United States v. McConnico

Opinion FLETCHER, Chief Judge: A military judge found Specialist Four Donald McConnico guilty of being an accessory after the fact, in violation of Article 78, Uniform Code of Military Justice, 10 U.S.C. § 878. Such a finding was contrary to the appellant’s pleas. The principal crime from which this accessory offense sprang was an assault with a dangerous weapon committed by a soldier named Per-due, in violation of Article 128, UCMJ, 10 U.S.C. § 928. McConnico was sentenced at — 304 — his general court-martial to a bad-conduct discharge, confinement at hard labor for 3 months, and forfeiture of $150 pay per month for 6 months. The convening authority approved the findings and sentence; the Army Court of Military Review affirmed the same. The Government particularly charged the appellant with transporting Perdue by car away from the scene of a shooting in order to prevent or hinder the latter’s apprehension. In order to successfully prosecute such an accessory charge, it was incumbent upon the Government to establish as a necessary element of this offense the commission of the assault crime by the principal offender Perdue. See Article 78, UCMJ, and para. 157, Manual for Courts-Martial, United States, 1969 (Revised edition). To partially achieve this purpose, the trial counsel offered as evidence the purported confession of Perdue to the shooting. This confession also contained statements which directly implicated the appellant as an accessory after the fact. The foundation for the admission of the proffered evidence was the testimony of Agent Hart who related to the court the voluntary circumstances surrounding the making of this confession. Both parties before the military judge at this court-martial agreed that Perdue was unavailable to personally testify as to these matters because his own conviction was not yet final and he would refuse to testify at McConnico’s court-martial, relying on his privilege against self-incrimination. Defense counsel at trial nonetheless objected to the introduction of this evidence on constitutional1 grounds in that the statements contained in the confession were not subject to cross-examination and the accused was not permitted to confront the witness against him.2 He further asserted that the introduction of such testimony was not authorized by the careful rules for admission of evidence delineated in the Manual for Courts-Martial.3 After considering arguments from both sides on this issue, the military judge admitted the confession of Perdue as evidence in the trial of the appellant. However, he specifically limited his consideration of it to the issue of whether the principal crime committed by Perdue had in fact occurred. Such a matter of proof was a necessary, but not the sole, element of the accessory offense charged against the appellant. See Article 78, UCMJ; para. 157, Manual, supra. Moreover, he expressly excluded from his consideration any parts of the confession which implicated McConnico as an accessory after the fact to the principal offense.4 Other evidence was adduced at trial which showed the commission of the principal crime by — 305 — Perdue and the unlawful accessoryship of McConnico.5 The issue granted by this Court for consideration is: WHETHER THE ACCUSED WAS DENIED HIS RIGHT OF CROSS EXAMINATION WHEN THE OUT OF COURT STATEMENTS OF THE ASSAILANT WERE ADMITTED AGAINST THE ACCUSED. At the outset, it must be recognized that the rule against hearsay evidence and the Confrontation Clause are not congruous. California v. Green, 399 U.S. 149, 155-56, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970). The former is an evidentiary rule based on experience within a particular jurisdiction and grounded in the notion that untrustworthy evidence in a civil or criminal trial should not be presented to the trier of fact. See Chambers v. Mississippi, 410 U.S. 284, 298-99, 93 S.Ct. 1038, 1047, 35 L.Ed.2d 297 (1973). The Supreme Court has noted that within these jurisdictions: A number of exceptions have developed over the years to allow admission of hearsay statements made under circumstances that tend to assure reliability and thereby compensate for the absence of the oath and opportunity for cross-examination. (Id.) See also United States v. Johnson, 3 M.J. 143, 147 (C.M.A.1977). The latter, however, is a constitutional provision designed to prohibit in criminal trials “the practice of trying defendants on ‘evidence’ which consisted solely of ex parte affidavits or depositions” which deny “the defendant the opportunity to challenge his accuser in a face-to-face encounter6 in front of the trier of fact.” See California v. Green, supra 399 U.S. at 156, 90 S.Ct. at 1934. (Emphasis added.) “[T]he mission of the Confrontation Clause is to advance a practical concern for the accuracy of the truth-determining process in criminal trials by assuring that ‘the trier of fact [has] a satisfactory basis for evaluating the truth of the prior statement.’ . . . ” Dutton v. Evans, 400 U.S. 74, 89, 91 S.Ct. 210, 220, 27 L.Ed.2d 213 (1970). Thus simply “because evidence is admitted in” accordance with “a long established hearsay rule” or in violation thereof, allows no “automatic conclusion” to be drawn with respect to an accused’s confrontation rights under the Sixth Amendment. California v. Green, supra 399 U.S. at 156, 90 S.Ct. 1930. These are two separate questions. Accordingly, it is necessary to determine first whether the confession of Perdue was admissible in the appellant’s case as a matter of evidentiary law applicable at court-martial, and second, whether such an admission particularly violated the appellant’s right to confrontation guaranteed by the Sixth Amendment to the Constitution. Finally, if either error is found to exist, it must be tested for sufficient prejudice7 to justify reversal of the conviction. I The first evidentiary issue to be resolved by this Court is whether para. 140a(6), Manual, supra, prohibits the use of Perdue’s confession in the government’s case-in-chief against the appellant. This Manual provision provides: (6) Miscellaneous. A confession or admission not made as testimony in the trial is admissible for the purpose of proving the truth of the matters stated in the — 306 — confession or admission only when the person who made it is an accused in the case, and it is then admissible for that purpose only with respect to, and against, the accused who made it. These limitations do not apply, however, if the statement is admissible to prove the truth of the matters stated therein without regard to the fact that it is a confession or admission, as when in his testimony at a former trial of the accused an accomplice has made a confession damaging to the accused which is admissible as former testimony under 145 b. At the court-martial, the Government offered this confession to establish the commission of the principal offense by Perdue, an essential element of the appellant’s prosecution as an accessory after the fact under Article 78, UCMJ.8 The military judge stated that the portion of this confession which inculpated the appellant as an accessory after the fact would not be considered by him in reaching his findings. It is clear that the introduction of a portion of Perdue’s confession brought before the court-martial hearsay evidence. See para. 139a, Manual, supra. However, not all hearsay evidence is barred from use at a court-martial if it is determined to fall within certain well-established exceptions to this general rule of evidence. The Manual lists the principal exceptions to this rule but it does not- presume to list all its exceptions. See United States v. Johnson, supra at 146 n. 3. “So far as not otherwise prescribed in the Manual, ‘the rules of evidence generally recognized in the trial of criminal cases in the United States district courts . will be applied by courts-martial.’ Paragraph 137, MCM; see United States v. Weaver, 23 U.S.C.M.A. 445, 450, 50 C.M.R. 464, 469, 1 M.J. 111, 116 (1975).” Id. Accordingly, the question is whether para. 140 a (6), Manual, supra, established a clear cut, definite and precise rule of evidence barring the use of this evidence for the limited purpose it was accepted by the military judge in the present case. See United States v. Smith, 13 U.S.C.M.A. 105, 109, 32 C.M.R. 105, 109 (1962). To resolve this particular issue, it is first necessary to turn to the language of the provision itself. Its initial prohibitory language at first glance appears to be rather broad and to apply to the limited use of the confession in the case before us. Yet, the subsequent language indicates the rule is not absolute and its limitations not applicable in somewhat nebulously defined situations. In view of such equivocation, it is necessary to search the legislative history of the provision to find the intended meaning of