United States v. Hornback , 73 M.J. 155 ( 2014 )

UNITED STATES, Appellee
v.
Charles C. HORNBACK, Private
U.S. Marine Corps, Appellant
No. 13-0442
Crim. App. No. 201200241
United States Court of Appeals for the Armed Forces
Argued January 13, 2014
Decided March 6, 2014
STUCKY, J., delivered the opinion of the Court, in which ERDMANN
and RYAN, JJ., joined. BAKER, C.J., filed a dissenting opinion,
in which OHLSON, J., joined. OHLSON, J., filed a dissenting
opinion in which BAKER, C.J., joined.
Counsel
For Appellant: Lieutenant David C. Dziengowski, JAGC, USN
(argued).
For Appellee: Colonel Stephen C. Newman, USMC (argued); Brian
K. Keller, Esq. (on brief).
Military Judge: Stephen F. Keane
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Hornback, No. 13-0442/MC
Judge STUCKY delivered the opinion of the Court.
We granted review to consider whether trial counsel’s
conduct constituted prosecutorial misconduct, and if so, whether
Appellant’s substantial right to a fair trial was materially
prejudiced. We hold that significant prosecutorial misconduct
occurred, but that the error was ultimately not prejudicial. We
therefore affirm the judgment of the United States Navy-Marine
Corps Court of Criminal Appeals.
I. Posture of the Case
Contrary to his pleas, Appellant was convicted by a panel
of members sitting as a special court-martial of one
specification each of using “spice,” signing a false official
statement, and larceny of military property, in violation of
Articles 92, 107, and 121, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. §§ 892, 907, 921 (2012). He was acquitted of
five other specifications including wrongfully using Xanax,
larceny, solicitation, using provoking speech, and communicating
threats, in violation of Articles 92, 121, and 134, UCMJ, 10
U.S.C. §§ 892, 921, 932 (2012). The convening authority
approved the adjudged sentence of a bad-conduct discharge and
three months of confinement, and the United States Navy-Marine
Corps Court of Criminal Appeals affirmed. United States v.
Hornback, No. NMCCA 201200241, 2013 CCA LEXIS 114, at *13, 2012
WL 7165301, at *5 (N-M. Ct. Crim. App. Feb. 21, 2013).
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II. Background
During the Government’s case-in-chief, trial counsel called
eleven witnesses. The first witness, Lance Corporal (LCpl)
Powers, testified that Appellant asked her if she smoked spice,
showed her a container of what he said was spice, and proceeded
to smoke the substance that he said was spice from a pipe. The
second witness, Karen Carney, testified that Appellant showed
her a jar of what looked like marijuana, but Appellant said was
spice. She testified that Appellant told her that spice “[g]ets
you high like marijuana,” but “[d]oesn’t show up on a drug
test.” She further testified that she “smoked a hit” of the
substance Appellant identified as spice, and watched Appellant
smoke the rest of it. She also testified as to a second
occasion that she saw Appellant smoke a pipe loaded with the
substance he identified as spice.
No objectionable testimony was elicited from these first
two witnesses. The rest of the witnesses, however, proved quite
problematic for trial counsel. Trial counsel first questioned
LCpl Teets regarding Appellant’s knowledge of the effects of
spice and asked whether Appellant ever asked LCpl Teets to use
drugs. Although defense counsel objected on the bases of
speculation and improper lay opinion, the military judge called
an Article 39(a), UCMJ, session and questioned trial counsel
about the admissibility of the testimony under Military Rule of
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United States v. Hornback, No. 13-0442/MC
Evidence (M.R.E.) 404(b). The military judge asked, “was that
uncharged misconduct, 404(b), with reference to the spice[?] I
mean, what was the purpose of asking that witness about all that
first background? He didn’t smoke spice with this witness, did
he?” Defense counsel did not object on M.R.E. 404(b) grounds,
however, and the military judge overruled the stated objection.
Later during LCpl Teets’s testimony, the military judge called a
second Article 39(a), UCMJ, session, during which he cautioned
trial counsel to “make sure you are staying away from” character
evidence.
The next witness was Gunner’s Mate Third Class (GM3)
Robidart, a friend of Appellant’s wife. Trial counsel asked
whether Appellant’s wife ever spoke about their marriage to her
or told GM3 Robidart anything about why she and Appellant were
separated, apparently in an attempt to elicit testimony that
Appellant was using drugs. Defense counsel objected on the
grounds of relevance and improper character evidence. The
military judge called another Article 39(a), UCMJ, session. The
military judge explained that “[y]ou can’t just put out there
that he used drugs at some point. You have to factor it in to
the period charged, right?” The objection was sustained and the
members returned.
