## Facts

- On Christmas night 2016, soldiers and local civilians were drinking at Blue’s Bar in Baumholder, Germany.
- Sergeant Prince J. Brown arrived with friends; witnesses described Brown as large and muscular, and one of his friends as extremely intoxicated.
- Brown spoke with two local women, LS and LW, and introduced himself as “Chris,” saying one of his friends was interested in LS.
- A fight broke out inside and then outside the bar.
- During the disturbance, LS was struck in the head and died shortly thereafter.
- During the same episode, a beer bottle was thrown and struck LW in the face, breaking her nose and causing significant facial lacerations.
- Brown was charged at a general court-martial with murder of LS (Article 118, UCMJ) and aggravated assault of LW (Article 128, UCMJ).
- The panel acquitted Brown of the murder charge but convicted him of aggravated assault related to LW’s injuries.
- While the altercation was ongoing, Specialist (SPC) Rine began typing notes on his cell phone describing what he was observing, starting about five minutes after the disturbance began.
- Over a defense hearsay objection, the military judge admitted SPC Rine’s phone notes under the present-sense-impression exception in Military Rule of Evidence 803(1).
- Brown appealed, challenging (among other rulings) admission of an identification, denial of a defense motion to compel certain character witnesses, and admission of SPC Rine’s notes.

## Issues

1. Whether the military judge erred in denying the defense motion to suppress a witness identification of Brown as the assailant.
2. Whether the military judge abused his discretion by denying the defense motion to compel requested character witnesses.
3. Whether the military judge erred by admitting SPC Rine’s cell-phone notes as a present sense impression under Mil. R. Evid. 803(1).

## Decision

- The United States Army Court of Criminal Appeals affirmed the findings and sentence.
- The court upheld the military judge’s ruling denying suppression of the challenged identification.
- The court upheld the denial of the defense motion to compel additional character witnesses.
- The court held the military judge did not abuse his discretion by admitting SPC Rine’s phone notes as a present sense impression under Mil. R. Evid. 803(1).

## Legal Principles

- A military judge’s evidentiary rulings, including hearsay-exception determinations, are reviewed for abuse of discretion.
- Under Mil. R. Evid. 803(1), a present sense impression is a statement describing or explaining an event or condition made while or immediately after the declarant perceived it.
- The timing requirement for a present sense impression focuses on whether the statement was made close enough to the perception to limit the chance of reflection or fabrication; where events are continuing and the declarant is watching as the statement is recorded, a short delay may still satisfy Rule 803(1).
- Written or electronic notes can qualify as present sense impressions when they are used to record observations as the event unfolds.
- Challenges to identification evidence generally turn on whether law-enforcement procedures were unnecessarily suggestive and, if so, whether the identification was nonetheless reliable under the circumstances.
- A defense request to compel witness production requires a showing that the testimony is relevant and necessary; a military judge may deny requests for testimony that is cumulative or insufficiently necessary.
- Even if error is found, appellate relief requires a showing of material prejudice to a substantial right.

## Conclusion

In United States v. Brown, the Army Court of Criminal Appeals affirmed Brown’s aggravated-assault conviction arising from a Christmas-night bar fight in Germany, concluding that the military judge acted within his discretion in admitting a soldier-witness’s contemporaneous cell-phone notes as a present sense impression and in rejecting Brown’s challenges to an identification and to the denial of compelled character-witness testimony.


United States v. Brown, No. ARMY 20160195, 2018 CCA LEXIS 107 (2018)