United States v. Bridges , 55 M.J. 60 ( 2001 )

UNITED STATES, Appellee
v.
Shawn T. BRIDGES, Airman First Class
U. S. Air Force
No. 00-0456
Crim. App. No. 33369
United States Court of Appeals for the Armed Forces
Argued December 5, 2000
Decided May 29, 2001
CRAWFORD, C.J., delivered the opinion of the Court, in
which GIERKE and EFFRON, JJ., joined. SULLIVAN and BAKER, JJ.,
each filed an opinion concurring in the result.
Counsel
For Appellant: Major Steven P. Kelly (argued); Colonel
James R. Wise and Lieutenant Colonel Timothy W. Murphy
(on brief).
For Appellee: Captain James C. Fraser (argued); Colonel
Anthony P. Dattilo, Lieutenant Colonel William B. Smith and
Major Lance B. Sigmon (on brief).
Military Judge: Mary M. Boone
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Bridges, No. 00-0456/AF
Chief Judge CRAWFORD delivered the opinion of the Court.
Contrary to his pleas, appellant was convicted in June 1998
by officer and enlisted members of assaulting his 22-month-old
daughter and 9-month-old son, in violation of Article 128,
Uniform Code of Military Justice (UCMJ), 10 USC § 928. The
convening authority approved a sentence of a bad-conduct
discharge, 6 months’ confinement, and reduction to the lowest
enlisted grade. The Court of Criminal Appeals affirmed the
findings and sentence. 52 M.J. 795 (2000). We granted review of
the following issues:
I. WHETHER THE AIR FORCE COURT OF CRIMINAL
APPEALS ERRED WHEN IT HELD THAT APPELLANT WAIVED
HIS SIXTH AMENDMENT RIGHT TO CONFRONT JULIA
BRIDGES, THE PROSECUTION’S KEY WITNESS.
II. WHETHER APPELLANT’S SIXTH AMENDMENT RIGHT TO
CONFRONT WITNESSES AGAINST HIM WAS VIOLATED WHEN
HIS WIFE’S STATEMENT TO LAW ENFORCEMENT
INVESTIGATORS WAS ADMITTED UNDER MILITARY RULE
OF EVIDENCE 804(b)(5).
Based upon United States v. McGrath, 39 M.J. 158 (CMA 1994),
we hold that the court below did not err, and there is no
violation of appellant’s Sixth Amendment right to confront and
cross-examine Mrs. Bridges.
FACTS
During the findings portion of the trial, Mrs. Bridges was
called as a prosecution witness. She gave her name, her address,
and length of residency at that address. However, when she was
asked, “Do you remember going to your neighbor’s house ... your
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husband hit[ting] you that night ... slap[ping] you that night?”
and other questions, she refused to answer. The judge then
dismissed the court members and held a session under Article
39(a), UCMJ, 10 USC § 839(a).
At that session, Mrs. Bridges told the judge “it doesn’t
matter” whether she’s ordered to testify or not, she will refuse
to testify. The witness also stated that even if she were held
in contempt, she would not respond to the judge’s questions.
Near the end of this session, after Mrs. Bridges said she was not
willing to answer “any of the questions that [the prosecutor]
poses to [her],” the judge asked, “Anything anybody else wants to
ask of this witness before I let her depart the courtroom?” The
defense responded, “No, Your Honor.”
The judge then asked defense counsel, “Are they in the
process or -- being just separated or what?” The defense counsel
responded, “[T]hey are still married and they intend to remain
married.” The defense also responded she did not want “to
testify [based on] the relationship with her husband." Later,
when arguing the admissibility of a prior statement made by Mrs.
Bridges to law enforcement officers on December 8, 1997, the
defense indicated they would challenge Mrs. Bridges’ competency.
At that time, the judge gave the defense the opportunity to call
her “back up here” as a witness, but the defense declined that
invitation.
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After this conversation, the judge determined that Mrs.
Bridges was “unavailable” to testify and admitted her prior
statement under the residual hearsay exception of Mil.R.Evid.
804(b)(5), Manual for Courts-Martial, United States (1998 ed.).1
To support its admission, the judge found that the following
factors supported the conclusion that the statement possessed
guarantees of trustworthiness:
(1) Appellant’s statement corroborated Mrs. Bridges’
statement;
(2) The neighbors heard the children screaming;
(3) Mrs. Bridges “ran to a neighbor’s house and reported
abuse by the accused;”
(4) She was “hysterical” at the time;
(5) Mrs. Bridges reported the abuse to the doctor; and
(6) Treatment was sought at the hospital for Mrs. Bridges’
two children.
