United States v. Bess
2016 CAAF LEXIS 10
| C.A.A.F. | 2016Background
- Appellant (Navy HM2) was tried by general court-martial and convicted of six indecent-act specifications involving X-ray patients; acquitted on several other charges.
- During jury deliberations the members requested certain documents, including daily muster reports that had not previously been given to them.
- Outside the members’ presence the Government laid a business-records foundation through Ms. Wilson and called HM1 Odom; the military judge admitted the muster reports under M.R.E. 803(6).
- The military judge handed the admitted muster reports to the members during deliberations without allowing Appellant to cross-examine the custodians before the panel, call witnesses in front of the members, or renew closing argument on them.
- Appellant objected; after receiving the reports the panel returned guilty verdicts on six specifications. The Navy–Marine Corps CCA affirmed; this Court granted review.
Issues
| Issue | Appellant's Argument | Government's Argument | Held |
|---|---|---|---|
| Were the muster reports admissible as business records? | Reports were untrustworthy and susceptible to manipulation; should be excluded. | Custodian testimony established M.R.E. 803(6) foundation; records routinely created and stored. | Admissible: military judge did not abuse discretion in admitting them as business records. |
| Did giving the admitted reports to members during deliberations without permitting live challenge violate Appellant’s right to present a defense? | Yes — denial of opportunity to cross-examine custodians, call witnesses before the panel, or argue weight violated Sixth and Fifth Amendment rights. | R.C.M. 921(b) allows reopening and admission of evidence at members’ request; judge has discretion to control procedure. | Yes — withholding opportunity to dispute weight before the factfinder was an abuse of discretion and a constitutional violation. |
| Was the constitutional error harmless beyond a reasonable doubt? | No — the reports materially affected identity issues and the members had requested them after defense highlighted their absence; prejudice is plausible. | Evidence of identity and modus operandi was strong; any error was harmless. | Not harmless: Court cannot say beyond a reasonable doubt the verdicts were unaffected; reversal required. |
| Remedy | Uphold convictions or order limited relief. | Rehearings would be duplicative; convictions should stand. | Reverse CCA; set aside findings and sentence; authorize rehearing. |
Key Cases Cited
- Crane v. Kentucky, 476 U.S. 683 (1986) (criminal defendant entitled to meaningful opportunity to present a complete defense)
- Rock v. Arkansas, 483 U.S. 44 (1987) (Compulsory Process protects right to call material, favorable witnesses)
- United States v. Lampani, 14 M.J. 22 (C.M.A. 1982) (members may request reopening/delivery of evidence during deliberations)
- United States v. Yeauger, 27 M.J. 199 (C.M.A. 1988) (once foundational requirements met, admissibility is distinct from weight assessment)
- United States v. Carter, 74 M.J. 204 (C.A.A.F. 2015) (standard of review for evidentiary rulings — abuse of discretion)
- United States v. Gaddis, 70 M.J. 248 (C.A.A.F. 2011) (limits on right to present defense balanced with trial judge discretion)
- United States v. Foerster, 65 M.J. 120 (C.A.A.F. 2007) (business-records exception construed generously in favor of admissibility)
- Sullivan v. Louisiana, 508 U.S. 275 (1993) (harmless-error test focuses on whether the verdict actually rendered was unattributable to the error)
- Chapman v. California, 386 U.S. 18 (1967) (constitutional error is harmless only if harmless beyond a reasonable doubt)
- United States v. McGill, 953 F.2d 10 (1st Cir. 1992) (significant internal contradictions can show lack of trustworthiness in business records)