United States v. Halter ( 2022 )


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  •             U NITED S TATES AIR F ORCE
    C OURT OF C RIMINAL APPEALS
    ________________________
    No. ACM S32666 (f rev)
    ________________________
    UNITED STATES
    Appellee
    v.
    Gregory A. HALTER, Jr.
    Senior Airman (E-4), U.S. Air Force, Appellant
    ________________________
    Appeal from the United States Air Force Trial Judiciary
    Upon Further Review
    Decided 4 May 2022
    ________________________
    Military Judge: Thomas J. Alford; Dayle P. Percle (remand).
    Sentence: Sentence adjudged on 18 May 2020 by SpCM convened at
    Sheppard Air Force Base, Texas. Sentence entered by military judge on
    4 June 2020, and reentered on 2 March 2022: Bad-conduct discharge,
    confinement for 6 months, reduction to E-1, and a reprimand.
    For Appellant: Major Jenna M. Arroyo, USAF.
    For Appellee: Lieutenant Colonel Matthew J. Neil, USAF; Major Allison
    R. Gish, USAF; Mary Ellen Payne, Esquire.
    Before KEY, ANNEXSTAD, and MEGINLEY, Appellate Military
    Judges.
    Judge ANNEXSTAD delivered the opinion of the court, in which Senior
    Judge KEY and Judge MEGINLEY joined.
    ________________________
    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 30.4.
    ________________________
    ANNEXSTAD, Judge:
    United States v. Halter, No. ACM S32666 (f rev)
    A special court-martial consisting of a military judge convicted Appellant,
    in accordance with his pleas and pursuant to a plea agreement, of one specifi-
    cation of assault consummated by a battery, in violation of Article 128, Uni-
    form Code of Military Justice (UCMJ), 
    10 U.S.C. § 928
    , Manual for Courts-
    Martial, United States (2016 ed.) (2016 MCM); and one specification of reckless
    endangerment, two specifications of assault upon an intimate partner, and an
    additional specification of assault consummated by a battery, in violation of
    Articles 114, 128b, and 128, UCMJ, 
    10 U.S.C. §§ 914
    , 928b, 928, Manual for
    Courts-Martial, United States (2019 ed.). 1,2 The military judge sentenced Ap-
    pellant to a bad-conduct discharge, confinement for six months, reduction to
    the grade of E-1, and a reprimand. 3
    Appellant’s case is before this court a second time. Appellant initially raised
    six assignments of error. One assignment of error asserted that Appellant was
    entitled to appropriate relief because he was not timely served with the victim’s
    submission of matters—or provided an opportunity to rebut the same—in ac-
    cordance with Rules for Courts-Martial (R.C.M.) 1106A and 1106(d)(3), prior
    to the convening authority signing the Decision on Action memorandum in Ap-
    pellant’s case. Another assignment of error asserted that the convening au-
    thority erred by not taking action on Appellant’s sentence, as required by Ex-
    ecutive Order 13,825, § 6(b), 
    83 Fed. Reg. 9889
    , 9890 (
    8 Mar. 2018
    ), and Article
    60, UCMJ, 
    10 U.S.C. § 860
     (2016 MCM). See United States v. Brubaker-Esco-
    bar, 
    81 M.J. 471
    , 472 (C.A.A.F. 2021) (per curiam). In an earlier opinion, this
    court agreed with Appellant on these two assignments of error and remanded
    the case to the Chief Trial Judge, Air Force Trial Judiciary, for new post-trial
    processing and corrective action. See United States v. Halter, No. ACM S32666,
    
    2022 CCA LEXIS 9
    , at *10 (A.F. Ct. Crim. App. 6 Jan. 2022) (unpub. op.). At
    the same time, this court deferred addressing Appellant’s other assignments
    of error until the record was returned for completion of this court’s Article
    66(d), UCMJ, 
    10 U.S.C. § 866
    (d), review. 
    Id.
    Following this court’s remand, new post-trial processing was completed. On
    23 February 2022, the convening authority signed a new Decision on Action
    1 Unless otherwise noted, all other references to the UCMJ and the Rules for Courts-
    Martial (R.C.M.) are to the Manual for Courts-Martial, United States (2019 ed.) (2019
    MCM).
