                                    IN THE CASE OF



                            UNITED STATES, Appellee

                                            v.

             Christopher R. GILBRIDE, Airman First Class
                      U.S. Air Force, Appellant

                                     No. 01-0503
                              Crim. App. No. 33724

             United States Court of Appeals for the Armed Forces

                              Argued November 27, 2001

                               Decided April 26, 2002

     EFFRON, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., and GIERKE and BAKER, JJ., joined. SULLIVAN,
S.J., filed an opinion concurring in the result.


                                        Counsel

For Appellant: Lieutenant Colonel Brandon A. Burnett (argued); Lieutenant
     Colonel Beverly B. Knott, Lieutenant Colonel Timothy W. Murphy, and Major
     Maria A. Fried (on brief); Colonel James R. Wise.


For Appellee: Captain Peter J. Camp (argued); Colonel Anthony P. Dattilo,
     Major Lance B. Sigmon, and Major Cheryl D. Lewis (on brief); Major Bryan
     T. Wheeler.




Military Judge:   J. Jeremiah Mahoney




         THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Gilbride, No. 01-0503/AF


   Judge EFFRON delivered the opinion of the Court.

   A general court-martial composed of officer members

convicted appellant, contrary to his pleas, of aggravated

assault, in violation of Article 128, Uniform Code of Military

Justice (UCMJ), 10 USC § 928.   He was sentenced to a bad-conduct

discharge, confinement for one year, total forfeitures, and

reduction to the lowest enlisted grade.   The convening authority

approved the sentence but waived application of the automatic

forfeitures in favor of an allotment for appellant’s dependents.

The Air Force Court of Criminal Appeals affirmed the findings

and sentence in an unpublished opinion.

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

issue:

          WHETHER THE MILITARY JUDGE ABUSED HIS
          DISCRETION IN DENYING THE DEFENSE REQUEST
          TO INTRODUCE THE WRITTEN PORTION OF
          APPELLANT'S INTERROGATION STATEMENT UNDER
          THE EVIDENTIARY RULE OF COMPLETENESS.

For the reasons set forth below, we affirm.



                        I. BACKGROUND


     The assault charge in the present case involved injuries

to appellant’s stepson, JB.   The case arose when a doctor

examining JB determined that he had a severe spiral fracture

of the left femur and suspected that the injury had been


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United States v. Gilbride, No. 01-0503/AF


caused by child abuse.   According to the physician, appellant

told him that JB had been injured when he fell from the sofa,

and that JB later walked unimpeded.   The physician suspected

child abuse because, in his view, the injury could only have

been caused by twisting the leg, and the child would not have

been capable of walking with such an injury.

     Appellant, who was interviewed by agents of the Air

Force Office of Special Investigations (AFOSI) as a suspect,

waived his rights and responded to their questions.     After

relating differing versions of events, appellant stated that

the injury occurred when he was trying to dress JB.

Appellant stated that because JB was squirming and

uncooperative, he grabbed JB’s leg with both hands and

twisted it to force the leg into JB’s pants.    Appellant told

the agents that JB screamed in pain, so he knew that JB was

hurt, but did not know the leg was broken.    Using a

demonstrative doll-like figure provided by the agents,

appellant showed the agents how he had injured the child.

     After finishing the verbal questions, the agents asked

appellant to prepare a written statement.    According to Agent

Carrigan, who participated in the interrogation, the request

for a written statement was a routine part of the

interrogation process.   Appellant’s written statement was




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United States v. Gilbride, No. 01-0503/AF


substantially similar to his verbal responses to the

interrogators, except for the following:

      I’m telling the truth when I say that I didn’t mean to
      hurt [JB]. I couldn’t ever imagine hurting a little
      child on purpose & I truly didn’t mean to hurt him.
      I’m not some psychopath child beater, I didn’t mean to
      hurt him, I just wanted to get his pants put back on
      him.

The entire interrogation, from the beginning of the inquiry

through completion of appellant’s written statement, spanned

approximately six hours, with no significant break between the

verbal and written statements.

      At trial, Agent Carrigan, who testified as a prosecution

witness, recounted the content of appellant’s oral confession.

Trial counsel deliberately avoided questions concerning the

written statement.      At the close of the direct examination, the

prosecution requested a session under Article 39(a), UCMJ, 10

USC § 839(a), where trial counsel sought to preclude any attempt

by the defense to introduce the written statement on the grounds

that it constituted inadmissible hearsay.          Defense counsel urged

admission under the rule of completeness embodied in Mil. R.

Evid. 106 and 304(h)(2), Manual for Courts-Martial, United

States (2000 ed.).∗     The military judge ruled that the written

statement was not admissible under either rule, concluding that



∗
  These Manual provisions are identical to the ones in effect at the time of
appellant's court-martial.


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United States v. Gilbride, No. 01-0503/AF


it constituted exculpatory hearsay and that it was not needed to

complete the oral statement.   The military judge indicated that

he would reconsider his decision if the written statement later

became admissible for some other purpose.

     Later in the prosecution’s case, the Government presented

an expert witness, Dr. Hymel, who testified regarding the

possible causes of JB’s injuries.    During cross-examination,

defense counsel inquired as to whether Dr. Hymel, in the course

of his analysis, had considered the exculpatory remarks in

appellant’s written statement.   When the doctor acknowledged

that he had considered appellant’s written statement, the

military judge permitted defense counsel to introduce evidence

of appellant’s written exculpatory statement disclaiming intent

to hurt JB.