Trial counsel continued to question GM3 Robidart, this time
asking, “did [Appellant] say anything that might make you
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believe he was speaking from personal experience with drugs?”
The military judge sua sponte called another Article 39(a),
UCMJ, session, discussing the problem with trial counsel:
MJ: I am concerned that you are getting into what
would be 404(b) evidence or other acts evidence.
We’ve got to narrow this down. I don’t know what time
period we’re talking about. That fact that he used
drugs before, you know, if he was having conversations
about using drugs outside the charged time period I
don’t want that going to the members. I mean you can
make an objection about that.
. . . .
I don’t want to hear any testimony about drug use --
the accused admitting to drug use -- unless it is the
accused admitted to drug use during the charged
period. Okay?
TC: Yes, sir.
MJ: All right. So first orient to the charged
period. I don’t want there to be the possibility that
there was drug use before or after the charged period
being admitted into evidence. That would be
inadmissible. All right?
TC: Yes, sir.
DC: And, Your Honor, I would also ask that it be to
the substances charged. I believe there may be an
allegation of ecstasy.
MJ: Exactly. And, yeah, I don’t want just drug use,
coke, cocaine, ecstasy, heroin, marijuana. I want the
drug. I want it specified to the drug and during the
time period if he has made an admission to that. . . .
The military judge then provided trial counsel the opportunity
to question GM3 Robidart outside the presence of members. Trial
counsel took the opportunity, and following the questioning,
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defense counsel objected on the bases of hearsay and
speculation. The military judge sustained the objection and
reviewed the limits of hearsay with trial counsel.1 Trial
counsel responded that she was trying to elicit circumstantial
evidence that the accused was someone who may have used drugs,
based on his familiarity with drugs. The military judge
responded once again that that would be impermissible character
evidence, stating, “I mean if someone is charged with using
marijuana, you can’t come in here and start eliciting testimony
or evidence that, you know, he’s been around marijuana or he
knows things about marijuana. I mean its impermissible
character or other acts evidence.”
The members returned, and after one proper question, trial
counsel asked GM3 Robidart, “[w]hat was his personality like?”
Defense counsel objected, and the military judge again sent the
members back out. This time, the military judge went so far as
to specifically tell trial counsel what questions she could ask.2
1
The MJ explained:
[A]ny statement his wife made to her is hearsay. It
is not admissible. Any statements [LCpl Teets] made
to her is hearsay regarding the accused [sic] drug
use. That is not admissible.
2
The MJ explained:
Here is how this should go. How often did you see the
accused? Did you interact with him on a daily basis?
Were you able to observe the way he acted at work?
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United States v. Hornback, No. 13-0442/MC
The members reentered the courtroom, and after one transcribed
page of questioning, trial counsel again ventured into improper
character evidence. The military judge sua sponte interrupted,
stating, “Okay. Stop this. Disregard all that testimony.
Strike that from your memory as though you’ve never heard it.
Can all members follow that instruction?” The members responded
affirmatively.
Trial counsel went on to ask GM3 Robidart about Appellant’s
use of “any prescription drugs,” and GM3 Robidart testified that
Appellant said he would “overtake what he was supposed to be
taking . . . . [t]o get high.” The military judge sustained
defense counsel’s objection on M.R.E. 404(b) grounds and
instructed the members to disregard the testimony. Trial
counsel continued to ask about unidentified prescription drugs,
defense counsel objected, and the military judge called another
Article 39(a), UCMJ, session. After discussing what trial
counsel was trying to elicit, the military judge explained,
“[t]hat is clearly impermissible evidence. You can’t say that
he used drugs -- this drug to get high. He misused this
prescription drug on this occasion in order to get high to prove
You don’t have to get into the specifics. How well do
you know him? How long did he work for you,
et[]cetera, et[]cetera. Okay. Without her talking
about the specifics. Okay. And then presumably, you
have some questions about the change in that. Is that
right?
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United States v. Hornback, No. 13-0442/MC
that he therefore used drugs and other prescription drugs on a
separate occasion to get high.” The military judge explained
why he was striking the testimony:
My concern here is that you are getting into all these
potential bad acts that aren’t specific to the charged
offenses which would blow this case up. I mean you
just can’t have that.
