United States v. Cunningham ( 2022 )

U NITED S TATES A IR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 40093
________________________
UNITED STATES
Appellee
v.
James T. CUNNINGHAM
Senior Airman (E-4), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 9 September 2022
________________________
Military Judge: Sterling C. Pendleton.
Sentence: Sentence adjudged on 18 February 2021 by GCM convened at
Ellsworth Air Force Base, South Dakota. Sentence entered by military
judge on 8 March 2021: Dishonorable discharge, confinement for 18
years, forfeiture of all pay and allowances, and reduction to E-1.
For Appellant: Major Matthew L. Blyth, USAF; Major Spencer R. Nel-
son, USAF.
For Appellee: Lieutenant Colonel Matthew J. Neil, USAF; Major Ab-
bigayle C. Hunter, USAF; Major John P. Patera, USAF; Mary Ellen
Payne, Esquire.
Before KEY, ANNEXSTAD, and GRUEN, Appellate Military Judges.
Judge ANNEXSTAD delivered the opinion of the court, in which Senior
Judge KEY and Judge GRUEN joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
________________________
United States v. Cunningham, No. ACM 40093
ANNEXSTAD, Judge:
At a general court-martial, a panel of officer and enlisted members con-
victed Appellant, contrary to his pleas, of one specification of murder, in viola-
tion of Article 118, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 918.1Appellant elected to be sentenced by the military judge. The military judge
sentenced Appellant to a dishonorable discharge, confinement for 18 years, for-
feiture of all pay and allowances, and reduction to the grade of E-1.2 The con-
vening authority took no action on the findings or sentence.
Appellant raises seven assignments of error which we have reordered and
reworded: (1) whether Appellant’s conviction was legally and factually suffi-
cient; (2) whether the military judge abused his discretion in denying a defense
request for an expert witness; (3) whether the military judge abused his dis-
cretion by allowing the victim’s representative to present a victim impact state-
ment that included videos, personal pictures, stock images of future events,
and lyrical music that touched on themes of dying, saying farewell, and becom-
ing an angel in heaven; (4) whether trial counsel committed prosecutorial mis-
conduct during her sentencing argument; (5) whether the military judge
abused his discretion by failing to suppress Appellant’s statements to law en-
forcement personnel; (6) whether Appellant’s due process rights were violated
because Article 118(3), UCMJ, 10 U.S.C. § 918(3), does not list manslaughter
as a lesser included offense, thereby foreclosing his ability to reduce his crimi-
nal exposure by pleading not guilty to an offense charged, but guilty to a named
lesser included offense; and (7) whether the Government can prove beyond a
reasonable doubt that the military judge’s failure to instruct the panel that a
guilty verdict must be unanimous was harmless.3
With respect to issues (5), (6), and (7), we have carefully considered Appel-
lant’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).
Finding no error that materially prejudiced a substantial right of Appel-
lant, we affirm the findings and sentence.
1 All references to the UCMJ and the Rules for Courts-Martial (R.C.M) are to the Man-
ual for Courts-Martial, United States (2019 ed.) (2019 MCM).
2 Appellant was awarded 118 days of pretrial confinement credit.
3 Issues (1), (5), and (6) were personally raised by Appellant pursuant to United States
v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
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United States v. Cunningham, No. ACM 40093
I. BACKGROUND
Appellant joined the Air Force in January 2013. At the time of his trial, he
was 27 years old, and worked as an aircraft maintainer at Ellsworth Air Force
Base, South Dakota. In September 2018, Appellant began dating CM, and the
two moved in together in July 2019. In September 2019, their first child, ZC,
was born. Later that year, in December 2019, Appellant and CM became en-
gaged and were living in a house in Rapid City, South Dakota. Their two room-
mates, BS and BS’s husband, lived in the lower level of the house.
On the morning of 3 March 2020, CM woke up, fed and changed ZC, and
placed him in his car seat so that Appellant could drop him off at daycare on
his way to work. Appellant left with ZC around 0645 and dropped ZC off around
0700. CM was scheduled to work that day from 0800 until 2130 hours. CM
testified that ZC’s daycare provider sent her multiple pictures and messages
throughout the morning indicating that ZC was happy and acting normally.
Around noon, Appellant was released from work early to prepare for an upcom-
ing exercise. Appellant picked up ZC from daycare on his way home and arrived
home at approximately 1300.
BS testified that she saw Appellant arrive home and take ZC upstairs with
him. She went upstairs to get food between 1400 and 1500, at which point she
saw ZC in his jumper seat near Appellant who was playing video games. BS
stated that ZC seemed normal and happy, and she returned to her bedroom on
the lower level of the house. BS stated that at times that afternoon she could
hear that ZC was “unusually” fussy. BS testified that at some point after re-
turning to her room she heard footsteps upstairs and then a loud noise. At 1730
she texted her husband concerning ZC; one of those messages read as follows:
Idk what [Appellant] is doing but [ZC] has been super fussy and
every time he starts screaming it sounds like [Appellant] throws
something or jumps around like he’s pissed off that he has to
stop playing his game then he’ll stomp to their room and leave
[ZC] in there and I can hear him screaming and [Appellant]
walking around. Idk if he’s getting annoyed or what but it irri-
tates me every time. It doesn’t sound like he tries to calm him or
anything he just lets him scream[.]
Right after sending the message, BS testified that she heard Appellant calling
her name and rushing to her bedroom door. She stated Appellant was holding
ZC and saying that he didn’t know what was wrong with him. BS testified that
ZC was limp, not holding his head up, and did not appear normal. She remem-
bered Appellant telling her that he gave ZC a bottle and then heard ZC making
a gurgling noise.
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United States v. Cunningham, No. ACM 40093
BS called 911 at 1732 and testified that she was the one who spent the
majority of the time speaking with the emergency operator. BS told the opera-
tor that ZC was not breathing. While waiting for the ambulance, Appellant and
BS gave ZC mouth-to-mouth resuscitation. BS testified Appellant appeared to
be in shock and said things like, “Oh god. His eyes are fogging, his eyes are
fogging;” “Come on Bubba, come on Bubba;” and “Come on, come on little man.”
Shortly thereafter, paramedics and police officers arrived.
Officer SB, from the Rapid City Police Department (RCPD), was one of the
officers who responded to Appellant’s house. Officer SB testified that he spoke
with Appellant while paramedics attended to ZC, and Appellant told him that
ZC was sleeping, woke up fussy, and that he started making gurgling noises
when Appellant attempted to feed him a bottle. Officer SB then stated Appel-
lant told him that after ZC started making the gurgling noises, that ZC’s eyes
were closed, his body was limp, and he wasn’t responding to his name.
An ambulance took ZC to the emergency room at Monument Hospital in
Rapid City, South Dakota. Shortly thereafter CM joined Appellant at the hos-
pital. Dr. AN, a board-certified emergency physician was working that evening
and provided medical treatment to ZC. Dr. AN testified at trial as an expert
witness in the field of emergency medicine. Dr. AN stated that when ZC arrived
at the emergency room, his breathing was slow and shallow, his color was pale,
and his body was limp. Dr. AN also noted that ZC’s forehead was discolored
and swollen. Dr. AN testified that medical providers performed chest compres-
sions, secured ZC’s airway, began intravenous medications, and performed a
computed tomography (CT) scan of ZC’s head.4 According to Dr. AN, the CT
scan revealed that ZC had bleeding in the brain, and ZC’s condition was caused
by “non-accidental trauma, subdural hematoma, and metabolic acidosis.”
