United States v. Andrews ( 2018 )

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Raiden J. ANDREWS,
Quartermaster Seaman Apprentice
United States Navy, Appellant
No. 17-0480
Crim. App. No. 201600208
Argued February 28, 2018—Decided May 22, 2018
Military Judge: Heather D. Partridge
For Appellant: Lieutenant Commander Jacob E. Meusch,
JAGC, USN (argued); Rebecca Snyder, Esq.
For Appellee: Captain Sean M. Monks, USMC (argued);
Colonel Valerie C. Danyluk, USMC, Major Kelli A. O’Neil,
USMC, and Brian K. Keller, Esq. (on brief).
Judge SPARKS delivered the opinion of the Court, in
which Chief Judge STUCKY, and Judges RYAN,
OHLSON, and MAGGS, joined.
_______________
Judge SPARKS delivered the opinion of the Court.
A panel with enlisted representation sitting as a general
court-martial convicted Appellant, contrary to his pleas, of
one specification of sexual assault in violation of Article 120,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920(2012). The panel acquitted Appellant of two other
specifications of sexual assault. Appellant was also
convicted, pursuant to his pleas, of unauthorized absence,
fleeing from apprehension, false official statement, use of
marijuana, and larceny in violation of Articles 86, 95, 107,
112a, and 121, UCMJ, 10 U.S.C. §§ 886, 895, 907, 912a, 921
(2012).
The members sentenced Appellant to reduction to E-1,
thirty-six months of confinement, forfeitures of $1,616.00
per month for thirty-six months, and a dishonorable
discharge. The convening authority changed the forfeiture
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Opinion of the Court
amount to $1,566.90,1 but approved the rest of the sentence
as adjudged. The United States Navy-Marine Corps Court of
Criminal Appeals affirmed the findings and sentence,
holding portions of trial counsel’s final argument contained
severe, but non-prejudicial prosecutorial misconduct. United
States v. Andrews, No. NMCCA 201600208, 2017 CCA
LEXIS 283, at *31, 2017 WL 1506072, at *13 (N-M. Ct.
Crim. App. Apr. 27, 2017). We granted review to determine
whether the lower court erred.2
In its brief, the Government argued the lower court erred
when it applied our precedent to review prosecutorial
misconduct for plain error, contending the lower court
should have held Appellant waived appellate review of
prosecutorial misconduct when his defense counsel failed to
object at trial.
We hold: (1) the lower court was correct to review for
plain error, and (2) trial counsel’s statements amounted to
plain, obvious error, but there was no material prejudice to
Appellant’s substantial rights.
Background
In May 2014, Appellant attended a party hosted by Petty
Officer (PO) Eric Krueger and his then wife, Rose Wade. PO
Jake Hills, PO Alejandro Garcia, PO Joshua Jones, his
wife—Sarah Garza—and AB—Ms. Wade’s civilian friend—
also attended the party.
The party began with drinks at the beach, where AB
drank two Mike’s Hard Lemonades. Appellant told Naval
Criminal Investigative Service (NCIS) he and PO Krueger
joked about Appellant potentially “get[ting] lucky with AB.”
PO Krueger, however, testified he told Appellant not to
“hook up” with AB after Appellant asked about sleeping
1 A sentence forfeiture must “state the exact amount in whole
dollars to be forfeited.” Rule for Courts-Martial (R.C.M.)
1003(b)(2). This aspect of the sentence should be corrected to a
whole dollar amount.
2 The specific granted issue is, “The lower court found severe
prosecutorial misconduct. Then it affirmed the findings and
sentence, giving its imprimatur to the prosecutorial misconduct in
Appellant’s case. Did the lower court err?”
2
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with her. PO Krueger told Appellant AB had recently had
sex with PO Hills.
The party moved to PO Krueger’s house. AB testified she
arrived at the house with both her own alcohol and a change
of clothing, intending to sleep over. PO Krueger and Ms.