. . . .
You need direct evidence that a crime was committed.
You can’t put all this evidence out there that, yeah,
this guy is kind of into drugs and he likes to -- he
knows a lot about drugs and he knows a lot about drugs
that can’t be detected in your system. I mean you
have to show evidence that he committed the specific
crime on the specific date that you alleged he
committed the specific crime. Not that he’s a bad
guy.
The next Government witness was Lieutenant Commander (LCDR)
Terrien, Appellant’s doctor. Trial counsel asked about
Appellant’s prescription for Seroquel, and LCDR Terrien
explained that it is a medication for schizophrenia and bipolar
conditions. Defense counsel objected, the military judge
sustained and instructed the members to disregard the answer.
After a few more questions, the military judge sua sponte called
an Article 39(a), UCMJ, session. The military judge explained
that he was “concerned that the jury’s been tainted by hearing
evidence that [Appellant] was taking schizophrenia medication.”
The military judge chided defense counsel for failing to object
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United States v. Hornback, No. 13-0442/MC
on privilege grounds, and explained that he would give an
instruction after cross-examination.
The testimony of the next two Government witnesses, LCpl
Carillo and Gunnery Sergeant (GySgt) French, was also the
subject of sustained objections on M.R.E. 404(b) grounds. Each
time, the military judge instructed the members to disregard the
testimony.
Next, trial counsel called Corporal (Cpl) Morris,
Appellant’s roommate. After one sustained objection to improper
character evidence, trial counsel continued to elicit improper
testimony and the military judge called another Article 39(a),
UCMJ, session. Again, the military judge explained, “[w]hat you
can’t do is get into a bunch of evidence that the accused is a
druggy and, therefore, he probably used some drug at some point.
That’s not admissible evidence.” The military judge then
instructed trial counsel to practice her examination of Cpl
Morris outside of the presence of members, explaining:
MJ: I’m tired of having the members being exposed to
basically character evidence that’s not admissible. I
mean you can’t -- I just want to reiterate to you, you
can’t present evidence that the accused is a druggy;
therefore, he probably used drugs. You need to
present evidence that he specifically used drugs on a
certain day and time.
TC: Yes, sir.
MJ: And a specific drug. Not that he’s just a drug
abuser generally and so you should convict him of
using drugs. You can’t do that.
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United States v. Hornback, No. 13-0442/MC
TC: Yes, sir.
. . . .
MJ: You could do that at an ad board. You can’t do
that in federal court.
After the members returned, trial counsel’s examination of Cpl
Morris drew one additional sustained M.R.E. 404(b) objection.
The Government called three more witnesses during its case-
in-chief. During the examination of LCpl Kelly, objections to
improper M.R.E. 404(b) evidence and hearsay were sustained, and
during the examination of Chief Warrant Officer 3 (CWO3) Easton,
a hearsay objection was sustained.
Trial counsel also struggled to avoid statements that the
military judge ruled to be improper character evidence during
her closing argument. She argued that “[t]he accused is like a
criminal infection that is a plague to the Marine Corps.”
Defense counsel objected on M.R.E. 404(b) grounds, and the
military judge sustained the objection. Shortly thereafter,
trial counsel again argued, “[h]e became that criminal
infection.” Defense counsel objected and the military judge
sustained the objection. Trial counsel then went on to argue,
“And the command has taken form -- has taken action in the form
of these charges before you. The government is confident that
you will find him guilty beyond a reasonable doubt.” The
military judge immediately interrupted, stating:
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United States v. Hornback, No. 13-0442/MC
Hang on a second.
Okay. Members, a couple things.
One, with respect to that last question, you all agree
the convening authority is not expecting a certain
result in this case, that you’re to try the case or
decide the issues based on the evidence presented
before you, and no one is presuming any certain
outcome in this case.
Additionally, throughout the course of this trial and
even during closing argument, I sustained several
objections to character evidence.
You may not consider any evidence that was the subject
of a sustained objection for any purpose, and you may
not consider -- those objections related to character
evidence, you may not conclude based on any of that
evidence that the accused is a bad person or has
general criminal tendencies and that he, therefore,
committed the offenses charged. You need to base your
determination on the admitted evidence in this case
and determine if the offenses were committed beyond a
reasonable doubt at the specific times and in the
specific manners in which they were alleged.
The military judge asked if all members could follow that
instruction, and the panel responded affirmatively.
