United States v. Bridges

STATES, Appellee, UNITED BRIDGES,

Shawn T. Airman First

Class, Air Force.

No. 00-0456.

Crim.App. No. 33369. Appeals

U.S. Court of

the Armed Forces.

Argued Dec. May

Decided

CRAWFORD, C.J., opinion delivered the Court, in which GIERKE and EF FRON, JJ., joined. and BAK SULLIVAN ER, JJ., opinion each filed an concurring in the result. (ar- Appellant: Major

For Kelly Steven P. gued); Colonel R. James Wise and Lieuten- (on brief). ant Timothy Murphy Colonel W. Appellee: For Captain James C. Fraser Dattilo, (argued); Anthony Colonel P. Lieu- tenant B. Major Colonel William Smith and (on brief). B. Sigmon Lance Sullivan, J., opinion filed concurring in Chief CRAWFORD delivered the the result. opinion of the Court. Baker, J., opinion filed concurring in the Contrary pleas, appellant to his was con- result. victed June 1998 officer and enlisted assaulting

members of his 22-month-old son, daughter and 9-month-old in violation of Military Uniform Code of Justice (UCMJ), convening 928. The USC au- thority approved a sentence of bad-conduct confinement, discharge, 6 months’ and reduc- grade. tion to the lowest enlisted The Court Appeals Criminal affirmed the grant- and sentence. 52 795MJ We following ed review of the issues: re- The counsel or defense rated what?” AIR FORCE I. THE WHETHER they sponded, “[T]hey are still married APPEALS OF CRIMINAL COURT also married.” The defense THAT AP- intend to remain ERRED IT HELD WHEN testify [based SIXTH not want “to responded HIS she did PELLANT WAIVED La- relationship TO CONFRONT with her husband.” AMENDMENT RIGHT the on] BRIDGES, prior ter, admissibility THE PROSECU- arguing JULIA the when KEY law en- Bridges TION’S WITNESS. Mrs. statement 8, 1997, the on December forcement officers II. APPELLANT’S SIXTH WHETHER they challenge Mrs. would defense indicated TO AMENDMENT RIGHT CON- time, the At Bridges’ competency. that AGAINST HIM WITNESSES FRONT judge gave the defense the HIS WIFE’S WHEN WAS VIOLATED witness, the up her “back here” call TO ENFORCE- STATEMENT LAW defense that invitation. WAS AD- declined MENT INVESTIGATORS MITTED UNDER MILITARY RULE conversation, judge deter- After this the 804(b)(5). OF EVIDENCE Bridges mined Mrs. was “unavailable” that upon United Based un- testify her and admitted (CMA 1994), that the we hold court hearsay exception of Mil. the der residual err, and no violation of below did not there is 804(b)(5), R.Evid. Manual for Courts-Mar- appellant’s con Sixth Amendment (1998 ed.).1 tial, support To United States front and cross-examine Mrs. admission, judge the fol- its found that that

