New and Noteworthy

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  • United States v. Henry, 81 M.J. 91 (C.A.A.F. 2021)

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    Defendant, charged with assault of his spouse, filed a motion to suppress statements by his child and wife as hearsay. The military judge, rejecting the government’s argument that the statements were admissible under the excited utterance exception to the rule against hearsay, granted defendant’s motion. The government appealed to the United States Army Court of Criminal Appeals, which affirmed the trial court’s ruling. Subsequently, the Army Judge Advocate General certified the issue (Did the military judge abuse his discretion in excluding the four statements on which the prosecution sought interlocutory appellate review, pursuant to Article 62, UCMJ?), to the United States Court of Appeals for the Armed Forces. On review, the court held that the military judge abused his discretion in refusing to admit the statements under Military Rule of Evidence 803(2), the excited utterance exception. The court found that although the government “merely” needed to prove, by a preponderance of the evidence, that certain factors were met—notably that the: (1) statements were “spontaneous, excited or impulsive rather than the product of reflection and deliberation”; (2) event was startling; and (3) declarant was under the excitement of the event—“the military judge evidenced a grudging view of the excited utterance exception and raised the standard to an impermissibly high level.” The court explained that the heightened standard incorrectly focused on whether the military judge believed whether a crime occurred and analyzed each statement in isolation. The court continued, emphasizing that, on “a foundational note,” MRE 803(2) does not require corroboration, meaning that a statement is sufficient to establish the existence of an exciting event; “[n]o further corroboration of the startling event is required, and it is inappropriate for the military judge to look for alternate theories of what could have prompted the excited statements.” In addition, the trial court could not require proof of a declarant’s personal knowledge or that a witness be well acquainted with a declarant in order to testify about their demeanor. The court explained that what was required was an analysis of the totality of the circumstances; and, in the instant case, “[t]he four statements, considered together as part of the ‘totality of the circumstances,’ provided evidence of the existence of the startling event, an assault, and when” the assault occurred. The certified question was answered in the affirmative, and the case was remanded to the United States Army Court of Criminal Appeals for actions consistent with the opinion.

  • United States v. Mellette, 81 M.J. 681 (N-M. Ct. Crim. App. 2021)

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    Defendant, a former servicemember, was convicted of child sexual abuse in violation of Article 120b, Uniform Code of Military Justice (UCMJ). Defendant appealed, arguing, inter alia, that the military judge erred in denying his pretrial motion for in camera review and production of the then minor-victim’s mental health diagnoses, treatment and prescribed medications. The appellate court observed that although Rule for Courts-Martial (RCM) 703 provides that parties are entitled to relevant and necessary evidence, Military Rule of Evidence (MRE) 501 can except such evidence from production or disclosure by a proper claim of privilege. Here, the psychotherapist-patient privilege, pursuant to MRE 513, was at issue. Although the appellate court held in the instant case that there was evidence of a voluntary waiver and support for an in camera review of select records, the court also held that diagnoses, treatment and prescribed medications are protected by the psychotherapist-patient privilege. With regard to diagnoses and treatment, the court explained that “[w]here a privilege is codified in the evidentiary rules, ordinary principles of statutory construction control”; and “[u]nder a plain reading of [the] language [in MRE 513], the privilege protects communications ‘between’ the patient and the psychotherapist—meaning” that “the protection covers not only the patient’s description of [their] symptoms, but also the psychotherapist’s rendering of a diagnosis and treatment plan, based on those symptoms, back to the patient.” With regard to prescribed medications, the court provided that “[r]evealing what psychiatric medication a patient has been prescribed to treat a diagnosed condition would in many circumstances suggest, if not reveal, the diagnosis itself[,]” and “that ‘[t]he privilege would essentially be gutted if a psychotherapist could be ordered to testify about a person’s diagnosis or treatment, over [their] objection, so long as the psychotherapist refrained from expressly describing or referring to the content of any confidential communications.’” Notably, the court further provided that although privileges are to be construed narrowly, “an overly narrow interpretation . . . would . . . undermine the purpose of [this] privilege” and would be inconsistent with the policy of Congress and the President that “the psychotherapist-patient privilege should be protected to the greatest extent possible.” For these and other reasons, the appellate court ordered select language stricken from the specification, affirmed the finding as to the remaining language, and reassessed the sentence, resulting in a dishonorable discharge and confinement.

  • Fla. Police Benevolent Ass’n. v. City of Tallahassee, — So. 3d —, 2021 WL 1257869, No. 1D20-2193 (Fla. Dist. Ct. App. Apr. 6, 2021).

