United States v. Meyers

18 M.J. 347, 1984 CMA LEXIS 18682

• Court: United States Court of Military Appeals
• Decided: August 6, 1984
• Docket: CM 441921; No. 44,642
• Status: Published

Opinions

Opinion of the Court

FLETCHER, Judge:

Appellant was tried by general court-martial at Wuerzburg, Federal Republic of Germany, on September 28, 1981. Contrary to his pleas, he was found guilty of possession, transfer, and sale of marihuana on April 29, 1981. The members of his court-martial sentenced him to confinement at hard labor for 2 years, forfeiture of $250.00 pay per month for 24 months, and reduction to pay grade E-l. The convening authority approved and the Court of Military Review affirmed the findings of guilty and the sentence. 14 M.J. 749 (1982).

This Court granted review on the following issue of law:

WHETHER THE MILITARY JUDGE IMPROPERLY ADMITTED PROSECUTION EXHIBIT 3, AN MP’S INVESTIGATION REPORT, AS A PRIOR CONSISTENT STATEMENT WHEN THE WITNESS HAD MADE NO PRIOR INCONSISTENT STATEMENT.

Examination of the final briefs in this case indicates that appellant now further asserts that the Government failed to show that the prior consistent statement was made before the witness’ purported motive for falsification arose. United States v. Quinto, 582 F.2d 224, 234 (2d Cir. 1978). Cf. Analysis of Mil.R.Evid. 801(d)(1)(B), Appendix 18, Manual for Courts-Martial, United States, 1969 (Revised edition). We hold both these contentions are without merit.

The Court of Military Review made the following findings of fact:

The prosecution’s case rested primarily on the testimony of a covert military police investigator, Specialist Four Nurse. Nurse testified that on 29 April 1981, he and a confidential informant were walking along a street in Leighton Barracks when the appellant drove by and called out to the informant. The informant approached the appellant and asked if the appellant “had anything.” The informant and Nurse then entered the appellant’s automobile and drove to a nearby parking lot where the appellant produced a plastic bag containing seventy-two pieces of hashish. Nurse purchased four pieces for $80.00 and then offered to buy the remainder for a total of $1440.00. Because Nurse did not have sufficient money with him, he arranged to meet the appellant at an enlisted club later that day. However, the appellant failed to appear at the agreed time.

Specialist Nurse further testified that he encountered the appellant again on 6 May, when the appellant apologized for not showing up on the evening of 29 April, and explained that he did not appear because he feared that Nurse was a military policeman.

On cross-examination the defense questioned Nurse about a written pretrial statement which Nurse had made. It is that statement that the appellant now contends was erroneously admitted. During his cross-examination the individual defense counsel implied that Nurse had no independent recollection of the date on which he and the appellant had first met but was relying on his prior statement, and that Nurse had so many ongoing investigations that he had mixed up the details of this case with others.

The appellant denied any contact with Nurse and the informant on 29 April. He testified that he met Nurse for the first time on 4 May but that no sale of hashish occurred.

The prosecution offered Nurse’s prior statement as a prior consistent statement, but the military judge initially declined to admit it. However, after the court closed to deliberate on findings a court member asked to see the statement. The military judge reconsidered his prior ruling and admitted it.

14 M.J. at 750-51.

The record of trial reveals the following concerning government counsel’s initial motion to introduce the April 29 statement of Agent Nurse:

MJ: First, with respect to Prosecution Exhibits 3 and 4 for identification, I believe you stated that — your theory of admissibility Captain Cates was a prior consistent statement?

TC: Yes, Your Honor.

MJ: I question whether they’re admissible under that theory.

Does the defense have any objections to that?

IDC: I object to it, Your Honor, yes.

MJ: Why don’t you just state your grounds for the record?

IDC: Well, first, of all I don’t think there is a proper foundation laid to attack — to offer them on that theory. That’s the basis.

MJ: Do you wish to be heard further Captain Cates?

TC: Your Honor, the defense counsel in his cross-examination asked questions which would imply that the statements by the witness on the witness stand were not accurate because of the amount of people that he had dealt with in which case I offered the statements as a rebuttal to this attack that they are prior consistent statements, that they were made right after the events in question and that they were accurate at the time that they were written down.

MJ: The way I view the evidence is that Mr. Bellen attempted to impeach the witness and used the fact that the witness did not recall all of the details during an interview with Bellen some time earlier than today and after the written statements were made that the witness used these statements, Prosecution Exhibits 3 and 4 to refresh his recollection at that time. Not that there was anything inconsistent. I don’t think that anything inconsistent was brought out Captain Cates. In view of that and also although Mr. Bellen in cross-examination attempted to, alluded to the possibility of recent fabrication due to many cases and poor memory the answers of the witness do not support that line of questioning. Therefore, prior consistent statements are not admissible in rebuttal, so I will not receive these two exhibits 3 and 4 into evidence.

