Opinion February 2, 1967. Reargued on January 11, 1968.
Hastie, Chief Judge, and Ganey and Seitz, Circuit Judges.
The petitioner in this habeas corpus proceeding was a soldier in the United States Army when a court-martial convicted him of the crimes of housebreaking and assault with intent to commit rape and imposed a ten year sentence which he is now serving.
After his sentence had become final he attacked it collaterally by petition in the nature of error coram nobis in the United States Court of Military Appeals. That court accepted the petition as within its jurisdiction, considered the allegations on their merits and denied relief. United States v. O'Callahan, 1967, 16 U.S.M.A. 568, 37 C.M.R. 188.
The present petition for habeas corpus was filed in the District Court for the Middle District of Pennsylvania, the district within which the prisoner is now confined. Denial of the petition was followed by this appeal.
Upon first argument we declined to consider the merits of the appeal because a petition for reconsideration of certain relevant issues was pending before the Court of Military Appeals. However, after that court denied the requested reconsideration, we agreed to consider and decide the merits of the appeal and we now do so.
Before the Court of Military Appeals the prisoner urged that his conviction had been obtained through violation of his Sixth Amendment right to confrontation of the witnesses against him. He has reasserted that contention in the present proceeding.
For many years courts-martial permitted the prosecution to introduce into evidence sworn answers which absent and not conveniently available witnesses had given to written interrogatories. Article 49, Uniform Code of Military Justice, 10 U.S.C. § 849. The defense was permitted to have cross-interrogatories submitted to and answered by such witnesses along with the prosecution's questions. However, no provision was made in this case for depositions taken by way of direct and cross-examination by opposing counsel.
The alleged assault which gave rise to this prosecution occurred in a hotel room in Hawaii. The alleged victim, a fourteen year old girl, was a tourist from California. Three New Yorkers, also hotel guests, were among the witnesses. The testimony of these four persons was obtained in the form of sworn answers to interrogatories given after they had returned home. Defense counsel, advised of the contemplated interrogatories and his right to submit cross-interrogatories, objected to that procedure and asked for the right to cross-examine the witnesses. This request was denied and the defense then refused to submit cross-interrogatories. Subsequently, the answers of the four witnesses to interrogatories were read into evidence at the petitioner's trial over the objection of defense counsel.
In a subsequent and unrelated case, tried after the petitioner's conviction had become final, the Court of Military Appeals decided that its past rulings sanctioning the use of sworn answers to interrogatories as evidence in military trials had been mistaken and that the testimony of an absent witness must be taken by deposition with attendant opportunity afforded defense counsel to cross-examine the deponent. United States v. Jacoby, 1960, 11 U.S.C.M.A. 428, 29 C.M.R. 244. Therefore, in his post conviction petition to the Court of Military Appeals, the petitioner sought to have his conviction set aside because he had been denied the right of confrontation which the court had subsquently recognized in the Jacoby case. The court refused to set aside the conviction on the ground that, apart from the answers to interrogatories, the evidence of guilt was overwhelming and undisputed and, therefore, the introduction of the additional incompetent evidence was merely cumulative and not prejudicial.
We have to decide, first, whether the record justifies the factual conclusion that the accused was not prejudiced and, second, whether the use of the evidence in question was such a deprivation of Constitutional right as requires redress by a federal civil court on habeas corpus, whatever may appear concerning prejudice or lack of prejudice.
At the petitioner's trial several witnesses testified in open court to essential elements of the alleged crimes. Charles Redden, a soldier who had been a friend and companion of the petitioner, testified that on the evening in question, after they had drunk several beers, he and the petitioner made their way to the balcony outside of the fourth story hotel room where the intrusion and assault allegedly occurred. Looking in they saw a girl in bed. The defendant suggested that they enter the room and that one of them should have intercourse with the girl while the other held her. Redden rejected the suggestion, warned the defendant that such ...