United States v. Toohey , 2006 CAAF LEXIS 995 ( 2006 )

UNITED STATES, Appellee
v.
Jeffrey G. TOOHEY, Staff Sergeant
U.S. Marine Corps, Appellant
No. 05-0127
Crim. App. No. 200001621
United States Court of Appeals for the Armed Forces
Argued December 7, 2005
Decided August 9, 2006
ERDMANN, J., delivered the opinion of the court, in which
GIERKE, C.J., and EFFRON and BAKER, JJ., joined. CRAWFORD, J.,
filed a separate dissenting opinion.
Counsel
For Appellant: Captain Rolando R. Sanchez, USMC (argued);
Lieutenant Commander Eric J. McDonald, JAGC, USN (on brief).
For Appellee: Lieutenant Mark H. Herrington, JAGC, USNR
(argued); Colonel W. K. Lietzau, USMC, Commander Charles N.
Purnell, JAGC, USN, Major Kevin C. Harris, USMC, and Lieutenant
Guillermo J. Rojas, JAGC, USNR (on brief).
Military Judge: R. E. Nunley
This opinion is subject to revision before final publication.
United States v. Toohey, No. 05-0127/MC
Judge ERDMANN delivered the opinion of the court.
Staff Sergeant Jeffery G. Toohey entered a not guilty plea
to rape and assault consummated by a battery in violation of
Articles 120 and 128, Uniform Code of Military Justice (UCMJ),
10 U.S.C. §§ 920, 928 (2000). He was convicted by a panel
composed of officer and enlisted members and was sentenced to a
dishonorable discharge, confinement for twelve years, forfeiture
of all pay and allowances, and reduction to the lowest enlisted
grade.1 The convening authority approved the sentence, and the
United States Navy-Marine Corps Court of Criminal Appeals
affirmed the findings and sentence. United States v. Toohey, 60
M.J. 703, 720 (N-M. Ct. Crim. App. 2004). We granted review of
one issue and specified three additional issues.2
1
Staff Sergeant Toohey also entered a guilty plea to adultery in
violation of Article 134, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 934 (2000). That specification was
dismissed when Toohey was found guilty of the charge of rape.
Another specification alleging assault with the intent to commit
rape in violation of Article 134, UCMJ, was dismissed prior to
pleas.
2
We granted review of the following issue:
I. WHETHER THE LOWER COURT ERRED BY HOLDING
THAT IT WAS HARMLESS ERROR FOR THE MILITARY
JUDGE TO HAVE RULED THAT IF APPELLANT WERE
TO PUT INTO EVIDENCE HIS CHARACTER OF
PEACEFULNESS THEN THE GOVERNMENT WOULD HAVE
THE RIGHT TO PUT INTO EVIDENCE THE
PORNOGRAPHIC PICTURES FOR IMPEACHMENT
PURPOSES.
We specified the following issues for review:
2
United States v. Toohey, No. 05-0127/MC
Prior to affirming a case in which there has been
constitutional error, a reviewing court must be convinced beyond
a reasonable doubt that the error was harmless. Chapman v.
California, 386 U.S. 18, 24 (1967). Although the Court of
Criminal Appeals found that the military judge erred in his
ruling that defense witnesses on Toohey’s character for
peacefulness could be questioned about whether they were aware
II. WHETHER THE UNITED STATES NAVY-MARINE
CORPS COURT OF CRIMINAL APPEALS ERRED IN
DETERMINING THAT APPELLANT WAS NOT DENIED
HIS DUE PROCESS RIGHT TO SPEEDY POST-TRIAL
AND APPELLATE REVIEW OF HIS COURT-MARTIAL
CONVICTION IN LIGHT OF THE 644-DAY PERIOD
FROM TRIAL TO CONVENING AUTHORITY’S ACTION,
THE 146-DAY PERIOD FROM THAT ACTION TO
DOCKETING THE RECORD AT THE COURT OF
CRIMINAL APPEALS, AND THE 1440-DAY PERIOD
DURING WHICH THE CASE WAS PENDING AT THE
COURT OF CRIMINAL APPEALS.
III. WHETHER THE DELAY IN THE POST-TRIAL
AND APPELLATE REVIEW OF APPELLANT’S COURT-
MARTIAL CONVICTION IS SO EXCESSIVE AS TO
GIVE RISE TO A PRESUMPTION OF PREJUDICE, AND
IF SO, WHAT IS THE EFFECT OF THAT PREJUDICE?
See UNITED STATES V. JONES, 61 M.J. 80(C.A.A.F. 2005).
