Air Force Court of Criminal Appeals--Burnett

United States v. Burnett. Officer members convicted Appellant of one sexual assault, for which they sentenced him to two months, TF, RiR, and a DD.

Appellant raises 14 issues for our consideration on appeal: (1) whether the evidence is legally and factually sufficient to support his conviction; (2) whether the military judge erred by failing to give a proper instruction on the affirmative defense of involuntary intoxication; (3) whether trial defense counsel were ineffective by failing to research or request a proper instruction on involuntary intoxication; (4) whether the military judge erred by failing to give a proper limiting instruction upon the admission of human lie detector evidence; (5) whether trial defense counsel were ineffective by failing to appreciate the prejudicial effect of human lie detector evidence and failing to request a limiting instruction; (6) whether the military judge erred by failing to give a timely and proper limiting instruction regarding evidence of Appellant’s prior waiver of an administrative discharge board; (7) whether trial defense counsel were ineffective by failing to appreciate the prejudicial effect of evidence of Appellant’s discharge board waiver and failing to request a limiting instruction; (8) whether the military judge abused his discretion by admitting testimonial hearsay; (9) whether a witness immunity letter issued by the convening authority amounted to unlawful command influence; (10) whether trial counsel engaged in prosecutorial misconduct during argument on findings; (11) whether trial defense counsel were ineffective by failing to object to trial counsel’s argument; (12) whether Appellant was wrongfully denied credit against his sentence for nonjudicial punishment he previously received for the same offense for which he was convicted; (13) whether Appellant is entitled to relief for cumulative error; and (14) whether the military judge abused his discretion by limiting the time allotted for closing argument.

After 46 pages, the court finds no error warranting relief and affirms.

After the Defense rested, the military judge discussed the proposed findings instructions with counsel. The military judge indicated he intended to give an instruction on Appellant’s voluntary intoxication. Trial counsel then suggested that Appellant’s AFOSI interview raised “an issue of maybe involuntary intoxication,” and requested “that language be included” with the voluntary intoxication instruction. After some discussion, trial counsel clarified that the Government was not requesting an instruction on the defense of involuntary intoxication itself.

Part of the actual instruction given said,

Voluntary and/or involuntary intoxication; the evidence in this case has raised the issue of voluntary or involuntary intoxication in relation to the charged offense. I advised you earlier that one of the elements of the offense of Article 120, [UCMJ,] Sexual Assault, is that the accused penetrated [JC]’s vulva with his finger, but another element was that he must have done so with the specific intent to arouse or gratify his sexual desire.

The defense counsel had no objection or additions to the instruction. Keep in mind that "The military judge’s instructions on findings “shall include . . . [a] description of any special defense under R.C.M. 916 in issue.” R.C.M. 920(e)(3)." The duty is a sua sponte one. But says, the court,

Although we agree the military judge did not provide an accurate instruction on the affirmative defense of involuntary intoxication, it is plain from the record that the Defense waived any objection to this omission. 
. . .
However, this discussion [about the involuntary and voluntary intoxication] took place in the context of trial defense counsel already having indicated the Defense did not seek an instruction on involuntary intoxication. Trial defense counsel subsequently reaffirmed multiple times that the Defense did not want different or additional instructions on involuntary intoxication. Whether that was a reasonable decision on trial defense counsel’s part, and whether trial defense counsel actually misunderstood the law, are separate questions that implicate Appellant’s right to effective assistance of counsel, analyzed infra as a distinct assignment of error. However, from the military judge’s perspective, the Defense plainly waived the matter in terms that were more than sufficient to constitute waiver under our superior court’s precedent. 
. . .
although the military judge and trial counsel evidently believed Appellant’s AFOSI interview raised some question of involuntary intoxication, the evidence supporting the affirmative defense of involuntary intoxication was almost nonexistent.

Query, is all that is required is that there be "some evidence?" But,

​Even if we assume involuntary intoxication was reasonably raised, in light of the Defense’s waiver and the state of the evidence, the omission of an instruction on the affirmative defense of involuntary intoxication did not unfairly prejudice Appellant, and no relief is warranted.

On the Human Lie Detector (HLD) issue, it was not plain, clear, or obvious that the statements were the functional equivalent of HLD. And,

Second, assuming arguendo that Prosecution Exhibit 1 did contain human lie detector evidence, an appellant is not entitled to relief for invited errors. Trial defense counsel not only failed to object to Prosecution Exhibit 1, but elicited on cross-examination that Investigator SC told Appellant that she believed the allegation was true, and attempted (unsuccessfully) to get Investigator SC to state she did in fact believe the allegation at that point. Trial defense counsel’s decisions to not object to Prosecution Exhibit 1 and to crossexamine Investigator SC on whether she believed the allegation were evidently part of the Defense’s strategy to portray the AFOSI investigation as biased and ​unreliable. The Defense cannot reasonably elicit such evidence as part of a deliberate trial strategy, and then on appeal complain about its effects on the court-martial.

