

   
   
   
   U.S. v. Hughes



UNITED STATES, Appellee
v.
Troy D. HUGHES, Senior Airman
U.S. Air Force, Appellant
 
No. 98-1129
Crim. App. No. 32359
 
United States Court of Appeals for
the Armed Forces
Argued October 20, 1999
Decided March 10, 2000
EFFRON, J., delivered the opinion
of the Court, in which CRAWFORD, C.J., GIERKE, J., and COX, S.J., joined.
SULLIVAN, J., filed an opinion concurring in the result.
 


Counsel
For Appellant: Captain Karen L.
Hecker (argued); Lieutenant Colonel Jeanne M. Rueth, Lieutenant
Colonel Ray T. Blank, Jr., and Major Carol L. Hubbard (on brief);
Colonel
Douglas H. Kohrt.
For Appellee: Captain Peter J. Camp
(argued); Colonel Anthony P. Datillo, Lieutenant Colonel Ronald
A. Rodgers, and Captain Milissa A. Burke (USAFR) (on brief);
Captain
Steven D. Dubriske.
Military Judge: Linda S. Murnane
 
 


THIS OPINION IS
SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.


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 FORCES 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 RCM 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 (1980). See
Idaho v. Wright, 497 U.S. 805 (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. Ureta, 44 MJ 290 (1996), cert.
denied, 519 U.S. 1059 (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. The appropriate
focus is on whether the child was "telling the truth when the statement
was made." Id. at 822.
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 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 rule 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).

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.


SULLIVAN, Judge (concurring in the
result):
Appellant was found guilty of committing
an indecent act on M.J.I., a 4-year-old girl "by fondling her and placing
his hands upon her private parts, with intent to gratify [his] sexual desires."
He was also found guilty of committing an indecent act on A.L.I., her 6-year-old
sister, "by fondling her and placing his hands upon her private parts,"
with same sexual intent. M.J.I. did not personally testify at appellant's
court-martial because the military judge found her unavailable within the
meaning of Mil. R. Evid. 804(a)(6). Numerous out-of-court statements made
by M.J.I. to her mother, her grandmother, her doctor, and a police detective
were admitted to show appellant's guilt. Also, evidence of uncharged acts
of sexual molestation by appellant against other children was admitted
in this case.

I
The military judge made the following
findings in ruling on appellant's Sixth Amendment-confrontation objection
to admission of M.J.I.'s out-of-court statements:



Thirteen, Mrs. [I] has made [A] and
[M.J.] available to the defense counsel for interview. [M.J.] did not speak
with the defense counsel. Fourteen, [M.J.] 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. [M.J.]'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.



(Emphasis added.) She later concluded:



The statements made to Mrs. [I.]
at her mother's house are admissible as residual hearsay. I find that [M.J.I.]
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). There are sufficient indicia of reliability
and sufficient guarantees of trustworthiness as to each of the statements
made by [M.J.I.] to Mrs. [I.] They are sufficient to satisfy the requirements
of Idaho versus Wright and Ohio v. Roberts. The defense Motion
in
Limine is denied. Any other matters the defense wishes to raise? Any
other motions?



In my view, the military judge's findings
of fact and the mother's testimony supporting it raised some questions
about M.J.I.'s competence as an out-of-court witness in this case. See
generally Mil. R. Evid. 601-603; Morey, The Competency Requirement
for the Child Victim of Sexual Abuse: Must We Abandon It 245, 251-52
(1985) (delineating requirements for competent child testimony under the
Federal Rules of Evidence); Graham, Indicia of Reliability and Face
to Face Confrontation: Emerging Issues in Child Sexual Abuse Prosecution
19, 76-77 (1984) (witness-competency qualifications under Federal Rules
of Evidence). See 5 Wigmore,
Evidence § 1424 (Chadbourn
rev. 1974); Myers, 2 Evidence in Child Abuse and Neglect Cases §
7.56 (3d ed. 1997). However, appellant did not move to disqualify M.J.I.
as a witness in this case on the basis of her lack of competence as a witness.
See
United States v. White, 45 MJ 345, 348 (1996). Moreover, I agree
with the majority below that a mere failure of this child to understand
the ramifications of her lying in court did not, per se,
render her incompetent as a hearsay witness. See United States
v. Morgan, 31 MJ 43, 47-48 (CMA 1990)("general inability to understand
an oath or affirmation to tell the truth" does not render child witness
incompetent where other evidence demonstrates that she knew the difference
between truth and falsity and intended to tell the truth), cert.
denied,
498 U.S. 1085 (1991). See also United States v. LeMere, 22
MJ 61, 66 (CMA 1986); see generally Myers,
supra § 3.22.
Of course, ignorance of the ramifications
of testifying in court is a factor to be considered by the judge in determining
whether appellant's constitutional right to confrontation was violated
by admission of M.J.I.'s out-of-court declarations as residual hearsay.
See
Idaho v. Wright, 497 U.S. 805, 817 (1990); Myers,
supra
§ 7.39 at 285. In this regard, appellant argued at trial:



