United States v. Pearson

33 M.J. 913, 1991 CMR LEXIS 1525, 1991 WL 257591
CourtU S Air Force Court of Military Review
DecidedNovember 22, 1991
DocketACM 28547
StatusPublished
Cited by8 cases

This text of 33 M.J. 913 (United States v. Pearson) is published on Counsel Stack Legal Research, covering U S Air Force Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Pearson, 33 M.J. 913, 1991 CMR LEXIS 1525, 1991 WL 257591 (usafctmilrev 1991).

Opinion

OPINION OF THE COURT

HODGSON, Senior Judge:

Sergeant Michael Berry lived in the barracks on Davis-Monthan Air Force Base and is appellant’s friend and co-worker. On 13 July 1989, Berry made plans to play bingo with his girlfriend who had a 6-year old boy, Jimmy.1 Berry asked the appellant, who had done so in the past, to babysit Jimmy while Berry and Jimmy’s mother played bingo. The appellant, who had been drinking, initially said no but eventually agreed to watch the boy after Berry told him there was a twelve-pack of beer in Berry’s room. Jimmy was left with the appellant at about 1900.

The appellant watched Jimmy until about 2200 when Jimmy’s mother and Berry returned to the barracks to get him. The appellant was slow answering his door. When it opened, Jimmy was sitting in the middle of the room and appeared “pale and scared.” When his mother indicated it was time to go, he ran to Berry and “hugged” his legs. As they were leaving, Jimmy’s mother noticed that the zipper on appellant’s pants was open.

Jimmy, Jimmy’s mother, and Berry returned to Berry’s room where Jimmy acted unusually subdued. The first time the appellant baby-sat Jimmy, the child was very enthusiastic about the appellant and would not stop talking about him.

After Jimmy and his mother returned home, she noticed his hands were shaking as he tried to eat. She sensed something was wrong and asked what it was. At first he refused to tell her, saying, “If I tell you mommy, Lindell (appellant) get mad at me.” Eventually, he told her that he and the appellant played “new games” where they “took their clothes off,” and the appellant put his “titi” in his mouth and “puet.” “Titi” appears to be the child’s térm for penis and “puet” his word for anus. Jimmy also indicated that when he cried, the appellant turned the stereo up louder. When Jimmy’s mother undressed him she noticed that his underwear was inside out.

At trial Jimmy hesitantly testified as to the nature of the appellant’s sexual misconduct. In a pretrial statement taken after the proper warnings, the appellant denied any sexual activity with Jimmy but surmised that if it did take place it was because he was “out of his mind” or “drunk.”

The military judge, sitting without members, found the appellant guilty of forcible sodomy with a child under the age of 16 years. The approved sentence consisted of a bad conduct discharge, 36 months confinement, forfeiture of $400.00 pay per month for 36 months, and reduction to E-l.

EXCITED UTTERANCE

Appellate defense counsel argue that the trial judge erred in admitting Jimmy’s statement to his mother as an “excited utterance” because it lacked the requisite spontaneity to qualify as an exception to the hearsay rule. Appellate counsel point out that the statement was “made hours after the incident allegedly occurred” and was not a spontaneous declaration but [915]*915was the result of questioning by his mother.

Mil R.Evid. 803(2) was taken without change from its Federal counterpart and states:

(2) Excited Utterance: A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

To qualify as an excited utterance the declarant must (1) have experienced a startling event or condition and (2) reacted while under the stress and excitement of the event and not from reflection and fabrication. See generally United States v. Cox, 11 M.J. 795 (A.F.C.M.R.1981), pet. denied, 12 M.J. 115 (C.M.A.1981). Jimmy’s earlier testimony at trial, his emotional state while in the appellant’s room and later with his mother, together with the circumstance that the child’s underwear was reversed, was sufficient to allow the trial judge to conclude that a startling event had occurred.

With regard to the appellant’s claim that the time between the alleged startling event and the out-of-court statement was too long to make the statement spontaneous, the Eighth Circuit held in 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), that “the lapse of time between the startling event and the out-of-court statement although relevant is not dispositive in the application of rule 803(2).” In Morgan v. Foretich, 846 F.2d 941, 947 (4th Cir.1988), the Fourth Circuit went further and stated:

Indeed, much criticism has been directed at courts which place undue emphasis on the spontaneity requirement in child sexual abuse cases____ Even if the child is
aware of the nature of the abuse, significant delays in reporting this abuse may occur because of confusion, guilt, and fear on the part of the child. [Footnote citations omitted.]

The decision went on to indicate that the time between the abuse and declaration must also include the child’s first real opportunity to report the incident. See also Kilgore v. State, 177 Ga.App. 656, 340 S.E.2d 640 (1986).

Here, while the abuse allegedly occurred between 1900 and 2200 hours, Jimmy’s first real opportunity to tell of the incident occurred after he was home with his mother. The period of time, i.e., 3 hours between the event and the reporting of it, was reasonable. United States v. Arnold, 25 M.J. 129 (C.M.A.1987); See Morgan v. Foretich, supra. Courts have recognized that stress is often present for a longer period in a young child than in an adult. Accordingly, a child is likely to repress the incident and speak of it only when asked by a person the child trusts. United States v. Lingle, 27 M.J. 704 (A.F.C.M.R.1988), pet. denied, 28 M.J. 455 (C.M.A.1989). Here, Jimmy was reluctant to tell what had happened because of his fear that it might make the appellant “mad.” He told his mother because he trusted her.

The appellant’s claim that the declaration was not spontaneous, but was obtained through questioning is not a barrier to its admission. A child’s excited utterance may be in response to a question or series of questions. United States v. Iron Shell, supra; People v. Jones, 155 Cal.App.3d 653, 202 Cal.Rptr. 289 (1 Dist.1984); State v. Plant, 236 Neb. 317, 461 N.W.2d 253 (1990); Commonwealth v. Galloway, 302 Pa.Super. 145, 448 A.2d 568 (1982); see also United States v. Lingle, supra. The trustworthiness of the declaration is what is important. Jimmy’s statement to his mother was in the vocabulary of a young child and his youth and naivete enhance the reliability of his utterance. It is highly unlikely under the facts presented that the statement was fabricated.

The admission of an excited utterance is within the sound discretion of the trial judge, and his or her ruling on such an issue will be overturned only when there has been a clear abuse of discretion. See generally United States v. LeMere, 22 M.J. 61 (C.M.A.1986), United States v. Iron Shell, supra; United States v. Whitney, 18 M.J. 700 (A.F.C.M.R.1984). The trial [916]

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Cite This Page — Counsel Stack

Bluebook (online)
33 M.J. 913, 1991 CMR LEXIS 1525, 1991 WL 257591, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-pearson-usafctmilrev-1991.