United States v. Albarda ( 2021 )

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 39734
________________________
UNITED STATES
Appellee
v.
Danber S. ALBARDA
Senior Airman (E-4), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 22 February 2021
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Military Judge: W. Shane Cohen.
Approved sentence: Dishonorable discharge, confinement for 6 years,
and reduction to E-1. Sentence adjudged on 8 March 2019 by GCM
convened at Fort George G. Meade, Maryland.
For Appellant: Major Rodrigo M. Caruço, USAF; Major Yolanda D.
Miller, USAF.
For Appellee: Lieutenant Colonel Brian C. Mason, USAF; Lieutenant
Colonel Matthew J. Neil, USAF; Major Jessica L. Delaney, USAF; Mary
Ellen Payne, Esquire.
Before MINK, KEY, and ANNEXSTAD, Appellate Military Judges.
Judge ANNEXSTAD delivered the opinion of the court, in which Senior
Judge MINK and Judge KEY 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This is an unpublished opinion and, as such, does not serve as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. Albarda, No. ACM 39734
Contrary to his pleas, Appellant was convicted by a general court-martial
composed of officer and enlisted members of one charge and three
specifications of assault consummated by a battery with force likely to produce
death or grievous bodily harm upon a child under the age of 16 years, and one
charge and specification of endangering the health of the same child, in
violation of Articles 128 and 134, Uniform Code of Military Justice (UCMJ), 10
U.S.C. §§ 928, 934. 1,2 Appellant was sentenced to a dishonorable discharge,
confinement for six years, forfeiture of all pay and allowances, and reduction
to the grade of E-1. The convening authority disapproved the part of the
sentence extending to the adjudged forfeitures, but approved the remainder of
the adjudged sentence. 3
On appeal, Appellant raises 15 issues before this court: (1) whether trial
counsel committed prosecutorial misconduct during his sentencing argument
by improperly implying that Appellant would reoffend and by urging the panel
not to consider evidence that Appellant introduced as mitigation; (2) whether
the military judge erred in failing to take curative measures after trial
counsel’s sentencing argument; (3) whether Appellant received a fair
sentencing hearing; (4) whether Appellant had equal access to evidence; (5)
whether trial counsel committed prosecutorial misconduct by failing to advise
a potential witness to meet with Appellant’s trial defense counsel; (6) whether
the military judge erred in admitting Appellant’s confession; (7) whether
Appellant was denied the effective assistance of counsel under the Sixth
Amendment 4 due to trial defense counsel’s failure to object to the Government
withdrawing a potential witness as a witness, failure to object to a government
sentencing exhibit, and failure to object to trial counsel’s allegedly overzealous
argument; (8) whether the military judge erred by not recognizing two defense
character letters as expert testimony; (9) whether Appellant’s sentence was
inappropriately severe; (10) whether trial counsel committed prosecutorial
1 References to the Uniform Code of Military Justice and Rules for Courts-Martial are
to the Manual for Courts-Martial, United States (2016 ed.).
2 The members found Appellant guilty of Charge II and its Specification excepting the
words “on divers occasions,” and not guilty of the excepted words. The members also
specified “left leg/femur” with respect to the single injury for which they believed
Appellant failed to obtain proper medical care.
3 The convening authority deferred the adjudged reduction in grade and all adjudged
and mandatory forfeitures of pay and allowances from 25 March 2019 until action. The
convening authority also waived all of the mandatory forfeitures for a period of six
months or release from confinement, whichever was sooner, with the waiver
commencing on 3 July 2019. The total pay and allowances were directed to be paid to
Appellant’s spouse.
4 U.S. CONST. amend. VI.
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misconduct during his sentencing argument by improperly inflaming the
passions of the panel; (11) whether the military judge erred in denying
Appellant’s motion to appoint a forensic pathologist; (12) whether the military
judge was impartial towards Appellant; (13) whether Appellant’s conviction of
Specification 2 of Charge I, assault consummated by a battery, is legally and
factually sufficient; (14) whether Appellant was subjected to illegal pretrial
punishment; and (15) whether the accumulation of assigned errors deprived
Appellant of a fair trial and sentencing proceeding. 5 We also consider two
additional issues: (16) whether Appellant is entitled to relief for a violation of
the 18-month standard for appellate review established in United States v.
Moreno, 63 M.J. 129 (C.A.A.F. 2006); and (17) whether the action and general
court-martial order (CMO) were properly prepared.
With respect to issues (2) through (8) and (11) through (15), we have
carefully considered Appellant’s contentions and find they do not require
further discussion or warrant relief. See United States v. Matias, 25 M.J. 356,
361 (C.M.A. 1987). As discussed below, we also find no relief is warranted for
issues (1), (9), (10) and (16), but find, as to issue (17), that a corrected convening
authority’s action and CMO are required. Finding no other error, we affirm,
but return the record of trial to The Judge Advocate General for remand to the
convening authority to withdraw the incomplete action and substitute a
corrected action and court-martial order.
