IN THE CASE OF
UNITED
STATES, Appellee
v.
Stevon J. TAYLOR, Fireman Apprentice
No. 04-0588
Crim. App. No. 200202294
Argued
Decided
EFFRON, J., delivered
the opinion of the Court, in which GIERKE, C.J., and CRAWFORD, BAKER,
and
ERDMANN, JJ., joined.
Counsel
For Appellant: Lieutenant Brian L. Mizer, JAGC, USNR (argued).
For Appellee: Lieutenant Craig A. Poulson, JAGC, USNR (argued); Commander Charles N. Purnell, JAGC, USN, Lieutenant Colonel William K. Leitzau, USMC, and Lieutenant Frank L. Gatto, JAGC, USNR (on brief).
Military Judge:
Thomas K. Leak
THIS OPINION IS SUBJECT TO REVISION BEFORE
FINAL PUBLICATION.
Judge EFFRON delivered the opinion of the Court.
At
a special
court-martial composed of a military judge sitting alone, Appellant was
convicted, contrary to his plea, of desertion in violation of Article
85,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 885 (2000). Appellant was sentenced to a bad-conduct
discharge, confinement for 150 days, and reduction to pay grade E-1. The convening authority approved the sentence
as adjudged. The United States
Navy-Marine Corps Court of Criminal Appeals affirmed the findings and
sentence
in an unpublished opinion. United States v.
On Appellant’s petition, this Court granted review of the following issue:
WHETHER, IN LIGHT OF THE SUPREME
COURT’S RULING IN CRAWFORD v. WASHINGTON, 124 S. CT. 1354
(2004),
PROSECUTION EXHIBITS 2 AND 3 CONSTITUTE TESTIMONIAL HEARSAY REQUIRING
THAT
THEIR DECLARANTS BE SUBJECT TO CROSS-EXAMINATION AS REQUIRED BY THE
SIXTH
AMENDMENT TO THE U.S. CONSTITUTION.
Additionally, we specified the following two issues:
WHETHER,
APART FROM THE CONFRONTATION
ISSUE OF CRAWFORD v.
WHETHER
THE EVIDENCE PRESENTED ON THE
MERITS WAS LEGALLY SUFFICIENT TO PROVE BEYOND A REASONABLE DOUBT THAT
APPELLANT
WAS GUILTY OF DESERTION FROM HIS ORGANIZATION, THE NAVY ABSENTEE
COLLECTION AND
For the reasons stated below, we conclude that the military judge erred in admitting Prosecution Exhibits 2 and 3, and that the error was prejudicial.
I. BACKGROUND
The specification charged that Appellant:
on or about
In the armed forces, each unit prepares a daily report, such as a morning report or a muster report, to account for the attendance of military personnel in that unit. In a desertion case in the Navy, the prosecution typically introduces a record known as a “page 6,” which documents an unauthorized absence in the servicemember’s personnel records. For reasons not apparent in the record of trial, the prosecution in the present case did not produce a muster report or the page 6 from Appellant’s personnel record. Instead, the prosecution relied on the information in two naval messages, Prosecution Exhibit 2 (P.E. 2) and Prosecution Exhibit 3 (P.E. 3) to prove the dates of Appellant’s absence and the elements of the offense.
Documents such as P.E. 2 and P.E. 3 are hearsay when offered into evidence to prove the truth of a matter asserted in the text of the document. See Military Rule of Evidence (M.R.E.) 801(c). Although hearsay is generally inadmissible, see M.R.E. 802, the rules contain a number of exceptions under which hearsay statements may be introduced. See, e.g., M.R.E. 803, 804.
M.R.E.
803(8)
creates several exceptions that permit the introduction of hearsay
within
certain records or reports from public offices or agencies, including
public
records that describe “matters observed pursuant to duty imposed by law
as to
which matters there was a duty to report.”
M.R.E. 803(8)(B).
The exception does not apply to matters
observed by “police officers and other personnel acting in a law
enforcement
capacity.”