After appellant’s conviction and during the sentencing
stage, the defense sought to introduce a second statement made
by Mrs. Bridges on June 15, 1998. Trial counsel responded:
Ma’am, for that one, we do have an objection.
My concern is, of course, although we called
her as a witness, she was unavailable, she
won’t testify. She said she won’t testify.
And if I called her back to cross-examine her about
the contents of the letter or her bias or her motive,
which will go into the allegations again, she won’t
testify.
Thereafter, the following discussion took place between defense
counsel and the military judge:
1
Now Mil.R.Evid. 807.
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DC: Your Honor, I believe that Captain Spath [the
prosecutor] would have a valid point
if she went in and discussed the events.
However, she states very clearly that she’s
talking about the impact that this will have upon
her family. This is clearly matters in
mitigation. While Captain Spath may be unhappy
that he can’t cross-examine her about areas that
are not included in this statement, under the
relaxed rules of sentencing, I don’t think that’s
a valid reason to keep this out.
She does not go into the areas that he’s
mentioned that he wants to cross-examine her
about.
MJ: Well, but that’s the point. He’s saying the
statement’s one-sided. She’s talking about all
the stuff with the child and the impact, and yet,
he can’t go into what was the impact at the time
or what--you know, what was going on with the
children.
* * *
MJ: Well, she needs to rethink-- and I understand
that she didn’t, but, you know, Captain Spath has
the opportunity to call her back and she needs to
be prepared and come-- and he has the opportunity
to present rebuttal and to cross-examine her
about this.... Mrs. Bridges needs to make a
decision[.]
* * *
DC: Well, ma’am, you know, there’s an easy way to
resolve this. She’s here in this courtroom,
she’s heard all this discussion, we can call her
to the stand right now and we can ask her what
she would do and you could instruct her that if
she is going to be willing to answer questions,
that she can’t stop in the middle, as Captain
Spath just suggested.
MJ: Well, I can’t stop her from not stopping in the
middle [sic]. I just won’t let you give them the
exhibit [Mrs. Bridges’ statement made June 15,
1998] until she’s answered questions. It’s that
simple. Because-- are you going to call or Spath
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going to call her to answer questions? You’re
not planning on calling her, right?
DC: I was not planning on calling her.
DISCUSSION
The Sixth Amendment provides in part that “[i]n all
criminal prosecutions, the accused shall enjoy the right ... to
be confronted with the witnesses against him,” together with “the
right ... to have compulsory process for obtaining witnesses in
his favor....” Article 39(a)(4) provides for the “presence of
the accused,” and Article 46, UCMJ, 10 USC § 846, states that
“the defense counsel ... shall have equal opportunity to obtain
witnesses and other evidence....”
If the right of confrontation and cross-examination means
anything, it means that the prosecution must present the hearsay
declarant at trial in an attempt to elicit the out-of-court
statement directly from the witness’s lips while on the witness
stand and under oath. That was done in this case.
The genesis for the current Sixth Amendment interpretation
is found in Justice Harlan’s concurring opinion in California v.
Green, 399 U.S. 149, 172 (1970).2 With Green as a roadmap, in
Ohio v. Roberts, 448 U.S. 56 (1980), the Supreme Court declared
“a preference for face-to-face confrontation at trial.” Id. at
63 (emphasis added). The Court held that hearsay is admissible
2
In United States v. Owens, 484 U.S. 554, 559 (1988), the majority of the
Court expressly adopted Justice Harlan’s concurring opinion in Green.
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when the witness is unavailable and the hearsay either “falls
within a firmly rooted hearsay exception,” see, e.g., White v.
Illinois, 502 U.S. 346, 355 (1992), or has “particularized
guarantees of trustworthiness,” see, e.g., Idaho v. Wright, 497
U.S. 805, 820 (1990). 448 U.S. at 66. “[T]he Sixth Amendment
establishes a rule of necessity. In the usual case (including
cases where prior cross-examination has occurred), the
prosecution must either produce, or demonstrate the
unavailability of, the declarant whose statement it wishes to use
against the defendant.” Id. at 65.
The Supreme Court has used a “cost benefit” analysis when
balancing witness unavailability with the “‘Confrontation
Clause’s very mission’ which is to ‘advance “the accuracy of the
truth-determining process in criminal trials.”’” United States
v. Inadi, 475 U.S. 387, 396 (1986), quoting Tennessee v. Street,
471 U.S. 409, 415 (1985), quoting Dutton v. Evans, 400 U.S. 74,
89 (1970). See also United States v. Johnston, 41 M.J. 13 (CMA
1994)(purpose of a trial is truth-finding within constitutional,
statutory, and ethical constraints).