its drafters. Here, it can be readily seen that the express purpose of the provision was to prohibit the use of such evidence to exculpate a military accused. See Legal and Legislative Basis, Manual for Courts-Martial, United States, 1951, p. 217, citing Donnelly v. United States, 228 U.S. 243, 272, 33 S.Ct. 449, 57 L.Ed. 820 (1913). In addition, the extremely scarce military case law as to this issue found no prohibition against the use of a confession of a principal to establish in a trial of an accessory the commission of a crime by the principal. See United States v. Cline, 20 C.M.R. 785 (A.F.B.R.1955), pet. denied 20 C.M.R. 398 (1955); United States v. Huff, 17 C.M.R. 677 (A.F.B.R.1954). In light of these past statements of military law, para. 140a (6), Manual, supra, need not be interpreted as an inflexible rule of evidence incompatible with the limited use of Perdue’s confession in the present case. See United States v. Smith, supra. Accordingly, as to the evidentiary issue raised herein, we must now9 turn to the federal rules of evidence to see if any exclusion to the hearsay rule might — 307 — authorize its admission. See United States v. Johnson, supra. With some confusion the Government first attempts to justify the introduction of Perdue’s confession against the appellant as a matter of evidentiary law on the basis of the party-admission exception to the hearsay rule. See McCormick, Law of Evidence §§ 262-267 (2nd ed. 1972). In particular, it is asserted as a matter of military case law10 and in accordance with the majority of federal11 and state12 decisions that the confession of a principal is admissible on this theory, in the trial of the accessory, to prove the commission of the crime by the principal. See 4 Wigmore, Evidence § 1079(1)(c) (Chadbourn rev. 1972). We must reject the application of this exception to the hearsay rule as a matter of fact and law to the appellant’s court-martial. The genesis in human experience justifying the party admission exception to the hearsay rule is not that such evidence constitutes a declaration against the confessor’s interest. See id. at §§ 1048-1049. Rather, this particular exception to the hearsay rule is based on some identity of interest or privity in obligation between the maker of the statement and the party sought to be bound. See id. at §§ 1076-1079. Such an identity of interest or mutuality of legal liability is defined in a criminal transaction as a matter of substantive criminal law in the jurisdiction and some evidence of the defendant’s cooperation with the principal generally must be furnished by the Government. Id. In the present case, the Government suggests in a pro forma manner that the confessor-principal Perdue and the defendant, accessory-after-the-fact McConnico, had a shared interest in the criminal venture of assault with a deadly weapon. No evidence, however, was offered to establish such a joint effort so as to bring Perdue’s confession within the ambit of this hearsay exception. See Hale v. United States, 25 F.2d 430 (8th Cir. 1928). Moreover, as a matter of military substantive law contained in the UCMJ, we find no support for equating the criminal liability of a principal13 with an accessory after the fact.14 In general, this evidentiary theory is employed at courts-martial in situations involving statements made by co-conspirators 15 to a crime while in the course of this conspiracy. See para. 140b, Manual, supra. Accordingly, in the absence of any de jure mutual criminal venture, we decline to expand 16 the proffered exception to the hearsay rule in military practice to the situation involving a principal and an accessory after the fact where no agreement has been shown, as a matter of fact, to commit the principal crime. The Government later in its brief asserts that the written confession of Perdue is a declaration against his penal interest.17 Accordingly, it is argued that such hearsay evidence is admissible against the appellant at his court-martial under Rule 804(b)(3), Fed.R.Evid. The basis of the [declaration against interest exception to the hearsay rule] is “the principle of experience that a statement asserting a fact distinctly against one’s interest is unlikely to be deliberately false or heedlessly incorrect, and is thus sufficiently sanctioned, though oath and cross-examina — 308 — tion are wanting.” 