United States v. Robertson

1 M.J. 709, 1975 CMR LEXIS 700
CourtU S Air Force Court of Military Review
DecidedNovember 3, 1975
DocketACM 21797
StatusPublished
Cited by1 cases

This text of 1 M.J. 709 (United States v. Robertson) is published on Counsel Stack Legal Research, covering U S Air Force 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. Robertson, 1 M.J. 709, 1975 CMR LEXIS 700 (usafctmilrev 1975).

Opinion

DECISION

ROBERTS, Senior Judge:

Despite his pleas of not guilty, the accused stands convicted of housebreaking, larceny, assault consummated by a battery, and attempted housebreaking, in violation of Articles 130, 121, 128, and 80, Uniform Code of Military Justice, 10 U.S.C. §§ 930, 921, 928, 880. The approved sentence is a dishonorable discharge, confinement at hard labor for three years, forfeiture of all pay and allowances, and reduction to airman basic.

In his request for appellate representation, the accused has asserted several assignments of error. Others have been assigned ably briefed and argued by appellate defense counsel, both military and civilian. There has also been made a motion for a new trial, which has been briefed by both trial defense counsel and appellate defense counsel. Many of the assertions of error are substantially supported by the record, and but few are devoid of merit. However, in view of our resolution of one of the assigned errors and our disposition of the case we need not discuss the others. We agree with the contention of both trial and appellate defense counsel that the substantial rights of the accused were materially prejudiced by the erroneous admission of a written statement made by the principal prosecution witness that was assertedly consistent with his trial testimony.

The facts of the case are relatively simple. On the morning of Monday, 6 May 1974, it was discovered that the commissary warehouse at Whiteman Air Force Base, Missouri, had been burglarized during the previous weekend. Among the items stolen were six cases of cigarettes, four of Marlboro brand and two of Kent brand. The circumstances of the burglary led the agents of the Office of Special Investigations (OSI) to believe that it had been committed by on-duty security policemen, and several policemen who had worked during the weekend were interviewed.. Among these was an Airman First Class John G. Rose. Although interviewed on more than one occasion, Rose denied any knowledge whatever of the break-in.

On 12 September 1974, some four months after the break-in, Airman Rose complained that he had been severely beaten by the accused and another security policeman who suspected him of informing the OSI about their role in the burglarization of the commissary warehouse. Although he had previously denied any knowledge of the offense, Airman Rose at that time prepared a two-page, detailed, written statement, in which he admitted that he had been involved in the break-in and asserted that it had been instigated and planned by the accused. He went into elaborate detail in the statement describing specifically how the break-in had been planned, organized, and directed by the accused. He further described specifically how the break-in had been accomplished and he asserted that the accused actively participated throughout the entire episode. Among the facts related in the statement by Rose, was an assertion that, “We took: five cases of Marlboro cigarettes and two cases of Kent cigarettes.”

Rose’s testimony at trial was virtually identical in detail to the account he had given in his statement of 12 September 1974 to the OSI. On cross-examination, trial defense counsel made a very extensive attack on his general credibility. Rose was forced to admit his many previous denials of knowledge of the offenses involving the commissary warehouse as well as his original denial that he knew who had assaulted him. His trustworthiness was placed in further doubt by his admission that he had been hospitalized not because of injuries received in the assault but because of a profound state of depression. He also admitted frequent use of drugs and of signing false certifications that he had never used [712]*712drugs. He acknowledged that he had been receiving psychiatric care in an out-patient status for some time. And, he related that over a period of time he had fantasized that he had been married to a girl from his hometown and subsequently divorced. He had told many people, including his supervisors of his marriage and divorce, and he admitted to trial defense counsel that at times he really came to believe himself that he had been married when in fact he had not.

With a general foundation being thus laid concerning the veracity of Rose, trial defense counsel cross-examined him closely with respect to the details of the burglary of the warehouse. He called Rose’s attention to the fact that he had informed the OSI that seven cases of cigarettes had been stolen (despite a positive inventory showing that only six had been stolen) and then proved that on an occasion between the making of the statement and the trial, Rose told defense counsel nine cases had been stolen.

With the credibility of his key witness thus in jeopardy, trial counsel offered Rose’s statement of 12 September into evidence as a prior consistent statement noting, at the time, that the only relevant portion in the statement was Rose’s reference to only seven cases of cigarettes being stolen. Even though the statement had been offered for this limited purpose, the military judge admitted the statement in its entirety and furnished it to the court members for their consideration in determining the overall credibility of Rose’s testimony.

As noted by the Court of Military Appeals in the early case of United States v. Kellum, 1 U.S.C.M.A. 482, 4 C.M.R. 74 (1952):

Generally, statements which go to establish the proof of the crime alleged, made by a witness to other persons, out of the presence of the accused, are within the proscriptions of the hearsay rule, and evidence of what the witness said on other occasions is not competent to fortify his testimony.

4 C.M.R. at page 77.

The same rule is expressed in the Manual for Courts-Martial, United States, 1969 (Rev.), paragraph 153a, thusly:

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.

Under these standards, Rose’s statement was clearly inadmissible and should not have been considered by the Court, unless it was established that the prior consistent statement came within one of the recognized exceptions to this rule. There are three recognized exceptions to the prohibition against the use of prior consistent hearsay statements by a witness. Such statements may be used: (1) where the testimony of the witness is assailed as a recent fabrication; (2) where the witness has been impeached by prior inconsistent statements; and (3) where the witness’ testimony is discredited by an imputation of prejudice or motive to testify falsely arising after the date of the prior statement. United States v. Kellum, supra; Manual for Courts-Martial 1969, supra, paragraph 153a.

We find that Rose’s entire statement of 12 September 1974 comes within none of these recognized exceptions, and accordingly its admission into evidence was error. From the evidence in the record, the only imputation of any motive to testify falsely because of bias against the accused was the witness’ allegation that he had been severely beaten by the accused. The alleged assault obviously occurred before the statement was made, whereas the third exception to the rule makes clear that the consistent statement, to be admissible, must have been made prior to the occasion giving rise to an inference of motive for false testimony.

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5 M.J. 545 (U S Air Force Court of Military Review, 1978)

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Bluebook (online)
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