United States v. Harjak

33 M.J. 577, 1991 CMR LEXIS 873, 1991 WL 125295
CourtU.S. Navy-Marine Corps Court of Military Review
DecidedJune 18, 1991
DocketNMCM 90 0937
StatusPublished
Cited by5 cases

This text of 33 M.J. 577 (United States v. Harjak) is published on Counsel Stack Legal Research, covering U.S. Navy-Marine Corps Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Harjak, 33 M.J. 577, 1991 CMR LEXIS 873, 1991 WL 125295 (usnmcmilrev 1991).

Opinions

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]*581her 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]*582sion 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.

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Cite This Page — Counsel Stack

Bluebook (online)
33 M.J. 577, 1991 CMR LEXIS 873, 1991 WL 125295, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-harjak-usnmcmilrev-1991.