United States v. Maynard , 2008 CAAF LEXIS 575 ( 2008 )

UNITED STATES, Appellee
v.
Robert D. MAYNARD Jr., Specialist
U.S. Army, Appellant
No. 07-0647
Crim. App. No. 20060121
United States Court of Appeals for the Armed Forces
Argued February 6, 2008
Decided May 6, 2008
ERDMANN, J., delivered the opinion of the court, in which
EFFRON, C.J., and BAKER, STUCKY, and RYAN, JJ., joined.
Counsel
For Appellant: Captain William Jeremy Stephens (argued);
Colonel Christopher J. O’Brien, Lieutenant Colonel Steven C.
Henricks, and Major Teresa Lynn Raymond (on brief); Major Fansu
Ku and Captain Seth A. Director.
For Appellee: Captain Michael G. Pond (argued); Colonel John W.
Miller II, Major Elizabeth G. Marotta, Captain Michael C. Friess
(on brief); Captain Mark E. Goodson.
Military Judge: Mark L. Toole
This opinion is subject to revision before final publication.
United States v. Maynard Jr., No. 07-0647/AR
Judge ERDMANN delivered the opinion of the court.
Specialist Robert D. Maynard Jr. pled guilty to absence
without leave (AWOL) under Article 86, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. § 886 (2000), and was convicted by a
military judge sitting alone. Following a pre-sentencing
hearing, a panel of officers and enlisted members sentenced
Maynard to ten months’ confinement, reduction to the lowest
enlisted grade, partial forfeitures for the period of
confinement, and a bad-conduct discharge. The United States
Army Court of Criminal Appeals affirmed the findings and
sentence. United States v. Maynard, No. ARMY 20060121 (A. Ct.
Crim. App. Mar. 14, 2007).
We granted review to determine whether the military judge
committed plain error in permitting the members to consider
Maynard’s alleged anti-war and anti-American views as evidence
in aggravation for sentencing purposes. 65 M.J. 442 (C.A.A.F.
2007). We determine that even if there was error, it was not
plain or obvious and affirm the Court of Criminal Appeals.
Background
Maynard’s unit was given a “block leave” for a two-week
period. Maynard did not return to Fort Irwin at the conclusion
of this block leave. He voluntarily returned to Fort Irwin
after a thirteen-month absence. During the pre-sentencing
hearing, just prior to the beginning of the Government’s case in
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aggravation, the defense submitted a “good soldier” packet that
the military judge entered into evidence. The military judge
also admitted a mental health record reflecting Maynard’s
diagnosis for Dysthymic Disorder.1
In its case in aggravation, the Government called First
Sergeant Miguel Guerrero. He was Maynard’s platoon sergeant
when the unit commenced the two-week block leave. After
describing Maynard’s duty performance, Guerrero stated that when
Maynard failed to return from leave he inventoried Maynard’s
room. Guerrero testified that the only things remaining in the
room were:
TA 50, military issue gear, and on the three-drawer
chest I identified a display of personal items, one
being a pin that said, “I hate my job.” And then a
piece of paper with some Anti-American propaganda, “I
hate Bush, the Commander-in-Chief” and “Fahrenheit
9/11” stuff.
Defense counsel did not object to this testimony, nor did the
military judge give any limiting instructions to the panel on
this testimony. On recross-examination, defense counsel
questioned Guerrero on this aspect of his testimony. Guerrero
testified that, prior to Maynard’s AWOL, he had not heard
Maynard make anti-American statements or display any images or
1
According to Maynard’s mental health record, Dysthymic Disorder
results in periods of depressed moods that can be characterized
by poor appetite or overeating, insomnia or hypersomnia, low
energy or fatigue, low self-esteem, poor concentration or
difficulty making decisions, and feelings of hopelessness.
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signs about President Bush. In response to a member’s question,
Guerrero stated that there were no additional items in Maynard’s
room when it was inventoried.
