United States v. Bass , 2015 CCA LEXIS 221 ( 2015 )


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  •             UNITED STATES NAVY-MARINE CORPS
    COURT OF CRIMINAL APPEALS
    WASHINGTON, D.C.
    Before
    K.J. BRUBAKER, J.R. MCFARLANE, M.C. HOLIFIELD
    Appellate Military Judges
    UNITED STATES OF AMERICA
    v.
    ALONZO BASS III
    AVIATION BOATSWAIN'S MATE SECOND CLASS (E-5), U.S. NAVY
    NMCCA 201400229
    GENERAL COURT-MARTIAL
    Sentence Adjudged: 28 February 2014.
    Military Judge: CAPT Robert B. Blazewick, JAGC, USN.
    Convening Authority: Commander, Navy Region Southeast,
    Naval Air Station, Jacksonville, FL.
    Staff Judge Advocate's Recommendation: CDR N.O. Evans,
    JAGC, USN.
    For Appellant: LT Carrie E. Theis, JAGC, USN; LT Ryan
    Aiken, JAGC, USN.
    For Appellee: Maj Suzanne Dempsey, USMC; LT Ann E. Dingle,
    JAGC, USN.
    27 May 2015
    ---------------------------------------------------
    PUBLISHED OPINION OF THE COURT
    ---------------------------------------------------
    BRUBAKER, Senior Judge:
    A panel of members with enlisted representation sitting as
    a general court-martial convicted the appellant, contrary to his
    pleas, of one specification of violating a lawful general
    regulation (sexual harassment), two specifications of wrongful
    sexual contact, and two specifications of sodomy, in violation
    of Articles 92, 120, and 125, Uniform Code of Military Justice,
    10 U.S.C. §§ 892, 920, and 925. The members sentenced him to
    seven years’ confinement, total forfeiture of pay and
    allowances, reduction to pay grade E-1, and a dishonorable
    discharge. The convening authority (CA) approved the sentence
    as adjudged.
    The appellant raises 11 assignments of error (AOEs):
    (1) the military judge erred in instructing the members
    that consensual sodomy is a lesser included offense (LIO)
    of forcible sodomy;
    (2) the appellant was not on notice of the alternative
    crime of consensual sodomy;
    (3) the appellant’s conviction for consensual sodomy is
    fatally ambiguous;
    (4) the members created a prejudicial, fatal variance when
    they convicted the appellant of consensual sodomy;
    (5) the military judge abused his discretion by permitting
    the Government to argue that the appellant had a general
    propensity to commit sexual crimes based only on the
    charges before the court-martial;
    (6) trial counsel committed prosecutorial misconduct by
    referencing the victim advocate, misstating evidence,
    giving his personal opinion, and “accusing the members of
    victim-blaming if they believed the defense’s case”; 1
    (7) the military judge erred when he foreclosed the defense
    from undermining the complaining witness’s credibility;
    (8) the appellant’s sentence is inappropriately severe;
    (9) the military judge’s presentation of the Secretary of
    Defense’s memorandum on sexual assault to the members
    created the appearance of unlawful command influence;
    (10) the appellant was improperly denied access to the
    victim’s medical records; and
    (11) the trial counsel committed prosecutorial misconduct
    by cross-examining the appellant about the fact that he was
    facing life in prison. 2
    After carefully considering the record of trial and the
    submissions and oral arguments of the parties, we find merit in
    1
    Appellant’s Brief of 16 Sep 2014 at 32.
    2
    Raised pursuant to United States v. Grostefon, 
    12 M.J. 431
    (C.M.A. 1982).
    2
    the appellant’s first AOE and grant relief in our decretal
    paragraph. AOEs (2) through (4) and (8) are therefore mooted.
    Furthermore, AOE (10) implicates only the sentencing phase of
    the trial and our decretal paragraph sets aside the sentence;
    thus, even assuming without deciding that the military judge
    erred by denying the appellant access to the victim’s medical
    records, whether such error was prejudicial is also mooted.
    Finally, having considered AOEs (7), (9), and (11), we find them
    without merit. United States v. Clifton, 
    35 M.J. 79
    , 81-82
    (C.M.A. 1992). We address the remaining AOEs below, but find no
    prejudicial error regarding them. Arts. 59(a) and 66(c), UCMJ.
    Factual Background
    All the specifications in this case allege offenses against
    two Sailors who served with the appellant aboard USS JOHN C.
    STENNIS (CVN 74): Machinist’s Mate Third Class (MM3) TM and
    Aviation Boatswain’s Mate Second Class (ABE2) MH. We will
    consider each in turn.
    MM3 TM
    After reporting to the STENNIS in April 2011, MM3 TM and
    the appellant developed a close friendship that evolved into a
    consensual sexual relationship. While deployed aboard the ship
    in the fall of 2011, MM3 TM stated that she ended her sexual
    relationship with the appellant after she realized their
    relationship was not exclusive. MM3 TM, however, wished to
    remain in contact with the appellant and continue their
    friendship.
    MM3 TM alleged that after their consensual sexual
    relationship ended, the appellant sexually assaulted her on
    three separate occasions between about November 2011 and
    February 2012——all while deployed aboard the STENNIS. MM3 TM
