                          UNITED STATES, Appellee


                                        v.


                 Shawn T. BRIDGES, Airman First Class
                            U. S. Air Force


                                  No. 00-0456

                            Crim. App. No. 33369


       United States Court of Appeals for the Armed Forces

                      Argued December 5, 2000

                      Decided May 29, 2001


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

                                    Counsel

For Appellant: Major Steven P. Kelly (argued); Colonel
James R. Wise and Lieutenant Colonel Timothy W. Murphy
(on brief).

For Appellee: Captain James C. Fraser (argued); Colonel
Anthony P. Dattilo, Lieutenant Colonel William B. Smith and
Major Lance B. Sigmon (on brief).

Military Judge:     Mary M. Boone

     THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Bridges, No. 00-0456/AF


     Chief Judge CRAWFORD delivered the opinion of the Court.

     Contrary to his pleas, appellant was convicted in June 1998

by officer and enlisted members of assaulting his 22-month-old

daughter and 9-month-old son, in violation of Article 128,

Uniform Code of Military Justice (UCMJ), 10 USC § 928.       The

convening authority approved a sentence of a bad-conduct

discharge, 6 months’ confinement, and reduction to the lowest

enlisted grade.   The Court of Criminal Appeals affirmed the

findings and sentence.   52 MJ 795 (2000).      We granted review of

the following issues:

          I. WHETHER THE AIR FORCE COURT OF CRIMINAL
          APPEALS ERRED WHEN IT HELD THAT APPELLANT WAIVED
          HIS SIXTH AMENDMENT RIGHT TO CONFRONT JULIA
          BRIDGES, THE PROSECUTION’S KEY WITNESS.

          II. WHETHER APPELLANT’S SIXTH AMENDMENT RIGHT TO
          CONFRONT WITNESSES AGAINST HIM WAS VIOLATED WHEN
          HIS WIFE’S STATEMENT TO LAW ENFORCEMENT
          INVESTIGATORS WAS ADMITTED UNDER MILITARY RULE
          OF EVIDENCE 804(b)(5).

     Based upon United States v. McGrath, 39 MJ 158 (CMA 1994),

we hold that the court below did not err, and there is no

violation of appellant’s Sixth Amendment right to confront and

cross-examine Mrs. Bridges.

                               FACTS

     During the findings portion of the trial, Mrs. Bridges was

called as a prosecution witness.       She gave her name, her address,

and length of residency at that address.      However, when she was

asked, “Do you remember going to your neighbor’s house ... your

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United States v. Bridges, No. 00-0456/AF


husband hit[ting] you that night ... slap[ping] you that night?”

and other questions, she refused to answer.    The judge then

dismissed the court members and held a session under Article

39(a), UCMJ, 10 USC § 839(a).

     At that session, Mrs. Bridges told the judge “it doesn’t

matter” whether she’s ordered to testify or not, she will refuse

to testify.   The witness also stated that even if she were held

in contempt, she would not respond to the judge’s questions.

Near the end of this session, after Mrs. Bridges said she was not

willing to answer “any of the questions that [the prosecutor]

poses to [her],” the judge asked, “Anything anybody else wants to

ask of this witness before I let her depart the courtroom?”     The

defense responded, “No, Your Honor.”

     The judge then asked defense counsel, “Are they in the

process or -- being just separated or what?”    The defense counsel

responded, “[T]hey are still married and they intend to remain

married.”   The defense also responded she did not want “to

testify [based on] the relationship with her husband."    Later,

when arguing the admissibility of a prior statement made by Mrs.

Bridges to law enforcement officers on December 8, 1997, the

defense indicated they would challenge Mrs. Bridges’ competency.

At that time, the judge gave the defense the opportunity to call

her “back up here” as a witness, but the defense declined that

invitation.


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United States v. Bridges, No. 00-0456/AF


        After this conversation, the judge determined that Mrs.

Bridges was “unavailable” to testify and admitted her prior

statement under the residual hearsay exception of Mil.R.Evid.

