United States v. Langhorne

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
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No. ACM 39192
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UNITED STATES
Appellee
v.
Elijah M. LANGHORNE
Airman Basic (E-1), U.S. Air Force, Appellant
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Appeal from the United States Air Force Trial Judiciary
Decided 18 April 2018
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Military Judge: James E. Key, III.
Approved sentence: Bad-conduct discharge and confinement for 6
months. Sentence adjudged 6 October 2016 by GCM convened at Tinker
Air Force Base, Oklahoma.
For Appellant: Major Annie W. Morgan, USAF; Brian L. Mizer, Esquire.
For Appellee: Major Collin F. Delaney, USAF; Major Mary Ellen Payne,
USAF.
Before JOHNSON, MINK, and DENNIS, Appellate Military Judges.
Judge DENNIS delivered the opinion of the court, in which Senior Judge
JOHNSON and Judge MINK joined.
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This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 18.4.
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DENNIS, Judge:
A general court-martial composed of a military judge sitting alone con-
victed Appellant, in accordance with his pleas, of one specification each of at-
tempted sale of military property of a value less than $500.00, without proper
United States v. Langhorne, No. ACM 39192
authority, attempted sale of military property of a value more than $500.00,
without proper authority, and larceny of military property of a value more than
$500.00, in violation of Articles 80 and 121, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. §§ 880, 921. Appellant’s adjudged and approved sentence
consisted of a bad-conduct discharge and confinement for six months.
Appellant raises one issue on appeal: Did the military judge abuse his dis-
cretion when he failed to require trial counsel to establish a good faith basis
for asking a defense character witness if she was aware “Appellant had previ-
ously lied under oath?” We find that Appellant, not having raised the issue at
trial, has failed to demonstrate plain error that materially prejudiced his sub-
stantial rights. Accordingly, we affirm the findings and sentence.
I. BACKGROUND
This is Appellant’s second court-martial. Appellant’s first court-martial
convicted him of two specifications of conspiracy to commit premeditated mur-
der and one specification each of aggravated arson of an inhabited dwelling
and reckless endangerment by wantonly setting fire to a dwelling, likely to
cause death or grievous bodily harm, in violation of Articles 81, 126 and 134,
UCMJ, 10 U.S.C. §§ 881, 926, 934. United States v. Langhorne, ___ M.J. ___,
No. ACM 39047, 2017 CCA LEXIS 746, at *1 (A.F. Ct. Crim. App. 5 Dec. 2017).
On the eve of Appellant’s first court-martial, law enforcement officials executed
a search authorization on his storage unit. They discovered several items la-
beled “Property of United States Government.” A subsequent investigation re-
vealed that over the course of approximately two years, Appellant had taken
several items from his unit. Without authority, Appellant attempted to sell
some of the items and retained others for his personal use.
After Appellant pleaded guilty in his second court-martial, he introduced
several character letters for the military judge to consider in determining a
sentence. In rebuttal, the Government called one character letter’s author,
KW, to test her opinion that Appellant had “outstanding potential for rehabil-
itation.” The Government asked several questions to elicit whether KW was
aware of other misconduct Appellant had committed. Many of the questions
involved the offenses for which Appellant had been convicted at his first court-
martial. The Government also asked questions related to uncharged miscon-
duct, including questioning KW whether she was “aware that when [Appellant]
took the stand to testify on a motion at his previous trial that he lied under
oath.” KW stated she was not aware. Trial defense counsel did not object to the
line of questioning, but the military judge later commented on KW’s testimony.
Military Judge: [T]his is a lot of information I have not heard
before, so I, of course, caution counsel to ensure you have a good
faith basis for all the issues that you are asking her about.
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United States v. Langhorne, No. ACM 39192
Senior Trial Counsel: Absolutely, Your Honor. The government
does have a good faith basis for each of the questions that we’re
asking.
Military Judge: Very well.
The Defense cross-examined the witness and asked whether she was aware
Appellant had never been charged or found guilty of lying under oath. There
was no further comment in the second court-martial as to whether Appellant
had otherwise lied under oath.
II. DISCUSSION
Appellant asserts that the military judge erred in failing to require trial
counsel to articulate a good faith basis for asking whether a witness was aware
Appellant had lied under oath. Under the facts of this case, we disagree.
As a threshold matter, Appellant did not challenge the Government’s ques-
tion at trial. Trial defense counsel did not object during the testimony, either
before or after the military judge identified the need for a good faith basis to
ask questions. Where an appellant has not challenged the admission of evi-
dence at trial, the standard of review is plain error. 1 United States v. Powell,
49 M.J. 460 (C.A.A.F. 1998). To prevail under a plain error analysis, Appellant
must demonstrate that (1) there was error, (2) the error was clear or obvious,
and (3) the error materially prejudiced a substantial right. United States v.
Lopez, 76 M.J. 151, 154 (C.A.A.F. 2017) (citation omitted).
On appeal, Appellant does not object to trial counsel’s line of questioning.
Rather, Appellant objects to the one question suggesting Appellant lied under
oath. We cannot surmise from the record exactly what part of KW’s testimony
the military judge had in mind when he cautioned trial counsel to have a good
faith basis for each question asked of the defense sentencing witness. That
said, we need not decide whether the military judge was required to clarify the
basis for the Government’s claim of good faith 2 because Appellant fails to
demonstrate prejudice.
Assuming arguendo trial counsel had no good faith basis to ask whether
KW was aware Appellant had lied under oath, the question was harmless. Sev-
eral factors lead us to this conclusion. First, the sentencing authority in this
case was a military judge sitting alone. “When the issue of plain error involves
1Appellant’s brief identifies abuse of discretion as the standard of review but does not
address trial defense counsel’s failure to object to the line of questioning at issue.
2 Cf. United States v. Kitching, 23 M.J. 601, 603 (A.F.C.M.R. 1986) (stating “it would
have been better practice for the military judge to ask to review the documentation”
trial counsel cited as establishing a good faith basis for cross-examination).
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United States v. Langhorne, No. ACM 39192
a judge-alone trial, an appellant faces a particularly high hurdle.” United
States v. Robbins, 52 M.J. 455, 457 (C.A.A.F. 2000). Unlike members, a mili-
tary judge is presumed to know the law and apply it correctly in determining
a sentence. United States v. Erickson, 65 M.J. 221, 225 (C.A.A.F. 2007). Second,
contrary to Appellant’s assertion, the Government did not use the question to
discredit KW’s character letter. Although trial counsel argued that KW’s letter
was “essentially meaningless,” he did so based on KW’s testimony that she did
not believe Appellant had committed the offenses to which he pleaded guilty.
Third, the question at issue was merely one of several similarly styled ques-
tions trial counsel asked KW concerning Appellant’s first trial and conviction.
Because none of the other questions were objectionable, the one question at
issue would have had little incremental effect, if any at all. Fourth, the ques-
tioning did not persuade KW to recant her character letter. These factors, in
combination with a specific attestation of good faith from an officer of the court
and no objection from defense counsel, lead us to conclude that the military
judge’s admission of the evidence did not prejudice a substantial right of Ap-
pellant, and thus, was not plain error.
III. CONCLUSION
The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to the substantial rights of Appellant occurred. Arti-
cles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the find-
ings and the sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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