    alleged that during one of the incidents, the appellant both
    orally and anally sodomized her.
    The appellant ultimately admitted to sexual activity with
    MM3 TM aboard the ship, including oral and anal sodomy, but
    claimed it was consensual.
    The members acquitted the appellant of all offenses against
    MM3 TM alleging the use of force, but convicted him of two
    specifications of non-forcible sodomy with her.
    3
    ABE2 MH
    ABE2 MH reported to the STENNIS in July 2011. Shortly
    thereafter, she transferred to the appellant’s division where
    the two began to work closely. The appellant made unwanted,
    inappropriate comments to ABE2 MH such as “you have a nice ass
    for a white girl.” ABE2 MH also alleged that between the months
    of August 2011 and January of 2012 the appellant did the
    following: reached into the back pocket of her uniform without
    permission to retrieve chewing tobacco, touching her buttocks
    over her clothing in the process; pushed her against the wall
    and kissed her against her will; approached from behind her and
    grabbed her by the crotch, lifting her from the ground and
    making contact with her genitalia over her clothes as a result;
    and in one instance, grabbed her, pushed her against the wall,
    kissed her, and without consent forced his hands down her pants
    and touched her genitalia over her underwear.
    The appellant admitted to much of the physical contact, but
    asserted it was consensual. The members found the appellant not
    guilty to four specifications of sexual assault against ABE2 MH,
    including two related to placing his hand into her back pocket,
    but convicted him of sexually harassing her and two
    specifications of wrongful sexual contact against her.
    Additional facts necessary to discuss the AOEs are
    incorporated below:
    Analysis
    I.    Non-Forcible Sodomy as an LIO
    The appellant’s first four AOEs relate to his convictions
    for non-forcible sodomy as a lesser included offense of forcible
    sodomy. 3 Specifications 1 and 2 of Charge III stated that the
    appellant “did commit [oral and anal] sodomy with [MM3 TM] by
    force and without the consent of the said [MM3 TM].” 4 Without
    objection from the appellant, the military judge instructed the
    members that non-forcible sodomy is a lesser included offense of
    3
    This opinion interprets and pertains only to the former version of Article
    125. On 26 December 2013, the President signed into law the National Defense
    Authorization Act for Fiscal Year 2014, amending Article 125 to cover only
    forcible sodomy and bestiality. In this case, however, the former version of
    Article 125 applies as the acts alleged occurred when it was in effect.
    4
    Charge Sheet.
    4
    the offense of sodomy by force and without consent.     He advised
    as follows:
    The lesser included offense of non-forcible sodomy
    differs from the charged offense of forcible sodomy,
    in that non-forcible sodomy does not require you to be
    convinced beyond a reasonable doubt that the sodomy
    was committed by force and without the consent of the
    other person. However, in order to find the accused
    guilty of this lesser included offense, you must find
    beyond a reasonable doubt both that the physical act
    of sodomy occurred and that it involved public
    behavior; an act of prostitution; persons who might be
    injured, coerced or who were situated in relationships
    where consent might not easily be refused; or of a
    unique military interest. 5
    For each of the two specifications, the members acquitted
    the appellant on the greater offense of forcible sodomy, but
    convicted him of non-forcible sodomy. While the first four AOEs
    allege various infirmities of these convictions, they turn on
    one question: was it proper for the members to be instructed on
    and convict the appellant of non-forcible sodomy when such a
    conviction required proof beyond a reasonable doubt of facts not
    necessary for a forcible sodomy conviction and not pleaded in
    the specifications? We answer this in the negative.
    Whether an offense is a lesser included offense is a
    question of law that we review de novo. United States v.
    Tunstall, 
    72 M.J. 191
    , 193 (C.A.A.F. 2013) (citing United States
    v. Girouard, 
    70 M.J. 5
    , 9 (C.A.A.F. 2011). Absent objection at
    trial, we review for plain error, only granting relief if the
    appellant demonstrates: (1) there was error; (2) the error was
    plain or obvious; and (3) the error materially prejudiced a
    substantial right of the accused. 
    Girouard, 70 M.J. at 11
    .
    To determine whether one offense is an LIO of another, we
    apply the elements test. 
    Tunstall, 72 M.J. at 194
    (citing
    United States v. Jones, 
    68 M.J. 465
    , 468 (C.A.A.F. 2010)).
    Under the elements test, one compares the elements of
    each offense. If all of the elements of offense X are
    also elements of offense Y, then X is an LIO of Y.
    Offense Y is called the greater offense because it
    contains all of the elements of offense X along with
    one or more additional elements.
    5
    Record at 1189-90 (emphasis added).
    5
    