I. BACKGROUND
Appellant was convicted of physically abusing his nine-month-old biological
daughter, NA. The abuse was first discovered in April 2018 by Dr. EH, a
clinical assistant professor at the University of Maryland and an attending
physician in the University of Maryland pediatric emergency room. Dr. EH had
significant experience treating child abuse cases and was board certified in
pediatrics, pediatric emergency medicine, and medical toxicology. In April
2018, NA was transferred to the University of Maryland pediatric emergency
department from an outside hospital facility with a femur fracture in her left
leg. Dr. EH was working in the emergency room when NA was brought in by
Appellant and his wife. Dr. EH served as the attending physician in the
emergency department for the majority of NA’s treatment in the emergency
department. Dr. EH initially spoke with the family to determine what
happened. NA’s family, including Appellant, had no response for how NA
sustained her injury. After assessing NA and learning that her family could
5 Issues (4) through (15) were raised pursuant to United States v. Grostefon, 12 M.J.
431 (C.M.A. 1982). Since issues (1) and (10) require the same analysis, we consider
them together.
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not provide an innocent explanation for NA’s injuries, Dr. EH suspected child
abuse and determined that more care was needed than just care for the femur
fracture. Because of her suspicions of child abuse, Dr. EH requested that NA
receive a computed tomography (CT) scan of her head to determine whether
there was any evidence of bleeding on the brain that could be the result of
shaken baby syndrome. Dr. EH also had a skeletal survey performed to
determine if there was any evidence of any additional fractures or healing
fractures. As a result of the skeletal survey, Dr. EH was able to determine that
NA had also suffered a tibia fracture of her right leg, which appeared to be
older than the femur fracture in her left leg. A radiologist also reviewed the
skeletal scan and noted a concern about a possible left posterior rib fracture.
The treatment team determined that no treatment was needed for the right
tibia fracture or possible rib fracture. NA’s left leg was placed in a cast. As a
mandatory reporter, Dr. EH reported her suspicions of child abuse to local
police and child protective services (CPS).
The investigation was ultimately forwarded to the Air Force Office of
Special Investigations (AFOSI). At that point, AFOSI had two possible
suspects: Appellant and his wife, KA. Since KA was a civilian, AFOSI did not
have jurisdiction over her, so the agents contacted the Federal Bureau of
Investigation (FBI) to work a joint investigation. Before law enforcement
officers were able to interview Appellant and his wife, CPS finished their case
determination, and NA and her older brother were placed in foster care. During
the case determination with CPS, KA and Appellant were asked to explain the
injuries to NA. Appellant did not say anything, and instead began crying and
went to the bathroom to vomit.
Subsequently, AFOSI learned that Appellant had scheduled a meeting with
the base chaplain, and they coordinated to meet Appellant and KA at the base
chapel. Both voluntarily agreed to interview with law enforcement. During the
two-hour interview, which was audio recorded, Appellant admitted that he
could get “temperamental at times.” Appellant also admitted that it would be
a “great idea” for him to get help with his anger issues. He also stated that on
17 April 2018, he noticed that NA was fussier than normal and that she was
not kicking with both of her legs, which she would normally do. Initially,
Appellant claimed that he thought NA had sustained her broken femur
because he fell asleep while feeding her. Eventually, Appellant admitted that
he had forcefully grabbed his daughter’s lower legs. He described that
sometimes he would get irritated with her, especially when it was late at night
and NA would be kicking at him. He admitted that he would sometimes
deliberately squeeze NA’s legs and that he started doing this in March 2018.
He also admitted that he squeezed his daughter’s chest and ribs a couple of
times to get her to stop crying. Appellant told law enforcement officers that one
of the times he was squeezing NA’s legs that she “kind of got into an awkward
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position and she kind of fell when I was holding onto it.” Appellant further
acknowledged on this occasion that he was squeezing NA’s left leg, and jerked
her up by her leg, to the point where her full body weight was hanging from
her leg. He also admitted that he heard a snap “or something.” Appellant also
confessed that he thought he “felt it crack” and that NA “just started crying”
and “wouldn’t stop” crying. Finally, Appellant admitted that he did not want
to take her to the hospital because he was afraid of his wife finding out what
had happened.
Appellant also spoke to his aunt, VS. She testified that Appellant told her
in April 2018, while he was under investigation for the injuries to NA, that NA
had sustained the broken femur when he held her leg down and she fell, and
that when she fell he picked her up and squeezed her.