    2 Pursuant to the plea agreement, the convening authority agreed to withdraw and
    dismiss with prejudice after arraignment one specification of abusive sexual contact in
    violation of Article 120, UCMJ, 
    10 U.S.C. § 920
     (2019 MCM).
    3 The plea agreement required that any sentence to confinement for each offense would
    not exceed six months and that all periods of confinement would be served concur-
    rently.
    2
    United States v. Halter, No. ACM S32666 (f rev)
    memorandum, taking no action on the findings and approving Appellant’s sen-
    tence as adjudged. On 2 March 2022, the military judge signed a new entry of
    judgment (EoJ). Twenty-two days later, on 24 March 2022, Appellant submit-
    ted a supplemental brief to this court, resubmitting his case on its merits with
    no additional assignments of error, but “specifically preserv[ing] and main-
    tain[ing]” the issues raised in his initial brief. We find that the new post-trial
    processing—to include the production of a new Decision on Action memoran-
    dum and corrected EoJ—remedies the errors identified in this court’s earlier
    opinion, and that no additional corrections or modifications are necessary.
    We now turn our attention to Appellant’s remaining four assignment of er-
    ror which we have reordered and reworded: (1) whether the military judge
    erred by allowing a named victim to present improper victim impact infor-
    mation in the victim’s unsworn statement; (2) whether trial counsel committed
    prosecutorial misconduct during her sentencing argument by arguing that Ap-
    pellant should be sentenced based on an uncharged offense; (3) whether the
    military judge abused his discretion by admitting Appellant’s letter of repri-
    mand during presentencing; and (4) whether Appellant’s sentence is inappro-
    priately severe. 4 We have carefully considered assignment of error (3) and de-
    termine that it does not warrant discussion or relief. See United States v. Ma-
    tias, 
    25 M.J. 356
    , 361 (C.M.A. 1987).
    Finding no further error materially prejudicial to Appellant’s substantial
    rights, we affirm the findings and sentence.
    I. BACKGROUND
    Appellant joined the United States Air Force on 1 October 2013, and at the
    time of his court-martial, was stationed at Sheppard Air Force Base (AFB),
    Texas. Prior to his assignment at Sheppard AFB, Appellant was stationed at
    Joint Base McGuire-Dix-Lakehurst (JBMDL), New Jersey. The offenses to
    which Appellant pleaded guilty stemmed from his violent conduct toward two
    intimate partners. The offenses occurred in February 2016, with respect to one
    victim, and December 2019 through February 2020, with respect to the other.
    The information provided in the stipulation of fact and in Appellant’s provi-
    dence inquiry form the basis for the following factual background.
    Appellant met NM in 2015, while assigned to JBMDL. The two began da-
    ting in November 2015 and the relationship continued until approximately
    March 2016. Towards the end of their relationship, the couple began to have
    4 This issue was personally raised by Appellant pursuant to United States v. Grostefon,
    
    12 M.J. 431
     (C.M.A. 1982).
    3
    United States v. Halter, No. ACM S32666 (f rev)
    problems and frequently argued. Sometime in February 2016, the couple en-
    gaged in an argument and NM attempted to leave Appellant’s residence. Ap-
    pellant stopped her by closing the door and putting his body in front of the
    doorway. Appellant then put his hand around NM’s neck and squeezed it, pin-
    ning her against a nearby cabinet. He strangled her for approximately five sec-
    onds, to the point where NM had difficulty breathing and became light-headed.
    NM kicked and pushed Appellant in order to get him to release her. Appellant
    then moved behind her and held her back to his chest. He then placed his hand
    over her mouth to keep her from screaming. Shortly thereafter, NM ended the
    relationship.
    After his assignment at JBMDL, Appellant moved to Sheppard AFB and
    eventually met LV. The two dated for approximately three months, from De-
    cember 2019 until February 2020.
    On or about 19 December 2019, Appellant, LV, and LV’s roommate were at
    LV’s apartment in Wichita Falls, Texas. The three were playing a drinking
    game, and Appellant consumed an entire bottle of rum despite the other two
    urging Appellant to slow down. Appellant then grabbed LV through the cloth-
    ing on her inner thigh and buttocks, even after LV repeatedly pushed Appel-
    lant’s hand away, said “no,” and told Appellant to stop.