Shortly after he arrived at the hospital on March 3, 2020, Officer SB was
informed by the medical staff treating ZC that ZC had a “brain bleed.” He re-
layed that news to Appellant and CM, and told them that ZC was going to be
airlifted to Sanford Children’s Hospital in Sioux Falls, South Dakota. Appel-
lant started crying and stated “I’m an idiot. [Crying] I feel so bad. He hit his
head, I thought it was nothing. [Inaudible] It was under my watch; I feel so
bad.” Officer SB asked Appellant and CM if they were willing to go to the police
department to speak with investigators, and both agreed. Of note, Officer SB’s
body camera captured Appellant’s responses described above. The video foot-
age was admitted as a prosecution exhibit and played for the members during
trial.
4 A computed tomography scan is a medical imaging technique used to obtain detailed
internal images of the body.
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United States v. Cunningham, No. ACM 40093
RCPD Detectives SW and DH spoke with Appellant after he arrived at the
police department. CM was separately interviewed. Detective SB testified they
“still didn’t really know what was going on” at that point, so they conducted a
“non-custodial interview” of Appellant. Detective SW stated he informed Ap-
pellant in the opening minutes of the interview that he was not required to
speak with them and that he was free to leave at any time. Also, he informed
Appellant that no matter what was discussed, “he wouldn’t be placed under
arrest that day and he would be free to get up and leave.” Detective SW stated
Appellant acknowledged that he did not have to speak with investigators. Dur-
ing his testimony, Detective SW confirmed that the interview was recorded and
the substantive portion of the interview lasted approximately two hours. The
recorded interview was admitted as a prosecution exhibit and was played dur-
ing trial for the members.
After Appellant agreed to speak with them, Detective SW asked Appellant
to “walk [them] through” what had happened. Appellant then went on to de-
scribe the entire morning and his picking ZC up from daycare early. Appellant
told investigators that he put ZC in his baby activity jumper seat to play a
short time after arriving home. According to Appellant, when he went to let his
dog outside, he heard a loud bang and looked over at ZC in his jumper. Appel-
lant stated that ZC just smiled at him and continued to play as normal. Appel-
lant then stated that he fed ZC and laid him down for a nap. Appellant ex-
plained that when ZC woke up from his nap, he was fussy and inconsolably
crying. Appellant then stated that he gave ZC another bottle and laid him down
around 1730 hours, but soon thereafter heard ZC making noises. When Appel-
lant went to check on ZC, Appellant explained to investigators that he found
ZC limp and unresponsive.
Detective SW confirmed with Appellant that ZC did not have any medical
conditions, physical ailments, or reported issues at daycare, and that he had
been acting normal up until Appellant found him unresponsive. Appellant then
mentioned that after ZC woke up from the nap, “he just wasn’t that happy baby
anymore. He was that fussy. He was just fussy.” Detective SW asked Appellant
about the details of the incident he described in the jumper to include: what
the bang sounded like; how often ZC used the jumper; and if ZC had ever been
injured in the jumper before. Detective SW also asked Appellant how CM was
with ZC. Appellant answered that CM adored ZC and that he had never “seen
somebody love something like that.”
Later in the interview, Detective SW asked Appellant if there was anything
else he could think of that might have injured ZC. Appellant answered in the
negative. The investigators told Appellant that if ZC had bumped his head
while in the jumper, he would not have experienced such a serious injury. De-
tective SW stated, “We know that [ZC] did not get this injury from the jumper.”
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United States v. Cunningham, No. ACM 40093
He then asked, “Is this a one-time thing where something happened or what -
- I mean, what happened, man?” Appellant responded he had dropped ZC, but
had withheld that information because he was scared people would think he
abused ZC. Detective DH replied, “Just like [SW] said a minute ago, neither he
nor I, doubt one tiny bit that you love your son. That’s obvious. I don’t doubt
that. Not at all. Just so we can understand, and also it may help doctors help
your son, walk us through what happened.”
Appellant then told investigators he dropped ZC while seated on the couch
trying to feed him, and ZC fell face first onto the carpeted floor in the living
room. Detective SW questioned Appellant’s story with skepticism:
The same people that I deal with on a weekly, if not daily, basis,
the same people that have talked to me about children injuries
and stuff like that, that have given me the training to know that
this injury didn’t happen by him being in a bouncer. This injury
ain’t going to happen from a 5[-]month-old just dropping 2 or 3
feet on carpeted ground, okay. I know that for a fact, to the point
of -- I have several kids myself, one of which is the same age as
your kid, has fallen off a bed from higher than that and nothing
happens. It doesn’t happen, okay. It’s time to start giving the
truth. We can’t keep lying about this stuff. I mean, were you
frustrated; couldn’t get the kid to stop crying? What was going
on?
Appellant responded to Detective SW’s questions by claiming that he sat ZC
on the kitchen counter and when Appellant turned to get his bottle, ZC leaned
forward and fell off the counter onto the hardwood floor in the kitchen. Appel-
lant stated, “I should have known better because he’s only 5 months, so he’s
not going to keep himself up.” Detective SW then asked, “[h]ow many times are
we going to dance around this?” Appellant replied that he “didn’t do anything
to [his] child.” The exchange then progressed as follows:
[Detective SW]: I know it’s hard, man. You don’t get to sleep. You
don’t get to do anything anymore. It’s hard and it’s frustrating.
Temperatures -- and temp -- I mean, tempers rise. It happens to
you. It happens to all of us, okay. You’re not a bad guy, but some-
thing happened. We can’t change what happened in the past. All
we can do is face ourselves in the future and, you know, decide
what kind of man we want to be from this point because what
happened, happened. Now it’s about trying to make it right. Like
my partner here said, it’s not just us asking. Anything you can
tell us about how this really happened can help those doctors fix
him up too. We need -- we need to know the truth.
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United States v. Cunningham, No. ACM 40093
[Detective DH]: If they don’t know the mechanism of injury, they
can’t treat the injury as effectively. Does that make sense?
[Appellant]: Yeah.
[Detective DH]: I mean your son’s injury is very serious, so any
assistance that we can have to treat him is very important.
The exchange continued by Detective DH asking Appellant to help them “help
the doctors.” To which he responded:
[Appellant]: Did I really hit my kid? Did I really get so mad at
him that I just hit him? How could I not remember something
like that? I’m a horrible father, you know. Why would I hit my
own kid?
[Detective DH]: That level of frustration can lead us to do things
that we just don’t expect in ourselves. Like you don’t know what
to do. You just feel yourself backed into a corner.
[Appellant]: But to hit my own kid like out of frustration and just
-- Why? I didn’t mean -- I didn’t mean to do it. Oh God. I put my
kid in the hospital.
[Detective SW]: Was it like with an object or just your hand or
what?
[Appellant]: I didn’t -- I don’t remember having any objects, so
probably just my hand. I might have just punched him. But why
would I do it?
[Detective SW]: Is that what happened?
[Appellant]: I think so.
[Detective SW]: What do you mean, you think so?
[Appellant]: I just remember I was getting upset. I was -- I was
just getting frustrated because he just wouldn’t stop crying. I
just -- next thing I know, he’s eating and he’s fine and then –[.]
[Detective SW]: Come on, [Appellant].
[Detective DH]: Help us understand what happened, so we can
help your son as best we can.
[Detective SW]: You know what happened in there, enough to
come up with these other stories that we all know aren’t true.
Did you hit him? Was it just one hit or multiple or -- what hap-
pened?
[Appellant]: It was just once, but it was hard.
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United States v. Cunningham, No. ACM 40093
[Detective SW]: Was it with your left or right hand?
[Appellant]: My dominant hand [holding right hand up].
[Detective SW]: Right hand. Was it just with your fist or -- [?]
[Appellant]: [Affirmative response.]
[Detective DH]: Were you holding him?
[Appellant]: No. He was laying down.
[Detective DH]: On the floor?
[Appellant]: In his little taco thing.
[Detective SW]: When did that happen?
[Appellant]: About around 4:30. He just wouldn’t stop crying.
[Detective SW]: Mmm-hmm.