Wade testified AB arrived with ingredients to prepare mixed
drinks. They both testified AB drank her prepared mixed
drinks all night. AB, however, never reported drinking any
mixed drinks. She told NCIS she had eight drinks on the
night of the party, but testified at trial that she had about
fifteen drinks, including Redd’s Apple Ale, beer, and more
Mike’s Hard Lemonade. Ms. Wade testified AB drank three
quarters of a two-liter bottle of the mixed drinks AB
reportedly brought to the party, and said she had never seen
AB so drunk. She said AB was “[p]retty intoxicated.…
stumbling, slurring words, [and was] trying to use the wall
to stand up.” PO Krueger testified AB was drinking beers,
had “more than three” of her mixed drinks, and was getting
“drunk pretty fast.” Ms. Garza described AB as “trashed,”
said she was stumbling, had poor balance, and was not
responsive. PO Jones testified AB appeared intoxicated, was
slurring her speech and swaying back and forth, and did not
seem sober. He said AB appeared to become more
intoxicated as the night wore on and, by midnight, AB was
slouched on the couch and was barely coherent. By the end
of the night AB felt “very numb,” could not feel her limbs,
and had to crawl against the wall to support herself.
Appellant and AB had only three brief interactions
before the party ended, one of which involved Appellant
asking AB whether she was going to finish her drink.3 PO
Krueger witnessed at least one of these interactions and
described AB as “standoffish.”
Appellant watched Ms. Wade help AB to her spare
bedroom to sleep, and told NCIS AB was drunk when she
went to bed. Once in the spare room AB undressed to her
underwear and a tank top, plugged her phone in, got into
bed, and then immediately “pass[ed] out.” Ms. Wade left the
room once she believed AB was asleep.
3 Rather than responding orally, AB finished her drink.
3
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The party ended around 12:30 a.m. PO Krueger told
Appellant not to sleep in the spare room—with AB—after
Appellant asked if he could. When Ms. Wade saw Appellant
try to enter the spare bedroom she said “[d]o not go in there
… you are on the couch.” After seeing Appellant get on the
couch and cover himself with blankets, Ms. Wade retreated
to her own bedroom.
Appellant and AB offered drastically different accounts
of what happened next. AB testified she awoke to pressure
on her hips and upper thighs. She said she was “startled …
awake” by the weight, could see from the light outside
someone was on top of her, and realized immediately it was
Appellant. AB said she yelled stop three times, pushed
Appellant off of her, and then passed out again. AB testified
she was unsure whether Appellant penetrated her vulva
with his penis, but denied consenting to any sexual activity
with Appellant and said she would not have consented had
she been awake.
Appellant told NCIS he entered the spare room hoping to
“get lucky” and became sexually aroused at the thought of
having sex with AB. Appellant said he and AB lay in bed
together for ten to fifteen minutes—neither kissing nor
having any physical interaction—before they began having
sex. Appellant initially told NCIS AB was awake when he
entered the spare room and said she vomited before orally
consenting to having sex and undressing herself.4 He told
NCIS he “didn’t care” AB had just vomited. Appellant said
AB was responsive during their intercourse and moaned and
scratched his back.5 Appellant said AB touched his hair and
then told him to stop, at which point he immediately
complied.
Around 4:00 a.m., AB fled the spare room and awoke PO
4 Appellant maintained his assertion that AB was awake when
he entered the room both during a wired conversation with PO
Krueger and throughout most of his NCIS interrogation. After
NCIS pressed Appellant, he admitted it was possible AB was
asleep or passed out.
5 PO Krueger corroborated the presence of scratches on
Appellant’s back.
4
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Krueger and Ms. Wade. Both PO Krueger and Ms. Wade
testified AB was crying and said she had been assaulted. AB
threw up again before falling back asleep in Ms. Wade’s
room.
Discussion
I. Prosecutorial Misconduct
A. The Proper Standard of Review
The following is well established in our case law. We
review prosecutorial misconduct and improper argument de
novo. United States v. Sewell, 76 M.J. 14, 18 (C.A.A.F. 2017).
If proper objection is made, we review for prejudicial error.