Our concern with regard to all of
these statements is that the court address the issue of the circumstantial
guarantees of trustworthiness. Once again, simply because they are made
by a young child does not mean they automatically come in. Once again,
we're faced with the issue of Airman Hughes' right to confrontation. This
is a young lady, a little girl, who, when we attempted to question her,
wouldn't talk to us, that her mother indicates would not be able to come
in here and understand the significance of these proceedings and the importance
of telling the truth. So in addition to the circumstantial guarantees of
trustworthiness, we're also in a confrontation issue.



I have considered the analysis of the
appellate court below on this constitutional question and would adopt it
in toto. See 48 MJ at 710; see generally Swan v.
Peterson, 6 F.3d 1373, 1378-82 (9th Cir. 1993), cert.
denied,
513 U.S. 985 (1994).

II
The second granted issue in my view
has some merit with respect to admission of some of the uncharged-misconduct
evidence of sexual molestation of other children by appellant. However,
the erroneous admission of this evidence was clearly harmless. The prosecution,
as part of its case-in-chief, also introduced evidence of appellants pretrial
admissions, which virtually assured his conviction. The record states:



Q: Prior to interviewing the accused,
did you read the accused his rights?
A: I read him his state version of
the Miranda warning, the Miranda warning that I go under.
In my presence also the military version of his rights was also given to
him by Agent Schultz.
Q: Was the accused willing to answer
questions from both you and Agent Schultz?
A: Yes, sir.
Q: I have a few questions about that
interview that I'd like to ask you. What games did the accused . . . well
first, was the accused at the Super Bowl party at the [I.]'s residence
on the 28th of January?
A: Yes, sir.
Q: What did the accused say about being
in the children's, the girl's bedroom at the [I.] residence?
A: He said he was there.
Q: Did he say how long he was there?
A: He said it was from approximately
the first quarter on through the end of the game. I don't know if we
talked exact times. The game was probably three and a half or four hours
long.
Q: But he did give you, at least in
how long the game was, what period of the game he left from the living
room and how long he was back in the bedroom?
A: Yes, sir.
Q: What games did the accused say he
played with the girls?
A: There were several that he confirmed.
We had already interviewed the children, to some extent, and they had given
us some names of some games. He confirmed a half dozen games or so,
as I remember. Some of these were a wrestling game, playing with a ball,
blowing on a mirror. I'd have to check my notes for all the different
games that he talked about, but there were several.
Q: Do you remember what the accused
said he was wearing while he was in the room?
A: He said he was wearing jeans with
no underwear and a long tee shirt that went down past the waistline of
his pants.
Q: What did the accused say regarding
[M.J.I.] and blowing raspberries?
A: He confirmed what had previously
been alleged by the child that he had blown what was called a raspberry
on the child's buttocks area.
Q: What about [M.J.]'s clothing when
he blew the raspberries?
A: He had pulled the clothing to
the side to accomplish this.
Q: And where did he say he blew the
raspberries on [M.J.]?
A: I don't remember the exact verbiage
off the top of my head. It was just her buttocks area.
MJ: Just a moment.
(The military judge conferred with
the bailiff about the comings and goings in the spectator section.)
MJ: You may proceed.
Q: What did the accused say the girls
were wearing that night?
A: Shorts and tee shirts and panties.
Q: What did the accused say about
touching [M.J.] and [A.I.]?
A: He stated that he had touched
them.
Q: What description did he give you
for how he touched them?
A: He stated to me that he touched
the children on their bare vaginas and bare anuses under their clothing.
Q: And that was both children?
A: Yes, sir.
Q: What number of times did the accused
say this happened?
A: He did not elaborate as far as an
exact number. I tried to get him to be specific; however, the closest
I could get him would be several.
Q: And he said it was on their bare
vaginal area and bare anal area?
A: Yes, sir.
Q: How did the accused say this contact