III. Law
Where proper objection is entered at trial, this Court
reviews alleged prosecutorial misconduct 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)). Most of the
alleged misconduct in this case was either objected to at trial,
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United States v. Hornback, No. 13-0442/MC
or the subject of a sua sponte interruption by the military
judge.3
Prosecutorial misconduct occurs when trial counsel
“‘overstep[s] the bounds of that propriety and fairness which
should characterize the conduct of such an officer in the
prosecution of a criminal offense.’” Id. at 178 (quoting Berger
v. United States, 295 U.S. 78, 84 (1935)). “Prosecutorial
misconduct can be generally defined as action or inaction by a
prosecutor in violation of some legal norm or standard, e.g., a
constitutional provision, a statute, a Manual rule, or an
applicable professional ethics canon.” United States v. Meek,
44 M.J. 1, 5 (C.A.A.F. 1996) (citing Berger, 295 U.S. at 88).
The presence of prosecutorial misconduct does not
necessarily mandate dismissal of charges or a rehearing. “It 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.” Id. at 6. In determining
whether prejudice resulted from prosecutorial misconduct, this
Court will “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 (quoting
3
Appellant argues that additional instances of misconduct
occurred during trial counsel’s opening statement and closing
argument, but were not objected to at trial. We conclude that
Appellant has not shown that these instances constitute plain
error.
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United States v. Hornback, No. 13-0442/MC
Meek, 44 M.J. at 5). This Court has identified “the best
approach” to the prejudice inquiry as requiring the balancing of
three factors: “(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. “In other words,
prosecutorial misconduct by a trial counsel will require
reversal when the trial counsel’s comments, taken as a whole,
were so damaging that we cannot be confident that the members
convicted the appellant on the basis of the evidence alone.”
Id.
IV. Discussion
A. Did prosecutorial misconduct occur?
Trial counsel repeatedly and persistently elicited improper
testimony, despite repeated sustained objections as well as
admonition and instruction from the military judge. Other
courts of appeals have held that repeated violations of rules of
evidence can constitute prosecutorial misconduct. See, e.g.,
United States v. Crutchfield, 26 F.3d 1098, 1103 (11th Cir.
1994) (finding prosecutorial misconduct in repeated violation of
Federal Rules of Evidence 404, 608, and 609, where such
violations “continued even after the court instructed the
prosecutor as to their impropriety”); Beck v. United States, 33
F.2d 107, 114 (8th Cir. 1929) (finding prosecutorial misconduct
where the prosecutor continued to ask improper questions after
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United States v. Hornback, No. 13-0442/MC
sustained objections, reasoning, “there is no excuse for
offending twice, after the court has ruled upon the matter”).
We find that trial counsel’s repeated and persistent violation
of the Rules for Courts-Martial and Military Rules of Evidence
constitutes prosecutorial misconduct in this case. See Meek, 44
M.J. at 5 (defining prosecutorial misconduct as “violation of
some legal norm or standard, e.g., a constitutional provision, a
statute, a Manual rule, or an applicable professional ethics
canon”); Rule for Court-Martial (R.C.M.) 502(d)(5) Discussion
(trial counsel should be prepared to “make a prompt, full, and
orderly presentation of the evidence at trial,” and consider the
Military Rules of Evidence). It matters not that trial counsel
seems to have been merely inexperienced, ill prepared, and
unsupervised in this case. Although one may wonder what her
supervisors were doing during the course of Appellant’s trial,
the prosecutorial misconduct inquiry is an objective one,
requiring no showing of malicious intent on behalf of the
prosecutor, and we find none here.
B. Did Appellant suffer prejudice?
To determine whether Appellant suffered prejudice to a
substantial right from the misconduct, this Court considers the
Fletcher factors: “(1) the severity of the misconduct, (2) the
measures adopted to cure the misconduct, and (3) the weight of
the evidence supporting the conviction.” 62 M.J. at 184.
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United States v. Hornback, No. 13-0442/MC
The prosecutorial misconduct in this case was sustained and
severe. Trial counsel attempted to elicit improper testimony
from nearly every witness called during the Government’s case-
in-chief, and made arguably improper argument during her closing
argument. She repeatedly appeared unable to either understand
or abide by the military judge’s rulings and instruction during
the two-and-a-half day trial on the merits. As a result of this
pervasive impropriety, we find that the first Fletcher factor
weighs in Appellant’s favor.
