​A military judge sitting as a general court-martial convicted appellant, pursuant to his plea, of one specification of indecent recording, in violation of Article 120c, Uniform Code of Military Justice, 10 U.S.C. § 920c [UCMJ]. The military judge sentenced appellant to a bad-conduct discharge, confinement for seven months, and reduction to the grade of E-1. Consistent with the pretrial agreement, the convening authority approved the portion of the sentence extending to a bad-conduct discharge, confinement for 180 days, and reduction to the grade of E-1.

Michel Paradis

LOAC Editor

At trial, the Government sought to introduce the following four statements for the truth of the matter asserted, under the excited utterance or present sense impressions exceptions to the rule against hearsay:

       (1) JH’s statement to SSG DC: “He’s beating my mom. He’s beating my mom.”

       (2) JH’s exclamation: “You better not hit her again.”

       (3) KH’s statement to SSG DC: “He hit me. He hit me.”

     (4) KH’s statement to the 911 operator that her husband had “been beating me for the last couple of hours.”

In an Article 39(a) session on the admissibility of these statements, KH testified for the defense. She stated that she had told JH to run over to SSG DCs house and tell him to call 911, and she lied when she told SSG DC that the accused had beaten her. At the Article 39(a) session, the military judge denied the admission of the statements as exceptions to hearsay or under the residual hearsay exception. He did not make a finding that KH’s recantation was at all credible, nor did he reference it his ruling.

​Since the military judge based his ruling on an incorrect view of the law—requiring proof of personal knowledge and considering each statement in isolation—and a view of the facts that leaves us firmly convinced that a mistake was committed—that there was no evidence as to when the assault occurred or that JH could have observed it—we hold that he abused his discretion by excluding the four statements of JH and KH. 

Brenner Fissell

EIC

The Supreme Court generally does not view itself as in the business of error correction, but it still sometimes finds a few criminal cases in which it just cannot resist fixing what looks like an incorrect ruling below.  Today's order list, for example, brings a per curiam summary reversal in Mays v. Hines, No. 20–507 (S. Ct. Mar. 29, 2021) (available here), in which the Court corrects the work of the Sixth Circuit via an eight-page opinion that starts and ends this way:

A Tennessee jury found Anthony Hines guilty of murdering Katherine Jenkins at a motel.  Witnesses saw Hines fleeing in the victim’s car and wearing a bloody shirt, and his family members heard him admit to stabbing someone at the motel.  But almost 35 years later, the Sixth Circuit held that Hines was entitled to a new trial and sentence because his attorney should have tried harder to blame another man.  In reaching its conclusion, the Sixth Circuit disregarded the overwhelming evidence of guilt that supported the contrary conclusion of a Tennessee court.  This approach plainly violated Congress’ prohibition on disturbing state-court judgments on federal habeas review absent an error that lies “‘beyond any possibility for fair-minded disagreement.’” Shinn v. Kayer, 592 U.S. ___, ___ (2020) (per curiam) (slip op., at 1); 28 U.S.C. §2254(d).

​Notably, Justice Sonia Sotomayor dissented from this per curiam ruling, but without any opinion, so this was technically an 8-1 error correction.

Given the number of errors in this case, we must also consider the cumulative effect of the erroneously admitted evidence. "[A] number of errors, no one perhaps sufficient to merit reversal, in combination [may] necessitate the disapproval of a finding." We review the cumulative effect of plain and preserved errors de nova. Id. We reverse only if we find that the cumulative errors denied appellant a fair trial. Id. In this case there was strong evidence of appellant's guilt and none of the errors related to improperly admitted evidence materially prejudiced appellant's substantial rights. As previously discussed, the strength of the government's case was based upon appellant's devastating admissions to law enforcement, the victim's testimony about the assault, the victim's subsequent demeanor and immediate disclosure to multiple friends. Under the circumstances of this case, we find appellant was not denied a fair trial.

Brenner Fissell

EIC

​The United States Court of Appeals for the Armed Forces issued a decision in Petitioner’s case on 1 August 2019, affirming the findings and sentence as approved by this court. United States v. Hyppolite, 79 M.J. 161, 167 (C.A.A.F. 2019). Thereafter, Petitioner did not file a petition for writ of certiorari with the United States Supreme Court, and direct review of Petitioner’s case was complete. On 8 December 2020, the commander of the Air Force District of Washington ordered execution of Petitioner’s dishonorable discharge, having already ordered the other portions of Petitioner’s sentence executed. 

​Under M.R.E. 404(b)(2), while evidence of a crime, wrong, or other act may not be used to show character or propensity, it “may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” As the motions judge correctly recognized, we have previously held that one proper purpose of such evidence is to prove the existence of a plan or scheme. United States v. Munoz, 32 M.J. 359 (C.M.A. 1991); United States v. Johnson, 49 M.J. 467 (C.A.A.F. 1998).

[C]onclude[d] that the motions judge and trial judge did not abuse their discretion in their M.R.E. 404(b) ruling. We therefore d[id] not reach the issue of prejudice.

Elizabeth M. Berecin

Managing Editor

Brenner Fissell

EIC