U.S. Court of Appeals for the Armed Forces

United States v. Smith. Judge Johnson's first opinion (unanimous) deals with the intricacies of the excited utterance exception to hearsay under Mil. R. Evid. 803(2).

 AFCCA decided Smith's three issues adverse to him. Of interest,

(1) whether the evidence was legally and factually sufficient to support his conviction, (2) whether the military judge erred in admitting text messages and testimony as excited utterances[.]
. . . 
Appellant attacks his conviction in three ways. First, he argues that the evidence establishes that HS consented. Second, in Appellant’s view, the evidence did not establish that HS was too drunk to render her incapable of consenting. Third, Appellant claims that he should have been acquitted based on his mistake of fact as to her consent.
. . . 
Without objection, HS testified that she sent a Snapchat message to one of her friends, MH, stating that she thought that Appellant had raped her. However, over the Defense’s objection, the Government introduced an exhibit showing this message and other messages between HS and MH. Appellant alleges that the military judge erred in admitting both HS’s testimony and the messages into evidence as excited utterances. Appellant argues this was improper because too much time had elapsed, and because HS “had no memory ​of the events in [ ] question” so her “statement that she believed she was raped was necessarily the product of reflection and deliberation . . . .” 

CAAF granted the petition to decide

I. Whether the military judge erred in admitting text messages and testimony as an excited utterance related to the alleged victim’s belief that she was raped where she had no memory of the events in question; and [legal sufficiency.]

At trial ("cleaned up to save space")

The military judge admitted, over defense objection, a screenshot of SrA HS’s Snapchat message to Amn MH that said, “I think he raped me.” Before ruling, the military judge required the Government to ​present evidence so that he could determine whether the message was an exited utterance under M.R.E. 803[2]. The Government called SrA HS, who testified about the circumstances under which the message was sent. Following her testimony, the military judge stated: “I do believe that the Government has laid the appropriate foundation for an exited utterance exception to the hearsay rule.” The military judge did not place further analysis on the record.
. . .
SrA HS testified on direct examination that when she was in the bathroom and saw bruises on her chest and arms, she panicked and messaged her friend via Snapchat that she thought she had been raped by Appellant. She explained that in that moment, she pieced together everything she had observed at the hotel and realized that she should not have brushed off those observations. The defense did not object to this testimony.
. . . 
[DC Objecting] arguing that the Snapchat message did not meet the foundational elements of an excited utterance because SrA HS was “texting him. She[ was] not still looking at a startling event or condition” at the time she sent the message.
. . . 
​the military judge granted the defense’s request to restate the objection for the record, in which the defense focused on the first and third prongs of the excited utterance test. As to the first prong, the defense argued that the statement “I think he raped me” was the product of reflection and deliberation, and not spontaneous, excited, or impulsive, because “she is taking a series of observations, she’s adding them together, and then she’s drawing a conclusion as to an event that she did not observe, the ‘I was raped.’ ” As to the third prong, the defense argued that, although seeing the bruises may have been startling, her statement was not about the bruises; her statement was about being raped, but because she did not have any memory of being raped, she was “not under the stress or excitement of the event for which she has no memory.”

The court begins the analysis using the three factors identified in United States v. Arnold, 25 M.J. 129, 132 (C.M.A. 1987):

(1) “the statement must be spontaneous, excited or impulsive rather than the product of reflection and deliberation”;

(2) “the event [that prompts the utterance] must be startling”; and

​(3) “the declarant must be under the stress of excitement caused by the event.”

 “I think he raped me,” [is] an excited utterance [on the facts here].

Factually, the victim

​was in the bathroom and saw bruises on her chest and arms, she panicked and messaged her friend via Snapchat that she thought she had been raped by Appellant. She explained that in that moment, she pieced together everything she had observed at the hotel and realized that she should not have brushed off those observations. The defense did not object to this testimony.
. . . 
[She] elaborated on her prior testimony that she freaked out and panicked when she saw the bruises, testifying that her hands were shaking and she was sweating and nauseated as she messaged Amn MH from the gas station bathroom, where she discovered the bruises. She was in the bathroom for approximately three minutes.

The basic defense objection was that the thinking she had been raped was the product of connecting dots and deliberative rather than spontaneous. The statement was about the bruises not about a rape.

[A]lthough seeing the bruises may have been startling, her statement was not about the bruises; her statement was about being raped, but because she did not have any memory of being raped, she was “not under the stress or excitement of the event for which she has no memory.”

The CAAF adopts an unpublished 10th Circuit opinion 

The Government cites an unpublished United States Court of Appeals for the Tenth Circuit case for a proposition that goes to the heart of this issue: “‘[t]he basis of the excited utterance exception rests with the spontaneity and impulsiveness of the statement; thus, the startling event does not have to be the actual crime itself, but rather may be a related occurrence that causes such a reaction.’ ” United States v. Lossiah, 129 F. App’x 434, 438 (10th Cir. 2005) (unpublished) (alteration in original) (quoting Esser v. Commonwealth, 566 S.E.2d 876, 879 (Va. Ct. App. 2002)). We agree and decide that it was within the military judge’s discretion to conclude that the statement “I think he raped me,” viewed in context, related to the startling event of discovering the bruises and articulated SrA HS’s belief that they may have been caused by the alleged sexual assault.

BLNUF--no abuse of discretion to admit. AFCCA affirmed.

The Daily Journal also notes a grant in two cases on

I. Unanimous verdict.

​II.  DID THE LOWER COURT ERR BY DEFERRING TO A CONVENING AUTHORITY'S CASE-BY-CASE REFERRAL DECISION RATHER THAN AN OBJECTIVE STANDARD TO DETERMINE WHETHER AN OFFENSE IS SERIOUS?

Both are Navy cases and both were submitted to NMCCA without assignment of error. United States v. Diaz and United States v. Martin.