When we consider curative measures, however, the military
judge appears to have left no stone unturned in ensuring that
the members considered only admissible evidence in this case.
He called multiple Article 39(a), UCMJ, sessions to prevent
tainting the panel. He issued repeated curative instructions to
the members, each time eliciting that they understood and would
follow his instructions. He also issued a comprehensive
instruction during trial counsel’s closing argument, again
explaining that the members could not consider evidence that was
the subject of a sustained objection for any purpose. The
military judge acted early and often to ameliorate trial
counsel’s misconduct. Compare United States v. Thompkins, 58
M.J. 43, 47 (C.A.A.F. 2003) (holding that “[t]he ameliorative
actions of the military judge . . . secured the fairness and
impartiality of the trial” where the military judge engaged in
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United States v. Hornback, No. 13-0442/MC
timely remedial actions including curative instructions to
members), with Fletcher, 62 M.J. at 185 (finding the military
judge’s curative efforts to be “minimal and insufficient” where
he gave only a generic limiting instruction, chastised trial
counsel on a single occasion, and failed to sua sponte interrupt
trial counsel). Here, the military judge acted effectively to
secure the fairness of Appellant’s trial by protecting the panel
from potentially improper evidence and issuing curative
instructions when appropriate. This factor weighs heavily in
the Government’s favor.
Turning to the third Fletcher factor, Appellant stands
convicted of signing a false official statement, larceny, and
using spice. The false official statement conviction arose from
signing a false record stating that he was not married to a
military member, when in fact he was. The larceny conviction is
based on the amount of Basic Allowance for Housing (BAH) he was
overpaid as a result of the false statement. The evidence of
these two convictions was strong. Trial counsel presented
documentary evidence of the false record with Appellant’s
signature, as well as testimony by the officer in charge of
service records at Appellant’s base, CWO3 Easton, who explained
the workings of the dependency forms. As for the larceny, trial
counsel submitted BAH documents showing the amount Appellant was
paid by the Government while receiving BAH at the with-
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United States v. Hornback, No. 13-0442/MC
dependents rate, plus additional testimony by CWO3 Easton
explaining the process. Moreover, the improper character
evidence that trial counsel sought to elicit in this case
related to the drug offenses; it did not implicate the larceny
or false official statement offenses. For these specifications,
the strength of the evidence weighs heavily in the Government’s
favor.
The evidence supporting the spice conviction was not as
strong as that supporting the larceny and false official
statement convictions, but it was substantial. As Appellant
points out, there was no drug test, and the military judge
commented on the weakness of some of the evidence trial counsel
attempted to submit. Nonetheless, the first two witnesses
established that they saw Appellant smoking a substance that he
identified to them as spice. Furthermore, the military judge
instructed the panel to disregard the improper testimony
elicited by trial counsel, and “[a]bsent evidence to the
contrary, court members are presumed to comply with the military
judge’s instructions.” Thompkins, 58 M.J. at 47. There is no
evidence here that the members failed to comply with the
military judge’s instructions in convicting Appellant of the
spice offense. To the contrary, and despite the clumsy attempts
by the trial counsel to elicit improper character evidence
related to drug use generally, the fact that the panel acquitted
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United States v. Hornback, No. 13-0442/MC
Appellant of other, weaker drug charges indicates that it took
the military judge’s instructions to disregard impermissible
character evidence seriously.
Balancing these factors, we are confident that the members
convicted Appellant on the basis of the evidence alone. The
Appellant was not prejudiced by trial counsel’s misconduct in
this case. Accordingly, the judgment of the United States Navy-
Marine Corps Court of Criminal Appeals is affirmed.
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BAKER, Chief Judge, with whom OHLSON, Judge, joins
(dissenting):
I agree with the majority that prosecutorial misconduct
occurred, which is the rubric used to describe the repeated
improper questioning and comment exhibited in this case. I also
agree that the proper method for determining whether such
misconduct was prejudicial to a substantial right is through
application of the factors outlined in United States v.
Fletcher, 62 M.J. 175, 184 (C.A.A.F. 2005). However, for the
reasons I stated below, I respectfully dissent in this case.
Furthermore, I join Judge Ohlson’s dissent in this case.