IV. WHETHER THE UNITED STATES NAVY-MARINE
CORPS COURT OF CRIMINAL APPEALS ABUSED ITS
DISCRETION BY DENYING RELIEF UNDER ARTICLE
66(c), UNIFORM CODE OF MILITARY JUSTICE, 10
U.S.C. § 866(c) (2000), BY HOLDING SUCH
SENTENCE APPROPRIATENESS RELIEF “SHOULD ONLY
BE GRANTED UNDER THE MOST EXTRAORDINARY OF
CIRCUMSTANCES,” AND BY CONCLUDING “THERE IS
NOTHING SO EXTRAORDINARY ABOUT THIS CASE
THAT MERITS THE EXERCISE OF OUR ARTICLE
66(c) POWERS.”
3
United States v. Toohey, No. 05-0127/MC
Toohey was facing separate child pornography charges, that court
found the error to be harmless. Toohey, 60 M.J. at 717. Toohey
asserts that the military judge committed error of
constitutional dimension and that the Court of Criminal Appeals
erred in not testing this error under the constitutional
“harmless beyond a reasonable doubt” standard. We find that
evidence of Toohey’s character for peacefulness was not so
material to the defense as to be constitutionally required. The
Court of Criminal Appeals utilized the proper test for
harmlessness and correctly found that the error was harmless.
Convicted servicemembers have a constitutional due process
right to a timely review and appeal of courts-martial
convictions. Diaz v. The Judge Advocate General of the Navy, 59
M.J. 34, 37-38 (C.A.A.F. 2003). Toohey asserts that he was
denied due process because there was unreasonable and
unexplained delay in the 2,240 days between the end of his trial
and the date upon which the United States Navy-Marine Corps
Court of Criminal Appeals rendered a decision in his case. We
hold that Toohey was denied his due process right to speedy
post-trial and appellate review.
61 M.J. 474 (C.A.A.F. 2005).
4
United States v. Toohey, No. 05-0127/MC
BACKGROUND
A. Character evidence of peacefulness.
The initial charges brought against Toohey included rape,
assault consummated by a battery, adultery, receiving stolen
property, and two specifications relating to child pornography.
Upon defense motion, the charges relating to receiving stolen
property and child pornography were severed and tried
separately. The instant case proceeded on the offenses alleging
sexual misconduct. At trial, the defense moved to prevent the
child pornography and severed charges from being used to impeach
defense character witnesses for good military character and for
peacefulness. The military judge ruled that the child
pornography could be used as a basis to impeach good military
character witnesses and the defense counsel stated that he did
not dispute that ruling. As to potential character witnesses on
peacefulness, the military judge ruled that the matter of
possessing child pornography could be inquired into on cross-
examination as impeachment. Specifically, the military judge
stated:
[T]here are a series of photographs that are
in the Article 32 that obviously would be
attached to the record from the standpoint
of the Article 32. They are color
photographs, and they depict rather
graphically sodomy with young children from
age 10 purportedly up through 16 or so.
There are some that are more egregious than
others. Specifically Investigative Exhibit
5
United States v. Toohey, No. 05-0127/MC
19, photograph J, which depicts a purported
14 year-old being anally sodomized and that
conduct depicted in those pictures is non
consensual as a matter of law conduct; and,
therefore, if the defense was to put on a
character for peaceableness, that would open
the door for impeachment in that area.
The military judge later added, “I would allow that because it’s
the specific non consensual aspects of those sexual act[s] that
would be what defeats the peaceableness issue.” Civilian
defense counsel proffered that but for the ruling the defense
would have presented “six or seven witnesses who would testify
that the accused is a peaceful person, military and civilian
witnesses who know him well.” The defense did not present these
witnesses on Toohey’s character for peacefulness.
The Court of Criminal Appeals ruled the military judge
abused his discretion in allowing the child pornography to be
available to impeach Toohey’s character witnesses for
peacefulness. Toohey, 60 M.J. at 717. The court found the
child pornography irrelevant and, even if marginally relevant,
the court concluded it would have been far more prejudicial than
probative. Id. The Court of Criminal Appeals then tested this
error for prejudice and found none. Id. at 717-18.
B. Speedy post-trial review and appeal.
Toohey was sentenced on August 13, 1998. On June 28, 1999,
the military judge authorized substitute authentication of the
record of trial, and trial counsel authenticated the record on
6
United States v. Toohey, No. 05-0127/MC
August 27, 1999, 379 days after trial. On May 18, 2000, 644
days after trial, the convening authority took action. The case
was received at the Navy-Marine Corps Court of Criminal Appeals
on October 11, 2000 and docketed at that court on October 26,
2000, 805 days after trial.
The Navy-Marine Corps Court of Criminal Appeals granted
eleven motions for enlargement of time to Toohey’s appellate
defense attorney before the defense brief was filed on March 28,
2002 (1,323 days after trial and 518 days after docketing). The
Government filed an answer brief on December 6, 2002 (1,576 days
after trial and 253 days from submission of Toohey’s brief).
