Argument Preview: Whether sufficient excitment existed for an excited utterance in United States v. Bowen, No. 16-0229/AF
CAAF will hear oral argument in the Air Force case of United States v. Bowen, No. 16-0229/AF (CAAFlog case page), on Tuesday, November 1, 2016, at 2:30 p.m., at the University of Colorado Law School, Boulder, Colorado. The case presents a single issue specified by the court that questions the admissibility of evidence as an excited utterance:
Whether the military judge erred in applying the “excited utterance” exception to the hearsay rule to permit the government to introduce through the testimony of law enforcement personnel that appellant’s wife nodded her head in response to a question whether her husband “did this,” and in concluding that the prejudicial effect of this testimony was outweighed by its probative value. SeeM.R.E. 802 and 803(2); M.R.E. 403; United States v. Donaldson, 58 M.J. 477 (2003); United States v. Jones, 30 M.J. 127 (C.M.A. 1990); United States v. Arnold, 25 M.J. 129 (C.M.A. 1987); United States v. Iron Shell, 633 F.2d 77 (8th Cir. 1980), cert. denied, 450 U.S. 1001 (1981).
Air Force security personnel responded to a report of a domestic violence incident at the home of Airman First Class (E-3) Bowen and his wife. Upon arriving they discovered Bowen disoriented and his wife “unconscious in the tub of the master suite bathroom with her head leaning against the faucet,” and a responding officer “thought she was dead.” App. Br. at 4. She wasn’t dead but she showed signs of having been badly beaten. One of the officers then asked the wife “if her husband [Appellant] did this to [her],” and the wife “groaned and shook her head ‘yes.'” Gov’t Br. at 4 (marks in original).
The defense moved to suppress evidence of the wife’s head nod and groan, arguing that it is “hearsay not within a recognized exception” and that it “was irrelevant and its unfair prejudicial effect substantially outweighed its probative value.” App. Br. at 8. The military judge denied the defense motion, concluding that the nod and groan qualified as an excited utterance which is hearsay that is admissible because it is “relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.” Mil. R. Evid. 803(2). The military judge also found that the probative value of the evidence was high and outweighed any danger of unfair prejudice.
Bowen was convicted contrary to his pleas of not guilty, by a general court martial composed of officer members, of aggravated assault of his wife and also of assault of another airman, both in violation of Article 128. He was sentenced to confinement for one year and reduction to E-1. On appeal at the Air Force CCA Bowen again challenged the admission of the nod and groan, and that court found no abuse of discretion by the military judge’s admission of the evidence and affirmed.
Bowen now continues that challenge at CAAF.
Bowen’s brief asserts that the nod and groan were “insufficiently spontaneous to meet the requirements of the ‘excited utterance’ exception to the hearsay rule,” and also that concerns regarding the “vague nature of law enforcement’s suggestive question and [the wife’s] physical condition” outweighed the probative value of the evidence. App. Br. at 10. On both points Bowen’s argument is, fundamentally, that the military judge did not adequately consider “the highly suggestive questioning of law enforcement and evidence indicating [the wife] was in an unexcited state and did not respond spontaneously.” App. Br. at 20.
The Government’s response asserts that the exciting event began before security forces arrived (a fact supported by other witness testimony about a woman screaming) but that it continued with the questioning itself:
[U]nder the circumstances here, where [the wife] was initially revived from unconsciousness by security forces members in her own home minutes after a vicious assault, there is no reason to suggest that the intervention by police officers was not part of the startling and stressful event for [the wife].
Gov’t Br. at 6. The Government’s argument seems to be that the consequences of a startling event – such as the response of paramedics to the scene of a grisly wreck – may be merged into the startling event itself, extending the time during which a statement may qualify as an excited utterance. The Government’s brief does not, however, offer any sort of limiting principle to this theory.
The Government’s brief also makes the puzzling claim that “the premise behind an excited utterance is that declarant will speak truthfully, not necessarily accurately.” Gov’t Br. at 11. I suspect that CAAF will be curious about the possibility of such an inaccurate truth.
A pair of law student amicus briefs support Bowen and the Government.
In support of Bowen an amicus argues that the military judge improperly applied an objective test to determine that Bowen’s wife was under the stress of an exciting event, when the proper subjective test would have focused on the wife’s intoxicated and nearly-unconscious state.
In support of the Government an amicus argues that the military judge’s ruling on this issues deserves substantial deference on appeal because it is a mixed question of law and fact.
Even if the nod and groan were erroneously admitted, CAAF will only reverse if it finds material prejudice to Bowen’s substantial rights. For a preserved error in the admission of evidence, prejudice exists when the error “had a substantial influence on the findings.” United States v. Yammine, 69 M.J. 70, 79 (C.A.A.F. 2010) (citation omitted). In this case, however, the Government’s brief provides facts that suggest that the prosecution’s case against Bowen was strong even without the nod and groan because of evidence that Bowen discovered his wife naked in bed with another man and then got into a loud argument with her during which neighbors heard “slamming against the walls” and a woman screaming. Gov’t Br. at 14. Security forces arrived soon afterward.
• AFCCA opinion
• Blog post: Two interesting CAAF grants involving the hearsay rule
• Appellant’s brief
• Appellee’s (Government) brief
• Appellant’s reply brief
• Amicus in support of Appellant
• Amicus in support of Government
• Blog post: Argument preview