As the Supreme Court stated in Smith v. Phillips, “the
touchstone of due process analysis in cases of alleged
prosecutorial misconduct is the fairness of the trial, not the
culpability of the prosecutor. . . . [T]he aim of due process is
not punishment of society for the misdeeds of the prosecutor but
avoidance of an unfair trial to the accused.” 455 U.S. 209, 219
(1982) (citations and internal quotation marks omitted). The
essential question is not whether trial counsel’s conduct was
improper, but whether it resulted in “a failure to observe that
fundamental fairness essential to the very concept of justice.”
Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974) (citation
and internal quotation marks omitted).
United States v. Hornback, No. 13-0442/MC
I agree that the prosecutorial misconduct in this case was
sustained. There were eighteen instances of impermissible
evidence coming before the members. Twelve of these involved
improper character evidence. The military judge also sustained
three relevance objections, two hearsay objections, and one
objection on the grounds of psychotherapist-patient privilege.
In addition, during closing argument, trial counsel improperly
invoked the convening authority. The misconduct was also
severe. As noted, the majority of improper conduct involved the
introduction of character evidence. Character evidence is
particular anathema to U.S. notions of fair trial, running the
risk as it does that members may be swayed to convict not on the
basis of evidence, but because the defendant is a bad person
deserving of punishment. Thus, it is in evaluating the final
two Fletcher factors where I break with the majority. Upon
analyzing all three factors, I believe that the correct
conclusion is that Appellant did not receive a fair trial, as I
am not convinced on this record that members convicted Appellant
on the basis of admissible evidence alone.
Measures Adopted to Cure the Misconduct
It is evident that the military judge attempted to
neutralize any prejudice resulting from trial counsel’s conduct.
As documented by the majority, his interjections were frequent
and forceful. He called numerous Article 39(a), Uniform Code of
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United States v. Hornback, No. 13-0442/MC
Military Justice (UCMJ), 10 U.S.C. § 839(a) (2012), sessions in
which he instructed trial counsel as to what was and was not
admissible. In addition, the military judge delivered curative
instructions on most, though not all, occasions when improper
evidence did come before the members.1
This Court has determined that, absent evidence to the
contrary, it will presume that members follow a military judge’s
instructions. United States v. Taylor, 53 M.J. 195, 198
(C.A.A.F. 2000). However, this case begs the question: when is
too much, too much? The Supreme Court, in Donnelly, also
established that curative instructions are not in fact cure-
alls, noting that “some occurrences at trial may be too clearly
prejudicial for such a curative instruction to mitigate their
effect.” 416 U.S. at 644. This notion that a curative
instruction is not automatically assumed sufficient to remedy
all misconduct is echoed in a number of circuit court decisions,
including from the United States Courts of Appeals for the
Third, Ninth, and Eleventh Circuits. Moore v. Morton, 255 F.3d
95, 119-20 (3d Cir. 2001); United States v. Weatherspoon, 410
F.3d 1142, 1152 (9th Cir. 2005); United States v. Kerr, 981 F.2d
1050, 1054 (9th Cir. 1992); United States v. Simtob, 901 F.2d
1
It is hard to find fault with the military judge’s actions,
especially in the absence of a motion for a mistrial. However,
this case does prompt the question: at what point should a
military judge sua sponte declare a mistrial or call in the
supervising trial attorney?
3
United States v. Hornback, No. 13-0442/MC
799, 806 (9th Cir. 1990); United States v. Crutchfield, 26 F.3d
1098, 1103 (11th Cir. 1994).
Despite repeated instructions from the military judge about
what sort of evidence was proper, trial counsel solicited
impermissible evidence -- evidence that came before members --
that Appellant claimed he had used prescription drugs to get
high, that he had been accused of stealing a motorcycle, that he
had been prescribed medication used to treat schizophrenia, that
he had a history of nonjudicial punishments, that he failed to
pay his rent, that possible drug paraphernalia was found in his
room, and that his behavior had been angry and erratic. In the
presence of the members, trial counsel committed often multiple
violations of numerous rules of evidence including Military Rule
of Evidence (M.R.E.) 402 (relevance), M.R.E. 404 (character
evidence), M.R.E. 513 (psychotherapist-patient privilege), and
M.R.E. 802 (hearsay); she invoked the convening authority in
violation of Article 37, UCMJ, 10 U.S.C. § 837 (2012); and she
impermissibly made arguments in closing calculated to inflame
passions and prejudices. Rule for Courts-Martial (R.C.M.)
919(b) Discussion.
