United States v. Barrick

41 M.J. 696, 1995 CCA LEXIS 37, 1995 WL 23501
CourtUnited States Air Force Court of Criminal Appeals
DecidedJanuary 10, 1995
DocketACM 30623
StatusPublished
Cited by4 cases

This text of 41 M.J. 696 (United States v. Barrick) is published on Counsel Stack Legal Research, covering United States Air Force Court of Criminal Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Barrick, 41 M.J. 696, 1995 CCA LEXIS 37, 1995 WL 23501 (afcca 1995).

Opinion

OPINION OF THE COURT

HEIMBURG, Senior Judge:

A general court-martial sitting with enlisted members convicted Senior Airman (SrA) Barrick of the rape of another senior airman. Article 120, UCMJ, 10 U.S.C. § 920 (1988). SrA Barrick pled guilty to adultery, Article 134, UCMJ, 10 U.S.C. 934, but the military judge dismissed that charge as multiplicious with the rape charge after the members returned findings. The approved sentence is a bad-conduct discharge, confinement for 12 months, forfeiture of $200 pay per month for 12 months, and reduction to E-l.

Senior Airman Barrick asserts on appeal that the military judge erred in two respects: he permitted two persons to testify concerning statements the victim made the day following the incident as “excited utterances” under Mil.R.Evid. 803(2); and he failed to instruct on the defense of mistake of fact. We agree that the statements were not excited utterances, but, finding their erroneous admission non-prejudicial, we affirm.

[698]*698Facts

The appellant and the victim, SrA [G], were both serving 180 days temporary duty (TDY) at a small site in Saudi Arabia. Each was chosen to participate with 12 others in a “morale trip” to Bahrain. This three-day trip consisted of a five hour bus ride to a military-operated hotel in Saudi Arabia near the border of Bahrain, two nights at the hotel, one day at an island in Bahrain, and a five hour bus ride back to their duty location. Only during their day in Bahrain were the group members permitted to drink alcoholic beverages.

SrA G testified she knew the appellant from seeing him at work, but they had no social relationship, either before or during the morale trip. They did not sit together during the bus rides and they spoke briefly only a couple of times during the trip. Once, while the group was in Bahrain, the appellant “grabbed [SrA G’s] butt on a bet with this Saudi gentleman he was talking to.” Finding herself next to the appellant on the boat trip back from the island, SrA G engaged him in conversation, asking if he was married. The appellant responded that he “was not very well endowed but he could please me with his tongue.” SrA G laughed and walked away to stand next to another male airman she knew.

SrA G consumed a large amount of alcoholic beverages in Bahrain, as did many of the group, but she did not consider herself drunk when the group returned to the military hotel in Saudi Arabia and the “villa” she shared with one woman and 11 or 12 men, including the appellant. The villa consisted of five bedrooms, three bathrooms, a kitchen and a living area. The two women, SrA G and her friend “Trixy,” shared one bedroom which had an adjoining bathroom, while the men shared the remaining rooms and bathrooms. That afternoon there was a lot of horseplay in the villa among members of the group. The appellant .was not part of the horseplay, and apparently did not speak with SrA G after returning to the villa.

SrA G went to bed early because of a headache and was asleep when the appellant entered her room wearing only a towel. SrA G awoke with the appellant on top of her, with his penis in her vagina, telling her to “come alive.” She had no idea how long he had been there. After “fifteen, thirty seconds” he ejaculated, got off her, threw her underwear on her chest and said, “Sorry. I’ve been drinking too much. I guess that’s just a guy.” When the appellant left her room, the clock showed it was approximately 1900. SrA G called for Trixy to come into the room and told her about the rape. She and Trixy talked about the events for an hour or two, but SrA G told no one else that night.

The next morning SrA G awoke at 0600, but stayed in her room until the group started the 5-hour return bus trip at 0700. Once back at her duty site, SrA G went directly to the villa occupied by Phil, a civilian man she had dated. Phil was asleep, but SrA G went into his villa and lay down next to him, crying. When Phil awoke, she told him she had been raped. Phil talked with SrA G for a couple of hours. He encouraged SrA G to report the rape to her first sergeant, Technical Sergeant (TSgt) [W]. TSgt W was out when they called, but returned the call and asked SrA G about the trip. SrA G began to cry, and told him she had been raped.

The military judge ruled that both Phil and TSgt W could testify as to what SrA G told them about the rape under the “excited utterance” exception to the hearsay rule. Mil.R.Evid. 803(2). The judge denied the defense counsel’s request for a mistake of fact instruction which would have advised the members they must acquit if they found the appellant mistakenly believed SrA G consented to sexual intercourse.

Excited Utterance

As an exception to the hearsay rule, a military judge may admit an “excited utterance.” Mil.R.Evid. 803(2). This exception “recognizes that statements made during a startling event or while under the stress of excitement, possess inherent reliability. The excitement and associated spontaneity remove an opportunity for calculation.” S. Saltzburg, L. Schinasi, D. Schlueter, Military Rules of Evidence Manual 793 (3d ed. 1991). Because of this assumption which underlies the exception, it is important that [699]*699the statement have been made under the stress of the excitement of the startling event, and the lapse of time is a relevant factor in admissibility, although not in itself dispositive. United States v. Arnold, 25 M.J. 129, 132 (C.M.A.1987), citing United States v. Iron Shell, 633 F.2d 77, 85 (8th Cir.1980), cert. denied, 450 U.S. 1001, 101 S.Ct. 1709, 68 L.Ed.2d 203 (1981). A military judge’s ruling admitting an excited utterance is reviewed by us for abuse of discretion. United States v. Pearson, 33 M.J. 913, 915 (A.F.C.M.R.1991).

In ruling that SrA G’s description of the events to Phil and TSgt W were excited utterances, the military judge emphasized that SrA G “had no opportunity while on the bus to talk to anyone about the incident because the accused was present.” He also found that SrA G “did not contemplate whether or not to report the event,” a factor he considered “important because it tends to minimize concern that she used that time to make up some story.” The military judge also found that SrA G’s confusion and demeanor (very emotional and crying) while describing the event to Phil and TSgt W “show that she was describing a very emotional event while still under the influence of it.”

We believe the military judge misapplied the standards for admissibility of an excited utterance to the facts of this case in two respects. First, contrary to the judge’s findings, SrA G had time to reflect on the events. While the lapse of time is not dispositive, it is important here. SrA G reported the rape to Trixy immediately after it occurred, and talked with Trixy for up to two hours before falling asleep. She did not talk with Phil until more than 18 hours had passed, after a long bus ride during which she spoke to no one but thought considerably about what had happened. She described herself on the bus trip as being upset, angry, “degraded somehow.” “I was angry at myself. I was trying to think what I had done, to see if I had done anything to warrant what had happened.

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Cite This Page — Counsel Stack

Bluebook (online)
41 M.J. 696, 1995 CCA LEXIS 37, 1995 WL 23501, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-barrick-afcca-1995.