United States v. Rankin , 64 M.J. 348 ( 2007 )

UNITED STATES, Appellee
v.
James E. RANKIN, Hospital Corpsman Third Class
U.S. Navy, Appellant
No. 06-0119
Crim. App. No. 200101441
United States Court of Appeals for the Armed Forces
Argued October 18, 2006
Decided January 31, 2007
BAKER, J., delivered the opinion of the Court, in which EFFRON,
C.J., and ERDMANN, J., joined.
STUCKY and RYAN, JJ., did not participate.
Counsel
For Appellant: Lieutenant Brian L. Mizer, JAGC, USN (argued).
For Appellee: Lieutenant Craig A. Poulson, JAGC, USNR (argued);
Commander P. C. LeBlanc, JAGC, USN (on brief); Colonel R. F.
Miller, USMC.
Military Judge: R. W. Redcliff
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Rankin, No. 06-0119/NA
Judge BAKER delivered the opinion of the Court.
On February 14, 2001, a special court-martial composed of
officer members convicted Appellant, contrary to his pleas, of
unauthorized absence, in violation of Article 86, Uniform Code
of Military Justice (UCMJ), 10 U.S.C. § 886 (2000). The
adjudged and approved sentence included a bad-conduct discharge
and confinement for ninety-one days. The United States Navy-
Marine Corps Court of Criminal Appeals affirmed. United States
v. Rankin, 63 M.J. 552, 557 (N-M. Ct. Crim. App. 2006). We
granted review to determine whether certain documents admitted
at trial to prove the unauthorized absence were testimonial
hearsay under Crawford v. Washington, 541 U.S. 36 (2004).1 We
hold that three of the four documents at issue were properly
admitted under Crawford and Davis v. Washington, 126 S. Ct. 2266(2006) as nontestimonial hearsay. The fourth document, a DD-553
military arrest warrant, arguably falls within the contours of
Crawford’s descriptions of testimonial evidence. Nonetheless,
any possible error in admitting this document was harmless
beyond a reasonable doubt. Therefore, we affirm.
1
The specific issue granted was:
WHETHER THE BUSINESS RECORDS ADMITTED INTO EVIDENCE
OVER DEFENSE OBJECTION WERE TESTIMONIAL HEARSAY.
2
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BACKGROUND
Appellant was tried for an unauthorized absence that began
on or about July 13, 1993 and ended with his apprehension by
civilian authorities on December 13, 2000. During its case-in-
chief, the Government presented several documents containing a
variety of service entries showing, among other things, that
Appellant had been placed in the administrative status of
unauthorized absence, the dates on which the absence began and
ended, that his absence was terminated by apprehension by
civilian authorities, and that he was on active duty at the time
of the offense. In all, some nine exhibits were admitted for
these purposes.
On appeal to this Court, Appellant challenges the admission
of these documents as testimonial hearsay, citing Crawford, a
case decided after his trial and while his case was pending
before the Court of Criminal Appeals. Although the granted
issue appears to reach all of the exhibits, Appellant, in his
brief and at oral argument, has limited the issue to the
admissibility of four specific documents, Prosecution Exhibits
(PE) 5, 6, 10, and 11.2
PE 5 is a letter dated July 26, 1993, from the personnel
officer of the 1st Marine Expeditionary Brigade (MEB) in Kaneohe
2
The relevant exhibits were originally PEs 1-10. PE 9 was
withdrawn. PE 4 was redacted and re-offered as PE 11.
3
United States v. Rankin, No. 06-0119/NA
Bay, Hawaii to Appellant’s mother notifying her that her son had
been an unauthorized absentee since July 13, 1993 and imploring
her to urge her son to surrender to military authorities
immediately.
PE 6 is a computer generated document apparently referred
to in administrative parlance as a “page 6,” as in page 6 of the
service record book. This page 6, evidently generated by
Appellant’s original command, indicates that Appellant’s
unauthorized absence began July 13, 1993.