United States v. Fletcher, 62 M.J. 175, 179 (C.A.A.F. 2005)
(citing Article 59, UCMJ, 10 U.S.C. § 859 (2000)). If no
objection is made, we hold the appellant has forfeited his
right to appeal and review for plain error.6 Id.; Sewell, 76
M.J. at 18. The burden of proof under plain error review is
on the appellant. Sewell, 76 M.J. at 18.
The Government relies on United States v. Ahern, 76
M.J. 194 (C.A.A.F. 2017), to argue we should depart from
precedent and interpret R.C.M. 919(c) to say a defense
counsel’s mere failure to timely object to improper argument
constitutes waiver. The Government’s position is consistent
with a series of Army Court of Criminal Appeals’ decisions
holding that R.C.M. 919(c) is a waiver provision. See, e.g.,
United States v. Kelly, 76 M.J. 793 (A. Ct. Crim. App. 2017);
United States v. Sanchez, No. ARMY 20140735, 2017 CCA
LEXIS 470, 2017 WL 3037442 (A. Ct. Crim. App. July 17,
2017); United States v. Burris, No. ARMY 20150047, 2017
CCA LEXIS 315, 2017 WL 1946326 (A. Ct. Crim. App. May
8, 2017); United States v. Marcum, No. ARMY 20150500,
2017 CCA LEXIS 312, 2017 WL 1857232 (A. Ct. Crim. App.
May 5, 2017).7
6 We first considered R.C.M. 919(c) a forfeiture provision in
United States v. Burks, in which we conflated the terms “waiver”
and “plain error.” 36 M.J. 447, 452 n.3 (C.M.A. 1993).
7 In United States v. Motsenbocker, the United States Navy-
Marine Corps Court of Criminal Appeals abided by our precedent
and applied forfeiture to un-objected to prosecutorial misconduct.
No. NMCCA 201600285, 2017 CCA LEXIS 539, 2017 WL 46400305
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“Deviation from a legal rule is ‘error’ unless the rule has
been waived.” United States v. Girouard, 70 M.J. 5, 10
(C.A.A.F. 2011) (internal quotation marks omitted) (citation
omitted). “While this Court reviews forfeited issues for plain
error, we do not review waived issues because a valid waiver
leaves no error to correct on appeal.” Ahern, 76 M.J. at 197
(citations omitted).
Affirming the lower court’s application of waiver would
require us to overturn Fletcher and its progeny. Under the
doctrine of stare decisis, we decline to do so.
Stare decisis is defined as [t]he doctrine of
precedent, under which a court must follow earlier
judicial decisions when the same points arise again
in litigation. The doctrine encompasses at least
two distinct concepts … : (1) “an appellate court[]
must adhere to its own prior decisions, unless it
finds compelling reasons to overrule itself”
(horizontal stare decisis); and (2) courts “must
strictly follow the decisions handed down by higher
courts” (vertical stare decisis).
United States v. Quick, 74 M.J. 332, 343 (C.A.A.F. 2015)
(Stucky, J., joined by Ohlson, J., dissenting) (brackets in
original) (citations omitted).
“[A]dherence to precedent is the preferred course because
it promotes the evenhanded, predictable, and consistent
development of legal principles, fosters reliance on judicial
decisions, and contributes to the actual and perceived
integrity of the judicial process.” United States v. Blanks, 77
M.J. 239, 242 (C.A.A.F. 2018) (internal quotation marks
omitted) (quoting United States v. Sills, 56 M.J. 239, 241
(C.A.A.F. 2002) (per curiam)). We will not overturn
“precedent … [that] has been treated as authoritative for a
long time …. unless the most cogent reasons and
inescapable logic require it.” 20 Am. Jur. 2d Courts § 127,
Westlaw (database updated May 2018) (footnotes omitted).
Stare decisis is “most compelling where courts undertake
(N-M. Ct. Crim. App. Oct. 17, 2017). The Motsenbocker court
followed the correct approach. See United States v. Davis, 76 M.J.
224, 228 n.2 (C.A.A.F. 2017) (explaining “the services courts of
criminal appeals must adhere to this Court’s precedent even when
they believe that subsequent decisions call earlier decisions into
question” (citation omitted)).
6
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statutory construction,” as we are here. United States v.
