United States v. Bowen
2017 CAAF LEXIS 86
| C.A.A.F. | 2017Background
- On Nov. 24, 2013, Bowen, his wife (Mrs. MB), and SrA BB drank at a party; later at the Bowens’ home a violent incident left Mrs. MB unconscious with severe head injuries and a blood alcohol level of 0.221.
- Neighbors heard screams and banging; SrA BB reported the assault to Security Forces and later testified (under immunity) that Bowen attacked Mrs. MB.
- Security Forces found Mrs. MB partially conscious in a bathtub; SSgt T asked whether her husband "did this," and TSgt VAC testified that Mrs. MB nodded in response.
- Bowen was convicted by a panel of aggravated assault on his wife and assault consummated by battery on SrA BB; he was sentenced to one year confinement and reduced in grade; the CCA affirmed.
- On appeal to the Air Force Court of Appeals, the issue focused on whether admission of TSgt VAC’s testimony about Mrs. MB’s head nod was proper under the excited utterance exception (M.R.E. 803(2)), given her mental and physical condition.
- The Court of Appeals held the military judge abused his discretion by admitting the head-nod hearsay without adequately considering Mrs. MB’s mental capacity, and that the error was materially prejudicial; convictions and sentence were set aside for rehearing as to the affected specifications.
Issues
| Issue | Bowen's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether a nonverbal head nod was admissible under M.R.E. 803(2) as an excited utterance | Head nod was not made while declarant was under stress; she was confused, highly intoxicated, and possibly incapacitated; the question was suggestive | Neighbors’ earwitnesses and the victim’s physical state supported that a startling event occurred and the nod was spontaneous and reliable | Military judge abused discretion by admitting the head nod without adequately assessing the declarant’s mental capacity; admission was erroneous |
| Whether the military judge properly considered M.R.E. 403 prejudice vs. probative value | Admission was prejudicial given the close, contested case | Evidence was probative and corroborated other evidence | Court did not reach M.R.E. 403 on the merits because 803(2) ruling was erroneous |
| Whether the erroneous admission was harmless | The head nod was highly material to identity of the attacker in a closely contested case; thus prejudicial | Even without the nod, other evidence was strong and conviction should stand | Error was not harmless; it materially prejudiced Bowen’s substantial rights |
| Remedy: disposition of convictions and sentence | Seek reversal/remand for new trial on affected specs | Opposed | Court reversed CCA, set aside convictions and sentence as to specified charges, and authorized rehearing |
Key Cases Cited
- United States v. Donaldson, 58 M.J. 477 (C.A.A.F. 2003) (mental and physical condition of declarant relevant to excited-utterance analysis)
- United States v. Jones, 30 M.J. 127 (C.M.A. 1990) (explaining trustworthiness rationale for excited utterance exception)
- United States v. Arnold, 25 M.J. 129 (C.M.A. 1987) (three-prong test for excited utterance admissibility)
- White v. Illinois, 502 U.S. 346 (1992) (statements within firmly rooted hearsay exceptions have sufficient indicia of reliability)
- United States v. McCollum, 58 M.J. 323 (C.A.A.F. 2003) (standard of review for military judge evidentiary rulings)
- United States v. Kerr, 51 M.J. 401 (C.A.A.F. 1999) (factors for assessing prejudice from evidentiary error)