Toohey filed a reply brief on February 6, 2003 (1,638 days after
trial). The Court of Criminal Appeals issued a published
opinion on September 30, 2004 (601 days after the completion of
briefing). Six years, one month and seventeen days (2,240 days)
elapsed between the completion of trial and the completion of
Toohey’s appeal of right under Article 66, UCMJ, 10 U.S.C. § 866(2000).
DISCUSSION
A. Character Evidence of Peacefulness.
Toohey claims the military judge’s ruling that prevented
him from presenting evidence of his character for peacefulness
was an error of constitutional magnitude and that the Court of
Criminal Appeals should have utilized the constitutional
7
United States v. Toohey, No. 05-0127/MC
“harmless beyond a reasonable doubt” standard to test the effect
of that error. Toohey asserts that under the correct standard,
the error could not have been found harmless beyond a reasonable
doubt. The Government responds that Toohey’s argument on
prejudice is speculative and that the error did not have a
substantial influence on the findings.3 The Government also
asserts that any witness on character for peacefulness would
have been cumulative in light of testimony from Toohey’s ex-wife
about his character for peacefulness.
We conclude that Toohey has not met his burden of
establishing that this error deprived him of evidence that was
“‘material and favorable to his defense’” and thus of
constitutional dimension. United States v. Robaina, 39 F.3d
858, 862 (8th Cir. 1994) (quoting United States v. Valenzuela-
Bernal, 458 U.S. 858, 873 (1982) (the accused has a “duty to
make some showing of materiality”)); see also Taylor v.
Illinois, 484 U.S. 400, 409 (1988).
This is not a case in which character evidence for
peacefulness went “to the heart of appellant’s defense.” United
3
The Government also argues that the Court of Criminal Appeals
incorrectly found that the military judge abused his discretion
by permitting inquiry into the child pornography offenses to
impeach witnesses attesting to Toohey’s character for
peacefulness. The Government took no action to timely contest
or certify the Court of Criminal Appeals’ finding that the
military judge erred, and we decline to address whether the
lower court was correct in finding error. See United States v.
8
United States v. Toohey, No. 05-0127/MC
States v. Brown, 41 M.J. 1, 4 (C.M.A. 1994). Toohey’s testimony
set forth a version of the facts reflecting that the victim was
the aggressor after consensual sex and that she reacted
violently to the fact that he was married. According to Toohey
he struck her in response to her aggressive actions toward him.
This testimony was supported by testimony that Toohey was a
truthful person and by other evidence as to the victim’s actions
and conduct in a bar preceding their leaving together. Toohey
was permitted to offer substantial evidence in support of his
core defense that the sexual activity between him and the victim
was consensual. Thus, the ruling in issue did not infringe upon
Toohey’s constitutional rights.
For nonconstitutional errors the government bears the
burden of showing “that the error did not have a substantial
influence on the findings.” United States v. Clark, 62 M.J.
195, 200 (C.A.A.F. 2005) (citation and quotation marks omitted);
United States v. Walker, 57 M.J. 174, 178 (C.A.A.F. 2002)
(quoting Kotteakos v. United States, 328 U.S. 750, 765 (1946)).
We review the prejudicial effect of an erroneous evidentiary
ruling de novo. United States v. Diaz, 45 M.J. 494, 496
(C.A.A.F. 1997). A four-part test is applied to determine
whether this error had a substantial influence on the findings:
Kreutzer, 61 M.J. 293, 295 n.2 (C.A.A.F. 2005) (citing United
States v. Grooters, 39 M.J. 269, 273 (C.M.A. 1994)).
9
United States v. Toohey, No. 05-0127/MC
1. Was the Government’s case against
Toohey strong and conclusive?
2. Is the defense’s theory of the case
feeble or implausible?
3. What is the materiality of the
proffered testimony?
4. What is the quality of the proffered
defense evidence and is there any
substitute for it in the record of
trial?
United States v. Weeks, 20 M.J. 22, 25 (C.M.A. 1985) (citations
omitted). Reversal is not required if the court determines that
the finder of fact would not have been influenced by the omitted
evidence. United States v. Kaiser, 58 M.J. 146, 149 (C.A.A.F.
2003) (quoting United States v. Davis, 29 M.J. 445, 449-50
(C.M.A. 1988)).