Rorie, 58 M.J. 399, 406 (C.A.A.F. 2003) (citations omitted).
The party requesting that we overturn precedent bears “a
substantial burden of persuasion.” 20 Am. Jur. 2d, supra,
§ 127.
Applying stare decisis is, however, “not an inexorable
command.” Blanks, 77 M.J. at 242 (internal quotation marks
omitted) (quoting United States v. Falcon, 65 M.J. 386, 390
(C.A.A.F. 2008)). We are not bound by precedent where
“there has been a significant change in circumstances after
the adoption of a legal rule, or an error in legal analysis,”
and we are “willing to depart from precedent when it is
necessary to vindicate plain, obvious principles of law and
remedy continued injustice.” 20 Am. Jur. 2d, supra, § 127.
“We consider the following factors in evaluating the
application of stare decisis: whether the prior decision is
unworkable or poorly reasoned; any intervening events; the
reasonable expectations of servicemembers; and the risk of
undermining public confidence in the law.” Blanks, 77 M.J.
at 242 (internal quotation marks omitted) (citation omitted).
Even if these factors weigh in favor of overturning long-
settled precedent, “we [still] require ‘special justification,’
not just an argument that the precedent was wrongly
decided.” Halliburton Co. v. Erica P. John Fund, Inc., 134 S.
Ct. 2398, 2407 (2014); see also Dickerson v. United States,
530 U.S. 428, 443 (2000); Blanks, 77 M.J. at 242 (citations
omitted); Kurt T. Lash, The Cost of Judicial Error: Stare
Decisis and the Role of Normative Theory, 89 Notre Dame L.
Rev. 2189, 2189 (2014) (“The prudential doctrine of stare
decisis is meant to ameliorate these costs by counseling
judicial adherence to precedent even in those cases where a
judge believes the prior decision was wrong.” (emphasis
added) (citation omitted)).
Applying each of these factors to R.C.M. 919(c) and
considering general stare decisis jurisprudence, we are
compelled to uphold Fletcher and to continue to review un-
objected to prosecutorial misconduct and improper argument
for plain error.
1. Whether Fletcher is unworkable or poorly reasoned
“Under the doctrine of stare decisis, the question is not
7
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whether the interpretation [at issue] is plausible; it is
whether the … decision is so unworkable or poorly reasoned
that it should be overruled.” United States v. Tualla, 52 M.J.
228, 231 (C.A.A.F. 2000). In Fletcher, we applied forfeiture
to review un-objected to prosecutorial misconduct for plain
error, notwithstanding the R.C.M. 919(c) language that,
“Failure to object to improper argument before the military
judge begins to instruct the members on findings shall
constitute waiver of the objection.” 62 M.J. at 179 (emphasis
added); R.C.M. 919(c) (emphasis added). “[C]ourts must give
effect to the clear meaning of statutes as written” and
questions of statutory interpretation should “begin and end
… with [statutory] text, giving each word its ordinary,
contemporary, and common meaning.” Star Athletica, L.L.C.
v. Varsity Brands, Inc., 137 S. Ct. 1002, 1010 (2017)
(internal quotation marks omitted) (citations omitted); see
also United States v. Schell, 72 M.J. 339, 343 (C.A.A.F. 2013)
(“Unless the text of a statute is ambiguous, the plain
language of a statute will control unless it leads to an
absurd result.” (internal quotation marks omitted) (citation
omitted)). Thus, “[a]s a first step in statutory construction,
we are obligated to engage in a ‘plain language’ analysis of
the relevant statute,” United States v. Tucker, 76 M.J. 257,
258 (C.A.A.F. 2017), and to “apply the common and ordinary
understanding of the words in the statute.” United States v.
Phillips, 70 M.J. 161, 165 (C.A.A.F. 2011).8 Without
question, R.C.M. 919(c) says “waiver” and does not mention
“forfeiture.”
We are, however, not convinced this acknowledgment
requires us to overturn any case law. Although the United
States Supreme Court has “from time to time … overruled
governing decisions that are unworkable or are badly
reasoned, [it has] rarely done so on grounds not advanced by
the parties” and has declined to do so where the petitioning
party has failed to establish unworkability. United States v.
