United States v. Edwards ( 2022 )

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Isaiah L. EDWARDS, Airman First Class
United States Air Force, Appellant
No. 21-0245
Crim. App. No. 39696
Argued November 17, 2021—Decided April 14, 2022
Military Judge: Jefferson B. Brown
For Appellant: Captain David L. Bosner (argued); Mark C.
Bruegger, Esq. (on brief).
For Appellee: Major Jessica L. Delaney (argued); Colonel
Naomi P. Dennis, Lieutenant Colonel Matthew J. Neil, and
Mary Ellen Payne, Esq. (on brief); Major Alex B. Coberly.
Judge HARDY delivered the opinion of the Court, in
which Judge MAGGS and Senior Judge COX joined.
Chief Judge OHLSON filed a separate opinion concurring
in part and dissenting in part, in which Judge SPARKS
joined.
_______________
Judge HARDY delivered the opinion of the Court.
During the presentencing phase of Appellant’s court-mar-
tial proceedings, after he was convicted of murder, trial coun-
sel proffered an unsworn victim statement from the victim’s
father that included two videos as attachments. The first of
the videos, the one at issue in this case, was produced by the
trial counsel and included an interview with the victim’s par-
ents and a slideshow of photographs set to acoustic back-
ground music. Over defense counsel’s objection, the military
judge allowed the panel to watch the video and also to take a
copy of it into their sentencing deliberation. We granted re-
view to decide whether the military judge abused his discre-
tion by allowing the video as an unsworn victim statement
under Rule for Courts-Martial (R.C.M.) 1001A(e) (2016 ed.),
United States v. Edwards, No. 21-0245/AF
Opinion of the Court
which authorizes a victim or the victim’s designee to make an
unsworn statement that may be “oral, written, or both.”1
We conclude that the military judge abused his discretion
for two reasons. First, R.C.M. 1001A(e) requires unsworn
statements to be either “oral, written, or both.” As the
Government conceded at oral argument, a video including
acoustic music and pictures is neither oral nor written and
thus violates the rule. Second, because trial counsel produced
the video on behalf of the victim’s family, the video was, at
least in part, trial counsel’s statement rather than theirs. The
right to make an unsworn statement solely belongs to the
victim or the victim’s designee and cannot be transferred to
trial counsel. United States v. Hamilton, 78 M.J. 335, 342
(C.A.A.F. 2019); United States v. Barker, 77 M.J. 377, 378
(C.A.A.F. 2018).
Because we believe that the video was materially im-
portant to the Government’s sentencing case, we conclude
that the Government has not met its burden to prove that the
erroneously admitted video did not have a substantial influ-
ence on Appellant’s sentence. For these reasons, the opinion
of the United States Air Force Court of Criminal Appeals
(AFCCA) is affirmed with respect to the findings but reversed
with respect to the sentence. Appellant’s sentence is vacated,
and we return the record to the Judge Advocate General of
the Air Force for remand to the AFCCA to either reassess the
sentence based on the affirmed findings or order a sentence
rehearing.
I. Background
On March 27, 2018, Appellant killed his roommate, Air-
man Bradley Hale, in a particularly senseless and unpro-
voked act of violence. See United States v. Edwards, No. ACM
39696, 2021 CCA LEXIS 106, at *4, 2021 WL 923079, at *2–
3 (A.F. Ct. Crim. App. Mar. 10, 2021) (describing the murder).
A general court-martial convicted Appellant, contrary to his
1 All references in this opinion to the Uniform Code of Military
Justice (UCMJ), the Military Rules of Evidence, and the Rules for
Courts-Martial (R.C.M.) are to the Manual for Courts-Martial,
United States (MCM) (2016 ed.) unless otherwise specified.
2
United States v. Edwards, No. 21-0245/AF
Opinion of the Court
plea, of one charge and specification of unpremeditated mur-
der in violation of Article 118, Uniform Code of Military Jus-
tice (UCMJ), 10 U.S.C. § 918 (2012 & Supp. IV 2013–2017).
After Appellant’s conviction, the military judge held an
Article 39(a), UCMJ, 10 U.S.C. § 839(a) (2018) session to de-
cide what information would be considered in the presentenc-
ing phase. Pursuant to Article 6b(c), UCMJ, 10 U.S.C. § 806b,
the military judge appointed Airman Hale’s father as de-
signee for the purpose of effectuating the deceased victim’s
right to be reasonably heard. Trial counsel proffered a one-
page, printed, unsworn statement from the victim’s father.
The father’s statement also included two videos as attach-
ments, only one of which is at issue in this appeal. That video
included an interview of the victim’s parents discussing the
victim and a slideshow of pictures of the victim set to acoustic
background music.
Defense counsel objected to the video, stating, “We do not
object to [the] statements themselves of [the victim’s parents]
but the photos with music, we do not believe that is proper
victim impact.” Defense counsel argued that the video failed
to comply with R.C.M. 1001A because “a video in general is
not a statement” and, more specifically, because the chal-
lenged video included photos as well as background music. In
response, the Government argued that showing the video was
within the victim’s right to be reasonably heard under Article
6b, UCMJ.
