United States v. Reggio

In my opinion, Joshua’s gesture was not admissible as either an excited utterance or a statement of a then existing mental, emotional, or physical condition. The gesture was not made under the stress of excitement of the assault he suffered. In fact, it was made at least a day later, was performed only in reply to a question, and was not an emotional volunteering of information. United States v. LeMere, 22 M.J. 61 (C.M.A.1986); United States v. Spychala, 40 M.J. 647 (N.M.C.M.R.1994); United States v. Ansley, 24 M.J. 926 (A.C.M.R.1987). In LeMere, the Court of Military Appeals rejected the…