PE 10 is a copy of a naval message dated December 27, 2000,
from the Navy Absentee Collection Information Center (NACIC),
Great Lakes, Illinois to all personnel support detachments in
Pearl Harbor. In addition, several organizations are listed as
recipients for information purposes. They include, among
others, the Navy Personnel Command, Millington, Tennessee; the
Defense Finance and Accounting Service, Cleveland, Ohio; and the
Fleet and Industrial Supply Center, Williamsburg, Virginia.
This message informed the recipients that Appellant, who had
been absent since July 13, 1993, was apprehended by civilian
authorities in Honolulu, Hawaii on December 13, 2000. It
further indicates that Appellant was returned to the Transit
Personnel Unit in Pearl Harbor and requests that organization
inform NACIC of the ultimate disposition of Appellant’s
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United States v. Rankin, No. 06-0119/NA
situation whether by nonjudicial punishment, administrative
discharge, or court-martial.
PE 11 is a copy of a form DD-553 entitled
“DESERTER/ABSENTEE WANTED BY THE ARMED FORCES.” This form
originated with the Commanding General, 1st MEB, to the
Commanding Officer, Bureau of Navy Personnel, for distribution
to civilian law enforcement authorities. This form contained a
physical description of Appellant, and it informed the
recipients that Appellant was an absentee from the armed forces
as of July 13, 1993 and had remained absent for at least thirty
days.
The Government offered these exhibits as records of
regularly conducted activity under Military Rule of Evidence
(M.R.E.) 803(6) and as public records under M.R.E. 803(8). Ms.
Miki Slocum, the civilian legal clerk who had been in possession
of Appellant’s record book, provided the foundational testimony
in support of the admissibility of all of the exhibits. The
defense lodged a variety of objections including an assertion
that the documents were inadmissible hearsay.3 The military
3
At trial, the defense made numerous objections to the documents
based on lack of personal knowledge on the part of the
foundation witness, authenticity, and the best evidence rule.
However, Appellant has not advanced any of those issues or
arguments on appeal in this Court, and thus our decision is
limited to the Crawford question presented.
5
United States v. Rankin, No. 06-0119/NA
judge ruled that the requirements for the business and public
records exceptions had been met and admitted the documents.
TESTIMONIAL EVIDENCE UNDER CRAWFORD
While Appellant’s case was pending review in the lower
court, the United States Supreme Court decided Crawford. The
lower court, aware of the precedent, applied the rationale of
that case to the documents at issue here and concluded that
there had been no error committed in admitting them. Rankin, 63
M.J. at 555. Crawford held that the Confrontation Clause bars
the “admission of testimonial statements of a witness who did
not appear at trial unless he was unavailable to testify, and
the defendant had had a prior opportunity for cross-
examination.” 451 U.S. at 53-54. The distinction struck in
Crawford was between testimonial and nontestimonial hearsay.
This Court subsequently applied the rationale of Crawford in
United States v. Scheurer, 62 M.J. 100, 104-06 (C.A.A.F. 2005)
and United States v. Magyari, 63 M.J. 123, 125-27 (C.A.A.F.
2006).
In Scheurer, the issue was whether statements made
unwittingly to a co-worker were testimonial in nature. 62 M.J.
at 104. We held that casual remarks to an acquaintance under
the circumstances presented were not testimonial since the
declarant had made the statements without contemplation that
they would be available for use at a later trial. Id. at 105-
6
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06. Similarly, in Magyari, we held that certain data entries in
lab reports admitted against the accused were nontestimonial.
63 M.J. at 127. We reasoned under the circumstances presented
-- a routine batch test of random urinalysis samples -- that
the lab technicians “were not engaged in a law enforcement
function, a search for evidence in anticipation of prosecution
or trial.” Id. at 126. As in Scheurer and Magyari, this case
requires us to further define the meaning of “testimonial” in
the military context and as contemplated by the Supreme Court.
The question of whether the documents at issue here were
inadmissible hearsay under Crawford is a question of law that we
review de novo.
Although the Supreme Court did not “spell out a
comprehensive definition of ‘testimonial’” in Crawford, it did
state that: “Whatever else the term covers, it applies at a
minimum to prior testimony at a preliminary hearing, before a
grand jury, or at a former trial; and to police interrogations.