During the hearing, the military judge questioned who
produced the video, initially stating his understanding that
Airman Hale’s father or family created the video themselves.
Trial counsel explained that the Government assisted in the
production of the video but that the video was based on the
materials provided by the victim’s family, and that the video
represented “what they wanted.” Defense counsel asked for
further clarification, stating his understanding that although
the family provided input into the video, “it was put together
by trial counsel.” Trial counsel confirmed that was correct.
The military judge then held that the video was a proper
unsworn victim statement under R.C.M. 1001A. Regarding
the pictures and music in the video, the military judge held:
3
United States v. Edwards, No. 21-0245/AF
Opinion of the Court
As to the music, it did not have any words, it was
acoustical, the court certainly recognizes that cer-
tain music can be designed or intended to evoke cer-
tain emotions of sadness or sorrow or despair. The
music in this case although obviously not upbeat, the
court did not find that it invokes such emotion or
sadness or rage. The impact was provided, in other
words, [by] the family, not the music choice. Though
certainly there has been no evidence here I would
not expect the music itself was [in] anyway [sic] cre-
ated by the victim I believe it was a neutral back-
drop. There are pictures and discussions, not about
the victim and how his loss or how his death im-
pacted the family. It was not intended and will not
and would not inflame the passions of the members.
During the Government’s presentencing case, both the vic-
tim’s mother and father provided sworn victim statements as
to Airman Hale’s character and how his death affected their
family. After Airman Hale’s father gave his sworn statement,
the Government rested. Airman Hale’s father then read his
unsworn statement, after which trial counsel played the chal-
lenged video.
The video was seven minutes long and included a
slideshow of thirty photos, most of which depicted either the
victim by himself or with his family. The slideshow also in-
cluded one photo of the victim’s gravestone. Only one of the
thirty photos was previously admitted into evidence. In addi-
tion to the photos, the video also included two clips of the vic-
tim’s parents answering questions about their son as well as
a clip that panned across the family’s fireplace, which was
covered with family photos and mementos. Acoustic back-
ground music played throughout the video. After the video,
defense counsel called two witnesses on behalf of the defense,
then the military judge called a recess and the court-martial
moved into the sentencing phase.
The sentencing phase began with an Article 39(a), UCMJ,
session during which trial counsel requested permission to
play part of the unsworn statement video while making her
sentencing argument. Specifically, trial counsel requested to
play a forty-five-second clip of the victim’s father holding and
smelling the victim’s Air Force uniform. Trial counsel argued
that playing the video would demonstrate the full impact of
4
United States v. Edwards, No. 21-0245/AF
Opinion of the Court
the crime and that the video would not go into the delibera-
tion room with the panel. Defense counsel objected on the
grounds that the video was part of an unsworn statement and
was not admitted into evidence. The military judge overruled
the objection on the basis that the video had already been
seen as part of the unsworn victim statement and could
properly be considered by the panel.
The court-martial proceeded to the argument phase of
sentencing. Trial counsel described the crime in detail and
explained the effect Appellant’s actions had on the victim, his
family, and their community. Trial counsel concluded her
argument by playing the video clip of the victim’s father
crying into the victim’s uniform, and making the following
statement:
Members, as you watch that clip you saw him take
this uniform. His son’s uniform. He brings it up his
nose and breathes it in. Members that is a man who
is clinging to the last vestiges of his son. He will
never come back. Members, because of this man
right here, Airman Bradley Hale’s life is over for-
ever. He is not coming back. The lives of those
around him have been altered and it is completely
appropriate, necessary, and fair that his punish-
ment be fitting for his crime. He chose to murder Air-
man Bradley Hale. And for that the appropriate sen-
tence is reduction to the grade of E-1, dishonorable
discharge, confinement where he will not get out, no
eligibility for parole.
After the conclusion of the sentencing arguments, the
military judge, contrary to the earlier statement by trial
counsel, included the video in the materials provided to the
panel for consideration during their closed-door sentencing
deliberation.
The panel sentenced Appellant to thirty-five years of con-
finement, reduction to E-1, forfeiture of all pay and allow-
ances, and a dishonorable discharge. The convening authority
approved the adjudged sentence.
On appeal to the AFCCA, Appellant argued that the mili-
tary judge abused his discretion when he allowed the video to
be shown because neither the video nor its contents complied
with the requirements of R.C.M. 1001A(e). The AFCCA disa-
greed, holding that: (1) video is a proper method to provide an
5
United States v. Edwards, No. 21-0245/AF
Opinion of the Court
unsworn statement; and (2) the pictures and music were
proper because they “could reasonably convey the loss suf-
fered by [the victim], his family, and his community.” Ed-
wards, 2021 CCA LEXIS 106, at *68, 2021 WL 923079, at *24.
The AFCCA also held that although the background music
and pictures were “unusual,” including them was not “obvi-
ously unreasonable” given the victim’s right to be reasonably
heard under Article 6b(a)(4)(B), UCMJ. Id. at *69, 2021 WL
923079, at *24.
We granted review to decide:
Whether the military judge abused his discretion by
allowing the victim to present as an impact state-
ment a video—produced by the trial counsel—that
included photos and background music.
United States v. Edwards, 81 M.J. 424 (C.A.A.F. 2021) (order
granting review).