happened several times?
A: He stated it happened accidentally
during one of the games, which was called the wrestling game, where they
were wrestling with one another.
Q: What discussion did you have with
the accused about the condition of both girls' vaginal area?
A: In further wanting to confirm that
these touches occurred, I wanted to see if the defendant could differentiate
between whether or not the girls' vaginal areas were wet or dry.
Q: Did you ask him that?
A: Yes, sir.
Q: What was the accused's answer?
A: He said that they were dry.
Q: What discussions did you have with
the accused about if the girls were lying about being touched?
A: I asked him if the girls were
lying about being touched and he replied several different times during
the interview that they were not.
Q: What did you ask the accused about
sleeping near [A.I.]?
A: He stated at some point during
the interview that he slept approximately 30 minutes next to [A.I.]
There was also some reference to a game called the sleeping game.
Q: Did anything happen while he slept
near [A.I.], according to the accused?
A: He said he was not certain, that
it could have, as he was asleep.
Q: What about bodily fluids from the
accused?
A: At some point during the interview,
I asked Mr. Hughes if there was any possibility of any of his bodily fluids
being at the crime scene, that being the children's residence and in particular,
the bedroom. His response was that there was possibly some saliva that
had been left at the crime scene . . . or excuse me . . . I often refer
to it as the crime scene, but at the girls' bedroom.
Q: Did you ask him how saliva could
have been left in the bedroom?
A: He stated that at some point during
wrestling, playing with the children, he had bit his tongue and that he
had reached up and licked his tongue to his hand to check to see if there
was blood still on his tongue. He visually demonstrated by putting four
fingers to his mouth.
Q: You say he held four fingers to
his mouth to visually demonstrate that?
A: Yes, sir.
Q: During this part of the interview,
what about semen or ejaculate?
A: He stated there would not be any
of his bodily fluids other than the saliva there.
Q: What did the accused say regarding
sexual thoughts and kids during the interview?
A: He stated that he did not have sexual
thoughts about children the ages of [M.] and [A.] . . . .



(Emphasis added.)
In addition, I note that 6-year-old
A.L.I. did testify to her own sexual molestation by appellant on the same
day, at that same Super Bowl Party, in the same room during appellant's
inexplicable and extended absence from the adults in the television room.
In these circumstances, with respect to the erroneous admission of uncharged-misconduct
testimony concerning other children, I agree with Senior Judge Snyder's
astute no-prejudice analysis. See 48 MJ at 733-34 (concurring in
part and concurring in the result).

III
The final issue in this case is:



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.



I note that the judge admitted evidence
of three out-of-court statements of M.J.I. under Mil. R. Evid. 804(b)(5).
Such evidentiary decisions are reviewed for an abuse of discretion, and
the appellate court below found no abuse of discretion in this case. 48
MJ at 709-10. Appellant argues that the factors cited by the appellate
court below for admission under this evidentiary rule were not based on
evidence in the record. I disagree.
I have examined the opinion of the
lower court on whether these statements of M.J.I. qualified for admission
as residual hearsay under Mil. R. Evid. 804(b)(5). Appellant does not argue
that the factors identified by that appellate court as showing "equivalent
circumstantial guarantees of trustworthiness" as required by this evidentiary
rule were improperly drawn from the Confrontation Clause case of Idaho
v. Wright, 497 U.S. 805 (1990). Indeed, if he did, I would reject this
argument. See United States v. Ureta, 44 MJ 290, 297 (1996),
cert.
denied,
519 U.S. 1059 (1997); United States v. Pollard, 38 MJ 41, 49 (CMA
1993); cf. United States v. Lyons, 36 MJ 183, 186-87 (CMA
1992). Otherwise, I conclude his argument is reduced to a simple disagreement
with the lower appellate court's reading of the record and, therefore,
it is without legal merit. See Art. 67(c), UCMJ, 10 USC § 867(c)
(1994).

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