lowing supported conclusion factors trust- possessed FACTS worthiness: trial, During portion (1) Appellant’s corroborated Bridges Mrs. was called as statement; Mrs. name, address, gave her witness. She length residency that address. (2) neighbors The children heard the asked, you she “Do when was re- screaming; your going neighbor’s house ... member (3) neighbor’s Bridges “ran to a your hit[ting] you night husband that ... ac- reported abuse house and slap[ping] you night?” ques- and other cused;” tions, refused to then she answer. (4) time; “hysterical” the court and held a She at the dismissed members was 39(a), UCMJ, session under USC (5) reported the abuse to 839(a). doctor; and session, At told the (6) sought hospital Treatment judge “it doesn’t or- matter” whether she’s two children. not, dered to she will refuse to during the After conviction and testify. The witness stated that even if also intro- stage, sentencing defense in contempt, held she would not by Mrs. duce a statement made second respond judge’s questions. to the Near the session, Bridges on Trial counsel June 1998. end after Mrs. said of this responded: willing “any to answer poses questions prosecutor] [the to Ma’am, one, objec- have an for that do [her],” asked, “Anything anybody is, course, although My tion. concern else ask of witness before I let wants to un- she was we called her as depart courtroom?” available, testify. said she she won’t She “No, responded, Your Honor.” And if I her back testify. won’t called counsel, her about the contents then asked defense motive, just her bias or her which being sepa- “Are the letter or or— Mil.R.Evid. Now go again, allegations will into the going won’t instruct her that if she is questions, to answer that she stop middle, can’t Captain Thereafter, following discussion took Spath just suggested. place between defense counsel and the mili- judge: tary Well, stop stop- I can’t MJ: her from not Honor, DC: Your I Captain ping just believe that in I the middle won’t [sic]. Spath prosecutor] you give [the would have a let them [Mrs. the exhibit point valid 15, if she went and dis- June cussed the events. questions. 1998] until she’s answered very clearly talking states that she’s simple. you It’s that Because —are impact about the going that this will have Spath going call or to call upon her family. clearly mat- questions? This her to answer You’re not mitigation. Captain ters in planning While calling right? on Spath may unhappy that he can’t calling I was not planning DC: on her. cross-examine her about areas that statement, are not included DISCUSSION

under the relaxed rules of sentenc- ing, I don’t think that’s valid reason provides in part The Sixth Amendment keep this out. all prosecutions, criminal the ac- “[i]n enjoy cused shall ... to be con- She does go not into the areas that him,” with fronted witnesses he’s mentioned that he wants to cross- together with “the ... have com- examine her about. pulsory for obtaining witnesses in Well, point. MJ: say- that’s the He’s favor____” 39(a)(4) provides his ing the statement’s one-sided. She’s “presence accused,” and Article talking about all the stuff with the UCMJ, 10 USC states “the impact, yet, child and the he equal counsel ... oppor- shall have go can’t impact into what was tunity to obtain witnesses and other evi- know, the time you or what what — ____” dence going children. with the If the confrontation cross- anything, examination means means that $ ^ $ prosecution present hearsay must Well, MJ: she needs to I rethink —and at trial in attempt declarant elicit didn’t, but, you understand that she directly out-of-court statement from wit- know, Captain Spath oppor- has the lips ness’s while on the stand and witness tunity to call her back and she needs under oath. That was done in this case. prepared to be and come—and he genesis for the current Amend- Sixth opportunity has the rebut- interpretation ment is found in Har- Justice tal and to her about concurring opinion in lan’s this____ California needs to Green, 149, 172, make a decision[.] (1970).2 L.Ed.2d With Green road- ^{[*] [*]} # map, in Ohio v. 65 L.Ed.2d 597 Roberts, (1980), U.S. the Su- Well, ma’am, know, you preme DC: there’s an preference Court declared “a for face-