    Jones, 68 M.J. at 470
    .
    The elements of forcible sodomy, as charged in this
    case, are: (1) that the appellant engaged in unnatural
    carnal copulation with MM3 TM; and (2) that the act was
    done by force and without the consent of MM3 TM. MANUAL FOR
    COURTS-MARTIAL, UNITED STATES (2012 ed.), Part IV, ¶ 51b; Charge
    Sheet.
    Non-forcible sodomy under the former version of
    Article 125, on the other hand, has one element: that the
    appellant engaged in unnatural carnal copulation with MM3
    TM. 
    Id. Were we
    to end our analysis here, we would readily
    conclude——as indeed we did in United States v. Useche, 
    70 M.J. 657
    , 661 (N.M.Ct.Crim.App. 2012)——that these two
    offenses meet the elements test and that non-forcible
    sodomy is an LIO of forcible sodomy. The problem with this
    analysis is that since our decision in Useche, the United
    States Court of Appeals for the Armed Forces (CAAF) has
    clearly articulated that unnatural carnal copulation,
    standing alone, is not a crime under the former version of
    Article 125; further facts to be determined by the fact-
    finder are essential to a conviction for non-forcible
    sodomy. United States v. Castellano, 
    72 M.J. 217
    , 218
    (C.A.A.F. 2013).
    Specifically, to find an accused guilty of sodomy, the
    fact-finder must determine the presence of at least one
    Marcum factor. In United States v. Marcum, 
    60 M.J. 198
    (C.A.A.F. 2004), the CAAF rejected a facial challenge to
    Article 125 in the wake of Lawrence v. Texas, 
    539 U.S. 558
    (2003); it instead analyzed the constitutionality of the
    statute as applied to the appellant in that case by
    considering whether the sodomy involved any of the
    following: non-consensual activity; public conduct; minors;
    prostitution; persons who might be injured or coerced or
    who were situated in relationships where consent might not
    easily be refused; or “additional factors relevant solely
    in the military environment that affect the nature and
    reach of Lawrence liberty interests[.]” 
    Id. at 205-07.
         Subsequently, in an unpublished decision, a panel of
    this court addressed the assertion that Marcum factors
    amounted to de facto elements and therefore must be pleaded
    and submitted to the trier of fact. United States v.
    Castellano, No. 201100248, 2012 CCA LEXIS 571, *13-14
    6
    (N.M.Ct.Crim.App. 26 Jun 2012). Denying relief, the court
    reasoned that “[j]udicially created principles, such as the
    Marcum factors, are not elements of offenses[,]” 
    id. at *14,
    but rather factors for a military judge to consider in
    making a legal determination, that is, the
    constitutionality of Article 125 as applied to a particular
    accused, 
    id. at *14.
         The CAAF rejected this analysis and reversed. United
    States v. Castellano, 
    72 M.J. 217
    , 220-23 (C.A.A.F. 2013).
    It acknowledged that the Marcum factors are not elements of
    the offense, but pointed out that aggravating factors
    delineated by the President also are not elements, yet they
    “must be pleaded in the specification, instructed upon to
    the members, and determined by the trier of fact.” 
    Id. at 222
    (citing Apprendi v. New Jersey, 
    530 U.S. 466
    , 490
    (2000)). Emphasizing the “critical significance” of the
    presence of a Marcum factor in distinguishing between
    criminal and non-criminal sodomy, it held that the trier of
    fact must determine whether a Marcum factor exists. 
    Id. at 221-22.
         The CAAF’s binding interpretation that Marcum factors
    represent additional facts necessary to prove a criminal
    act of sodomy——as opposed to factors to guide judges in
    making legal determinations——constrains us to conclude
    that, as a result, they must be pleaded in a sodomy
    specification. First, “the Due Process Clause protects the
    accused against conviction except upon proof beyond a
    reasonable doubt of every fact necessary to constitute the
    crime with which he is charged.” In Re Winship, 
    397 U.S. 358
    , 364 (1970). The existence of at least one Marcum
    factor is, as established, a fact necessary to constitute
    the crime of sodomy under the UCMJ. Second, a
    specification, to be sufficient, must allege every element
    expressly or by necessary implication. United States v.
    Fosler, 
    70 M.J. 225
    , 229 (C.A.A.F. 2011). Third, a fact
    that is essential to a determination of guilt or innocence
    to an offense, however it may be labeled, is the
    “functional equivalent” of an element. 
    Apprendi, 530 U.S. at 494
    , n.19; see also 
    Castellano, 72 M.J. at 221-22
    .
    With this backdrop, we are now ready to address the
    LIO question. The specification alleged only one Marcum
    factor: by force and without consent. No other factor is
    alleged, either expressly or by necessary implication. The
    offense of non-forcible sodomy thus required proof of
    essential facts absent from the forcible sodomy
    7
    specification. As charged, then, non-forcible sodomy was
    not an LIO of forcible sodomy and it was error to instruct
    or to find otherwise.
    We also find the error was plain. When making this
    determination, we consider the law at the time of the
    appeal. United States v. Harcrow, 
    66 M.J. 154
    , 159
    (C.A.A.F. 2008) (“‘where the law at the time of trial was
    settled and clearly contrary to the law at the time of
    appeal – it is enough that an error be “plain” at the time
    of appellate consideration’”) (quoting Johnson v. United
    States, 
    520 U.S. 461
    , 468 (1997)). While it is true that
    the CAAF had decided Castellano by the date of trial in
    this case, that decision did not directly overturn Useche’s
    precedent that Marcum factors need not be pleaded in a
    specification; this we do today. Viewing the matter now in
    light of our holding that non-forcible sodomy under the
    former version of Article 125 is not an LIO of forcible
    sodomy unless other applicable Marcum factors are pleaded,
    proven, and instructed upon, the error in instructing
    otherwise is plain. See 
    Girouard, 70 M.J. at 10
    .
    Finally, we find the appellant has met his burden to
    demonstrate material prejudice to a substantial right. The
    appellant was convicted of an offense that, as charged, was
    not an LIO of the charged offense. The CAAF has held this
    to be sufficient to demonstrate prejudice. 
    Id. at 11.
    Accordingly, the findings of guilty to both specifications
    of Charge III and to Charge III are set aside.
    II. Use of Charged Misconduct as Propensity Evidence
    The appellant next contends that the military judge erred
    when, over defense objection, he ruled that the charged sexual
    assaults could be used for any relevant purpose under MILITARY RULE
    OF EVIDENCE 413, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.),
    including whether the appellant had a propensity to commit
    sexual assaults. We disagree.
    Background
    The Government provided the trial defense counsel (TDC)
    timely notice of its intent to use evidence of the charged
    sexual assaults for all relevant purposes under MIL. R. EVID. 413.
    In response, the TDC filed a motion to sever, arguing that
    evidence in the case of MM3 TM was in no way admissible to prove
    allegations related to ABE2 MH and vice versa, and that
    impermissible spillover would occur if both sets of charges were
    8
    tried together. The military judge denied the motion to sever,
    ruled the evidence was admissible for all relevant purposes
    under MIL. R. EVID. 413, and agreed to provide a tailored
    spillover instruction.
    During trial, the military judge instructed the members
    that if they determined by a preponderance of the evidence that
    sexual assault offenses pertaining to MM3 TM occurred, they
    could consider the evidence of those offenses for its bearing on
    any matter to which it was relevant in relation to the charges
    and specifications regarding ABE2 MH——and vice versa. Relevant
    matters, he explained, included, inter alia, “its tendency, if
    any, to show the accused’s propensity or predisposition to
    engage in sexual assault.” 6
    He then provided the following spillover instruction:
    You may not, however, convict the accused of a charge
    or specification solely because you believe he
    committed another charge or specification or solely
    because you believe that the accused has a propensity
    or predisposition to engage in sexual assault. In
    other words, you cannot use the evidence of one charge
    or specification to overcome a failure of proof in the
    government’s case for another charge or specification,
    if you perceive any to exist.
    The accused may be convicted of an alleged offense
    only if the prosecution has proven each element beyond
    a reasonable doubt. Each offense must stand on its
    own and proof of one offense carries no inference that
    the accused is guilty of any other offense. In other
    words, proof of one sexual assault creates no
    inference that the accused is guilty of any other
    sexual assault. However, it may demonstrate that the
    accused has a propensity to commit that type of
    offense. The prosecution’s burden of proof to
    establish the accused’s guilt beyond a reasonable
    doubt remains as to each and every element of each
    offense charged. Proof of one charged offense carries
    with it no inference that the accused is guilty of any
    other charged offense. 7
    6
    Record at 1210. This language tracked the pattern instruction contained in
    the Military Judges’ Benchbook, Dept. of the Army Pamphlet 27-9 (1 Jan 2010).
    7
    
