United States v. Tyler ( 2021 )

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Rodney M. TYLER, Master Sergeant
United States Air Force, Appellant
No. 20-0252
Crim. App. No. 39572
Argued February 9, 2021—Decided April 26, 2021
Military Judges: Matthew D. Talcott (arraignment)
and Jefferson D. Brown (trial)
For Appellant: Captain Matthew L. Blyth (argued);
Lieutenant Colonel Todd J. Fanniff (on brief); Major
Benjamin H. DeYoung and Major David A. Schiavone.
For Appellee: Major Dayle P. Percle (argued); Lieutenant
Colonel Matthew J. Neil and Mary Ellen Payne, Esq. (on
brief).
Judge SPARKS delivered the opinion of the Court, in
which Chief Judge STUCKY, and Judges OHLSON,
MAGGS, and HARDY, joined.
_______________
Judge SPARKS delivered the opinion of the Court.
Contrary to his pleas at a general court-martial, Appellant
was convicted by a panel of officer members of one
specification of aggravated sexual abuse of a child, two
specifications of indecent liberty with a child, and one
specification of an indecent act, in violation of Article 120,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920(2006 & Supp. V 2007–2012), 1 and two specifications of sexual
abuse of a child, in violation of Article 120b, UCMJ, 10 U.S.C.
1 These statutory provisions are reprinted in the Manual for
Courts-Martial, United States, Punitive Articles Applicable to
Sexual Offenses Committed During the Period 1 October 2007
Through 27 June 2012 app. 21 at A21-1 to A21-2 (2019 ed.).
United States v. Tyler, No. 20-0252/AF
Opinion of the Court
§ 920b (2012 & Supp. IV 2013–2017). 2 The members
sentenced Appellant to a bad-conduct discharge, confinement
for four years and six months, and a reduction to E-4. The
United States Air Force Court of Criminal Appeals affirmed
the findings and sentence as approved by the convening
authority. United States v. Tyler, No. ACM 39572, 2020 CCA
LEXIS 106 at *32, 2020 WL 1541058, at *12 (A.F. Ct. Crim.
App. Mar. 30, 2020) (unpublished). We granted review on the
following issue:
Whether the military judge erred when he permitted
trial counsel to argue facts not in evidence; namely,
the unsworn victim impact statements which were
not admitted as evidence under Rule for Courts-
Martial 1001(b)(4).
United States v. Tyler, 80 M.J. 346 (C.A.A.F. 2020) (order
granting review).
The military judge erred by ruling trial counsel could
argue the contents of the unsworn statements, admitted
under Rule for Courts-Martial (R.C.M.) 1001A (2016),
because the statements could have been admitted in the
Government’s sentencing case-in-chief under R.C.M.
1001(b)(4). Nonetheless, for the reasons set forth below, we
conclude that the military judge arrived at the correct result
in permitting trial counsel to comment on the unsworn victim
statements during presentencing argument. Therefore, we
affirm the decision of the lower court.
Background
Because the underlying facts leading to the charges and
convictions in this case are not relevant to the sentencing
issue before us, we need not engage in a lengthy recitation of
Appellant’s misdeeds. In short, Appellant’s court-martial
centered on his inappropriate actions toward his former
stepdaughter, ML, and his biological daughter, MC, both of
whom testified on the merits.
During presentencing, ML and MC elected to present
unsworn victim statements pursuant to R.C.M. 1001A. Prior
2 These statutory provisions are reprinted in the Manual for
Courts-Martial, United States, Punitive Articles Applicable to
Sexual Offenses Committed Between 12 June 2012 and 31
December 2018 app. 22 at A22-13 to A21-14 (2019 ed.).
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Opinion of the Court
to the victims reading their statements, trial defense counsel
objected to several portions of the statements for failing to
comply with the requirements of R.C.M. 1001A. The military
judge overruled the objection to ML’s statement. The military
judge also overruled some of trial defense counsel’s objection
to MC’s statement. To the portion where the military judge
agreed with trial defense counsel’s objection, MC elected to
amend her unsworn victim statement to conform to the
military judge’s ruling. ML and MC then provided oral
unsworn victim statements to the members.