Later when the statement was requested by a court member, the following transpired:

MJ: Counsel for both sides have had an opportunity to see Colonel Conner’s question. I’ll hear counsel if you desire. First, is there any objection?

IDC: No. The point is that it’s not before the court and they just decide on what’s before the court.

MJ: All right, that’s your position.

TC: Your Honor, if the ruling is the same on the admissibility of the statement then agreed that it is not before the court at this time. I believe some explanation should be given so they will understand why.

IDC: I have no objection to that. Just say — I agree with Captain Cates.

TC: Of course if your ruling has changed from the other evidence of the case then I would again offer them into evidence.

MJ: May I have the statement please? (TC hands document to MJ. MJ reads document.)

MJ: The evidence presented subsequent to the time that Captain Cates originally attempted to introduce Prosecution Exhibit 3 for identification into evidence, I am of the opinion that based on the testimony of the accused with regard to the dates involved and the accused’s denial of having seen Specialist Nurse on the 29th of April, I will allow and will now receive into evidence Prosecution Exhibit 3 for identification as Prosecution Exhibit 3 and I will instruct the court that they may now, they may consider Prosecution Exhibit 3 and that it is a statement made by Specialist Nurse prior to trial and that it is consistent with his testimony at trial, specifically with respect to the date and that I will instruct that if you believe that such a consistent statement was in fact made you may consider it for its tendency to refute the charge or claim by the defense that the accused did not see Nurse on the 29th and that if counsel would like — if the defense rather would like the opportunity to present additional argument to the court I will permit it.

The first question we will address in this case is whether a sufficient “impeachment foundation” existed to justify admission of Nurse’s prior consistent statement of April 29, 1981. See Note: Rehabilitation of the Impeached Witness Through Prior Consistent Statements: An Analysis and Critique of California Evidence Code Section 791, 50 S.Cal.L.Rev. 109, 114-16 (1976). Mil.R.Evid. 801(d)(1)(B)¹ permits the admission of a prior consistent statement of a witness where there is ‘.‘an express or implied charge against the” witness “of recent fabrication or improper influence or motive.” See generally 4 Weinstein’s Evidence, H 801(d)(1)(B) [01] (1979). We agree with the Court of Military Review that the defense’s cross-examination of Nurse clearly raised the issues of fabrication and improper motive as contemplated by Mil.R.Evid. 801(d)(1)(B).

The defense engaged in a three-prong attack on the credibility of the government witness, Nurse. The first aspect of this attack focused on a meeting appellant had with defense counsel one week prior to trial. Defense counsel cross-examined Nurse about his inability at that time to recall the date when the alleged drug transaction with appellant took place. A charge of recent fabrication or contrivance is shown “by negative evidence that the witness did not speak of the matter before, at a time when it would have been natural to speak; his silence then is urged as inconsistent with his utterances now.” 4 Wigmore, Evidence § 1129 (Chadbourn rev. 1972). See McCormick’s Handbook on the Law of Evidence § 49 n. 93 (E. Cleary 2d ed. 1972); United States v. Kauth, 11 U.S.C.M.A. 261, 265-66, 29 C.M.R. 77, 81-82 (1960). Defense counsel here was clearly implying, on the basis of Nurse’s earlier silence, that his trial testimony as to the date of the offense was a recent fabrication.

The second prong of appellant’s attack on the credibility of Nurse focused on the number of cases this investigator was involved in during the last six months. On cross-examination, Nurse admitted that he was involved with many cases during this period — in particular, twelve in the ten days prior to trial. The clear implication of this line of questioning was that Nurse was so overworked that he confused appellant with someone else and his testimony against appellant should not be considered accurate. See United States v. Coleman, 631 F.2d. 908, 914 (D.C. Cir. 1980).

Defense counsel also questioned Nurse in a manner which impliedly charged that the latter had an improper interest in presenting testimony against appellant. See 3A Wigmore, Evidence § 969 (Chadbourn rev. 1970); 4 Wigmore, supra, § 1128. He cross-examined Nurse as follows:

Q. Okay. Now, you love your work, is that correct?

A. Yes, sir.

Q. Okay, you do it — you spend a lot of time at it, don’t you?

A. Yes, sir.

Q. And in fact you want to get out of the Army and be a policeman, don’t you?

A. Yes, sir. -

Q. In New York City, right?

A. Yes, sir.

Q. Do you want a recommendation from the United States Army?

A. I don’t want a recommendation, but it won’t hurt to have one.

Q. All right, thank you.

Nothing further.

The clear implication of this line of questioning was that Nurse’s testimony against appellant was colored or distorted by his desire to obtain an Army recommendation for civilian police employment. See United States v. Sledge, 6 U.S.C.M.A. 567, 569, 20 C.M.R. 283, 285 (1955).