At trial Lieutenant Colonel (Lt Col) SM, a pediatrician who specialized in
child abuse cases, testified as an expert witness for the Government. In her
review of the medical documents she noted that NA had an acute spiral
fracture of the left femur, a healing fracture of the right tibia, and possible rib
fractures—particularly of the sixth and seventh ribs. She also explained that
a nine-month-old’s bones would be harder to break than an older child, due to
the amount of cartilage present. Lt Col SM testified that the injuries to NA’s
left leg were consistent with Appellant holding her left leg and jerking her up
with her full body weight “dangling” by her leg. Lt Col SM also testified that
the injuries to NA’s right leg and ribs were consistent with squeezing her right
leg and torso.
II. DISCUSSION
A. Sentencing Argument
Appellant asserts that trial counsel committed prosecutorial misconduct
during his sentencing argument. Specifically, Appellant contends that trial
counsel’s sentencing argument: (1) improperly implied that there was a
likelihood that Appellant would reoffend; (2) improperly urged to the panel not
to consider evidence that Appellant introduced in mitigation and argued
against Appellant’s right to make a sentence recommendation; and (3)
improperly inflamed the passions of the panel when he said, “How dare he use
his family as a shield!” We note at this point, while both briefs reference this
quote, that this statement does not appear anywhere in the record. That said,
trial counsel did argue during sentencing, “[a]nd you can’t break your child’s
bones and then come in here and use your family as a shield to not get the
punishment that you deserve,” and we will consider that statement instead.
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1. Additional Background
During the pre-sentencing phase of Appellant’s court-martial, trial counsel
introduced Appellant’s personal data sheet and enlisted performance reports.
The only other evidence admitted by trial counsel was a photo of NA in the
hospital. There was no victim unsworn statement submitted under Rule for
Courts-Martial (R.C.M.) 1001A on behalf of NA.
Appellant’s counsel introduced a documentary sentencing package that
included six character letters, an autobiography, a family video, and a series
of documents indicating that he had completed parenting and domestic
violence classes. The family video consisted of Appellant sitting on a couch with
his family, talking about how his biggest concern about going to jail was the
impact it was going to have on his family. Appellant also introduced a written
unsworn statement.
In addition to the documentary evidence, Appellant’s stepfather testified
on behalf of Appellant and told the members that a harsh sentence would have
a negative impact on Appellant’s family, saying that, “not only would the
punishment be for [Appellant], the punishment would be more [for] KA and
the children. . . . to leave [KA] and the kids without their dad . . . would be the
worst punishment that could occur to them.” KA also testified and discussed
the positive changes she witnessed in her husband during the pendency of his
trial. During his oral unsworn statement, Appellant told the panel “I do not
want to go to jail” and that jail “would be more of a punishment toward my
family.” The military judge then provided instructions and specifically advised
the members that “the [Appellant] is allowed to make a specific
recommendation with respect to any particular sentence” and that it was
“solely” up to the members to determine an appropriate sentence.
Trial counsel then provided argument, during which trial defense counsel
did not object. Trial defense counsel then argued. Each counsel was permitted
one argument with no rebuttal. Following argument by both counsel, the
military judge issued his final sentencing instructions to the members. The
military judge specifically instructed the members that the arguments of trial
counsel and the trial counsel’s recommendations are only individual
“suggestions and may not be considered as the recommendation or opinion of
anyone other than such counsel.” He reminded members that Appellant may
make a personal request in relation to specific punishments. Finally, the
military judge advised the members that defense counsel was speaking on
behalf of Appellant. Following the final instructions the military judge asked
if there were any objections to the instructions. Trial defense counsel
responded, “No objection.” Trial defense counsel did not raise any issues of
improper argument or prosecutorial misconduct in Appellant’s clemency
submission of 2 July 2019 to the convening authority.
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Appellant’s brief to this court highlights portions of trial counsel’s
sentencing argument that he contends were improper and proof of
prosecutorial misconduct. Appellant contends the following passages in the
argument were improper because they suggested the possibility of Appellant
reoffending:
But five years [of confinement] is a minimum amount necessary.
And why is that? Because what if this happens again? What if
those anger issues are not really those old anger issues [and]
rear their ugly head late at night?
In five years, [NA] will be almost 7. She’ll be able to
communicate. She’ll be able to talk to teachers, to social workers.
She’ll be able to understand what’s going on around her. She’ll
be sleeping through the night. Five years she can communicate
what is happening to her. Because if this happens again, who’s
going to speak for [NA]? [Appellant] didn’t do it. If he gets off
light today, he’s not going to have an incentive to come forward.
...
But the hard truth is that sometimes it’s better to have a father
in confinement when that father is abusive, when the father
causes the injuries that he caused, it’s better to not have a father
in that life—in the family’s life.
...
But even if you think that the risk [of him] doing this again is
zero, and that’s a big if, five years is also an appropriate for—to
rehabilitate [Appellant].
...
That’s why five years confinement as a floor is appropriate to
make sure that this doesn’t happen again. That’s part of your
job: Protection of society, protection of [NA]. Don’t come back
with a sentence [that is] less than five years for [NA]’s sake to
rehabilitate [Appellant] to protect this from happening again.