5 Wigmore, Evidence § 1457 (3rd ed. 1940). The inclusion of a declaration against penal interest within this general exception to the hearsay rule is fairly recent as a matter of federal law. The language of the federal rule makes no distinction between such evidence being utilized to exculpate or implicate a criminal defendant except to the extent that corroboration is required in the case of the former. However, it must be noted that its legislative history is somewhat ambiguous as to the propriety of identifying all third-party confessions implicating a defendant as legitimate declarations against penal interest. Notes of the Advisory Committee on Rules, Federal Rules of Evidence, Rule 804, 28 U.S.C.A., p. 697. Such ambivalence stems from the fact that such a confession may be unreliable to the extent that the third-party confessor may curry favor with government authorities by implicating another person in the crime.18 Yet, in the appellant’s case, Perdue’s confession was expressly offered by the Government and considered by the military judge on the sole issue of the commission of the principal crime of assault by its maker Perdue. The voluntary circumstances of its making were established by the live testimony of Agent Hart. Perdue refused to testify on the basis of his privilege against self-incrimination. In such a situation, it is most unlikely that such a confession would be unreliable as an attempt by the principal offender to curry favor with government authorities at the expense of the secondary offender McConnico.19 Accordingly, for this limited purpose, this confession is reliable and admissible against the appellant as a declaration against Perdue’s penal interest in accordance with federal evidentiary law applicable at court-martial. II After finding the admission of the challenged confession was in accordance with the rules of evidence applicable at this court-martial, a more significant constitutional question must be addressed. See Dutton v. Evans, supra 400 U.S. at 86, 91 S.Ct. 210. The precise issue20 is whether the introduction of the extrajudicial confession of Perdue at the appellant’s court-martial under a recognized exception to the hearsay rule runs afoul of the latter’s rights under the Confrontation Clause of the Sixth Amendment. Cf. Parker v. Randolph,-U.S. -, 99 S.Ct. 2132, 60 L.Ed.2d 713 (1979); Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100 (1968); Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968); Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966); Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965). The starting point for such an analysis is the observation that the evidence in the present case did not directly identify or implicate the appellant as an accessory after-the-fact. It did, however, tend to establish a vital fact in the government’s case against him. No obviation of the appellant’s constitutional right to confront the witnesses against him is justified on this ground. See Kirby v. United States, 174 U.S. 47, 55-56, 19 S.Ct. 574, 43 L.Ed. 890 (1899). Yet, it must also be noted, “[t]he Confrontation Clause has never been held to bar the admission into evidence of every relevant extrajudicial statement made by a nontestifying declarant simply because it in some way incriminates the defendant.” See Parker v. Randolph, supra 99 S.Ct. at 2139. Accordingly, it is necessary to determine in the appellant’s case whether the admissible hearsay possesses the additional “indicia of reliability” required by the Confrontation Clause of the Sixth Amend — 309 — ment.21 California v. Green, supra 399 U.S. at 161, 90 S.Ct. 1930. This case is different from the Bruton -type cases, because the hearsay statements considered in the appellant’s case are admissible against him under a recognized exception to the hearsay rule. Nevertheless, as indicated in California v. Green, supra at 156, 90 S.Ct. 1930, this fact does not automatically resolve the confrontation question. Moreover, the Supreme Court was particular in the Bruton case in intimating no view whatever that admission of such evidence under “[a] recognized exception to the hearsay rule” would “necessarily raise questions under the Confrontation Clause.” See Bruton v. United States, supra 391 U.S. at 128 n.3, 88 S.Ct. at 1624. While we agree that “the right to confront [witnesses] and to cross-examine [them] is not absolute,” Chambers v. Mississippi, supra 410 U.S. at 295, 93 S.Ct. at 1046, it is clear that any permissible restriction of