    In early February 2020, Appellant and LV were driving to a store. Appel-
    lant was angry with LV because she had not taken his advice concerning an
    issue with her dog. On the way home from the store, Appellant instructed LV
    to pull the car over because he wanted to talk to her. When LV refused, Appel-
    lant pulled the steering wheel and directed the car into another lane of oncom-
    ing traffic. LV was able to regain control of the car and avoided an accident.
    Later that month, Appellant was visiting with LV in her apartment. LV
    was lying on the bed with Appellant, completing her schoolwork on her phone.
    Appellant and LV engaged in an argument regarding Appellant’s belief that
    LV was spending too much time on her schoolwork. Eventually, LV attempted
    to leave the room to get away from Appellant, and he followed her into the
    bathroom. Appellant then pushed LV, punched her in the face, poked her in
    the eye and in her mouth, and used his hands to strangle LV until she was
    dizzy and lightheaded. LV then repeatedly asked Appellant to leave and even-
    tually was able to alert her roommate, who called 911. The situation continued
    until local police arrived and arrested Appellant.
    II. DISCUSSION
    A. Victim’s Unsworn Statement
    Appellant contends that the MJ erred when he allowed LV to discuss an
    uncharged offense in her unsworn statement to the military judge. Specifically,
    4
    United States v. Halter, No. ACM S32666 (f rev)
    Appellant argues that LV’s unsworn statement was focused on threatening
    comments he made to her after the last incident that were not charged, and
    additionally, that the threatening comments were not tied to the offenses to
    which Appellant pleaded guilty. To remedy the error, Appellant asks that we
    set aside his bad-conduct discharge. We disagree; we find that the military
    judge did not commit plain error in admitting the statement and that no relief
    is warranted.
    1. Additional Background
    During presentencing proceedings, LV delivered oral and written unsworn
    statements to the military judge, which were substantially the same. LV ex-
    plained that she had to leave the city where she lived for her own safety after
    the assaults, telling the military judge:
    I left Wichita Falls for my own safety. After he had assaulted
    me, I told him I did not want to be with him anymore. We had a
    back-and-forth of me saying I did not want to be with him and
    him saying that our relationship was not over. He told me that
    he would harass me at school, work, and at my home. He told me
    he knows what my car looks like and that he would destroy it.
    He told me he knows where I work and what my school schedule
    looks like so he would come find me. I was terrified of him be-
    cause of the assault, so I left.
    LV also explained:
    [Appellant]’s crimes absolutely impacted me financially. Be-
    cause of his crimes, I had to quit my job and consequently lost
    my main source of income. Now I have to rely on savings and the
    kindness of my family. Thankfully, the college I now attend is
    giving out grants because of the coronavirus, but it is not enough
    to help me long-term. Before [Appellant], I had independence
    and a stable job with a stable source of revenue, but because he
    selfishly wanted to keep control of me, I lost it all.
    LV further explained the physical and emotional pain she experienced be-
    cause of Appellant’s crimes. For example, she described how seeing the mark
    on her face for the first time brought her to tears. She also explained that the
    emotional pain was compounded by the physical pain because when she cried,
    she felt pain in her throat from internal bruising. A written version of LV’s
    unsworn statement was subsequently admitted as a court exhibit. Trial de-
    fense counsel did not object to the victim impact statement when LV delivered
    it in court or when it was later admitted as a court exhibit.
    5
    United States v. Halter, No. ACM S32666 (f rev)
    2. Law
    Article 6b(a)(4)(B), UCMJ, grants victims of offenses under the UCMJ the
    right to be reasonably heard at a sentencing hearing related to the offense. 10
    U.S.C. § 806b(a)(4)(B). A victim covered by this right is one “who has suffered
    direct physical, emotional, or pecuniary harm as a result of the commission of
    an offense under [the UCMJ].” Article 6b(b), UCMJ, 10 U.S.C. § 806b(b).
    Under R.C.M. 1001, victims in non-capital cases may exercise their right to
    be reasonably heard through sworn or unsworn statements. R.C.M. 1001(c)(4)–
    (5). Unsworn statements may be oral, written, or both. R.C.M. 1001(c)(5)(A).
    Statements offered under R.C.M. 1001(c) “may only include victim impact and
    matters in mitigation.” R.C.M. 1001(c)(3). Victim impact under R.C.M. 1001
    includes “any financial, social, psychological, or medical impact on the crime
    victim directly relating to or arising from the offense of which the accused has
    been found guilty.” R.C.M. 1001(c)(2)(B).
