U.S. V. BOWEN REHEARING AUTHORIZED DUE TO USE OF “EXCITED UTTERANCE” PROOF
February 18, 2017
The Court of Appeals for the Armed Forces (CAAF) has concluded that United States v. Bowen was decided incorrectly due to the presiding judge’s abuse of discretion and erroneous judgement. Airman First Class Bowen will be granted a rehearing after being convicted of assault and aggravated assault, primarily due to an “excited utterance” given by one of the alleged victims, his wife.
THE DETAILS OF THE BOWEN CASE
Air Force security personnel entered Bowen’s home after reports of a disturbance. They noted that Bowen seemed to be in distress and considerably disoriented. Upon searching the home, the security officers found his wife – called MB in court documents – unconscious and battered in the bathtub. To try to assess her health, MB was moved to the bed, where she appeared to gain partial consciousness. The security officers then asked her if Bowen was her assaulter, to which she lazily nodded in response. Another airmen would also comment that he had been assaulted by Bowen.
Later, MB would be hospitalized and treated for her injuries. As part of her diagnosis, her blood alcohol concentration (BAC) level was tested, giving a staggeringly high result of 0.221%. The extremely high intoxication level of MB makes any statements – or gestures – she made at the time of Bowen’s arrest questionable, to say the least. Furthermore, after she was given some time to recover, investigators turned to her for a testimony of the events. During this discussion, she stated that she had “no memory” of talking to investigators and security personnel that night, and that any statements she made at that time were “not reliable” due to her intoxicated state of mind.
Bowen’s defense counsel theorized that the other airman who claimed to have been assaulted as well was the actual perpetrator of the crime. However, that airman was previously granted immunity in exchange to testify against Bowen. Despite the questionable circumstances and the “excited utterance” of MB, Bowen was convicted on both charges.
EXCITED UTTERANCE LEADS TO APPEAL
The defense counsel worked to file an appeal with the CAAF. It stated the judge failed to recognize that MB’s head nod was a nonverbal form of “excited utterance” due to her condition. Excited utterances by victims are not meant to be taken as hard evidence, as emotions, mental trauma, intimidation, and so on will likely influence the genuineness of such statements. Indeed, the prosecution seemed to rely solely on MB’s nod in its case against Bowen, and it appeared to be the driving force behind his conviction.
The CAAF agreed that the judge made an error in relying on the excited utterance to make a ruling. While it is true that a judge has some discretion over how to conclude a case and why, it was found that this incident was an abuse of that discretion. Both convictions were overturned and Bowen is scheduled to get another hearing to defend his name.
Cases similar to Bowen’s that lead to military convictions are not uncommon. If you have found yourself in such a situation and believe a courtroom error has caused you to suffer a conviction, Military Criminal Defense Attorney Joseph L. Jordan can help you utilize the appeal process and protect your rights. He has defended military service members around the country and from all branches of the Armed Forces. Call (866) 361-4723 or contact his firm online to start your defense or appeal case.