S PRETRIAL STATEMENTS WERE ADMITTED UNDER THE RESIDUAL HEARSAY RULE AFTER THE MILITARY JUDGE FOUND THE CHILD UNAVAILABLE TO TESTIFY.

II. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED IN HOLDING THAT THE ERRONEOUS ADMISSION OF RESIDUAL HEARSAY AND UNCHARGED MISCONDUCT EVIDENCE HAD NO PREJUDICIAL IMPACT ON THE FINDINGS OF GUILT.

III. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED IN HOLDING THAT CERTAIN PRETRIAL STATEMENTS OF AN UNAVAILABLE WITNESS WERE ADMISSIBLE UNDER THE RESIDUAL HEARSAY RULE.

For the reasons set forth below, we affirm the lower court’s decision.

I. ISSUE I: CONFRONTATION

A Background

The Sixth Amendment provides that an accused has the right “to be confronted with the witnesses against him.” See United States v. Jacoby, 11 USCMA 428, 29 CMR 244 (1960). The Sixth Amendment does not preclude admission into evidence of an out-of-court statement by an unavailable witness if the statement either falls within a firmly rooted hearsay exception or has “particularized guarantees of trustworthiness.” Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). See Idaho v. Wright, 497 U.S. 805,110 S.Ct. 3139, 111 L.Ed.2d 638 (1990); Mil.R.Evid. 804(b)(5), Manual for Courts-Martial, United States (1998 ed.).

In evaluating whether an out-of-court statement of an unavailable witness is sufficiently trustworthy, a military judge may consider only those circumstances “that surround the making of the statement and that render the declarant particularly worthy of belief.” United States v. Pollard, 38 MJ 41, 49 (CMA 1993), quoting Wright, supra at 819. See United States v. Uredo, 44 MJ 290 (1996), cert. denied 519 U.S. 1059, 117 S.Ct. 692, 136 L.Ed.2d 615 (1997). Accord United States v. Johnson, 49 MJ 467, 470 (1998). Where the statement was made by a child and concerned sexual abuse, the Supreme Court has noted that it is appropriate to consider factors such as spontaneity, consistency, “lack of motive to fabricate,” the child’s mental state, and “use of terminology unexpected of a child of similar age.” Wright, supra at 821-22, 110 S.Ct. 3139. The appropriate focus is on whether the child was “telling the truth when the statement was made.” Id. at 822,110 S.Ct. 3139.

Under Mil.R.Evid. 804, the proponent of a hearsay statement has the burden of demonstrating both the witness’ unavailability (804(b)) and the “circumstantial guarantees of trustworthiness” (804(b)(5)). A timely objection is necessary to preserve the issue for appellate review, absent prejudicial plain error. See Mil.R.Evid. 103(a)(1) and (d); Ureta, supra at 298. See generally United States v. Powell, 49 MJ 460 (1998).

At trial, appellant moved to suppress certain hearsay statements of 4-year-old MJI, one of the alleged victims. During the litigation of this motion, MJI’s mother testified that MJI had not started school and had not gone to preschool. Trial counsel asked the mother whether MJI, if called to testify, would “understand that she had to tell the truth.” She answered, “I don’t think so, no.” Trial counsel then asked the mother whether MJI would “understand what can happen if she lied,” and again she answered, “No.” MJI’s mother also testified, without objection, that MJI’s counselor believed that, “at her age and the way she handled everything else, it would do her damage to testify and that she wouldn’t be able to handle it.” According to MJI’s mother, when she made MJI available to talk with defense counsel, MJI could not talk to them because “she was scared.”

Subsequently, the following colloquy occurred between the military judge and MJI’s mother:

Q: ... if I were to tell you that it was necessary for [MJI] to come in the courtroom and testify, would you make her available to testify?

A: No.

Q: Why is that?

A: Because she’s still having bad dreams. She’s too young to handle it.