easy way to resolve this. She’s here to-face confrontation at trial.” Id. courtroom, added). (emphasis heard she’s all this S.Ct. 2531 discussion, hearsay we can her to the call held that when the admissible stand now and we can ask her witness unavailable and -the either you hearsay excep- what she would do and could “falls within Owens, ty expressly adopted of the Court Justice Har- (1988), majori- concurring opinion L.Ed.2d 951 lan's in Green. Illinois, her see, stand and stated tion,” called to the witness e.g., White name, address, long had been and how L.Ed.2d 848 Then living at address. she told of trustwor “particularized guarantees has see, if thiness," judge that even e.g., Wright, 497 Only after her refusal ordered do so. and defense counsel’s declina- 100 S.Ct. 2531. further 448 U.S. at to cross-examine tion of Amendment establishes a rule Sixth “[T]he prosecution allowed introduce (including was the necessity. the usual ease given law enforcement officials where cross-examination has oc cases prosecution curred), produce, either on December must of, unavailability responsible for the result- unavailability the de or demonstrate from ing it wishes to use the refusal clarant whose statement 314, See, e.g., California, Berger at 100 v. 393 U.S. against the defendant.” Id. S.Ct. (1969); 508 Barber 89 S.Ct. 21 L.Ed.2d Page, 88 20 Court has used a “cost bene was, Bridges Mrs. in L.Ed.2d 255 analysis balancing when witness unavaila fit” effect, privilege.” “marital invoking her “ bility very with the ‘Confrontation Clause’s strikingly accuracy is to This case similar to United mission’ which ‘advance “the is McGrath, and supra, in States truth-determining the criminal tri United ’” (CMA 1994). Inadi, 387, Martindale, In 40 MJ 348 als.” United States v. U.S. (1986), cases, held a 106 S.Ct. L.Ed.2d 390 both of these that when Street, present not at quoting Tennessee v. and confrontation is issue, employ judge may the extrinsic cir- 85 L.Ed.2d Evans, prior Dutton v. cumstances corroborate the witness’s quoting U.S. to proponent seeks admit. See also the Johnston, (CMA 41 MJ 13 McGrath, 14-year-old the accused’s 1994)(purpose truth-finding aof trial is with daughter, A, by as was called constitutional, statutory, in and ethical con if a witness. asked she had made When straints). appellant, implicating A refused statements unavailability requirement inappli Additionally, to answer. she refused to re- situations, A example, in some for tract or confirm her statements. cable where “remote,” in utility appeared because confrontation is Rob admitted that she court erts, subpoena. at A said she 65 n. she received a German rooted,” exception testify in “firmly as did not because wanted state want co-conspirators, supra; any potential harm to her Just ments of dec avoid father. Inadi interest, military against judice, in the when the larations case sub Jacobs, (1996)3; dying questioning of A’s MJ 301 declara concluded his tions; records; records, op- public daughter, business and offered defense counsel he portunity n. and de- question 2531. Converse ly, hearsay exception residual is not firm declined. 39 at 159-61. fense counsel Likewise, Martindale, thus, there volun- ly requirement to establish in was a rooted — confession, unavailability tary particularized and and the witness-declarant defense, Wright, they ex- supra. trustworthiness. was tendered to the but right to wit- pressly confront the waived “persists A witness is unavailable when she at 349. ness trial. 40 MJ subject refusing testify concerning in like Mrs. despite matter of an order of Just the witness [her] statement so____” oath, placed under military judge Bridges present, was to do Mil.R.Evid. was 804(a). gave identifying information refused In this and wife was exception to the statement. 3. We need not Mrs. decide if and, thus, was declaration interest respond questions. to additional When making to consider factors outside the they defense counsel was asked reliability whether had to establish the of Mrs. any questions Bridges, they replied December statement to law negative. Additionally, in the defense coun- enforcement officials and to admit her state- Bridges sel informed the during prosecution’s ment case-in-chief. testify because she intended to This is not the case of a witness who was appellant remain married to and her refusal fact, present absent. was testify relationship. was motivated during and on the witness stand the case-in- The defense said that had talked with chief, and during the courtroom and knew her desires. sentencing. Nor is case where the During sentencing, the defense noted that any attempt impeach defense made mitigation about pretrial statement of Mrs. This is a “impact” upon would have trying protect case of a witness her inter- family. told defense counsel ests, doing, allowing appellant so now that Mrs. “needs to make a decision” to use the lack of cross-examination aas subject about whether will to cross- sword. This is a witness who was made examination. The defense said that decision available, but for reasons known to de- “[sjhe’s easy will be because here in this counsel, possibly appellant, fense courtroom, she’s heard all this discussion.” unwilling summary, to defense then stated that were not enough appellant that and defense counsel planning to call They only, her as witness. brought face-to-face with the witness to wanted introduce her written statement. given and an to ask the However, that ruled unless Mrs. testify, order her encourage testify, her to would be to be called and be or offer evidence to dis- subject cross-examination, she would not pretrial credit the statement. The defense admit the written Ultimately, statement. took none of these actions. statement was not admitted. McGrath, Just as in “it is clear that DECISION victim, cross, examination of the direct or The decision of the United Air States very thing was the last on earth the defense Force Appeals Court of Criminal affirmed. happen. Having wanted have thus es confrontation, appellant chewed cannot now claim a denial of it.” 39 MJ at 163. We SULLIVAN, Judge (concurring in the