During sentencing instructions, the military judge
instructed the members on how they were to consider the
unsworn victim statements:
The court will not draw any adverse inference
from the fact that a victim has elected to make a
statement in sentencing which is not under oath. An
unsworn statement is an authorized means for a
victim to bring certain information to the attention
of the court and must be given appropriate
consideration. This information may be considered
by you solely to evaluate the impact of the Accused’s
crimes on these victims, if any, or mitigating
matters. The victim cannot be cross-examined by
counsel, or interrogated by court members or me
upon an unsworn statement, but counsel may offer
evidence to rebut statements of fact contained in it.
The weight and significance to be attached to an
unsworn statement rests within the sound
discretion of each court member. You may consider
the statement is not under oath, its inherent
probability or improbability, whether it is supported
or contradicted by evidence in the case, as well as
any other matter that may have a bearing upon its
credibility. In weighing an unsworn statement, you
are expected to use your common sense and your
knowledge of human nature and the ways of the
world.
The Government commented on the contents of the
unsworn victim statements during its presentencing
argument. Trial defense counsel objected, arguing that
“[s]imply reference to [a victim’s unsworn statement] is
certainly permissible. But arguing it as if it’s evidence is …
where it crosses the line.” The military judge overruled the
objection and permitted trial counsel to comment on the
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Opinion of the Court
unsworn victim statements because, in his view, it was the
“same information that would otherwise be properly
admissible if offered in the Government’s [sentencing] case-
in-chief.”
Discussion
Appellant argues that the military judge erred by ignoring
the distinctions between R.C.M. 1001A and R.C.M. 1001(b)(4)
when he permitted trial counsel to comment on the victims’
unsworn statements during presentencing argument.
Improper argument involves a question of law that we
review de novo. United States v. Frey, 73 M.J. 245, 248
(C.A.A.F. 2014). Typically, “trial counsel is … prohibited from
injecting into argument irrelevant matters, such as personal
opinions and facts not in evidence.” United States v. Schroder,
65 M.J. 49, 58 (C.A.A.F. 2007). However, trial counsel is
entitled “to 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).
In 2013, Congress revised presentencing procedures by
enacting Article 6b(a)(4)(B), UCMJ, 10 U.S.C.
§ 806b(a)(4)(B), to give a victim the right to be “reasonably
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heard” at “[a] sentencing hearing” concerning the offense of
which he or she is the victim. The President promulgated
R.C.M. 1001A to “facilitate[] the statutory right ‘to be
reasonably heard.’ ” United States v. Hamilton, 78 M.J. 335,
339 (C.A.A.F. 2019) (internal quotation marks omitted)
(quoting United States v. Barker, 77 M.J. 377, 378 (C.A.A.F.
2018)). A victim may make a sworn or unsworn statement
during sentencing in a noncapital case. R.C.M.
1001A(b)(4)(B).
Separately, R.C.M. 1001(b)(4) governs what the
prosecution may present as evidence in aggravation during
presentencing, and permits trial counsel to “present evidence
as to any aggravating circumstances directly relating to or
resulting from the offenses of which the accused has been
found guilty.” R.C.M. 1001A “belongs to the victim, and is
separate and distinct from the government’s right to offer
3 National Defense Authorization Act for Fiscal Year 2014, Pub.
L. No. 113–66, § 1701, 127 Stat. 672, 952 (2013).
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victim impact statements in aggravation, under R.C.M.
1001(b)(4).” Barker, 77 M.J. at 378.
The Government did not offer the statements under
R.C.M. 1001(b)(4). Instead, the statements were admitted as
court exhibits by the military judge pursuant to R.C.M.
1001A. The military judge erred in reasoning that trial
counsel can argue the content of the unsworn statements
simply because they could have been admitted as substantive
evidence under R.C.M. 1001(b)(4). R.C.M. 1001A belongs to
the victim and is separate and distinct from R.C.M.
1001(b)(4). Barker, 77 M.J. at 378. We may, however, affirm
if the military judge arrived at the correct result, even if for
the wrong reason. See United States v. Robinson, 58 M.J. 429,
433 (C.A.A.F. 2003) (affirming a military judge’s denial of a
motion to suppress evidence where “the military judge
reached the correct result, albeit for the wrong reason”).