Appellant also highlights the following argument by trial counsel, which he
argues amounts to trial counsel improperly instructing the panel not to
consider any mitigating evidence offered by Appellant.
But don’t forget that when defense counsel comes up here, that
they are [Appellant’s] mouthpiece and they are going to speak to
you on behalf of him. And you need to ask yourselves, in what
world is it appropriate that you can commit crimes and then
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come in and tell you what sentence you deserve? To do the cost
benefit of your own crimes?
Finally, Appellant contends that trial counsel’s comment during his
sentencing argument concerning Appellant using his family as a shield was
improper because its “only purpose” was to “inflame the passions of the panel
in order to sentence Appellant on emotion, rather than solely on the evidence
before it.”
2. Law
We review claims of prosecutorial misconduct and improper argument de
novo; when no objection is made at trial, the error is forfeited, and we review
for plain error. United States v. Voorhees, 79 M.J. 5, 9 (C.A.A.F. 2019) (citation
omitted). Under the plain error standard, such error occurs “when (1) there is
error, (2) the error is plain or obvious, and (3) the error results in material
prejudice to a substantial right of the accused.” United States v. Fletcher, 62
M.J. 175, 179 (C.A.A.F. 2005) (citation omitted).
“Trial prosecutorial misconduct is behavior by the prosecuting attorney
that ‘oversteps the bounds of that propriety and fairness which should
characterize the conduct of such an officer in the prosecution of a criminal
offense.’” Id. at 178 (quoting Berger v. United States, 295 U.S. 78, 84 (1935)).
“Prosecutorial misconduct can be generally defined as action or inaction by a
prosecutor in violation of some legal norm or standard, e.g., a constitutional
provision, a statute, a Manual rule, or an applicable professional ethics canon.”
United States v. Meek, 44 M.J. 1, 5 (C.A.A.F. 1996) (citing Berger, 295 U.S. at
88) (additional citation omitted).
In presenting argument, trial counsel may “argue the evidence of record,
as well as all reasonable inferences fairly derived from such evidence.” United
States v. Baer, 53 M.J. 235, 237 (C.A.A.F. 2000) (citation omitted). Trial counsel
may strike hard but fair blows, but may not “inject his personal opinion into
the panel’s deliberations, inflame the members’ passions or prejudices, or ask
them to convict the accused on the basis of criminal predisposition.” Sewell, 76
M.J. at 18 (citations omitted). In determining whether trial counsel’s
comments were fair, we examine them in the context in which they were made.
United States v. Gilley, 56 M.J. 113, 121 (C.A.A.F. 2001). We do not “surgically
carve out a portion of the argument with no regard to its context.” Baer, 53
M.J. at 238 (internal quotation marks omitted).
Among the principal purposes of sentencing are the protection of society
from the wrongdoer and deterrence of the wrongdoer and those who know of
his crime and his sentence from committing the same or similar offenses.
United States v. Ohrt, 28 M.J. 301, 305 (C.M.A. 1989); see also R.C.M. 1001(g)
(“trial counsel may . . . refer to generally accepted sentencing philosophies,
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including rehabilitation of the accused, general deterrence, specific deterrence
of the misconduct by the accused, and social rehabilitation”). Both the
Government and the defense “may argue for an appropriate sentence.” R.C.M.
1001(g).
“Where improper argument occurs during the sentencing portion of the
trial, we determine whether or not we can be confident that [an appellant] was
sentenced on the basis of the evidence alone.” United States v. Pabelona, 76
M.J. 9, 12 (C.A.A.F. 2017) (quoting United States v. Frey, 73 M.J. 245, 248
(C.A.A.F. 2014) (alteration in original) (internal quotations omitted) (citations
omitted)). In assessing prejudice from improper argument, we analyze: (1)
the severity of the misconduct; (2) the measures, if any, adopted to cure the
misconduct; and (3) the weight of the evidence supporting the conviction. See
United States v. Halpin, 71 M.J. 477, 480 (C.A.A.F. 2013) (citation omitted);
Fletcher, 62 M.J. at 184. The United States Court of Appeals for the Armed
Forces (CAAF) has identified five indicators of severity: “(1) the raw numbers—
the instances of misconduct as compared to the overall length of the argument;
(2) whether the misconduct was confined to the trial counsel’s rebuttal or
spread throughout the findings argument or the case as a whole; (3) the length
of the trial; (4) the length of the panel’s deliberations; and (5) whether the trial
