NMCCA's Abdirahman decision finds reversible cumulative error

In NMCCA's en banc decision in United States v. Abdirahman, __ M.J. ___, No. NMCCA 200401082 (N-M. Ct. Crim. App. May 19, 2008) (en banc), Chief Judge O'Toole wrote the majority opinion. The court split 7-2 in holding that the evidence was factually sufficient to support a rape conviction. Senior Judge Geiser and Judge Kelly dissented, essentially arguing that the prosecutrix's testimony is too "unpersuasive and inconsistent" with other evidence to provide proof beyond a reasonable doubt of Seaman Recruit Abdirahman's guilt.

But the court ruled 9-0 that the conviction and sentence must be set aside due to the little-used principle of cumulative error. First, NMCCA held that the military judge erred by allowing a nurse practitioner to provide opinion testimony that the prosecutrix's physical and and emotional conditions were common compared to other rape victims. This was expert testimony, NMCCA ruled, and the prosecution hadn't provided the defense with the required notice to present expert testimony. Nor did the prosecution lay an adequate foundation for the nurse practitioner's expertise or the reliability of her opinion, NMCCA ruled. NMCCA also held that the military judge erred by failing to instruct the members concerning the proper use of this expert opinion testimony.

The court then held that the military judge erroneously admitted some statements that the prosecutrix made to her friends more than 30 minutes after the alleged rape under an excited utterance theory. The court also held that these statements weren't admissible under the residual hearsay exception.

The court also found improper bolstering of the prosecutrix's credibility and improper argument by the trial counsel. While it didn't find that either of these errors rose to the plain error level, it nevertheless considered them in making its cumulative error ruling.

The court reasoned that while "none of the assignments of error raised by the appellant, or otherwise considered by this court, constitute reversible error individually, we find that the accumulation of errors . . . require us to evaluate the fairness of the appellant's trial using the cumulative-error doctrine." Id., slip op. at 17. The court ultimately held, "[W]e cannot conclude with fair assurance that the cumulative impact of the errors in this case, which preserved and enhanced the stature of the Government's central witness, did not substantially affect the judgment in the appellant's trial. We must, therefore, vacate the findings." Id., slip op. at 19 (internal citations omitted).

Finally, even though the en banc reconsideration decision came more than 4-1/2 years after the trial, NMCCA rejected a post-trial delay challenge. The court held that SR Abdirahman wasn't prejudiced by the delay and chose not to exercise its discretion to provide relief even absent prejudice.