With respect to the assault charge, we conclude that the
proffered evidence about Toohey’s character for peacefulness
would have had no influence on the finder of fact. The
Government’s evidence on the assault was countered only by an
implausible claim that the victim became aggressive and Toohey
responded in a reasonable manner to protect himself. Toohey
admitted that he struck the victim –- a woman of far less
physical stature than Toohey. The excessive violence
perpetrated upon the victim was graphically demonstrated by
photographs depicting her injuries and the severity of the
beating inflicted upon her. The evidence of guilt with respect
to assault was overwhelming. See United States v. Humpherys, 57
M.J. 83, 93 (C.A.A.F. 2002) (evidentiary error can be found
10
United States v. Toohey, No. 05-0127/MC
harmless where the evidence of guilt is overwhelming). The
overwhelming nature of the evidence was ultimately reflected in
civilian defense counsel’s closing argument, “I am telling you
that he is guilty of assault and battery. You heard him on the
stand say, ‘I shouldn’t have hit her. I hit her too hard.’”
The evidence of peacefulness would have had no impact upon
the finding of guilty of rape. The pivotal question on guilt
was when Toohey applied force and for what purpose, not whether
he did so. Toohey’s admission that he struck the victim
minimized the materiality of character for peacefulness
evidence. Evidence of peacefulness had little relevance to
whether he struck the victim before or after sexual penetration.
Even if character for peacefulness evidence might have had some
slight value, Toohey received that value when his ex-wife
testified that he had never been violent with her. The members
obviously rejected the idea that Toohey was peaceful.
We conclude that the additional character evidence for
peacefulness would have had no substantial influence on the
findings in this case and that Toohey was not prejudiced by the
military judge’s erroneous ruling.
B. Speedy Post-Trial Review and Appeal.
Toohey contends that the 2,240 days that elapsed between
the completion of his court-martial and the decision of the
Court of Criminal Appeals was unreasonable and denied him due
11
United States v. Toohey, No. 05-0127/MC
process. Toohey asserts he was prejudiced by the constant
changes of counsel during his appeal, by the conditions of his
post-trial confinement and by the negative impact this delay
would have upon his ability to defend himself at a rehearing.
The Government responds that Toohey’s due process rights were
not violated. It asserts that Toohey’s appeal has not been
impaired and that his assertions of general prejudice are too
speculative to warrant relief. We review de novo claims that an
appellant has been denied the due process right to a speedy
post-trial review and appeal. United States v. Moreno, 63 M.J.
129, 135 (C.A.A.F. 2006) (citing United States v. Rodriguez, 60
M.J. 239, 246 (C.A.A.F. 2004); United States v. Cooper, 58 M.J.
54, 58 (C.A.A.F. 2003)).
In Moreno, we again affirmed “that convicted servicemembers
have a due process right to timely review and appeal of courts-
martial convictions.” Id. at 135 (citing United States v.
Toohey (Toohey I), 60 M.J. 100, 101 (C.A.A.F. 2004)4; Diaz, 59
M.J. at 37-38). We also set forth the framework for our
analysis of speedy post-trial review and appeal cases utilizing
the four factors set forth in Barker v. Wingo, 407 U.S. 514, 530
(1972): (1) the length of the delay; (2) the reasons for the
4
While his case was pending review at the Court of Criminal
Appeals, Toohey sought extraordinary relief from this court
because of post-trial and appellate delay. United States v.
Toohey (Toohey I), 60 M.J. 100 (C.A.A.F. 2004), reports our
disposition of that request for extraordinary relief.
12
United States v. Toohey, No. 05-0127/MC
delay; (3) the appellant’s assertion of the right to timely
review and appeal; and (4) prejudice. Moreno, 63 M.J. at 135;
see United States v. Jones, 61 M.J. 80, 83 (C.A.A.F. 2005);
Toohey I, 60 M.J. at 102. Concerning those factors, we stated:
Once this due process analysis is triggered
by a facially unreasonable delay, the four
factors are balanced, with no single factor
being required to find that post-trial delay
constitutes a due process violation.
Barker, 407 U.S. at 533 (“We regard none of
the four factors identified above as either
a necessary or sufficient condition to the
finding of a deprivation of [due
process].”); Simmons v. Reynolds, 898 F.2d
865, 868 (2d Cir. 1990) (“[N]o one factor is
dispositive and all are to be considered
together with the relevant circumstances.”).
We analyze each factor and make a
determination as to whether that factor
favors the Government or the appellant. See
Rheuark v. Shaw, 628 F.2d 297, 303 (5th Cir.
1980) (calling for an ad hoc evaluation of
the four Barker factors). We then balance
our analysis of the factors to determine
whether there has been a due process
violation. Barker, 407 U.S. at 533(“[C]ourts must still engage in a difficult
and sensitive balancing process.”). No
single factor is required for finding a due
process violation and the absence of a given
factor will not prevent such a finding.