    Id. at 1210-11.
    9
    The TDC, having lost his motion to sever, did not object to
    these instructions and, in fact, upon his request, the military
    judge repeated them after closing arguments.
    Law
    We review a military judge’s decision to admit evidence
    under MIL. R. EVID. 413 for an abuse of discretion. United States
    v. Solomon, 
    72 M.J. 176
    , 179 (C.A.A.F. 2013). Whether members
    were properly instructed and whether application of a Military
    Rule of Evidence was constitutional are questions of law that we
    review de novo. United States v. McDonald, 
    57 M.J. 18
    , 20
    (C.A.A.F. 2002); see also United States v. Wright, 
    53 M.J. 476
    (C.A.A.F. 2000).
    MIL. R. EVID. 413(a) provides:
    In a court-martial proceeding for a sexual offense,
    the military judge may admit evidence that the accused
    committed any other sexual offense. The evidence may
    be considered on any matter to which it is relevant.
    “[I]nherent in M.R.E. 413 is a general presumption in favor
    of admission of evidence.” United States v. Berry 
    61 M.J. 91
    ,
    95 (C.A.A.F. 2005) (citing 
    Wright, 53 M.J. at 482-83
    ).
    There are three threshold requirements before evidence may
    be admitted under MIL. R. EVID. 413:
    1.   The appellant is charged with an offense of sexual
    assault;
    2.   The evidence proffered is evidence of the appellant’s
    commission of another offense of sexual assault; and
    3.   The evidence is relevant under MIL. R. EVID. 401 and 402.
    
