United States v. Yeoman

22 M.J. 762, 1986 CMR LEXIS 2474
CourtU.S. Navy-Marine Corps Court of Military Review
DecidedMay 30, 1986
DocketNMCM 85 3746
StatusPublished
Cited by4 cases

This text of 22 M.J. 762 (United States v. Yeoman) 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. Yeoman, 22 M.J. 762, 1986 CMR LEXIS 2474 (usnmcmilrev 1986).

Opinion

COUGHLIN, Senior Judge:

Contrary to his pleas, appellant was convicted by a special court-martial, judge alone, of unauthorized absence from appointed place of duty and larceny, in violation of Articles 86 and 121, respectively, of the Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 886, 921. He was sentenced to three months confinement at hard labor, forfeiture of $375.00 pay per month for three months, and a bad conduct discharge. Appellant’s single assignment of error made before this Court concerns the admissibility of police reports under Military Rules of Evidence (MiLR.Evid.) 803(6) and 803(8); more precisely, he contends that the military judge erred by allowing into evidence an incident report prepared by a law enforcement officer, which report corroborated to a degree appellant’s confession made to CID. Appellant claims that without the police report, there is insufficient evidence to corroborate his confession as required by Mil.R.Evid. 304(g) and, accordingly, his conviction of larceny should be set aside.

PFC Fuentes reported the larceny of his cassette tapes and carrying case to his platoon leader, GYSGT Forward, who requested the other platoon leaders to ask their men if the missing items had been seen. As a result, it was revealed that appellant was seen earlier in the day handing out some cassette tapes. When questioned, appellant stated that he had found the cassette case in a locker between two barracks. Appellant, accompanied by his platoon leader, then retrieved the case from between the barracks, and a subsequent search of his wall locker turned up a number of cassette tapes. The items were confiscated and given back to PFC Fuentes. The next morning GYSGT Forward notified the base PMO of the incident, and a criminal investigator was assigned. The investigator surveyed the scene of the reported theft, interviewed the victim, and prepared the incident report in question.

Subsequently, appellant was interviewed by another investigator and denied having stolen the case, stating that he had simply found it and had kept the tapes. Several months later, appellant confessed to stealing the carrying case, keeping eight of the twenty four tapes inside, disposing of the rest of the tapes in a nearby dumpster, and placing the case and its remaining contents in a wall locker between two barracks.

Neither PFC Fuentes nor GYSGT Forward were present at trial and appellant did not testify. The trial counsel offered into evidence the incident report as a report of regularly conducted business under Mil. R.Evid. 803(6) to show that a cassette case owned by PFC Fuentes had been taken that day and that the appellant had been identified as a suspect. The defense counsel argued that the report constituted hearsay not within any recognized exception, [764]*764and that it was inherently untrustworthy because it was created with a view toward prosecution. The military judge admitted the report for the limited purpose of showing that a larceny from PFC Fuentes was reported and that the appellant was identified as a suspect.

Mil.R.Evid. 803(6) excepts from the operation of the hearsay rules:

[a] memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum ... all as shown by the testimony of the custodian or other qualified witness unless the source of information or the method or circumstances of preparation indicate a lack of trustworthiness____

This rule does not make any specific provision for police reports or other documents of an adversarial nature. Mil.R.Evid. 803(8)(B), however, specifically prohibits the introduction into evidence of reports of observations made by police officers or other law enforcement officials when, with respect to what is excepted from the operation of the hearsay rule, it lists:

[rjecords, reports, statements, data compilations, in any form, of public office or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, matters observed by police officers and other personnel acting in a law enforcement capacity____

(Emphasis added).

On appeal, appellate defense counsel contends that the report is inadmissible under MihR.Evid. 803(8)(B) and hence also inadmissible under Mil.R.Evid. 803(6), citing the drafter's analysis to Rule 803(8) as support for this position.1 Government counsel argues that the report is admissible as a business record under Mil.R.Evid. 803(6), thus disagreeing with the drafter’s analysis that police reports excluded under Rule 803(8)(B) are also inadmissible under Rule 803(6).

The issue of whether a document excluded under Mil.R.Evid. 803(8)(B) can be admitted under Rule 803(6) raises an interesting and unsettled question. Compare Drafter’s Analysis, Mil.R.Evid. 803(8)(B); United States v. Cain, 615 F.2d 380 (5th Cir.1980); United States v. Oates, 560 F.2d 45 (2d Cir.1977), with Saltzburg, Schinasi, Schleuter, MILITARY RULES OF EVIDENCE MANUAL, Editorial Explanatory Comment, Mil.R.Evid. 803(6), p. 362 (1981). We need not reach the merits of that issue, however, because we find that the police report was admissible under Rule 803(8), notwithstanding subsection (B) thereof, for the limited purpose of showing that the tapes were stolen from PFC Fuentes.

The law enforcement exclusion in Rule 803(8)(B) is based in large part on the presumption of unreliability of observations made by law enforcement officials investigating a crime. In enacting the federal rule, Congress was concerned that “observations by police officers at the scene of a crime or the apprehension of the defendant were not as reliable as observations by public officials in other cases because of the adversarial nature of the confrontation between the police and the defendant in criminal cases.” Senate Report No. 1277, 93d Cong.2d Sess., reprinted in [1974] U.S. Code Cong. & Ad.News 7051, 7064. Some courts have held that all entries in police reports fall within the ambit of the Rule 803(8)(B) exception. See United States v. Oates, supra. Other courts have drawn distinctions between police reports prepared in a routine, objective, non-adversarial setting and those resulting from the arguably more subjective endeavor of investigating a crime and evaluating the re-[765]*765suits of that investigation. United States v. Quezada, 754 F.2d 1190, 1193 (5th Cir.1985); see also United States v. Hernandez-Rojas, 617 F.2d 533 (9th Cir.), cert. denied, 449 U.S. 864, 101 S.Ct. 170, 66 L.Ed.2d 81 (1980) (admitting warrant of deportation containing administrative note written by law enforcement officer); United States v. Union Nacional de Trabajadores,

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Related

United States v. Williams
26 M.J. 644 (U.S. Army Court of Military Review, 1988)
United States v. Yeoman
25 M.J. 1 (United States Court of Military Appeals, 1987)

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Bluebook (online)
22 M.J. 762, 1986 CMR LEXIS 2474, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-yeoman-usnmcmilrev-1986.