Moreno, 63 M.J. at 136. Using the analysis we developed in
Moreno, we turn to Toohey’s case.
1. Length of the delay.
When the matter of appellate delay in this case was
initially before this court on Toohey’s petition for
extraordinary relief, we examined this factor and concluded that
13
United States v. Toohey, No. 05-0127/MC
“the aggregate delay facially appears to be unreasonable, even
for this serious contested case.” Toohey I, 60 M.J. at 103. We
adhere to that determination. This 2,240-day delay is facially
unreasonable and we will proceed to review the remaining Barker
factors.
2. Reasons for the delay.
Here we look at each stage of the post-trial period, at the
Government’s responsibility for any delay and at any
explanations for delay including those attributable to Toohey.
It took 2,240 days from the end of Toohey’s trial until the
issuance of the Court of Criminal Appeals’ decision, a period of
over six years. The 644 days between trial and the convening
authority’s action is excessive and unexplained. Although the
record reflects a need for substitute authentication in the
absence of the military judge, it still took over a year to
prepare and authenticate this record. It then took almost nine
additional months for the convening authority to act. Nothing
in the record satisfactorily explains these delays.
After the convening authority’s action, the record was not
received at the Court of Criminal Appeals for another 146 days.
This delay in performing what is essentially a clerical task is
wholly unexplained. See United States v. Dunbar, 31 M.J. 70, 73
(C.M.A. 1990) (referring to such delays as “the least defensible
of all” post-trial delays).
14
United States v. Toohey, No. 05-0127/MC
The case was then under the control of the Court of
Criminal Appeals for 1,450 days before an opinion was issued by
that court. The record reflects that some time was spent
gathering documents omitted from the record of trial. This,
however, does not excuse that portion of the delay because
preparation of the record is a government responsibility that
should have been completed before the record left the trial
forum. See Rule for Courts-Martial 1103. The record also
contains eleven defense motions for enlargement of time within
which to file a brief. Enlargement motions numbers four through
eleven each contained the same reason for the request: “other
case load commitments.” As we noted in reviewing similar
enlargements in Moreno, “there was no evidence demonstrating
that the enlargements were directly attributable to” Toohey:
While appellate defense counsel’s caseload
is the underlying cause of much of this
period of delay, responsibility for this
portion of the delay and the burden placed
upon appellate defense counsel initially
rests with the Government. The Government
must provide adequate staffing within the
Appellate Defense Division to fulfill its
responsibility under the UCMJ to provide
competent and timely representation. See
Article 70, UCMJ, 10 U.S.C. § 870 (2000).
Ultimately the timely management and
disposition of cases docketed at the Courts
of Criminal Appeals is a responsibility of
the Courts of Criminal Appeals.
15
United States v. Toohey, No. 05-0127/MC
Moreno, 63 M.J. at 137. For the same reasons, we decline to
hold Toohey responsible for the delays requested by appellate
defense counsel to review and brief other cases.
We also note that this case was fully briefed and pending
before the Court of Criminal Appeals for 601 days before a
decision was issued. We acknowledge that this was a complex,
contested case. While this delay was extensive, as noted in
Moreno, we approach this period of time with reasonable
deference and apply “a more flexible review of this period,
recognizing that it involves the exercise of the Court of
Criminal Appeals’ judicial decision-making authority.” Id. at
137.
In sum, the record lacks reasonable justification for this
overall period of delay, and this factor weighs heavily in favor
of Toohey.
3. Assertion of the right to a timely review and appeal.
In Moreno, although he did not object to delays or assert a
delay issue until his case was before this court, we did not
weigh this factor heavily against the appellant. Id. at 138.
Toohey, however, has repeatedly asserted his right to timely
review and appeal. On September 20, 2000, Toohey wrote the
Judge Advocate General requesting both relief for delay and
convening authority action within a reasonable time. On October
19, 2000, Toohey requested the appointment of additional
16
United States v. Toohey, No. 05-0127/MC
appellate defense counsel specifically because his case had been
delayed and claimed that there were several complex issues that
had been aggravated by the delay. On February 14, 2001, Toohey
moved the Court of Criminal Appeals for relief and sentence
credit for inordinate post-trial delay.
In his brief to the Navy-Marine Corps court, Toohey sought
relief for “inordinate post-trial delay” for the time between
trial and receipt of his case at the lower court. On January
13, 2004, Toohey again requested that the lower court grant
appropriate relief in the form of deferment of his sentence
because of post-trial delay. On February 18, 2004, Toohey
sought extraordinary relief from this court. See Toohey I, 60
M.J. at 100. Toohey also moved this court for extraordinary
relief in the nature of a writ of habeas corpus on June 18,
2004.
