                                    IN THE CASE OF


                             UNITED STATES, Appellee

                                             v.

                   Stevon J. TAYLOR, Fireman Apprentice
                           U.S. Navy, Appellant

                                      No. 04-0588
                            Crim. App. No. 200202294

       United States Court of Appeals for the Armed Forces

                               Argued March 8, 2005

                               Decided June 2, 2005


EFFRON, J., delivered the opinion of the Court, in which GIERKE,
C.J., and CRAWFORD, BAKER, and ERDMANN, JJ., joined.


                                         Counsel


For Appellant:       Lieutenant Brian L. Mizer, JAGC, USNR (argued).



For Appellee: Lieutenant Craig A. Poulson, JAGC, USNR (argued);
    Commander Charles N. Purnell, JAGC, USN, Lieutenant Colonel
    William K. Leitzau, USMC, and Lieutenant Frank L. Gatto,
    JAGC, USNR (on brief).


Military Judge:        Thomas K. Leak


        THIS   OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION .
United States v. Taylor, No. 04-0588/NA



    Judge EFFRON delivered the opinion of the Court.

    At a special court-martial composed of a military judge

sitting alone, Appellant was convicted, contrary to his plea, of

desertion in violation of Article 85, Uniform Code of Military

Justice (UCMJ), 10 U.S.C. § 885 (2000).   Appellant was sentenced

to a bad-conduct discharge, confinement for 150 days, and

reduction to pay grade E-1.   The convening authority approved

the sentence as adjudged.   The United States Navy-Marine Corps

Court of Criminal Appeals affirmed the findings and sentence in

an unpublished opinion.   United States v. Taylor, No. NMCCA

200202294 (N-M. Ct. Crim. App. Apr. 23, 2004).

     On Appellant’s petition, this Court granted review of the

following issue:

          WHETHER, IN LIGHT OF THE SUPREME COURT’S
          RULING IN CRAWFORD v. WASHINGTON, 124 S. CT.
          1354 (2004), PROSECUTION EXHIBITS 2 AND 3
          CONSTITUTE TESTIMONIAL HEARSAY REQUIRING
          THAT THEIR DECLARANTS BE SUBJECT TO CROSS-
          EXAMINATION AS REQUIRED BY THE SIXTH
          AMENDMENT TO THE U.S. CONSTITUTION.

Additionally, we specified the following two issues:

          WHETHER, APART FROM THE CONFRONTATION ISSUE
          OF CRAWFORD v. WASHINGTON, 124 S. CT. 1354
          (2004), THE MILITARY JUDGE ABUSED HIS
          DISCRETION IN ADMITTING PROSECUTION EXHIBITS
          2, 3, AND 5 OVER DEFENSE OBJECTION.

          WHETHER THE EVIDENCE PRESENTED ON THE MERITS
          WAS LEGALLY SUFFICIENT TO PROVE BEYOND A
          REASONABLE DOUBT THAT APPELLANT WAS GUILTY
          OF DESERTION FROM HIS ORGANIZATION, THE NAVY


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United States v. Taylor, No. 04-0588/NA


          ABSENTEE COLLECTION AND INFORMATION CENTER,
          ON OR ABOUT 30 DECEMBER 1994, AND THAT THIS
          DESERTION WAS TERMINATED BY APPREHENSION ON
          OR ABOUT 20 OCTOBER 2001.

For the reasons stated below, we conclude that the military

judge erred in admitting Prosecution Exhibits 2 and 3, and that

the error was prejudicial.



                             I. BACKGROUND

     The specification charged that Appellant:

          on or about 30 December 1994, without
          authority and with intent to remain away
          therefrom permanently, absent[ed] himself
          from his organization, to wit: Navy
          Absentee Collection and Information Center,
          located at Great Lakes, Illinois, and did
          remain so absent in desertion until he was
          apprehended on or about 20 October 2001.

     In the armed forces, each unit prepares a daily report,

such as a morning report or a muster report, to account for the

attendance of military personnel in that unit.      In a desertion

case in the Navy, the prosecution typically introduces a record

known as a “page 6,” which documents an unauthorized absence in

the servicemember’s personnel records.       For reasons not apparent

in the record of trial, the prosecution in the present case did

not produce a muster report or the page 6 from Appellant’s

personnel record.   Instead, the prosecution relied on the

information in two naval messages, Prosecution Exhibit 2 (P.E.