    Interpreting R.C.M. 1001(c) 5 “is a question of law, which we review de
    novo.” United States v. Barker, 
    77 M.J. 377
    , 382 (C.A.A.F. 2018) (citation omit-
    ted).
    R.C.M. 1001(c) “belongs to the victim, and is separate and distinct from the
    government’s right to offer victim impact statements in aggravation under
    R.C.M. 1001(b)(4).” United States v. Tyler, 
    81 M.J. 108
    , 111 (C.A.A.F. 2021)
    (quoting Barker, 77 M.J. at 378). “[U]nsworn victim statements are not made
    under oath, and are thus not evidence.” Id. at 112. “Although the unsworn vic-
    tim statement is not subject to the Military Rules of Evidence, this does not
    mean that the military judge is powerless to restrict its contents.” Id. “[T]he
    military judge has an obligation to ensure the content of a victim’s unsworn
    statement comports with the parameters of victim impact or mitigation as de-
    fined by [R.C.M. 1001(c)].” Id. (citation omitted).
    “While the military judge is the gatekeeper for unsworn victim statements,
    an accused nonetheless has a duty to state the specific ground for objection in
    order to preserve a claim of error on appeal.” Id. at 113. In the absence of an
    objection at trial, we review claims of erroneous consideration of a victim un-
    sworn statement for plain error. Under that standard, an appellant must show
    “(1) there was an error; (2) it was plain or obvious; and (3) the error materially
    5 Previously, guidance regarding a victim’s right to be reasonably heard in presentenc-
    ing proceedings were contained in R.C.M. 1001A (Manual for Courts-Martial, United
    States (2016 ed.)); thus, cases tried before 1 January 2019 cited that rule. However,
    that guidance is now contained in R.C.M. 1001(c) (2019 MCM). See 2019 MCM, App.
    15, at A15-18 (“R.C.M. 1001(c) is new and incorporates R.C.M. 1001A of the MCM
    (2016 edition).”).
    6
    United States v. Halter, No. ACM S32666 (f rev)
    prejudiced a substantial right.” United States v. Erickson, 
    65 M.J. 221
    , 223
    (C.A.A.F. 2007) (internal quotation marks and citations omitted). “As all three
    prongs must be satisfied in order to find plain error, the failure to establish
    any one of the prongs is fatal to a plain error claim.” United States v. Bungert,
    
    62 M.J. 346
    , 348 (C.A.A.F. 2006).
    “When the issue of plain error involves a judge-alone trial, an appellant
    faces a particularly high hurdle.” United States v. Hays, 
    62 M.J. 158
    , 166
    (C.A.A.F. 2005) (quoting United States v. Robbins, 
    52 M.J. 455
    , 457 (C.A.A.F.
    2000)). This is because a “military judge is presumed to know the law and apply
    it correctly, [and] is presumed capable of filtering out inadmissible evidence
    . . . .” Robbins, 
    52 M.J. at 457
     (citation omitted). Therefore, “plain error before
    a military judge sitting alone is rare indeed.” 
    Id.
     (quoting United States v.
    Raya, 
    45 M.J. 251
    , 253 (C.A.A.F. 1996)).
    When there is error regarding the presentation of victim statements under
    R.C.M. 1001(c), “the test for prejudice ‘is whether the error substantially influ-
    enced the adjudged sentence.’” Barker, 77 M.J. at 384 (quoting United States
    v. Sanders, 
    67 M.J. 344
    , 346 (C.A.A.F. 2009)). This is determined by evaluating
    the relative strength of the parties’ cases along with the materiality and qual-
    ity of the evidence in question. 
    Id.
     (citation omitted). “An error is more likely
    to be prejudicial if the fact was not already obvious from the other evidence
    presented at trial and would have provided new ammunition against an appel-
    lant.” 
    Id.
     (citation omitted).
    3. Analysis
    As noted above, Appellant did not object to LV’s unsworn statement when
    she delivered it during presentencing or later when it was admitted as a court
    exhibit. Therefore, we review the issue for plain error. Applying the plain lan-
    guage of R.C.M. 1001(c)(2)(B)—which defines victim impact as “any financial,
    social, psychological, or medical impact on the crime victim directly relating to
    or arising from the offense of which the accused has been found guilty”—we
    find Appellant has not met his burden to show plain error.