After overnight deliberation, the military judge returned the next morning and denied the motion to suppress. As a predicate for her ruling, the military judge made several findings of fact. Relevant among them for purposes of this appeal are the following:

Mrs. [I] has made ... [MJI] available to the defense counsel for interview. [MJI] did not speak with the defense counsel____ [MJI] has never attended preschool or school. She is four years old and would not understand the significance of what would happen if she lied in court. [MJI’s] counselor has told her mother that it would cause emotional harm to the child to require her to testify. Mrs. [I] would not make her available to testify if required to do so.

* i'fi *

I find that [MJI] is not available as that term is defined in Military Rule of Evidence 804(a)(6) and therefore this statement is available under residual hearsay under Military Rule of Evidence 804(b)(5).

Defense counsel did not contest MJI’s unavailability, either during litigation of the motion or in response to the military judge’s ruling.

B. Discussion

Appellant asserts that the Court of Criminal Appeals “erred in finding [MJI] competent to testify truthfully despite overwhelming evidence to the contrary.” See generally Mil.R.Evid. 601 (general rale of competence) and 603 (witness oath or affirmation required). Appellant contends that, in concluding that the child’s hearsay statements in question contained “sufficient guarantees of trustworthiness” to qualify for admission under Mil.R.Evid. 804(b)(5), “the majority opinion failed to properly account for the single most egregious aspect of the admission of [MJI]’s out-of-court statements: namely that [MJI] did not understand the difference between telling truth or lying, in general.” Final Brief at 10 (emphasis in original).

We do not agree with appellant’s view of the record or his characterization of the opinion of the Court of Criminal Appeals. Because MJI did not testify, her competence to testify as a witness was not placed at issue. In that context, neither the military judge nor the court below addressed, much less decided, MJI’s competence as a witness.

The record does not support the assertion by appellant that MJI “did not understand the difference between telling truth or lying, in general.” The military judge did not conclude that MJI could not distinguish between truth and falsity or was unable to tell the truth. Trial counsel’s questions and the military judge’s findings of fact addressed the narrower issue of whether MJI would understand and appreciate the legal consequences of not telling the truth in the courtroom if called as a witness. We agree with the court below that the military judge’s ruling reflected nothing more than the observation “that, like most four-year-olds, MJI would not understand the significance of testifying truthfully in a judicial proceeding.” We also agree with the court’s observation that “because of her tender age, [MJI] lacked the ability to appreciate the moral duty to tell the truth in the courtroom.” 48 MJ at 710.

In that context, the military judge’s ruling does not support appellant’s contention that the out-of-court statements were made by a person who did not know truth from lies. Although the military judge’s findings of fact might have been more explicit, we agree with the court below that, under the circumstances of this case, “by ruling that MJI’s statements were admissible hearsay, ‘the trial court implicitly found that [MJI] [...] was capable of receiving just impressions of the facts and of relating them truly.’ ” 48 MJ at 710 (quoting Wright, 497 U.S. at 825, 110 S.Ct. 3139).

II. ISSUES II AND III: RESIDUAL HEARSAY AND UNCHARGED MISCONDUCT

The detailed opinion of the Court of Criminal Appeals sets forth the factual context leading to the charges against appellant and carefully analyzes each of appellant’s contentions regarding admission of hearsay and evidence of uncharged misconduct, which are the subjects of Issues II and III in this appeal. We agree with the treatment of these questions by the majority below, although we find it unnecessary to determine whether MJI’s statements to .Dr. Clinton, through her mother, were admissible under the hearsay exception for statements made for purposes of medical diagnosis or treatment. See Mil.R.Evid. 803(4). As to those statements, we agree with the court below that, even if they were inadmissible, any error was harmless. 48 MJ at 711. In addition, we conclude that the cumulative impact of any error was not prejudicial in the context of appellant’s admissions and statements. See id. at 733 (Snyder, S.J., concurring in part and concurring in the result) (noting that appellant’s claim of accidental touching “is incredible and collapses under its own weight”).

III. CONCLUSION

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