United States v. Harjak

ALBERTSON, Senior Judge: At a general court-martial composed of officer and enlisted members, appellant was found guilty contrary to his pleas of four specifications each of sodomy and indecent acts upon his 10 year-old biological daughter, the victim, in violation of the Uniform Code of Military Justice (UCMJ), Articles 125 and 134, 10 U.S.C. §§ 925, 934, respectively. The convening authority approved the adjudged sentence to 8 years of confinement, reduction to pay grade E-l, and a bad-conduct discharge. I Appellant divorced his first wife when his daughter was 3 years old. The mother remarried, and 6 years later discovered that her husband, the victim’s stepfather, had been sexually abusing her. The State of Iowa intervened, removed the victim from the home, and granted custody to appellant who lived in California, with the requirement that the victim continue under some form of government supervision and receive psychological treatment for the sexual abuse suffered. On 13 October 1988, 4 months after the victim moved in with appellant and his new family (stepmother and three young children), she was removed from appellant’s home and placed into foster care after alleging to a social worker and a Naval Investigative Service (NIS) special agent that appellant had sodomized her and engaged in indecent acts with her. The evidence indicates that she gave the NIS special agent a pair of panties that contained the remnants of seminal fluid ejaculated by someone who has the same blood type as appellant. On 17 October 1988, NIS Special Agent Carol Cacciaroni interviewed the victim at [581] her foster home concerning her relationship with appellant. No one else was present at the interview, which was recorded after a 20-minute discussion with the victim off the record. The recording was transcribed, sworn to, and adopted by the victim in February 1989, 4 months later. The record is unclear whether the defense ever requested or obtained an opportunity to question the victim about the allegations or about the conditions under which the interview was made. Subsequent to this interview of the victim, appellant made two confessions to NIS Special Agent Dortch. The first was a statement written in appellant’s handwriting and signed and sworn to by appellant, followed by a three-page typewritten statement also signed and sworn to by appellant. II All assignments of error focus on the admissibility of the transcribed NIS interview of the victim as corroboration of appellant’s two confessions to the charged offenses. At trial, the government’s motion in limine to admit the transcript of the interview cited, as a basis for admissibility, the victim’s unavailability and the residual hearsay rules, Military Rules of Evidence (Mil.R.Evid.) 803(24), 804(b)(5), Manual for Courts-Martial (MCM), United States, 1984. The government sought admission of the transcribed interview as a substitute for the victim’s trial testimony. The defense argued that the transcript was inadmissible hearsay, that the requisite showing of unavailability of the declarant was not made, and that admitting it in place of the victim’s in-court testimony was a violation of appellant’s right to confront witnesses under the Sixth Amendment. The military judge admitted the transcript as corroboration of the appellant’s two confessions after he declared that the victim was unavailable within the meaning of Mil. R.Evid. 804(b)(5) and the statement possessed sufficient particularized guarantees of trustworthiness equivalent to those supporting the other exceptions to the hearsay rule allowing the use of out-of-court statements as substantive proof of the matter asserted. On review, appellant first argues that the military judge erred by admitting the transcript of the interview between the victim and the NIS special agent. He claims, and the government concedes,1 that the requisite showing of the victim’s unavailability as a witness for her out-of-court statement to be admitted under the residual exception to the hearsay rule was not made. Mil.R.Evid. 804(a)(4), (b)(5). We agree with the appellant's assertion and the government’s concession and find that the evidence before the military judge failed to establish that a then presently existing physical or mental infirmity or illness rendered the victim unavailable to testify at trial. Mil.R.Evid. 804(a)(4). The basis for the military judge’s ruling the victim an unavailable witness was the unauthenticated medical reports that he erroneously admitted over defense objection.2 These reports detailed the victim’s physical and psychological condition 6 months prior to trial. Notwithstanding the military judge’s empathetic recitation of the hideous occurrences of the victim’s young life, and his desire for the court-martial not to endanger her mental and physical health, those reports were hearsay and irrelevant to the victim’s current mental and physical status. Furthermore, even if they had been properly admitted, the reports did not establish that the victim’s face-to-face confrontation with appellant in the courtroom would cause her to suffer mental or physical harm. See Maryland v. Craig, 497 