Ultimately, the military judge permitted trial counsel to
comment on the unsworn victim statements during
sentencing argument. The question now before us is, was this
the correct result?
If unsworn victim statements are part of the evidence of
record, they can be commented on by counsel in presentencing
argument. Baer, 53 M.J. at 237. In Hamilton, we explained:
[T]he Military Rules of Evidence are applicable to
sentencing [and] thus provid[e] procedural
safeguards to ensure the reliability of evidence
admitted during sentencing ... unsworn victim
impact statements are uniquely situated in the
substrate of the sentencing process. The plain
language of R.C.M. 1001A (2016) clearly
contemplates that at least some of the Military
Rules of Evidence are inapplicable to victim impact
statements.
78 M.J. at 342 (internal quotation marks omitted) (citation
omitted).
In Hamilton, however, we did not decide the full extent to
which the Military Rules of Evidence may or may not apply
to unsworn victim statements. Id. In the instant case, both
parties agree that the Military Rules of Evidence are
inapplicable to unsworn victim statements. For the reasons
that follow, we agree.
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Procedurally, the R.C.M. 1001A(b)(4)(B) right of a victim
to make an unsworn statement is akin to an accused’s R.C.M.
1001(c)(2)(C) right to make an unsworn statement. Like an
accused, a victim may, personally or through counsel, make
an unsworn statement orally, in writing, or both, and may not
be cross-examined or examined by the court upon it. R.C.M.
1001A(e); cf. R.C.M. 1001(c)(2)(C) (unsworn statement by an
accused may be made personally or though counsel, and it
may be made orally, in writing, or both, and may not be cross-
examined or examined by the court upon it).
Article 42(b), UCMJ, 10 U.S.C. § 842(b) (2012), requires a
witness to be sworn prior to giving testimony at a court-
martial. A victim exercising their right to be reasonably heard
at a sentencing proceeding under Article 6b, UCMJ, through
the procedure established by R.C.M. 1001A, however, “is not
considered a witness for the purposes of Article 42(b),
[UCMJ].” R.C.M. 1001A(a). This non-witness designation
strips an unsworn victim statement of its testimonial status,
which removes it from the purview of the Military Rules of
Evidence. In the accused unsworn statement context, we have
stated, “[t]he truth of the matter is that these statements are
not made under oath and, thus, the ‘unsworn statement is not
evidence.’ ” United States v. Marsh, 70 M.J. 101, 104 (C.A.A.F.
2011) (internal quotation marks omitted) (quoting United
States v. Breese, 11 M.J. 17, 24 (C.M.A. 1981)). Likewise,
unsworn victim statements are not made under oath, and are
thus not evidence.
Although the unsworn victim statement is not subject to
the Military Rules of Evidence, this does not mean that the
military judge is powerless to restrict its contents. In
Hamilton, 78 M.J. at 342, we cautioned that R.C.M. 1001A is
“not a mechanism whereby the government may slip in
evidence in aggravation that would otherwise be prohibited
by the Military Rules of Evidence.” Instead, the military judge
has an obligation to ensure the content of a victim’s unsworn
statement comports with the parameters of victim impact or
mitigation as defined by R.C.M. 1001A. See R.C.M. 1001A
Discussion (“A victim’s unsworn statement should not exceed
what is permitted under R.C.M. 1001A(c) .… Upon objection
by either party or sua sponte, a military judge may stop or
interrupt a victim’s unsworn statement that includes matters
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outside the scope of R.C.M. 1001A(c).”). While the military
judge is the gatekeeper for unsworn victim statements, an
accused nonetheless has a duty to state the specific ground
for objection in order to preserve a claim of error on appeal.
This procedure was followed in the instant case when trial
defense counsel objected to portions of the unsworn
statements for failing to comply with R.C.M. 1001A.
The next question is whether an unsworn victim
statement, although not evidence, can nevertheless be
commented on in presentencing argument.
