United States v. Yeauger

20 M.J. 797, 1985 CMR LEXIS 3560
CourtU.S. Navy-Marine Corps Court of Military Review
DecidedJune 19, 1985
DocketNMCM 84 2381
StatusPublished
Cited by4 cases

This text of 20 M.J. 797 (United States v. Yeauger) 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. Yeauger, 20 M.J. 797, 1985 CMR LEXIS 3560 (usnmcmilrev 1985).

Opinion

BARR, Judge:

Tried by general court-martial composed of officer and enlisted members, appellant was convicted, contrary to his pleas, of unauthorized absence from 29 August to 1 September 1983, three (3) counts of conspiracy to commit larceny, three (3) counts of larceny (corresponding to the conspiracy allegations), and a single specification of unlawfully receiving and concealing stolen property, in violation of Articles 86, 80, 121, and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 886, 880, 921, 934, respectively. The sentence adjudged, which extended to a dishonorable discharge, confinement for 20 years, total forfeiture of pay and allowances, and reduction to pay grade E-l, was approved on review below.

Seven assignments of error have been addressed by appellant to this Court for consideration. We decide Assignments III through VI adversely to appellant and reject them without comment. Disposition of Assignments II and VII depends, in part, on the merit and resolution of the first error assigned.

I
THE MILITARY JUDGE COMMITTED PREJUDICIAL ERROR BY ADMITTING INTO EVIDENCE THE ORAL UNSWORN STATEMENT OF SERGEANT E.D. CALLAHAN, USMC, UNDER MIL.R.EVID. 803(24).

The facts essential to resolution of this issue can be briefly stated. Appellant and one Sergeant (SGT) Callahan were on the management staff of the 22 Area Enlisted Men’s Club, Camp Pendleton, in September and October 1981, during which time two larcenies of that club occurred. Initial suspicion settled upon SGT Callahan, but no charges followed. Appellant and his wife, also a servicemember, were subsequently transferred to the Marine Corps Air Station, New River area for duty. In May and July 1982, larcenies from club facilities at New River occurred. As a result of statements given by appellant’s wife to the Naval Investigative Service (NIS), appellant and SGT Callahan were implicated in the 22 Area Club thefts. SGT Callahan, upon interview by NIS, ultimately confessed to his part in the latter thefts and identified appellant as his co-actor. SGT Callahan refused to have his oral confession reduced to writing, and, thus, the confession was not made under oath. Prior to, and during, his court-martial for his part in these thefts, SGT Callahan recanted his confession and litigated its admissibility by way of a motion to suppress. The motion was denied, the confession was admitted, and SGT Callahan was convicted of the September and October thefts from the 22 Area Club.

At appellant’s trial, the Government revealed that it would seek to have the NIS agents who took SGT Callahan’s confession testify as to the substance of that confes[800]*800sion and obtain admissibility of the agents’ testimony as substantive evidence on the merits under Rule 803(24), Mil.R.Evid. — the residual rule. The trial court took testimonial evidence, which included that of the two NIS agents, appellant’s wife, and SGT Callahan, who testified in accordance with his recantation, on the issue of whether to admit the testimony of the agents during trial on the merits. In essence, the military judge conducted a complete hearing on the voluntariness and admissibility of SGT Callahan’s confession, wherein the Government was required to meet the burdens precedent to admissibility which obtain in military practice whenever a suppression motion relating to a confession is litigated. SGT Callahan’s testimony on the motion is particularly significant. He stated that the testimony of the NIS agents, which recited what he purportedly admitted to them, accurately reflected the account of events and facts he had provided NIS during the confession interview. Other evidence offered on the motion, including the testimony of appellant’s wife, essentially corroborated the facts admitted in SGT Callahan’s confession. The military judge, subject to certain restrictions not now relevant, ruled that he would permit the NIS agents to testify as to the facts admitted in SGT Callahan’s confession and, thus, the implication of appellant in the thefts of the 22 Area Club, and would authorize the use and consideration of such testimony as substantive evidence in appellant’s trial. We conclude that the military judge was correct in his ruling and that the essential findings entered on the motion are supported by the evidence of record.

Rule 803(24), Mil.R.Evid., provides, in pertinent part, that the following type of evidence will not be excluded by the hearsay rule:

A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.

Looking first to subdivisions (A), (B), and (C) of the Rule, we conclude that each criterion was met in this case. The confession of SGT Callahan to the NIS agents related the modus operandi of the offenses and the subsequent cover-ups, the identity of the res of the offenses, and the criminal actions of both appellant and the relator leading to the consummation of the offenses, all of which were material facts relating to the crimes alleged. The testimony of the agents was but the vehicle which presented this confession and the material facts recited therein to the triers of fact. Similarly, SGT Callahan’s confession, as related by the testimony of the NIS agents, was indeed the most probative evidence available on these material facts. The corroborative evidence offered via the testimony of appellant’s wife was, if believed, certainly material to the issues of fact being litigated. Her credibility as a witness, however, was known to be subject to severe impeachment on the grounds of bias and malice against her husband and prior inconsistency. Thus, the statement of SGT Callahan was not only the most probative evidence available as to the material facts admitted by him, but also necessary corroboration to the testimony of appellant’s wife. Finally, admitting the statement of SGT Callahan, if it be found sufficiently trustworthy, would, under the facts of this case, further the purposes of the rules as set forth in Rule 102, Mil.R.Evid.— particularly, the truth-finding process. We thus concur with the determination of the military judge that each of the conditions set forth in (A), (B), and (C) of the Rule 803(24), Mil.R.Evid., was met.

It is, of course, the “trustworthiness” requirement of Rule 803(24) which is central to the issue addressed. We thus set forth, initially, the parameters which guide, [801]*801and upon which is focused, our consideration of this threshold requirement.

We state at the outset that we read the quoted rule as requiring that the proponent demonstrate that the evidence to be offered for admission possesses only “equivalent”, not “exceptional”, circumstantial guarantees of trustworthiness. Thus, if the standards governing trustworthiness that are embraced within the specific hearsay exceptions are likewise present in the evidence offered under the residual rule, such evidence should be deemed to meet the threshold requirement of “equivalent circumstantial guarantees of trustworthiness” of the rule.

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Related

United States v. Yeauger
27 M.J. 199 (United States Court of Military Appeals, 1988)
United States v. Yeauger
24 M.J. 835 (U.S. Navy-Marine Corps Court of Military Review, 1987)
United States v. Homan
23 M.J. 616 (U S Air Force Court of Military Review, 1986)
United States v. Rousseau
21 M.J. 930 (U.S. Army Court of Military Review, 1986)

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Bluebook (online)
20 M.J. 797, 1985 CMR LEXIS 3560, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-yeauger-usnmcmilrev-1985.