II. Discussion
Appellant challenges the validity of the video on three pri-
mary grounds. First, Appellant argues broadly that a prere-
corded video can never be a permissible means of presenting
an unsworn statement under R.C.M. 1001A. Second, even as-
suming that an unsworn statement can be presented in such
a manner, Appellant argues that the content of the video—
which included a slideshow and background music—violated
R.C.M. 1001A(e) which states that unsworn statements may
be “oral, written, or both.” Finally, Appellant argues that be-
cause trial counsel produced the video presented in this case,
trial counsel impermissibly usurped the victim designee’s
right to be heard and make an unsworn statement. We ad-
dress each argument in turn.
A. Standard of Review
A military judge’s interpretation of R.C.M. 1001A is a
question of law this Court reviews de novo. Barker, 77 M.J. at
382. The Court reviews “a military judge’s decision to admit
evidence for an abuse of discretion.” Hamilton, 78 M.J. at 340
(quoting United States v. Humpherys, 57 M.J. 83, 90 (C.A.A.F.
2002)). After Hamilton, the Court held that unsworn victim
statements are not evidence. United States v. Tyler, 81 M.J.
108, 112 (C.A.A.F. 2021). Nevertheless, both Appellant and
6
United States v. Edwards, No. 21-0245/AF
Opinion of the Court
the Government assert that the Court should still apply the
abuse of discretion standard because, as the Government
states, the military judge still acts as a “ ‘gatekeeper’ to en-
sure that the content of a victim’s unsworn statement com-
ports with the parameters established by R.C.M. 1001A.”
Brief for Appellee at 11, United States v. Edwards, No. 21–
0245 (C.A.A.F. Sep. 13. 2021) [hereinafter Gov’t Br.] (quoting
Tyler, 81 M.J. at 113). We agree. Abuse of discretion is the
proper standard of review for determining whether a military
judge erroneously admitted an unsworn victim statement un-
der R.C.M. 1001A. A military judge abuses his discretion
when his legal findings are erroneous, Barker, 77 M.J. at 383,
or when he makes a clearly erroneous finding of fact, United
States v. Eugene, 78 M.J. 132, 134 (C.A.A.F. 2018).
B. Prerecorded Videos as Unsworn Statements
Appellant first asserts generally that R.C.M. 1001A
prohibits an unsworn victim statement from being presented
via prerecorded video. We need not—and do not—decide
whether the rules would ever permit a victim to offer an
unsworn statement via prerecorded video because the video
at issue in this case was plainly deficient for the two reasons
explained below.
C. Presentation of Non-Oral or Non-Written
Statements
Turning to the specific video challenged in this case, Ap-
pellant argues that the military judge abused his discretion
by allowing the video as an unsworn statement under R.C.M.
1001A(e) because it included, in addition to recorded state-
ments by the victim’s parents, a picture slideshow and back-
ground music. We agree. Under the plain text of R.C.M.
1001A(e), unsworn statements may be “oral, written, or both.”
As the Government conceded at oral argument, neither pic-
tures nor music qualify as oral statements or as written state-
ments under the rule:
Q: Are pictures an oral statement?
A: Under the plain language of the word oral, they
are not.
Q: Are pictures a written statement?
A: Under the definition in R.C.M. 103, they are not.
7
United States v. Edwards, No. 21-0245/AF
Opinion of the Court
Q: Okay, and is music an oral statement?
A: Not under a plain definition or the MCM defini-
tion, no your Honor.
Q: Is music a written statement?
A: No your Honor.
Oral Argument at 17:50–18:16, United States v. Edwards, No.
21-0245 (C.A.A.F. Nov. 17, 2021).
The Government’s concession was undoubtedly correct.
Applying the standard rules of statutory construction—as we
must2—we agree that the plain meaning of “oral” or “written”
statements would exclude the photographic and musical ele-
ments of the video presented in this case. “Oral” is defined as
“[s]poken or uttered; not expressed in writing.” Black’s Law
Dictionary 1320 (11th ed. 2019). And the rules define “[w]rit-
ing” as “printing and typewriting and reproductions of visual
symbols by handwriting, typewriting, printing, photostating,
photographing, magnetic impulse, mechanical or electronic
recording, or other form of data compilation.” R.C.M. 103(20);
see also Merriam-Webster Dictionary, https://www.merriam-
webster.com/dictionary/written (last visited April 11, 2022)
(defining “written” as “made or done in writing”). Neither pho-
tographs nor music fit under either definition.
The court below elected to disregard the plain text of
R.C.M. 1001A(e) and instead held that the video was permis-
sible because it was not “obviously unreasonable” and because
this Court’s predecessor previously held that courts-martial
“can only make intelligent decisions about sentences when
they are aware of the full measure of loss suffered by all of the
victims, including the family and the close community.” Ed-
wards, 2021 CCA LEXIS 106, at *68–69, 2021 WL 923079, at
*24 (internal quotation marks omitted) (quoting United
States v. Pearson, 17 M.J. 149, 153 (C.M.A. 1984)). The
AFCCA’s reliance on this principle was misplaced and cannot
overcome the plain text of R.C.M. 1001A(e), which prohibits
the inclusion of elements in an unsworn statement that are
neither oral nor written. Accordingly, the military judge
2 “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) (citation omitted).