this valuable constitutional right should be based on decisions emanating from the Supreme Court. Admittedly, that Court has held on a case-by-case basis that not all evidence admitted at a criminal trial under a recognized exception to the hearsay rule violated this constitutional provision. See Dutton v. Evans, supra, California v. Green, supra; Dowdell v. United States, 221 U.S. 325, 31 S.Ct. 590, 55 L.Ed. 753 (1911); Mattox v. United States, 156 U.S. 237, 240-244, 15 S.Ct. 337, 39 L.Ed. 409 (1895).22 However, unlike those cases, the admissible hearsay in the appellant’s case was a product of custodial interrogation [see Westen, Confrontation and Compulsory Process: A Unified Theory of Evidence for Criminal Cases, 91 Harv.L.Rev. 567, 584 fn. 43 and 600 n. 98 (1978)] and the out-of-court declarant was unavailable to testify on the basis of his privilege against self incrimination. See Parker v. Randolph, supra 99 S.Ct. at 2146-47 (Stevens, J., dissenting). In light of these considerations and dictum in Kirby v. United States, supra 174 U.S. at 55-58, 19 S.Ct. 574, it would be imprudent for this Court to definitively rule that the introduction of Perdue’s confession under the circumstances of the appellant’s case did not in some way violate the appellant’s right to confrontation.23 Ill Accepting the argument of the appellant that he was denied the right to confront Perdue on the issue of the latter’s commission of the principal crime, it does not automatically follow that his conviction as an accessory after the fact must be overturned. See Motes v. United States, 178 U.S. 458, 476, 20 S.Ct. 993, 44 L.Ed. 1150 (1900). Under the facts and circumstances of this court-martial, we conclude there was no reasonable possibility24 that the admission of this evidence might have contributed to the appellant’s conviction. See United States v. Moore, 1 M.J. 390, 392 (C.M.A.1976). The questionable evidence was limited at his court-martial by the military judge to his consideration of the issue of whether the principal Perdue committed a crime. However, the testimony of the two victims of the shooting, Linton and Preyer, along with that of the bystanders, Boyce and Hutchinson uncontrovertibly establish that the offense of assault with a dangerous weapon occurred. Accordingly, the only remaining issue pertinent to this confession was the identity of the principal assailant. The testimony of the above-mentioned witnesses, viewed as a whole, offers — 310 — sufficient circumstantial evidence to establish a prima facie case that Perdue committed this offense. See paras. 74a(3), 138b and 154, Manual, supra. In addition, the testimony of three innocent bystanders, Walters, Downs and Spencer, who were not government investigators, clearly establishes that Perdue, in a spontaneous and immediate post-shooting statement admitted his role as the assailant. Though the latter testimony also constitutes hearsay, it is without question admissible, in court-martial practice, as a spontaneous exclamation. See para. 142b, Manual, supra. Moreover, the circumstances of this admission are quite similar to that in Dutton v. Evans, supra 400 U.S. at 89, 91 S.Ct. 210, and more clearly fall within the constitutional purview of that decision. Accordingly, in light of this substantial evidence which independently and properly establishes the commission of the principal crime by Perdue, we find the appellant was not prejudiced by any constitutional error in the admission of the confession. See Parker v. Randolph, supra 99 S.Ct. at 2141—43 (Blackmun, J., concurring in part). Accordingly, the decision of the United States Army Court of Military Review is affirmed. Footnotes [1] U.S.Const. amend. VI. [2] See generally Westen, Confrontation and Compulsory Process: A Unified Theory of Evidence for Criminal Cases, 91 Harv.L.Rev. 567 (1978). [3] Trial defense counsel particularly referred to para. 145, Manual for Courts-Martial, United States, 1969 (Revised edition). [4] It must be pointed out that the placing of this portion of Perdue’s confession before the military judge for his ruling on its admissibility when he is later to be the ultimate finder of fact is materially different from the situation confronting the Supreme Court in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). There, the inadmissible hearsay evidence was paraded before an impressionable jury under circumstances in which the Supreme Court felt instructions by the trial judge would not adequately safeguard the defendant’s right of confrontation. See Parker v. Randolph,-U.S.