The unavailability requirement is inapplicable in some
situations, for example, where the utility of confrontation is
“remote,” Roberts, 448 U.S. at 65 n.7, or the exception is
“firmly rooted,” as in statements of co-conspirators, Inadi,
supra; declarations against interest, United States v. Jacobs, 44
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MJ 301 (1996)3; dying declarations; business records; and public
records, 448 U.S. at 66 n.8. Conversely, the residual hearsay
exception is not firmly rooted -- thus, the requirement to
establish unavailability and particularized guarantees of
trustworthiness. Idaho v. Wright, supra.
A witness is unavailable when she “persists in refusing to
testify concerning the subject matter of [her] statement despite
an order of the military judge to do so....” Mil.R.Evid. 804(a)
In this case, appellant’s wife was called to the witness stand
and stated her name, address, and how long she had been living at
that address. Then she told the judge that she would not
testify, even if ordered to do so. Only after her refusal to
testify further and defense counsel’s declination of the
opportunity to cross-examine her was the prosecution allowed to
introduce her statement given to law enforcement officials on
December 8, 1997. The prosecution was not responsible for the
unavailability resulting from the refusal of the witness to
testify. See, e.g., Berger v. California, 393 U.S. 314 (1969);
Barber v. Page, 390 U.S. 719 (1968). Mrs. Bridges was, in
effect, invoking her “marital privilege.”
This case is strikingly similar to United States v.
McGrath, supra, and United States v. Martindale, 40 M.J. 348 (CMA
1994). In both of these cases, we held that when a witness is
3
We need not decide if Mrs. Bridges’ statement was a declaration against
interest and, thus, a firmly rooted exception to the hearsay statement.
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present and confrontation is not at issue, the judge may employ
extrinsic circumstances to corroborate the witness’s prior
statement the proponent seeks to admit.
In McGrath, the accused’s 14-year-old daughter, A, was
called by the prosecution as a witness. When asked if she had
made statements implicating appellant, A refused to answer.
Additionally, she refused to retract or confirm her prior
statements. A admitted that she appeared in court because she
received a German subpoena. A said she did not want to testify
because she wanted to avoid any potential harm to her father.
Just as in the case sub judice, when the military judge concluded
his questioning of A’s daughter, he offered defense counsel an
opportunity to question the witness, and defense counsel
declined. 39 M.J. at 159-61. Likewise, in Martindale, there was a
voluntary confession, and the witness-declarant was tendered to
the defense, but they expressly waived the right to confront the
witness at trial. 40 M.J. at 349.
Just like the witness in McGrath, Mrs. Bridges was present,
was placed under oath, and gave identifying information but
refused to respond to additional questions. When defense counsel
was asked whether they had any questions for Mrs. Bridges, they
replied in the negative. Additionally, defense counsel informed
the judge that Mrs. Bridges would not testify because she
intended to remain married to appellant and her refusal to
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testify was motivated by this relationship. The defense said
that they had talked with Mrs. Bridges and knew her desires.
During sentencing, the defense noted that she was willing
to testify in mitigation about the “impact” the findings would
have upon her family. The judge told defense counsel that Mrs.
Bridges “needs to make a decision” about whether she will be
subject to cross-examination. The defense said that decision
will be easy because “[s]he’s here in this courtroom, she’s heard
all this discussion.” The defense then stated that they were not
planning to call her as a witness. They only wanted to introduce
her written statement. However, the judge ruled that unless Mrs.
Bridges would be willing to be called and be subject to cross-
examination, she would not admit the written statement.
Ultimately, the statement was not admitted.
Just as in McGrath, “it is clear that examination of the
victim, direct or cross, was the very last thing on earth the
defense wanted to have happen. Having thus eschewed
confrontation, appellant cannot now claim a denial of it.” 39 M.J.
at 163. We agree with the Court below:
Had the defense made a sincere effort to
examine the witness and she still refused to
testify, the issue would be different. However,
when a witness is produced at trial and the
defense makes no effort at all to avail of the
opportunity thereby provided to test the
recollection and conscience of the witness, it is
clear that the defense waives cross-examination.
And, that waiver of cross-examination satisfies
the [unavailability] requirements of the
Confrontation Clause.
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52 M.J. at 800.
As in McGrath, “the Government did not seek to rely on
paper evidence, but rather produced the witness.” Id. at 163.