counsel abided by any rulings from the military judge.” Fletcher, 62 M.J. at 184
(citation omitted). In Halpin, the CAAF extended the Fletcher test to improper
sentencing argument. 71 M.J. at 480. In assessing prejudice, the lack of a
defense objection is “‘some measure of the minimal impact’ of a prosecutor’s
improper comment.” Gilley, 56 M.J. at 123 (quoting United States v. Carpenter,
51 M.J. 393, 397 (C.A.A.F. 1999)).
3. Analysis
a. Likelihood to Reoffend
We first address Appellant’s contention that trial counsel improperly
argued that Appellant would reoffend. Since trial defense counsel did not object
during the trial counsel’s sentencing argument we review the argument for
plain error. Trial counsel’s argument that five years of confinement was
appropriate “[b]ecause what if this happens again” and “what if those anger
issues are not really those old anger issues and rear their ugly head late at
night” are not impermissible factual arguments that Appellant was likely to
reoffend. They are appropriate argument for specific deterrence. In essence
trial counsel was arguing that confinement would ensure that Appellant would
not reoffend—which is the very meaning of specific deterrence. See United
States v. Halstead, No. ACM S32546, 2020 CCA LEXIS 27, at *19 (A.F. Ct.
Crim. App. 29 Jan. 2020) (unpub. op.) (argument that confinement would “be
good” to prevent an appellant “from committing future drug offenses” was
proper as it demonstrated specific deterrence); United States v. Grassey, No.
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ACM 38973, 2017 CCA LEXIS 414, at *8 (A.F. Ct. Crim. App. 22 Jun. 2017)
(unpub. op.) (argument that an appellant would not be able to commit crimes
in prison was “fair argument regarding the nature of confinement as specific
deterrence”).
Additionally, trial counsel’s argument “[d]on’t come back with a sentence
that’s less than five years for [NA]’s sake to rehabilitate [Appellant] to protect
this from happening again” is similarly not improper argument. The argument
was proper reference to four different sentencing philosophies; protection of
society, rehabilitation, and general and specific deterrence. The statement
“even if you think that the risk of [Appellant] doing this again is zero” is also
not improper, as it argues that the sentence of confinement for five years would
be appropriate even if the panel determined that specific deterrence was not a
principal concern in Appellant’s case.
Furthermore, trial counsel’s argument was a fair comment upon issues
raised by Appellant in his sentencing case. Appellant presented evidence of his
rehabilitation, and trial defense counsel’s argument focused on Appellant’s
“rehabilitation,” “redemption,” and “reuniting” with his family and generally
portrayed Appellant as someone who would not reoffend. Accordingly, trial
counsel was permitted to rebut that argument in addition to arguing for
specific deterrence. Trial counsel is not “prohibited from offering comment that
provides a fair response to claims made by the defense.” United States v.
Carter, 61 M.J. 30, 33 (C.A.A.F. 2005) (citation omitted). In considering the
appropriateness of a prosecutor’s argument, we “must also take into account
defense counsel’s opening salvo.” United States v. Young, 470 U.S. 1, 12 (1985).
Although defense counsel in this case had not yet argued that confinement was
not necessary, it was a predictable approach based upon the evidence
Appellant admitted and Appellant’s unsworn statement. Here trial counsel
correctly anticipated that defense counsel would argue that no confinement
was necessary because Appellant had already been rehabilitated—trial
counsel is certainly permitted to preemptively address that argument, when
no rebuttal argument was allowed. Additionally, Appellant placed his own
anger challenges at issue and offered mitigating evidence during sentencing
that he had received treatment for them. Again, trial counsel is permitted to
comment on defense sentencing evidence. We see no evidence that trial counsel
argued facts not in evidence, or that trial counsel improperly suggested to
members that Appellant would reoffend.
Appellant has failed to identify any portion of the argument in which trial
counsel either impermissibly argued that: (1) Appellant would reoffend; or (2)
there was evidence that Appellant would commit the offense in the future.
Rather, Appellant has identified only appropriate argument tied to the
principles of deterrence, rehabilitation, and protection of society. Appellant has
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failed to identify an error committed by the trial counsel as to recidivism, and
certainly has not met the high burden of demonstrating that such an error was
plain or obvious.
b. Inflame the Passions of the Panel
We next consider Appellant’s claim that that trial counsel improperly
attempted to inflame the passions of the panel when he argued “[a]nd you can’t
break your child’s bones and then come in here and use your family as a shield
to not get the punishment that you deserve.” Again, trial defense counsel did
not object to this statement so we review for plain error. We note at the outset
that the record is replete with evidence introduced by the Defense in which
witnesses and Appellant himself stated that confinement would be more
punishment for the family than for him. Appellant in this case chose to put on
a sentencing case in which he repeatedly referenced that his family would
suffer more than him. Trial defense counsel used this theme in her argument,
stating “your punishment will affect [KA], it will affect [AA] and it will affect
[NA].” Trial defense counsel chose a strategy of currying empathy with the
panel members by mentioning the impact of the sentence upon Appellant’s
innocent wife and children. Trial counsel’s argument was fair comment in
response to the defense sentencing strategy and trial counsel did not commit
prosecutorial misconduct by highlighting that strategy directly to the panel.