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United States v. Taylor, No. 04-0588/NA


2) and Prosecution Exhibit 3 (P.E. 3) to prove the dates of

Appellant’s absence and the elements of the offense.

     Documents such as P.E. 2 and P.E. 3 are hearsay when

offered into evidence to prove the truth of a matter asserted in

the text of the document.   See Military Rule of Evidence

(M.R.E.) 801(c).   Although hearsay is generally inadmissible,

see M.R.E. 802, the rules contain a number of exceptions under

which hearsay statements may be introduced.   See, e.g., M.R.E.

803, 804.

     M.R.E. 803(8) creates several exceptions that permit the

introduction of hearsay within certain records or reports from

public offices or agencies, including public records that

describe “matters observed pursuant to duty imposed by law as to

which matters there was a duty to report.”    M.R.E. 803(8)(B).

The exception does not apply to matters observed by “police

officers and other personnel acting in a law enforcement

capacity.”   Id.   Nor does the exception apply to documents if

the “sources of information or other circumstances indicate lack

of trustworthiness.”   M.R.E. 803(8); see also Edward J.

Imwinkelried, Evidentiary Foundations § 10.06[2], at 415-16 (5th

ed. 2002) (discussing the elements of the foundation for public

records).

     Unlike its counterpart in the Federal Rules of Evidence,

M.R.E. 803(8) provides a further exception for specific types of


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United States v. Taylor, No. 04-0588/NA


public records that are admissible even if they do not satisfy

one of the categories specified by the rule.   See United States

v. Broadnax, 23 M.J. 389, 391 (C.M.A. 1987).    This exception

includes “morning reports and other personnel accountability

documents” if “made by a person within the scope of the person’s

official duties and those duties included a duty to know or to

ascertain through appropriate and trustworthy channels of

information the truth of the fact or event and to record such

fact or event.”   M.R.E. 803(8).   Under this exception, a

standard personnel accountability document such as a morning

report is admissible if it meets the above criteria, even if the

document records a matter observed by law enforcement personnel.

     The pertinent documents admitted in Appellant’s court-

martial were photocopies of the original records.   M.R.E. 1005

provides that the contents of an official record may be proven

by a copy if the copy is (1) certified as correct or attested to

in accordance with M.R.E. 902, or (2) testified to be correct by

a witness who has compared it with the original.    The rule

indicates a clear preference for these two methods, but also

allows other evidence of the contents of a record to be given if

the Government exercises reasonable diligence but is unable to

obtain a copy that complies with the above requirements.     M.R.E.

1005; see 2 Steven A. Saltzburg et al., Military Rules of

Evidence Manual § 1005.02, at 10-17 (5th ed. 2003).


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United States v. Taylor, No. 04-0588/NA


                          II. DISCUSSION

                     A. PROSECUTION EXHIBIT 2

     P.E. 2, one of the exhibits the Government sought to

introduce against Appellant in this case, is a copy of a

document identified by the Government’s foundation witness,

Legalman First Class (LN1) Sharell A. Welch, as a declaration of

desertion message.   LN1 Welch, the military justice supervisor

for the staff judge advocate’s office at Naval Air Station

Pensacola, which handled the administrative processing regarding

Appellant when he was returned to military control, stated that

the Naval Military Personnel Manual requires a declaration of

desertion message to be created when a member of the armed

forces fails to report for duty.       Bureau of Naval Personnel,

Naval Military Personnel Manual (MILPERSMAN) Article 1600-060

(Aug. 2002, updated May 3, 2005).      In accordance with the format

for declaration of desertion messages specified in the Naval

Military Personnel Manual, the document indicates that Appellant

was declared a deserter from the USS L. Y. Spear on September

30, 1994.   See MILPERSMAN 1600-060.      There is, however,

additional content at the bottom of the document that is not

part of the declaration of desertion message, including a date

stamp of September 26, 1995, and what appears to be an upside-

down and backward portion of a preprinted form.




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United States v. Taylor, No. 04-0588/NA


     At trial, defense counsel objected to P.E. 2 on numerous

grounds, including relevancy, hearsay, improper foundation, and

authenticity.   The military judge overruled the objections and

allowed P.E. 2 to be admitted into evidence.    We review a

military judge’s ruling on evidentiary matters for an abuse of

discretion.   United States v. McDonald, 59 M.J. 426, 430

(C.A.A.F. 2004).