While the MJ did not sua sponte intercede (as existing case law suggests), he later gave an instruction to the members that said, 

​ the military judge specifically instructed the court members not to consider any opinion expressed by Investigator SC as evidence that JC was credible or that a crime occurred. See United States v. Taylor, 53 M.J. 195, 198 (C.A.A.F. 2000) (holding court members are presumed to follow instructions absent evidence to the contrary).

Some have heard or read my thoughts on why this appellate trope is bogus on significant issues like the one here which could have an outsized effect on the members' thinking.

On issue (6), testimony about alternate dispositions, read the preamble to the court's comment that, 

More to the point, trial defense counsel’s actions implicate the invited error doctrine. The Defense elicited JC’s testimony that she changed her mind about cooperating with the AFOSI because Appellant waived his discharge board. Rather than object or seek a limiting instruction or other relief, trial defense counsel had JC reiterate that Appellant was initially facing a discharge board rather than a court-martial. This opened the door to trial counsel following up with JC regarding the discharge board and waiver during redirect examination; again, trial defense counsel did not object or seek an instruction. Instead, the Defense returned to the same point on recross-examination and had JC confirm once again that she decided to cooperate with AFOSI after Appellant waived an administrative discharge board. Trial defense counsel then specifically invoked this evidence during closing argument in order to emphasize Appellant was initially facing only an administrative discharge board and to portray JC as unreasonably biased against Appellant. As with Appellant’s claim of error regarding human lie detector evidence, the Defense cannot reasonably ​deliberately elicit evidence at trial and then complain about its admission on appeal.

In discussing the IAC claims on this issue, it appears the defense stragey was 

​to use JC’s reaction to Appellant’s board waiver to portray her as bitter and spiteful, which they felt would help Appellant’s case. According to Capt Xray, trial defense counsel believed the benefits outweighed the risks because Appellant’s waiver could be understood as him “just not wanting to take the risk of a court-martial” rather than a “quasi-admission” of guilt. With regard to seeking a limiting instruction, Capt Yankee explained “in full candor” they “did not think to do so, since [JC’s] testimony fit [the Defense’s] narrative and [they] believed could be better instead contextualized in argument.” For her part, Capt Yankee stated, [L]ooking back, this was improper evidence to elicit. However, in the heat of trial, we did not believe there was a need for a limiting instruction since a discharge board waiver is not an admission of guilt and it was only briefly mentioned in trial to show the complaining witness’s character of being vindictive and attention-seeking.

Finding error on this "close question" the court finds no prejudice.

​​The UCI issue is interesting.

​Appellant raises a separate assignment of error related to Prosecution Exhibit 6—that the convening authority’s recitation of events in the first paragraph, quoted above, amounted to unlawful command influence (UCI) over Appellant’s court-martial proceedings. Appellant concedes the “immunized witness must be oriented to the topic and the limits of what the immunity covers,” but contends in this case the convening authority went much further and specifically described the testimony he expected SB to provide. Appellant contends Prosecution Exhibit 6 had, at a minimum, the appearance of ordering SB to provide specific testimony—not merely to tell the truth, but to use the words indicated by the convening authority.

The court concludes the Appellant failed to get over the initial bar. Although the issue is interrelated with the testimonial hearsay issue because the grant was provided to the members. The defense objected but the MJ went with the TC's representation that it "was being offered for the truth of the matters asserted “[o]nly to the extent that it is a direction to [SB] to testify truthfully.” The immunity grant said,

​SCOPE OF IMMUNITY: An investigation revealed you have knowledge of an offense allegedly committed by [Appellant]. The offense in question involves the alleged sexual assault of [JC] on or about 27 October 2017. You observed [Appellant] and [JC’s] interactions with each other on the night of the alleged sexual assault. You also received text messages from [JC] the following morning related to [Appellant]. Several days after 27 October 2017, [JC] confided with you while in your vehicle that [Appellant] had sexually assaulted her. 

Read the discussion on the Pierce issue as a refresher.

After additional discussions between the military judge and counsel regarding exhibits and sentencing instructions, the following exchange occurred:

DC: And, Your Honor, I would note -- I’m not sure the appropriate time to note this, but as part of his Article 15, he was punished for the same offense for which he was prosecuted here in this trial, and he received 60 days restriction from that Article 15. I’m not sure if that’s -- well, I just want to make you aware of that.

MJ: Okay. You want to make me aware of that in what regard? How do you see that as relevant?

DC: May I have a moment? . . . .

DC: Your Honor, we intend to offer that as a matter of mitigation in terms of an appropriate sentence.

​MJ: Okay. Let’s put a pin in it and turn back to that shortly.

Cheers, Phil Cave