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The military judge citing M.R.E. 804(b)(6) in light of Giles v. California, 554 U.S. 353, 367 (2008), ruled that the Government had failed to demonstrate that Appellant acted on the day of Mrs. Becker’s death “in order to prevent Mrs. Becker’s testimony.” The military judge noted that “by October 9th, 2015, there were no active... and no anticipated investigations” of Appellant regarding Mrs. Becker’s earlier allegations of Appellant’s physical and emotional abuse. Further, “although Mrs. Becker raised the 2013 incident with friends and family on several occasions, she never expressed any disappointment that the original investigation had closed or a desire to see the accused further investigated.” He ultimately agreed with the defense and concluded that it was not “reasonably foreseeable” that Appellant would be investigated regarding Mrs. Becker’s prior allegations against him or that Appellant might face charges based on those allegations, such that Mrs. Becker might be required to testify against him....A key consideration for the military judge was that the accused was not under any active investigation, nor was there any indication that he would be investigated in the future. Mrs. Becker had recanted her previous allegations against Appellant and had not displayed any signs of wanting to initiate another investigation. The military judge stated that he found it “wholly speculative that an investigation, including one in which Mrs. Becker might make testimonial statements, would culminate in the bringing of charges.” In the military judge’s analysis, this was a key factor considering the lack of direct evidence of the Appellant’s intent regarding Mrs. Becker on October 8, 2015.
Finally, as noted earlier, we directly review the military judge’s findings for an abuse of discretion. That said, we disagree with the lower court’s decision to disregard the military judge’s analysis and conduct a Giles analysis on a particular set of facts determined to be important to the lower court. On an Article 62, UCMJ, appeal, the lower court is not authorized to make factual determinations to support a simple difference of opinion between it and the military judge.
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