8
United States v. Edwards, No. 21-0245/AF
Opinion of the Court
abused his discretion by erroneously allowing the video as
part of an unsworn victim statement.
D. Incorporation of Trial Counsel’s Statements
Appellant also argues that the video presented in this case
violated R.C.M. 1001A because trial counsel produced the
video, and thus it presented not only the victim’s unsworn
statement, but also the trial counsel’s statement. In response,
the Government argues that the Court need not answer the
question because Appellant waived the issue at trial. We deal
first with question of waiver.
“[W]aiver is the intentional relinquishment or abandon-
ment of a known right.” United States v. Davis, 79 M.J. 329,
331 (C.A.A.F. 2020) (internal quotation marks omitted) (quot-
ing United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F.
2009)). “Whether an accused has waived an issue is a question
of law we review de novo.” United States v. Ahern, 76 M.J.
194, 197 (C.A.A.F. 2017). At trial, Appellant objected to the
video and moved for its exclusion as improper sentencing ma-
terial under R.C.M. 1001A. In the ensuing Article 39(a),
UCMJ, session, the military judge and counsel for both par-
ties engaged in an extended discussion about the video, its
contents, and who contributed to its production.
During this discussion, the military judge questioned trial
counsel regarding how the video was produced and whether
the video contained statements beyond those of the victim’s
family. Initially, the military judge stated his understanding
that the video was something that the victim’s father or the
victim’s family created themselves, rather than something
that was produced for them, and asked trial counsel if that
was correct. Trial counsel explained that the Government
“provided assistance for and help[ed] compile” the video based
on the materials provided by the victim’s family and stated,
“it is their statement, [it] is what they wanted.”
When the military judge asked defense counsel if he had
anything further to say about the video, defense counsel
asked for clarification about the Government’s role in the pro-
duction of the video. Defense counsel stated that he was “not
in any way implying that any impropriety was done,” but his
understanding was “that the family provided the photographs
9
United States v. Edwards, No. 21-0245/AF
Opinion of the Court
and trial counsel actually put the video together.” Trial coun-
sel then confirmed that defense counsel’s understanding was
correct, and that trial counsel put the video together after con-
sulting with the family multiple times. Finally, after being
asked again by the military judge whether there was any dis-
pute between the parties about how the video was produced,
defense counsel replied, “[t]hat is not a point we are contest-
ing. . . . I think we are in agreement that the family provided
input and that it was put together by trial counsel.”
The Government argues that defense counsel’s remarks—
specifically his statement that he was “not in any way imply-
ing that any impropriety was done” and that “[this] is not a
point we are contesting”—affirmatively waived any objection
about whether the video improperly incorporated any state-
ments beyond those of the victim’s family. We disagree. In
context, defense counsel’s remarks were nothing more than
confirmation that—despite some initial confusion about trial
counsel’s role in the production of the video—both sides
agreed that trial counsel produced the video with input from
the family. Although defense counsel’s statements indicated
that there was no longer any dispute over the factual question
of how the video was produced, we do not interpret his state-
ments as waiving the legal question raised by the military
judge about whether the video improperly included state-
ments beyond those of the victim’s family.3
Because the legal question was not waived, we address it
on the merits. Congress has granted the victim of an offense
under the UCMJ the right to be “reasonably heard” during
any sentencing hearing related to that offense. Article
6b(a)(4)(B), UCMJ. The statute provides for the appointment
of an individual to stand in for the victim if the victim, like
3 The Government argues in its brief that even if Appellant did
not affirmatively waive this objection, he still forfeited it because
he did not specifically raise it at trial. Gov’t Br. at 13, 24, 27. Even
if this issue was forfeited, we would review for plain error, United
States v. Sweeney, 70 M.J. 296, 303–05 (C.A.A.F. 2011), and we
think that the error was clear and obvious based on this Court’s
holdings that the right to make an unsworn victim statement be-
longs solely to the victim or to the victim’s designee, Barker, 77 M.J.
at 378; Hamilton, 78 M.J. at 342.
10
United States v. Edwards, No. 21-0245/AF
Opinion of the Court
Airman Hale in this case, is deceased. Article 6b(c), UCMJ.
The President implemented the victim’s statutory right to be
reasonably heard via R.C.M. 1001A, which authorizes the vic-
tim (or the victim’s designee when appropriate) to “make a
sworn or unsworn statement.” R.C.M. 1001A(b)(4)(B), (e). The
rule further provides that “[u]nsworn statements may be oral,
written, or both.” R.C.M. 1001A(e).
In two prior cases, this Court established that the right to
make an unsworn victim statement belongs solely to the vic-
tim or to the victim’s designee and not to trial counsel. Barker,
77 M.J. at 378; Hamilton, 78 M.J. at 342. The right “is sepa-
rate and distinct from the government’s right to offer victim
impact statements in aggravation, under R.C.M. 1001(b)(4).”
Barker, 77 M.J. at 378. In Hamilton, the Court cautioned that
the unsworn statement “is not a mechanism whereby the gov-
ernment may slip in evidence in aggravation that would oth-
erwise be prohibited by the Military Rules of Evidence, or in-
formation that does not relate to the impact from the offense
of which the accused is convicted.” 78 M.J. at 342 (citing
R.C.M. 1001(b)(4)).