     The Government contends that P.E. 2 was a personnel

accountability document, admissible under the specific exception

provided for such documents in M.R.E. 803(8).   P.E. 2, however,

is not a routine accountability document.   In addition to the

information concerning desertion, there is unreadable content on

the document.   The Government could not shed light upon this

portion of the exhibit.   In view of this unknown content on the

document, indecipherable even to the party attempting to

introduce it, P.E. 2 was not admissible as a personnel

accountability document under M.R.E. 803(8).

     We next consider whether P.E. 2 was admissible under the

M.R.E. 803(8)(B) hearsay exception for “matters observed

pursuant to duty imposed by law as to which matters there was a

duty to report.”   This exception does not apply, however, if

“the sources of information or other circumstances indicate lack

of trustworthiness.”   M.R.E. 803(8).   When the Government is

unable to explain the content of a record it is attempting to


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United States v. Taylor, No. 04-0588/NA


introduce, the document does not satisfy the principles of

trustworthiness applicable to M.R.E. 803(8).    See 5 Jack B.

Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence §

803.10[1] (Joseph M. McLaughlin ed., 2d ed. 2005).

        Even if P.E. 2 fell within a hearsay exception under M.R.E.

803(8), it would not qualify as an admissible copy under M.R.E.

1005.    The prosecution acknowledged at trial that P.E. 2 was not

certified or attested to, and the Government’s foundation

witness, LN1 Welch, did not testify that she compared it with

the original document.    The Government asserts that M.R.E. 1005

was satisfied despite these deficiencies because the Government

presented other evidence of the contents of the record.    The

Government, however, could rely on such other evidence only by

demonstrating that, through the exercise of reasonable

diligence, it could not obtain a certified or attested copy or a

copy identified as being correct by a witness who compared it to

the original.    See Saltzburg § 1005.02, at 10-17.   In this case,

there is no indication that the Government even attempted to

authenticate P.E. 2 through one of the preferred methods, let

alone that it used reasonable diligence.    Because P.E. 2 did not

meet a hearsay exception and did not qualify as an admissible

copy, the military judge abused his discretion by admitting P.E.

2 over defense counsel’s objections.




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United States v. Taylor, No. 04-0588/NA


                       B. PROSECUTION EXHIBIT 3

     P.E. 3, the other naval message introduced by the

prosecution, is a copy of an e-mail sent from Naval Air Station

Pensacola to numerous recipients.     LN1 Welch identified the

document as a declaration of return from desertion message,

which she stated was required by the Naval Military Personnel

Manual.   See MILPERSMAN 1600-070 (Aug. 2002, updated Sept. 9,

2004).    The message indicates that Appellant deserted from the

Navy Absentee Collection and Information Center on December 30,

1994, that he was apprehended by the Longview Police Department

on March 7, 2001, and that he was returned to military control

on October 20, 2001.    LN1 Welch testified that her office

created P.E. 3 upon Appellant’s return to military control.

     At trial, defense counsel objected to P.E. 3 on the basis

that it constituted “hearsay within hearsay,” noting that LN1

Welch testified that the individual in her office who created

P.E. 3 relied upon a movement authorization document and a DD

553 arrest warrant in preparing the message.      Although trial

counsel acknowledged that the Government did not intend to admit

the DD 553 arrest warrant into evidence, trial counsel

maintained that the DD 553 arrest warrant was not inadmissible

hearsay because it fell under the public records exception.        The

military judge admitted P.E. 3 into evidence, overruling defense

counsel’s objections.


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United States v. Taylor, No. 04-0588/NA


     Because the preparer of P.E. 3 obtained the information

from other hearsay documents -- the DD 553 arrest warrant and

the movement authorization document -- P.E. 3 was admissible

only if those documents were admissible under a hearsay

exception.   M.R.E. 805.   LN1 Welch testified that the arrest

warrant was created by the Navy Absentee Collection Unit in

Great Lakes, Illinois.     The record indicates that the DD 553

arrest warrant was issued in April 2000 -– more than five years

after Appellant’s alleged desertion and more than a year and a

half before his apprehension.    The only foundation evidence

elicited by the prosecution during trial was a statement by LN1

Welch that DD 553 arrest warrants were maintained by the Navy

and prepared in the regular course of business.

     Such information did not provide a sufficient basis for

concluding that the DD 553 arrest warrant introduced in the

present case was admissible under the M.R.E. 803(8)(B) hearsay

exception.   Arrest warrants based upon the observations of

persons acting in a law enforcement capacity are not admissible

under M.R.E. 803(8)(B).    The record in this case does not

provide a basis for concluding that the arrest warrant at issue

here was not covered by M.R.E. 803(8)(B).