Likewise, we find no error in this statement.
c. Mitigation Evidence & Appellant’s Sentence Recommendation
Finally, we consider Appellant’s contention the trial counsel instructed the
panel not to consider evidence in mitigation offered by Appellant and
improperly argued against Appellant’s right to make a sentence
recommendation. Since trial defense counsel did not object during trial
counsel’s argument we again review for plain error.
In support of both arguments, Appellant highlighted one passage from trial
counsel’s argument where trial counsel stated,
But don’t forget that when defense counsel comes up here, that
they are [Appellant’s] mouthpiece and they are going to speak to
you on behalf of him. And you need to ask yourselves, in what
world is it appropriate that you can commit crimes and then
come in and tell you what sentence you deserve? To do the cost
benefit of your own crimes?
As to Appellant’s first argument, we do not find anything in that statement
where trial counsel explicitly instructed the panel that they could not consider
evidence in mitigation. From the full context of the argument, it is evident that
trial counsel never argued that the panel could not consider mitigating
evidence. In fact, trial counsel specifically referred the panel to mitigating
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evidence, telling the panel members to consider not only Appellant’s actions
“but also his service record, the testimony that we heard, the character letters
[Appellant] put in front of you.” Additionally, the only testimony elicited during
the pre-sentencing portion of the hearing was on Appellant’s behalf.
That said, we find that trial counsel’s statement overstepped the bounds
of propriety and fairness of a prosecutor for other reasons. First, trial counsel’s
disparaging reference to defense counsel as the Appellant’s “mouthpiece” was
pejorative and offered only to denigrate the legitimacy of any recommendation
made by defense counsel. While it is appropriate to comment on Appellant’s
sentence recommendation, it is “improper for trial counsel to attempt to win
favor with the members by maligning defense counsel.” Fletcher, 62 M.J. at
181. Moreover, we also agree with Appellant’s second argument, and find that
the above statement from trial counsel improperly addresses Appellant’s clear
right to argue for an appropriate sentence. Taken together, trial counsel
essentially told the members—incorrectly—that Appellant had no right to
recommend a specific sentence, that trial defense counsel was merely parroting
Appellant’s recommendation, and that any recommendation from trial defense
counsel should be ignored. Trial counsel’s statement was not just factually and
legally incorrect, it broadcast to the members trial counsel’s view that
Appellant’s counsel was merely there to repeat Appellant’s requests—requests
which trial counsel implored the members to ignore as improper. This
statement erroneously implicated Appellant’s right to fair sentencing
proceeding and his right to counsel, errors we conclude are plain and obvious.
Finding error, we now review for prejudice. See Fletcher, 62 M.J. at 184.
We note that the above statement consisted of one, isolated statement, in a
sentencing argument that spanned seven pages of transcript. While the
military judge did not issue an immediate curative instruction, he did instruct
the members both before and after trial counsel’s argument that Appellant was
permitted to make a specific sentence recommendation, and that any
recommendations made, by either counsel or Appellant, were only suggestions,
and it was solely in the members’ discretion to determine an appropriate
punishment. In the absence of evidence to the contrary, military members are
presumed to follow the military judge’s instructions. United States v. Ricketts,
23 U.S.C.M.A. 487, 490 (C.M.A. 1975). Finally, the weight of the evidence
supporting the conviction was strong and amply supports the sentence imposed
by the panel, which was half of the maximum period of confinement available.
Therefore, we find this statement did not substantially influence Appellant’s
sentence, nor otherwise materially prejudice a substantial right of Appellant.
We have also reviewed the rest of Appellant’s arguments for prejudice and are
confident that the members acted “on the basis of the evidence alone.” Fletcher,
62 M.J. at 184.
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“As Appellant was not prejudiced by the sentencing argument, he cannot
have been prejudiced by the military judge’s failure to interrupt the arguments
. . . or the failure of his defense counsel to object to the argument.” Halpin, 71
M.J. at 480 (citing to Strickland v. Washington, 466 U.S. 668, 687 (1984))
(requiring that a defendant claiming ineffective assistance of counsel show he
was prejudiced by counsel’s deficient performance).
B. Sentence Appropriateness
Appellant contends his sentence is inappropriately severe in light of his
record of service and asks this court to engage in a comparative sentence
review. 6 He supports his argument by citing other military justice cases
involving child abuse. We disagree and find Appellant’s sentence appropriate.
This court “may affirm only . . . the sentence or such part or amount of the
sentence, as it finds correct in law and fact and determines, on the basis of the
entire record, should be approved.” Article 66(c) UCMJ, 10 U.S.C. § 866(c). We
review sentence appropriateness de novo, employing “a sweeping
Congressional mandate to ensure ‘a fair and just punishment for every
accused.’” United States v. Baier, 60 M.J. 382, 384 (C.A.A.F. 2005) (citations
omitted).
