United States v. Henry

CAAF finds in favor of the government for their Article 62(a)(1)(B), UCMJ, appeal in Henry. The court finds the military judge abused his discretion in excluding four  statements as hearsay. Chief Judge Stucky writes for the court with Judges Ohlson and Maggs separately dissenting for generally similar reasons.

The government offered prior out of court statements as either excited utterances or present sense impressions under Mil. R. Evid. 803. The military judge disagreed as did the Army Court of Criminal Appeals. The basis for the MJs exclusion was a "that the Government failed to lay a proper foundation, specifically that there was insufficient evidence as to when the alleged assault occurred."

There are two ACCA opinions, one in January 2020 and one in June 2020. Judge Stucky tells us that, 

At trial, the Government sought to introduce the following four statements for the truth of the matter asserted, under the excited utterance or present sense impressions exceptions to the rule against hearsay:

       (1) JH’s statement to SSG DC: “He’s beating my mom. He’s beating my mom.”

       (2) JH’s exclamation: “You better not hit her again.”

       (3) KH’s statement to SSG DC: “He hit me. He hit me.”

     (4) KH’s statement to the 911 operator that her husband had “been beating me for the last couple of hours.”

In an Article 39(a) session on the admissibility of these statements, KH testified for the defense. She stated that she had told JH to run over to SSG DCs house and tell him to call 911, and she lied when she told SSG DC that the accused had beaten her. At the Article 39(a) session, the military judge denied the admission of the statements as exceptions to hearsay or under the residual hearsay exception. He did not make a finding that KH’s recantation was at all credible, nor did he reference it his ruling.

The MJ had four reasons to exclude the statements.

1. "The Government did not establish when the alleged startling event occurred."
2. The testifying witness "did not know the declarants well, he could not say whether they were speaking while under the stress of an exciting event.
3. The Government had not shown that JH had personally witnessed the assault that he described."
4. The alleged injuries did not match the description of the assault.

​Since the military judge based his ruling on an incorrect view of the law—requiring proof of personal knowledge and considering each statement in isolation—and a view of the facts that leaves us firmly convinced that a mistake was committed—that there was no evidence as to when the assault occurred or that JH could have observed it—we hold that he abused his discretion by excluding the four statements of JH and KH. 

Judges Ohlson and Maggs conclude--my interpretation--that the majority ignore the abuse of discretion standard. While admitting the judge could have ruled either way and been right, the dissenters find the military judges findings were not clearly erroneous and he followed the law.

​Cheers, P.C.