Staff Sergeant Brian K. Nelson testified for the defense
during its case in mitigation. He was Maynard’s platoon leader
after Maynard returned to Fort Irwin. He described Maynard as a
“good soldier” and gave examples of Maynard’s above-standard
work. Nelson also expressed a desire to retain Maynard in the
unit. On cross-examination, trial counsel had the following
exchange with Nelson:
Q. You have had some discussions with Maynard, haven’t
you?
A. Yes, I have.
Q. In fact, you had a discussion with him last week.
A. Yes, sir.
Q. And it was a political discussion?
A. Yes, it was.
Q. And you were telling Maynard your views on the Iraq
situation.
A. Yes, sir.
Q. And Maynard said something to you, didn’t he?
A. Yes, he did.
Q. What did he say to you?
A. He said that the President lied to him.
Q. Okay. Staff Sergeant Nelson, does a good soldier
call his Commander-in-Chief a liar?
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A. He has his own opinion, sir, that is the way I
feel. I mean, he -- I don’t think it’s probably a
good idea to do that, but I mean he is allowed to
have his own opinion. That is what the country is
about, you know, that is what we fought for, for
him to be able to have his own opinion.
Q. Fair enough. Thank you, Staff Sergeant Nelson.
Defense counsel did not object to this line of questioning and
the military judge did not give a limiting instruction to the
panel.
Maynard made an unsworn statement with the assistance of
counsel. In that statement he addressed the political
discussion testified to by Nelson. He stated that while he
enjoyed politics and liked to have conversations about politics,
his feelings about the President went no further than
conversation. He stated that he was “not anti-American, by no
means” and agreed that he was not involved with “staging any
rallies or any flags or any of those things.”
Maynard also addressed what prompted his decision to go
AWOL. He stated he “could not handle the stress levels” that he
attributed to Guerrero’s leadership style. He also stated that,
since his return, he had received treatment at the post’s mental
health unit where he was diagnosed with Dysthymic Disorder. He
stated he experienced low self-esteem, difficulty making
decisions, and feelings of hopelessness prior to going AWOL. He
stated he had been “very angry, very moody, depressed a lot for
the better part of my adult life.” He reported that his
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treatment had helped him a great deal and he felt “a lot
different.”
During argument on sentencing, trial counsel referred to
Guerrero’s testimony regarding the materials found in Maynard’s
room and Maynard’s political statements to Nelson. Trial
counsel stated: “[T]he accused, you know, he said, that he
never went further than that in making those [political]
statements. But, we know that’s not true. We know that he went
AWOL, and then he left something behind in his room that says
otherwise.” Defense counsel did not object to this statement,
but did request an Article 39(a), UCMJ, 10 U.S.C. §
839(a)(2000), session at the conclusion of trial counsel’s
argument.
In the Article 39(a), UCMJ, session, defense counsel
expressed concern over trial counsel’s closing argument because
he placed “inequitable emphasis on uncharged misconduct.”
However, defense counsel stated he did not want to object at
that time, “because of the issue of placing an emphasis on it
that the members would focus on.” Defense counsel went on to
note three instances of alleged uncharged misconduct2 and stated
he was in an “awkward position” because a limiting instruction
would only draw the members’ attention to the problematic parts
2
These included the reference to the unit’s deployment to Iraq,
the “political” items found in Maynard’s room, and the limited
amount of other personal belongings left in his room.
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of the trial counsel’s argument. The defense counsel ultimately
did not make an objection nor did he request a limiting
instruction.
The military judge found that the three instances noted by
the defense were properly admitted aggravation evidence and thus
trial counsel’s comments on those instances was proper. The
military judge went on to instruct the members as follows:
Although you must give due consideration to all
matters in mitigation and extenuation, as well as
those in aggravation, you must bear in mind that the
accused is to be sentenced only for the offense of
which he has been found guilty. The offense of which
he has been found guilty is AWOL, and that is the only
offense that is before you and the only offense for
which you may impose punishment.