In determining whether a sentence is appropriate, we consider the
“particular appellant, the nature and seriousness of the offense, the appellant’s
record of service, and all matters contained in the record of trial.” United States
v. Anderson, 67 M.J. 703, 705 (A.F. Ct. Crim. App. 2009) (citations omitted).
We have a great deal of discretion in determining whether a particular
sentence is appropriate, but we are not authorized to engage in exercises of
clemency. United States v. Healy, 26 M.J. 394, 395–96 (C.M.A. 1988).
A sentence comparison is required if Appellant can demonstrate that (1)
the cited cases are “closely related” to his case, and (2) the sentences are “highly
disparate.” United States v. Lacy, 50 M.J. 286, 288 (C.A.A.F. 1999). Cases are
“closely related” when they include “coactors involved in a common crime,
servicemembers involved in a common or parallel scheme, or some other direct
nexus between the servicemembers whose sentences are sought to be
compared.” Id.In the present case, Appellant has failed to demonstrate that the cases cited
in his Grostefon brief are “closely related” to his case. Appellant has not
presented any evidence that the other cases he cited involve co-actors, common
schemes, or any direct nexus to his case. Additionally, Appellant has not
6 To the extent that Appellant asks this court to consider matters outside the entire
record, those matters may not be considered by this court in assessing sentence
appropriateness. See United States v. Jessie, 79 M.J. 437, 444 (C.A.A.F. 2020).
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provided any information as to the unique facts and circumstances of these
cases or any mitigating or extenuating factors which might have been present
in those cases. “The appropriateness of a sentence generally should be
determined without reference or comparison to sentences in other cases.”
United States v. Leblanc, 74 M.J. 650, 659 (A.F. Ct. Crim. App. 2015) (en banc)
(citing United States v. Ballard, 20 M.J. 282, 283 (C.M.A. 1985)). While we
realize that we may consider any or all of the cases cited by Appellant, even if
they are not closely related to Appellant’s, we decline to do so here and see no
reason to deviate from the general rule set out in LeBlanc.
After conducting a review of the entire record, we find that the adjudged
and approved sentence is appropriate. In reaching this conclusion, we
considered Appellant’s unsworn statement, his enlisted performance reports,
the defense exhibits submitted at trial, and all the matters submitted by
Appellant during clemency. We also considered the facts of the offenses to
which Appellant was found guilty and all other properly admitted matters. In
this case Appellant physically harmed his infant daughter on multiple
occasions, causing severe injury to her on at least two occasions. After the
military judge merged Specifications 2 and 3 of Charge I, assault consummated
by a battery of NA, for the purposes of sentencing, the maximum term of
confinement in Appellant’s case was reduced from 17 years to 12 years and
included the possibility of a dishonorable discharge. In this case, his sentence
to confinement was exactly half of the maximum allowable term of
confinement. In light of the significance of his criminal conduct, we find
Appellant’s approved sentence of a dishonorable discharge, confinement for six
years, and reduction to the grade of E-1 is appropriate for the crimes he
committed.
C. Timeliness of Appellate Review
Additionally, we consider whether Appellant is entitled to relief for a
facially unreasonable appellate delay. See Moreno, 63 M.J. at 135 (citations
omitted); United States v. Tardif, 57 M.J. 219, 223–24 (C.A.A.F. 2002). We
decline to grant such relief.
1. Law
We review de novo whether an appellant has been denied the due process
right to speedy appellate review. Moreno, 63 M.J. at 135 (citations omitted). A
presumption of unreasonable delay arises when appellate review is not
completed and a decision rendered within 18 months of a case being docketed.
Id. at 142. A presumptively unreasonable delay triggers an analysis of the four
factors laid out in Barker v. Wingo, 407 U.S. 514, 530 (1972): “(1) the length of
the delay; (2) the reasons for the delay; (3) the appellant’s assertion of the right
to timely review and appeal; and (4) prejudice.” Moreno, 63 M.J. at 135
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(citations omitted). A presumptively unreasonable delay satisfies the first
factor, but the government “can rebut the presumption by showing the delay
was not unreasonable.” Id. at 142. Assessing the fourth factor of prejudice, we
consider the interests of “prevention of oppressive incarceration;”
“minimization of anxiety and concern of those convicted;” and “limitation of the
possibility that . . . grounds for appeal, and . . . defenses . . . might be impaired.”
Id. at 138–39 (citations omitted).
2. Analysis
Appellant’s case was docketed with the court on 17 July 2019. The delay in
rendering this decision until just over 19 months after the case was docketed
is presumptively unreasonable. The reasons for the delay include the time
required for Appellant to file his brief on 6 May 2020, and the Government to
file its answer on 2 July 2020. 7 Appellant did not assert his right to timely
appellate review, and has made no specific claim of prejudice. We find none.