Where the defendant has asserted his speedy trial right, it
is “‘entitled to strong evidentiary weight in determining
whether the defendant is being deprived of the right.’” Moreno,
63 M.J. at 138 (quoting Barker, 407 U.S. at 531-32). This
factor weighs heavily in favor of Toohey.
4. Prejudice.
Our framework for analyzing prejudice under this fourth
factor considers three interests: “‘(1) prevention of
oppressive incarceration pending appeal; (2) minimization of
17
United States v. Toohey, No. 05-0127/MC
anxiety and concern of those convicted awaiting the outcome of
their appeals; and (3) limitation of the possibility that a
convicted person’s grounds for appeal, and his or her defenses
in case of reversal and retrial, might be impaired.’” Id. at
138-39 (quoting Rheuark v. Shaw, 628 F.2d 297, 303 n.8 (5th Cir.
1980), cert. denied, 450 U.S. 931 (1981)). Oppressive
incarceration pending appeal relates to the substantive merit of
an appellant’s grounds for appeal. We have determined that
Toohey suffered no prejudice from the military judge’s erroneous
ruling. Thus, his incarceration was not lengthened by the delay
and he is in no worse position due to the delay. See Cody v.
Henderson, 936 F.2d 715, 720 (2d Cir. 1991).
The anxiety and concern subfactor involves constitutionally
cognizable anxiety that arises from excessive delay and we
“require an appellant to show particularized anxiety or concern
that is distinguishable from the normal anxiety experienced by
prisoners awaiting an appellate decision.” Moreno, 63 M.J. at
140. Toohey claims that he has suffered anxiety because he has
been assigned six appellate defense counsel over the years that
his case has been in the military appellate process. However,
the appellate record of these proceedings reflects that Toohey
was represented by only three detailed appellate defense counsel
while his case was before the Court of Criminal Appeals. In
large part, only two counsel represented Toohey, one filing the
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United States v. Toohey, No. 05-0127/MC
brief and assignment of error, and the other filing the reply
brief and presenting oral argument. The third appellate defense
counsel appears to have only signed a motion. Under other
circumstances, frequent changes in counsel may compound delay
and create cognizable anxiety under this subfactor. In this
instance, however, the number of counsel who represented Toohey
at the lower court is not unusual in light of normal military
rotation policies.
We have also considered Toohey’s claim that the “overly
restrictive and unsanitary conditions” of his confinement caused
him to suffer anxiety and concern. Assuming the conditions were
as Toohey claims, those conditions would have been common to all
prisoners and not aggravated by the delay in this case. Even if
we were to find that there was some anxiety or concern over the
conditions, it does not weigh heavily under this subfactor.
Similarly, the requirement that Toohey register as a sex
offender in the state of North Carolina upon his release from
confinement is not a form of anxiety related to the delay in
this case. As we have found no basis upon which to question the
underlying conviction in this case, Toohey would have been
required to register upon his release from confinement
regardless of the delay. See N.C. Gen. Stat. § 14-208.5-208.13
(2006).
19
United States v. Toohey, No. 05-0127/MC
The final subfactor, impairment of the ability to present a
defense at a rehearing, relates directly to whether an appeal on
a distinct substantive issue is found to be meritorious and
whether a rehearing has been authorized. Because we have found
against Toohey on the substantive issue he asserted, this
subfactor is not present in this case.
We conclude that Toohey experienced no prejudice from
oppressive incarceration, no particularized anxiety or concern
awaiting the outcome of his appeal, and no impairment of his
defense in that there will be no retrial. This prejudice factor
therefore weighs against Toohey.
5. Conclusion –- Barker Factors.
As we noted in Moreno, “no single factor [is] required to
find that post-trial delay constitutes a due process violation.”
Moreno, 63 M.J. at 136 (citing Barker, 407 U.S. at 533).
However, in Moreno our balancing included consideration of the
conclusion that Moreno had experienced “oppressive
incarceration” and “constitutional anxiety.” Id. at 139-40. In
contrast, Toohey’s case presents us with the question of how to
strike this due process balance in the absence of any finding of
prejudice under the fourth Barker factor. We believe that such
circumstances warrant a different balancing of the four factors.
Hence, where there is no finding of Barker prejudice, we will
find a due process violation only when, in balancing the other
20
United States v. Toohey, No. 05-0127/MC
three factors, the delay is so egregious that tolerating it
would adversely affect the public’s perception of the fairness
and integrity of the military justice system.
We have determined that the first three factors weigh
heavily in favor of Toohey: unreasonably lengthy delay, no
justifiable reasons for the delay, and frequent assertion of the
right to speedy review. The weight of these factors leads to
the conclusion that the delay in Toohey’s case is egregious.