    Wright, 53 M.J. at 482
    .
    If the evidence passes those threshold requirements, the
    military judge must then apply the balancing test under MIL. R.
    EVID. 403, considering the following factors: strength of the
    proof of the prior act; probative weight of the evidence;
    potential to present less prejudicial evidence; possible
    distraction of the fact-finder; time needed to prove the prior
    conduct; temporal proximity; frequency of the acts; presence or
    lack of intervening circumstances; and relationship between the
    parties. 
    Id. The military
    judge should make detailed findings
    on the record; failure to “sufficiently articulate his balancing
    10
    on the record” will result in his evidentiary ruling receiving
    less deference. 
    Berry, 61 M.J. at 96
    .
    Analysis
    The appellant asserts that MIL. R. EVID. 413 “was never meant
    to allow charges before a court-martial to support each other’s
    proof” 8 and that doing so in his case violated his constitutional
    rights to presumption of innocence and due process. We
    disagree.
    First, the plain language of MIL. R. EVID. 413——allowing
    “evidence that the accused committed any other sexual offense”——
    is broad and betrays no exception for charged misconduct. We
    are not a rulemaking body and, even were we inclined to find
    such an exception prudent, we are bound to apply the Rule as
    written, not as may be desired, unless it is unconstitutional.
    
    Wright, 53 M.J. at 481
    .
    Second, we see nothing more prudent or fair about a rule
    that would prohibit evidence from being considered under MIL. R.
    EVID. 413 if it pertains to charged offenses, but allow it if the
    evidence is too old or too weak to be charged or if the
    Government presents it twice in two separate courts-martial.
    Third, we reject the argument that MIL. R. EVID. 413 as
    applied to charged misconduct is unconstitutional. “The
    presumption is that a rule of evidence is constitutional unless
    lack of constitutionality is clearly and unmistakably shown.”
    
    Id. (citations omitted).
    The appellant has pointed us to no
    precedent where a sister or superior court has interpreted MIL.
    R. EVID. 413 to reach only uncharged misconduct. Instead, he
    points to dictum from a panel of this court in United States v.
    Myers, 
    51 M.J. 570
    (N.M.Ct.Crim.App. 1999). There, in analyzing
    the use of charged misconduct under MIL. R. EVID. 413, the panel
    set aside the findings of guilty due to the military judge’s
    failure to give a spillover instruction. 
    Id. at 583.
    Along its
    way to this conclusion, the panel stated:
    We can find no reported case in which Mil. R. Evid.
    413 was held to allow one set of alleged sexual
    assault offenses to show an accused's "propensity" to
    have committed a different set of alleged sexual
    assault offenses (and vice versa), when both sets of
    offenses were joined together at one trial where the
    accused was cloaked in the presumption of innocence
    with respect to all. Indeed, we believe this case
    8
    Appellant’s Brief at 27.
    11
    presents a constitutional quagmire that the drafters
    of Mil. R. Evid. 413 probably never envisioned.
    
    Id. at 581.
         We do not agree with this dictum, but more importantly, it
    preceded the CAAF’s decision in Wright. There, the evidence of
    the “other sexual offense” was indeed evidence of charged
    misconduct. Yet the CAAF rejected the constitutional challenges
    to the Rule and went so far as to state, “This is the type of
    case in which this evidence was designed to be admitted.”
    
    Wright, 53 M.J. at 483
    .
    The application of MIL. R. EVID. 413 to misconduct——charged
    or uncharged——is subject to the same procedural safeguards in
    place to protect the rights of the accused. The military judge
    must apply the Wright factors and undertake a rigorous balancing
    test before allowing evidence of charged misconduct to be used
    to demonstrate propensity. Additionally, a properly crafted
    spillover instruction protects the presumption of innocence and
    ensures that the prosecution must prove each element of each
    offense beyond a reasonable doubt. 
    Id. As the
    CAAF explained,
    this does not offend the Constitution: “‘Individual pieces of
    evidence, insufficient in themselves to prove a point, may in
    cumulation prove it. The sum of an evidentiary presentation may
    well be greater than its constituent parts.’” 
    Id. (quoting Huddleston
    v. United States, 
    485 U.S. 681
    , 691 (1988).
    Next, the appellant argues that the military judge erred by
    not properly applying the procedural safeguards necessary to vet
    MIL. R. EVID. 413 evidence. We disagree.
    “When a military judge articulates his properly
    conducted M.R.E. 403 balancing test on the record, the decision
    will not be overturned absent a clear abuse of discretion.”
    