804(b)(5), Manual for Courts-Martial, United States (1998 ed.).1

To support its admission, the judge found that the following

factors supported the conclusion that the statement possessed

guarantees of trustworthiness:

        (1)   Appellant’s statement corroborated Mrs. Bridges’
              statement;

        (2)   The neighbors heard the children screaming;

        (3)   Mrs. Bridges “ran to a neighbor’s house and reported
              abuse by the accused;”

        (4)   She was “hysterical” at the time;

        (5)   Mrs. Bridges reported the abuse to the doctor; and

        (6)   Treatment was sought at the hospital for Mrs. Bridges’
              two children.

        After appellant’s conviction and during the sentencing

stage, the defense sought to introduce a second statement made

by Mrs. Bridges on June 15, 1998.       Trial counsel responded:

              Ma’am, for that one, we do have an objection.
              My concern is, of course, although we called
              her as a witness, she was unavailable, she
              won’t testify. She said she won’t testify.
              And if I called her back to cross-examine her about
              the contents of the letter or her bias or her motive,
              which will go into the allegations again, she won’t
              testify.

Thereafter, the following discussion took place between defense

counsel and the military judge:

1
    Now Mil.R.Evid. 807.
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United States v. Bridges, No. 00-0456/AF


          DC:   Your Honor, I believe that Captain Spath [the
                prosecutor] would have a valid point
                if she went in and discussed the events.
                However, she states very clearly that she’s
                talking about the impact that this will have upon
                her family. This is clearly matters in
                mitigation. While Captain Spath may be unhappy
                that he can’t cross-examine her about areas that
                are not included in this statement, under the
                relaxed rules of sentencing, I don’t think that’s
                a valid reason to keep this out.

                She does not go into the areas that he’s
                mentioned that he wants to cross-examine her
                about.

          MJ:   Well, but that’s the point. He’s saying the
                statement’s one-sided. She’s talking about all
                the stuff with the child and the impact, and yet,
                he can’t go into what was the impact at the time
                or what--you know, what was going on with the
                children.

                                    * * *

          MJ:   Well, she needs to rethink-- and I understand
                that she didn’t, but, you know, Captain Spath has
                the opportunity to call her back and she needs to
                be prepared and come-- and he has the opportunity
                to present rebuttal and to cross-examine her
                about this.... Mrs. Bridges needs to make a
                decision[.]

                                    * * *

          DC:   Well, ma’am, you know, there’s an easy way to
                resolve this. She’s here in this courtroom,
                she’s heard all this discussion, we can call her
                to the stand right now and we can ask her what
                she would do and you could instruct her that if
                she is going to be willing to answer questions,
                that she can’t stop in the middle, as Captain
                Spath just suggested.

          MJ:   Well, I can’t stop her from not stopping in the
                middle [sic]. I just won’t let you give them the
                exhibit [Mrs. Bridges’ statement made June 15,
                1998] until she’s answered questions. It’s that
                simple. Because-- are you going to call or Spath
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United States v. Bridges, No. 00-0456/AF


                  going to call her to answer questions?          You’re
                  not planning on calling her, right?

            DC:   I was not planning on calling her.


                                 DISCUSSION

      The Sixth Amendment provides in part that “[i]n all

criminal prosecutions, the accused shall enjoy the right ... to

be confronted with the witnesses against him,” together with “the

right ... to have compulsory process for obtaining witnesses in

his favor....”    Article 39(a)(4) provides for the “presence of

the accused,” and Article 46, UCMJ, 10 USC § 846, states that

“the defense counsel ... shall have equal opportunity to obtain

witnesses and other evidence....”

      If the right of confrontation and cross-examination means

anything, it means that the prosecution must present the hearsay

declarant at trial in an attempt to elicit the out-of-court

statement directly from the witness’s lips while on the witness

stand and under oath.     That was done in this case.

      The genesis for the current Sixth Amendment interpretation

is found in Justice Harlan’s concurring opinion in California v.