    Appellants—two law enforcement officers who used deadly force as part of separate incidents that resulted in the deaths of the individuals suspected of committing crimes—appealed from the trial court’s order and judgment declaring that a law enforcement officer acting in their official capacity could not be a “victim” for purposes of Art. I, §16, the state’s constitutional victims’ rights amendment, and directing the City of Tallahassee to disclose to the public records that would reveal the officers’ identities. On de novo review, the Florida District Court of Appeal reversed the trial court’s order and judgment, holding that: (1) an officer “meets the definition of a crime victim under Art. I, §16 when a crime suspect threatens the officer with deadly force, placing the officer in fear for his life”; (2) constitutional victims’ rights protections attach before criminal proceedings begin; and (3) identifying information about the officers was exempt from disclosure under public records laws. The court began its analysis by considering the interplay between Art. I, §16 and Art. I, §24(a), which protects the public’s right to access public records “except with respect to records exempted under this section or specifically made confidential by this Constitution.” The court explained that there was no need to limit the reach of Art. I, §16 because “[n]othing in article I, section 16 excludes law enforcement officers—or other government employees—from the protections granted crime victims . . . [a]nd no language in either article I, section 16 or article I, section 24(a) suggests that public records related to government employees ordinarily subject to disclosure are not entitled to confidential treatment under article I, section 16 when a government employee becomes a crime victim.” The court then concluded that for these reasons, the officers had the right to seek confidential treatment of public records that contained information that could be used to locate or harass them. The court noted that its conclusion would not prevent the public from “hold[ing] law enforcement officers accountable for any misconduct” as maintaining the confidentiality of identifying and locating information would not halt or prevent internal affairs or grand jury investigations. Further, if the officer is charged for their conduct, “then the officer would forfeit the protections under article I, section 16.” The court next rejected the trial court’s holding that a criminal proceeding must have commenced before the protections of Art. I, §16 apply. The court pointed to the plain language of Art. I, §16, which provides that “every victim is entitled to the enumerated rights, beginning at the time of his or her victimization” as well as interpretive case law in holding that a victim’s rights attach at the time of victimization. Lastly, the court held that the trial court erred in concluding that the officer’s names were not entitled to confidential treatment under Art. I, §16, which provides for, inter alia, “the [victim’s] right to prevent the disclosure of information or records that could be used to locate or harass the victim or the victim’s family, or which could disclose confidential or privileged information of the victim.” The court concluded that “information…that could be used to locate or harass the victim or the victim’s family” must include records that could reveal the victim’s name or identity, as “a crime victim’s name [is] the key that opens the door to locating the victim” given the realities of “multiple online search resources available to seek out information about individuals when the person’s name is known.” For these reasons, the court reversed the trial court’s order.

  • E.H. v. Slayton, --- P.3d ---, No. CR-19-0118-PR, 2020 WL 4459283 (Ariz., Aug. 4, 2020)

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    Defendants pled guilty to charges of child endangerment or child abuse in connection with the death of a six-year old victim. Pursuant to the plea agreement, defendants agreed to pay restitution capped at $500,000 to the deceased victim’s sibling, who is also a victim under state law. The surviving child-victim petitioned the Arizona Court of Appeals for special action review of two issues: (1) the trial court’s order upholding the restitution cap; and (2) the trial court’s requirement that the child-victim’s attorney must sit in the gallery, instead of the “well” of the courtroom, unless invited to step into the well to address the court. After the court of appeals declined to accept jurisdiction, the child-victim petitioned the Arizona Supreme Court for review. The Arizona Supreme Court granted review and reversed. First, the court rejected the State’s argument that the case was not ripe for review unless and until the trial court denies a restitution claim that exceeds the cap. The court determined that the State “effectively waived” the child-victim’s right to full restitution by agreeing to a restitution cap, and this improper waiver of the victim’s right is an injury that is ripe for review. Second, the court concluded that capping restitution in a plea agreement without the victim’s consent violates the victim’s right to full restitution. In reaching its holding, the court concluded that due process does not require the imposition of a restitution cap to ensure a defendant’s guilty plea is voluntarily and intelligently made. The court overruled three former decisions—State v. Lukens, State v. Phillips and State v. Crowder—that stood for the principle that a voluntary and intelligent plea requires defendant to know a specific or maximum amount of restitution at the time of the plea. The court determined that the Fourteenth Amendment does not require the imposition of a restitution cap, and a restitution cap without the victim’s consent is ultimately illusory and unenforceable. Third, the court concluded that a victim’s attorney “should presumptively be permitted to sit before the bar”—inside the well—when the victim’s rights are at issue in a proceeding. The court stated that this presumption may be overcome by certain concerns, such as the trial court’s need to manage seating to allow for physical distancing during a pandemic. The court cautioned, “[a]t all times, however, a trial court’s discretion to address seating arrangements must honor a victim’s constitutional right to be present and heard … and to be treated with fairness, dignity, and respect.” For these and other reasons, the court vacated the restitution cap. The court remanded with directions to the trial court to allow defendants to move to withdraw from their plea agreements upon a showing that the restitution cap was a relevant and material part of their decisions to plead guilty.