agree with the Court below: result): Had the defense made a sincere effort to I vote to affirm but I this do so via a examine the witness and she still refused path. majority different I do so since the the issue would be different. opinion’s approach to this case troubles me. produced when a witness is appellant’s suggests It first constitution trial and the defense makes no effort at all al to confrontation was not an issue to avail opportunity thereby provid- of the because Mrs. was called to the stand ed to test the recollection and conscience of witness the admission it is clear that the defense hearsay under Mil.R.Evid. And, waives cross-examination. that waiv- 804(b)(5). ques 55 MJ at 63-64. A similar er of cross-examination satisfies the [una- Supreme tion was addressed Court vailability] requirements of the Confronta- Owens, tion Clause. 98 L.Ed.2d 951 See also atMJ Fensterer, 15, 106 Delaware v. McGrath, There,

inAs “the Government did 88 L.Ed.2d 15 the Su evidence, rely paper preme constitutionally not seek to but rath Court said that Thus, produced required “guarantees er the witness.” Id. at 163. are trustworthiness” appropriate we hold that it was for the not “called for when a declarant is it must be effective to be for waiver unrestricted subject present at trial “an in- there was clearly established Id. at cross-examination.” relinquishment or abandonment added). tentional Clearly, Mrs. (emphasis privilege.” Johnson known of a subject cross-exami to unrestricted was not Zerbst, refused to case because she nation in this L.Ed. any questions. See United answer Cir.1990) (5th Vernor, 902 F.2d waiv- question of deciding the federal asserted who (hearsay statement course, must, look to raised here er subject to consti privilege Fifth Amendment waiv- support the allegedly the facts which trustworthiness). Even tutional standard facts Upon examination er. 39 MJ record, completely we are shown (CMA 1994),recognized point. agree with unable petitioner intelligently and Ohio appellant and witness Merely bringing an cross-exam- knowingly waived his asking judge to order a face-to-face testimony was whose ine the -witnesses not consti- witness to does recalcitrant to convict him. used meaningful opportunity an effective or tute (footnote had 4-5, cross-examination. omit- 86 S.Ct. 1245 Julia precious elicited little information about ted). questioned by