International Business Machines Corp., 517 U.S. 843, 856
(1996) (internal quotation marks omitted) (citations
8 We apply these principles when we interpret the rules and
other provisions in the Manual for Courts-Martial, United States
(MCM) as well.
8
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omitted). The Government has only argued Fletcher ignored
R.C.M. 919(c)’s plain language and has neither established
that Fletcher is now unworkable nor has it advanced any
argument to that effect.9 We decline to make this argument
for the Government, and in any case, we find the majority of
the remaining factors weigh in favor of applying stare
decisis to uphold Fletcher.
2. Any intervening events
When a court is “clearly convinced that [precedent] … is
no longer sound because of changing conditions and that
more good than harm will come by departing from
precedent, [the Court is] not inexorably bound by [its] own
precedents.” State v. Mauchley, 67 P.3d 477, 481 (Utah 2003)
(first alteration in original) (internal quotation marks
omitted) (citation omitted). The Government argues our
decision in Ahern constitutes a change requiring departure
from precedent. Ahern is distinguishable from this case in
the following respects. First, while this case concerns R.C.M.
919(c), Ahern involved Military Rule of Evidence 304. 76
M.J. at 197. Second, issues relating to closing arguments are
altogether different from the evidentiary issue in Ahern that
arose during the pretrial stage, when defense counsel had
ample opportunity to object. Id. at 195–98. Third, while
Appellant’s counsel failed to object here, Ahern’s defense
counsel repeatedly affirmatively waived objection to the
9 While Fletcher’s application of forfeiture remains workable,
applying waiver instead of forfeiture would render much of
Fletcher’s prejudice analysis unworkable where, as here, defense
counsel objected to some misconduct. In Fletcher, we applied three
factors to determine whether prosecutorial misconduct was
prejudicial, the first of which was the severity of the misconduct.
62 M.J. at 184. To determine how severe the misconduct was, we
applied five more factors, including “(1) the raw numbers—the
instances of misconduct as compared to the overall length of the
argument, [and] (2) whether the misconduct was confined to the
trial counsel’s rebuttal or spread throughout the findings
argument or the case as a whole.” Id. Were we to hold Appellant
waived the misconduct his counsel did not object to, we would
have to review the one instance of objected-to misconduct in a
vacuum. To do so would be unjust and illogical, as it would result
in an inaccurate evaluation of the prejudicial effect of trial
counsel’s arguments.
9
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evidence at issue. Id. at 196–98. Consequently, Ahern by
itself is not the type of changed condition or intervening
event necessitating a departure from precedent. Cf. United
States v. Boyett, 42 M.J. 150, 155 (C.A.A.F. 1995) (explaining
“significant changes in the structure and organization of the
armed forces” and changes in military regulations
warranted a departure from precedent); Mauchley, 67 P.3d
at 481–86 (deciding an old evidentiary rule should be
overturned where “the federal courts and a growing number
of state courts” had adopted a new rule). Thus far, there
have been no changes in regulation, rule, or military
structure necessitating the application of waiver in this
case.10
3. The reasonable expectations of servicemembers
We concede servicemembers have not relied on Fletcher
in any way that would compel us to continue to interpret
R.C.M. 919(c) as a forfeiture provision.
4. The risk of undermining public confidence in the law
Just as overturning precedent can undermine confidence
in the military justice system, upholding precedent tends to
bolster servicemembers’ confidence in the law. See Henry
Paul Monaghan, Stare Decisis and Constitutional
Adjudication, 88 Colum. L. Rev. 723, 753 (1988) (“If courts
are viewed as unbound by precedent, and the law as no more
than what the last Court said, considerable efforts would be
expended to get control of such an institution—with judicial
independence and public confidence greatly weakened.”).
This is especially true where, as here, the precedent involves
appellate review of prosecutorial misconduct—an issue that
may, on its own, undermine confidence in the military
justice system. See United States v. Olsen, 737 F.3d 625, 632
10 There has, however, been a change to the military justice
system weighing in favor of upholding Fletcher. Effective January
1, 2019, R.C.M. 919(c) will read “Failure to object to improper
argument before the military judge begins to instruct the
members on findings shall constitute forfeiture of the objection.”