     To the extent that the last sentence of M.R.E. 803(8)

permits admission of designated military documents, the DD 553

at issue here did not meet the rule’s criteria for admissibility


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United States v. Taylor, No. 04-0588/NA


because the prosecution offered no evidence as to the identity

or duties of the declarant of the DD 553.    As a result, the

record does not establish that the DD 553 was “made by a person

within the scope of the person’s official duties and those

duties included a duty to know or to ascertain through

appropriate and trustworthy channels of information the truth of

the fact or event and to record such fact or event.”    M.R.E.

803(8).   The record of trial provides even less information

regarding the other source for P.E. 3, the movement

authorization document.   The movement authorization document was

not admitted into evidence and its contents are unknown, as are

the circumstances surrounding its preparation and the duties of

its unidentified declarant.     Like the DD 553 arrest warrant, the

movement authorization document does not satisfy any of the

exceptions created by M.R.E 803(8).    Because the declarant of

P.E. 3 relied on inadmissible hearsay in creating the document,

the military judge erred in admitting P.E. 3.



                           C.    PREJUDICE

     Because we hold that the military judge abused his

discretion in admitting P.E. 2 and P.E. 3, we must now determine

whether the error materially prejudiced the substantial rights

of the accused.   See Article 59(a), UCMJ, 10 U.S.C. § 859

(2000).   For a nonconstitutional error, “the Government must


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United States v. Taylor, No. 04-0588/NA


demonstrate that the error did not have a substantial influence

on the findings.”   United States v. McCollum, 58 M.J. 323, 342

(C.A.A.F. 2003).    When evaluating the harm from the erroneous

admission of Government evidence, this Court weighs “(1) the

strength of the Government’s case, (2) the strength of the

defense case, (3) the materiality of the evidence in question,

and (4) the quality of the evidence in question.”   McDonald, 59

M.J. at 430 (citing United States v. Kerr, 51 M.J. 401, 405

(C.A.A.F. 1999)).

     In Appellant’s court-martial, the Government was required

to prove the following elements of desertion terminated by

apprehension:   (1) Appellant absented himself from his

organization; (2) the absence was without authority; (3)

Appellant intended to remain away from his organization

permanently; (4) Appellant remained absent until the date

alleged; and (5) Appellant’s absence was terminated by

apprehension.   See Article 85, UCMJ, 10 U.S.C. § 885 (2000).

     Apart from P.E. 2 and P.E. 3, the Government’s evidence

consists of Prosecution Exhibit 1 (P.E. 1), Prosecution Exhibit

5 (P.E. 5), and the testimony of Police Officer Charles D.

Ferrell.   P.E. 1 is Appellant’s service contract, which does not

establish any of the elements.   P.E. 5 consists of a certificate

of attestation and fourteen pages of attested copies of

documents from the Gregg County Clerk’s Office in Texas.    The


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United States v. Taylor, No. 04-0588/NA


documents show that during the period Appellant was allegedly

absent, he was convicted three times and was subject to two sets

of probation conditions, both of which were revoked.    The

military judge ruled that P.E. 5 was admissible for the limited

purpose of showing Appellant’s intent to remain away, only one

of the five elements.

     Police Officer Ferrell of the Longview Police Department

testified about his apprehension of Appellant in Longview,

Texas, on March 7, 2001.   Although Officer Ferrell’s testimony

establishes that Appellant’s absence was terminated by

apprehension, it is not sufficient to establish that Appellant

absented himself from his organization without authority.

Consequently, without P.E. 2 and P.E. 3, the Government could

not establish all of the elements of the charge against

Appellant.   Because the improperly admitted evidence had a

substantial influence on the findings, we will set aside the

findings and authorize a rehearing.    See Lockhart v. Nelson, 488

U.S. 33 (1988).   In view of our resolution of this case on

nonconstitutional grounds, we need not address the granted issue

concerning constitutional questions under Crawford v.

Washington, 541 U.S. 36 (2004).




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United States v. Taylor, No. 04-0588/NA


                          III. CONCLUSION

     The military judge erred in admitting P.E. 2 and P.E. 3.

The decision of the United States Navy-Marine Corps Court of

Criminal Appeals affirming the finding of guilty and the

sentence is reversed.   The finding of guilty and the sentence

are set aside.   The record of trial is returned to the Judge

Advocate General of the Navy, and a rehearing is authorized.




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