Recent ACCA opinion: United States v. Henry

Facts:
Sergeant First Class Dashaun Henry’s son JH told his neighbor, Staff Sergeant DC that his father was beating his mother. JH seemed afraid and screamed 'You better not hit her again' as he went back home after he alerted his neighbor. A few minutes later, Staff Sergeant DC saw Henry chasing his wife, KH,  and children and his wife shouted 'He hit me. He hit me.' Staff Sergeant DC brought KH and the children into his home, before asking if she wanted to call the police. KH told the operator 'My husband has hit me a couple of times over the past few hours.' The police found potential evidence of the abuse on KH: red marks on her cheeks and a scratch on her neck.

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Procedural History:
The government wanted to introduce four statements: two from JH  ('He’s beating my mom” and “You better not hit her again'), two from KH ('He hit me. He hit me' and 'My husband has hit me a couple of times over the past few hours.'). The military judge denied admission of the four statements under the present sense impression, using a test from U.S. v. Arnold, 25 M.J. 129, 132 (C.M.A. 1987).  He ruled that the government did not show that the statements were a excited utterance  impression because there was no evidence that the statements were made spontaneously after a 'startling event or after observing a startling event,' no evidence establishing the timing of the assault and if the statements were made after the assault.

Issue: 
Do the statements fall under the present sense or excited utterance hearsay exception?

Holding: 
The government appeal was rejected and the military judge’s ruling was affirmed. All four statements did not fit into the excited utterance exception, as there was insufficient information surrounding the time of the incident. All information provided was circumstantial or was based off assumptions that Staff Sergeant DC made. The statements did not fall into the present sent impression either because the statements were not made immediately after the incident took place.

Explanation:
Under Military Rule of Evidence 802, hearsay is generally prohibited, unless it falls into a present sense or excited utterance exception. 
An excited utterance must be spontaneous, must be in response to a startling and be caused by a stressful situation. See U.S. v. Arnold, 25 M.J. 129, 132 (C.M.A. 1987).

1. 'He’s beating my mom. He’s beating my mom.' The trial judge did not abuse his discretion in deeming this statement inadmissible because there was insufficient evidence that JH was startled and Staff Sergeant DC assumed that JH was “startled.”
2. 'You better not hit her again.' - Again, the court ruled that there was an insufficient basis to conclude that JH was startled. The court believed that the supporting evidence was circumstantial, as JH did not testify.
3. 'He hit me. He hit me.' - Staff Sergeant DC testified that he assumed KH was startled, thus the court found that there was an insufficient basis to establish the timing of the injury or that she was startled. The Court believed that there was insufficient information as to whether there was a time lapse between the incident and the statement, thus it was unclear whether her statement was spontaneous.
4. 'My husband has hit me a couple of times over the past few hours.' - The court ruled that the call was not spontaneous as the Staff Sergeant spoke to the operator first. In addition, KH did not call 911 until an hour and a half after she arrived at the staff sergeant’s house.

The government also sought to introduce the statements as a present sense impression under Military Rules of Evidence 803(1). A present sense impression is 'a statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.' The court rejected this argument, as the statements were not made immediately after the assault nor were they spontaneous.
The government’s appeal was rejected and the military judge’s ruling was affirmed." - Jonathan Goldhirsch