-, 99 S.Ct. 2132, 2137-38, 60 L.Ed.2d 713 (1979). We are not faced with such a situation involving the practical and human limitations of the jury system. See Bruton v. United States, supra 391 U.S. at 135-36, 88 S.Ct. 1620, cited in Parker v. Randolph, supra. In the appellant’s case, the portion of the statement found inadmissible was presented to a military judge who ruled in open court that he would not consider this portion of the confession in his deliberations on findings. A military judge is trained in the law of the evidence and is required to conduct a fair trial; accordingly, in the absence of some showing of abuse of his judicial role, it may be presumed that he acts as he says he will. See United States v. Graves, 1 M.J. 50, 53 (C.M.A.1975). In this context, the military judge’s ruling adequately safeguards the accused’s right to confrontation as to the unconsidered but displayed portion of this confession. Parker v. Randolph, supra. [5] The issue of the sufficiency of the evidence to convict the appellant of the accessory after the fact offense was not granted for review. Accepting the fact that the inadmissible portion of Perdue’s confession may not be considered as to this issue, a review of the record of trial in light of Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1941), indicates sufficient evidence, even as described by the dissent, to otherwise support this finding of guilty. [6] See Mattox v. United States, 156 U.S. 237, 242-243, 15 S.Ct. 337, 39 L.Ed. 409 (1895). [7] The evidentiary error must be tested for substantial prejudice under Article 59(a), Uniform Code of Military Justice, 10 U.S.C. § 859(a). Any constitutional error of this nature must be examined under the more stringent standard stated in United States v. Moore, 1 M.J. 390, 392 (C.M.A.1976). See also Parker v. Randolph, supra 99 S.Ct. at 2141-43 (Blackmun, J., concurring in part). [8] See para. 157, Manual, supra; Perkins, Criminal Law 578 (1957). [9] No other Manual provision is applicable in the present case. Para. 140b, Manual, supra, is not controlling because there was no showing Perdue and McConnico were coconspirators or coaccuseds and in the accomplice situation, no conviction or plea of guilty was sought to be admitted. Para. 145b, Manual, supra, also is simply not relevant to Perdue’s refusal to testify in court. [10] United States v. Cline, 20 C.M.R. 785 (A.F.B. R.1955), pet. denied 20 C.M.R. 398 (1955); United States v. Huff, 17 C.M.R. 677 (A.F.B.R. 1954). [11] See Hale v. United States, 25 F.2d 430 (8th Cir. 1928). [12] See Stewart v. People, 161 Colo. 1, 419 P.2d 650 (1966). [13] Article 77, UCMJ, 10 U.S.C. § 877. [14] Article 78, UCMJ, 10 U.S.C. § 878. [15] Article 81, UCMJ, 10 U.S.C. § 881. [16] Notes of the Advisory Committee on Rules, Federal Rules of Evidence, Rule 801, 28 U.S.C.A., p. 531. [17] See generally, 5 Wigmore, Evidence §§ 1475-1477 (3rd ed. 1940); Note: Declarations Against Penal Interest: Standards of Admissibility Under An Emerging Majority Rule, 56 Boston U.L.Rev. 149 (1976). [18] See Notes of the Advisory Committee on Rules, Federal Rules of Evidence, Rule 804, 28 U.S.C.A., p. 697; United States v. White, 553 F.2d 310, 313 n. 4 (2nd Cir. 1977), cert. denied, 431 U.S. 972, 97 S.Ct. 2937, 53 L.Ed.2d 1070 (1977); United States v. Rogers, 549 F.2d 490, 498 n. 8 (8th Cir. 1976), cert. denied, 431 U.S. 918, 97 S.Ct. 2182, 53 L.Ed.2d 229 (1977). [19] While Perdue might secure some benefit from the Government for his confession at his own trial, it would be only at the expense of his own conviction. [20] See generally, Westen, supra (n. 2) at 582-86, and 613-28. [21] The controlling but somewhat amorphous standard is whether the trier of fact has a satisfactory basis for evaluating the truth of the out-of-court statement. See Westen, supra (n. 2) at 586. [22] See also cases cited in Westen, supra (n. 2) 601, n. 99. [23] 1 accept this conclusion at the present time without deciding the issue, until more clear pronouncements in this area of constitutional law reach us from the Supreme Court. [24] See Parker v. Randolph, supra 99 S.Ct. at 2138, n. 5, citing Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973); Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972), Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969).