    Solomon, 72 M.J. at 180
    (citation omitted). The military judge
    in this case articulated his ruling on the record, both orally
    and in writing, and provided detailed analysis. First, he
    addressed each of three threshold determinations and found them
    met. The appellant concedes that the two sets of charged
    offenses “facially meet these criteria.” 9
    He then conducted the MIL. R. EVID. 403 balancing test,
    considering each of the factors under Wright. The appellant
    asserts the military judge erred when determining the first
    factor: strength of proof of the prior act. In his written
    9
    
    Id. at 29.
    12
    findings, the military judge stated that “[t]he ‘prior acts’ in
    this case will be proven by the alleged victims’ testimony which
    will be subject to cross examination by defense counsel and
    questions by the members[.]” 10 The appellant avers this
    effectively bypassed MIL. R. EVID. 403 and this factor was not
    determined until the completion of the Government’s case.
    We find that this did not amount to an abuse of discretion.
    The military judge was not merely deferring to see what the
    evidence would be at trial; part of the submissions he
    considered were statements and prior testimony of both
    complaining witnesses as well as other evidence. In conducting
    his balancing, the military judge was entitled to consider that
    the evidence was already coming in as evidence of charged
    misconduct and would be further subject to the crucible of
    trial. That properly was a factor in assessing the danger of
    unfair prejudice; the military judge indicated his findings
    instructions on the proper use of the evidence could be modified
    if the evidence did not pan out. Even assuming arguendo the
    military judge’s articulation of the first prong was not
    entirely artful, that in no way invalidates his determination
    that the evidence met the balancing test and was admissible
    under M.R.E. 413. Accordingly, we find the military judge did
    not abuse his discretion by allowing evidence of the charged
    offenses to be considered under MIL. R. EVID. 413.
    Finally, we find that the military judge’s instructions on
    consideration of the evidence under MIL. R. EVID. 413, the
    presumption of innocence, and spillover were correct and
    sufficed to ensure the evidence was considered in its proper
    context and that the appellant was afforded a fair trial.
    III. Prosecutorial Misconduct
    The appellant next avers the trial counsel (TC) committed
    prosecutorial misconduct when, during rebuttal argument on the
    merits, he purportedly: (1) “accused the members of ‘victim
    blaming’ if they listened to the defense” 11; (2) offered his
    personal opinion; (3) mischaracterized the evidence; and (4)
    improperly bolstered MM3 TM’s credibility by mischaracterizing
    her testimony. We disagree.
    10
    Appellate Exhibit LIV at 2. When orally issuing his ruling, he clarified
    “or should be proven.” Record at 357.
    11
    Appellant’s Brief at 35.
    13
    Background
    In support of his contentions, the appellant highlights the
    following remarks made by the TC during rebuttal argument on the
    merits:
    - Defense counsel is right, you saw her [MM3 TM], if
    that’s a lie, we’ll see her next year at the academy
    awards. Frankly, if that’s a lie she’s got to be a
    sociopath to invoke her mom like that. 12
    - Got to talk about victim blaming. Do you ever
    wonder why victims of sexual assault are unsure
    about coming forward? . . . . You saw defense
    counsel get up here, use words like, whore, slut,
    liar, adulterer, crazy, vindictive. And that was
    just on cross-examination. Then we’ve got moral
    transgressions, dirty sex, they look like children.
    She wants to be the judge, the jury. She’s using
    her sex in feminine ways to get ahead. These two
    women are staying safe behind the word, victim. 13
    - They offer you a ton of reasons why [ABE2 M.H.]
    might be lying. I kind of lost count . . . . They
    gave you a lot of them. They threw them all up at
    the wall and they said well, I hope the members pick
    one. But none of them are any good. They’re hoping
    you’ll just be swayed by sheer creativity and
    numbers. 14
    - Asking MM3 [TM], why are you looking at trial
    counsel? Well, she actually said, I was actually
    looking at my victim advocate. She’s the one that’s
    helping get me through this, just seeing her face
    for support. That’s what MM3 [TM] was doing and she
    told you that. But God forbid, God forbid if this——
    if any of these women look for support, if they look
    for help. It is a classic effort to shift the
    blame, shift the blame on them, blame the victim.
    Belittle them, what the accused did was so bad, it
    was so unwanted. Belittle their pain, belittle it
    12
    Record at 1269.
    13
    