  • State v. Reed, 456 P.3d 453 (Ariz. 2020)

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    Defendant was convicted of voyeurism and ordered to pay restitution. Defendant appealed the restitution order, but died while the appeal was pending. The court of appeals dismissed the appeal pursuant to Arizona statute, leaving the restitution order intact and enforceable against defendant’s estate, and his estate appealed. The court explained that in 2014, Arizona enacted a statute, § 13-106, which eliminated the abatement ab initio doctrine and required the court to dismiss a pending appeal or post-conviction relief proceeding upon a defendant’s death. As further described by the court, the approach adopted by the legislature was inconsistent with Arizona courts’ adherence to the abatement ab initio doctrine when a convicted defendant dies pending appeal of the conviction and sentence. Defendant’s estate argued that in enacting this statute the legislature infringed upon the court’s appellate jurisdiction and usurped its constitutionally guaranteed rulemaking authority, thereby violating separation of powers principles and rendering the provision unconstitutional. The court explained that the Arizona Constitution vests the Arizona Supreme Court with authority to make rules relating to the procedural matters in any court; the legislature has authority to enact substantive laws, but may also enact procedural laws to define, implement, preserve, and protect the rights guaranteed to victims by the Victims’ Bill of Rights (“VBR”), as well as procedural laws if they supplement rather than conflict with court procedures. The court noted that in the event of a conflict, court procedure prevails. The court found that § 13-106(A), requiring the dismissal of any pending appeal or postconviction proceeding upon a defendant’s death, was a procedural law, because the disposition of an appeal is a matter of court procedure. Consequently, the statute is a procedural rule and violates separation of powers principles, unless the VBR authorized its enactment. The court found that the legislature’s rulemaking authority under the VBR is restricted, and extends only so far as necessary to protect rights created by the VBR that are “unique and peculiar” to crime victims. Therefore, the court concluded that the VBR did not authorize the enactment of § 13-106(A) because the statute does not affect rights unique and specific to victims. The state argued that it affects victims’ rights to a speedy trial or disposition and prompt and final conclusion of the case after conviction and sentence, as established by the VBR. But the court stated that this right “neither creates a right nor defines a right peculiar and unique to victims,” and thus could not serve as a source of authority for the legislature. The state also relied on the victim’s right to be treated with fairness, respect and dignity. However, the court found that this right “concerns treatment of victims in the criminal justice process; it does not create rights to any particular disposition.” The court did find, however, that the victim’s right to prompt restitution is unique and peculiar to victims. However, “this right contemplates the entry of a restitution order that is subject to appellate scrutiny, which may result in reversal or modification of the order. Because [this right] does not guarantee victims any particular appellate disposition, § 13-106(A)’s required disposition does not affect a victim’s right to payment of prompt restitution.” The court also was not convinced that the legislature intended to exercise its VBR-granted rulemaking authority in enacting the statute. As to § 13-106(B), which states that a defendant’s death does not abate the defendant’s criminal conviction or sentence of imprisonment or any restitution, fine, or assessment imposed by the sentencing court, the court reached a different conclusion. “Whether a conviction, sentence, restitution order, or fine should stand or abate when a convicted defendant dies pending appeal is a policy matter affecting competing interests and rights held by victims, the state, the defendant’s family, and society. The legislature’s abolition of the abatement ab initio doctrine regulates the primacy of those interests and rights, making [it] a substantive law.” Accordingly, the court determined that whether the restitution amount is correct remains a controversy with a real-world impact on defendant’s wife. The victim’s rights would not be infringed by a decision on the merits, as the court found that the victim never possessed a right to avoid such a decision. The court vacated the court of appeals’ opinion and remanded for a decision on the merits.