Opinion Analysis: Clarifying the mental state required for an excited utterance in United States v. Bowen, No. 16-0229/AF
CAAF decided the Air Force case of United States v. Bowen, 76 M.J. 83, No. 16-0229/AF (CAAFlog case page) (link to slip op.) on Wednesday, February 8, 2017. Concluding that the military judge failed to properly consider the condition of the appellant’s wife when admitting her non-verbal response as an excited utterance, CAAF reverses the findings and the decision of the Air Force CCA, authorizing a rehearing.
Chief Judge Erdmann writes for a unanimous court.
Airman First Class (E-3) 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.
The evidence admitted at trial included testimony by Air Force security personnel who entered Bowen’s house and found his wife unconscious and badly injured in the bathtub. An investigator testified – over defense objection – that the wife was partially conscious when she was asked if “her husband ‘did this’ to her,” and that in response the wife nodded her head indicating a positive response. Slip op. at 4. The Air Force CCA found no error.
CAAF specified an issue for review questioning the military judge’s ruling that permitted this testimony:
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).
In yesterday’s decision, CAAF determines that the military judge did abuse his discretion in admitting the head nod because he failed to properly consider the wife’s mental capacity. The court does not reach the separate question of whether the prejudicial effect of the head nod outweighed its probative value. Considering the impact the evidence had in the case – including that the defense asserted that the other airman (the other alleged victim) was the true source of the wife’s injuries – CAAF concludes that the erroneous admission affected both assault convictions.
Outlining the facts of the case, Chief Judge Erdmann writes:
Security Forces responded to the residence and were let into the house by Bowen, who appeared disoriented. Technical Sergeant (TSgt) VAC inspected the house and found Mrs. MB [the wife] unconscious in the bathtub of the master bedroom. Mrs. MB’s head was leaning against the faucet and her hair was covering her face. Her eyes were swollen and there was a gash over one eye. TSgt VAC initially thought Mrs. MB was dead, but realized she was still alive when she heard her groan. TSgt VAC and Staff Sergeant (SSgt) T lifted Mrs. MB out of the bathtub and placed her on the bed in the master bedroom. At that point Mrs. MB was only partially conscious. SSgt T asked Mrs. MB if her husband “did this” to her. Mrs. MB nodded her head, which indicated an affirmative response to the law enforcement personnel. Mrs. MB was taken to the hospital where her blood alcohol level was registered at “221.” As a result of the assault, Mrs. MB suffered a subdural hematoma, a traumatic brain injury, seventy percent visual loss, the loss of her sense of smell, and other lesser physical injuries. A craniotomy was required to reduce the swelling in her brain.
Slip op. at 4. The wife also testified, explaining that she “had no memory of speaking with investigators and stated that, if she had any conversations with Security Forces, her statements were not reliable since she was “[a]bsolutely not” in her right state of mind.” Slip op. at 6 (marks in original).
Bowen’s defense focused on the theory that the other airman was the true source of his wife’s injuries. The other airman, however, testified against Bowen under a grant of immunity.
Reviewing the requirements for admission of an out-of-court statement under the excited utterance exception to the rule against hearsay, Chief Judge Erdmann explains that:
“A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition,” is admissible as an exception to the general prohibition on hearsay. . . . This court’s predecessor adopted a three-pronged test to determine whether a hearsay statement qualifies as an excited utterance: (1) the statement must be “spontaneous, excited or impulsive rather than the product of reflection and deliberation”; (2) the event prompting the utterance must be “startling”; and (3) the declarant must be “under the stress of excitement caused by the event.” Relevant to the third prong of this inquiry is “the physical and mental condition of the declarant.”
Slip op. at 7-8 (citatioms omitted). A footnote adds that the parties stipulated that the head nod qualified as a statement for the purpose of this analysis. Slip op. at 7 n.5.
Applying this test, Chief Judge Erdmann focuses on the third factor and “whether the military judge adequately considered [the wife’s] physical and mental condition.” Slip op. at 8. He finds that the military judge did not:
[W]e are unable to conclude that the military judge properly considered Mrs. MB’s mental capacity as it pertained to the admissibility of the head nod. Quite to the contrary, the military judge’s recognition that Mrs. MB was “in no position to testify about her own mental state [on the night in question] and, certainly, was in no physical condition to manifest outward expressions of excitement,” undermines the conclusion that the declarant was under the stress of excitement caused by the event. Furthermore, as even Mrs. MB testified, her memory of the events on the night in question was vague and, if she had any conversations with Security Forces personnel that night her statements were unreliable since she was “[a]bsolutely not” in her right state of mind.
For these reasons, the military judge’s brief reference to Mrs. MB’s mental capacity is insufficient to assure us that he properly considered whether the head nod satisfied the third prong of the Arnold test. By failing to adequately address Mrs. MB’s mental capacity—a critical aspect of the admissibility determination under these circumstances—the military judge committed legal error and, thus, abused his discretion.
Slip op. at 9-10. This conclusions isn’t burdened much by the highly-deferential standard of review applied to such rulings by a military judge: abuse of discretion. That standard requires more than just disagreement with the military judge’s decision. Rather, “an abuse of discretion occurs when the military judge’s findings of fact are clearly erroneous, the court’s decision is influenced by an erroneous view of the law, or the military judge’s decision on the issue at hand is outside the range of choices reasonably arising from the applicable facts and the law.” United States v. Bess, 75 M.J. 70, 73 (C.A.A.F. 2016) (CAAFlog case page) (marks and citation omitted). I don’t think this case signals a shift in the court’s treatment of such rulings, however, because Chief Judge Erdmann’s conclusion turns on the military judge’s lack of analysis (a factor that reduces the degree of deference):
[T]he military judge’s brief reference to Mrs. MB’s mental capacity is insufficient to assure us that he properly considered whether the head nod satisfied the third prong of the Arnold test. By failing to adequately address Mrs. MB’s mental capacity—a critical aspect of the admissibility determination under these circumstances—the military judge committed legal error and, thus, abused his discretion.
Slip op. at 9-10.
Having concluded that the head nod was improperly admitted, Chief Judge Erdmann turns to prejudice:
The hearsay evidence was also likely material to the panel’s resolution of key issues in the case. In particular, the identity of the perpetrator was a central issue at the court-martial. Thus, the introduction of TSgt VAC’s testimony that Mrs. MB responded to the question of whether her husband “did this” to her with a head nod in affirmation—opposed to her simply groaning and making sounds—was presumably a compelling piece of evidence in the minds of the panel members. Moreover, trial counsel emphasized this evidence during closing statements. . . Moreover, we conclude that the evidence had a prejudicial impact on Bowen’s conviction for assault against SrA BB. SrA BB—the Government’s key witness—had apparent motives to lie about the events during the hours in question. Coupled with trial defense counsel’s credibility attacks against this witness, without Mrs. MB’s head nod tending to support SrA BB’s version of events, it is unclear if the members would have deemed SrA BB credible enough to convict Bowen of the assault against his fellow airman.
Slip op. at 11. This conclusion is primarily based on the prosecution’s over-reliance on this hotlycontested piece of evidence, and it highlights the danger of such a tactic.
• 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
• Oral argument audio
• CAAF Opinion
• Blog Post: Opinion Analysis