Balancing these three factors against the absence of prejudice,
we hold that Toohey was denied his due process right to speedy
review and appeal. However, before we address whether this
constitutional error was harmless beyond a reasonable doubt, we
examine the related issue of whether Toohey received a proper
review of his case under Article 66(c), UCMJ, by the lower
court. Although separate from the appellate due process issue,
it has bearing on the resolution of whether this constitutional
violation was harmless beyond a reasonable doubt.
C. Article 66(c), UCMJ, Relief for Post-Trial Delay.
We specified a separate issue concerning whether the Court
of Criminal Appeals abused its discretion by denying relief
under Article 66(c), UCMJ, for unreasonable post-trial delay.
Toohey asserts that the lower court abused its discretion by
requiring that a case rise to the level of “most extraordinary”
before the court would consider exercising its unique Article
21
United States v. Toohey, No. 05-0127/MC
66(c), UCMJ, authority. The Government responds that the lower
court did not abuse its discretion by looking to extraordinary
circumstances before determining that relief was appropriate.
We conclude that the Court of Criminal Appeals applied an
erroneous legal standard and thus abused its discretion.
Moreover, the lower court’s sentence appropriateness review was
conducted on the basis that no appellate due process violation
had occurred.
Initially we pause to express our concern over the Court of
Criminal Appeals apparent conclusion that Toohey’s case is not
among “the most extraordinary of circumstances.” Toohey, 60
M.J. at 710. The delays in this case prior to docketing at the
Court of Criminal Appeals were extreme, unjustified, and
unexplained. In fact, we have found the delays in this case,
considered in light of the reasons for the delay and Toohey’s
assertion of his rights, to be such that tolerating them would
adversely affect the public’s perception of the fairness and
integrity of the military justice system. It is simply not
acceptable to diminish the importance of the convening
authority’s clemency powers and the unique nature of the appeal
of right under Article 66, UCMJ, by tolerating delays
approaching or exceeding two years before that clemency
consideration or before the appeal of right is commenced.
22
United States v. Toohey, No. 05-0127/MC
Therefore, by requiring a case to achieve “most
extraordinary of circumstances” level before the Court of
Criminal Appeals would exercise its Article 66(c), UCMJ,
authority, the court below abused its discretion. In United
States v. Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002), we affirmed
the power of a Court of Criminal Appeals to grant sentence
relief under Article 66(c), UCMJ, where there has been
unreasonable post-trial delay. The exercise of that power does
not require a finding of prejudice, nor did our Tardif decision
establish any criteria limiting the exercise of that power to
only the “most extraordinary” cases.
The essential inquiry remains appropriateness in light of
all circumstances, and no single predicate criteria of “most
extraordinary” should be erected to foreclose application of
Article 66(c), UCMJ, consideration or relief. See United States
v. Bodkins, 60 M.J. 322, 324 (C.A.A.F. 2004) (“the court may
consider the absence of a defense request for action as one
factor among other considerations in assessing the impact of
delay in a particular case, but it may not elevate that factor
into the conclusive basis for denying relief by using the mere
absence of a request to find waiver”).
We are also concerned with the lower court’s “see also”
reference to Article 59(a), UCMJ, 10 U.S.C. § 859(a) (2000), in
connection with its Article 66(c), UCMJ, powers. See Toohey, 60
23
United States v. Toohey, No. 05-0127/MC
M.J. at 710. This citation gives rise to a question about
whether the Court of Criminal Appeals continues to look for
prejudice as a predicate to granting relief under Article 66(c),
UCMJ. As we made clear in Tardif, the Court of Criminal
Appeals’ responsibility to affirm only so much of the sentence
as should be approved “do[es] not implicate Article 59(a).” 57
M.J. at 224.
To assure that Toohey receives the full and proper Article
66(c), UCMJ, review to which he is entitled, we will remand this
case to the Court of Criminal Appeals. See Bodkins, 60 M.J. at
324.
D. Relief for the Due Process Violation.
Where we find constitutional error, we grant relief unless
this court is convinced beyond a reasonable doubt that the
constitutional error is harmless. See United States v.
Kreutzer, 61 M.J. 293, 298 (C.A.A.F. 2005) (citing Chapman, 386
U.S. at 24). The government bears the burden of demonstrating
that a constitutional error is harmless beyond a reasonable
doubt. United States v. Cendejas, 62 M.J. 334, 337 (C.A.A.F.