These are the modern practices with closest kinship to the
abuses at which the Confrontation Clause was directed.”
451 U.S. at 68. Further, the Supreme Court identified examples
of “core” testimonial evidence, including: 1) ex parte in-court
testimony such as affidavits, custodial examinations, prior
testimony that the defendant was unable to cross-examine, or
“similar pretrial statements that declarants would reasonably
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United States v. Rankin, No. 06-0119/NA
expect to be used prosecutorially”; 2) extrajudicial statements
in formalized trial materials; and 3) “statements that were made
under circumstances which would lead an objective witness
reasonably to believe that the statement would be available for
use at a later trial.” Id. at 51-52 (citations and quotation
marks omitted). The Supreme Court also noted that the
“[i]nvolvement of government officers in the production of
testimony with an eye toward trial presents unique potential for
prosecutorial abuse . . . .” Id. at 56 n.7. Appellant asserts
that the documents at issue here fall into the third category.
After our decision in Magyari, the Supreme Court decided
Davis, further defining the concept and analytic framework for
distinguishing between testimonial and nontestimonial hearsay.
In Davis, an emergency 911 operator received a call from
Michelle McCottry. 126 S. Ct. at 2271. During the ensuing
conversation, the operator learned that McCottry was involved in
a domestic disturbance with her former boyfriend, the
petitioner, Adrian Davis, that Davis had just assaulted her, and
that he had just fled the scene. During Davis’s trial for
violation of a domestic no-contact order, and over defense
objection, the government played the taped conversation between
McCottry and the 911 operator. After noting that 911 operators
were at least agents of law enforcement and that the operator’s
questioning of McCottry was “interrogation in one sense,” the
8
United States v. Rankin, No. 06-0119/NA
Supreme Court concluded that “the circumstances of McCottry’s
interrogation objectively indicate its primary purpose was to
enable police assistance to meet an ongoing emergency.” Id. at
2274, 2277. Thus, the Supreme Court concluded that her
statements to the operator were not testimonial. Id. at 2277.
In other words, the primary purpose for making the statements
was something other than producing evidence with an eye toward
trial or prosecution.
In the wake of Crawford and Davis, several federal courts
have addressed the testimonial nature of hearsay in the context
of the admissibility of warrants of deportation. See, e.g.,
United States v. Bahena-Cardenas, 411 F.3d 1067, 1074 (9th Cir.
2005); United States v. Garcia, 452 F.3d 36, 41 (1st Cir. 2006);
United States v. Valdez-Maltos, 443 F.3d 910, 911 (5th Cir.
2006). In trials of aliens charged with entering the United
States without permission after having been deported, the
government generally offers into evidence a warrant of
deportation. Among other things, the warrant contains an
attestation that a deportation officer observed the alien leave
the country after he was deported. Challenges to these
documents based on Crawford have been uniformly rejected in that
the warrant of deportation is not testimonial “because it was
not made in anticipation of litigation” and because “it is
simply a routine, objective, cataloging of an unambiguous
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factual matter.” Bahena-Cardenas, 411 F.3d at 1075. Indeed, in
Magyari, we characterized the data entries by the lab
technicians the same way. 63 M.J. at 126.
Consistent with Crawford and Davis, as well as federal case
law more generally, a number of questions emerge as relevant in
distinguishing between testimonial and nontestimonial hearsay
made under circumstances that would cause an objective witness
to reasonably believe that the statement would be available for
use at a later trial. First, was the statement at issue
elicited by or made in response to law enforcement or
prosecutorial inquiry? Second, did the “statement” involve more
than a routine and objective cataloging of unambiguous factual
matters? Finally, was the primary purpose for making, or
eliciting, the statements the production of evidence with an eye
toward trial? As is evident from the Supreme Court’s primary
purpose analysis in Davis, in addressing the third category of
potential testimonial statements, the Crawford analysis is
contextual, rather than subject to mathematical application of
bright line thresholds.
