The NMCCA has issued a published opinion in United States v. Becker—actually a ongoing government appeal.
Appellee is charged with assault consummated by a battery, conduct unbecoming an officer and a gentleman, and premeditated murder for allegedly strangling his wife in August 2013, physically and emotionally abusing her over the following two years, and then drugging her and causing her to fall from a seventh-floor apartment window to her death in October 2015.
The military judge on remand reconsidered and adopted the same findings and made the same ruling. The court now sends the case back because the military judge “fail[ed] to consider important facts.” The court addresses forfeiture by wrongdoing as a method to introduce prior statements of the decedent. The court makes the following points when considering the second prong of the exception to hearsay suggested by Giles v. California.
This was sufficient to conclude that the ““wrongful act [wa]s performed with an intent to prevent [Mrs. B.] not only from testifying at some formal proceeding, but also from reporting abuse, cooperating with law enforcement, or resorting to outside help.””
There is a dissent which makes several points.
The facts that the majority characterizes as “important facts” were thus in front of the military judge, twice.
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