    We have evaluated Appellant’s claim that LV’s unsworn statement in-
    cluded comments she attributed as threats he directed at her after the charged
    conduct. LV’s unsworn statement did not contain the word “threat,” nor did
    she at any point ask the military judge to punish Appellant for threating her.
    LV described to the military judge the multiple effects she felt because of Ap-
    pellant’s crimes. Specifically, she described how she continued to experience
    fear, how she became more cautious of who she spent time with, how vulnera-
    ble she felt, how she felt controlled by Appellant even when she just wanted to
    do her schoolwork, how he controlled many aspects of her life, and how his
    assaults were jarring to her because he “went for [her] face.” She also explained
    7
    United States v. Halter, No. ACM S32666 (f rev)
    the direct physical pain the assaults caused, and the emotional, psychological
    and financial fall-out that she experienced post-assault. Part of the social and
    psychological pain included Appellant’s behavior towards her in the days im-
    mediately following the assaults. As a direct result of the assaults, LV tried to
    end her relationship with Appellant, who responded by continuing his control-
    ling behavior towards her and prolonging her psychological harm. Therefore,
    we find that the victim’s description of the impact in this case was closely re-
    lated to the charged offenses, and thus was proper victim impact material, as
    it pertained to the psychological impact she experienced following the assault.
    Appellant argues on appeal that the military judge should have required
    redactions to LV’s written statement and should have indicated which portions
    of the victim impact statement he would not consider. However, it is worth
    stating again that we find LV’s unsworn statement permissible, and even if we
    were to find that the unsworn statement exceeded the bounds of what was per-
    missible, we do not find any prejudice. This was a military judge-alone trial
    and “[a]s the sentencing authority, a military judge is presumed to know the
    law and apply it correctly absent clear evidence to the contrary.” United States
    v. Bridges, 
    66 M.J. 246
    , 248 (C.A.A.F. 2008) (citing Erickson, 65 M.J. at 225).
    Furthermore, military judges are not required to delineate word for word
    which portions of the victim impact statements they intend to consider. See
    United States v. Simon, No. ACM S32569, 
    2020 CCA LEXIS 281
    , at *12 (A.F.
    Ct. Crim. App. 19 Aug. 2020) (unpub. op.). Here, we conclude that Appellant
    has not demonstrated that the military judge committed plain error, or that he
    suffered any prejudice.
    B. Improper Argument
    Appellant next contends that trial counsel erred when she argued Appel-
    lant should be sentenced for a crime that he was neither charged with nor con-
    victed of committing. Specifically, Appellant contends that trial counsel erred
    when she argued that Appellant should be sentenced because Appellant “com-
    municated a threat” to LV. Appellant again asks this court to remedy this error
    by setting aside his bad-conduct discharge. We are not persuaded by Appel-
    lant’s arguments and find no relief is warranted.
    1. Additional Background
    Trial counsel’s sentencing argument spanned six transcript pages and fo-
    cused on Appellant’s recklessness, control, and violent actions. Trial counsel
    argued that Appellant, over the course of his short relationships with both NM
    and LV, violently “lashe[d] out” with “extreme aggression” whenever they
    would not submit to his demands. Trial counsel then covered the facts of the
    various incidents as portrayed in the stipulation of fact. Trial counsel asked
    8
    United States v. Halter, No. ACM S32666 (f rev)
    the military judge to sentence Appellant to a “reduction in grade to E-1, 6
    months’ confinement, and a bad-conduct discharge.”
    Trial counsel then argued:
    [LV] stood before you today and told you that although the phys-
    ical pain from her assault diminished that she still suffered ex-
    treme emotional trauma. She was forced to leave her life in
    Wichita Falls because [Appellant] was making threats against
    her, and she feared for her own safety. She lost her job, she lost
    her friends, she lost her school, and most importantly she lost
    her sense of security. And why? Because that day she chose to
    focus on her schoolwork as opposed to showering [Appellant]
    with the undivided attention that he required at the exact mo-
    ment that he required it.