Green, 399 U.S. 149, 172 (1970).2         With Green as a roadmap, in

Ohio v. Roberts, 448 U.S. 56 (1980), the Supreme Court declared

“a preference for face-to-face confrontation at trial.”            Id. at

63 (emphasis added).     The Court held that hearsay is admissible


2
  In United States v. Owens, 484 U.S. 554, 559 (1988), the majority of the
Court expressly adopted Justice Harlan’s concurring opinion in Green.
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United States v. Bridges, No. 00-0456/AF


when the witness is unavailable and the hearsay either “falls

within a firmly rooted hearsay exception,” see, e.g., White v.

Illinois, 502 U.S. 346, 355 (1992), or has “particularized

guarantees of trustworthiness,”    see, e.g., Idaho v. Wright, 497

U.S. 805, 820 (1990).   448 U.S. at 66.      “[T]he Sixth Amendment

establishes a rule of necessity.       In the usual case (including

cases where prior cross-examination has occurred), the

prosecution must either produce, or demonstrate the

unavailability of, the declarant whose statement it wishes to use

against the defendant.”   Id. at 65.

     The Supreme Court has used a “cost benefit” analysis when

balancing witness unavailability with the “‘Confrontation

Clause’s very mission’ which is to ‘advance “the accuracy of the

truth-determining process in criminal trials.”’”      United States

v. Inadi, 475 U.S. 387, 396 (1986), quoting Tennessee v. Street,

471 U.S. 409, 415 (1985), quoting Dutton v. Evans, 400 U.S. 74,

89 (1970).   See also United States v. Johnston, 41 MJ 13 (CMA

1994)(purpose of a trial is truth-finding within constitutional,

statutory, and ethical constraints).

     The unavailability requirement is inapplicable in some

situations, for example, where the utility of confrontation is

“remote,” Roberts, 448 U.S. at 65 n.7, or the exception is

“firmly rooted,” as in statements of co-conspirators, Inadi,

supra; declarations against interest, United States v. Jacobs, 44


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United States v. Bridges, No. 00-0456/AF


MJ 301 (1996)3; dying declarations; business records; and public

records, 448 U.S. at 66 n.8.       Conversely, the residual hearsay

exception is not firmly rooted -- thus, the requirement to

establish unavailability and particularized guarantees of

trustworthiness.     Idaho v. Wright, supra.

      A witness is unavailable when she “persists in refusing to

testify concerning the subject matter of [her] statement despite

an order of the military judge to do so....”          Mil.R.Evid. 804(a)

In this case, appellant’s wife was called to the witness stand

and stated her name, address, and how long she had been living at

that address.    Then she told the judge that she would not

testify, even if ordered to do so.        Only after her refusal to

testify further and defense counsel’s declination of the

opportunity to cross-examine her was the prosecution allowed to

introduce her statement given to law enforcement officials on

December 8, 1997.     The prosecution was not responsible for the

unavailability resulting from the refusal of the witness to

testify.    See, e.g., Berger v. California, 393 U.S. 314 (1969);

Barber v. Page, 390 U.S. 719 (1968).         Mrs. Bridges was, in

effect, invoking her “marital privilege.”

      This case is strikingly similar to United States v.

McGrath, supra, and United States v. Martindale, 40 MJ 348 (CMA

1994).     In both of these cases, we held that when a witness is


3
  We need not decide if Mrs. Bridges’ statement was a declaration against
interest and, thus, a firmly rooted exception to the hearsay statement.
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United States v. Bridges, No. 00-0456/AF


present and confrontation is not at issue, the judge may employ

extrinsic circumstances to corroborate the witness’s prior

statement the proponent seeks to admit.

     In McGrath, the accused’s 14-year-old daughter, A, was

called by the prosecution as a witness.    When asked if she had

made statements implicating appellant, A refused to answer.

Additionally, she refused to retract or confirm her prior

statements.   A admitted that she appeared in court because she

received a German subpoena.    A said she did not want to testify

because she wanted to avoid any potential harm to her father.