2006) (citing United States v. Simmons, 59 M.J. 485, 489
(C.A.A.F. 2004)); United States v. Grooters, 39 M.J. 269, 273
(C.M.A. 1994) (quoting Arizona v. Fulminante, 499 U.S. 279, 296
(1991)). We apply a de novo standard of review to the question
of harmlessness beyond a reasonable doubt. Cendejas, 62 M.J. at
24
United States v. Toohey, No. 05-0127/MC
337; Kreutzer, 61 M.J. at 299; United States v. Grijalva, 55
M.J. 223, 228 (C.A.A.F. 2001) (citing 2 Steven Childress &
Martha Davis, Federal Standards of Review § 7.03, at 7-10 (3d
ed. 1999)). Where we cannot say beyond a reasonable doubt that
deprivation of the due process right to a speedy review and
appeal is harmless, we must consider what relief, if any, to
afford. See Jones, 61 M.J. at 86.
Considering the totality of the circumstances in this case,
we cannot be confident beyond a reasonable doubt that this delay
has been harmless. Although we do not presume prejudice based
on the length of the delay alone, we are mindful of the
egregious delay in this case and the adverse impact such delays
have upon the public perception of fairness in the military
justice system.
More importantly, had Toohey not waited roughly six years
before the lower court rendered its decision, this court could
have conducted its review and returned the case to the lower
court for a proper review under Article 66(c), UCMJ, in time for
the lower court to afford Toohey meaningful relief, if
warranted. However, given the delay, even after determining
that Toohey has a meritorious claim involving appellate error
that warrants remand and a new sentence appropriateness review
under Article 66(c), UCMJ, meaningful options for relief, if
25
United States v. Toohey, No. 05-0127/MC
appropriate, are now limited because Toohey has served his
adjudged and approved confinement.
Therefore, we conclude that the appellate due process
violation is not harmless beyond a reasonable doubt and Toohey
is entitled to consideration of relief for the due process
violation. Because we are returning this case to the Court of
Criminal Appeals, we will not attempt to craft any relief
ourselves and we leave that determination to the court below.
In Moreno, we provided a non-exclusive range of options as
relief for due process, speedy post-trial violations. 63 M.J.
at 143. In addition to reviewing the delay in relation to
sentence appropriateness, the Court of Criminal Appeals should
afford the parties the opportunity to address the issue of
meaningful relief in light of the due process violation and the
circumstances of this case.
DECISION
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is set aside. The record is returned to the
Judge Advocate General for remand to the Court of Criminal
Appeals for action not inconsistent with this opinion. After
which, Article 67(a), UCMJ, 10 U.S.C. 867(a) (2000), shall
apply.
26
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CRAWFORD, Judge (dissenting):
Once again the majority fails to apply Supreme Court
precedent in interpreting the same or a similar statute or rule.
See, e.g., United States v. Cary, 62 M.J. 277, 279 (C.A.A.F.
2006) (Crawford, J., concurring in the result) (the Rules of
Courts-Martial are based on the Federal Rules of Criminal
Procedure and we should follow guidance of our superior court in
applying or interpreting rules). Thus, I respectfully dissent
from this Court’s continuing pattern of ignoring or refusing to
follow the precedent of our superior court.
Based on Ohler v. United States, 529 U.S. 753, 760 (2000),
and Luce v. United States, 469 U.S. 38, 43 (1984), I would hold
that any issue regarding the rebuttal of character evidence for
peacefulness by the Government was not preserved for appeal when
Appellant did not submit his character evidence mentioned at the
time of the motion. This case is similar to Luce, where the
Supreme Court held that an appellant who did not testify may not
challenge on appeal an in limine ruling as to the admissibility
of a prior conviction and its use for impeachment under Fed. R.
Evid. 609(a). Luce, 469 U.S. at 43. The appellant in Ohler
also lost an in limine motion and sought to take the sting out
of a prior conviction by testifying and minimizing the
conviction that the judge ruled admissible under Fed. R. Evid.
609. Ohler, 529 U.S. at 755. Again, the Supreme Court held
United States v. Toohey, No. 05-0127/MC
that the appellant’s action in testifying about the prior
conviction precluded him from challenging the in limine ruling
on the admission of the prior conviction. Id. at 755. In Luce,
the Supreme Court reasoned that the judge needs to make the
ruling in the context of what would happen at trial, otherwise,
the record is incomplete, and a “reviewing court is handicapped
in any effort to rule on the subtle evidentiary questions
outside a factual context.” Luce, 469 U.S. at 41.
An appellate court has no way of knowing whether the
government would actually seek to introduce such evidence if its
case were strong. The government may elect not to use arguably
inadmissible evidence. As the case here now stands, this Court
is encouraging defense counsel to “create” appellate error, even
when the defense may not want to admit the evidence.
Additionally, I respectfully dissent from the majority’s
“find[ing of an] unreasonable lengthy delay.” See United States
v. Moreno, 63 M.J. 129, 144 (C.A.A.F. 2006) (Crawford, J.,
concurring in part and dissenting in part).
2