Thus, we hold that it was appropriate for the judge to consider
factors outside the making of the statement to establish the
reliability of Mrs. Bridges’ December 8, 1997, statement to law
enforcement officials and to admit her statement during the
prosecution’s case-in-chief.
This is not the case of a witness who was absent. In fact,
Mrs. Bridges was present and on the witness stand during the
case-in-chief, and present in the courtroom during sentencing.
Nor is this a case where the defense made any attempt to impeach
the pretrial statement of Mrs. Bridges. This is a case of a
witness trying to protect her interests, and by so doing,
allowing appellant now to use the lack of cross-examination as a
sword. This is a witness who was made available, but for
reasons known to her, defense counsel, and possibly appellant,
was unwilling to testify. In summary, it is enough that
appellant and defense counsel were brought face-to-face with the
witness and given an opportunity to ask the judge to order her
to testify, encourage her to testify, cross-examine her, or
offer evidence to discredit the pretrial statement. The defense
took none of these actions.
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DECISION
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
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SULLIVAN, Judge (concurring in the result):
I vote to affirm this case, but I do so via a different path.
I do so since the majority opinion’s approach to this case
troubles me. It first suggests that appellant’s constitutional
right to confrontation was not an issue because Mrs. Bridges was
called to the stand as a witness prior to the admission of her
hearsay statement under Mil.R.Evid. 804(b)(5). ___ MJ at (9). A
similar question was addressed by the Supreme Court in United
States v. Owens, 484 U.S. 554 (1988). See also Delaware v.
Fensterer, 474 U.S. 15 (1985). There, the Supreme Court said
that the constitutionally required “guarantees of
trustworthiness” are not “called for when a hearsay declarant is
present at trial and subject to unrestricted cross-examination.”
Id. at 560 (emphasis added). Clearly, Mrs. Bridges was not
subject to unrestricted cross-examination in this case because
she refused to answer any questions. See United States v.
Vernor, 902 F.2d 1182, 1186 (5th Cir. 1990) (hearsay statement of
witness who asserted Fifth Amendment privilege subject to
constitutional standard of trustworthiness). Even United States
v. McGrath, 39 M.J. 158, 163 (CMA 1994), recognized this point.
Merely bringing an appellant and witness face-to-face and
asking the judge to order a recalcitrant witness to testify does
not constitute an effective or meaningful opportunity for cross-
United States v. Bridges, 00-0456/AF
examination. The prosecution had elicited precious little
information about Julia Bridges that could be questioned by
defense counsel. Requiring a defense counsel in this situation
to conduct a pointless cross-examination (or, alternately, asking
the judge to order the witness to testify) in order to preserve
an accused’s confrontation rights is equally hollow, i.e., “The
law does not require the doing of a futile act.” Ohio v.
Roberts, 448 U.S. 56, 74 (1980). A need for a constitutional
showing of trustworthiness existed in this case. See United
States v. Vernor, supra.
Next, the majority opinion appears to hold that there is no
constitutional confrontation issue in this case because appellant
waived his right to cross-examine Mrs. Bridges. Its analysis
focuses on the decision of this Court in United States v.
McGrath, supra, but overlooks applicable Supreme Court precedent
on waiver of the constitutional right to confrontation. See
Brookhart v. Janis, 384 U.S. 1 (1966). I find this approach
unsatisfactory.
In Brookhart v. Janis, the Supreme Court addressed waiver of
the right to confrontation as follows:
The question of a waiver of a federally
guaranteed constitutional right is, of
course, a federal question controlled by
federal law. There is a presumption
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against the waiver of constitutional
rights, see, e.g., Glasser v. United
States, 315 U.S. 60, 70-71, and for a
waiver to be effective it must be clearly
established that there was “an intentional
relinquishment or abandonment of a known
right or privilege.” Johnson v. Zerbst,
304 U.S. 458, 464.
In deciding the federal question of
waiver raised here we must, of course,
look to the facts which allegedly support
the waiver. Upon an examination of the
facts shown in this record, we are
completely unable to agree with the
Supreme Court of Ohio that the petitioner
intelligently and knowingly waived his
right to cross-examine the witnesses whose
testimony was used to convict him.
384 U.S. at 4-5 (footnote omitted).
Turning to the facts of appellant’s case, as described by the
majority opinion, I see no waiver by appellant of his right to
cross-examine his wife. More is required than a failure of
defense counsel to cross-examine the witness. See Hawkins v.