    Id. at 1285.
    14
    
    Id. at 1275.
    14
    and just tell them it doesn’t matter. Because as
    far as the accused is concerned, he’s the victim
    here. . . . Because he’s a predator and he’s a
    rapist and he’s using them to cover his own
    misdeeds. He’s calling them crazy, lying, whores,
    adulterers, sluts. 15
    Shortly after the final comment above, the TDC interjected
    to request a hearing outside the presence of the members. The
    appellant then objected to the TC’s argument and moved for a
    mistrial, asserting he had mischaracterized the evidence
    regarding calling the complaining witnesses names and regarding
    whom MM3 TM was looking at during cross-examination. The
    military judge denied a mistrial, but provided the following
    curative instruction at the end of argument:
    Members, you have just heard an explanation of the
    facts by counsel for both parties as they view them.
    I remind you, again, to bear in mind that the
    arguments of counsel are not evidence. Argument is
    made by counsel in order to assist you in
    understanding and evaluating the evidence. Anything
    counsel has said that you feel conflicts with the
    evidence or with the instructions I have given you,
    you should follow the instructions I have given you
    and the evidence as you weigh it and as you recall
    it. 16
    Law
    When an appellant fails to object to alleged prosecutorial
    misconduct at trial, we review for plain error, only granting
    relief if the appellant carries his burden of demonstrating: (1)
    there is error; (2) that is clear or obvious; and, (3) that
    materially prejudiced a substantial right of the accused.
    United States v. Fletcher, 
    62 M.J. 175
    , 179 (C.A.A.F. 2005).
    When an appellant objects to alleged prosecutorial
    misconduct at trial, we review for prejudicial error. United
    States v. Hornback, 
    73 M.J. 155
    , 159 (C.A.A.F. 2014). A
    military judge’s failure to grant a motion for mistrial is
    reviewed for an abuse of discretion, bearing in mind that a
    mistrial is “a drastic remedy to be used only sparingly to
    15
    
    Id. at 1286.
    16
    
    Id. at 1293.
    15
    prevent manifest injustice.” United States v. Thompkins, 
    58 M.J. 43
    , 47 (C.A.A.F. 2003) (citation omitted).
    Prosecutorial misconduct occurs when a prosecutor
    “‘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) (citing 
    Berger, 295 U.S. at 88
    ).
    “It is improper for a trial counsel to interject herself
    into the proceedings by expressing a personal belief or opinion
    as to the truth or falsity of any testimony or evidence.”
    
    Fletcher, 62 M.J. at 179
    (citations and internal quotation marks
    omitted). Ways a prosecutor may run afoul of this rule include
    giving personal assurances that the Government’s witnesses are
    telling the truth or offering “substantive commentary on the
    truth or falsity of the testimony and evidence.” 
    Id. at 180
    (citation omitted). A prosecutor also must confine his argument
    to the “‘evidence of record, as well as all reasonable
    inferences fairly derived from such evidence.’” United States
    v. Frey, 
    73 M.J. 245
    , 248 (C.A.A.F. 2014) (quoting United States
    v. Baer, 
    53 M.J. 235
    , 237 (C.A.A.F. 2000).
    Analysis
    We find that by failing to object at trial to the first two
    complaints (regarding “victim blaming” and personal opinion),
    the appellant forfeited these claims and that he has not
    demonstrated plain error. First, it is clear from the context
    of the TC’s rebuttal that he was, in response to the defense
    counsel’s argument, squarely accusing the defense, not the
    members, of victim blaming. He argued the defense was
    attempting to shift blame to the victims in an effort to divert
    attention from the appellant’s actions. This was not an
    unreasonable argument: the TDC had just spent much of his rather
    lengthy closing excoriating the complaining witnesses.
    Second, while some of the TC’s comments taken in isolation
    may have approached “substantive commentary on the truth or
    falsity of the testimony and evidence,” 
    Fletcher, 62 M.J. at 180
    , we think it far from plain or obvious that, taken in
    16
    context, he was offering a personal belief or opinion. His
    remarks were limited to rebuttal argument and responded to
    opposing counsel’s argument. For instance, the TDC had spent
    some time discussing “the way [MM3 TM] testified,” adding, “I’ll
    give you this, I did believe it was a little unfair to start
    with these really terrible stories of her upbringing and her
    [deceased] mother.” 17 He accused the Government of “cueing her
    up to get all her emotions going” and argued that while ABE2 MH
    had her moments, “the academy award goes to [MM3 TM].” 18 He also
    commented, “We’re not in a high school cafeteria.” 19
    Finally, while the appellant attempts to draw an analogy to
    Fletcher, the relatively brief, isolated comments during
    rebuttal argument in this case——including the commentary that
    none of the defense explanations about ABE2 MH’s motive to
    fabricate were “any good”——do not even approach the repeated,
    “blatant” interjection of personal beliefs and opinions found to
    be prejudicial error in 
    Fletcher. 62 M.J. at 181
    . Given the
    context, we find that the trial counsel’s comments did not cross
    the “‘exceedingly fine line which distinguishes permissible
    advocacy from improper excess.’” 
    Id. at 183
    (quoting United
    States v. White, 
    486 F.2d 204
    , 207 (2d Cir. 1973).
    Moving to the assertions that were the subject of the
    motion for mistrial, the appellant argues the TC misled the
    members regarding words the TDC used to describe the victims and
    improperly bolstered MM3 TM’s credibility by mischaracterizing
    where she was looking during cross-examination. We first note
    that, contrary to the appellant’s assertion, the TDC did use the
    words “whores” and “sluts” when he asked ABE2 MH, “I mean, you
    didn’t want to be known as a slut or a whore around the ship,
    right?” 20 Further, in terms surely not lost on the members——nor
    on us——TDC unmistakably implied the remaining descriptors in
    numerous comments we find unnecessary to catalog here.
    The TDC was, however, correct that the TC erred by arguing
    that MM3 TM, when confronted about whether she was looking at
    the TC, responded she was looking at her victim advocate. It
    was, in fact, during direct examination that she alluded to
    looking at her victim advocate. During cross, she stated she
    17
    