Here, because Airman Hale was killed by Appellant,
Hale’s father was appointed as the victim’s designee. As such,
he was permitted to proffer an unsworn victim statement un-
der R.C.M. 1001A, and he did so without objection. But after
the conclusion of Hale’s father’s statement, the challenged
video was played in open court as an “additional presenta-
tion.” As discussed above, the video contained artistic ele-
ments beyond just the victim impact statements of Airman
Hale’s parents, including a thirty-image slideshow and back-
ground music. These artistic elements were incorporated into
the video for the purpose of delivering a non-written and non-
oral message to the panel, but to whom should we attribute
that message?
We believe the answer to that question must be to Govern-
ment trial counsel. In producing the video, trial counsel made
creative and organizational decisions that lead us to believe
that the video incorporated her own personal artistic expres-
sion. Even if the President had not limited unsworn victim
statements to be solely oral or written (and thus excluded
statements in the form of artistic expression), this Court has
been clear that unsworn victim statements belong solely to
11
United States v. Edwards, No. 21-0245/AF
Opinion of the Court
the victim or the victim’s designee. Barker, 77 M.J. at 378;
Hamilton, 78 M.J. at 342. Unsworn victim statements are not
a vehicle by which the government can supplement its sen-
tencing arguments by putting its own statements—oral, writ-
ten, artistic, or otherwise—into the victim’s mouth. Of course,
victims may confer with trial counsel in preparation for their
unsworn statements, see Article 6b(a)(5), UCMJ, but trial
counsel may not misappropriate the victim’s right to be heard,
as trial counsel did here when she created the video on the
victim’s family’s behalf.
E. Prejudice
When the Court finds error in the admission of sentencing
evidence (or sentencing matters), the test for prejudice is
“whether the error substantially influenced the adjudged sen-
tence.” Barker, 77 M.J. at 384 (internal quotation marks omit-
ted) (quoting United States v. Sanders, 67 M.J. 344, 346
(C.A.A.F. 2009) (per curiam)).4 As the Government concedes
in its brief, it bears the burden of demonstrating that the ad-
mission of erroneous evidence was harmless. Gov’t Br. at 34
(citing United States v. Flesher, 73 M.J. 303, 318 (C.A.A.F.
2014)).
Appellant urges the Court to adopt a “harmless beyond a
reasonable doubt” standard for analyzing prejudice in cases
where the error regarding an unsworn victim statement im-
plicates an appellant’s constitutional rights, and asserts that
in the present case, the presentencing error has “constitu-
tional dimensions—specifically, [regarding] due process and
the right to a fair trial.” Brief for Appellant at 35–36, United
States v. Edwards, No. 21-0245 (C.A.A.F. Aug. 13. 2021)
[hereinafter App. Br.]. In support of this argument, Appellant
cites to two cases where the Court decided issues related to
unlawful command influence (UCI). In each case the Court
4 As stated above, the Court has held that unsworn victim im-
pact statements are not evidence, but presentencing “matters” that
may be presented to and considered by the panel. Tyler, 81 M.J. at
112–13. Although the Court’s earlier precedents use the word “evi-
dence” when discussing prejudice caused by erroneous unsworn vic-
tim impact statements, Tyler’s clarification did not alter our test for
prejudice because, either way, the test is based on application of
Article 59, UCMJ, 10 U.S.C. § 859. Sanders, 67 M.J. at 345–46.
12
United States v. Edwards, No. 21-0245/AF
Opinion of the Court
applied a harmless beyond a reasonable doubt standard be-
cause prior precedent held that UCI issues raise constitu-
tional due process concerns. United States v. Jerkins, 77 M.J.
225, 228–29 (C.A.A.F. 2018) (“Application of the harmless be-
yond a reasonable doubt standard is consistent with this
Court’s position that unlawfully influencing a court-martial
raises constitutional due process concerns . . . .”); United
States v. Pope, 63 M.J. 68, 75–76 (C.A.A.F. 2006) (applying
the harmless beyond a reasonable doubt standard when the
military judge admitted a letter from appellant’s commanding
officer suggesting harsh punishment would be appropriate).
We decline Appellant’s request to adopt a harmless be-
yond a reasonable doubt standard generally or to apply it spe-
cifically in this case. As both Appellant and the Government
note in their briefs, the Court has already established a four-
factor test to evaluate prejudice when there is a nonconstitu-
tional presentencing error. App. Br. at 15 (citing Hamilton,
78 M.J. at 343); Gov’t Br. at 35 (same). Although Appellant
argues that this case has “constitutional dimensions—specif-
ically due process and the right to a fair trial,” he does not
explain exactly how either right was infringed. App. Br. at 36.
In our view, the errors identified in this case arise not out of
the video’s failure to comply with the Constitution, but rather
from failure to comply with the rules promulgated by the
President and with Article 6b, UCMJ. Also, this is not a UCI
case, so Appellant’s reliance on Jerkins, 77 M.J. 225, and
Pope, 63 M.J. 68, is unpersuasive. Accordingly, our task in the
present case is to decide whether the Government established
that the military judge’s error in admitting the challenged
video did not substantially influence Appellant’s adjudged
sentence. Barker, 77 M.J. at 384; Sanders, 67 M.J. at 344.