In applying this analysis to PEs 5, 6, and 10, we conclude
that the primary purpose for creating these documents was not,
as Appellant asserts, “to bring Appellant to trial.” On its
face, PE 5, the letter to Apellant’s mother, belies any claim
that this document was generated for the purpose asserted by
10
United States v. Rankin, No. 06-0119/NA
Appellant. The letter simply notified Appellant’s parent that
he was an unauthorized absentee from the service and sought to
emphasize the seriousness of the situation. Regarding PE 6, the
clerk, Ms. Slocum, testified that the information contained in
the page 6 was generated from Appellant’s original command’s
muster report. The exhibit itself indicates that it was
prepared about eight days after Appellant’s absence began. It
goes without saying that the commander has a significant
interest in accounting for the whereabouts of the members of his
command and knowing when a member is unaccounted for. Again,
the claim that the primary purpose for preparing this page 6
under these circumstances was to produce incriminating evidence
for Appellant’s prosecution is unsupported in the record.4
Similarly, PE 10, the naval message appears on its face to have
been prepared and disseminated to the addressees for the purpose
of initiating the process of Appellant’s transition to military
control. The addressees include organizations such as personnel
support detachments, the Navy Personnel Command, a supply center
and the finance service, all clearly administrative rather than
law enforcement entities. It is true that the body of the
4
We agree with Appellant that the Navy Military Personnel Manual
anticipates that this type of document could be used at a court-
martial. Bureau of Naval Personnel, Naval Military Personnel
Manual Article 1600-060 (Aug. 2002, updated Sept. 27, 2006).
Although this could be a use to which the document might be put,
our analysis concerns the primary purpose for creating the
document.
11
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message references disposition by court-martial, but it also
recognizes a variety of dispositions aside from criminal
prosecution. The originator of the message simply requests that
it be informed regardless of what disposition is taken.
PE 11 raises some of the concerns expressed in Crawford.
The DD-553 has qualities similar to an arrest warrant. See
United States v. Khamsouk, 57 M.J. 282, 288 (C.A.A.F. 2002).
Moreover, the form gives a civilian peace officer the authority
to apprehend a military member specifically for the offense of
desertion. Id. Thus, it is reasonable to conclude that the
preparation of such a document has a significant prosecutorial
purpose. Certainly, the primary purpose of such a document is
to facilitate the arrest of a suspect and thus it is generated
with an eye toward prosecution. On the other hand, the form is
not necessarily generated for the purpose of producing
“evidence” for trial, so much as it is intended to produce the
suspect for trial.
In any event, we need not ultimately conclude whether the
DD-553 in this case was “testimonial” in nature. Even if
admission of the document was error, any information contained
in it that was relevant to the elements of the offense was
cumulative with the same type of information contained in the
other exhibits that we have concluded were not testimonial
12
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evidence. Thus, any error in admitting the DD-553 into evidence
was harmless beyond a reasonable doubt.
THE ROBERTS ANALYSIS
Having concluded, with the possible exception of exhibit
11, that the documents are nontestimonial, we move to the final
part of the analysis. Appellant’s appeal is concerned only with
whether the exhibits at issue are testimonial or not, and he has
not challenged the admissibility of the exhibits under Ohio v.
Roberts, 448 U.S. 56 (1980). Nonetheless, as we have held
previously, when the Crawford framework does not apply, “the
Ohio v. Roberts requirement for particularized guarantees of
trustworthiness continues to govern confrontation analysis for
nontestimonial statements.” Scheurer, 62 M.J. at 106 (footnote
omitted). Under the Roberts framework, nontestimonial hearsay
is admissible if: 1) “the statement falls within a firmly
rooted hearsay exception, or 2) it bears other particularized
guarantees of trustworthiness.” Id. at 107 (citation and
quotation marks omitted). Here, the military judge heard the
testimony of the foundation witness and admitted the exhibits
under the business records exception. See M.R.E. 803(6). As a
result, the military judge did not abuse his discretion in
admitting these documents as the business records exception is
firmly rooted. Magyari, 63 M.J. at 128; see also United States
v. Bridges, 55 M.J. 60, 63 (C.A.A.F. 2001).
13
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DECISION
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is affirmed.
14