Bridges that could ease, Turning to the facts of in this Requiring a defense counsel counsel. opinion, I no majority see described pointless cross-exami- situation to conduct to cross- by appellant of his waiver (or, alternately, asking judge to nation required than a his wife. More examine pre- testify) in order to order the witness counsel to cross-examine failure of defense rights is an accused’s confrontation serve Hannigan, the witness. See Hawkins hollow, i.e., require equally “The law does not (10th Cir.1999), citing n. F.3d Roberts, futile v. doing of a act.” Ohio Rico, 210 F.2d People v. Puerto Cruzado of L.Ed.2d 65 (1st Cir.1954) by (approving waiver 791 (1980). A need for a constitutional show- 597 stipulation); v. United States defense counsel existed in this case. ing of trustworthiness Cir.1992). (1st F.2d 1446, 1457 Figueroa, 976 Vemor, supra. v. See United States by was told advance Here defense counsel ques no she would answer the witness that Next, appears majority opinion to hold case, stipulation in this There was no tions. that there is no constitutional confrontation strategic inaction in his subse and I see no appellant waived issue in this case because this recalcitrant wit quent question failure to Bridges. Its his to cross-examine Mrs. McGrath, supra at v. ness. United States of this Court analysis focuses on the decision (defense (Sullivan, J., dissenting) offered 170 supra, but States v. United victim but declined chance to cross-examine Supreme prece- applicable Court overlooks that she would not asserted after witness right to waiver of the constitutional dent on answer). Janis, 384 Brookhart v. confrontation. See 314 86 16 L.Ed.2d issue this I see a confrontation Since unsatisfactory. approach I find this case, remaining is whether there my question of trustworthi- particular guarantees Janis, In Brookhart surrounding making of ness confronta- waiver of the addressed court statement which war- Bridges’ out of tion as follows: appellant’s court-mar- its admission at ranted federally of a question of a waiver view, Wright, 497 U.S. my Idaho v. tial. is, of guaranteed constitutional 3139, 111 L.Ed.2d 638 course, question controlled a federal Martindale, United States v. not McGrath or presumption law. There is a federal (CMA 1994), 348 controls. rights, against the waiver of constitutional Here, factors sur- States, were several see, there e.g., Glasser United making of her statement which 70-71, rounding the L.Ed. (CMA provided necessary particularized 1994)(Sullivan, J., guar- dissenting). None- antees of Bridges’ theless, trustworthiness. Mrs. I concur in the result. shortly statement was handwritten after the military judge correctly 8, 1997; alleged incident on December it was determined that Mrs. was not avail- security made to forces called to the scene purpose able for the of cross-examination by Annette request Richner at the of Mrs. and, therefore, the Government established Bridges; Ms. Richner also said Mrs. necessity of introducing her out-of-court hysterical shortly alleged after the inci- And, into although evidence. statement; dent making before another judge’s ruling response inwas to the at- witness stated that she appellant yell- heard tempts question of trial counsel to ing daughter at his through the wall of their Bridges, ruling availability on was not duplex-type, on-base shortly residence be- limited to the military Government. The made; fore her finally, statement correctly also determined that Mrs. evidence was admitted that Mrs. adequate statement carried indicia

made a second consistent statement at Abi- Regional later, reliability. This is Hospital, lene true whether minutes when she medical treatment for Court relies on waiver and (relying McGrath Orena, two children. particularized See United States v. guarantees of trustworthi- (2d Cir.1994) (statements 32 F.3d ness from corroborating evidence unrelated during battle); life and death statement), to the making of the Judge or as (7th Bradley, 145 F.3d I argue, Sullivan and in the absence of waiv- (admission Cir.1998) of wife’s statement er, the inquiry Court limits its to indicia of responding emergency officers call satis- reliability surrounding making Wright); fies Idaho v. cf. Wright, itself. Mitchell, (3d Cir.1998) 145 F.3d (admission anonymous note violates Idaho Wright). judge’s findings of fact and conclu BAKER, result): regarding admissibility satisfy sions law Judge (concurring in the particularized guarantees both tests. The Sullivan, For the reasons stated surrounding making trustworthiness I do not believe the record reflects that include the follow appellant waived his to cross-examine ing: oath; her statement was made under Although may have been to her statement fairly was made “within close advantage immediate tactical proximity” question; to the events in and her where, Bridges, cross-examine Mrs. statement was pecuniary her own here, apparent it was to all that Mrs. interest, part by evidenced in subsequent we should not testify.* factors, light refusal to of these place require form over substance and de- necessary is not to look to additional ex fense counsel to engage a charade in order trinsic circumstantial of trustwor preserve constitutional of cross- thiness, such as the observations of Mrs. examination. As Sullivan has ob- elsewhere, Bridges’ neighbors; the circumstances sur position served defense counsel’s forces; response rounding security may change on cross-examination well re- sponse military judge’s ruling attending physician to a statements made to the on the admission of an out of court statement. when she treatment for her two chil dren. * day, I leave for another whether this latter factor statement as a exception. alone would have warranted admission Mrs. Id. at 110 S.Ct. 3139.

Case Details

Case Name: United States v. Bridges

Court Name: Court of Appeals for the Armed Forces

Date Published: May 29, 2001

Citation: 2001 CAAF LEXIS 601

Docket Number: 00-0456/AF

Court Abbreviation: C.A.A.F.