    At the close of trial counsel’s argument, she discussed the need for the sen-
    tence to protect society from Appellant. She stated that “6 months’ confinement
    is the most appropriate punishment when considering the protection of society,
    especially given the threats that were made here. It would provide the victims
    with a sense of psychological well-being to know that [Appellant] can’t cause
    any more harm while he’s in jail.”
    Trial defense counsel did not object during trial counsel’s sentencing argu-
    ment. However, trial defense counsel did address trial counsel’s comments re-
    garding the victim impact statement during his own sentencing argument.
    Specifically, trial defense counsel challenged the legitimacy of LV’s post-as-
    sault safety concerns, arguing: “[Appellant] was also placed in pretrial confine-
    ment the night that he was arrested after the assault that leads us here today.
    He’s been in pretrial confinement since that night. She knew that.”
    2. Law
    The issue of “[i]mproper argument is a question of law that we review de
    novo.” United States v. Marsh, 
    70 M.J. 101
    , 104 (C.A.A.F. 2011) (citation omit-
    ted). However, if the defense does not object to a sentencing argument by trial
    counsel, we review the issue for plain error. 
    Id.
     (citing Erickson, 65 M.J. at
    223). To establish plain error, an appellant “must prove the existence of error,
    that the error was plain or obvious, and that the error resulted in material
    prejudice to a substantial right.” Id. at 106 (citing Erickson, 65 M.J. at 223).
    Again, because “all three prongs must be satisfied in order to find plain error,
    the failure to establish any one of the prongs is fatal to a plain error claim.”
    Bungert, 62 M.J. at 348.
    “The legal test for improper argument is whether the argument was erro-
    neous and whether it materially prejudiced the substantial rights of the ac-
    cused.” United States v. Frey, 
    73 M.J. 245
    , 248 (C.A.A.F. 2014) (quoting United
    9
    United States v. Halter, No. ACM S32666 (f rev)
    States v. Baer, 
    53 M.J. 235
    , 237 (C.A.A.F. 2000)). Three factors guide our de-
    termination of the prejudicial effect of improper argument: “(1) the severity of
    the misconduct, (2) the measures adopted to cure the misconduct, and (3) the
    weight of the evidence supporting the conviction[s].” United States v. Sewell,
    
    76 M.J. 14
    , 18 (C.A.A.F. 2017) (alteration in original) (quoting United States v.
    Fletcher, 
    62 M.J. 175
    , 184 (C.A.A.F. 2005)). “In applying the Fletcher factors in
    the context of an allegedly improper sentencing argument, we consider
    whether trial counsel’s comments, taken as a whole, were so damaging that we
    cannot be confident that the appellant was sentenced on the basis of the evi-
    dence alone.” United States v. Halpin, 
    71 M.J. 477
    , 480 (C.A.A.F. 2013) (alter-
    ation, internal quotation marks, and citation omitted).
    “Trial counsel is entitled to argue the evidence of record, as well as all rea-
    sonable inferences fairly derived from such evidence.” Frey, 73 M.J. at 248 (in-
    ternal quotation marks and citation omitted). “[E]ither party may comment on
    properly admitted unsworn victim statements” during presentencing argu-
    ment. Tyler, 81 M.J. at 113.
    “During sentencing argument, the trial counsel is at liberty to strike hard,
    but not foul, blows.” Halpin, 71 M.J. at 479 (internal quotation marks and ci-
    tation omitted). “[T]he argument by a trial counsel must be viewed within the
    context of the entire court-martial.” Baer, 53 M.J. at 238. “The focus of our
    inquiry should not be on words in isolation, but on the argument as viewed in
    context.” Id. (internal quotation marks and citations omitted).
    “In a military judge alone case we would normally presume that the mili-
    tary judge would disregard any improper comments by counsel during argu-
    ment and such comments would have no effect on determining an appropriate
    sentence.” United States v. Waldrup, 
    30 M.J. 1126
    , 1132 (N.M.C.M.R. 1989).
    3. Analysis
    Because there was no objection during trial counsel’s argument, we analyze
    this issue under a plain error standard of review. We conclude that Appellant
    has failed to establish plain or obvious error. Even if we were to assume such
    error, Appellant has not shown how he suffered material prejudice.
    We begin our analysis by noting that our superior court has made clear that
    counsel may argue reasonable inferences from matters contained in victim im-
    pact statements. See Tyler, 81 M.J. at 112 (“If unsworn victim impact state-
    ments are part of the evidence of record, they can be commented on by counsel
    in presenting argument.”). In this case, trial counsel’s argument twice referred
    to the threats that Appellant made to LV following the assault.