Exec. Order No. 13,825, 83 Fed. Reg. 9889 (Mar. 8, 2018)
(emphasis added). While this modification has no direct impact on
this case, it would be frivolous to overturn fifteen years of
precedent for an eight-month period.
10
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(9th Cir. 2013) (order denying petition for rehearing en
banc) (Kozinski, C.J., joined by Pregerson, J., Reinhardt, J.,
Thomas, J.; Watford, J., dissenting) (explaining
prosecutorial misconduct “erodes the public’s trust in our
justice system, and chips away at the foundational premises
of the rule of law”).
5. Whether any special justification weighs in favor of
overturning Fletcher
Finally, the Government advances no “special
justification” requiring us to depart from precedent, nor can
we conceive of one. Overturning Fletcher to hold un-objected
to improper argument must be waived absent a special
justification would allow this form of prosecutorial
misconduct to persist, largely unchecked, and would thus
risk egregious harm to our justice system. Cf. Payne v.
Tennessee, 501 U.S. 808, 834 (1991) (Scalia, J., joined as to
Part II by O’Connor, J., and Kennedy, J., concurring)
(arguing a special justification should not be required to
overturn precedent that “significantly harms our criminal
justice system and is egregiously wrong”) (emphasis added)).
In any case, given that the Government failed to provide
a special justification or advance any argument beyond
Fletcher wrongly interpreting R.C.M. 919(c), and that four of
the five above factors weigh in favor of upholding Fletcher,
we conclude that Appellant forfeited his challenge to trial
counsel’s improper argument.
B. Plain Error
“Plain 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.” Fletcher, 62
M.J. at 179 (citations omitted).
Appellant’s defense counsel only objected to one instance
of misconduct. Technically we review that instance of
misconduct as preserved error, while we review the
remainder of the asserted improper argument for plain
error. Both standards, however, culminate with an analysis
of whether there was prejudicial error. See Sewell, 76 M.J.
at 18 (“In either case, reversal is warranted only ‘when the
trial counsel’s comments taken as a whole were so damaging
that we cannot be confident that the members convicted the
11
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appellant on the basis of the evidence alone.’ ” (quoting
United States v. Hornback, 73 M.J. 155, 160 (C.A.A.F.
2014))).
“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.’ ” Fletcher, 62 M.J. 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) (citation omitted). Prosecutors
have a “duty to refrain from improper methods calculated to
produce a wrongful conviction.” Berger, 295 U.S. at 88.
“While prosecutorial misconduct does not automatically
require a new trial or the dismissal of the charges against
the accused, relief will be granted if the trial counsel’s
misconduct ‘actually impacted on a substantial right of an
accused (i.e., resulted in prejudice).’ ” Fletcher, 62 M.J. at
178 (quoting Meek, 44 M.J. at 5).
At Appellant’s court-martial, trial counsel advanced a
theory of the case revolving around the idea Appellant was a
scheming liar who went into AB’s room on the night of the
party hoping she would mistake him for PO Hills and
unwittingly consent to having sex with him. Appellant now
contends portions of trial counsel’s argument amounted to
prejudicial prosecutorial misconduct. Appellant specifically
complains trial counsel:
1. Repeatedly and consistently made inflammatory and
disparaging statements, from calling Appellant a liar more
than twenty-five times to referring to him as “Don Juan”;
2. Accused defense counsel of not believing Appellant’s
version of events;
3. Misstated the law when he analogized consenting to sex to
enlisting in the Navy or having plastic surgery; and
4. Thrice quoted or referred to a wholly fabricated admission.
12
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Before determining whether Appellant was prejudiced,
we must ask whether trial counsel’s arguments amounted to
plain or obvious error—or whether they were improper
arguments—in the first place. See Fletcher, 62 M.J. at 179–
84 (analyzing whether each instance of alleged misconduct
was error). Rather than engage in a long and searching
analysis of whether each complained-of statement was an
improper argument, we adopt the lower court’s conclusion
that the prosecutorial misconduct in this case amounted to
plain and obvious error. Andrews, 2017 CCA LEXIS 283, at
*16–23, *26–27, 2017 WL 1506072, at *7–9, *11.