Unlike
its
counterpart in the Federal Rules of Evidence, M.R.E. 803(8) provides a
further
exception for specific types of public records that are admissible even
if they
do not satisfy one of the categories specified by the rule. See
The pertinent documents admitted in Appellant’s court-martial were photocopies of the original records. M.R.E. 1005 provides that the contents of an official record may be proven by a copy if the copy is (1) certified as correct or attested to in accordance with M.R.E. 902, or (2) testified to be correct by a witness who has compared it with the original. The rule indicates a clear preference for these two methods, but also allows other evidence of the contents of a record to be given if the Government exercises reasonable diligence but is unable to obtain a copy that complies with the above requirements. M.R.E. 1005; see 2 Steven A. Saltzburg et al., Military Rules of Evidence Manual § 1005.02, at 10-17 (5th ed. 2003).
II. DISCUSSION
A. PROSECUTION EXHIBIT 2
P.E.
2, one of the
exhibits the Government sought to introduce against Appellant in this
case, is
a copy of a document identified by the Government’s foundation witness,
Legalman First Class (LN1) Sharell A. Welch, as a declaration of
desertion
message. LN1 Welch, the military justice
supervisor for the staff judge advocate’s office at Naval Air Station
Pensacola, which handled the administrative processing regarding
Appellant when
he was returned to military control, stated that the Naval Military
Personnel
Manual requires a declaration of desertion message to be created when a
member
of the armed forces fails to report for duty.
Bureau of Naval Personnel, Naval Military Personnel Manual
(MILPERSMAN)
Article 1600-060 (Aug. 2002, updated
At
trial, defense counsel objected to P.E. 2 on numerous grounds,
including
relevancy, hearsay, improper foundation, and authenticity.
The military judge overruled the objections
and allowed P.E. 2 to be admitted into evidence. We
review a military judge’s ruling on
evidentiary matters for an abuse of discretion.
The Government contends that P.E. 2 was a personnel accountability document, admissible under the specific exception provided for such documents in M.R.E. 803(8). P.E. 2, however, is not a routine accountability document. In addition to the information concerning desertion, there is unreadable content on the document. The Government could not shed light upon this portion of the exhibit. In view of this unknown content on the document, indecipherable even to the party attempting to introduce it, P.E. 2 was not admissible as a personnel accountability document under M.R.E. 803(8).
We next consider whether P.E. 2 was admissible under the M.R.E. 803(8)(B) hearsay exception for “matters observed pursuant to duty imposed by law as to which matters there was a duty to report.” This exception does not apply, however, if “the sources of information or other circumstances indicate lack of trustworthiness.” M.R.E. 803(8). When the Government is unable to explain the content of a record it is attempting to introduce, the document does not satisfy the principles of trustworthiness applicable to M.R.E. 803(8). See 5 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 803.10[1] (Joseph M. McLaughlin ed., 2d ed. 2005).
Even if P.E. 2 fell within a hearsay exception under M.R.E. 803(8), it would not qualify as an admissible copy under M.R.E. 1005. The prosecution acknowledged at trial that P.E. 2 was not certified or attested to, and the Government’s foundation witness, LN1 Welch, did not testify that she compared it with the original document. The Government asserts that M.R.E. 1005 was satisfied despite these deficiencies because the Government presented other evidence of the contents of the record. The Government, however, could rely on such other evidence only by demonstrating that, through the exercise of reasonable diligence, it could not obtain a certified or attested copy or a copy identified as being correct by a witness who compared it to the original. See Saltzburg § 1005.02, at 10-17. In this case, there is no indication that the Government even attempted to authenticate P.E. 2 through one of the preferred methods, let alone that it used reasonable diligence. Because P.E. 2 did not meet a hearsay exception and did not qualify as an admissible copy, the military judge abused his discretion by admitting P.E. 2 over defense counsel’s objections.
B. PROSECUTION EXHIBIT 3
P.E.
3, the other
naval message introduced by the prosecution, is a copy of an e-mail
sent from
Naval Air Station Pensacola to numerous recipients.