Hannigan, 185 F.3d 1146, 1155 n.5 (10th Cir. 1999), citing
Cruzado v. People of Puerto Rico, 210 F.2d 789, 791 (1st Cir.
1954) (approving waiver by defense counsel stipulation); United
States v. Figueroa, 976 F.2d 1446, 1457 (1st Cir. 1992). Here
defense counsel was told in advance by the witness that she would
answer no questions. There was no stipulation in this case, and
I see no strategic inaction in his subsequent failure to question
this recalcitrant witness. United States v. McGrath, supra at
170 (Sullivan, J., dissenting) (defense offered chance to cross-
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examine victim but declined after witness asserted that she would
not answer).
Since I see a confrontation issue in this case, my remaining
question is whether there were particular guarantees of
trustworthiness surrounding the making of Mrs. Bridges’ out of
court statement which warranted its admission at appellant’s
court-martial. In my view, Idaho v. Wright, 497 U.S. 805 (1990),
not McGrath or United States v. Martindale, 40 M.J. 348 (CMA 1994),
controls.
Here, there were several factors surrounding the making of
her statement which provided the necessary particularized
guarantees of trustworthiness. Mrs. Bridges’ statement was
handwritten shortly after the alleged incident on December 8,
1997; it was made to security forces called to the scene by
Annette Richner at the request of Mrs. Bridges; Ms. Richner also
said Mrs. Bridges was hysterical shortly after the alleged
incident before making the statement; another witness stated that
she heard appellant yelling at his daughter through the wall of
their duplex-type, on-base residence shortly before her statement
was made; and finally, evidence was admitted that Mrs. Bridges
made a second consistent statement at Abilene Regional Hospital,
90 minutes later, when she sought medical treatment for her two
children. See United States v. Orena, 32 F.3d 704, 712 (2d Cir.
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United States v. Bridges, 00-0456/AF
1994) (statements made during life and death battle); United
States v. Bradley, 145 F.3d 889, 895 (7th Cir. 1998) (admission of
wife’s statement to officers responding to emergency call
satisfies Idaho v. Wright); cf. United States v. Mitchell, 145
F.3d 572, 579 (3d Cir. 1998) (admission of anonymous note
violates Idaho v. Wright).
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BAKER, Judge (concurring in the result):
For the reasons stated by Judge Sullivan, I do not
believe the record reflects that appellant waived his right
to cross-examine Mrs. Bridges. Although it may have been
to appellant's immediate tactical advantage not to cross-
examine Mrs. Bridges, where, as here, it was apparent to
all present that Mrs. Bridges would not testify, we should
not place form over substance and require defense counsel
to engage in a charade in order to preserve the
constitutional right of cross-examination. As Judge
Sullivan has observed elsewhere, defense counsel's position
on cross-examination may well change in response to a
military judge's ruling on the admission of an out of court
statement. United States v. McGrath, 39 M.J. 158, 170 (CMA
1994)(Sullivan, J., dissenting). Nonetheless, I concur in
the result.
In this case, the military judge correctly determined
that Mrs. Bridges was not available for the purpose of
cross-examination and, therefore, the Government
established the necessity of introducing her out-of-court
statement into evidence. And, although the judge's ruling
was in response to the attempts of trial counsel to
question Mrs. Bridges, her ruling on availability was not
limited to the Government. The military judge also
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correctly determined that Mrs. Bridges' statement carried
adequate indicia of reliability. This is true whether this
Court relies on waiver and McGrath (relying on
particularized guarantees of trustworthiness from
corroborating evidence unrelated to the making of the
statement), or as Judge Sullivan and I argue, in the
absence of waiver, the Court limits its inquiry to indicia
of reliability surrounding the making of the statement
itself. Idaho v. Wright, 497 U.S. 805, 820 (1990).
The judge's findings of fact and conclusions of law
regarding admissibility satisfy both tests. The
particularized guarantees of trustworthiness surrounding
the making of Mrs. Bridges' statement include the
following: her statement was made under oath; her statement
was made "within fairly close proximity" to the events in
question; and her statement was against her own pecuniary
interest, evidenced in part by her subsequent refusal to
testify.∗ In light of these factors, it is not necessary to
look to additional extrinsic circumstantial guarantees of
trustworthiness, such as the observations of Mrs. Bridges'
neighbors; the circumstances surrounding her response to
∗
I leave for another day, whether this latter factor alone
would have warranted admission of Mrs. Bridges' statement
as a firmly rooted hearsay exception. Id. at 815.
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security forces; or statements made to the attending
physician when she sought treatment for her two children.
3