II. Prejudice
“[I]t is not the number of legal norms violated but the
impact of those violations on the trial which determines the
appropriate remedy for prosecutorial misconduct.” Meek, 44
M.J. at 6. “In assessing prejudice, we look at the cumulative
impact of any prosecutorial misconduct on the accused’s
substantial rights and the fairness and integrity of his trial.”
Fletcher, 62 M.J. at 184 (citation omitted). We weigh three
factors to determine whether trial counsel’s improper
arguments were prejudicial: “(1) the severity of the
misconduct, (2) the measures adopted to cure the
misconduct, and (3) the weight of the evidence supporting
the conviction.” Id. “[T]he third factor [alone] may so clearly
favor the government that the appellant cannot demonstrate
prejudice.” Sewell, 76 M.J. at 18. Again, we agree with the
lower court that there was severe prosecutorial misconduct,
and we too conclude the weight of the evidence favors the
Government such that Appellant cannot establish prejudice.
In Fletcher, we applied five factors to determine how
severe the prosecutorial misconduct was. 62 M.J. at 184.
Applying those factors to the instant case, we find trial
counsel’s misconduct was severe because: (1) it occurred
with alarming frequency; (2) it persisted throughout the
entirety of trial counsel’s closing argument, including
through the rebuttal; (3) the entire trial was five days long
and the trial on the merits lasted for only three days; (4) the
panel deliberated for less than three hours before convicting
Appellant; and (5) the military judge issued just one ruling
for trial counsel to abide by and trial counsel failed to do so.
All five factors indicate the misconduct was severe.
13
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Next, the military judge’s failure to offer any specific,
timely curative instructions also weighs in favor of finding
prejudice. When defense counsel requested an instruction as
an alternative to moving for a mistrial, the military judge
seemed to agree there was error, but declined to take any
curative action. The only instructions she gave were
standard Military Judges’ Benchbook instructions and were
given after the close of trial, before deliberation.
Although the first two factors weigh in Appellant’s favor,
the evidence “so clearly favor[s] the government that
[Appellant] cannot demonstrate prejudice.” Sewell, 76 M.J.
at 18. In Hornback, we held the third factor was dispositive
where two witnesses testified they watched the appellant
commit the crime charged. 73 M.J. at 161. In Sewell, we held
the third factor to be dispositive where the appellant
admitted to being at the scene of the crime in “compromising
circumstances.” 76 M.J. at 19. In this case, as in Hornback
and Sewell, there were multiple corroborating witnesses and
Appellant admitted to being at the party in bed with AB.
To have convicted Appellant of sexual assault under
Article 120(b)(3), UCMJ, the panel must have found: (1)
Appellant committed a sexual act upon AB by penetrating
her vulva with his penis while (2) AB was too intoxicated to
consent, and (3) Appellant “knew or reasonably should have
known” AB was too intoxicated to consent. MCM pt. IV,
para. 45.b.(3)(f) (2016 ed.) (emphasis added).
Regardless of trial counsel’s improper arguments, there
was ample evidence in support of all three elements. First,
during his recorded interrogation, Appellant told NCIS he
had sex with AB and discussed the intercourse with PO
Krueger while PO Krueger was wearing a wire for NCIS.