LN1 Welch identified the document as a
declaration of return from desertion message, which she stated was
required by
the Naval Military Personnel Manual. See
MILPERSMAN 1600-070 (Aug. 2002, updated
At trial, defense counsel objected to P.E. 3 on the basis that it constituted “hearsay within hearsay,” noting that LN1 Welch testified that the individual in her office who created P.E. 3 relied upon a movement authorization document and a DD 553 arrest warrant in preparing the message. Although trial counsel acknowledged that the Government did not intend to admit the DD 553 arrest warrant into evidence, trial counsel maintained that the DD 553 arrest warrant was not inadmissible hearsay because it fell under the public records exception. The military judge admitted P.E. 3 into evidence, overruling defense counsel’s objections.
Because
the
preparer of P.E. 3 obtained the information from other hearsay
documents -- the
DD 553 arrest warrant and the movement authorization document -- P.E. 3
was
admissible only if those documents were admissible under a hearsay
exception. M.R.E. 805. LN1 Welch testified that the arrest warrant
was created by the Navy Absentee Collection Unit in
Such information did not provide a sufficient basis for concluding that the DD 553 arrest warrant introduced in the present case was admissible under the M.R.E. 803(8)(B) hearsay exception. Arrest warrants based upon the observations of persons acting in a law enforcement capacity are not admissible under M.R.E. 803(8)(B). The record in this case does not provide a basis for concluding that the arrest warrant at issue here was not covered by M.R.E. 803(8)(B).
To the extent that the last sentence of M.R.E. 803(8) permits admission of designated military documents, the DD 553 at issue here did not meet the rule’s criteria for admissibility because the prosecution offered no evidence as to the identity or duties of the declarant of the DD 553. As a result, the record does not establish that the DD 553 was “made by a person within the scope of the person’s official duties and those duties included a duty to know or to ascertain through appropriate and trustworthy channels of information the truth of the fact or event and to record such fact or event.” M.R.E. 803(8). The record of trial provides even less information regarding the other source for P.E. 3, the movement authorization document. The movement authorization document was not admitted into evidence and its contents are unknown, as are the circumstances surrounding its preparation and the duties of its unidentified declarant. Like the DD 553 arrest warrant, the movement authorization document does not satisfy any of the exceptions created by M.R.E 803(8). Because the declarant of P.E. 3 relied on inadmissible hearsay in creating the document, the military judge erred in admitting P.E. 3.
C. PREJUDICE
Because
we hold
that the military judge abused his discretion in admitting P.E. 2 and
P.E. 3,
we must now determine whether the error materially prejudiced the
substantial
rights of the accused. See
Article 59(a), UCMJ, 10 U.S.C. § 859 (2000).
For a nonconstitutional error, “the
Government must demonstrate that the error did not have a substantial
influence
on the findings.”
In Appellant’s court-martial, the Government was required to prove the following elements of desertion terminated by apprehension: (1) Appellant absented himself from his organization; (2) the absence was without authority; (3) Appellant intended to remain away from his organization permanently; (4) Appellant remained absent until the date alleged; and (5) Appellant’s absence was terminated by apprehension. See Article 85, UCMJ, 10 U.S.C. § 885 (2000).
Apart
from P.E. 2
and P.E. 3, the Government’s evidence consists of Prosecution Exhibit 1
(P.E.
1), Prosecution Exhibit 5 (P.E. 5), and the testimony of Police Officer
Charles
D. Ferrell. P.E. 1 is Appellant’s
service contract, which does not establish any of the elements. P.E. 5 consists of a certificate of
attestation and fourteen pages of attested copies of documents from the
Gregg
County Clerk’s Office in
Police
Officer Ferrell
of the Longview Police Department testified about his apprehension of
Appellant
in
III. CONCLUSION
The
military judge
erred in admitting P.E. 2 and P.E. 3.
The decision of the United States Navy-Marine Corps Court of
Criminal
Appeals affirming the finding of guilty and the sentence is reversed. The finding of guilty and the sentence are
set aside. The
record of trial
is returned to the Judge Advocate General of the Navy, and a rehearing
is
authorized.