[Appellant]: I didn’t know what to do. I just -- I was afraid you
guys were going to take my kid from me. Yes, 4:30. He just
wouldn’t stop. I thought maybe he was hungry. I tried to give
him his bottle. He just wasn’t having it. I didn’t know what to
do. I got frustrated. I put him in his taco, walked off, tried to cool
down. He just kept screaming and screaming and screaming. I
was like, I don’t know what to do. I really don’t know what to do.
Instead of going downstairs and asking my roommate to help, I
just let that -- the frustration, the anger, just build up inside me.
Instead of taking it out on something else like normal people
would do, I took it out on my own son. It’s not his fault. He’s only
5 months. It’s not his fault. He can’t help it. He can’t tell me
what’s wrong. He can’t -- [.]
[Detective SW]: Where did you hit him at?
[Appellant]: I hit him in the forehead.
[Detective SW]: Just the one time?
[Appellant]: [Affirmative response.]
[Detective SW]: What happened after that?
[Appellant]: He started crying some more. I mean, I wasn’t ex-
pecting him to be quiet after that. I just socked my kid.
[Detective SW]: Mmm-hmm.
[Appellant]: And he just -- he cried for a little bit. He stopped. I
picked him up. He stopped. Then it was about 5 o’clock-ish and
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United States v. Cunningham, No. ACM 40093
I tried to give him his bottle again. He ate it, but there was just
-- the way he was eating, he could -- it didn’t seem normal.
Appellant later stated that he “was more surprised than anything. Like, I
literally just hit my kid and my kid just looked at me with a smile -- not a smile,
but he looked like -- he looked at me like you’re my guardian. I didn’t feel like
it.” He went on to explain:
I just felt like I let him down. When he did that, my heart just
sank because I knew it was my fault. When he stopped, when he
didn’t respond, and then when I picked him up and he was limp,
the worst of worst feelings came to mind. Sorry.
While Appellant was speaking to investigators, ZC was airlifted to the pe-
diatric specialty center. At trial, Dr. KS, a forensic pathologist at Sanford Chil-
dren’s Hospital, testified as an expert witness for the Government in the field
of forensic pathology. Dr. KS confirmed a number of additional medical tests
were conducted upon ZC’s arrival. For example, an eye exam revealed that ZC
had extensive bilateral retinal hemorrhages, which is indicative of an abusive
or non-accidental head injury. Dr. KS also testified a second CT scan was per-
formed on ZC’s head. He stated that this scan showed bilateral subdural hem-
orrhages and severe hypoxic-ischemic injury—meaning injury to the brain
caused by a lack of oxygen and blood flow. Dr. KS also stated that a skeletal
survey was completed with no fractured bones noted. Dr. KS. testified ZC died
on 12 March 2020, nine days after arriving at the hospital, “[d]espite medical
therapy.”
Dr. KS also performed ZC’s autopsy which revealed that ZC had a bruise
on the right side of his forehead, a second lighter smaller bruise in the middle
of his forehead, and a bruise on the outside of his left ear. ZC’s internal organs
showed no signs of disease or injury. Dr. KS also noted the post-mortem phys-
ical examination of ZC’s brain reflected the hemorrhages previously seen on
the CT scans. He also explained that ZC’s brain was swollen, and the injuries
to ZC’s brain were indicative of significant trauma to the outside of the head.
Dr. KS also noted the autopsy revealed hemorrhaging around the spinal cord
in ZC’s neck area, which he attributed to rapid acceleration and deceleration
of the head. He further opined that a combination of shaking and punching
would explain all of ZC’s injuries. Finally, Dr. KS testified that the manner of
death was homicide, and specifically stated ZC “died as a result of a traumatic
brain injury due to an assault that ha[d] components of blunt force injury and
a rapid acceleration, deceleration injury.”
The panel of officer and enlisted members found Appellant guilty of one
specification of murder.
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United States v. Cunningham, No. ACM 40093
II. DISCUSSION
A. Legal and Factual Sufficiency
Appellant contends his conviction of murder is both legally and factually
insufficient. Specifically, Appellant argues the injuries ZC “sustained do not
align with [his] confession,” and a single punch could not have caused all of
ZC’s injuries. Additionally, Appellant contends the character evidence pre-
sented at trial that Appellant was generally a gentle, peaceful, and patient
person contrasts with the violent murder of which he was convicted and calls
into question whether the Government met its burden of proof. We disagree
with Appellant’s contentions and find no relief is warranted.
1. Additional Background
During their case-in chief, the Defense called two expert witnesses. The
first was Dr. AZ, a pediatric radiologist. Dr. AZ testified the first CT scan did
not show any swelling of ZC’s brain. Dr. AZ had reviewed the x-rays and testi-
fied he did not see any classical metaphyseal lesions which are fractures that
can occur when shaking an infant and are highly associated with child abuse.
He also stated no rib fractures were present. Consistent with the Government’s
experts, Dr. AZ agreed the first CT scan did show subdural hemorrhaging, and
the second CT scan showed swelling of ZC’s brain. On cross-examination,
Dr. AZ also confirmed he had seen cases of abusive head trauma without any
bone fractures.
The second witness was Dr. DF, who was recognized as an expert witness
in the fields of forensic pathology and biomechanics. Dr. DF testified ZC’s sub-
dural hemorrhages, brain swelling, retinal hemorrhages, neck injuries, and
multiple bruises to his forehead could all be the result of falling from the
kitchen counter. During cross-examination, Dr. DF agreed that all of ZC’s in-
juries were also consistent with an infant who had been punched and shaken.
Furthermore, Dr. DF testified that he could not exclude shaking as the cause
of death because ZC exhibited the “classic triad” of injuries associated with
shaking: subdural hemorrhages, profuse retinal hemorrhages, and brain swell-
ing.
During its rebuttal case, the Government called Colonel (Col) SM, a pedia-
trician, who was recognized as an expert in the fields of general and child-
abuse pediatrics. Col SM testified she had reviewed many cases of infant shak-
ing that did not show additional injuries beyond bleeding within the skull,
brain injuries, and retinal hemorrhages—in other words, no bone fractures or
retinoschisis. Col SM stated ZC’s injuries were not consistent with hitting his
head on a jumper, falling to a carpeted floor from his father’s lap, or falling
from the kitchen counter. Finally, Col SM opined ZC’s injuries were consistent
with a punch or punches to the head, combined with shaking.
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United States v. Cunningham, No. ACM 40093
2. Law
Issues of legal and factual sufficiency are reviewed de novo. United States
v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). “Our assessment of legal and
factual sufficiency is limited to evidence produced at trial.” United States v.
Rodela, 82 M.J. 521, 525 (A.F. Ct. Crim. App. 2021) (citing United States v.
Dykes, 38 M.J. 270, 272 (C.M.A. 1993)), rev. denied, No. 22-0111, 2022 CAAF
LEXIS 278 (C.A.A.F. 12 Apr. 2022).
“The test for legal sufficiency is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” United
States v. Robinson, 77 M.J. 294, 297–98 (C.A.A.F. 2018) (quoting United States
v. Rosario, 76 M.J. 114, 117 (C.A.A.F. 2017)). “The term reasonable doubt, how-
ever, does not mean that the evidence must be free from conflict.” United States
v. Wheeler, 76 M.J. 564, 568 (A.F. Ct. Crim. App. 2017) (citing United States v.
Lips, 22 M.J. 679, 684 (A.F.C.M.R. 1986)), aff’d, 77 M.J. 289 (C.A.A.F. 2018).
“[I]n resolving questions of legal sufficiency, we are bound to draw every rea-
sonable inference from the evidence of record in favor of the prosecution.”
United States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001) (citations omitted).
As a result, “[t]he standard for legal sufficiency involves a very low threshold
to sustain a conviction.” United States v. King, 78 M.J. 218, 221 (C.A.A.F. 2019)
(alteration in original) (citation omitted), cert. denied, __ U.S. __, 139 S. Ct.