    Trial counsel’s first mention of threats during her argument was tied to
    LV’s lack of a sense for her own safety following the assaults. LV’s victim im-
    pact statement not only informed the trial court that she feared for her safety
    10
    United States v. Halter, No. ACM S32666 (f rev)
    because she “was terrified of [Appellant] because of the [physical] assault,” but
    also because Appellant tried to control her after the assault by making threats
    of more violence. The second and final time trial counsel referenced the threats
    in her argument, it pertained to one of the three justifications used to support
    her sentence recommendation of six months’ confinement. Specifically, trial
    counsel generally referenced the threats and discussed the victim’s mental
    well-being and how a sentence to confinement would affect that well-being. We
    find that trial counsel’s argument contained reasonable inferences from mat-
    ters contained in the victim impact statement. The circumstances following the
    assaults, including Appellant’s statements used to control LV, were already
    before the military judge, as they were part of LV’s unsworn victim statement.
    As we have noted above, this was permissible victim impact information and
    was properly before the court. We therefore conclude Appellant has not demon-
    strated any error in trial counsel’s argument, let alone plain or obvious error.
    However, even if we were to assume that Appellant could demonstrate clear
    or obvious error, he has failed to demonstrate any material prejudice or that
    the error substantially influenced his adjudged sentence. See Barker, 77 M.J.
    at 384. The first Fletcher factor considers the severity of the misconduct. 62
    M.J. at 184. On this matter, we note that the “lack of a defense objection is
    some measure of the minimal impact of a prosecutor’s improper argument.”
    See United States v. Gilley, 
    56 M.J. 113
    , 123 (C.A.A.F. 2001) (internal quotation
    marks and citation omitted). Trial counsel only referenced Appellant’s
    “threats” on two brief occasions in an argument that focused on Appellant’s
    aggression, violence, and control, and spanned six pages of printed record.
    Therefore we would find that the comments were minor and relatively insig-
    nificant and do not amount to misconduct.
    The second Fletcher factor, the curative measures taken, 62 M.J. at 184,
    also weighs in the Government’s favor. Here, no curative instruction was nec-
    essary because it was a judge-alone forum, and military judges are presumed
    to know and follow the law, absent clear evidence to the contrary. See United
    States v. Mason, 
    45 M.J. 483
    , 484 (C.A.A.F. 1997) (citation omitted). We also
    assume when analyzing allegations of improper sentencing argument in a
    judge-alone forum that a military judge “is able to distinguish between proper
    and improper sentencing arguments.” Erickson, 65 M.J. at 225. Appellant has
    presented no evidence that the military judge in this case was unable to dis-
    tinguish between proper and improper sentencing argument. Moreover, we
    find that trial defense counsel’s own sentencing argument adequately re-
    sponded to trial counsel’s argument involving the victim impact statement.
    Specifically, trial defense counsel highlighted that Appellant was not a contin-
    ued threat to LV because he had been in pretrial confinement since the night
    11
    United States v. Halter, No. ACM S32666 (f rev)
    he was arrested at LV’s apartment. We find that trial defense counsel’s argu-
    ment adequately challenged and neutralized any potential improper argument
    by trial counsel.
    As to the third Fletcher factor, the weight of the evidence supporting the
    sentence, 62 M.J. at 184, we find this factor also weighs in the Government’s
    favor. The evidence in this case was strong and uncontested. It primarily came
    from Appellant’s own admissions to the military judge during his guilty plea
    inquiry and the stipulation of fact. We find the facts and circumstances high-
    lighted in these documents provide substantial justification to support the sen-
    tence, irrespective of trial counsel’s argument. On appeal, Appellant focuses on
    LV’s victim impact statement, but she was not the only victim. Appellant stran-
    gled two different intimate partners. He explained to the military judge in de-
    tail how he used his hands to put pressure on their necks until they were dizzy
    and light-headed. We conclude that the weight of the evidence supports the
    adjudged sentence.
    In conclusion, we find that Appellant has failed to meet his burden to
    demonstrate plain error, and after considering trial counsel’s comments as a
    whole, we are confident that Appellant was sentenced based on the evidence
    alone. See Halpin, 71 M.J. at 480.