The Court considers four factors when deciding whether
an error substantially influenced an appellant’s sentence: “(1)
the strength of the Government’s case; (2) the strength of the
defense case; (3) the materiality of the evidence in question;
and (4) the quality of the evidence in question.” Barker, 77
M.J. at 384 (internal quotation marks omitted) (quoting
United States v. Bowen, 76 M.J. 83, 89 (C.A.A.F. 2017)). We
consider these factors de novo. United States v. Thompson, 63
M.J. 228, 231 (C.A.A.F. 2006). The Court has also reasoned
that an error is more likely to have prejudiced an appellant if
13
United States v. Edwards, No. 21-0245/AF
Opinion of the Court
the information conveyed as a result of the error was not al-
ready obvious from what was presented at trial. United States
v. Harrow, 65 M.J. 190, 200 (C.A.A.F. 2007).
Before analyzing the individual factors, it is worth noting
that this test—which the Court has applied to errors that
occur during both the findings and sentencing phases of the
court-martial—is considerably more difficult to apply to
sentencing. Although there is a binary decision to be made
with respect to the findings (guilty or not guilty), there is a
broad spectrum of lawful punishments that a panel might
adjudge. Complicating matters further, it is much more
difficult to compare the “strengths” of the competing
sentencing arguments than it is to weigh evidence of guilt.
Proof of guilt can be overwhelming even without the
erroneously admitted evidence, but there is no analogous
analysis for determining the appropriate sentence. It is thus
harder for the Government to meet its burden of showing that
a sentencing error did not have a substantial influence on a
sentence than it is to show that an error did not have a
substantial influence on the findings.
Proceeding to the first factor, with respect to the strength
of the Government’s case, we agree with the court below that
there was “exceptionally strong aggravation evidence consid-
ering the unprovoked violence that preceded the killing as
well as the impact of Appellant’s crime on [Airman Hale’s]
family and friends.” Edwards, 2021 CCA LEXIS 106, at *70,
2021 WL 923079, at *24. The Government rightfully notes
that Appellant committed a “senseless and unprovoked mur-
der of a fellow airman, in the dorms, at a deployed location,”
and that Appellant “misled and slowed down” the first re-
sponders who came to help Airman Hale. Gov’t Br. at 35. And
although we find error in the admission of the video attached
to Airman Hale’s father’s unsworn statement, that error in no
way diminishes the impact of the permissible and appropriate
sentencing testimony of Airman Hale’s family and friends.
With respect to the second factor, we also agree with the
court below that Appellant’s sentencing case was weak rela-
tive to the Government’s case. Appellant did not introduce
any particular matters in extenuation or mitigation, but in-
stead offered letters and statements that generally portrayed
Appellant in a positive light, including four character letters,
14
United States v. Edwards, No. 21-0245/AF
Opinion of the Court
a letter of appreciation, statements from his family and
friends, and a personal statement.
The third factor—the materiality of the evidence in
question—weighs in favor of finding that Appellant was
prejudiced. The challenged video contained a slideshow of
pictures accompanied by background music, including
pictures of the victim as a child, throughout his life, and
finally, of his gravestone. All but one of these pictures had not
been admitted into evidence and would not have been seen by
the panel members but for the military judge’s error in
allowing the video to be shown and taken into the panel
deliberations. The pictures, coupled with the background
music, were no doubt intended to evoke a strong emotional
response from the panel.5 Seeing the victim’s father cry into
the uniform of his deceased son was likely heart-wrenching,
and it is the type of content that had the potential to influence
the sentencing decision of the panel.
The fourth factor—the quality of the evidence in ques-
tion—also weighs in favor of Appellant. The Government used
its resources to produce a video on behalf of the victim’s fam-
ily that was designed to evoke an emotional response from the
panel. Trial counsel selected and compiled the photographs,
recorded two interviews with the victim’s parents, found and
selected background music, and then edited all of those ele-
ments together. This was likely a time-intensive process that
resulted in an emotionally moving video that the Government
intended to influence Appellant’s sentence.
Our conclusions about the materiality and quality of the
video are bolstered by the way the Government used the video
during sentencing. See United States v. Washington, 80 M.J.
106, 111 (C.A.A.F. 2020) (noting that two relevant factors in
assessing materiality and quality are “the extent to which the
evidence contributed to the government’s case” and “the ex-
5 Although the military judge determined that the music did not
evoke “emotions of sadness or sorrow or despair” and that the pic-
tures and discussion were “not intended [to] and will not and would
not inflame the passions of the members,” this Court reviews the
four prejudice factors de novo, and we conclude that the video as a
whole was material evidence that had a poignant quality.