Given the extent, pervasiveness, and character of the
prosecutor’s improper questions and comments, looking at the
context of the entire trial, I believe that the curative
instructions were not sufficient to counteract the impermissible
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material that leaked in. The critical question is not whether
the military judge delivered curative instructions but whether
they were enough to ensure that members did indeed make their
decision based solely on the evidence, not on the basis that
Appellant was a bad person.
The Weight of Evidence Supporting Conviction
Appellant was ultimately convicted of three out of eight
specifications: wrongful use of spice (Article 92, UCMJ),
making a false official statement (Article 107, UCMJ), and
larceny of military property (Article 121, UCMJ). I agree with
the majority that the evidence supporting the later two
convictions was strong. In addition, very little of the
prosecutorial misconduct touched upon the larceny and false
official statement charges.
However, the evidence supporting the spice charge was
weaker and largely circumstantial. Two witnesses, Karen Carney
and Lance Corporal Kimberly D. N. Powers, testified that they
saw Appellant smoke something in a glass pipe that he told them
was spice. Ms. Carney also took one hit of the substance
Appellant was smoking but stopped there, as she did not like the
taste, and she felt none of its effects. There was no drug
test, no analysis of the substance Appellant called spice, and
no testimony as to the characteristics or effects of smoking
spice. Aside from this, the Government included some highly
5
United States v. Hornback, No. 13-0442/MC
circumstantial evidence solicited from Lance Corporal Joshua N.
Teets. Teets testified that Appellant told him spice could not
be detected in a drug test, the inference being Appellant knew
so much about spice because he had smoked it. Also of note is
the fact that the Marine Corps regulation banning the use of
spice describes it as “a mixture of medicinal herbs laced with
synthetic cannabinoids or cannabinoid mimicking compounds” and
forbids the actual or attempted possession or use of any
“derivative, analogue, or variant” of the substance. Dep’t of
Defense, U.S. Marine Corps Forces, Pacific Order 5355.2A,
Prohibited Substances para. 1-3.b. (July 30, 2010). This
description is narrow enough that it is feasible members could
find that possession and use of an untested substance that
Appellant simply called spice did not provide sufficient
evidence that Appellant actually used or possessed a variety of
spice covered by this order.
In addition, much of the improper evidence that came before
the members did touch upon the drug charges, including Gunner’s
Mate 3 Malaea Robidart’s testimony that she had overheard drug-
related conversations having to do with Appellant and that he
told her he used prescription medications to get high, Corporal
P. Kelly’s testimony that he found a glass bowl in Appellant’s
room, testimony referencing Appellant’s behavior changes
including recent angry and sporadic behavior, reference to the
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United States v. Hornback, No. 13-0442/MC
disintegration of Appellant’s marriage possibly due to drug-
related issues, and evidence indicating his overall poor
character, including a history of previous nonjudicial
punishments. This could be enough to convince members that
Appellant was the type of person who would do drugs and tip any
doubts they had in the “beyond reasonable” direction.
Though he ultimately denied Appellant’s R.C.M. 917 motion
to dismiss, the military judge himself commented about the
shakiness of the spice charge. “I’m sensitive to the situation
that you’re in where you don’t have good evidence to convict the
guy of what you believe he did, but that’s the American judicial
system.” Overall, the Government’s case on the spice charge was
weak, as the military judge noted. Thus it is conceivable the
prosecutor’s misconduct swayed members towards a conviction they
might not otherwise have made. In context, the fact that
members acquitted on five of eight charges can cut both ways.
It can suggest that members carefully followed the military
judge’s instruction. But it can also suggest that members found
the Government’s case close and were open to persuasion, in
which case character evidence may have made a difference, either
directly or indirectly, by giving members a margin of comfort
that, even if there was doubt, Appellant deserved what he got.
Trial counsel’s misconduct was not “slight or confined to a
single instance, but . . . pronounced and persistent, with a
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United States v. Hornback, No. 13-0442/MC
probably cumulative effect upon the jury which cannot be
regarded as inconsequential.” Fletcher, 62 M.J. at 185
(alteration in original) (citation and internal quotation marks
omitted). Trial counsel did commit prosecutorial misconduct and
the scope and pervasiveness of that misconduct was sufficient to
interfere with Appellant’s substantial right to a fair trial.
Although the prejudice is clearest with respect to the spice
charge, in light of the pervasive nature of the misconduct, I
would set aside the changes and authorize a rehearing on all
charges. Therefore, I respectfully dissent.