1641 (2019). The test for legal sufficiency “gives full play to the responsibility
of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evi-
dence, and to draw reasonable inferences from basic facts to ultimate facts.”
United States v. Oliver, 70 M.J. 64, 68 (C.A.A.F. 2011) (quoting Jackson v. Vir-
ginia, 443 U.S. 307, 319 (1973)).
“The test for factual sufficiency is ‘whether, after weighing the evidence in
the record of trial and making allowances for not having personally observed
the witnesses,’ [this] court is ‘convinced of the [appellant]’s guilt beyond a rea-
sonable doubt.’” United States v. Reed, 54 M.J. 37, 41 (C.A.A.F. 2000) (quoting
United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987)). “In conducting this
unique appellate role, we take ‘a fresh, impartial look at the evidence,’ applying
‘neither a presumption of innocence nor a presumption of guilt’ to ‘make [our]
own independent determination as to whether the evidence constitutes proof
of each required element beyond a reasonable doubt.’” Wheeler, 76 M.J. at 568(alteration in original) (quoting Washington, 57 M.J. at 399). This court’s re-
view of the factual sufficiency of evidence for findings is limited to the evi-
dence admitted at trial. See Article 66(c), UCMJ, 10 U.S.C. § 866(c); United
States v. Beatty, 64 M.J. 456, 458 (C.A.A.F. 2007) (citations omitted).
Appellant was convicted of murder while engaging in an act inherently
dangerous to another in violation of Article 118, UCMJ, which required the
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United States v. Cunningham, No. ACM 40093
Government to prove five elements beyond a reasonable doubt: (1) that ZC is
dead; (2) that ZC’s death resulted from the intentional acts of Appellant, spe-
cifically striking ZC in the head and shaking ZC on 3 March 2020 at or near
Rapid City, South Dakota; (3) Appellant’s act was inherently dangerous to an-
other and showed a wanton disregard for human life; (4) Appellant knew that
death or great bodily harm was a probable consequence of the act; and (5) the
killing was unlawful. See Manual for Courts-Martial, United States (2019 ed.),
pt. IV, ¶ 56.b.(3).
3. Analysis
During Appellant’s court-martial, the Government introduced convincing
evidence of his guilt. Most significantly, the evidence demonstrated that on the
morning of 3 March 2020, ZC was a healthy and happy baby and remained that
way until approximately 1500 that afternoon. The evidence also established
that sometime between 1500 and 1730, ZC suffered major injuries to his head
and brain while in the sole custody of Appellant, and those injuries resulted in
his death. This evidence was established by the testimony of ZC’s mother, ZC’s
daycare provider, and Appellant’s roommate, BS. BS also confirmed ZC was
“super fussy” after 1500 on the afternoon of 3 March 2020, and that Appellant
sounded like he was angry and he either threw something or “stomped” on the
floor. She explained she was so concerned that she sent a text message to her
husband regarding what she heard. BS testified Appellant called her name and
came rushing to her room asking for help moments after she sent the text. She
testified that ZC was “limp” and not acting “normal.” The Government also
presented testimony from three medical experts who all stated ZC’s multiple
injuries to his head and brain were consistent with being punched and shaken.
Finally, the Government presented Appellant’s own statements to Detectives
SW and DH, where he admitted to punching ZC in the forehead out of frustra-
tion.
We are not persuaded that Appellant only admitting to punching ZC in the
head one time somehow weakens the Government’s case. In fact, even without
Appellant’s admission, the evidence admitted into the record at trial provides
a factually and legally sufficient basis for Appellant’s conviction. Nor are we
persuaded that the character evidence related to Appellant’s general nature
for peacefulness overcomes evidence of guilt. We conclude that viewing the ev-
idence in the light most favorable to the Prosecution demonstrates a rational
trier of fact could have found the essential elements of murder while engaging
in an act inherently dangerous to another beyond a reasonable doubt. See Rob-
inson, 77 M.J. at 297−98. Furthermore, after weighing the evidence in the rec-
ord of trial and making allowances for not having personally observed the wit-
nesses, we are ourselves convinced of Appellant’s guilt beyond a reasonable
doubt. See Reed, 54 M.J. at 41 (citation omitted).
12
United States v. Cunningham, No. ACM 40093
B. Expert Witness Request
Appellant argues the military judge abused his discretion in denying a de-
fense request for an expert witness. Specifically, Appellant contends that he
was entitled to the production of a forensic psychologist with expertise in false
confessions, because “the false confession was the heart of Appellant’s defense.”
Appellant asks us to set aside his conviction and sentence. We find that the
military judge did not abuse his discretion and conclude that no relief is war-
ranted.
1. Additional Background
Defense counsel requested the appointment of Dr. SR as an expert consult-
ant on 13 December 2020. Dr. SR is a forensic psychologist who specializes and
teaches in the field of false confessions. On 22 January 2021, the convening
authority denied Appellant’s request.5 On 27 January 2021, Defense moved the
court to compel the production of Dr. SR as an expert consultant. The Govern-
ment filed a response in opposition on 28 January 2021. Neither side requested
an Article 39(a), UCMJ, 10 U.S.C. § 839(a), hearing on the issue and none was
held. In support of their motion, the Defense did not offer any statement from
Appellant claiming that any part of his statement to law enforcement was false
or any statement from Dr. SR on how the science behind false confessions ap-
plied to Appellant’s case. On 3 February 2021, after considering the filings of
the parties, the military judge issued his written ruling denying the motion to
compel.
In his written ruling, the military judge indicated he had considered the
defense arguments and he addressed Appellant’s failure to establish (1) that
an expert would be of assistance to the Defense, and (2) that denial of the ex-
pert assistance would result in a fundamentally unfair trial. As to the first
prong, the military judge concluded the Defense failed to establish why the
expert was needed. Specifically, the military judge stated that the Defense
“provided little evidence, if any to support the contention the [Appellant] made
[a] false [ ] statement[ ].” The military judge also explained that “the [D]efense
proffered no information, academic or otherwise, that connect[ed] the facts of
this case with a false confession.” The military judge concluded no evidence
was presented that indicated “the evidence at issue [was] beyond the ability of
the [Appellant’s] accomplished defense counsel.” As to the second prong, the
military judge found the Defense failed to demonstrate how the denial of expert
5 Four months earlier, on 6 August 2020, the convening authority had appointed
Dr. KG as a confidential expert consultant for the Defense in the field of forensic psy-
chology. The court further notes that the convening authority also provided additional
expert consultants in the fields of forensic pathology, pediatric radiology, and child-
abuse pediatrics.
13
United States v. Cunningham, No. ACM 40093
assistance would result in a fundamentally unfair trial. The military judge
again explained that “the [D]efense has the tools necessary to appropriately
defend the [Appellant] during the merits portion of [the] trial and present evi-
dence in extenuation and mitigation, should th[e] case reach the sentencing
phase of [the] trial.”
2. Law
We review a military judge’s ruling on a motion to compel expert assistance
for an abuse of discretion. United States v. Anderson, 68 M.J. 378, 383
(C.A.A.F. 2010) (citation omitted). “An abuse of discretion occurs when the trial
court’s findings of fact are clearly erroneous or if the court’s decision is influ-
enced by an erroneous view of the law.” United States v. Lloyd, 69 M.J. 95, 99
(C.A.A.F. 2010) (quoting United States v. Freeman, 65 M.J. 451, 453 (C.A.A.F.
2008)).
This “standard is a strict one, calling for more than a mere difference of
opinion. The challenged action must be arbitrary, fanciful, clearly unreasona-
ble, or clearly erroneous.” United States v. McElhaney, 54 M.J. 120, 130
(C.A.A.F. 2000) (internal quotation marks and citations omitted). “[T]he abuse
of discretion standard of review recognizes that a judge has a range of choices
and [a military judge’s decision] will not be reversed so long as the decision
remains within that range.” United States v. Gore, 60 M.J. 178, 187 (C.A.A.F.
