On Wednesday November 18, 2020, CAAF will hear oral arguments in United States v. Ayala.
The granted issue is: WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN ADMITTING THE VICTIM’S PRIOR CONSISTENT STATEMENTS UNDER MIL. R. EVID. 801(d)(1)(B)(i) and 801(d)(1)(B)(ii)?
CAAF briefs here.
Staff Sergeant Thomas Ayala, United States Army, was convicted by a military judge, sitting as a general court-marital, of two specifications of aggravated sexual contact, in violation of Article 120, UCMJ. The military judge sentenced Appellant to eight months confinement and a bad-conduct discharge, with a sixty-day confinement credit, approved by the convening authority on November 21, 2017. On July 18, 2019, ACCA affirmed the military judge’s findings and sentence. ACCA denied a motion for reconsideration on September 3, 2019.
Appellant then appealed to CAAF, which granted review on January 21, 2020, pursuant to Article 67(a)(3), UCMJ. Appellant appealed on the grounds that the military judge abused his discretion in admitting text messages between the victim and her mother, and the victim’s recorded statement to NCIS as prior consistent statements under Mil. R. Evid. 801(d)(1)(B)(i) and 801(d)(1)(B)(ii).
The alleged victim, SPC AN, testified that on April 16, 2016, she returned around midnight from a bar on Camp Lemmonier, Djibouti, where appellant began speaking with her outside of her containerized living unit (CLU). Even though the policy prohibited opposite sex personnel in rooms between 2200 and 0700 hours, they went to appellant’s room. Another male was present when they entered. SPC AN testified that appellant tried to kiss her, held her arms over her head, and touched her breasts without her consent. They left, and appellant walked her back to her room, but she stated that he grabbed her hand and forced her to touch his penis. The next morning, SPC AN texted her mother that she was sexually assaulted, but that “it wasn’t that bad and she was confused.” Her mother responded via text that she (SPC AN) “knew what happened was wrong.” SPC AN interviewed with law enforcement after reporting the sexual assault to NCIS. SPC AN’s interview with NCIS was recorded and almost an hour in length, she also provided a written sworn statement to NCIS.
Appellant argues that the military judge admitted hearsay statements from the “victim” and her mother. They argue that the government bore the burden to prove that the victim’s prior statements would rehabilitate her in-court testimony, and that the government did not meet that burden. They argue that the government did not prove how SPC AN’s credibility was attacked on another ground other than what is listed under 801(d)(1)(B)(ii), when defense questioned her pre-trial preparation, reputation, and alcohol use. Additionally, Appellant argues that while Finch’s prior consistent statement three prong testapplies, they argue that the motive to fabricate arose before the statements were made and therefore makes them inadmissible. They argue that the motive to fabricate vitiates the ability to rehabilitate her credibility. Appellant also argues that SPC AN’s mother’s statements are inadmissible hearsay as she was not the declarant, nor did the mother testify at trial.
On the other side, Appellee argues that when defense attacked SPC AN’s credibility about her reputation, alcohol use, and about claiming she testified under an improper motive, the door was open to produce evidence contrary of their charge. The government argues that this attack on her credibility during trial opened the door for the government to rehabilitate their witness’s credibility via her prior consistent statements. The Government also argues that the court should apply the “tipsy coachman” doctrine. In the alternative, if CAAF should find that the military judge erred, the government argues that appellant was not prejudiced by the military judge’s decision to admit the prior consistent statements.
The Finchthree-prong test: 1) the declarant of the out-of-court statement testifies at trial, 2) the declarant is subjected to cross-examination concerning the prior statement, and 3) the prior statement must be consistent with the declarant’s in court testimony,