8
United States v. Hornback, No. 13-0442/MC
OHLSON, Judge, with whom BAKER, Chief Judge, joins
(dissenting):
I concur with the majority’s observation that the trial
counsel “repeatedly and persistently elicited improper
testimony, despite repeated sustained objections as well as
admonition and instruction from the military judge.” I also
concur with the majority’s determination that the trial
counsel’s actions constituted prosecutorial misconduct. Where I
differ is on the question of whether the trial counsel’s
“significant,” “repeated,” “pervasive,” “sustained,”
“persistent,” and “severe” misconduct materially prejudiced
Appellant’s right to a fair trial. I believe it did.
I readily acknowledge that the military judge in this case
repeatedly gave curative instructions to the panel in most of
the many instances where the trial counsel engaged in
prosecutorial misconduct, and that he also appropriately
provided the panel with a comprehensive instruction at the end
of the court-martial explaining to the members that they could
not consider evidence that was the subject of sustained
objections. Further, I concede that “[a]bsent evidence to the
contrary, court members are presumed to comply with the military
judge’s instructions.” United States v. Thompkins, 58 M.J. 43,
47 (C.A.A.F. 2003). However, I also note that, consistent with
this Court’s precedent, “[P]rosecutorial misconduct by a trial
United States v. Hornback, No. 13-0442/MC
counsel will require reversal when the trial counsel’s comments,
taken as a whole, were so damaging that we cannot be confident
that the members convicted the appellant on the basis of the
evidence alone.” United States v. Fletcher, 62 M.J. 175, 184
(C.A.A.F. 2005) (emphasis added). In my view, such is the case
here.
As documented by the majority, during this court-martial
trial counsel engaged in prosecutorial misconduct virtually from
start to finish. In her opening statement, case-in-chief,
closing argument, and sentencing argument, trial counsel either
injected improper character evidence (which is of particularly
grave concern), elicited improper hearsay evidence, or made
improper arguments. (For example, trial counsel opined to the
panel members: “The accused is like a criminal infection that
is a plague to the Marine Corps.”) Indeed, even by the
Government’s own accounting, trial counsel’s actions prompted
the military judge to sustain defense counsel’s objections
fifteen times, give the panel members curative instructions
seven times, and convene Article 39(a), UCMJ, 10 U.S.C. § 839(a)
(2012), sessions to discuss objectionable material four times.1
1
The nagging –– if unspoken –– question in this case is, “Where
was the chief of justice?” As noted by the majority, trial
counsel appeared to be not only “inexperienced” but also
“unsupervised,” and she “repeatedly appeared unable to either
understand or abide by the military judge’s rulings and
instructions.” The issue of why this trial counsel did not
2
United States v. Hornback, No. 13-0442/MC
The military judge’s admonishments to trial counsel during
the course of this court-martial are also quite telling. For
example:
 MJ: “I’m tired of having the members being exposed to
basically character evidence that’s not admissible.”
 MJ: “My concern here is that you are getting into all
these potential bad acts that aren’t specific to the
charged offenses, which would blow this case up.”
 MJ: “I am concerned that the jury’s been tainted by
hearing evidence that [the Accused] was taking
schizophrenia medication.”
 MJ: “What you can’t do is get into a bunch of evidence that
the accused is a druggy and, therefore, he probably used
some drug at some point.”
The attentiveness of the military judge to trial counsel’s
repeated prosecutorial misconduct was admirable, and his
admonishments and attempted remedial measures were appropriate.
Ultimately, however, they were not sufficient. I echo the
sentiments of the United States Court of Appeals for the
receive the level of supervision, guidance, assistance,
instruction, and training that she so obviously needed is not a
matter before this Court. However, I find it appropriate to
note that the responsibility to protect a servicemember’s
constitutional right to a fair trial does not rest solely with
the lone trial counsel advocating in the courtroom; it extends
to the chief of justice and to other supervisory officers as
well.
3
United States v. Hornback, No. 13-0442/MC
Eleventh Circuit in United States v. Crutchfield: “When
improper inquiries and innuendos permeate a trial to such a
degree as occurred in this case, [I] do not believe that
instructions from the bench are sufficient to offset the
prejudicial effect suffered by the accused.” 26 F.3d 1098, 1103
(11th Cir. 1994).
On this record I “cannot be confident that the members
convicted the appellant on the basis of the evidence alone.”
Fletcher, 62 M.J. at 184. Therefore, I respectfully dissent and
would authorize a rehearing on all charges.
4