2004) (citation omitted). “When judicial action is taken in a discretionary mat-
ter, such action can not be set aside by a reviewing court unless it has a definite
and firm conviction that the court below committed a clear error of judgment
in the conclusion it reached upon weighing of the relevant factors.” United
States v. Ellis, 68 M.J. 341, 344 (C.A.A.F. 2010) (quoting United States v.
Sanchez, 65 M.J. 145, 148 (C.A.A.F. 2007)).
Our superior court has also explained that:
[S]ervicemembers are entitled to . . . expert assistance when nec-
essary for an adequate defense. The mere possibility of assis-
tance is not sufficient to prevail on the request. Instead, the ac-
cused has the burden of establishing that a reasonable probabil-
ity exists that (1) an expert would be of assistance to the defense
and (2) that denial of expert assistance would result in a funda-
mentally unfair trial. To establish the first prong, the accused
must show (1) why the expert assistance is needed; (2) what the
expert assistance would accomplish for the accused; and (3) why
the defense counsel were unable to gather and present the evi-
dence that the expert assistance would be able to develop.
Freeman, 65 M.J. at 458 (first alteration in original) (internal quotation marks
and citations omitted).
14
United States v. Cunningham, No. ACM 40093
3. Analysis
Neither party contends that the military judge’s findings of fact were
clearly erroneous. We agree that there is sufficient evidence in the record to
support the military judge’s findings of fact. Therefore, we turn our attention
to the military judge’s application of the law. We note at the outset that Appel-
lant does not allege the military judge applied incorrect principles of law. In
fact, Appellant cites much of the same authority the military judge relied upon
in his ruling. Instead, Appellant argues that the military judge reached the
wrong conclusion. Therefore, we review whether the military judge’s decision
was clearly unreasonable—and conclude that it was not.
We find that the military judge’s application of the law to the facts was not
clearly unreasonable because the Defense did not establish the necessity of the
requested expert assistance. At best, the Defense showed that an expert in
false confessions offered the mere possibility of assistance. In its motion to com-
pel, the Defense stated an expert was needed to examine “issues surrounding
susceptibility to suggestion, the methods [law enforcement officers] used, and
how those factors potentially caused [Appellant] to provide a false explanation
for his son’s injuries.” (Emphasis added). We note the Defense never actually
provided any evidence that the confession Appellant made to law enforcement
officers was false. Additionally, we find that Appellant presented no evidence
that he suffered from any abnormal mental or emotional problems that made
him susceptible to making false incriminatory statements in response to crim-
inal accusations. See United States v. Bresnahan, 62 M.J. 137, 143 (C.A.A.F.
2005) (denial of a defense request for expert assistance was not an abuse of
discretion where defense failed to provide evidence that the confession was ac-
tually false).
Furthermore, we do not find that the military judge abused his discretion
in concluding that an expert was not necessary to present or understand evi-
dence relating to what Appellant told law enforcement officials. We agree with
the military judge’s conclusion that this evidence was not overly complicated,
and that Appellant’s defense counsel were more than capable, and in fact did
challenge and explain the substance of Appellant’s interview with the RCPD
detectives. Here, the military judge clearly articulated his findings of fact and
conclusions of law, and his decision was not based on an incorrect view of the
law. Therefore, we find that the military judge did not abuse his discretion
when he denied the defense motion to compel expert assistance in the field of
forensic psychology with expertise in false confessions.
C. Format of Victim Impact Unsworn Statement
Appellant contends the military judge abused his discretion by allowing the
victim’s representative to present a victim impact statement that included a
15
United States v. Cunningham, No. ACM 40093
PowerPoint presentation containing videos, personal pictures, stock images of
future events, and lyrical music that touched on themes of dying, saying fare-
well, and becoming an angel in heaven. While we agree with Appellant that
the military judged erred, we do not find that Appellant suffered any prejudice
as a result of the error, and thus find no relief is warranted.
1. Additional Background
During the Government’s sentencing case, both CM and CM’s mother tes-
tified under oath and without objection. CM’s mother primarily testified about
the impact of ZC’s death on her and CM. More specifically, CM’s mother testi-
fied about receiving a “hysterical” phone call from CM on 3 March 2020 regard-
ing ZC’s medical emergency. She described how she immediately flew to her
daughter’s side and was present with her at the hospital for ZC’s last days of
life. She told the military judge that seeing ZC in the hospital was “horrific”
and “the worst thing [she] ever had to witness in [her] entire life.” She de-
scribed the days leading up to his death as “[e]xactly what [she] imagined [her]
hell would be.” CM’s mother also explained she was deeply impacted by ZC’s
death, telling the military judge that his death and watching her daughter
grapple with it “changed [her] entire life” and there were days when she could
not get out of bed or function normally. She also described how, shortly before
trial, she requested medication to help her cope with her grief and there were
days where she considered taking her own life. CM’s mother also described the
negative impact ZC’s death had on her daughter, stating that “[a]lmost every
night I get [S]napchats of my child crying, talking about how she misses her
child, [and how] she misses being a mommy.”
During CM’s testimony, she described how excited she was to become a
mother, how horrifying it was when she received the phone call that ZC was
being rushed to the hospital, and the difficult days she spent in the hospital
with ZC hoping that he would recover. She also described, in great detail, the
process of deciding to withdraw life support, the moment ZC died in her arms,
and her suffering after his death. In terms of the impact of ZC’s death, CM
described that she “lost nearly everything” including her ability to trust others,
her child, her relationship with Appellant, and “the future [she] thought [she]
had.” CM said she still thinks about ZC “[e]very minute of every day.” As part
of her testimony, CM referenced three pages of pictures which were later ad-
mitted as a prosecution exhibit. The first page was a photo of the wall in ZC’s
hospital room that was covered in photos she had hung and a “#[ZC]strong”
sign. The second page was a photo of CM looking at ZC in the hospital, and the
third page was a photo of CM cuddling ZC in his hospital bed.
Following the conclusion of the Government’s sentencing case, CM, who
had been appointed as the Article 6b, UCMJ, 10 U.S.C. § 806b, representative
for ZC, made an unsworn statement. The unsworn statement consisted of CM
16
United States v. Cunningham, No. ACM 40093
orally addressing the military judge while using a PowerPoint slide show that
consisted of pictures, videos, music with lyrics, and stock images of important
life events. Prior to the unsworn statement, the Defense objected to the
slideshow. In particular, the Defense argued the slideshow was not an oral or
written statement within the meaning of Rule for Courts-Martial (R.C.M.)
1001(c), and that it was designed to appeal to emotion. The military judge over-
ruled the objections.
2. Law
We review a military judge’s interpretation of R.C.M. 10016 de novo, but
review a decision regarding the presentation of victim impact statements in
presentencing for an abuse of discretion. See United States v. Hamilton, 78
M.J. 335, 340 (C.A.A.F. 2019); United States v. Barker, 77 M.J. 377, 382−83
(C.A.A.F. 2018). A military judge abuses his or her discretion when he or she
makes a ruling based on an erroneous view of the law. See Barker, 77 M.J. at
383.
Article 6b, UCMJ, details several rights belonging to crime victims. Among
them are “[t]he right to be reasonably heard at . . . [a] sentencing hearing re-
lating to the offense,” and “[t]he reasonable right to confer with the counsel
representing the Government” at a court-martial proceeding relating to the of-
fense. Articles 6b(a)(4)(B) and 6b(a)(5), UCMJ, 10 U.S.C. § 806b(a)(4)(B),
806b(a)(5); see also R.C.M. 1001(c)(1) (“[A] crime victim of an offense of which
the accused has been found guilty has the right to be reasonably heard at the
presentencing proceeding relating to that offense.”).
