Becker is a 62 appeal, in which Judge Sparks writes for a unanimous CAAF that,
The military judge citing M.R.E. 804(b)(6) in light of Giles v. California, 554 U.S. 353, 367 (2008), ruled that the Government had failed to demonstrate that Appellant acted on the day of Mrs. Becker’s death “in order to prevent Mrs. Becker’s testimony.” The military judge noted that “by October 9th, 2015, there were no active . . . and no anticipated investigations” of Appellant regarding Mrs. Becker’s earlier allegations of Appellant’s physical and emotional abuse. Further, “although Mrs. Becker raised the 2013 incident with friends and family on several occasions, she never expressed any disappointment that the original investigation had closed or a desire to see the accused further investigated.” He ultimately agreed with the defense and concluded that it was not “reasonably foreseeable” that Appellant would be investigated regarding Mrs. Becker’s prior allegations against him or that Appellant might face charges based on those allegations, such that Mrs. Becker might be required to testify against him.
In discussing the forfeiture by wrongdoing exception, the CAAF relied on
Crawford v. Washington, 541 U.S. 36, 42–43 (2004).
Giles v. California, 554 U.S. 353, 367 (2008).
Reynolds v. United States, 98 U.S. 145, 158 (1878).
Mil. R. Evid. 804(b)(6) ""allows “[a] statement offered against a party that wrongfully caused or acquiesced in wrongfully causing the declarant’s unavailability as a witness, and did so intending that result.”"
Note the intent is looked at subjectively not objectively. Slip op. at 5.
Because the case was a government appeal, the reviewing courts are bound by the facts found by the military judge unless they are clearly erroneous or not supported in the record. Cossio arises. "A reviewing court may not “find its own facts or substitute its own interpretation of the facts.” United States v. Cossio, 64 M.J. 254, 256 (C.A.A.F. 2007).
Finally, as noted earlier, we directly review the military judge’s findings for an abuse of discretion. That said, we disagree with the lower court’s decision to disregard the military judge’s analysis and conduct a Giles analysis on a particular set of facts determined to be important to the lower court. On an Article 62, UCMJ, appeal, the lower court is not authorized to make factual determinations to support a simple difference of opinion between it and the military judge.
Footnote 3 gives a little more on this point.
3 Nor are we persuaded, contrary to the lower court’s implied insinuation to the contrary, that the military judge ignored important facts. The situation in this case is nothing akin to the situations we have encountered in the past where we concluded the military judge had indeed done so. See Commisso, 76 M.J. at 323 (the military judge neglected to consider facts that should have been weighed heavily in resolving the critical issue); United States v. Solomon, 72 M.J. 176, 181 (C.A.A.F. 2013) (the military judge failed to reconcile or even mention uncontroverted police report showing accused was in custody at the time the victims were being assaulted).
Cheers, the Eds.
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