    Id. at 1242.
    18
    
    Id. 19 Id.
    at 1243.
    20
    
    Id. at 760.
    17
    was merely scanning the room. The appellant complains this was
    inaccurate and improperly bolstered MM3 TM’s credibility.
    Both of these objections, however, were properly addressed
    by the military judge; we find no abuse of discretion in his
    decisions to provide a curative instruction and to deny a
    mistrial.
    Furthermore, even were we to assume error arguendo for
    either the unobjected-to or objected-to comments, we find no
    prejudice. In assessing whether there was prejudice from
    prosecutorial misconduct, we examine three factors: (1) the
    severity of the misconduct; (2) curative measures taken; and (3)
    the strength of the Government’s case. 
    Fletcher, 62 M.J. at 184
    .
    The severity was low. In a lengthy trial, the appellant
    points to relatively isolated comments covering a small fraction
    of the trial and restricted to rebuttal argument. The members,
    who deliberated for over four hours, made findings that belie
    their ability to make an independent assessment of the evidence
    to reach their own conclusions. There is no evidence of the TC
    failing to abide by the military judge’s rulings. As a curative
    measure, the military judge instructed the members to disregard
    any arguments of counsel that conflicted with the evidence or
    the judge’s instructions. The Government’s case for those
    offenses resulting in a conviction was reasonably strong. Given
    all this, we are confident in the members’ ability to adhere to
    the military judge’s instructions and to put counsel’s
    arguments——particularly those about where witnesses were looking
    while testifying and what names the parties called each other——
    in their proper context. Finally, it must be pointed out that
    the members acquitted the appellant of all allegations of
    forcible conduct against MM3 TM, so any purported attempts to
    bolster her credibility apparently had no effect.
    IV.   Sentence
    Having set aside both specifications of Charge III, we next
    consider whether we can reassess the sentence. A “‘dramatic
    change in the penalty landscape’ gravitates away from the
    ability to reassess” a sentence. United States v. Buber, 
    62 M.J. 476
    , 479 (C.A.A.F. 2006) (quoting United States v. Riley,
    
    58 M.J. 305
    , 312 (C.A.A.F. 2003)). By setting aside the
    findings of guilty to the sodomy specifications, the maximum
    period of confinement goes from 14 years down to only four.
    MCM, Part IV, ¶ 16e(1) and App. 28, ¶ 45f(7). As noted, the
    18
    appellant’s sentence as approved includes seven years’
    confinement. Our action on findings thus dramatically changes
    the penalty landscape and we cannot reliably determine what
    sentence the members would have imposed. 
    Buber, 62 M.J. at 479
    -
    80.
    Conclusion
    The findings of guilty to Charge III and the Specifications
    thereunder and the sentence are set aside. Charge III and its
    specifications are dismissed. The remaining findings of guilty
    are affirmed. The record is returned to the Judge Advocate
    General of the Navy for remand to an appropriate CA with a
    rehearing on sentence authorized. Art. 66(d), UCMJ.
    Senior Judge MCFARLANE and Judge HOLIFIELD concur.
    For the Court
    R.H. TROIDL
    Clerk of Court
    19
    

Document Info

Docket Number: NMCCA 201400229 GENERAL COURT-MARTIAL

Citation Numbers: 74 M.J. 722, 2015 CCA LEXIS 221

Judges: Blazew-Iek, Jagc, Usn, Authority, Commander, Southeast, Station, Jacksonville, Staff, Recommendation, Cdr, Evans, Brubaker, McFarlane, Holifield

Filed Date: 5/27/2015

Precedential Status: Precedential

Modified Date: 11/9/2024