CAAF decided United States v. Squire, No. 13-0061/AR, 72 M.J. 285 (CAAFlog case page) (link to slip op.), on June 13, 2013, finding that the statements the 8 year old child sexual assault victim made to medical providers were not testimonial and the Appellant was not deprived of his Sixth Amendment right to confront his accuser when the military judge admitted the statements as having been made for purposes of medical diagnosis or treatment. CAAF affirms the Army CCA and the findings and sentence.

Judge Erdmann writes for a unanimous court.

The Appellant was convicted contrary to his pleas, by a general court-martial composed of members, of engaging in a sexual act with a child who had not attained the age of twelve years, in violation of Article 120 (2006). He was sentenced to confinement for 20 years and reduction to E-1.

The conviction was based on an alleged encounter between the Appellant and his fiance’s 8 year old daughter. After coming home early, the girl’s mother encountered the girl leaving the master bedroom wearing only a long t-shirt (and not the underwear and pants she had been wearing). The Appellant was in the master bed, also without pants. The mother questioned the girl, and the girl said that the Appellant had touched her vagina. Medical treatment was sought, and two doctors conducted separate examinations of the girl. During those examinations the girl made additional statements, including saying that the Appellant “put his wee wee inside me and it hurt.” DNA analysis of swabs taken from the girl’s genitals and underwear further implicated the Appellant in the assault. Neither side called the child to testify at trial, but the Government successfully moved to introduce her statements to the doctors under the exception to the general rule against hearsay for statements made for the purposes of medical diagnosis or treatment.

CAAF granted review to determine:

Whether Appellant was denied his Sixth Amendment right to confront his accuser when the military judge permitted testimonial hearsay in the form of SL’s statement to a physician.

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

United States v. Bennitt, No. 12-0616/AR (CAAFlog case page)

Link to audio.

Granted Issue: Whether appellant’s conviction for involuntary manslaughter under Article 119(b)(2), UCMJ, is legally insufficient because (1) in accordance with United States v. Sargent, 18 M.J. 331 (C.M.A. 1982), appellant’s distribution of oxymorphone was not a crime directly affecting the person under Article 119(b)(2), and (2) even if so, Congress did not intend for Article 119(b)(2) to cover appellant’s misconduct.

Specified Issue: In Specification 2 of Charge I Appellant is charged with unlawfully killing Leah King while aiding and abetting Ms. King’s wrongful use of Oxymorphone, which is alleged to be an “offense” directly affecting the person of Ms. King. Must Ms. King’s use of Oxymorphone be an “offense” to be legally sufficient to support the finding of guilty under Article 119(b)(2)?

United States v. Salyer, No. 13-0186/MC (CAAFlog case page)

Link to audio.

Issue: Under United States v. Lewis, a case is dismissed with prejudice when unlawful command influence results in the recusal of a military judge. Here, the military judge recused himself because he found that the government’s actions made it impossible for him to remain on the case. The government complained to his supervisor about a ruling, accessed his service record without permission and, with this information, moved for his recusal. Should this case be dismissed with prejudice?

United States v. Squire, No. 13-0061/AR (CAAFlog case page)

Link to audio.

Issue: Whether Appellant was denied his Sixth Amendment right to confront his accuser when the military judge permitted testimonial hearsay in the form of SL’s statement to a physician.

United States v. Wilson, No. 13-0096/AR (CAAFlog case page)

Link to audio.

Issue: Whether appellant was denied his right to a speedy trial in violation of Article 10, UCMJ, when the government failed to act with reasonable diligence in bringing him to trial.

CAAF today granted review of this issue:

Whether Appellant was denied his Sixth Amendment right to confront his accuser when the military judge permitted testimonial hearsay in the form of SL’s statement to a physician.

United States v. Squire, __ M.J. __, No. 13-0061/AR (C.A.A.F. Jan. 10, 2013).  ACCA’s unpublished decision is available here.

SFC Squire is represented by friend o’ CAAFlog Bill Cassara.