Just as in the case sub judice, when the military judge concluded

his questioning of A’s daughter, he offered defense counsel an

opportunity to question the witness, and defense counsel

declined.   39 MJ at 159-61.   Likewise, in Martindale, there was a

voluntary confession, and the witness-declarant was tendered to

the defense, but they expressly waived the right to confront the

witness at trial.   40 MJ at 349.

     Just like the witness in McGrath, Mrs. Bridges was present,

was placed under oath, and gave identifying information but

refused to respond to additional questions.    When defense counsel

was asked whether they had any questions for Mrs. Bridges, they

replied in the negative.   Additionally, defense counsel informed

the judge that Mrs. Bridges would not testify because she

intended to remain married to appellant and her refusal to


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United States v. Bridges, No. 00-0456/AF


testify was motivated by this relationship.    The defense said

that they had talked with Mrs. Bridges and knew her desires.

     During sentencing, the defense noted that she was willing

to testify in mitigation about the “impact” the findings would

have upon her family.    The judge told defense counsel that Mrs.

Bridges “needs to make a decision” about whether she will be

subject to cross-examination.    The defense said that decision

will be easy because “[s]he’s here in this courtroom, she’s heard

all this discussion.”    The defense then stated that they were not

planning to call her as a witness.    They only wanted to introduce

her written statement.   However, the judge ruled that unless Mrs.

Bridges would be willing to be called and be subject to cross-

examination, she would not admit the written statement.

Ultimately, the statement was not admitted.

     Just as in McGrath, “it is clear that examination of the

victim, direct or cross, was the very last thing on earth the

defense wanted to have happen.    Having thus eschewed

confrontation, appellant cannot now claim a denial of it.”     39 MJ

at 163.   We agree with the Court below:

                Had the defense made a sincere effort to
           examine the witness and she still refused to
           testify, the issue would be different. However,
           when a witness is produced at trial and the
           defense makes no effort at all to avail of the
           opportunity thereby provided to test the
           recollection and conscience of the witness, it is
           clear that the defense waives cross-examination.
           And, that waiver of cross-examination satisfies
           the [unavailability] requirements of the
           Confrontation Clause.
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United States v. Bridges, No. 00-0456/AF



52 MJ at 800.

     As in McGrath, “the Government did not seek to rely on

paper evidence, but rather produced the witness.”     Id. at 163.

Thus, we hold that it was appropriate for the judge to consider

factors outside the making of the statement to establish the

reliability of Mrs. Bridges’ December 8, 1997, statement to law

enforcement officials and to admit her statement during the

prosecution’s case-in-chief.

     This is not the case of a witness who was absent.    In fact,

Mrs. Bridges was present and on the witness stand during the

case-in-chief, and present in the courtroom during sentencing.

Nor is this a case where the defense made any attempt to impeach

the pretrial statement of Mrs. Bridges.    This is a case of a

witness trying to protect her interests, and by so doing,

allowing appellant now to use the lack of cross-examination as a

sword.   This is a witness who was made available, but for

reasons known to her, defense counsel, and possibly appellant,

was unwilling to testify.   In summary, it is enough that

appellant and defense counsel were brought face-to-face with the

witness and given an opportunity to ask the judge to order her

to testify, encourage her to testify, cross-examine her, or

offer evidence to discredit the pretrial statement.    The defense

took none of these actions.



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United States v. Bridges, No. 00-0456/AF


                            DECISION

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




                                12
United States v. Bridges, 00-0456/AF



    SULLIVAN, Judge (concurring in the result):


    I vote to affirm this case, but I do so via a different path.

I do so since the majority opinion’s approach to this case

troubles me.   It first suggests that appellant’s constitutional

right to confrontation was not an issue because Mrs. Bridges was

called to the stand as a witness prior to the admission of her

hearsay statement under Mil.R.Evid. 804(b)(5).    ___ MJ at (9).   A

similar question was addressed by the Supreme Court in United

States v. Owens, 484 U.S. 554 (1988).    See also Delaware v.