Discussion
When the defense fails to object to admission of specific
evidence, the issue is waived, absent plain error. United
States v. Hardison, 64 M.J. 279, 281 (C.A.A.F. 2007); United
States v. Powell, 49 M.J. 460, 463-65 (C.A.A.F. 1998); see Rule
for Courts-Martial (R.C.M.) 905(e). The plain error standard is
met when “(1) an error was committed; (2) the error was plain,
or clear, or obvious; and (3) the error resulted in material
prejudice to substantial rights.” Hardison, 64 M.J. at 281.
Maynard bears the burden of demonstrating that the three prongs
of the test are met. Id.
Maynard argues that the military judge erred when he
admitted evidence of Maynard’s political views and allowed the
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members to consider this evidence as aggravation evidence for
sentencing, that this error was plain or obvious, and prejudiced
his substantial rights. He contends that evidence of his
political beliefs does not directly relate to the AWOL offense
and therefore was not proper aggravation evidence. He also
argues that even if the evidence did directly relate to the
AWOL, it still must meet the standards of Military Rule of
Evidence (M.R.E.) 403.3 At oral argument, appellate defense
counsel narrowed the alleged error in this case to the military
judge’s failure to sua sponte rule that Guerrero’s testimony
regarding the “anti-war” or “anti-American” material in
Maynard’s room was improper aggravation evidence. We will limit
our inquiry accordingly.
The Government responds that the military judge did not err
because the evidence was proper aggravation evidence as it
directly related to Maynard’s attitude towards his crime and his
lack of rehabilitative potential. The Government also argues
that the evidence was properly admissible to rebut Maynard’s
explanation for his AWOL, as presented in the two defense
exhibits.
Even if we were to assume without deciding that Maynard is
correct as to his allegation of error, his burden is to show
3
As there was no objection and the military judge did not raise
the issue sua sponte, no M.R.E. 403 balancing test was
conducted.
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error that was clear and obvious. Under the circumstances of
this case, we cannot conclude that Guerrero’s testimony that
Maynard had left behind only a few personal items when he
departed for a two-week leave so obviously lacked a direct
relationship to the AWOL offense that the military judge was
obliged to take sua sponte action. This is true even though
Guerrero described some of the items as “[a]nti-American
propaganda” Guerrero testified that when he went to look for
Maynard in the barracks he found “a display of personal items”
and went on to describe the items he found. This testimony
could be read to suggest that Maynard intentionally left the
articles in question as “a display” for those who would be
investigating his disappearance.
Indeed, when this testimony was elicited from Guerrero, the
defense attorney did not object on any grounds. He chose to
address the alleged anti-war and anti-American testimony by
eliciting testimony from Guerrero on recross-examination that
prior to the AWOL, Guerrero had not heard Maynard make any anti-
American statements nor seen him display any images or signs
about President Bush.
In the Article 39(a), UCMJ, hearing after trial counsel’s
sentencing argument, the defense counsel noted his concern to
the military judge that trial counsel’s argument placed
“inequitable emphasis on uncharged misconduct.” Presented with
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the opportunity to object to the trial counsel’s argument, to
move for a mistrial, to ask for a limiting instruction, or to
propose any other solution, the defense counsel made a tactical
decision not to object in open court or request a limiting
instruction because he did not want to emphasize the testimony.
The defense tactic at trial not to object but rather cross-
examine Guerrero was consistent with the defense counsel’s
response to trial counsel’s closing argument -- by not objecting
the defense counsel did not emphasize the testimony.
Maynard has failed to establish on appeal that the
admission of this testimony was so obviously erroneous, if
erroneous at all, that the military judge can be faulted for
taking no action and, like defense counsel, allowing its
admission without comment. Because we find that any error was
not plain or obvious, we do not address the prejudice prong.
Decision
The decision of the United States Army Court of Criminal
Appeals is affirmed.
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