United States v. Foisy, __ M.J. __, No. NMCCA 201000026 (N-M. Ct. Crim. App. July 20, 2010). (Thanks to an early posting of the decision by CAAFLog.)
Rodriguez and Gilbride deal with Mil. R. Evid. 304(h)(2) rule of completeness. Mil. R. Evid. 304(h)(2) is a longstanding rule of completeness pertaining to confessions introduced against an accused. See, United States v. Rodriguez, 56 M.J. 336, 341-42 (C.A.A.F. 2002), the rule applies to oral as well as written statements. United States v. Gilbride, 56 M.J. 425 (C.A.A.F. 2002). This is a different rule than Mil. R. Evid. 106.
In deciding the military judge erred in his application of Mil. R. Evid. 304(h)(2), NMCCA identified six non-exclusive factors to consider on the issue.
In deciding whether the military judge abused his discretion, the following non-exhaustive list of factors can be gleaned from Rodriguez:
(1) Has the prosecution attempted to “pick out the incriminating words in the statement or discussion and put them in evidence while at the same time excluding the remainder of the statement or conversation, in which the appellant sought to explain the incriminating passages”?
(2) Is the appellant’s subsequent statement separate and unrelated from the subject matter of the original confession, or is it part of or the product of the same transaction or course of action?
(3) What is the elapsed time between the two statements, and were they made at different places and to a different set of persons?
(4) Was the second statement made at the specific request of the appellant or the Government?
(5) Was the defense invoking the rule of completeness as a matter of fairness, or merely attempting to present evidence of a defense without subjecting the appellant to cross-examination?
(6) Did the appellant engage in a “pattern of deception with a variety of persons, and then argue that belated candor in a different setting justifies the introduction of otherwise inadmissible hearsay”?
The NMCCA took great pains to distinguish their ruling as “on the facts of this case.” Thus distinguishing the case from Rodriquez and Harvey. This being a non-constitutional error NMCCA evaluated the impact of the military judge’s error for prejudice.
After weighing the Kerr factors, we find that the Government has failed to demonstrate that the error did not have a substantial influence on the findings. On the contrary, we find that the exclusion of the initial statement, coupled with the admission of a “supplement” to that statement, substantially mislead the members as to the appellant’s actual admissions. Under these facts, while the 30 November 2008 statement may not have been necessary to reach an understanding as to what the appellant was saying in the 26 January 2009 statement, what the members would have understood based on the truncated 26 January statement standing alone was misleading. We therefore set aside the findings of guilty for aggravated sexual assault, Charge II, Specification 1.
The conviction of aggravated sexual assault was set-aside with the direction to hold a sentence rehearing if the CA decides not to pursue a new trial on the sexual assault charge.