Fensterer, 474 U.S. 15 (1985).   There, the Supreme Court said

that the constitutionally required “guarantees of

trustworthiness” are not “called for when a hearsay declarant is

present at trial and subject to unrestricted cross-examination.”

Id. at 560 (emphasis added).   Clearly, Mrs. Bridges was not

subject to unrestricted cross-examination in this case because

she refused to answer any questions.    See United States v.

Vernor, 902 F.2d 1182, 1186 (5th Cir. 1990) (hearsay statement of

witness who asserted Fifth Amendment privilege subject to

constitutional standard of trustworthiness).    Even United States

v. McGrath, 39 MJ 158, 163 (CMA 1994), recognized this point.



    Merely bringing an appellant and witness face-to-face and

asking the judge to order a recalcitrant witness to testify does

not constitute an effective or meaningful opportunity for cross-
United States v. Bridges, 00-0456/AF


examination.   The prosecution had elicited precious little

information about Julia Bridges that could be questioned by

defense counsel.   Requiring a defense counsel in this situation

to conduct a pointless cross-examination (or, alternately, asking

the judge to order the witness to testify) in order to preserve

an accused’s confrontation rights is equally hollow, i.e., “The

law does not require the doing of a futile act.”       Ohio v.

Roberts, 448 U.S. 56, 74 (1980).       A need for a constitutional

showing of trustworthiness existed in this case.       See United

States v. Vernor, supra.



    Next, the majority opinion appears to hold that there is no

constitutional confrontation issue in this case because appellant

waived his right to cross-examine Mrs. Bridges.       Its analysis

focuses on the decision of this Court in United States v.

McGrath, supra, but overlooks applicable Supreme Court precedent

on waiver of the constitutional right to confrontation.       See

Brookhart v. Janis, 384 U.S. 1 (1966).       I find this approach

unsatisfactory.



    In Brookhart v. Janis, the Supreme Court addressed waiver of

the right to confrontation as follows:



            The question of a waiver of a federally
          guaranteed constitutional right is, of
          course, a federal question controlled by
          federal law. There is a presumption


                                   2
United States v. Bridges, 00-0456/AF


          against the waiver of constitutional
          rights, see, e.g., Glasser v. United
          States, 315 U.S. 60, 70-71, and for a
          waiver to be effective it must be clearly
          established that there was “an intentional
          relinquishment or abandonment of a known
          right or privilege.” Johnson v. Zerbst,
          304 U.S. 458, 464.

            In deciding the federal question of
          waiver raised here we must, of course,
          look to the facts which allegedly support
          the waiver. Upon an examination of the
          facts shown in this record, we are
          completely unable to agree with the
          Supreme Court of Ohio that the petitioner
          intelligently and knowingly waived his
          right to cross-examine the witnesses whose
          testimony was used to convict him.

384 U.S. at 4-5 (footnote omitted).

    Turning to the facts of appellant’s case, as described by the

majority opinion, I see no waiver by appellant of his right to

cross-examine his wife.   More is required than a failure of

defense counsel to cross-examine the witness.   See Hawkins v.

Hannigan, 185 F.3d 1146, 1155 n.5 (10th Cir. 1999), citing

Cruzado v. People of Puerto Rico, 210 F.2d 789, 791 (1st Cir.

1954) (approving waiver by defense counsel stipulation); United

States v. Figueroa, 976 F.2d 1446, 1457 (1st Cir. 1992).     Here

defense counsel was told in advance by the witness that she would

answer no questions.   There was no stipulation in this case, and

I see no strategic inaction in his subsequent failure to question

this recalcitrant witness.   United States v. McGrath, supra at

170 (Sullivan, J., dissenting) (defense offered chance to cross-




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United States v. Bridges, 00-0456/AF


examine victim but declined after witness asserted that she would

not answer).