“The crime victim may make an unsworn statement and . . . [t]he unsworn
statement may be oral, written, or both.” R.C.M. 1001(c)(5)(A). “[T]he right to
make an unsworn victim statement belongs solely to the victim or the victim’s
designee and not to trial counsel.” United States v. Edwards, ___ M.J. ___, No.
21-0245, 2022 CAAF LEXIS 283, at *16 (C.A.A.F. 14 Apr. 2022) (first citing
Barker, 77 M.J. at 378; and then citing Hamilton, 78 M.J. at 342). This “right
‘is separate and distinct from the [G]overnment’s right to offer victim impact
statements in aggravation, under R.C.M. 1001(b)(4).”’ Id. (quoting Barker, 77
M.J. at 378).
Notwithstanding a victim’s right to be reasonably heard, a military judge
has the responsibility to “[e]nsure that the dignity and decorum of the
6 Rules addressing a victim’s right to be reasonably heard were contained in R.C.M.
1001A, Manual for Courts-Martial, United States (2016 ed.). However, those rules are
now contained in R.C.M. 1001(c). 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).”). Our analysis cites
to these versions as applicable.
17
United States v. Cunningham, No. ACM 40093
proceedings are maintained,” and shall “exercise reasonable control over the
proceedings.” R.C.M. 801(a)(2)–(3); see also LRM v. Kastenberg, 72 M.J. 364,
372 (C.A.A.F. 2013) (holding a victim’s “right to a reasonable opportunity to be
heard on factual and legal grounds” is “subject to reasonable limitations and
the military judge retains appropriate discretion under R.C.M. 801”).
When testing for prejudice in the context of sentencing, we determine
whether the error substantially influenced the adjudged sentence by consider-
ing “the following four factors: ‘(1) the strength of the Government’s case; (2)
the strength of the defense case; (3) the materiality of the evidence in question;
and (4) the quality of the evidence in question.”’ Hamilton, 78 M.J. at 343 (quot-
ing United States v. Bowen, 76 M.J. 83, 89 (C.A.A.F. 2017)). “An error is more
likely to be prejudicial if the fact was not already obvious from the other evi-
dence presented at trial and would have provided new ammunition against an
appellant.” Barker, 77 M.J. at 384 (citation omitted). An error is more likely to
be harmless when the evidence was not “critical on a pivotal issue in the case.”
United States v. Cano, 61 M.J. 74, 77−78 (C.A.A.F. 2005) (internal quotation
marks and citation omitted).
3. Analysis
In light of our superior court’s recent decision in Edwards, we find that the
military judge erred by allowing the victim’s Article 6b representative to use a
PowerPoint presentation that included videos, personal pictures, stock images
of future events, and lyrical music, because the contents of the pictures, music
and videos were neither a written nor oral statement within the scope of
R.C.M. 1001(c). 2022 CAAF LEXIS 283, at *16.
In Edwards, the Court of Appeals for the Armed Forces (CAAF), deter-
mined the military judge abused his discretion when he allowed the deceased
victim’s father to present an unsworn impact statement that included a video
produced by trial counsel. Id. at *1–2. The video featured trial counsel inter-
viewing the victim’s family and a slide show of photographs set to acoustic
background music. Id. The court concluded the military judge had erred for
two reasons: (1) a video including acoustic music and pictures is neither a writ-
ten nor oral statement as required by the Rules for Courts-Martial, and (2)
because trial counsel produced the video, the statement was—in part—trial
counsel’s rather than that of the victim, while the right to make a statement
solely belongs to victim or the victim’s designee. Id. at *2. The majority in Ed-
wards determined that a remedy was warranted because the Government had
not met its burden to show that the video did not substantially influence the
sentence. Id. at *2–3.
As in Edwards, the presentation here exceeded the scope of a written or
oral statement; therefore, we conclude the military judge erred, and we turn
18
United States v. Cunningham, No. ACM 40093
our attention to the question of prejudice. We find the Government has demon-
strated that the use of the PowerPoint presentation did not substantially in-
fluence Appellant’s sentence and therefore conclude that no remedy is war-
ranted.
Specifically, we find that the four factors articulated in Barker all weigh in
the Government’s favor. 77 M.J. at 384. First, the Government’s case was ex-
ceptionally strong. The evidence in aggravation showed that Appellant killed
his 5-month-old son after he became frustrated with his child’s crying. The tes-
timony of CM and the child’s grandmother described in great detail how excited
CM was to become a mother, what it was like for them to get the phone call
that ZC was being rushed to the hospital, the painful days in the hospital with
ZC hoping he would recover, the process of deciding to withdraw ZC’s life sup-
port, the moment ZC died in CM’s arms, and the long-lasting impacts they both
continued to suffer.
With respect to the second factor, we find Appellant’s sentencing case was
weak relative to the Government’s case. The Defense called a number of wit-
nesses to speak to Appellant’s rehabilitative potential, some of whom had al-
ready testified in findings. Most of the admitted witness testimony was in the
form of pre-recorded video statements. Appellant also gave a verbal unsworn
statement in a question-and-answer format. The unsworn statement was fo-
cused on Appellant’s own pain, the fact that he was not able to support CM
emotionally following ZC’s death, and that he did not get to say good-bye to ZC
or attend the funeral because he was in pretrial confinement. We find this fac-
tor also weighs in the Government’s favor.
The third factor—the materiality of the evidence—also weighs in favor of
the Government. As our superior court noted in Edwards, prejudice is more
likely when “the information conveyed as a result of the error was not already
obvious from what was presented at trial.” 2022 CAAF LEXIS 283, at *21 (ci-
tation omitted). Overall, we find the information contained in the PowerPoint
presentation was cumulative to the information that had already been properly
received during both the trial and sentencing proceedings. In fact, both CM
and her mother had already testified during the sentencing proceedings and
conveyed the profound pain and devastating impact that Appellant’s crime had
on them. Additionally, unlike Edwards, trial counsel did not play or use any
portion of the victim’s unsworn statement in her sentencing argument. This
supports our conclusion that the PowerPoint was not material at trial and
pushes the third factor in favor of the Government.
The fourth Barker factor, the quality of the evidence, also weighs in favor
of the Government. We highlight an important difference between this case
and the circumstances that occurred in Edwards. In Edwards, the CAAF found
that the statement was improper, and that remedy was appropriate, in part,
19
United States v. Cunningham, No. ACM 40093
because it deemed the video was actually a statement from the trial counsel
and not a statement of the victim. Here, ZC’s Article 6b, UCMJ, representative,
CM, created the PowerPoint presentation herself. CM chose the pictures, and
she picked the videos and music. Neither party suggests on appeal that trial
counsel had any involvement whatsoever. Moreover, it is also worth noting
that in this case, trial counsel did not present or play the presentation. Instead,
CM spoke in person, directly to the military judge, and used the slide presen-
tation as a demonstrative aid to help illustrate her words. Unprompted and
without questions from trial counsel, CM spoke directly to the military judge,
in a military judge alone sentencing proceeding, for almost three pages of the
transcript. We find CM’s spoken words comply with the requirements for a
proper victim’s statement under R.C.M. 1001(c) and thus would have conveyed
the same basic message even without the use of the PowerPoint presentation.
Finally, as noted above, trial counsel did not play or reference any part of the
unsworn statement during argument, and the unsworn statement contributed
little to the Government’s case that was not already evident through properly
admitted evidence. For these reasons, we find the fourth factor also favors the
Government and leads to our conclusion the Government has shown that the
PowerPoint presentation did not substantially influence Appellant’s sentence.