Finding no Barker prejudice, we also find the delay is not so egregious that
it “adversely affects the public’s perception of the fairness and integrity of the
military justice system.” See United States v. Toohey, 63 M.J. 353, 362
(C.A.A.F. 2006). As a result, there is no due process violation. See id.Regarding any relief under Tardif, in this case we determine that no such
relief is warranted in the absence of a due process violation. See Tardif, 57 M.J.
at 223–24; United States v. Gay, 74 M.J. 736, 744 (A.F. Ct. Crim. App. 2015),
aff’d, 75 M.J. 264 (C.A.A.F. 2016). In Tardif, the CAAF recognized that “a
Court of Criminal Appeals has authority under Article 66(c)[, UCMJ, 10 U.S.C.
§ 866(c),] to grant relief for excessive post-trial delay without a showing of
‘actual prejudice’ within the meaning of Article 59(a)[, UCMJ, 10 U.S.C. §
859(a)].” 57 M.J. at 224 (citation omitted). Furthermore, we as a service Court
of Criminal Appeals are required by Article 66(c), UCMJ, to determine which
findings of guilty and the sentence or part thereof “should be approved.” 10
U.S.C. § 866(c); see Tardif, 57 M.J. at 224. Considering all the facts and
circumstances of Appellant’s case, we decline to exercise our Article 66(c),
UCMJ, authority to grant relief for the delay in completing appellate review.
7 Appellant also filed a motion for leave to file a supplemental assignment of error on
6 August 2020, based on the United States Supreme Court decision in Ramos v.
Louisiana, 140 S. Ct. 1390 (2020), that was decided before Appellant’s brief was
submitted. Due to Appellant’s failure to show good cause to warrant acceptance by the
court of this late submission, Appellant’s motion was subsequently denied on 1
September 2020.
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D. Erroneous Action
During our review of this case under Article 66(c), UCMJ, we identified
that both the action and the general court-martial order failed to report the
deferral of the reduction in grade. This error was not raised by counsel and no
prejudice has been alleged. We find a corrected action and CMO are required.
1. Law
Proper completion of post-trial processing is a question of law which this
court reviews de novo. United States v. Sheffield, 60 M.J. 591, 593 (A.F. Ct.
Crim. App. 2004) (citation omitted). If an action is found to be “illegal,
erroneous, incomplete, or ambiguous” during the review of the record of trial
under Article 66, UCMJ, 10 U.S.C. § 866, the convening authority may modify
the action “[w]hen so directed by a higher reviewing authority.” R.C.M.
1107(f)(2); see also R.C.M. 1107(g) (stating the convening authority may be
instructed by an authority acting under Article 66, UCMJ, to withdraw the
original action and substitute a corrected action when it is “incomplete,
ambiguous, or contains clerical error”).
2. Analysis
On 25 March 2019, at Appellant’s request, the convening authority
deferred Appellant’s adjudged reduction in grade as well as the adjudged and
mandatory forfeitures of pay pursuant to Article 58b, UCMJ, 10 U.S.C. § 858b,
until he took action on Appellant’s sentence. See Article 57a, UCMJ, 10 U.S.C.
§ 857a. However, as stated above, both the action and the court-martial order
erroneously failed to report the deferral of the reduction in grade. See Air Force
Instruction 51-201, Administration of Military Justice, ¶ 11.29.1.3 (18 Jan.
2019) (“The terms of approved deferrals . . . are reported in the action the
convening authority ultimately takes on the case.”); see also United States v.
Perea, No. ACM 32408, 2017 CCA LEXIS 353 (A.F. Ct. Crim. App. 24 May
2017) (unpub. op.); United States v. Griego, No. ACM 38600, 2015 CCA LEXIS
502 (A.F. Ct. Crim. App. 5 Nov. 2015) (unpub. op.) (noting that erroneous
failure to report the deferral of reduction in grade in the convening authority
action typically requires substitution of a corrected action and promulgation of
a new CMO). Accordingly, the action is incomplete, and a corrected action and
CMO are required.
III. CONCLUSION
The approved findings and sentence are correct in law and fact, and no
error materially prejudicial to the substantial rights of Appellant occurred.
Articles 59(a) and 66(c), UCMJ, 10 U.S.C. § 859(a), 866(c). Accordingly, the
findings and sentence are AFFIRMED. The record of trial is returned to The
Judge Advocate General for remand to the convening authority to withdraw
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the incomplete action, substitute a corrected action, and issue a corrected
court-martial order. Thereafter, the record of trial will be returned to this court
for completion of appellate review under Article 66, UCMJ. 8,9
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
8 The action also contained another error in that it listed the bank account information
for KA, which should not have been included. We direct this information be removed
in the corrected action and court-martial order.
9 We also note that the court-martial order, dated 3 July 2019, also contained an error
in the sentence section; it states that the sentence included reduction to “E-4,” which
is an error and should state “E-1.” We direct this information be corrected in the
corrected action and court-martial order.
17