United States v. Henry was originally scheduled to be heard on September 30, 2020, and was rescheduled for tomorrow, October 27, 2020.
CAAF will hear oral arguments in United States v. Henry, a case, whose issue was certified by The Judge Advocate General of the Army. TJAG puts forth this assignment of error to CAAF: DID THE MILITARY JUDGE ABUSE HIS DISCRETION IN EXCLUDING THE FOUR STATEMENTS ON WHICH THE PROSECUTION SOUGHT INTERLOCUTORY APPELLATE REVIEW, PURSUANT TO ARTICLE 62, UCMJ?
CAAF briefs here.
The military judge in Henry, on the first day of trial, denied the government from admitting four hearsay statements as excited utterances, and the hearsay statements of JH (child of victim) as present sense impressions. The following four statements were put forward by the government as excited utterances:
Upon the military judge's ruling, the government moved for reconsideration by the military judge, but to no avail. The government then appealed to ACCA via an Article 62 interlocutory appeal and were also denied. After being denied their appeal, the government asked ACCA to reconsider and suggested that consideration be en banc. ACCA granted reconsideration but denied the government en banc consideration. Subsequently, on June 3, 2020, ACCA denied the government's appeal, leading TJAG to certify this issue to CAAF.
At about 0200, JH (10), the minor child of KH and Appellee, banged on the front door of SSG Derek Carson, his neighbor. It was below 30 degrees that night and JH was only in his pajamas when he banged on SSG Carson's door. When SSG Carson answered the door, JH said "he's beating my mom," and that "something had happened." SSG Carson then went to put on clothes, when he returned downstairs, JH was running back towards his own house yelling "you better not hit her again." Roughly 10-15 minutes later, SSG Carson, while standing outside his home, observed JH and his little sister being chased from Appellee's home, by Appellee. At about the same time, SSG Carson observed KH in short sleeves run toward his home. It was then that KH said "he hit me, he hit me," and said that the abuse had been happening for "the last couple of hours." SSG Carson, after an indication from KH to do so, called 911, while KH used the bathroom. While SSG Carson called 911, he said that he thought he heard throwing up coming from the bathroom. After SSG Carson told the 911 operator “[m]y neighbor just came running over here with her kids, and . . .she said something about her husband was hitting her or something,” KH then spoke to the operator and said, “[m]y husband has hit me a couple of times over the past few hours.” Shortly thereafter, MPs arrived at the scene and noted that KH had red marks on her face and a scratch on her neck.
Appellee, highlights two additional facts in their brief. First, that KH admitted to drinking the night of the alleged incident to the MPs. Second, that SSG Carson's wife noted that KH smelled of alcohol. These two facts are important because the military judge's evidentiary ruling relies on KH's potential intoxication.
TRIAL JUDGE'S RULING
The military judge in applying the three prong Arnold test for excited utterances, determined that in regards to KH's statements:
As to JH's statements, the military judge similarly denied their admission as excited utterances, stating that the government had not proved that JH actually observed the alleged assault, and that JH may have “hear[d] a commotion or repeat[ed] something that [KH] told him while she was having an intoxicated argument with the accused.”
In a relatively short opinion (memorandum), ACCA upheld the military judge's four hearsay rulings against the government. ACCA stated in their opinion that the military judge correctly applied the Arnold test, and that he did not abuse his discretion in reaching his rulings. ACCA supported this conclusion by pointing out the government's lack of foundation in each hearsay statement.
ACCA opinion here.
The government puts forth arguments that are compelling, arguing that the statements by KH and JH are textbook examples of excited utterances. At least from their arguments, the statements look like those you see on a Bar exam, to test basic proficiency. The government explains their argument best in a short sentence in footnote 7, "[w]hen one is observed running around a corner excitedly screaming “Fire! Fire!,” it is counterintuitive to think the declarant is referring to the Great Chicago Fire of 1871." Common sense, rather than what may be possible, is what the government argues.
On the other side of the coin, Appellee points to the government's lack of foundation for KH and JH's statements. Appellee's lack of foundation is outlined by the lack of visible injuries on KH; KH's possible intoxication; the fact that SSG Carson by his own admission, does not know if JH observed the alleged assault; and the inability to pinpoint the exact timing of KH's alleged assault. These arguments, if believed, may prove a lack of foundation, but that will be for CAAF to decide.
Thoughts: Some may remember U.S. v. Whisenhunt, where ACCA overturned the conviction of a West Point Cadet on three specifications of sexual assault, stating that his conviction lacked legal and factual sufficiency. ACCA decided then, that they did not find it credible that a cadet, in essence, would not cry out for help when being sexually assaulted. Here, the military judge like ACCA, has limited the possibility of domestic violence based off the lack of visible injuries to KH. Some comparisons can be drawn from these two rulings, perhaps it is that these rulings may be based on outdated notions, or perhaps not outdated notions.