Air Force Court of Criminal Appeals

An alert reader noticed we'd not yet posted about (the unpublished opinion in) Goldsmith--the case is of some consequence. May be a CAAF candidate. Appellant's issue #3 is worthy of note.

 "[T]he military judge erred in considering certain matters in a victim’s unsworn statement[.]"

A military judge sitting as a general court-martial convicted Appellant, in accordance with his pleas and pursuant to a plea agreement, of three specifications of willfully disobeying a superior commissioned officer, one specification of wrongfully discharging a firearm under circumstances to endanger human life, one specification of communicating a threat, two specifications of assault consummated by a battery, and four specifications of domestic violence in violation of Articles 90, 114, 115, 128, and 128b, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 890, 914, 915, 928, 928b. After the military judge announced Appellant’s sentence, the convening authority withdrew and dismissed one specification of attempted murder in violation of Article 80, UCMJ, 10 U.S.C. § 880, and one specification of domestic violence in violation of Article 128b, UCMJ, as required by the plea agreement. The military judge sentenced Appellant to a dishonorable discharge, confinement for 84 months, reduction to the grade of E-1, and a reprimand. The convening authority approved the sentence in its entirety, but deferred Appellant’s reduction in grade until judgment was entered and waived Appellant’s automatic forfeitures for a period of six months.

So what was the problem?

After the Government rested, HG sought to present an unsworn statement pursuant to her rights under Article 6b, UCMJ, 10 U.S.C. § 806b, and R.C.M. 1001(c). The written statement not only elaborated on the two assaults and the shooting incident at HG’s house, but also indicated Appellant had physically abused HG throughout most of their marriage, beginning in 2013. The Defense objected to large sections of the proposed unsworn statement, leading to about half of the statement being redacted. Trial counsel agreed to almost all the redactions. The military judge, however, overruled the Defense’s objection to these two lines: “[Appellant] spent all these years trying to convince me that each incident wasn’t that bad, and that I wasn’t remembering correctly. On one occasion he would admit what he did and apologize, but then on another occasion he would try to tell me that it happened differently.” In objecting, trial defense counsel argued the “two sentences constitute accusations of further mistreatment, not victim impact.”

In overruling the Defense’s objection, the military judge focused on the phrase “directly relating to or arising from” in the definition of “victim impact” in R.C.M. 1001(c)(2)(B). He noted that this phrase was essentially the same as that found in R.C.M. 1001(b)(4), which limits the Government’s evidence in aggravation to “any aggravating circumstances directly relating to or resulting from the offenses of which the accused has been found guilty.” The military judge explained that case law interpreting the latter rule permitted “commentary on a continuing course of conduct so long as the victim had a qualifying . . . financial, social, psychological, or medical impact from that course of conduct.” From there, the military judge concluded the concept of a “continuing course of conduct” applies to victim unsworn statements in the same way the concept applies to the Government’s aggravation evidence. 

The alert reader has pointed out Goldsmith to be a case of first impression. To quote friend and colleague Pat McClain, that is all.

Cheers.

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