U.S. -, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990). III Because the victim was erroneously declared unavailable to testify, the admis [582] sion of her hearsay statements to the NIS special agent must be analyzed under Mil. R.Evid. 803(24), the residual hearsay rule that permits the admission of hearsay statements into evidence regardless of whether the declarant is available to testify at trial. Under Mil.R.Evid. 803(24), a hearsay statement not specifically covered by any of the other exceptions to the hearsay rule but having equivalent particularized guarantees of trustworthiness may be admitted into evidence if offered as evidence of a material fact and if more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts. Therefore, the issue of the victim’s medical and psychological condition, and her ability to testify meaningfully without serious psychological or physical harm, might well be determining factors concerning the admissibility of her hearsay statements under this exception to the hearsay rule as well. See Mil.R.Evid. 803(24)(B). The military judge, in considering whether the victim’s statements to the NIS agent possessed “particularized guarantees of trustworthiness” justifying their admission under the residual exception to the hearsay rule, erroneously considered corroborating evidence unrelated to the circumstances surrounding the making of the statements. The inherent trustworthiness of hearsay statements to be admitted under Mil.R.Evid. 803(24) can only be determined by examination of the totality of the circumstances surrounding the making of the statement.3 These circumstances must eliminate the possibility of fabrication, coaching, or confabulation and, by revealing the declarant to be particularly worthy of belief, render adversarial testing of those statements superfluous. Idaho v. Wright, 497 U.S. -, 110 S.Ct. 3139, 3148, 111 L.Ed.2d 638, 655 (1990). When, as here, the justification for hearsay statements which could only be admitted under Mil.R.Evid. 803(24) encompasses factors which either did not exist at the time of the making of the statement or include those which may be added by hindsight or arise from subsequent corroboration of the criminal act, the Confrontation Clause of the Federal Constitution’s Sixth Amendment requires exclusion of the out-of-court statement. Id., 110 S.Ct. at 3150, 111 L.Ed.2d at 656.4 We find that the following factors delineated by the military judge in his essential findings of fact to support admission of the transcript should not have been considered since. they do not bear upon the circumstances surrounding the rendition of the victim’s statements or are not supported by the record: (a) the victim had no reputation nor motive for lying; (b) she had never refused to testify concerning the charged offenses; (c) she had never retracted her statements; (d) her first report was to a social worker, not a policeman; (e) each of her statements were consistent; (f) appellant twice confessed to these offenses; (g) her panties were stained by semen; and (h) her first statement to a social worker on 13 October was an excited utterance.5 Further, we do not agree with the military judge that the facts of record support a conclusion that the conditions under which the verbatimly transcribed statement was given evidenced bipartisanship and served the purposes of cross-examination. The NIS special agent admitted during cross-examination that she taped the victim’s statement to build a criminal case against appellant. Other factors listed by the military judge do concern the circumstances surrounding the making of the statement, are factually supported by the record, and do support its [583] reliability. Those factors were that she understood the difference between the truth and a lie and the transcript itself reveals the conduct of the interview. Those two factors even taken together, are insufficient to guarantee the trustworthiness of the statements. Thus, we find that the military judge’s consideration of the factors not supported by the record and not bearing upon the circumstances surrounding the taking of the victim’s statement had a substantial effect on his ruling to admit the evidence. The admission of the statements therefore constituted an abuse of discretion by the military judge. The victim’s statements to the NIS special agent, admitted at trial in the form of a transcription of a tape recording, was therefore inadmissible under Mil.R.Evid. 803(24), and should not have been considered as corroborating evidence of appellant’s confessions to sodomizing and committing indecent acts with his daughter. Additionally, exclusion of the victim’s out-of-court statements is required (1) because neither at nor prior to trial did appellant have the opportunity to challenge the truth of those statements; and (2) because statements sought to be admitted under the residual exception to the hearsay rule are not considered under case law to be as reliable as other statements qualified for admission under more established exceptions to the hearsay rule. Therefore the victim’s statements are insufficiently reliable to be used as corroboration for appellant’s confessions to sodomizing