15
United States v. Edwards, No. 21-0245/AF
Opinion of the Court
tent to which the government referred to the evidence in ar-
gument”). Although the Government now characterizes the
artistic elements of the video as a “distraction” and “not rele-
vant,” Gov’t Br. at 38–39, the Government’s actions during
the court-martial tell a different story. In addition to produc-
ing the video and playing it for the panel, in full, after Airman
Hale’s father delivered his unsworn statement, trial counsel
also played part of the video—the portion where the victim’s
father cried into his son’s uniform—again at the crescendo of
the trial counsel’s sentencing argument, immediately before
asking the panel to adjudge the maximum possible sentence.
Contrary to the Government’s argument’s now, trial counsel’s
decision to replay the video in that moment is compelling ev-
idence the Government believed the video was not only mate-
rial and of high quality, but possibly the most powerful aspect
of their sentencing case.
The fact that the panel took a copy of the video into the
deliberation room—despite trial counsel’s statement to the
military judge during the motions hearing that this would not
be the case—is also troubling. Of course, we cannot know how
the panel used the video, or if they used it at all. But the fact
that the panel had unfettered access to a video that, per the
plain text of R.C.M. 1001A, they should have never seen,
makes it even harder for the Government to prove that the
video did not have a substantial influence on the adjudged
sentence.
Although the first two factors weigh in favor of holding
that Appellant was not prejudiced, the materiality and high
quality of the video—as illustrated by the Government’s use
of the video during sentencing—prevent us from concluding
that the Government has met its burden of establishing that
the video did not substantially influence Appellant’s sen-
tence. Accordingly, we hold that Appellant suffered prejudice
and the proper course is for Appellant to be resentenced.
III. Judgment
The decision of the United States Air Force Court of Crim-
inal Appeals is affirmed with respect to the findings but re-
versed with respect to the sentence. The record is returned to
the Judge Advocate General of the Air Force for remand to
16
United States v. Edwards, No. 21-0245/AF
Opinion of the Court
the Court of Criminal Appeals to either reassess the sentence
based on the affirmed findings or order a sentence rehearing.
17
United States v. Edwards, No. 21-0245/AF
Chief Judge OHLSON, with whom Judge SPARKS joins,
concurring in part and dissenting in part.
I agree with many of the key points addressed in the ma-
jority’s well-crafted opinion. Most importantly, I concur with
the majority’s holding that: (a) because Rule for Courts-Mar-
tial (R.C.M.) 1001A(e) (2016 ed.) states that unsworn victim
impact statements must be “oral, written, or both,” the video
presented to the panel members in the instant case violated
the plain language of the rule because it included music and
photographs; and (b) “[t]he right to make an unsworn state-
ment solely belongs to the victim or the victim’s designee and
cannot be transferred to trial counsel,” as seemingly hap-
pened here. United States v. Edwards, __ M.J. __ (2) (C.A.A.F.
2022). Where I part ways with the majority is simply on the
issue of whether Appellant suffered prejudice as a result of
the improper admission of the video. For the reasons cited be-
low, I believe the Government met its burden of demonstrat-
ing the harmlessness of this improper sentencing material.
Consequently, I would uphold the sentence imposed on Ap-
pellant, and thus, I respectfully dissent.
As noted in the majority opinion, the essential question
posed by the improper introduction of the video during Appel-
lant’s court-martial “is whether the error substantially influ-
enced the adjudged sentence.” United States v. Barker, 77
M.J. 377, 384 (C.A.A.F. 2018) (internal quotation marks omit-
ted) (quoting United States v. Sanders, 67 M.J. 344, 346
(C.A.A.F. 2009)). This nonconstitutional harmlessness test
assesses “(1) the strength of the Government’s case; (2) the
strength of the defense case; (3) the materiality of the evi-
dence in question; and (4) the quality of the evidence in ques-
tion.” Id. (internal quotation marks omitted) (quoting United
States v. Bowen, 76 M.J. 83, 89 (C.A.A.F. 2017)).
I agree with the majority’s conclusions regarding the first
two prongs of the Barker test: the Government’s sentencing
case was strong and the Appellant’s sentencing case was
weak. However, I have a different view regarding the third
and fourth prongs. From my perspective, the materiality and
quality of the improperly admitted video did not rise to such
a level that the Government was precluded from meeting its
burden of demonstrating harmlessness. Specifically, I believe
United States v. Edwards, No. 21-0245/AF
Chief Judge OHLSON, concurring in part and dissenting in part
that any prejudice to Appellant caused by the video was al-
most entirely negated by the fact that it was cumulative of
the properly admitted victim impact evidence. Thus, I con-
clude that the military judge’s abuse of discretion in admit-
ting the video was ultimately harmless.
In demonstrating this point, it is necessary to recount in
detail the poignant and compelling evidence that was
properly admitted by the military judge for the panel’s consid-
eration during sentencing.
The victim’s mother provided emotional sworn testimony
regarding her “very high hopes and very high aspirations” for
the victim’s life, his “easy-going, very curious” nature as a
baby, his close relationship with “his little brother . . . , like
two peas in a pod,” his “passion” for reading, his musical tal-
ent, his “love for the Air Force” and the adversity he overcame
in joining it, her pride that he had begun to grow as a person
and “to look like . . . a man” during his time in the Air Force,
and her feeling that “the biggest and best part of [her] was
ripped from [her]” when she found out he had been killed.
