United States v. Mooty

In Mooty, AFCCA sets aside the findings and sentence because it

s​pecified the following issue: (3) whether, in light of Hemphill v. New York, 595 U.S. 140 (2022), the military judge violated Appellant’s Sixth Amendment right to confrontation by admitting testimonial hearsay after finding the Defense opened the door to the admission of the evidence, and if so, whether Appellant is entitled to relief. [An] error that materially prejudice[d] Appellant’s substantial rights. Articles 59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d).

SCOTUSblog has this summary of Hemphill-I, noting that cert. was denied in Hemphill-II, back after the Hemphill-I remand. 

The Sixth Amendment gives anyone standing trial the right “to be confronted with the witnesses against” them. In January, the justices held that a New York court violated the confrontation clause when it upheld a homicide conviction although the jury had heard an incriminating statement from a co-defendant who did not testify and could not be cross-examined. This week, we highlight cert petitions that ask the court to consider, among other things, whether the admission of that statement was nevertheless “harmless.”

In 2006, a child in New York City was killed by a stray bullet from a 9-millimeter handgun after a fight broke out on the street. Seven years later, the state charged Darrell Hemphill with firing the fatal shot.

At trial, Hemphill relied on evidence pointing to Nicholas Morris, whom New York had failed to convict for the crime years beforehand, as the shooter: eye-witness testimony identifying Morris as the shooter at the fight, and the discovery by police of 9-millimeter ammunition in Morris’ nightstand. In response, the state introduced its own evidence. It put Hemphill’s cousin on the stand, who as part of a plea deal for a reduced sentence testified that the 9-millimeter present at the scene rested in Hemphill’s hands, and that Morris was holding a .357-magnum revolver. And, over Hemphill’s objection, it introduced a prior statement from Morris admitting as part of his own plea deal that he did, in fact, have a gun at the scene: a .357-magnum.

On appeal, Hemphill argued that admitting Morris’ out-of-court statement violated his Sixth Amendment rights because Morris was stuck in Barbados and unable to return to New York in order to be cross-examined. The state appeals court disagreed. By pointing the finger at Morris, the court concluded, Hemphill had “opened the door” to evidence rebutting that claim.
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By a vote of 8-1, the Supreme Court overruled that decision earlier this year. Holding that the use of an out-of-court statement by a witness unavailable for cross-examination violates the confrontation clause, the justices sent the case back to the New York appeals court to evaluate whether Morris’ statement impacted the jury’s decision.

In Mooty, the military judge initially ruled that out of court statements by RH were not admissible because there was no confrontation and they were testimonial statements.

RH sent a message to the Royal Air Force Mildenhall Public Affairs office alleging Appellant drove drunk from Newmarket to Bury Saint Edmunds, United Kingdom, referring to the night in question. The message was forwarded to Appellant’s commander, who in turn forwarded it to Appellant’s First Sergeant, o “look into” the matter.

During the investigation, SMSgt GH exchanged emails with RH. In the email exchange, SMSgt GH obtained more alleged details of the alleged DUI.

At trial it appears, a civilian, RH refused to testify. During trial, the defense pursued a theory that the Government had not presented evidence of intoxication "sufficient to impair the rational and full exercise of Appellant's mental or physical capabilities[.]"

After the Government objected to that line of questioning, the military judge overruled objections, but then, apparently sua sponte,

also instructed MSgt SC that if defense counsel “[a]sks you a question that you believe calls for information that you may have seen from [RH] . . . [y]ou can answer that question.” The military judge reasoned that trial defense counsel can waive their objection to RH’s statement, and further instructed that trial counsel would be allowed the opportunity to “clarify” MSgt SC’s responses to the Defense’s line of questioning.

After more cross-examination and redirect the problem developed further.

On redirect examination, trial counsel asked MSgt SC, “[W]ere any of your answers just now affected by the fact that you were under the impression you’re not allowed to talk about allegations you may or may not have received from [RH]?” MSgt SC answered that he would have responded differently to the question of whether there was a report of Appellant having bloodshot eyes based on the statement in RH’s email concerning her perception of how drunk Appellant was. Trial defense counsel objected, and after hearing argument from both sides, the military judge ruled that trial defense counsel’s questioning—specifically concerning whether the witness received any information or report that Appellant had bloodshot eyes—opened the door to RH’s testimonial hearsay that had been previously excluded. Specifically, the military judge reasoned:

I’m not finding that there’s been some big door open to every
statement [RH] made but with regards to that specific question
that defense counsel answered [sic]. The witness may answer
what – with what he believed to be responsive. Even though that
evidence had previously been excluded. Because the right to con-
frontation is the accused’s right. And there was a question by
defense counsel that arguably called for that particular answer.

AFCCA found that the defense had preserved their challenge to the testimony and did nothing to directly or indirectly waive that challenge.

​The military judge abused his discretion in finding waiver based on a theory that the defense questioning opened the door or “called for” the testimonial hearsay of RH. It is undisputed that the Defense maintained their objection to the testimonial hearsay, and at no point did the Defense intentionally relinquish or abandon the right to confrontation. Likewise, the Defense did not engage in a “course of conduct indicating waiver.” The line of cross-examination supported the defense theory that there is no evidence of intoxication sufficient to impair the rational and full exercise of mental or physical capabilities, a required element of the offense. The questions were narrowly tailored to specific signs of impairment, and RH’s statement did not report any of the specific signs of impairment that the Defense inquired about. The circumscribed line of questioning did not “call for” RH’s conclusory accusation characterizing Appellant as “drunk.”

In allowing the witness to “clarify” his response by testifying to RH’s statement, it appears the military judge’s concern was that the defense theory and line of questioning created a misleading impression that no one reported that Appellant appeared “drunk” on the night in question. The Supreme Court has made clear that the admission of unconfronted testimonial hearsay to correct a misleading impression is “antithetical to the Confrontation Clause.” The defense cannot “‘open the door’ to violations of constitutional requirements merely by making evidence relevant to contradict their defense.” As Hemphill explains, the military judge retained authority to protect against misleading evidence by striking the testimony, but had no authority to violate the constitutional requirement of confrontation.

AFCCA authorizes a rehearing. This is an AF case, but assuming it is not certified, at a rehearing perhaps (1) RH will decide to testify, or (2) RH will submit to a deposition, or Mooty gets a windfall. He got NJP level punishment, someone may decide its not worth prosecuting, or they might put him out with a general discharge. 

​In the meantime, we might consider the Constitutional Accountability Center's summary about their amicus brief. In part, they suggest and argue that "there is no support for the broad and nebulus "open the door" exception to the Confrontation clause, beyond use of a dying declaration or forfeiture by wrongdoing. A theory some might find extreme.)