Defense counsel also conceded as much at trial when he
argued that AB consented to the sex because she thought
Appellant was PO Hills. Second, there was no dispute at
trial that AB was drinking and was intoxicated. Although
there was some discrepancy as to what and exactly how
much AB drank, she, along with almost every other party
attendee, testified she was drinking heavily and consistently
all night, and Appellant told NCIS AB was drunk. There
was compelling evidence, in addition to the sheer amount of
liquor AB consumed, that she was too drunk to be capable of
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Opinion of the Court
consent. Namely, AB was so drunk she lost consciousness,
could not physically support herself, lost feeling in her
limbs, and vomited at least twice. Finally, Appellant either
knew or, at least reasonably should have known, AB was
incapable of consenting. Everyone else at the party knew AB
was extremely intoxicated—they described her as “trashed”
and “incoherent,” and said she was slurring her words and
could not stand up. Appellant was at the party with AB all
day. He watched Ms. Wade help AB to the spare room. He
ignored PO Krueger and Ms. Wade’s instructions not to
enter the spare bedroom. He lay next to AB for fifteen
minutes before they had intercourse, during which time AB
was largely if not wholly unresponsive. He watched AB
vomit in the bed before they had sex. Appellant met AB on
the day of the assault and they barely interacted at the
party. Appellant had every reason to suspect AB was too
intoxicated to consent and no reason to believe AB would
knowingly consent to having sex with him.
Accordingly, we conclude the evidence against Appellant
was so strong we are “confident that the members convicted
the appellant on the basis of the evidence alone.” Fletcher,
62 M.J. at 184. There was, therefore, no prejudice to
Appellant’s substantial rights.
Despite our finding of no prejudice, the prosecutorial
conduct in this case raises concerns we feel compelled to
address. We remind all military judges of their “sua sponte
duty to insure [sic] that an accused receives a fair trial.”
United States v. Watt, 50 M.J. 102, 105 (C.A.A.F. 1999)
(internal quotation marks omitted) (citation omitted); see
also United States v. Knickerbocker, 2 M.J. 128, 129 (C.M.A.
1977) (“At the very least, the judge should have interrupted
the trial counsel before he ran the full course of his
impermissible argument.”). Military judges are neither
“mere figurehead[s]” nor are they “umpire[s] in a contest
between the Government and accused.” Watt, 50 M.J. at 105
(internal quotation marks omitted) (quoting United States v.
Kimble, 23 C.M.A. 251, 253, 49 C.M.R. 384, 386 (1974)). Nor
can a defense counsel sit like a bump on a log—he or she
owes a duty to the client to object to improper arguments
early and often. See DeFreitas v. State, 701 So.2d 593, 602
(Fla. Dist. Ct. App. 1997) (explaining the court is unlikely to
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Opinion of the Court
“excuse counsel for his failure” to object because a defense
counsel “has the duty to remain alert to such things in
fulfilling his responsibility to see that his client receives a
fair trial”). Failure to do so may give rise to meritorious
ineffective assistance of counsel claims. See F. Emmit
Fitzpatrick & NiaLena Caravasos, Ineffective Assistance of
Counsel, 4 Rich. J.L. & Pub. Int., 67, 81 (2000) (listing
federal cases in which the circuit courts found ineffective
assistance of counsel for failure to object (citing Williams v.
Washington, 59 F.3d 673, 684 (7th Cir. 1995); Henry v.
Scully, 78 F.3d 51, 52–53 (2d Cir. 1996); Bolander v. Iowa,
978 F.2d 1079, 1083–84 (8th Cir. 1992); Crotts v. Smith, 73
F.3d 861, 867 (9th Cir. 1996); Atkins v. Attorney General of
Alabama, 932 F.2d 1430, 1432 (11th Cir. 1991); and Mason
v. Scully, 16 F.3d 38, 45 (2d Cir. 1994))). Finally, we remind
trial counsel they are:
representative not of an ordinary party to a
controversy, but of a sovereignty whose obligation
to govern impartially is as compelling as its
obligation to govern at all; and whose interest,
therefore, in a criminal prosecution is not that it
shall win a case, but that justice shall be done. As
such, [they are] in a peculiar and very definite
sense the servant of the law, the twofold aim of
which is that guilt shall not escape or innocence
suffer…. It is as much [their] duty to refrain from
improper methods calculated to produce a wrongful
conviction as it is to use every legitimate means to
bring about a just one.
Berger, 295 U.S. at 88. Every attorney in a court-martial has
a duty to uphold the integrity of the military justice system.
Judgment
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is affirmed as to the findings and only so
much of the sentence as provides for confinement for thirty-six
months, reduction to pay grade E-1, forfeiture of $1,566.00 pay
per month for thirty-six months, and a dishonorable discharge.
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