These points were bolstered by the simultaneous
slideshow presentation of at least seven photographs of the
victim at various stages of his life.1
The victim’s father testified similarly, with even greater
reliance on the slideshow photographs, recounting the victim
as a happy, athletic child, the family’s Christmases together,
the victim’s “first day of school,” his deep-sea fishing trip with
the victim, the victim’s time “in the marching band” through-
out high school, teaching the victim how “to do his own [car]
maintenance” and a particular car they “both worked on,” the
victim’s desire “to fly” and join the Air Force, the victim’s ex-
citement upon graduating from basic training, the fact that
the victim was “looking forward to his future,” the military
honors at his son’s funeral,2 his younger son’s reaction to the
1 These photographs showed the victim as a newborn, playing
with his brother and their dog, standing with his bass clarinet, hik-
ing with some friends in Guam (where he was stationed), and pos-
ing in uniform with what his mother described as his signature
“smirk.”
2 As the victim’s father described it:
2
United States v. Edwards, No. 21-0245/AF
Chief Judge OHLSON, concurring in part and dissenting in part
victim’s death, his last conversation with the victim, and the
emotional turmoil he suffered in processing the victim’s
death.
During the presentation of these statements, trial counsel
displayed and questioned the victim’s father about at least
fifteen different photographs of the victim, including one
where the victim’s father is shown holding up a piece of the
victim’s uniform.3
The victim’s maternal aunt testified that the family “does
not feel whole” and described the impact of the victim’s death
on his mother: “She is not the same, she used to be happy and
bubbly and now she is just sad a lot. . . . She has a lot of night-
mares. I can’t get her to go and do some of the things that we
used to do. She is not the same.”
The patriot guard, everybody was there . . . . He ar-
rived at Bush Intercontinental and the military was
there with honors. They kept everybody on the plane
. . . until after [the victim] was off. The military was
there and marched and picked him up and put him
in the hearse and then we were all escorted to the
funeral home. . . . [W]e had patriot guard, police eve-
rywhere, I had a lot of friends [that] are in the police
department and they actually offered their time
without being paid . . . . We probably had . . . 25 po-
lice cars there. They actually shut down I-45 which
is a 6-lane highway . . . . I have never seen that un-
less it was [for] the President and they blocked it
down for . . . about 30 miles and at the burial site
they did the honor guard, the shots fired.
3 The other photographs showed the victim posing in portraits
as a young child, celebrating Christmas with his brother and father,
playing with toys, standing with his backpack and lunch bag on his
first day of school, holding up a fish he had caught, playing his bass
clarinet with his father, and posing in his baseball uniform. Other
photographs showed the victim’s father posing with a framed
photograph of the victim and his brother as young children, a
Camaro that served as a project car for the victim and his father,
and a banner reflecting the victim’s and the victim’s brother’s
military service.
3
United States v. Edwards, No. 21-0245/AF
Chief Judge OHLSON, concurring in part and dissenting in part
A high school friend of the victim gave sworn testimony
describing the impact on the victim’s friends and their at-
tempts to process the victim’s death: “We definitely talk about
it a lot, we try to support each other.”
The victim’s paternal aunt gave sworn testimony about
the victim and the impact of his death, describing him as “so
sweet, so polite, always so well-mannered . . . . very consider-
ate, [and] very caring” with an unforgettable smile. She also
told the members that the impact on her brother—the victim’s
father—had been “[a]bsolutely devastating,” and that, while
she had previously seen her brother cry “two or three times”
in her “entire life,” she now had “seen him cry so much.” She
further stated: “It has impacted the whole family . . . . There
are plenty of days that I think we have all . . . just tr[ied] to
be in denial so he can be here one more time.”
The victim’s commander testified to the victim’s service
history and the impact of his death on his fellow airmen, de-
scribing the “general disbelief and shock” that the victim’s
death engendered in the squadron and the “very close” rela-
tionships that members of the victim’s unit have with each
other. The victim’s commander noted that “several members
of the unit . . . were struggling with [the victim’s] death, they
were . . . significantly impacted and although this [funeral]
service provided some closure to some members, we still had
individuals [take] much longer to deal with the loss of [the
victim]. Some members are still struggling today.”
In sum, the Government properly presented agonizing,
emotional, detailed testimony, complete with photographs
(which were themselves admitted into evidence) that, as a
whole, produced an effect substantially the same as that
created by the video. The combined effect of this evidence was
to overshadow what otherwise may have been an overly
impactful video presentation. Stated differently, the
improperly admitted video was effectively cumulative of the
properly admitted sentencing evidence. Therefore, from my
perspective, the error of introducing the video did not
“substantially influence[] the adjudged sentence.” Barker, 77
M.J. at 384 (internal quotation marks omitted) (quoting
Sanders, 67 M.J. at 346).
4
United States v. Edwards, No. 21-0245/AF
Chief Judge OHLSON, concurring in part and dissenting in part
Because I agree with the majority that the Government’s
sentencing case was strong and the Appellant’s sentencing
case was weak, and because I view the materiality and
quality of the video statement as essentially neutral factors,
I would hold that the Government met its burden to show that
the military judge’s error in allowing the video statement to
be presented was harmless. Accordingly, I would uphold the
sentence imposed on Appellant. Therefore, I respectfully
dissent.
5