“Ordinary rules of statutory construction apply in
interpreting the R.C.M.” United States v. Hunter, 65 M.J. 399,
401 (C.A.A.F. 2008). It is a general rule of statutory
construction that if a statute is clear and unambiguous—that
is, susceptible to only one interpretation—we use its plain
meaning and apply it as written. United States v. Kohlbek, 78
M.J. 326, 331 (C.A.A.F. 2019); United States v. Clark, 62 M.J.
195, 198 (C.A.A.F. 2005). We may also resort to case law to
resolve any ambiguity, although fundamentally “case law
must comport with [the statute], not vice versa.” United
States v. Warner, 62 M.J. 114, 120 n.30 (C.A.A.F. 2005). “We
assume that Congress is aware of existing law when it passes
legislation.” United States v. McDonald, 78 M.J. 376, 380
(C.A.A.F. 2019) (internal quotation marks omitted) (quoting
Miles v. Apex Marine Corp., 498 U.S. 19, 32 (1990)).
R.C.M. 1001(a) establishes a general sequence of
presentencing matters. Specifically, the prosecution starts by
providing service data and personal data relating to the
accused and the character of his or her prior service, evidence
of prior convictions, evidence of aggravation, and evidence of
rehabilitative potential. R.C.M. 1001(a)(1)(A). The
prosecution’s sentencing case is followed by the victim’s right
to be reasonably heard pursuant to R.C.M. 1001A. R.C.M.
1001(a)(1)(B). Finally, the defense presents evidence in
extenuation or mitigation. R.C.M. 1001(a)(1)(C). Importantly,
R.C.M. 1001(g), permits counsel, “[a]fter introduction of
matters relating to sentence” to “argue for an appropriate
sentence.”
The plain language of R.C.M. 1001(g) and its use of the
term “matters,” which encompasses an unsworn victim
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statement, implies that presentencing argument may include
comment on a victim’s unsworn statement. Kohlbek, 78 M.J.
at 331. Presentencing argument commenting on the unsworn
victim statement asks the military judge or the panel to
sentence an accused based upon a “matter[]” already properly
before them. Our previous case law comports with the view
that presentencing argument may include comment on the
victim’s unsworn statement. As noted above, while it is true
that typically, “trial counsel [are] prohibited from injecting
into argument irrelevant matters, such as personal opinions
and facts not in evidence,” Schroder, 65 M.J. at 58, this Court
has recognized that there are certain exceptions to the rule.
One such exception is for an accused’s unsworn statement,
where despite the fact the statement is not evidence, it is still
“subject to ... comment during the Government’s closing
argument.” United States v. Barrier, 61 M.J. 482, 484
(C.A.A.F. 2005). Again, the victim’s right to make an unsworn
statement is procedurally akin to the accused’s right of
allocution. Because we presume that Congress and the
President were aware of our case law interpreting an
accused’s unsworn statement, we further presume that they
intended unsworn victim statements to be treated similarly.
McDonald, 78 M.J. at 380.
Although the military judge erred in his reasoning with
regard to why trial counsel may comment on the contents of
the unsworn victim statement admitted under R.C.M. 1001A,
we agree with the military judge’s ultimate conclusion. In the
absence of explicit statutory limitation, or other clear
evidence of Congress’s or the President’s intent to limit
comment on unsworn victim statements in presentencing
argument, we hold either party may comment on properly
admitted unsworn victim statements. 4 Because application of
the correct law reaches the same outcome as that reached by
the military judge, the military judge’s error was harmless. 5
4 As he did at trial, Appellant maintains that there is a
distinction between referencing a victim’s unsworn statement and
arguing a victim’s unsworn statement. We disagree with this
distinction. Counsel’s comments concerning a victim’s unsworn
statement may include both references and arguments.
5 Of course, Congress may revise Article 6b, UCMJ, if it
disagrees with our statutory interpretation. See Kimble v. Marvel
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Decision
The judgment of the United States Air Force Court of
Criminal Appeals is affirmed.
Ent., LLC, 576 U.S. 446, 456 (2015) (noting that once a court
engages in statutory interpretation, it is up to Congress “for
acceptance or not as that branch elects”).
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