    C. Sentence Appropriateness
    Appellant contends that his sentence was inappropriately severe given the
    facts of the charged offenses, and the matters in mitigation and extenuation.
    Appellant asks us to reduce his sentence. We are not persuaded by Appellant’s
    contentions and find his sentence appropriate.
    1. Additional Background
    During the presentencing hearing, Appellant presented matters in extenu-
    ation and mitigation. This evidence included testimony from Appellant’s fa-
    ther, who explained to the military judge that Appellant’s mother struggled
    with mental health issues and was often verbally and physical abusive to Ap-
    pellant when Appellant was a child. Appellant’s father further described that
    the abuse Appellant suffered has continued to impact Appellant’s behavior in
    a negative way. Appellant also provided an unsworn statement, where he ac-
    cepted responsibility for his actions, expressed remorse for his crimes, and
    apologized to both NM and LV. Appellant also discussed his upbringing and
    his own mental health struggles, and described for the military judge how
    those things continued to affect Appellant’s interactions with those close to
    him.
    12
    United States v. Halter, No. ACM S32666 (f rev)
    2. Law
    “We review sentence appropriateness de novo.” United States v. Datavs, 
    70 M.J. 595
    , 604 (A.F. Ct. Crim. App. 2011) (citing United States v. Baier, 
    60 M.J. 382
    , 383–84 (C.A.A.F. 2005)), aff’d, 
    71 M.J. 420
     (C.A.A.F. 2012). “We assess
    sentence appropriateness by considering the particular appellant, the nature
    and seriousness of the offense[s], the appellant’s record of service, and all mat-
    ters contained in the record of trial.” United States v. Anderson, 
    67 M.J. 703
    ,
    705 (A.F. Ct. Crim. App. 2009) (per curiam) (citations omitted). While we have
    great discretion in determining whether a sentence is appropriate, we are not
    authorized to engage in exercises of clemency. United States v. Nerad, 
    69 M.J. 138
    , 146 (C.A.A.F. 2010).
    3. Analysis
    We have conducted a thorough review of Appellant’s entire court-martial
    record, including his unsworn statement, enlisted performance reports, the
    testimony of the defense sentencing witness, and the materials submitted by
    Appellant during sentencing and in clemency. We conclude that the nature and
    seriousness of the offenses clearly support the approved sentence. Here, Appel-
    lant strangled two women with whom he was intimately involved. He used
    enough force and violence to make both victims dizzy and light-headed. Appel-
    lant admitted to escalating minor verbal disagreements into violent physical
    assaults on separate occasions, in addition to the other offenses to which he
    pleaded guilty. His criminal behavior, moreover, showed a gross disregard to-
    wards his victims, and at least one of his victims was still struggling with the
    effects of Appellant’s criminal actions at the time of Appellant’s court-martial.
    We further find that Appellant’s arguments and analysis on appeal are similar
    to the matters he provided to the convening authority in pursuit of post-sen-
    tencing relief. “While these matters are appropriate considerations during
    clemency, they do not show [Appellant]’s sentence is inappropriately severe.”
    United States v. Aguilar, 
    70 M.J. 563
    , 567 (A.F. Ct. Crim. App. 2011). We find
    Appellant’s recitation of these prior arguments amounts to another attempt at
    clemency, which is not an authorized function of this court. See Nerad, 69 M.J.
    at 146. Understanding we have a statutory responsibility to affirm only so
    much of the sentence that is correct and should be approved, see Article 66(d),
    UCMJ, 
    10 U.S.C. § 866
    (d), we conclude that the sentence is not inappropriately
    severe.
    III. CONCLUSION
    The findings and sentence as entered are correct in law and fact, and no
    error materially prejudicial to the substantial rights of Appellant occurred. Ar-
    ticles 59(a) and 66(d), UCMJ, 
    10 U.S.C. §§ 859
    (a), 866(d).
    13
    United States v. Halter, No. ACM S32666 (f rev)
    Accordingly, the findings and the sentence are AFFIRMED.
    FOR THE COURT
    CAROL K. JOYCE
    Clerk of the Court
    14
    

Document Info

Docket Number: S32666 (f rev)

Filed Date: 5/4/2022

Precedential Status: Non-Precedential

Modified Date: 5/29/2024