Air Force assault case reversed due to improper admission of an excited utterance.

The Court of Appeals for the Armed Forces (CAAF) recently reversed an assault case in United States v. Bowen.  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.   He was sentenced to confinement for one year and reduction to E-1.   When security forces came to Airman Bowen’s house after his wife was allegedly assaulted, they found his wife in critical physical condition.  One of the responders asked the wife if her husband had done that to her.  She responded by nodding her head yes.  During Airman Bowen’s court-martial, the prosecution offered the wife’s head nod as evidence that Airman Bowen had assaulted her.  Normally, this evidence would be considered hearsay.  However, the military judge allowed the evidence to come into the court-martial as an “excited utterance.”  Military Rule of Evidence (M.R.E.) 803 contains the “excited utterance” exception to the hearsay rule and provides for the admissibility of “[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.” M.R.E. 803(2).  On appeal, the CAAF held that the military judge erred in allowing the head nod into evidence because he did not fully assess her mental capacity at the time she did the nodding.  The rest of the evidence showed that Airman Bowen’s wife was in no mental state to be answering questions at the time the responder asked her who assaulted her.  Based on this, Airman Bowen had a successful appeal.  If you want to appeal your court-martial, call me.  I can look through your record of trial and pick out valid appellate issues.  I have years and years of experience doing just that.   Call me now, I can help you or your loved one with an upcoming court-martial or court-martial appeal.  To speak to an experienced court-martial and military defense attorney, call Bill Cassara at 706-860-5769 for a free consultation.

 

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