   Since I see a confrontation issue in this case, my remaining

question is whether there were particular guarantees of

trustworthiness surrounding the making of Mrs. Bridges’ out of

court statement which warranted its admission at appellant’s

court-martial.   In my view, Idaho v. Wright, 497 U.S. 805 (1990),

not McGrath or United States v. Martindale, 40 MJ 348 (CMA 1994),

controls.



    Here, there were several factors surrounding the making of

her statement which provided the necessary particularized

guarantees of trustworthiness.   Mrs. Bridges’ statement was

handwritten shortly after the alleged incident on December 8,

1997; it was made to security forces called to the scene by

Annette Richner at the request of Mrs. Bridges; Ms. Richner also

said Mrs. Bridges was hysterical shortly after the alleged

incident before making the statement; another witness stated that

she heard appellant yelling at his daughter through the wall of

their duplex-type, on-base residence shortly before her statement

was made; and finally, evidence was admitted that Mrs. Bridges

made a second consistent statement at Abilene Regional Hospital,

90 minutes later, when she sought medical treatment for her two

children.   See United States v. Orena, 32 F.3d 704, 712 (2d Cir.



                                 4
United States v. Bridges, 00-0456/AF


1994) (statements made during life and death battle); United

States v. Bradley, 145 F.3d 889, 895 (7th Cir. 1998) (admission of

wife’s statement to officers responding to emergency call

satisfies Idaho v. Wright); cf. United States v. Mitchell, 145

F.3d 572, 579 (3d Cir. 1998) (admission of anonymous note

violates Idaho v. Wright).




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United States v. Bridges, No. 00-0456/AF


BAKER, Judge (concurring in the result):

     For the reasons stated by Judge Sullivan, I do not

believe the record reflects that appellant waived his right

to cross-examine Mrs. Bridges.     Although it may have been

to appellant's immediate tactical advantage not to cross-

examine Mrs. Bridges, where, as here, it was apparent to

all present that Mrs. Bridges would not testify, we should

not place form over substance and require defense counsel

to engage in a charade in order to preserve the

constitutional right of cross-examination.     As Judge

Sullivan has observed elsewhere, defense counsel's position

on cross-examination may well change in response to a

military judge's ruling on the admission of an out of court

statement.    United States v. McGrath, 39 MJ 158, 170 (CMA

1994)(Sullivan, J., dissenting).     Nonetheless, I concur in

the result.

     In this case, the military judge correctly determined

that Mrs. Bridges was not available for the purpose of

cross-examination and, therefore, the Government

established the necessity of introducing her out-of-court

statement into evidence.    And, although the judge's ruling

was in response to the attempts of trial counsel to

question Mrs. Bridges, her ruling on availability was not

limited to the Government.    The military judge also


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United States v. Bridges, No. 00-0456/AF


correctly determined that Mrs. Bridges' statement carried

adequate indicia of reliability.     This is true whether this

Court relies on waiver and McGrath (relying on

particularized guarantees of trustworthiness from

corroborating evidence unrelated to the making of the

statement), or as Judge Sullivan and I argue, in the

absence of waiver, the Court limits its inquiry to indicia

of reliability surrounding the making of the statement

itself.     Idaho v. Wright, 497 U.S. 805, 820 (1990).

     The judge's findings of fact and conclusions of law

regarding admissibility satisfy both tests.     The

particularized guarantees of trustworthiness surrounding

the making of Mrs. Bridges' statement include the

following: her statement was made under oath; her statement

was made "within fairly close proximity" to the events in

question; and her statement was against her own pecuniary

interest, evidenced in part by her subsequent refusal to

testify.∗    In light of these factors, it is not necessary to

look to additional extrinsic circumstantial guarantees of

trustworthiness, such as the observations of Mrs. Bridges'

neighbors; the circumstances surrounding her response to


∗
 I leave for another day, whether this latter factor alone
would have warranted admission of Mrs. Bridges' statement
as a firmly rooted hearsay exception. Id. at 815.


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United States v. Bridges, No. 00-0456/AF


security forces; or statements made to the attending

physician when she sought treatment for her two children.




                             3