D. Trial Counsel’s Sentencing Argument
Appellant claims that trial counsel committed prosecutorial misconduct
during her sentencing argument. Specifically Appellant argues that trial coun-
sel improperly (1) argued that Appellant struck ZC as a result of his built-up
frustration and anger with ZC’s crying; (2) referenced the media attention and
members present in the courtroom to improperly pressure the military judge;
and (3) argued that Appellant’s false statements were matters in aggravation.
The Defense did not object at any point during argument. We conclude that
trial counsel’s argument was not plainly improper.7
1. Additional Background
Appellant elected to be tried by a panel of officer and enlisted members.
Once he was convicted, Appellant elected to be sentenced by military judge
alone. During the findings portion of the trial, the Government introduced mul-
tiple statements Appellant made to his roommate (BS), first responders, and
law enforcement investigators about the cause of ZC’s injuries. Because the
statements contradicted each other, the military judge instructed the members
7 Appellant also requests that even if we determine that issues 3 and 4 warrant no
relief individually, that we consider and issue a ruling on the cumulative effect of the
alleged sentencing errors. Since we only find error with regard to issue 3, we find the
doctrine of cumulative error inapplicable to Appellant’s case. See United States v.
Banks, 36 M.J. 150, 170–71 (C.M.A. 1992).
20
United States v. Cunningham, No. ACM 40093
before findings on the use of false exculpatory statements. Specifically, he ad-
vised:
If you believe there has been evidence that, after the offense al-
legedly committed, the accused may have given false explana-
tions about the alleged offense or surrounding facts and circum-
stances, consider this:
Conduct of an accused, including statements made and acts done
upon being informed that a crime may have been committed or
upon being confronted with a criminal charge, may be consid-
ered by you in light of other evidence in the case in determining
the guilt or innocence of the accused.
If an accused voluntarily offers an explanation or makes some
statement tending to establish his innocence, and such explana-
tion or statement is later shown to be false, you may consider
whether this circumstantial evidence points to consciousness of
guilt. You may infer that an innocent person does not ordinarily
find it necessary to invent or fabricate a voluntary explanation
or statement tending to establish his innocence. The drawing of
this inference is not required.
Whether the statement made, was voluntary, or was false is for
you to decide. You may also properly consider the circumstances
under which the statements were given, such as the environ-
ment, under which they were given.
Whether evidence as to an accused’s voluntary explanation or
statement points to a consciousness of guilt, and the signifi-
cance, if any, to be attached to any such evidence, are matters
for determination by you, the court members.
Later during an Article 39(a), UCMJ, session, after findings had been an-
nounced but before the sentencing phase began, the parties argued the admis-
sibility of additional false exculpatory statements Appellant made to various
family members or friends who were on the defense witness list for sentencing.
The evidence discussed during this session concerned Appellant’s statements
that he was forced by police to confess and that he did not remember confess-
ing. Trial counsel eventually withdrew their request to admit these state-
ments.
The Defense called a number of live witnesses during its sentencing case.
During cross-examination of the character witnesses, trial counsel asked a se-
ries of questions about whether the witnesses were aware of the false state-
ments Appellant had made about lack of memory of his confession, lack of
memory about what happened to ZC, and being forced to confess by police. Trial
21
United States v. Cunningham, No. ACM 40093
defense counsel objected to these questions, but the objections were overruled.
The military judge ruled the questions were permissible under R.C.M.
1001(b)(5)(e) since evidence of Appellant’s rehabilitative potential was elicited
from the witnesses by trial defense counsel.
Trial counsel organized the Government’s sentencing argument into three
sections: aggravation, mitigation, and victim impact. During the aggravation
portion of the argument, trial counsel began by discussing the nonviolent
choices Appellant had when ZC was inconsolable on the day of the crime. Trial
counsel then played a video clip of Appellant’s law enforcement interview
where Appellant acknowledged, “[I]nstead of going downstairs and asking my
roommate for help, I just let the frustration, the anger, just build up inside
me.” Immediately following the video clip, trial counsel stated “this is aggra-
vating” and went on to argue that despite having multiple viable nonviolent
avenues for ZC’s care, Appellant let his anger and frustration get the best of
him and chose to resort to violence.
Trial counsel then discussed the false statements Appellant made about
the cause of ZC’s injuries which had been admitted during the Government’s
case-in-chief. More specifically, trial counsel argued that Appellant’s false
statements about the source of his son’s injuries were aggravating because they
showed a lack of remorse and compromised his son’s treatment:
But what he does not do, he doesn’t tell the truth about what
just happened? In that split second [Appellant] goes from beat-
ing his son into self-preservation mode. He is more interested in
protecting himself, keeping himself out of trouble then [sic] get-
ting his son the help that he so desperately needs. He tells [his
roommate], I don’t know what happened. A couple of minutes
later, the first responders show up, he has a little bit more time,
and he tells them well, I’m not sure what happened, [ZC] was
feeding and ma[de] some choking noise. But I just don’t know
what happened.
He gets to the hospital, and the doctors say, your kid has a bruise
on his head. So, then [Appellant] says, oh well it was the taco --
or the bouncy thing, the jumper. And then when he goes to law
enforcement, while his son is fighting for his life, [Appellant]
tells lie, after lie, after lie, after lie, until we finally get a piece of
truth. [Appellant] finally admits, yes, I punched my son.
....
[Appellant’s] repeated lies were designed to keep him out of trou-
ble and were in complete disregard to the well-being and safety
22
United States v. Cunningham, No. ACM 40093
of his baby. These are aggravating circumstances surrounding
the [Appellant]’s crime.
During the rehabilitation section of her argument, trial counsel mentioned
the false statements Appellant made regarding memory loss of his confession
and being forced by law enforcement to confess. Trial counsel then went on to
highlight the impact of Appellant’s crime on ZC, CM, and members of their
family.
Trial counsel concluded her argument by urging the military judge to con-
sider general deterrence in assessing the sentence:
This shows you how serious the [Appellant]’s crime is. Your sen-
tence, Your Honor, must reflect that. You have seen the media,
and you see the people in the courtroom, and you have heard
witness testimony talking about the media interest in this case,
the world is watching. The world wants to know what price tag
you’re going to put on this [Appellant] for murdering his son.
Send a message that promotes respect for the law. Send a mes-
sage to deter others from ever thinking of doing what [Appellant]
did. And send a message to promote justice in this case, Your
Honor. And that must include at least 20 to 25 years[’] confine-
ment, a dishonorable discharge, and reduction in rank to E-1,
and total forfeitures.
Trial defense counsel did not object at any point during trial counsel’s sen-
tencing argument. At the conclusion of trial defense counsel’s sentencing argu-
ment, the military judge offered both parties another opportunity to object to
opposing counsel’s argument. Both parties answered in the negative.
2. Law
Whether an accused has waived or merely forfeited an issue is a question
of law we review de novo. United States v. Ahern, 76 M.J. 194, 197 (C.A.A.F.
2017) (citing United States v. Rosenthal, 62 M.J. 261, 262 (C.A.A.F. 2005)).
“Whereas forfeiture is the failure to make the timely assertion of a right,
waiver is the intentional relinquishment or abandonment of a known right.”
Id. (quoting United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009)). Issues
that are waived leave no error for this court to correct on appeal. United States
v. Campos, 67 M.J. 330, 332 (C.A.A.F. 2009) (citing United States v. Pappas,
409 F.3d 828, 830 (7th Cir. 2005)). An affirmative statement that an Accused
at trial has “no objection” generally “constitutes an affirmative waiver of the
right or admission at issue.” United States v. Swift, 76 M.J. 210, 217 (C.A.A.F.
2017) (citations omitted).
23
United States v. Cunningham, No. ACM 40093
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 United States v. Erick-
son, 65 M.J. 221, 223 (C.A.A.F. 2007)). 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.” United States v. Bungert, 62 M.J. 346, 348 (C.A.A.F.
2006).
