A nod from a battered woman helped convict a California-based airman of assault. Now the top military appeals court must decide whether that nonverbal evidence was valid.
The outcome from a court hearing Wednesday matters for more than Ellwood T. Bowen III, the Air Force enlisted man who was court-martialed at Edwards Air Force Base in Southern California. Military prosecutors and defense attorneys alike are watching closely.
The question for the U.S. Court of Appeals for the Armed Forces involves hearsay, and when it can be admitted. Only in this case it wasn’t what someone said, but how they gestured.
The case, as many do, started with a night of drinking.
The improper hearsay evidence was the only indication that Mrs. MB ever accused her husband of an assault. Brief for Ellwood T. Bowen III
Bowen, his wife and another airman at the base about 90 miles southeast of Bakersfield attended a November 2013 party billed as an “anything but clothes” get-together before returning to Bowen’s home. About 6 in the morning, the other airman reported that a woman was being assaulted.
When Security Forces personnel responded to the home, one found blood on the bedroom sheets and Bowen’s wife unconscious in the bathtub. The wife, called MB in court records, had swollen eyes and a gash on her face.
“One of the other Security Forces responders asked MB whether her husband did this to her (and) MB shook her head up and down,” the U.S. Air Force Court of Criminal Appeals recounted in a 2015 decision, adding that this gesture was “interpreted as an affirmative response.”
The wife, who suffered a traumatic brain injury, subsequently “did not remember talking to first responders,” according to a brief filed by Bowen’s attorneys. Bowen’s defense included pointing a finger at the other airman.
Hearsay is a statement made outside of court, when the speaker is not under oath. As a general rule, it cannot be admitted as evidence. One exception, though, covers an “excited utterance,” which must be spontaneous or impulsive rather than the product of reflection and deliberation.
“Evidence that Mrs. MB nodded her head when prompted by a suggestive, close-ended question by law enforcement was insufficiently spontaneous,” Bowen’s attorney, Air Force Capt. Johnathan D. Legg, argued in a brief.
The government’s brief, authored by Air Force Maj. Meredith L. Steer, countered that the question was part of a startling sequence for the woman after she was “initially revived from unconsciousness by Security Forces members in her own home minutes after a vicious assault.”