Airman Cucuzzella and his wife attended a new parent program run by a family advocacy nurse aboard an Air Force base. Mrs. Cucuzzella later returned to the family advocacy nurse by herself. After discussing bad check problems, Mrs. Cucuzzella alleged her husband had subjected her to sexual and physical abuse. At trial, over defense objection the military judge admitted the family advocacy nurse's testimony about Mrs. Cucuzzella's statements under the hearsay exception for statements made for the purpose of medical diagnosis or treatment. CAAF agreed.
CAAF emphasized that "as a Family Advocacy Nurse, Ms. Moultrie was engaged in mental health diagnosis and referral." Id., slip op. at 8. CAAF then turned to the issue of whether Mrs. Cucuzzella made her statements with the expectation of receiving medical benefit or treatment. Emphasizing the standard of review and the military judge's superior ability to assess the context in which the statements were made, CAAF held that the military judge's finding were not clearly erroneous when he determined that when Mrs. Cucuzzella spoke to the nurse, she expected to receive counseling help for her marital situation.
In other poetic allusion, Judge Baker wrote:
Learned Hand and Oliver Wendell Holmes both noted that the common law moves with small currents, but through its collective motion, one might well look up to find oneself far from the intended textual and legal shore. In this case, as an appellate court, we have looked up, and still find the legal shore in sight.Id., slip op. at 11.
Since I prefer the shore to the mountains, I enjoyed this one more than the Dolly Sods simile.
Judge Ryan continued the metaphor, writing in her concurrence: "In my view the facts presented by this case are at the very banks of the legal shore envisioned by the language and purpose of Military Rule of Evidence 803(4) as it has evolved through case law." Emphasizing the standard of review, Judge Ryan also noted that she would have upheld the military judge regardless of whether he held that the statements did or did not fall within the medical diagnosis or treatment hearsay exception.
Judge Stucky separately concurred in the result. While noting that his views were similar to those of the majority, he wrote separately to state, "I do not understand the majority opinion to require military judges, in cases like this one, to engage in a particularized analysis of the reliability of hearsay statements."