It is true that the trial judge initially refused to admit Nurse’s prior consistent statement because no evidence had been offered at that time that Nurse had made a prior statement inconsistent with his trial testimony. We believe this was an excessively narrow reading of Mil.R.Evid. 801(d)(1)(B). See United States v. Kellum, 1 U.S.C.M.A. 482, 485, 4 C.M.R. 74, 77 (1952); compare 4 Wigmore, supra, § 1126 with §§ 1128 and 1129. It is also true that the military judge subsequently decided to admit this evidence because appellant’s testimony contradicted Nurse’s testimony. Cf 4 Wigmore, supra, § 1127. Regardless of the correctness of these rulings by the trial judge, we hold that a sufficient “impeachment foundation,” as indicated above, existed for the admission of Nurse’s statement as contemplated in Mil.R.Evid. 801(d)(1)(B).

On appeal before this Court, appellant also asserts that the military judge committed plain error in admitting Nurse’s statement of April 29, 1981, because it was not shown that this statement was made prior to the inception of his purported motive to falsify. See Analysis of Mil.R.Evid. 801(d)(1)(B), supra. It is true that the various courts of appeals have split on the existence of this condition for admissibility under Fed.R.Evid. 801(d)(1)(B). See United States v. Parodi, 703 F.2d 768, 784-87 (4th Cir. 1983); United States v. Hamilton, 689 F.2d 1262, 1273-74 (6th Cir. 1982), cert. denied, 459 U.S. 1117, 103 S.Ct. 753, 74 L.Ed.2d 971 (1983); United States v. Quinto, supra at 232-35. Yet, it is not necessary for us to decide this question in the present case. But see para. 153a, Manual for Courts-Martial, United States, 1969 (Revised edition);² United States v. Kauth, supra at 267, 29 C.M.R. at 83.

We note that this specific objection to the admissibility of Nurse’s prior statement was not made at trial and, as a result, the record of trial was not fully developed on this matter. See Mil.R.Evid. 103(a)(1); United States v. Parodi, supra at 783. In any event, the record does reveal that the April 29 statement was made before Nurse’s meeting with appellant’s lawyer one week prior to trial. It also was made prior to the numerous cases the investigator engaged in between the alleged offense and time of trial. Admittedly, a theoretical possibility existed that the April 29 statement was made at a time police investigator Nurse entertained his interest in securing a recommendation from the Army for a civilian police position. Nevertheless, such a possibility alone does not dictate that the evidence of this statement be excluded. United States v. DeLaMotte, 434 F.2d 289, 293 (2d Cir. 1970), cert. denied, 401 U.S. 921, 91 S.Ct. 910, 27 L.Ed.2d 825 (1971); United States v. Grunewald, 233 F.2d 556, 566 (2d Cir. 1956), rev’d on other grounds, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957); DiCarlo v. United States, 6 F.2d 364, 367 (2d Cir. 1925); see also United States v. Feldman, 711 F.2d 758, 766 (7th Cir.), cert. denied, — U.S. —, 104 S.Ct. 352, 78 L.Ed.2d 317 (1983). Accordingly, we find no plain error in the admission of this evidence on this basis.

The decision of the United States Army Court of Military Review is affirmed.

Judge COOK concurs.

1 . Mil.R.Evid. 801(d)(1), Appendix 18, Manual for Courts-Martial, United States, 1969 (Revised edition) (C. 3):

(d) Statements which are not hearsay. A statement is not hearsay if:

(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant’s testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving the person.

2 . Paragraph 153a, Manual, supra, the rule of evidence in effect prior to Mil.R.Evid. 801(d)(1)(B), was more explicit on this question:

In general, a person gains no corroboration merely because he repeats a statement a number of times. Consequently, a witness ordinarily may not be corroborated by showing that he made statements consistent with his testimony. But this is only a general rule, and there are some situations in which consistent statements are admissible to corroborate the witness. If the testimony of a witness has been attacked on the ground that it was due to a certain influence, evidence of his statements or conduct, consistent with his testimony, made or occurring before the creation of that influence, may be introduced for the purpose of corroborating his testimony. For example, if the credibility of a witness has been attacked on the ground of bias due to a quarrel with the accused, the fact that before the date of the quarrel he made an assertion similar to his testimony is admissible for this purpose. Similarly, if his impeachment has been sought on the ground of collusion or corruption, evidence of a consistent statement made by him prior to the collusion or corruption is admissible for the same purpose. Also, if the testimony of a witness has been attacked on the ground that he made one or more inconsistent statements or on the ground that it was a fabrication of recent date, evidence of a consistent statement made by him before there was a motive to misrepresent is admissible to corroborate his testimony.

(Emphasis added.)