During sentencing argument, “[t]rial counsel may . . . refer to the sentenc-
ing considerations set forth in R.C.M. 1002(f).” R.C.M. 1001(h). These consid-
erations include “the nature and circumstances of the offense and the history
and characteristics of the accused.” R.C.M. 1002(f)(1). They also include the
“impact of the offense on” the “social, psychological, or medical well-being of
any victim of the offense,” R.C.M. 1002(f)(2)(A), and on “the mission, discipline,
or efficiency of the command of the accused and any victim of the offense.”
R.C.M. 1002(f)(2)(B). In addition to these considerations, trial counsel may re-
fer to the need for the sentence to: “(A) reflect the seriousness of the offense;
(B) promote respect for the law; (C) provide just punishment for the offense;
(D) promote adequate deterrence of misconduct; (E) protect others from further
crimes by the accused; [and,] (F) rehabilitate the accused . . . .” R.C.M. 1001(h);
R.C.M. 1002(f)(3).
“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. United States v. Tyler, 81 M.J. 108, 113 (C.A.A.F. 2021).
“During sentencing argument, the trial counsel is at liberty to strike hard,
but not foul, blows.” United States v. Halpin, 71 M.J. 477, 479 (C.A.A.F. 2013)
(internal quotation marks and citation omitted). “[T]he argument by a trial
counsel must be viewed within the context of the entire court-martial.” United
States v. Baer, 53 M.J. 235, 238 (C.A.A.F. 2000). “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).
“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 Baer,
53 M.J. at 237). Three factors “guide our determination of the prejudicial effect
of improper argument: ‘(1) the severity of the misconduct, (2) the measures
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United States v. Cunningham, No. ACM 40093
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) (al-
teration 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 ap-
pellant was sentenced on the basis of the evidence alone.” Halpin, 71 M.J. at
480 (alteration, internal quotation marks, and citation omitted).
“[T]he lack of a defense objection is ‘some measure of the minimal impact
of a prosecutor’s improper comment.”’ United States v. Gilley, 56 M.J. 113, 123
(C.A.A.F. 2001) (quoting United States v. Carpenter, 51 M.J. 393, 397 (C.A.A.F.
1999)).
“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
The Government argues that trial defense counsel waived any objection to
trial counsel’s argument by virtue of announcing they had no objections at the
end of the argument and that we should not address any of the issues raised
by Appellant on appeal regarding trial counsel’s argument. We decline the Gov-
ernment’s request, instead consider the issues forfeited, and review for plain
error.
Appellant first contends trial counsel improperly argued that Appellant
struck ZC out of his built-up anger and frustration with ZC’s crying. Appellant
reasons that this evidence constituted the actus reus of the offense, and there-
fore was not proper evidence of aggravation. We disagree. The actus reus of
Appellant’s crime was striking ZC in the head and shaking ZC. Here, trial
counsel commented on properly admitted evidence and argued it was an ag-
gravating factor that Appellant’s motive was anger and frustration when he
had multiple other nonviolent options for ZC’s care. These matters related di-
rectly to the offense of which Appellant was convicted. We find no error, plain
or otherwise, with this argument.
Next, Appellant contends that trial counsel’s reference to the media and
spectator attention on the case was improper because it improperly pressured
the military judge to comply with trial counsel’s sentence recommendation. We
disagree and find trial counsel’s argument was a permissible method to argue
for general deterrence and justice.
For support, Appellant relies on United States v. Norwood, 81 M.J. 12(C.A.A.F. 2021). In that case, the trial counsel asked the members, without
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United States v. Cunningham, No. ACM 40093
objection, to think about what would happen “when you all return to your nor-
mal duties . . . . [A]nd someone asks you . . . . ‘Wow, what did [Appellant] get
for that?’ Do you really want your answer to be ‘nothing at all’?” Id. at 19 (al-
terations in original). Under a plain error standard of review, the CAAF set
aside the sentence, finding the trial counsel had improperly “pressured the
members to consider how their fellow service-members would judge them and
the sentence they adjudged instead of the evidence at hand.” Id. at 21. The
CAAF reasoned, “Arguing an inflammatory hypothetical scenario with no basis
in evidence amounts to improper argument that we have repeatedly, and quite
recently, condemned.” Id. (citing United States v. Voorhees, 79 M.J. 5, 14–15
(C.A.A.F. 2019)). The CAAF reminded practitioners that “[t]rial counsel may
properly ask for a severe sentence, but [they] cannot threaten the court mem-
bers with the specter of contempt or ostracism if they reject [their] request.”
Id. (alterations in original) (quoting United States v. Wood, 40 C.M.R. 3, 9
(C.M.A. 1969)).
However, in our view, unlike Norwood, the remarks here cannot be under-
stood to pressure or threaten the military judge with contempt or ostracism
from others if he reached a sentence that was less than trial counsel’s recom-
mended sentence. At no point did trial counsel suggest that others would judge
him unfavorably if he imposed, or did not impose, a certain sentence. Trial
counsel frequently referenced the evidence in the case, explaining the aggra-
vating circumstances of Appellant’s crime, and argued that the sentence
should promote general deterrence, respect for the law, and justice. As our
court has recently stated, “We decline to extend Norwood to remarks aimed at
specific or general deterrence that are founded in the record and devoid of pres-
sure or threats.” United States v. Jackson, No. ACM 39955, 2022 CCA LEXIS
300, at *95 (A.F. Ct. Crim. App. 23 May 2022) (unpub. op.). We therefore con-
clude that Appellant has not demonstrated trial counsel’s argument, in con-
text, was clear or obvious error. See Erickson, 65 M.J. at 223.
Finally, Appellant claims that trial counsel’s reference to false statements
was not proper evidence in aggravation. Appellant bases his argument, in part,
on the premise that trial counsel acknowledged Appellant’s statements regard-
ing being forced by police to confess and not remembering his confession were
not proper matters of aggravation. However, we see no evidence that trial coun-
sel used these statements at all during argument. The only false statements
trial counsel argued as evidence in aggravation were statements Appellant
made to his roommate, first responders, and law enforcement about the cause
of ZC’s injuries. This was permissible because the evidence showed, and trial
counsel argued, that having an accurate history of how the injuries occurred
would have assisted in providing ZC medical care. In fact, this argument was
supported by multiple medical providers who testified about the importance of
having an accurate history of a patient’s injury when providing treatment.
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United States v. Cunningham, No. ACM 40093
Additionally, during the interview with Appellant, Detective SW informed him
that an accurate history would help medical providers care for ZC. Using this
evidence, trial counsel argued that Appellant’s false statements were aggra-
vating because Appellant was “more interested in protecting himself, keeping
himself out of trouble” than getting ZC “the help he so desperately need[ed]”
and Appellant’s “lies were designed to keep him out of trouble and were in
complete disregard to the well-being and safety of his baby.” We do not find
that trial counsel engaged in the improper argument of saying merely lying
about the offense alone constituted aggravating evidence. Rather, we find that
trial counsel properly connected the false statements to the negative impact on
ZC’s medical care, which he was only receiving as a direct result of Appellant’s
crime. Therefore, we conclude Appellant has failed to show that trial counsel’s
argument constituted plain or obvious error.
Even if we were to assume error, plain or obvious, the sentencing authority
in this case was a military judge, sitting alone. Military judges are presumed
to know the law and to follow it absent clear evidence to the contrary. Erickson,
65 M.J. at 225 (citing United States v. Mason, 45 M.J. 483, 484 (C.A.A.F.
1997)). Here, there is no evidence to rebut that presumption. Finally, after
weighing the Fletcher factors together and considering trial counsel’s argu-
ments in context, we are confident that the military judge properly sentenced
Appellant on the basis of the evidence alone. Erickson, 65 M.J. at 224.
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). Accordingly, the find-
ings and the sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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