     In his closing argument, defense counsel forcefully argued

lack of intent.   The members acquitted appellant of

intentionally inflicting grievous bodily harm on a child under

sixteen years of age, but found him guilty of the lesser-

included offense of aggravated assault.


                          II. DISCUSSION

     Mil. R. Evid. 304(h)(2) is a longstanding rule of

completeness pertaining to confessions introduced against an




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United States v. Gilbride, No. 01-0503/AF


accused.   As we noted in United States v. Rodriguez, 56 MJ 336,

341-42 (2002), the rule

           (1) applies to oral as well as written
           statements; (2) governs the timing under
           which applicable evidence may be introduced
           by the defense; (3) permits the defense to
           introduce the remainder of a statement to
           the extent that the remaining matter is part
           of the confession or admission or otherwise
           is explanatory of or in any way relevant to
           the confession or admission, even if such
           remaining portions would otherwise
           constitute inadmissible hearsay; and (4)
           requires a case-by-case determination as to
           whether a series of statements should be
           treated as part of the original confession
           or admission or as a separate transaction or
           course of action for purposes of the rule.

See also United States v. Harvey, 8 USCMA 538, 25 CMR 42 (1957).

When an oral statement and a written confession are involved,

the issue is “whether the accused’s written statement is

separate and unrelated from the oral confession, or whether it

is part of or the product of the same transaction or course of

action.”   Id. at 546, 25 CMR at 50.

     We review a military judge’s evidentiary rulings for an

abuse of discretion.   United States v. Ayala, 43 MJ 296 (1995).

A military judge abuses his or her discretion by making findings

of fact that are clearly erroneous or reaching conclusions of

law that are incorrect.   Id. at 298.

     In the present case, the AFOSI interrogating agents

promptly followed their oral questioning of appellant with a



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United States v. Gilbride, No. 01-0503/AF


request that he make a written statement as part of the routine

interrogation process.   The statement, which was prepared

shortly after the verbal interrogation, covered the same subject

matter as the immediately preceding oral confession.   Under

these circumstances, we conclude that the written statement was

made as part of the same transaction or course of action as the

oral statement.   As a result, the military judge erred in

denying appellant’s request to introduce the exculpatory remarks

from his written statement under the rule of completeness in

Rule 304(h)(2).

     We test the error to determine whether it materially

prejudiced the substantial rights of appellant under Article

59(a), UCMJ, 10 USC § 859(a).   In the present case, the error

was harmless.   Although the military judge initially rejected

defense counsel’s completeness argument, he subsequently

permitted the defense to introduce appellant’s exculpatory

statement during the prosecution’s case because it had been

relied upon by the Government’s expert witness, Dr. Hymel.

Also, defense counsel was able to effectively argue that

appellant did not have the requisite intent for the offense of

intentional infliction of grievous bodily harm, as demonstrated

by the fact that the members acquitted appellant on that charge,

convicting him only of the lesser-included offense of aggravated

assault.


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United States v. Gilbride, No. 01-0503/AF


     This is not a case in which timing or other considerations

created circumstances in which the damage from the error in

applying the completeness doctrine was irreparable.   See Beech

Aircraft Corp. v. Rainey, 488 U.S. 153, 171-72 n. 14 (1988).    We

hold that, under the circumstances of this case, any prejudice

from the military judge’s erroneous exclusion of the evidence

was cured when the court-martial acquitted appellant of the

specific-intent offense.



                           III. CONCLUSION

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




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United States v. Gilbride, No. 01-0503/AF


    SULLIVAN, Senior Judge (concurring in the result):

    I agree that Mil.R.Evid. 106 is not at issue in this case.

See United States v. Rodriguez, 56 MJ 336, 343 (2002) (Sullivan,

S. J., concurring in part and in the result); United States v.

Goldwire, 55 MJ 139, 147 (2001) (Sullivan, J., concurring in the

result).   It applies only when a writing or recorded statement is

introduced at trial.   See United States v. Ramirez-Perez, 166

F.3d 1106, 1112-13 (11th Cir. 1999).   The Government in this case

only evidenced appellant’s oral admission and confessions to

police officers and, accordingly, Mil.R.Evid. 304(h)(2) is the

pertinent evidentiary rule.

    Mil.R.Evid. 304(h)(2) states:

             (2) Completeness. If only part of an
           alleged admission or confession is
           introduced against the accused, the
           defense, by cross-examination or
           otherwise, may introduce the remaining
           portions of the statement.



    Here, appellant seeks the admission of his written statement

completed and signed some three hours after his earlier oral

confessions to police. (R. 112, 122)   Whether this written

statement, with its exculpatory assertion of an innocent intent,

was a “remaining portion” of his earlier oral statements was a

question for the trial judge’s discretion.   Appellant’s written

statement, unlike his earlier oral admissions and confessions,

was prepared entirely by himself.   In addition, the separation in

time between these statements, and the difference in form,
United States v. Gilbride, No. 01-0503/AF

suggest to me that the military judge did not abuse his

discretion in holding these were separate statements.   See United

States v. Rodriguez, supra.



    However, I concur with the majority that, even if error

occurred, exclusion of the statement was harmless.   See Article

59(a), Uniform Code of Military Justice, 10 USC § 859(a).    The

excluded written statement asserted that appellant did not intend

to harm his stepson, the alleged victim in this case.   This same

statement, however, was later evidenced at this court-martial

under another evidentiary rule.   Moreover, the members found

appellant guilty of an assault with a dangerous weapon and

acquitted him of the greater offense of intentionally inflicting

grievous bodily harm on the young boy.   Therefore, I conclude

that the military judge's ruling did not materially prejudice

appellant.




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