and committing indecent acts on his daughter, despite his confessions being made after he was aware of the allegations made by his daughter and after he was properly warned that any statements made by him could and would be used against him in criminal proceedings. Id. The admission of the victim’s statements as corroboration for appellant’s confessions violated the Confrontation Clause of the Sixth Amendment, and was.not harmless beyond a reasonable doubt as we cannot say that the improper admission of these statements had no effect on the members in reaching their findings. United States v. Brabant, 29 M.J. 259 (C.M.A.1990). IV The fact-finder must be convinced beyond a reasonable doubt of the accused’s guilt. An accused cannot be convicted on his confession alone; the confession must be corroborated. Corroboration consists of two aspects. One aspect relates to whether sufficient facts guaranteeing the truthfulness of the confession have been shown by the prosecution such that it is admissible as evidence before the fact-finder. Mil.R.Evid. 304(g). The second relates to whether the fact-finder has facts before it sufficient to establish as a matter of law that it is convinced beyond a reasonable doubt that the accused is guilty of the offense to which he confessed. Smith v. United States, 348 U.S. 147, 75 S.Ct. 194, 99 L.Ed. 192 (1954); Warszower v. United States, 312 U.S. 342, 61 S.Ct. 603, 84 L.Ed. 876 (1941); United States v. Rounds, 30 M.J. 76, 81 n. 3 (C.M.A.1990), cert. denied, — U.S. -, 111 S.Ct. 130,112 L.Ed.2d 98 (1990). The status of corroboration evidence in the military is basically the same. A confession of an accused servicemember, or any part of it, may be considered as evidence against him during the merits of a case only if independent evidence, direct or circumstantial, has been introduced that corroborates the essential facts confessed to justify an inference of their truth. Rounds; Mil.R.Evid. 304(g)(1). The purpose of the corroboration rule is to establish the truthfulness or trustworthiness of the confession, to aid in assuring the finder of fact that the confession was not involuntarily given, and not independently to prove the elements of the offenses. United States v. Melvin, 26 M.J. 145 (C.M.A.1988). The quantum of evidence needed to satisfy the requirements of Mil.R.Evid. 304(g) is slight.6 United States v. Yeoman, 25 M.J. [584] 1, 4 (C.M.A.1987). Thus, without corroboration independent of the victim’s hearsay statements to NIS, each of the charges and specifications to which appellant confessed must be set aside and a rehearing authorized. Despite appellant’s claims at trial that his motivation for confessing was to secure counselling, resulted from mental threats and physical discomfort, and promises that he would not be prosecuted, the military judge refused to suppress the confessions, finding that they were voluntarily made. We agree with this finding. Appellant’s confessions to NIS Special Agent Dortch were first in his own handwriting, then followed by an oral confession transcribed by Special Agent Dortch. It is difficult to understand why he would confess to secure counselling for sexual molestation of his own daughter if he had not sodomized her, committed indecent acts with her, and ejaculated upon her, repeatedly, as his confessions detail. His confessions admit to matters not mentioned by his daughter in her statements, blame the victim for encouraging or not stopping him from molesting her, and state that he felt she was receiving sexual gratification from his acts as well. Appellant, at the time a chief petty officer, is shown by his confessions to be a mature, intelligent, articulate man who suffered from no mental infirmity. His confessions are clear, internally consistent and in no place contradict each other. There is no evidence that appellant has a history of rendering false confessions to serious offenses. There is no indication that he falsely confessed to protect anyone else from these accusations. Nevertheless, despite no indication in the record that external compulsions made him admit to these offenses and that his confessions were unrebutted at trial, present law requires they must be corroborated by independent evidence which tends to prove the commission of the crimes alleged, and not, as the government suggests in its brief, legally determined to be reliable and a basis for conviction due to their agreement in relevant aspects to inadmissible hearsay statements. Because the victim’s statements were improperly admitted into evidence, they may not be legally considered as corroboration of appellant’s confessions. Thus, we must determine whether the record contains admissible independent evidence to corroborate appellant’s confessions. NIS Special Agent Cacciaroni testified at trial on the merits on direct examination that she interviewed the victim and spoke with appellant concerning his daughter’s allegations of a sexual assault on 13 October. The agent testified as to these conversations on direct examination as follows: Q. Okay, now at that point of the conversation you had asked [the victim] “Where is his thing, where is it on you?” and she said, “Right