CAAFlog » October 2016 Term » United States v. Bowen

CAAF decided the Air Force case of United States v. Bowen, __ M.J. __, 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.

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Audio of last week’s project outreach oral arguments before CAAF is available at the following links:

United States v. Bowen, No. 16-0229/AF (CAAFlog case page): Oral argument audio.

United States v. McClour, No. 16-0455/AF (CAAFlog case page): Oral argument audio.

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.

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Hearsay is an out-of-court statement offered to prove the truth of the matter asserted in the statement. Many things aren’t hearsay (such as an out-of-court statement offered to show only its effect on the listener), and there are many exceptions to the hearsay rule that permit admission of a hearsay statement under various situations.

Two interesting grants from CAAF last week involve the hearsay rule.

First, in the Air Force case of United States v. Bowen, CAAF specified an issue involving a statement admitted as an excited utterance:

No. 16-0229/AF. U.S. v. Ellwood T. Bowen. CCA 38616. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue specified by the Court:

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. See M.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).

Briefs will be filed under Rule 25.

An excited utterance 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 Air Force CCA’s opinion in Bowen is available here and reveals that law enforcement responded to reports of screaming and discovered Bowen’s wife unconscious in the bathtub, and that she was only partially conscious when she was questioned. The military judge considered the circumstances and concluded that the head nod was admissible as an excited utterance, and the AFCCA affirmed that ruling.

Next, in the Army case of United States v. Swift, CAAF granted review of two issues and specified a third:

No. 16-0407/AR. U.S. v. Justin P. Swift. CCA 20100196. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues raised by Appellant:

I. Whether the Army court denied appellant his substantial right to an Article 66(c) review by affirming the findings and sentence on uncharged misconduct presented at trial rather than the charged offenses.

II. Whether the military judge erred by admitting appellant’s pretrial statement where there was no independent evidence to corroborate the essential facts admitted.

And the following issue specified by the Court:

III. Whether the evidence of the two convictions of indecent acts with a child is legally sufficient.

Briefs will be filed under Rule 25.

The Army CCA’s opinion is available here. It’s hard to clearly identify the uncharged misconduct at issue, but the CCA focuses on the military judge’s ruling that permitted a teacher to testify about an out-of-court statement that the child made to her years earlier. The military judge introduced the statement as “victim’s outcry evidence,” and the CCA rightly finds that this ruling was error because there is no such exception to the hearsay rule (though there used to be; see ¶ 142(c), MCM (1969) (available here)). However, the CCA concludes that the statement was admissible for a non-hearsay purpose:

[W]e conclude, first, that the military judge inappropriately applied the outdated “victim outcry” principle. Nonetheless, we agree that a non-hearsay basis exists to allow the admission of the statement – namely, effect-on-the-listener. KS’s out-of-court statement is not barred by Mil. R. Evid. 802 because it was not offered for the truth of the matter asserted. Despite the military judge’s ruling on the out-of-date notion of “outcry doctrine,” the trial counsel specifically offered the victim’s statement as “effect on the listener” and as a “prior consistent statement.” The statement was properly offered to show why Ms. A contacted CPS and how the investigation ensued.

United States v. Swift, No. 20100196, slip op. at 4-5 (A. Ct. Crim. App. Jan. 21, 2016) (emphasis). This conclusion is deeply problematic for at least three reasons. First, there’s no indication that the members were instructed about any limitation on the use of the statement the judge considered the statement for only a limited purpose, and the CCA can’t restrict its use post hoc. Second, the effect on the listener (that CPS was contacted) was not an issue at trial, and so the statement had no probative value (but a high prejudicial effect). Third, there’s no indication of any foundation for admission of a prior consistent statement (and a footnote acknowledges this).

Despite its butchery of the hearsay rule, the CCA concluded that the admission of the statement was harmless in part based on the appellant’s pretrial admissions. CAAF’s grant of review, however, directly challenges that conclusion.