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.