there.” Was she pointing at the time? A. Yes, she was. Q. In what area was she pointing? A. She was pointing to her groin. Q. Now during the course of that conversation, she had discussed some panties. And when did you become aware of these panties? Which panties were was referring to? A. She was referring to the morning she said that he (sic) father had touched her. She kept the panties and put them in her little book pack and brought them to school. Q. And did you take those to— A. Yes, I did. Q. Now did you ever had (sic) a discussion with Chief Harjak? A. Yes, I did. Q. An when did that take place? A. That took place, I believe, on the 14th of October ’88. Q: And did you ask Chief Harjak about these panties? A: Yes, I did. Q: What was the question you asked him? [585] A: I told him I had seized [the victim’s] panties from the morning of the 12th, I believe, and told him that it appeared there was a semen stain on the panties. Q: How did the chief respond to that? A: He told me that he and his wife used condoms and [the victim] could have possibly gone to the trash can, removed the condom and poured the semen onto her panties. Appellant’s confessions detail that on four or five occasions over a period of time after the victim had returned to his custody, he had rubbed her vagina, removed her panties, or rubbed his penis over her vagina, or ejaculated upon her. He noted that she did not complain even when he orally copulated with her, but encouraged him to continue. He wrote that the morning of the day the victim told the social worker of appellant’s sexual molestation and was removed from his custody, the victim again came to his bed and the series of events had repeated themselves as far as the molestation was concerned. The above-quoted testimony of NIS Special Agent Cacciaroni is the only relevant evidence remaining on the merits that can be considered as corroboration of appellant’s confessions. We find this remaining evidence insufficient as a matter of law to corroborate the appellant’s confession to the events of the morning of the 13th of October. Although we find that appellant’s confession was voluntarily made, and that his explanation of the presence of semen on his daughter’s panties is absurd, this latter implicit acknowledgement of guilt by him to the NIS special agent who was attempting to make a case against him and to whom the victim’s inadmissible out-of-court statement was made cannot be used to corroborate the former confession. It is not independent evidence. We also cannot make the leap of legal faith that the NIS special agent’s unobjected-to hearsay testimony about her taking the panties on the day in question and that she told appellant the stain on them was semen is sufficient to constitute even slight evidence of corroboration. See Rounds, 30 M.J. at 81 n. 3. Therefore, because the inadmissible out-of-court statements of the victim were in fact admitted, and despite the fact that the evidence as a whole7 appears factually sufficient to sustain a conviction, we cannot say that the legal error committed by the admission of those out-of-court statements did not materially prejudice the appellant’s substantial rights. See Article 59, UCMJ, 10 U.S.C. § 859. Accordingly, we set aside the findings and sentence. A rehearing on the offenses is authorized by the same or different convening authority. Judge LANDEN concurs. Footnotes [1] During oral argument, government counsel conceded that the military judge improperly found the victim unavailable to testify at trial. [2] Not only were the medical reports not properly authenticated, there is no evidence of record establishing that the reports were done by qualified experts or that the opinions expressed in the reports relied upon proper facts or data. Mil.R.Evid. 702 and 703. [3] Although the military judge did his "particularized guarantee of trustworthiness” analysis under MiI.R.Evid. 804(b)(5), the standard for analysis for Mil.R.Evid. 803(24) is the same. [4] We note that a hearsay statement admitted at trial is much less likely to offend the Confrontation Clause when the declarant is available to testify under cross-examination. [5] This factual conclusion is a close call in light of United States v. Arnold, 25 M.J. 129 (C.M.A. 1987) cert. denied 484 U.S. 1060, 108 S.Ct. 1015, 98 L.Ed.2d 980 (1987); but, we give the military judge, and thus the government, the benefit of the doubt. [6] The once required corpus delicti rule, Smith v. United States, 348 U.S. 147, 75 S.Ct. 194, 99 L.Ed. 192 (1954), is no longer applicable; but independent corroborative evidence is still required to implicate the accused to the extent [584] that the fact-finder is satisfied his confession is true and that a crime was committed. [7] The evidence that we refer to here is that presented during the Government's motion in limine. For some unexplained reason, the Government failed to present the evidence on the merits. Rounds, 30 M.J. at 81 n. 3. Additionally, the military judge never made a Mil.R. Evid. 304(g) ruling that sufficient independent evidence was established by the government to corroborate the appellant's confession because the issue was not raised at the trial level.